## Chapter 1 A complete encyclopaedia of new law

Volume IV.

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 find its latest treatment and also a volume and page citation to the same points in earlier volumes. Black figures refer to volumes; light figures to pages. This index is revised and reprinted every month. Remember to start with the latest index and you cannot go astray or miss anything.

\*\*A. ACCOUTING, ACTION FOR, 3, 24. See, also, Estates of Decedents, 3, 1304; Guardanship, 3, 1574; Partnership, 4, 925; Trusts, 4, 1782. ACCOUNTTS STATED AND OPEN ACCOUNTTS, 3, 27. ACCRETION, see Riparian Owners, 4, 1812. ACCUMLATIONS, see Trusts, 4, 1739; Perpetuities and Accumulations, 4, 975. ACCNOWLEDGMENTS, 3, 31. ACTIONS, 3, 35. See, also, Causes of Action, etc., 3, 653; Forms of Action, 3, 1494; Pleading (joinder of actions), 4, 988. ACT OF GOD, see Carriers, 3, 591; Contracts, 3, 840; Insurance, 4, 157; Negligence, 4, 767. ADDITIONAL ALLOWANCES, see Costs, 3, 940. ADDITIONAL INSTRUCTIONS AFTER TREEMENT OF JURY \[Special Article\], 4, 1718. ADEMPTION OF LEGACIES, see Willis, 4, 1939. ADJOINING OWNERS, 3, 36. See, also, Fences, 3, 1422. ADJOURNMENTS, see Courts, 3, 971; Continuance and Postponement, 3, 801. ADMINISTRATION, see Estates of Decedents, 3, 1339; Trusts, 4, 1743. ADMIRALITY, 3, 40. ADMISSIONS, see Indictment and Prosecution, 4, 31; Evidence, 3, 1859; Pleading, 4, 980; Trial, 4, 1714. ADEMPTION OF CHILDREN, 3, 45. ADOUTTERATION, 3, 47. ADUMLTERY, 3, 48. ADVANCESMENTS, see Estates of Decedents, 3, 1824; Willis, 4, 1919; Trusts, 4, 1737. ADVERISE POSSESION, 3, 51. ADVERITSING CONTRracts, see Contracts, 3, 805. ADVICE OF COUNSEL, see Attorneys, etc., 3, 876; Malicious Prosecution and Abuse of Process, 4, 470, and other torus involving malice; Witnesses (as to Privileged Nature of Communications), 4, 1953. AFFIDAVITS, 3, 65.

**AFFIDAVTS OF MERITS OF CLAIMOR OF DEFEENSENS, 3, 66**.

**AFFIRMATIONS, see Witnesses, 4, 1943; Jury, 4, 558**.

**AFFIRAY, 3, 68**.

**AGENCY, 3, 68**.

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

**AGISTMENT, see Animals, 3, 162; Llens, 4, 433**.

**AGREED CASE, see Submission of Controversy, 4, 1582; Appeal and Review, 3, 167; Stribulations, 4, 1583**.

**AGRICULTURE, 3, 137**.

**AIDER BY VERDICT, ETC., see Indictment and Prosecution, 4, 1; Pleading, 4, 1045**.

**ALJBI, see Criminal Law, 3, 973; Indictment and Prosecution, 4, 43**.

**ALIENS, 3, 138**.

**ALIMONY, 3, 146**.

**ALTERATION OF INTRUMENTS, 3, 154**.

**AMBASADORS AND CONSULTS, 3, 158**.

\*\*AMBIGUITY, see those parts of titles like Contracts, 3, 827; Statutes, 4, 1522; Wills, 4, 1898, which treat of interpretation.

**AMENDMENTS, see Indictment and Prosecution, 4, 18; Pleading, 4, 1016; Equity, 3, 1210, and procedure titles generally.**

**AMICUS CURIAE, 3, 158**.

**AMOTION, see Associations and Societies, 3, 346; Corporations, 3, 899.**

**AMOUNT IN CONTROVERSY, see Appeal and Review, 3, 167; Jurisdiction, 4, 324; Costs, 3, 940**.

**ANCIENT DOCUMENTS, see Evidence, 3, 1365.**

**ANIMALS, 3, 159**.

**ANUNTIES, 3, 165**.

**ANOUTHER SUIT PENDING, see Abatement and Revival, 3, 1; Stay of Proceedings, 4, 1549; Jurisdiction, 4, 324.**

**ANSWERS, see Equity, 3, 1229; Pleading, 4, 1015.**

**ANTENNPTIAL CONTRracts AND SETTLEMENTNTS, see Husband and Wife, 3, 1670.**

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

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

**APPEALANCE, 3, 100**.

**APPEALATE COURTS AND JURISDICTION, see Appeal and Review, 3, 167; Jurisdiction, 4, 324.**

**APPLICATION OF PAYMENTS, see Payment and Tender, 4, 957.**

**APPOINTMENT, see Officers and Public Employees, 4, 857: Estates of Decedents, 3, 1445; Trusts, 4, 1741, and the like; Powers, 4, 1065.**

**APPORTIONMENT LAWS, see Elections, 3, 1165; Offecers, etc., 4, 854; States, 4, 1516.**

**APPRENTICS, 3, 303**.

**ARRIGHTATION AND AWARD, 3, 303**.

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

**ARGUMENT OF COUNSEL, 3, 306**.

**ARMY AND NAYY, see Military and Naval Law, 4, 640.**

**ARRIGHTANT AND PLEAS, see Indictment and Prosecution, 4, 19.**

**ARRREST AND BINDING OVER, 3, 312.**

**ARRREST OF JUDGMENT, see New Trial and Arrest of Judgment, 4, 826.**

**ARRREST ON CIVIL PROCESS, see CIVIL Arrest, 3, 700.**

**ARSON, 3, 318**. See, also, Fires, 3, 1425.\*\*

**ASSAULT AND BATTERY, 3, 819**.

**ASSIGNAABILITY OF LIF INSUANCE POLICIES (Special Article), 4, 235.**

**ASSIGNMENTS, 3, 826**.\*\*

\*\*ASSIGNMENTS FOR BENEFIT OF CREDBILLS IN EQUITY, see Equity, 3, 1210; and the titles treating of special relief such as Cancellation of Instrumenta, 3, 584; Injunction, 4, 96; Judgments, 4, 287; Queting Title, 4, 1167.

- BILLS OF LADING, see Carriers, 3, 595; Sales, 4, 1318; Negotiable Instruments, 4, 787.
- BILLS OF SALLE, see Sales, 4, 1323; Chattel Mortages, 3, 682; Fraudulent Conveyances, 3, 1535.
- BIRTH REGISTERS, see Census and Statistiles, 3, 686; Evidence, 3, 1334.
- BLACKNAIAL, 507.
- BLENDED PROPERTIES, see Accession and Confusion of Property, 3, 15; Conversion as Port, 3, 866; Conversion in Equity, 3, 876; Trusts, 4, 1738; Willis, 4, 1904, 1937.
- BOARD OF HEALTH, see Health, 3, 1591.
- BOARDS, see Officers and Public Employices, 4, 854, also see various titles like Counties, 3, 959; Municipal Corporations, 4, 725.
- BODY EXECUTION, see Civil Arrest, 3, 701.
- BONA FIDES, see Negotiable Instruments, 4, 803; Notice and Record of Title, 4, 829.
- BONDS, 3, 507. See, also, Municipal Bonds, 4, 706; Counties, 3, 968; Municipal Corporations, 4, 746; States, 4, 1516.
- "DOTICLE": AND "CAN" LAVNS, see Commerce, 3, 717.
- BOOTOMARY AND RESPONDENTIA, see Shipping and Water Traffic, 4, 1455.
- BOUGHT AND SOLD NOTRES, see Frauds, Statute of, 3, 1527; Brokers, 3, 535; Factors, 3, 1415.
- HOUNDARIES, 3, 518.
- BOYCOTT, see Conspiracy, 3, 726; Injunction, 4, 96; Threats, 4, 1679; Trade Unions, 4, 1696.
- BRANDDS, see Animals, 3, 165; Commerce, 3, 717; Forestry and Timber, 3, 148; Trade Marks and Trade Names, 4, 1689.
- BREACH OF MARRIAGE PROMISE, 3, 525.
- BERACH OF THE PEACE, see Disorderly Conduct, 3, 1111; Surety of the Peace, 4, 1595.
- BRIBRERY, 3, 527.
- BRIBRGES, 3, 529.
- BROKERS, 3, 535.
- BUILDS AND CONSTRUCTION CHARACTER, 3, 550.
- BUILDING AND LOAN ASSOCIATIONS, 3, 561.
- BUILDING AND BUILDING RESTRICUTIONS, 3, 572.
- BURDDEN OF PROOF, see Evidence, 3, 1337.
- BURGLARY, 3, 578.
- BURNT RECORDS, see Restoring Instruments and Records, 4, 1295.
- BY-LAWS, see Associations and Societies, 3, 347; Corporations, 3, 912.
- C.
- CALLENDARS, see Dockets, etc., 3, 1140.
- CANALS, 3, 583.
- CANCELLATION OF INSTRUMENTS, 3, 584.
- CANVASS OF VOTES, see Elections, 3, 1173.
- CAPIAS, see Civil Arrest, 3, 700; also (caplas as a bench warrant), see Contempt, 3, 799; Witnesses, 4, 1943.
- CAPITAL, see Corporations, 3, 899; Partner-ship, 4, 912; Banking and Finance, 8, 403.
- CARLISE TABLES, see Damages, 3, 1030; Death by Wrongful Act, 3, 1040; Evidence, 3, 1366.
- CARRIERS, 3, 591.
- CARRIERS, 3, 691.
- CARRITS WEAPONS, see Constitutional Law, 3, 793; Weapons, 4, 1859.
- CAR TRUST8, see Railroads, 4, 1194, 1197.
- CASE, ACTION ON, 3, 663.
- CASE AGREED, see Appeal and Review, 3, 167; Submission of Controversy, 4, 1582.
- CASE CERTIFIED, see Appeal and Review, 3, 167.
- CASE SETTLED, see Appeal and Review, 3, 167.
- CASB, see Payment and Tender, 4, 955.
- CATCHING BARGAIN, see Assignments, 3, 326; Estates of Decedents, 3, 1323; Life Estates, Revervisions and Remainders, 4, 438; Fraud and Undue Influence, 3, 1520.

CIVIL DAMAGE ACTS, see Introxiating LIA-Uors, 4, 278.

CIVIL DEATH, see Convicts, 3, 878.

CIVIL RIGHTS, 3, 702.

CIVIL SERVICE, see Offcers and Public Employes, 4, 856.

CLEARING HOUSES, see Banking and Finance, 3, 403.

CLEARKS OF COURT, 3, 702.

CLOUD ON TITLE, see Covenants for Title, 3, 973; Queting Title, 4, 1170; Vendors and Purchasers, 4, 1769.

CLUBS, see Associations and Societies, 3, 346.

CODICILS, see Willis, 4, 1888, 1901.

COOKOVIT, see Confession of Judgment, 3, 719.

COLLEGES AND ACADEMIES, 3, 705.

COLLEISON, see Shipping and Water Traffic, 4, 1459.

COLOR OF TITLE, see Adverse Possession, 3, 51.

COMBINATIONS AND MONOPOOLIES, 3, 706.

COMBINATIONS, see Arrest and Binding Over, 3, 111; Contempt, 3, 800; Indictment and Prosecution, 4, 66; Fines, 3, 1424.

COMMON AND PUBLIC SCHOOLS, 1, 544.

COMMON LAW, 3, 717.

COMMUNITY PROPERITY, see Husband and Wife, 3, 1676.

COMMARATIVE ENSIGLENCE, see Negligence, 4, 775.

COMPLAINT FOR ARREST, see Arrest and Binding Over, 3, 312.

COMPLAINTS IN PLEADING, see Pleading, 4, 936.

COMPOSITION WITH CREDITROS, 3, 718.

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

CONCEALED WEAPONS, see Weapons, 4, 1859.

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

CONDEMNATION PROCEEDINGS, see Eminent Domina, 3, 1200, 1205.

CONDITIONAL SALES, see Chatted Mortages, 8, 682; Fraudulent Conveyances, 3, 1535; Sales, 4, 1864.

CONFESSION AND AVOIDANCE, see Pleading, 4, 1008.

CONFESSION OF JUDGMENT, 3, 719.

CONFESSION, see Indictment and Prosecution, 4, 33.

CONFEICATION, see Constitutional Law (Due Process), 3, 772; Fish and Game Laws, 3, 1430.

CONFLICT OF LAWS, 3, 720.

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

CONNECTING CARRIERS, see Carriers, 3, 591; Railroads, 4, 1192.

CONSIDBRATION, see Contracts, 3, 809.

CONSOLIDATION (of actions), see Trial, 4, 1709; (of corporations) see Corporations, 3, 880.

CONSPIRACY, 3, 726.

CONSTABLES, see Sheriffs and Constables, 4, 144.

CONSTITUTION LAW, 3, 730.

CONSULLS, see Ambassadors and Consuls, 3, 158.

CONTEMPT, 3, 755.

CONTENNANCE AND POSTPONEMENT, 3, 801.

CONTRACT LABOR LAW, see Allens. 3, 138.

CONTRACTS, 3, 805; with Special Article, 3, 861.

CONTRACTS OF AFFREIGHTMENT, see Carriers, 3, 591; Shipping and Water Traffic, 4, 1456, 1474.

CONTRACTS OF HIRE, see Ballment, 3, 400.

CONTRACTS OF HIRE, see Baltimore, 3, 400.

CONTRACTS VOID BECASE INTEREFERING WITH THE PUBLIC SERVICE (Special Article), 3, 861.

CONTRINATION, 3, 865.

CONTRIBUTORY NEGLIGENCE, see Negligence, 4, 713.

CONVERION AS TORT, 3, 866.

CONVERION IN EQUITY, 3, 876.

CONVESTION, 3, 878.

CORMAN NOBIS AND CORAM VODIS, see Appeal and Review, 3, 167. The various

stutory substitutes for the remedy by writ Coram Nobis are usually considered

as part of the law of judgments. See

Judgments, 4, 288.

CONORENERS, 3, 873.

CONVERIONS AND BURIAL, 3, 839.

CORPUS DELICTI, see Criminal Law, 3, 979;

Indictment and Prosecution, 4, 1.

CORRORORORORORORORORORO e. g., Contracts, **3**, 805; Deeda of Convey-anco, **3**, 1063; Landford and Tenant (leases), **4**, 389; Vendors and Purehaers (land contracts), **4**, 1769; see Buildings, etc. (covonants) redirective), **3**, 574.

COVENANATS FOR TITLE, **9**, 913.

COVERTURE, see Husband and Wife, **3**, 1669.

CREDIY INSURANCE, see Indemnity, **8**, 1698; Insurance, **4**, 157.

CREDITRYS' SUT, **3**, 976.

CRIMINAL CONVERSATION, see Husband and Wife (civil liability), **3**, 1686; Adultery (crime), **3**, 48; Divorce (ground), **3**, 1128.

CRIMINAL LAW, **3**, 979.

CRIMINAL PROCEDURE, see Indemtment and Prosecution, **4**, 1.

CROPS, see Agriculture, **3**, 137; Emblemments and Natural Products, **3**, 1187; Landford and Tenant (rentling for crops), **4**, 400; Chatelt Mortages (mortigages on crops), **3**, 683.

CROSS BILLS AND COMPLIANTS, see Equitity, **3**, 1226; Pleading, **4**, 1015.

CROSSINGS, see Highways and Streets, **3**, 1610; Railroads, **4**, 1199.

CRDUEL AND UNU nesses, 4, 1958; Indictment and Prosecution, 4, 1; Evidence, 3, 1334; Divorce, 3, 1127.

- DETERMINATION OF CONFLICTING CLAIMMS TO REALITY, see Qutieing Title, 4, 1176.
- DETERNUE, #24. No cases have been found during the period covered by volume 3. DEVIATION, see Carriers, 3, 591; Shipping and Water Traffic, 4, 1450.
- DILATORY PLEAS, see Abatement and Revival, 3, 167; lending, 4, 1005, 1043, 1046, 1047.
- DIRECTING VERDICT AND DENUREREY TO EVIDENCE, 3, 1093.
- DISCALIMERS, see Causes of Action and Defenses, 3, 663; Costs, 3, 940; Pleading, 4, 980.
- DISCONTINANCE, DISMISAL AND NONSUIT, 3, 1097.
- DISCOVERY AND INSPECTION, 3, 1106.
- DISCRETION, see articles treating of procedure or relief resting in discretion. Review or control of discretion, see Appeal and Review, 3, 167; Mandamus, 4, 506; Prohibition, Writ of, 4, 1084; Certifari, 3, 667.
- DISFRANCHISEMENT, see Elections, 3, 1165.
- DISMISSAL AND NONSULT, see Discontinue, etc., 3, 1097.
- DISORDERLY CONDUCT, 3, 1111.
- DISORDERLY HOUSES, 3, 1111.
- DISSOLUTION, see Corporations, 3, 893; Partnership, 4, 922.
- DISTRESS, see Landiord and Tenant, 4, 389.
- DISTRECT ATTORONEYS, see Attorneys and Counselors, 3, 393.
- DISTRICT OF COLUMBIA, see Territories and Federal Possessions, 4, 1678.
- DISTURBANCE OF PUBLIC ASSEMBLAGES, 3, 1112.
- DICTCH AND CANAL RIGHTS \[Special Article\], 3, 1112.
- DIVIDENDS, see Corporations, 3, 903; Bankruptcy, 3, 434; Assignments, etc., 3, 337; Insolvency, 4, 129.
- DIVISION OF OPINION, see Appeal and Review, 3, 167; Judgments, 4, 296; Share Decisis, 4, 1512.
- DIFORCE, 3, 1127.
- DOCKETS, CALENDARS, AND TRIAL LISTS, 3, 1140.
- DOCUMBENTS IN EVIDENCE, see Evidence, 3, 1364; Indictment and Prosecution, 4, 39.
- DOMICLE, 3, 1142.
- DOWER, 3, 1144.
- DRAIMS, see Sewers and Drains, 4, 1499; Waters and Water Supply, 4, 1834, 1836; Public Works, etc., 4, 1124.
- DRUGS; DRUGIGSTS, see Medicine and Surgery, 4, 636; Poisons, 4, 1060.
- DRUNKENNESS, see Intoxicating Liquors, 4, 552; Habital Drunkards, 2, 159; Incompetency, 3, 1696.
- DOUELING, 3, 1147.
- DUEED PROCESS, see Constitutional Law, 3, 172.
- DUPLICITY, see Pleading, 4, 980.
- DURESS, 3, 1147.
- DYING DECLARATIONS, see Homicide, 3, 1658.
- E.
- E. EASEEMENTS, 3, 1148.
- ECCLSLIASTICAL LAW, see Religious Societies, 4, 1275.
- EIGHT HOUR LAWS, see Master and Servant, 4, 533; Constitutional Law, 3, 758, 764; Public Works, etc., 4, 1124; Officers and Public Employees, 4, 854.
- EJECTMENT (and Writ of Entry), 3, 1157.
- ELECTION AND WAIVER, 3, 1177.
- ELECTION, 3, 1181.
- EHEREZE EXPERIMENTS, see Evidence, **3,** 1334.
- \[1\]\*\*EXPERIENT EVIDENCE, see Evidence, **3,** 1370.
- \[2\]**EXPLOSIVES AND INFLAMABLES, 3,** 1412.
- \[3\]\*\*EX POST FACTO LAWS, see Constitutional Law, **3,** 781; Criminal Law, **3,** 979.
- \[4\]\*\*EXPRESS COMPANES, see Carriers, **3,** 591; Ralifroads, **4,** 1181; Corporation, **3,** 880.
- \[5\]\*\*EXTORITION, **3,** 1414. See, also, Blackmail, **3,** 507; Threats, **4,** 1678.
- \[6\]\*\*EXTRADITION, **3,** 1414.
- \[7\]**F** \*\*FORFORING FACTO, **3,** 1415.
- \[8\]**FACTORS** **3,** 1415.
- \[9\]**FACTORS** **3,** 1415; FACTORS\*\* **3,** 1415; Pelges, **4,** 1054; Sales, **4,** 1363.
- \[10\]\*\*FALSE IMPRISONNET, **3,** 1417.
- \[11\]**FALSE PERSONATION** **No cases have been found during the period covered. Compare, 3,** 1426, note 79.
- \[12\]**FALSE PRETENSES AND_CHEATS, 3,** 1419.
- \[13\]**FALSE REPRESENTATIONS, see Deceti, **3,** 1046; Fraud and Undue Influence, **3,** 1520; Estoppel, **3,** 127; Sales (warrantes), **4,** 1334; Insurance (warrantes), **4,** 177,** 196, and all contract titles.
- \[14\]\*\*FALSIFING RECORDS, see Records and Files, **4,** 1254.
- \[15\]\*\*FALSIFENTICEEMENTS, see Estates of Deedents, **3,** 1238.
- \[16\]\*\*FELLOW SERVANTS, see Master and Servant, **4,** 533.
- \[17\]\*\*FEDERAL PROCEDURE, see Admiralty, **3,** 40; Appeal and Review, **3,** 167; Courts, **3,** 970; Equity, **3,** 1219; Jurisdiction, **4,** 321; Removal of Causes, **4,** 1277. Consult the particular titles treating of that matter of procedure under investigation.
- \[18\]\*\*FENCES, **3,** 1422. See, also, Adjoining Owners, **3,** 36.
- \[19\]\*\*FERRIES, **3,** 1423.
- \[20\]\*\*FIDEILITY INSURANCE, see Insurance, **4,** 157.
- \[21\]\*\*FILLINGS, see Pleading, **4,** 1048; Notice and Record of Title, **4,** 833; Records and Piles, **4,** 1254, and titles treating of matters in respect of which papers are or may be fled.
- \[22\]\*\*FNAL JUDGMENTS AND ORDERS, see Appeal and Review, **3,** 167.
- \[23\]\*\*FINDING LOST GOODS, see Property, **4,** 1088.
- \[24\]\*\*FINDINGS, see Verdicts and Findings, **4,** 1803.
- \[25\]\*\*FINES, **3,** 1424.
- \[26\]\*\*FINES, **3,** 1425.
- \[27\]\*\*FISH AND GAME LAWS, **3,** 1428.
- \[28\]\*\*FIXTRES, **3,** 1432.
- \[29\]\*\*FOLIOING PAPERS, see Motions and Orders, **4,** 704; Pleading, **4,** 980.
- \[30\]\*\*FORD, **3,** 1433.
- \[31\]\*\*FORDIBLE ENTRY AND UNLAWFUL DETAINER, **3,** 1435.
- \[32\]\*\*FORECLOSURE OF MOTGRAGES ON LAND, **3,** 1438.
- \[33\]\*\*FOREIGN CORPorations, **3,** 1455.
- \[34\]\*\*FOREIGN CORPorations TO DO BUSINESS OUTSIDE OF DOMILE \[Special Article\], **3,** 1459.
- \[35\]\*\*FOREIGN JUDGMENTS, **3,** 1466.
- \[36\]\*\*FOREIGN LAWS, see Conflict of Laws, **3,** 725; Evidence, **3,** 1334.
- \[37\]\*\*FORESTRY AND THIBER, **3,** 1468.
- \[38\]\*\*FORFEITUREES, see Penalties and Forfeitures, **4,** 963.
- \[3 HANDWRITING, PROOF OF, see evidence, 3, 1864, 1371.
- HARBOR MASTERS, see Navigable Waters, 4, 767; Shiplping and Water Traffic, 4, 1450.
- HARMLESS AND PREJUDICAL ERROR, 3, 1579.
- HAWKERS AND PEDDLERS, see Peddling, 4, 962.
- HEALTH, 3, 1590.
- HEARING, see Appeal and Review, 3, 167; Equity, 3, 1132; Motions and Orders, 4, 706; Trial, 4, 1708.
- HEARSAY, see Evidence, 3, 1355; Indictment and Prosconception, 4, 31.
- HEIRS, DEVISERS, NEXT OF KIN AND LEGATEES, see Descent and Distribution, 3, 1081; Estates of Decedents, 3, 1238; Willis, 4, 1863.
- HERD LAWS, see Animals, 4, 159.
- HIGHWAVAS AND STREETS, 3, 1593.
- HOLIDAYS, 3, 1630.
- HORESTEADS, 3, 1630.
- HORESR RACING, see Betting and Gaming, 3, 501.
- HORESES, see Animals, 3, 159; Sales (waranty), 4, 1334.
- HOSPTALS, see Asylums and Hospitals, 3, 352.
- HOUSSES OF REFUGE AND REFORMATOR-RIBS, see Charlotte, etc., Institutions, 1, 507.
- HUSBAND AND WIFE, 3, 1669.
- I.
- ICE, see Riparlan Owners, 4, 1315; Waters and Water Supply, 4, 1832.
- ILLEGAL CONTRACTS, see Implied Contracts, 3, 1694; Contracts, 3, 805.
- IMMIGRATION, see Aliens, 3, 138; Domile1, 3, 1142.
- IMPAIRING OBLIGATION OF CONTRACT, see Constitutional Law, 3, 765.
- IMPEACHMENT, see Officers, etc., 4, 854; Witnesses, 4, 1959; Examination of Witnesses, 3, 1383.
- IMPLLIED CONTRACTS, 3, 1690.
- IMPLLIED TRUSTS, see Trusts, 4, 1733, 1755.
- IMPLLIED WARRANTIES, see Sales, 4, 1335.
- IMPQUNDING, see Animals, 3, 159.
- IMPRISONMENT FOR DEBT, see Civil Arts, 3, 700; Constitutional Law, 3, 754.
- IMPROVEMENTS, see Accession and Confusion of Property, 3, 15; Element, etc., 3, 1165; Implied Contracts, 3, 1690; Landiord and Tenant, 4, 389; Partition, 4, 906; Public Works and Improvements, 4, 1124; Trespass (to try title), 4, 1706.
- INCENT, 3, 1695.
- INCOMETENCY, 3, 1696.
- INDECCENCY, LEWDNESS AND OBSCENTY, 3, 1697.
- INDEMINITY, 3, 1698.
- INDEPENDENT CONTRACTORS, 3, 1702.
- INDEPENDENT CONTRACTORS UNDER EMPLOYERS LIABILITY ACTS \[Special Article\], 3, 1704.
- INDIANS, 3, 1706.
- INDIANS, 4, 1.
- INDIANSING PAPERS, see Motions and Orders, 4, 704; Pleading, 4, 980.
- INFAMOUS CRIMES, see Criminal Law, 3, 981; Indictment and Prosconception, 4, 5; Witnesses, 4, 1945, 1962.
- INFMANTS, 4, 92.
- INFORMATIONS, see Indictment and Proscontion (accusation of crime), 4, 7; Quo Varranto, 4, 1179.
- INFORMERS, see Penalties and Forfeitures, 4, 963.
- INJUNCTION, 4, 96.
- INNNS, RESTAURANTS AND LODGING HOUSS, 4, 123.
- INQUEST OF DAMAGES, see Damages, 3, 997; Defaults, 3, 1069; Equity, 3, 1210; Judgments, 4, 287; Trial, 4, 1708.
- INQUEST OF DEATH, 4, 125.
- INSANE PERONS, 4, 126.
- INSOLVENCY, 4, 129.
- INSPECTION, see Discovery and Inspection, 3, 1107.
- INSPECTION LAWS, 4, 132.
- INSTRUCTIONs, 4, 133, with Special Article, Additional Instructions after Retirement, 4, 1718.
- INSURANCE, 4, 157; with Special Articles, Proximate Cause in Accident Insurance, 4, 282; Assignability of Life Insurance Policies, JEOPARDY, see Criminal Law, 3, 983: In- () different and Prosecution, 4, 1. JETTISON, see Shipping, etc., 4, 1487, 1488. JOINDER OF CAUSES, see Pleading, 4, 998. JOINT ADVENTURES, 4, 280. JOINT EXECUTORS AND TRUSTTEES, see () Estates of Decedents, 3, 1238; Trusts, 4, 11727. JOINT LIABILITIES OR AGREEMENTS, see Contracts, 3, 832, and like titles; Torts, 4, 1682. JOINT STOCK COMPANIES, 4, 280. JOINT TENANCY, see Tenants in Common and Joint Tenants, 4, 1672. JUDGES, 4, 280. JUDGMENT NOTES, see Confession of Judgment, 3, 719. JUDGMENTS 4, 287. JUDGMENT 4, 287. JUDICAL NOTICE, see Evidence, 3, 1335; Pleading, 4, 985. JUDICAL SALES, 4, 321. JURISDICTION, 4, 324. JURY, 4, 358. JUSTICES OF THE PEACE, 4, 372. K. KIDNAPPING, 4, 388. L. LABELS, see Commerce (unlabeled goods), 3, 717: Food (unlabeled food products), 3, 1433; Trade Marks and Trade Names, 4, 1689. LABOR UNIONS, see Trade Unions, 4, 169; Associations and Societes, 3, 346; Conspiracy (boycotting), 3, 726; Injunction, 4, 96. LACHES, see Equity, 8, 1218. LACHES AND PONDS, see Navigable Waters, 4, 757; Waters and Water Supply, 4, 1829. LANDLORD AND TENANT, 4, 889. LANDLORD PATENTS, see Public Lands, 4, 1106. LARENCY, 4, 110. LASICYIOUSNESS, see Indecency, Lewdness and Obscentity, 3, 1698. LATTERAL RAILROADS, see Eminent Domain, 1, 1008; Railroads, 4, 1184. LATTERAL SUPPORT, see Adjoining Owners, 3, 86. LAW OF THIS CASE, see Appeal and Review, 3, 167. LAW OF THIS ROAD, see Highways and Streets, 3, 1610. LEASSES, see Landlord and Tenant, 4, 389; Ballment (hiring of chattels), 3, 400; Sales (conditional sale and lease), 4, 1364. LEGACIES AND DEVISIES, see Estates of Decedents, 8, 1238; Willis, 4, 1907, et seq. LERGAL CONCLUSIONS, see Pleading, 4, 980. LEGATEES, see Estates of Decedents, 3, 1238; Willis, 4, 1907. LEGATEES, see Estates of Decedents, 3, 1238; Willis, 4, 1907. LETTERS, see Postal Law, 4, 1061; Evidence (letters as evidence), 3, 1364; Contracts (letters as offer and acceptance), 3, 808. LETTERS OF CREDIT, see Banking and Finance, 3, 418; Negotiable Instruments, 4, 787. LEVEERS, see Waters and Water Supply, 4, 1836; Navigable Waters, 4, 762. LEVDNESS, see Indecency, Lewdness and Obscentity, 3, 1697. LIBEL AND SLANDER, 4, 418. LICENSES, 4, 428. LICENSES TO ENTER ON LAND, 4, 432. LLETS, 4, 433. LIFE ESTates, REVESTIONS AND REMENDERS, 4, 438. LIFE INSURANCE, see Fraternal Mutual Benefit Ass'ns, 3, 1499; Insurance, 4, 157. LIGHT AND AIR, see Adjoining Owners, 3, 36; Basements, 3, 1148; Injunction, 4, 96; Nuisance, 4, 841. L LIMITATION OF ACTIONS, 4, 445. LIMITED PARTNERSHID, see Partnership, 4, 971; Joint Stock Companies, 4, 280. LLIQUIDATED DAMAGES, see Damagee, 3, 998; Penalties and Forfetures, 4, 963. LIS PENDENS, 4, 466. LITERARY PROPERT, see Property, 4, 1088; Copyrights, 3, 878. LIVERY STABLE KEEPERS, see Animals, 3, 159; Ballment, 3, 400; compare Health, 3, 1590; Licenses, 4, 428; Nuisance, 4, 841. LIVE STOCK INSURANCE, see Insurance, 4, 157. LLOYD'S, see Insurance, 4, 157. LLOAND AND TRUST COMPANIES, see Banking and Finance, 3, 417; Corporations, 3, PRIZE, see Var, 4, 1819,

PRIZE FIGHTING, 4, 1070.

PROBATE, see Villa, 4, 1889.

PROCESS, 4, 1070.

PRODUCTION OF DOCUMENTS, see Discovery and Inspection, 3, 1107; Evidence, 3, 1368.

PROFANITY AND BLASPHENARY, 4, 1084.

PROFERT, see Pleading, 4, 991.

PROHITION, WRIT OF, 4, 1084.

PROFERTY, 4, 1087.

PROFECTING ATTORNEYS, see Attorneys and Conneslops, 3, 393.

PROSTITUTION, see Disorderly Conduct, 3, 1111; Disorderly Honnes, 3, 1111; Formation, 3, 1455; Undecoveredness and Obsecnity, 3, 1697.

PROMIATE CAUSE IN ACCIDENT INSURANCE \[Special Article\], 4, 232.

PUBLICATION, see Newspapers, 4, 810; Process, 4, 1077; Llubel and Slander, 4, 418.

PUBLIC CONTRACTS, 4, 1088.

PUBLIC LANDS, 4, 1106.

PUBLIC POLICY, see Contracts, 3, 820; Constitutional Law, 3, 730.

PUBLIC WORKS AND IMPROVEMENTS, 4, 1124.

PUBLARREIN CONTINUANCE, see Pleading, 4, 1016, 1029.

PUBLACKASE-MONEY MORTGAGES, see Mortages, 4, 677; Vendors and Purchasera, 4, 1769.

Q.

QUESTIONS OF LAW AND FACT, 4, 1165.

QUESTIONS TYPE, 4, 1167.

QUO WARRANTO, 4, 1177.

R.

Racing. No cases have been found during the period covered. Compare Betting and Gaming, 3, 501.

RAILROADS, 4, 1181.

RAPE, 4, 1231.

RATIFICATION, see Agency, 3, 68.

REAL ACTIONS, 4, 1234.

REAL COVENANTS, see Covenants for Title, 3, 973; Buildings, 3, 574; Easements, 2, 1148.

REAL PROPERT, 4, 1235.

REASONABLE DOUBT, see Indictment and Prosecution, 4, L.

RECEIPTORS, see Attachment, 3, 367; Executions, 3, 1402.

RECEIVERS, 4, 1238.

RECEIVERS STOLEN GOODS, 4, 1253.

RECEITALS, see Estoppel, 3, 1327; Municipal Bonds, 4, 114; Statutes, 4, 1533.

RECIALS OF LAW IN INSURICAL BONDS \[Special Article\], 4, 717.

RECOGNIZANCES, 4, 1253.

RECODRALRI, see Justices of the Peace, 4, 372.

RECODRING DEEDS AND MORTGAGES, see Notice and Record of Title, 4, 833.

RECODRDS AND FILES, 4, 1254.

REDEDEMPTION, see Executions (sales), 3, 1405; Forcedience of Morigages on Land, 3, 1452; Judicial Sales, 4, 321; Mortages, 4, 701.

RERE-EXCHANGE, see Negotiable Instruments, 4, 787; Banking, etc., 3, 403.

REFERRENCE, 4, 1257.

REFORMATION OF INSTRUMENTS, 4, 1264.

REFORMATORIES, see Charitable and Correctional Institutions, 1, 507.

REGISTERS OF DEEDS, see Counties, 3, 961; Notice and Record of Title, 4, 836; Offeners, etc., 4, 854.

REFEARING, see Appeal and Review, 3, 167; Equity, 3, 1232; New Trial, etc., 4, 810.

REJOINDERS, see Pleading, 4, 980.

RELEBASS, 4, 1270.

RELIKE FUNDDS AND ASSOCIATIONS, see Fraternal, etc., Associations, 3, 1499; Master and Servant, 4, 533; Railroads, 4, 1181.

LESIGIOUS SOCIETIES, 4, 1275.

REMAINDERS, see Life Estates, etc., 4, 438; Perpetuities, etc., 4, 975; Willis, 4, 1907.

REREMEDY AT LAW, see Equity, 3, 1213.

REMITTITUR, see Appeal and Review, 3, 167; Judgments, 4, 296; New Trial, etc., 4, 817; Verdicts and Findings, 4, 1810.

RENOVAL OF CAUSS, 4, tions, 3, 1404. See, also, Elections (election, canvass and return), 3, 1174. REVENUE LAWS, see Taxes, 4, 1605; Internal Revenue Laws, 4, 246; Licenses, 4, 428. REVERSIONS, see Life Estates, etc., 4, 438; Wills, 4, 1863. REVUEW, see Appeal and Review, 3, 167; Certivari ("writ of review"), 3, 667; Equity (bill of review), 3, 1235; Judgments (equitable relief), 4, 296. REVIVAL OF JUDGMENTS, see Judgmente, 4, 316. REVIVOR OF SUITS, see Abatement and Revival, 3, 1; Equity, 3, 1232. REVOCATION, see Agency, 3, 68; also Special Article, 4, 1295; Licenses, 4, 428; Wills, 4, 1885. REVOCATION OF AGENCY BY OPERATION OF LAW (Special Article), 4, 1295. REWARDS, 4, 1309. REIGHT OF PRIVACY, see Torts, 4. 1682. RIGHT OF PROPERTTY, see Replevin, 4, 1284. Compare Attachment, 3, 553; Executions, 3, 1405, as to claims by third persons against a levy. RIOT, 4, 1310. RIPARIAN OWNERS, 4, 1310. ROBERNY, 4, 1317. RUDLES OF COURT, see Courts, 3, 972. Compare titles treating of practice to which rules relate, e. g., Appeal and Review, 2, 167. S. SAFEE DEPOSITS, see Warehousing and Depostis, 4, 1820; Banking and Finance, 2, 423. SALES, 4, 1318. SALES, 4, 1318. SALVAGE, see Shipping, etc., 4, 1494. SATISTACTION AND DISCHARGE, see Accord and Satisfaction, 3, 17; Contracts, 3, 836; Judgments, 4, 318; Mortgages, 4, 693; Payment and Tender, 4, 955; Reases, 4, 1270. SAVING QUESTIONS FOR REVIEW, 4, 1368. SAVINGS BANKS, see Banking, etc., 3, 415. SCANDAL AND DIFFERENTINENCE, see Equity, 3, 1222; Pleading, 4, 980. SCHOOLL LANDS, see Public Lands, 4, 1107. SCHOOLS AND EDUCATION, 4, 1401. SCIRE FACIAS, 4, 1415. SEALS, see Names, Signatures and Seals, 4, 157. Compare titles relating to instruments whereof seal is required. SEAMEN, see Shlplping, etc., 4, 1452. SEARCH AND SEIZURE, 4, 1416. SECREET BALLOT, see Elections, 3, 1172, 1175. SECURITY FOR COSTS, see Costs, 3, 940. SEDUCTION, 4, 1418. SENTENCE, see Indictment and Prosecution, 4, 65. SEPARATE PROPERTTY, see Husband and Wite, 3, 1669. SEPARATE TRIALS, see Trial (elvi), 4, 1709; Indictment and Prosecution (rimmal), 4, 43. SEPARATION, see Divorce, 3, 1127. SEQUESTRATION, 4, 1420. SERVICE, see Process, 4, 1070. SET-OFF AND COUNTERCLAIM, 4, 1421. SETTLEMENT OF CASE, see Appeal and Review, 3, 167. SETTLEMENTS, see Accord, etc., 3, 23; Estates of Decedents, 3, 1304; Guardian, 3, 1574; Trusts, 4, 1727. SEVERNCATION OF ACTIONS, see Pleading, 4, 980; Trial, 4, 1708. SEWERS AND DRALINS, 4, 1429. SHAM PLEADINGS, see Pleading, 4, 980. SHELLARYS CASE, see Real Property, 4, 1236; Deceds of Conveyance, 3, 1062; Wills, 4, 1907. SHERIFF'S SALES, see Executions, 3, 1404; Judlical Sales, 4, 321. SERERS AND CONSTABLES, 4, 1442. SHIPIPING AND WATER TRAFFIC, 4, 1450. SIGNATURES, see Names, etc., 4, 756. SIMILTTER, see Pleading, 4, 1049. SIMIULT/ANEOUS ACTIONS, see Election and Waiver, 3, 1177. SLAVES, 4, 1494. SELEVES, see Carrlers, 3, 591; Rallroads, 4, 1181; Taxes, 4, 1609. SOCETETIES, see Associations and Societies, 3, 346. SODOTY, 4, 1494. SPANISH LAND GRANTS, see STREETS, see Highways and Streets, **3,** 1593. STRIKES, see Conspiracy, **3,** 728; Constitutional Law, **3,** 130; Master and Servant, **4,** 583; Trade Unions, **4,** 1697. Compare Building, etc., Contracts (impossibility of performance), **3,** 559; Injunction, **4,** 96. STRIKING OUT, see Pleading, **4,** 980; Trial, **4**, 11715. STRUCK JURY, see Jury, **4,** 358. SUBMISSION OF CONTROVERSY, **4,** 1582. SUBPOENA, see Witnessess, **4,** 1970; Equity, **3,** 1210; Process, **4,** 1070. SUBPOACTION, **4,** 1583. SUBSCRIBING PLEADINGS, see Pleading, **4,** 980; Equity, **3,** 1222. SUBSCRIPTIONS, **4,** 1587. SUBSCRIPTIONS OF ATTORNEYS, see Attorneys and Counselors, **3,** 376. SUBSITUTION OF PARTTES, see Abatement and revival, **3,** 1; Parties, **4,** 895. SUBDWATS, see Pipe Lines and Subways, **4,** 980. SUCCESSion, see Descent and Distribution, **3,** 1081; Estates of Decedents, **3,** 1238; Taxes (succession taxes), **4,** 1651; Wills, **4,** 1863. SUUIDER, **4,** 1589. SUMMARY PROCEEDINGS, see Landlord and Tenant, **4,** 389. SUMMARY PROSECTIONS, see Indictment and Prosecution, **4,** 90. SUMMONS, see Process, **4,** 1070. SUMDAY, **4,** 1588. SUPERSEDEAS, see Appeal and Review, **3,** 167. SUPPELEMENTAL PLEADINGS, see Equity, **3,** 1225; Pleading, **4,** 1029. SUPPELEMENTARY PROCEEDINGS, **4,** 1591. SURCHARGING AND FALSEIFYING, see Accounting, Actions for, **3,** 24; Estates of Decedents, **3,** 1238; Trusts, **4,** 1721. SUPERSEDEAS, **4,** 1595. SURTEYMETERS, see Waters, etc., **4,** 1833; Highways, etc., **3,** 1614; Railroads, **4,** 1194. SURPLUSAGE, see Equity, **3,** 1210; Pleading, **4,** 980. SUPROGATES, see Courts, **3,** 970; Estates of Decedents, **3,** 1238; Wills, **4,** 1863. SURVEYOR, see Counties, **3,** 958; Boundaries, **3,** 519. SURVEYORSHIP, see Death and Survivor-ship (presumptions), **3,** 1083; Deeds, etc., (interpretation), **3,** 1082; Wills, **4,** 1863. SUSPENSION OF POWER OF ALIENTATION, see Perpetuities and Accumulations, **4,** 975. T. TAKING CASE FROM JURY, see Directing Verdict, etc., **3,** 1093; Discontinuance, Dismissal and Nonsuit, **3,** 1097; Questions of Law and Fact, **4,** 1165. TAXES, **4,** 1605. TAXES, **4,** 1605. TAXES IN COMM AND JOINT TENANTS, **4,** 1672. TENDER, see Payment and Tender, **4,** 956.. TERMS OF COURT, see Courts, **3,** 971; Dockets, Calendars and Trial Lists, **3,** 1140. TERRitories AND FEDERAL POSSES-SIONS, **4,** 1678. TESTAMENTARY CAPACITY, see Wills, **4,** 1568. THEATERS, see Building and Construction Contracts, **3,** 550; Exhibutions and Shows, **3,** 1412. THEFT, see Larceny, **4,** 410. THEATS, **4,** 1679. TICKETS, see Carriers, **3,** 628. TIME, **4,** 1680. TIME TO PLEAD, see Pleading, **4,** 1046. TOLL ROADS AND BRIDGES, **4,** 1681. TORTS, **4,** 1682. TOWAGE, see Shipping, etc., **4,** 1480. TOWNS; TOWNSHUPS, **4,** 1685. TRADE MARKS AND TRADE NAMES, **4,** 1689. TRADE SECRETS, see Property, **4,** 1087; Master and Servant, \*\*

## Topical Index

USE AND OCCUPATION, see Landlord and Tenant, 4, 389; Implied Contracts, 3, 1694.

**USES, 4, 1763.**

**USURY, 4, 1764.**

**V. VAGRANTS, 4, 1768.**

**VALUES, see Evidence, 3, 1370, 1376; Damages, 3, 997.**

**VARIANCE, see Pleading, 4, 1050.**

**VENDITIONI EXPONAS, see Attachment, 3, 353; Executions, 3, 1397.**

**VENDORS AND PURCHASERS, 4, 1769.**

**VENDUE AND PLACE OF TRIAL, 4, 1797.**

**VENDISTAS AND FINDINGS, 4, 1803.**

**VERIFICATION, 4, 1816.**

**VIEW, see Trial, 4, 1708; Mines and Minerals**

**(statutory right of view), 4, 673.**

**W. WAVER, see Election and Walver, 3, 1179.**

**WAR, 4, 1818.**

**WARHOUSING AND DEPOSITS, 4, 1820.**

**WARRANTS, see Arrest and Binding Over, 3, 312; Search and Seizure, 4, 1417, 1418.**

**WARARANTY, see Covenants for Title, 3, 974; Sales, 4, 1334, 1362.**

**WARETE, 4, 1823.**

**WATERS AND WATER SUPPLY, 4, 1824; with Special Article, 3, 1112.**

**WAVYS, see Easements, 3, 1148;**

**main, 3, 1189.**

**WEPONS, 4, 1859.**

**WEIGHTS AND MEASURES, 4, 1861.**

**WMAPVES, 4, 1862.**

**WHTTE-CAPPING, see Threats, 4, 1679.**

**WILLS, 4, 1863.**

**WINDING UP PROCEEDINGS, see Corporations, 3, 893; Partnership, 4, 922.**

**WITHDRAWING EVIDENCE, see Trial, 4, 1708; Harmless and Prejudicial Error, 3, 1579.**

**WITHDRAWING PLEADINGS OR FILES, see Pleading, 4, 1048; Records and Files, 4, 1254.**

**WITNESSes, 4, 1943.**

**WOODS AND FORESTS, see Forestry and Timber, 3, 1468.**

**WORK AND LABOR, see Assumpsit, 3, 350; Implied Contracts, 3, 1690; Master and Servant, 4, 533.**

**WORKING CONTRACTS, see Building and Construction Contracts, 3, 550.**

## Chapter 1. Law.

(Copyrighted, 1995, by Keefe-Davidson Company.)

**VOLUNEIV.**

**INDICITMENT AND PROSBOUTION.**

**SS 1. Limitation of Time to Institute (2).**

**SS 2. Jurisdiction (2).**

**SS 3. Place of Presection and Change of.**

**SS 4. Implementation and Information (5).**

**SS 5. Ingredient (54).**

**SS 6. Ingredient (55).**

**SS 7. Ingredient (56).**

**SS 8. Ingredient (57).**

**SS 9. Ingredient (58).**

**SS 10.**

**SS 11.**

**SS 12. Sentence and Jedgment (65).**

**SS 13. Record or Minutes and Commitment (66).**

**SS 14.**
**SS 15.**

**SS 16.**

**SS 17.**

**SS 18. Summary Proscutions and Review (90).**

ment to final judgment.1 The substantive law of crimes\* and procedure before indictment\* are elsewhere treated, and matters of indictment, evidence and procedure peculiar to particular crimes are treated under titles appropriate to such crimes.

SS 1. _Limitation of time to institute._*--Statutes of limitation are construed liberally in favor of the accused.* The time during which a prior indictment was pending is not computed as a part of the statutory period,\* but commencement of prosecution for one offense will not toll the statute as to another distinct offense, though they be of the same nature.\* Where the statute is tolled as to persons "fleing from justice," one who casually removes from the state before the statute has fully run is not protected by it.\*

SS 2. _Jurisdiction._\*--Felonies are usually triable only in courts of general original jurisdiction,10 while jurisdiction of misdemeanors is frequently conferred on inferior courts.11 Municipal and corporation courts are generally restricted in their jurisdiction to offenses committed within the corporate limits of the municipality,11 and against the by-laws or ordinances thereof,13 though they are sometimes given jurisdiction concurrent with ordinary justices of the peace,14 and criminal cases in the city of Milwaukee are cognizable only by the police court of the city, the justices of the peace having no jurisdiction in such matters.15 A civil action to recover a fine for a violation of an ordinance cannot be prosecuted in the municipal court of Buffalo.16

1. See analytical Index at head of topic.

1. See Criminal Law, 3 Curr. L. 973.

1. See Arrest and Binding Over, 3 Curr. L. 312.

1. See 2 Curr. L. 308.

1. State v. Snyder \[Mo.\] 82 S. W. 12.

1. State v. Hansborough, 181 Mo. 348, 80 S.

V. 900.

7. Carrying concealed weapons. Greene v. State, 139 Ala. 157, 36 So. 773.

1. In re Bruce, 182 F. 390.

1. See 2 Curr. L. 308.

1. The circuit courts of Oregon have exclusive jurisdiction of felonies. Ex parte Stacey \[Or.\] 75 F. 1060. The criminal court of common pleas of Connecticut has no jurisdiction of a prosecution for periry. State v. Campane, 76 Conn. 549, 57 A. 164.

1. The supreme court of New York has no jurisdiction of misdemeanor cases. Lottery. People v. Plexter, 96 App. Div. 637, 89 N. Y. S. 183. Country courts have concurrent jurisdiction with the justices of the peace to try offenses against the liquor laws. Lan-gan v. People \[Colo.\] 76 P. 1048. A city magistrate has no power to commit to the reformatory: for prostitution. People v. Keeper of State Reformatory for Women, 89 N. Y. S. 770 \[Advance sheets only\], 12. Moss V. State \[Tex. Cr. App.\] 88 S. W. S39: Agner v. Com. \[Ya.\] 48 S. E. 493. The territorial jurisdiction of the police court of a city cannot be extended beyond the limits of the city. Ky. St. 1903, 8496, attempting it is invalid. Ingram v. Fuson \[Ky.\] 82 S. W. 606.

1. A city court in Texas has no jurisdiction to try an alleged violation of a penal law of the state. Ex parte Anderson \[Tex. Cr. App.\] 81 S. W. 973; Ex parte Hinson \[Tex. Cr. App.\] 81 S. W. 987. The police court in Ohlo is without finaal jurisdiction in misdemeanor cases unless the accused waives trial by jury in writing. Howard v. State, 2 Ohlo N. P. (N. S.) 285. The president pro tem of a village council, as acting mayor, has no jurisdiction to hear and determine a misdemeanor \[Vloitation of Beal Law, Rev. St. 1853, 854\]. State v. Hance, 4 Ohlo C. C. (N. S.) 541. A police mashstrate of New York City has jurisdiction to summarily convient an offender against certain provisions of the city charter and compel him to find sure for good behavior or stand committed to the city prison for transfer to the workhouse for not longer than six months. People v. Varden of City Prison, 44 Misc. 149, 89 N. Y. S. 820. The mayor and council of Americans, Ga., have jurisdiction to try, convict and punish a person keeping indicating liquors for an unlawful purpose contrary to an ordinance of the city. Robinson v. Americans \[Ga.\] 48 S. E. 924.

1. Sections 190, 191 and 192 of act of October 22, 1902, being a nullity, and said act having repealed certain previous acts creating police courts, and conferring jurisdiction, the jurisdiction of the police court of the city of Columbus, after said act, was the same as that of a justice of the peace. Backenstor v. State, 2 Ohlo N. P. (N. S.) 178. Under the Beal law, the mayor's court has jurisdiction to try the offense of selling Incloricaiting liquors, though it be the first or second offense. Kappes v. State, 4 Ohio C. C. (N. S.) 14, 25 Ohio C. C. 723. A police judge has jurisdiction of petit Lavery with-in the city \[Rev. St., 1899, 8, 578\].

4 Cur. Law. INDICITMENT AND PROSECTION SS 3. 3 Offenses on Federal territory17 or against Federal laws are within the jurisdiction of the Federal courts, though there may be a concurrent jurisdiction;18 but they have no jurisdiction to punish for conspiracy to injure, oppress, threaten and intimidate a citizen in the exercise of his rights of personal liberty and security.19 The district court of Oklahoma has jurisdiction of crimes committed in the Indian country by persons not Indians.20 An offense committed anywhere on the Ohio river is cognizable by the courts of Kentucky.21 Equity will enjoin criminal proceedings under a void municipal ordinance where property rights will be destroyed by its enforcement.22 _Transfer23_ to another court24 or another division of the same court for prejudice of the judge is provided for in some states,25 and in Indiana, indictments may be transferred to the county in which the proof shows the offense to have been committed.26 In certain cases, indictments returned into the district court of Texas are transferred to the county court for trial.27 Removal to the Federal court may be had where a Federal officer is prosecuted in a state court for an act done under color of his office.28 The jurisdiction of the district court of North Dakota in bastardy proceedings is complete when the transcript of the proceedings before the justice and the jurisdictional papers filed below are lodged with the clerk.29

SS 3. \_Place of prosecution and change of venue.30--\_Prosecution may be had in the county or state where the offense was consummated,81 or where it was initiation of justleces of the peace. City of Wind-script is not necessary. State v. Lehman sor v. Cleveland, etc., R. Co., 105 III. App. 46. 15. Laws 1895, p. T., e. 6, $ 5. Heiler v. Clarke \[Vis.\] 98 N. W. 952. 16. City of Buffalo v. Preston, 81 App. Dlv. 480, 80 N. Y. S. 851. 17. The state courts have no jurisdiction over homicide committed on a military post or reservation. Baker v. State \[Tex. Cr. App.\] 83 S. W. 1122; State v. Tully \[Mont.\] 78 P. 760. 18. The Federal courts have jurisdiction of prosecutions under the statute denouncing peonage, though the state courts might also prosecute the same acts under the name of kidnapping and false imprisonment \[Rev. St. $ 5526\]. United States v. McClellan, 127 F. 971. 19. Rev. St. $ 5508, does not apply. United States v. Eberhart, 127 F. 254. 20. Herd v. United States, 13 OKl. 512, 75 P. 291; Welty v. United States \[Okl.\] 76 P. 121. Commonwealth v. Louisville & E. Packet Co., 25 Ky. L. R. 2098, 80 S. W. 154. 22. Dobbins v. Los Angeles, 25 S. Ct. 18, 49 Law. Ed. --. Daily v. Elton, 25 S. Ct. 22, 49 Law. Ed. --.
23\. See 2 Curr. L. 809. 24. The trial of a prosecution for illegal voting will not be transferred on the ground that the wardens of the town before whom it is pending have already passed upon the case by allowing the defendants to vote, where the attorney general has not been requested to apply for the transfer.' Williams v. Champlin \[R. I\] 59 A. 75. 25. On the transfer of a cause to another division of the same court because of an application for change of venue on the ground of prejudice of the judge, a tran

## 4 Indictment and-prosecution SS 3.1

4.1: if a complete offensive was there committed."2: Statutes regulate the procedure where the fatal blow is struck in one county and death ensues in another."4: A crime committed in an unorganized county may be prosecuted in the county playing by statute jurisdiction over the territory of such unorganized county,"4: notwithstanding the subsequent organization of the county in which the crime was committed."5: _Chauge of venue:_"0: Upon a proper application and showing, a change of venue will be granted,"3: either on the application of the defendant or the state."8: A change, however; will not be granted unless it affirmatively appears that there is such a prejudice in the community as will be reasonably certain to prevent a fair and impartial trial."9: Application must be timely made,"4: but the state does not abandon its motion by failure to press it to a hearing at the term at which it was filled."4: The motion addresses itself to the sound-discretion of the trial court,"4: and a counter showing is properly allowed;"4: but where defendant denies the state's showing, the better practice is to put the matter to a test."4: Where an entire case is before 1031. Obstruction of a stream in Ohio may be prosecuted in any county into which the 38. State's. Wheat, 111 La. 860, 35 So. straight ("Awerthe-supreme courterror, it may look into the whole case to determine, whether the denial of a change of venue was prejudicial.\[48\]. The record and papers must be certified to the court to which the change is made\[44\] and timely filed in such court.\[47\] In California, the court to which the action is transferred acquires jurisdiction on the making of the order, irrespective of the transmission of the records;\[48\] but in Louisiana, an order for change on defendant's application may on his further application be rescinded on a proper showing if the transfer has not in fact taken place.\[49\]

Indictment and information. A. Necessity of \_inil the county or district in which the crime was committed,\[90\] and be returned in open court by them,\[61\] at a term of the court for that county.\[62\]

_Informations.\[63\]_--An information must generally be preceded by a sufficient preliminary complaint,\[64\] examination\[65\] and commitment,\[66\] and be filed within the statutory period thereafter,\[67\] though technical exactness is not required in the complaint.\[68\]

The verdict of a coroner's jury is not a sufficient basis in Idaho for an information by the public prosecutor.\[69\]

Verification or a supporting inflavit is necessary in Missouri,\[70\] though failure to verify may be waived,\[71\] and the lack of it is not fatal if no objection is made on that ground,\[72\] and an information need not show on its face that it is based on the inflavit of a competent and reputable person.\[78\]

ncy general may sign an indictment for a evidence was produced. People v. Lee Look, prosecution under the liquor law in Kansas. State v. Crilly \[Kan.\] 77 P. 701.

**60.** Where the constitution provides that the legislature may modify or abolish the grand jury system, a person charged with a felony has no constitutional right to be tried only on an indictment found in the county in which the crime was committed. We study V. Ward \[Ind.\] 72 N. E. 596. Omission to name the county in the caption is not fatal where it is entitled in the circuit court and the body of the indictment names the county. Kligore v. State \[Ark.\] 83 S. W. 928.

**61.** An indictment in regular form will be presumed in the absence of a showing to the contrary, to have been duly returned in open court, though the record does not so state. State v. Crilly \[Kan.\] 77 P. 701.

**62.** The return of the grand jury endorsed on the back of the indictment showing the term at which it was found is sufficient as to that fact. Nixon v. State \[Ga.\] 48 S. E. 966.

**63.** See 2 Curr. L. 313.

**64.** In burigary need not allege ownership of building. People v. Price \[Ca.\] 77 P. 73. Charge of embrezlement as agent held not a departure from complaint charging embrezlement as bailce. People v. Walker \[Ca.\] 77 P. 705. Affadavit for prosecution in county court may be taken before the clerk of the circuit court, he being exfolice clerk of the county court. Prett v. State \[Ala.\] 77 So. 913. Complaint against "Bill (or W. H.) Gaines" held not bad for uncertainty where the information units the alternative. Gaines v. State \[Tex. Cr. App.\] 78 S. W. 1076. A complaint for an offense of which a Justice has no jurisdiction may be used in the county court on being transferred. Mitchell v. State \[Tex. Cr. App.\] 79 S. W. 26. Variance held immaterial. State v. Naves \[No.\] 84 S. W. 1. No inflavit is required where the Information is verified by the prosecuting attorney, based on a complaint by the prosecuting witness. Id. A motion to qush a complaint before a Justice of the peace for a formal defect cannot be taken for the first time on exception from the superior court. Commonwealth v. Anselvie \[Mass.\] 71 N. E. 790. That the complaint before the magistrate fails to charge an offense will not avail to defeat the information where defendant was properly committed for trial after an examination at which competent 4 Cur. Law. INDICITMENT AND PROSECTION SS 4C.

It should commence and conclude in the proper form,\[74\] and be signed by the proper prosecuting officer.\[76\]

(SS 4) _C. Requisites and sufficiency of the accusation. General rules.\[76\]_--Indictments and informations must clearly inform the accused of the nature and cause of the accusation against him,\[77\] though it is a general rule and expressly provided by statute in many states that no information or indictment is insufficient for any imperfection in matter of form which does not prejudice substantial rights,\[78\] and an indictment is always sufficient which states the offense clearly and distinctly, in ordinary and concise language, without repetition and in such manner as to enable a person of common understanding to know what is intended.\[79\] The words of an indictment should be given their ordinary and commonly accepted meaning.\[80\] One count may refer to matter in a previous count for the purpose of avoiding unnecessary repetition,\[81\] though the count referred to is defective,\[82\] and the caption and commencement of an indictment may be looked to for the purpose of showing in what court the indictment was found,\[83\] but not for the purpose of making more certain any of the essential averments in the charging part.\[84\]

_Certainty.\[85\]_--An indictment or information must be direct and certain as regards the party charged,\[86\] the offense charged, and the particular circumstances of the offense charged, when they are necessary to constitute a completed offense;\[87\] and no necessary allegation can be aided by intendment or inference,\[88\] nor will con clusions of the pleader suffice to eke out defective allegations of necessary facts.\[89\] Every essential ingredient of the crime must be set forth,\[90\] with such particularity that the accused may not only know the particular charge against him but may be able to plead the judgment in bar of a second prosecution.\[91\] The means used to commit the offense should be stated where the degree of the offense depends upon that fact,\[92\] but where the statute makes the particular kind of act punishable, that only need be stated.\[93\] Where the crime can be committed only in certain territory, it must be clearly alleged that defendants' acts were committed within the prescribed area.\[94\] By statute in some states, where a crime may have been committed by different means, the means may be alleged in the alternative.\[89\]

_Bad spelling and ungrammatical construction\[95\]_ do not-vitiate an indictment,\[97\] where no prejudice results to accused, but the omission of "then and there" is fatal where by it the necessary averment that the assault was "felonious" is not made.\[98\]

_Intent or knowledge.\[99\]_--Where knowledge is not a statutory element of the offense, it need not be averred,\[1\] and the specific intent need not be specially averred, where the acts charged necessarily involve it.\[2\] In charging attempts, where the intent is the gist of the offense, it must be directly and certainly charged.\[99\]

_Venue_ must be alleged,\[8\] but beyond a mere showing that the offense was "footnote 1.\[99\]

State v. Gallaugher, 123 Inwa; 378, 93 N. W. Jesstons in the city of New York. People v. 906.

89. "And so defendant did murder de-ceased"-will not did failure? to aver casual

01. Defendant's or:other person's name. connection between Injury and death. State

Barthey v. State \[Tex. Cr. App.1 88 & W. v. Keerl: 29 Month: 588, 76 P. 362. An averment of previous conviction of the "name of tense" will not authorize the state to impose greater punishment for a subsequent offense, though that is the statutory hand.

S. 1021. "Affect: for "effect". Smith v. gauge, since the statute must be consumed to mean an offense of like character." Kinney v. State \[Tex. Cr. App.\] 79 S. W. 570.

98. "State v. Fontenot. 112 La. 528, 36 S. 630. Wite descrit. - Cuthutherson v. State \[Neb.\] 101 N. V. 1991. Information for false

pretenes must be affirmatively show some reasonable connection between the pretenes and the receipt of the money. Stifel v. State \[Ind.\] 72 N. E. 690. An indictment for an attempt to commit an offense must not only allege the attempt snd-intent but it is essen-t that it also allege the overt sets relied on as constituting the attempt. State v.

Dorian \[Me.\] 59 A. 440. The particular fei-ony intended by one attempting burigar must be averred. Intent to commit a "felon" in not sufficient. Id.

98. "United States v. Puple: 133 P. 243.

01. "Stokes v. State \[Tex. Cr. App.\] 81 S.

01. "I am Inglement charging murder with some weapon to the grind jury unknown is sufficient in the absence of evidence that the weapon was known to the grand jury. Eatman v. State 139 Ala. 67, 36 S. 16.

01. "Assult by adult male on female. Stokes v. State \[Tex. Cr. App.\] 81 S. W. 1213.

01. "Local option law. Crigler v. Comi \[Kv.\] 83 B. W. 657.

01. "Bannon's Code. 8 7084. Smart v. State \[Tem.\] 86 S. W. 886. Disjunctive

01. "Internet following the language of the signature will not invalidate an affacult returned with a commitment by a magistrate

01. "The name of the "reference".
    committed within the jurisdiction of the court; a specific averent of locality is not generally otherwise required,6 and in Alabama, it need not appear that the crime was committed within the jurisdiction of the court:7 An indictment averaging that the alleged bigamous marriage occurred in some county and city to the ground jurors unknown does not show a want of jurisdiction on its face:8. Where a crime is committed in an unorganized county, it may be alleged to have been committed in the county in which under the statute the prosecution may be had.9 ': '_Surplusage4_' is a term applied to those nondescriptive averments in a plending which may be rejected without impairing its validity.11 Such averments may be treated as merely useless and of no effect and need not be proved.12 Thus averments as to shooting innates of a house burglarized are surplusage in an indictment for burglary and/laroeny,13 and where only two prior convictions are necessary to bring defendant into the class of habitual criminals, an indictment is not objectionable because it reites three or more prior convictions.14

Footnote 12: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 13: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 14: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 15: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 16: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 17: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 18: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 19: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 20: See 2 Curr. L: 315.

Footnote 21: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 22: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 23: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 24: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.\] 88 So: 571. Alllegations as to the use-of force 'In the rape of' a female under the age of consent are surplusage: State v. Scroggs, 123 Iowa, 619, 65 N.

Footnote 25: Averient that assarath with intent to murder was incomparated by a battery. Psyko v. State \[Fla.

applicable to the offense, there should be a sufficiently definite averment of time to show that the statute has not run,\[11\] and where an impossible date is alleged for the commission of a crime to which the statute of limitations applies, the indictment must be qashed, since if the date be disregarded it would not appear from the indictment that the statute had not run.\[22\] Where it appears on the face of the indictment that limitations have run against the offense, facts which avoid the bar of the statute must be pleaded.\[23\]

_Repugnancy\[24\]_ consists in two inconsistent allegations in the same count which destroy each other.\[25\] No contradictory or repugnant matters which can be rejected as surplusage will vitiate,\[26\] nor is an indictment repugnant that conjunctively unites in a single count all the disjunctive elements recited in the statute defining the offense.\[27\] Repugnancy between counts is not demurrable.\[28\]

_Designation and characterization of the offense,\[29\]--In New York, the crime must be designated by name if it has one, otherwise a brief description must be given.\[30\]_

_Statutory crimes.\[31\]--An indictment in the language of the statute or in terms -substantially equivalent thereto is sufficient,\[32\] subject to the qualification, fundamental in the law of criminal procedure, that the accused is thereby apprised with reasonable certainty of the nature of the accensation against him.\[33\] If the words of themselves do not fully, directly and expressly without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense,\[34\] or if the statute merely designate the crime by its common-law name,\[35\] an indictment following the statute will not suffice. An information for a statutory offense need not use the language of the statute if the facts stated set forth all the essential elements of the offense,\[36\] nor state circumstances of aggravation subjecting accused \[32\]._

\*\*21. State v. Shaw {Tenn.} $2 S. W. 480: Tipton v. State, 119 Ga. 304. 46 S. E. 436: United States v. McKinley, 127. T. 168. 22. State v. Shaw {Tenn.} $2 S. W. 480. 23. That defendant had not been an "inhaltment of or resident in the state." Terms defined. State v. Snyder \[Mol.\] $2 S. W. 12, $34: Procurving mock marriage. Barclay v. Com., 25 Ky. L. R. 483, 76 S. W. 4. Practicing medicine without license. State v. Edmunds {Iowa} 101 N. V. 431. Violation of liquor law. Atkinson v. State {Ind. App.} 70: An averment that defendant made a false affldavi before "A. L. K. deputy clerk" is not variant from the affldavi set out showing the jurat to have been signed "A. L. L., deputy clerk." Mahon v. State {Tex. Cr. Appl.} 79 S. W. 28. "Haynes" and "Haygens" are repugnant. Black v. State {Tex. Cr. Appl.} 79 S. W. 28. "Haynes" and "Haygens" are repugnant. Black v. State {Tex. Cr. Appl.} 79 S. W. 28. 80. 26. Lehman v. U. S. {C. A.} 127 F. 41: Offara v. U. S. {C. A.} 129 F. 551. 27. Dealing and pretending to deal in green articles and spurious treasury notes. Lehman v. U. S. {C. A.} 127 F. 41. There is no repugnancy in charging that defendant did "embezale and destroy" a letter. Bromberger v. U. S. {C. A.} 128 F. 346. 25. State v. Scampini \[Vt.\] $9 A. 201. Courts charging embezlement of letter and latency of its contents respectively are not repugnant. Bromberger v. U. S. {C. C. A.} 128 F. 346. 22. See 2 Curr. L. 215. 30. Conspiring to cheat and defraud is sufficient \[Pen. Code, $168, 276\]. People v. Rathbin 44 Misc. 88, $8 N. Y. 574. 31. See 2 Curr. L. 316. 32. Dalton v. United States {C. C. A.} 127 F. 544: State v. Block \[Mo. App.\] $2 S. W. 1103: Lipschitz v. State {Ind. App.} 72 N. E. 145: Holland v. State, 129 Ala. 120, 35 So. 109: State v. Runzi, 105 Mo. App. 319, 80 S. W. 36: Robbins v. State, 119 Ga. 570, 46 S. W. 47. Proximus mock marriage. Barclay v. Com., 25 Ky. L. R. 483, 76 S. W. 4. Practicing medicine without license. State v. Edmunds {Iowa} 101 N. V. 431. Violation of liquor law. Atkinson v. State {Ind. App.} 70: An averment that defendant made a false affldavi before "A. L. K. deputy clerk" is not variant from the affl to greater punishment,\[97\] but the facts alleged must bring the offense clearly within the statutory terms.\[38\] An indictment for a statutory offense need not state the time when the statute took effect.\[39\]

\_Exceptions and provisos.\[40\]--\_Where an exception is so engrafted in the enacting clause of a statute that the offense cannot be described without moving and negativing the exception, it must be alleged in the indictment that defendant is not within the excepted class;\[41\] but where the exceptions and provisos appear in distinct or subsequent clauses, negotiation is not necessary.\[42\] In Oklahoma, it is not necessary to charge that defendant is not an Indian, where conviction is not rought under 23 Stat. SS5, SS 9.\[43\]

\_Setting forth written or printed matter.\[44\]--\_The general rule is that unless there is a special reason therefor a written instrument may be described by its legal effect,\[46\] but a variance between the purport and tenor clauses in forgery is fatal.\[46\]

\_Principals and accessories.\[47\]--\_At the common law, an accessory must be charged as such.\[48\] In those states where the distinction between principals and accessories has been abolished, the ancient rule as to the necessity of charging accessories as such no longer prevails, and accessories may be prosecuted as principals.\[49\]

\_Designation of accused.\[50\]--\_An indictment must identify the accused with certainty,\[51\] but one equally well known under two or more names may be indicted under either,\[52\] and the misspelling of a name is immaterial.\[53\] Defendant's aliases need not be repeated in subsequent parts of the indictment.\[44\]

\_Designation of third persons.\[55\]--\_It is of no consequence that the name by which a third person is designated in the indictment is incorrect or an assumed one, if it is the name by which he is generally known,\[56\] and if a person be known by the name alleged, it is sufficient, though he may be better known by another.\[57\]

State v. La Chall \[Utah\] 77 P, 3; Klizer v. People, 211 Ill. 407, 71 N. E. 1035; Schley v. State \[FLa.\] 37 So. 518. Should use statutory words or their legal equivalent. State v. Rosenblatt \[Mo.\] 83 S. W. 975.

**37.** Robbery being armred. State v. Poe. 123 Iowa, 118, 98 N. V. 587.

**38.** State v. Jett \[Kan.\] 77 P, 546; State v. Doran \[Mc.\] 59 A. 440. A statutory indictment must contain all those forms of expression, those descriptive words which will bring the defendant precisely within the definition of the statute. State v. Etchman \[Mo.\] 83 S. W. 978.

**39.** State v. Scampini \[Vt.\] 59 A. 201.

**40.** See 2 Curr. L. 316.

**41.** State v. Snyder \[Mo.\] 82 S. W. 12: City of Tarklo v. Loyd \[Mo. App.\] 82 S. W. 1127; Fleeks v. State \[Tex. Cr. App.\] 83 S. W. 831.

**42.** State v. Snyder \[Mo.\] 82 S. W. 12: People v. Shuler \[Mich.\] 98 N. W. 986; Lan-gan v. People \[Coole\] 76 P. 1048; State v. Duroin \[Kan.\] 78 P. 152; City of Billings v. Brown \[Mo.\] 80 S. W. 322; State v. Price \[N. J. Law\] 58 A. 1015.

**43.** Herd v. U. S., 13 OKl. 512, 75 P. 291.

**44.** See 2 Curr. L. 316.

**45.** Pooler v. U. S. \[C. C. A.\] 127 F. 509: United States v. Grunberg, 131 F. 137. Checks used in fraudulent pretenses held sufficiently described. Moore v. People, 31 Colo. 336, 73 P. 30.

**46.** Webb v. State \[Tex. Cr. App.\] 83 S. W. 394.

**47.** See 2 Curr. L. 316.

**48.** One cannot be convicted on indictment charging him as a principal on evidence that shows him to be at most an incomplete. Barnett v. State \[Tex. Cr. App.\] 80 S. W. 1013. An indictment alleging that defendant advised and encouraged another to steal horses he had hired is not bad for failure to allege defendant was a party to the hiring. Harrold v. State \[Tex. Cr. App.\] 81 S. W. 728.

**49.** Swinding by three card monte. State v. Egden, 181 Mo. 582, 80 S. W. 942. In California, an accessory before the fact may be charged as a principal. Pen. Code, 871, so providing ls constitutional. People v. No-lan \[Cal.\] 77 P. 7174.

**50.** See 2 Curr. L. 316.

**51.** "John Doe, a Chinese person, whose true name is unknown, Misspelling of names is immaterial where the names are idem sonans.\[58\] An information charging an assault on "Charles Clark" and the killing of "the said Charley Clark" is good.\[59\] An indictment for forgery of the name of "H. Wiseman & Co., Bankers," need not allege whether the payer was a firm, partnership or corporation, or set forth the names of its members.\[60\]

_Description of money\[61\]_ need not be exact,\[62\] and an averment of "current money" or "currency" of the United States of America is good and is sustained by proof of any current paper money.\[63\]

_Wenership of 'property\[64\]_ must be correctly laid,\[65\] though by statute in some states the separate property of a married woman may be alleged to be owned by either her or her husband,\[66\] and property owned jointly or in common by several may be laid in all or either of them.\[67\]

(SS 4) D. Issues, proof and variance.\[68\]\_-\_Iisanity of defendant to the extent that he is incapable of forming a criminal intent is raised by the plea of not guilty,\[69\] but where burglary with intent to steal and lareeny are both charged, defendant cannot be convicted of both, the conviction of burglary including the lareeny.\[70\]

All necessary averments must be proved as laid,\[61\] including unnecessarily minute descriptions of necessary facts, but an unnecessary description of an unnecessary fact need not.\[72\]

Where it appears that the grand jury knew, or by the exercise of reasonable diligence could have known, material facts stated to be unknown to them, there is a fatal variance.\[73\] A charge of sending a forged telegram is proved by evidence of giving it to the telegraph operator to be sent;\[74\] and where an indictment charges an assault with intent to murder two persons, the fact that the assault was by different acts in the same transaction does not amount to a fatal variance.\[75\] When two persons are jointly indicted for murder, one as principal in the first degree and the other as principal in the second degree, each may be convicted upon evidence showing that he was either the absolute perpetrator of the crime, or was present aiding.and abetting the other in its commission.\[76\]

58. "Krowder" and "Krower." Alexts v. \[60\], State v. Howard \[Mont.\] 77 P. 50. U. S. \[C. C. A.\] 129 F. 60. "Shutter" and "Shutter." State v. Johnson \[Wash.\] 78 P. 71. Held no variance as to building burglarified. People v. Price, 143 Cat. 351, 7 P. 73. State v. Rogers \[Mont.\] 77 P. 73. 74. 75. 76. 77. 78. 79.

- \[11\]\_Thevenic:71_Thetime_is not material further than to avoid the statute of limitations and to prove that the crime was committed prior to the finding of the indictment,78 and a conviction will not be disturbed because the offense was shown to have been committed on a day prior to that alleged where defendant was not prejudied,78 but where the evidence is positive and unequivocal that the crime was committed on the date charged in the indictment, an instruction that the date was not material is unfair to a defendant who has established a complete alibi:90 .
- \[12\]\_Nanus or other description of accused or third person:13_The allegations and proof must correspond as to the owner of land trespassed upon,82 or property stolen or eniezzled,78 but where a third person is charged by one of two names by which the is indifferently known, the fact that the other is her true name will not cause a mistrial:84. Where the state takes issue on defendant's plea of misnomer, the question is not what name he is known by at the time of the trial, but at the time the indictment was found.85 .
- \[8\]\_E. Defects, defenses and objections:86_Formal defects, apparent of record,87 or on the face of the indictment, must be taken advantage of before plea, or before the jury is sworn,88 such defects being waived by plea and cured by verdict,88 though failure to move to quash an infotination: control arrest the judgment founded thereon does not waive a substantial defect, though apparent on the face of the information.89 Am indictment failing to charge a public of-fense may be first attacked on appeal,8 but will not be adjudged insufficient for every defect of substance for which a motion to quash would lie,87 and objections 88.
- \[13\]\_S. Soutu v. State (Tex. Cr. App.) 81 S. W. 85. Noble v. State, 138 Ala, 90, 38 So. 19.
- \[14\]\_S. Soutu v. State (Qa.) 48 S. E. 87. To be available, objection to an indictment-on: the ground, that the fact of its presentant was not entered on the minutes of the court must be made before trial.
- \[15\]\_S. V. State v. Exg. Exg.

tions that the crime charged was merged in a greater one shown in the indictment," or that the indictment is duplex, come too late on appeal." Neither a motion to make more definite and certain" nor a motion for new trial is a proper remedy for attacking an indictment," and a motion for a directed verdict on the ground that the offense charged has not been proven raises no question as to the sufficiency of the indictment."

Only clear points of law are considered on motion to quash, demurrer or motion in arrest being the proper manner in which to raise involved questions," and where the indictment is sufficient in form and describes and pleads the offense with technical precision, a motion to quash is properly overruled." A statutory enumeration of grounds has been held exclusive.1 That the name of the wrong juror is designated as foreman in the body of the indictment,2 that property is not described with sufficient certainty in an indictment for robbery,3 or that accused is designated by initials instead of Christian name is not ground for a motion to quash, though there is no averment that his name is unknown to the pleader;4 but the objection that an indictment has been amended in material matter without consent of the grand jury who found it can be raised only by motion to quash,5 and a motion to dismiss on the ground that no record entry of the presentment of the indictment appears should be granted, though made after transfer to the county court for trial.6

The bill of particulars is no part of the indictment and will not prevent its quashal if insufficient without the bill.7

Repugnancy is ground for demurrer or motion to quash,8 but cannot be taken advantage of after verdict.9

Failure to identify the accused may be taken advantage of either by demurrer or plea in abatement;10 but failure of the indictment to state a time certain or that the crime was committed within the jurisdiction of the court are not demurrable in Alabama,11 and amendment after finding, to be ground for demurrer, must appear on the face of the indictment.12

An indictment alleging that defendant made a false bill or order with intent to defraud sufficiently alleges a scienter to withstand a motion in arrest.13

Demurrers should specifically point out the defect complained of,14 and an objection to an indictment on the ground that the statute under which it is drawn is unconstitutional must point out the particular part of the constitution claimed to have been violated.15 A general demurrer,16 motion in arrest,17 or motion to quash, is properly overruled if the indictment has one good count;18

93. People v. Wiechers, 94 App. Div. 19, 87 N. Y. S. 897. 894. People v. Wiechers, 94 App. Div. 19, 87 N. Y. S. 897. 894. People v. Wiechers, 94 App. Div. 19, 87 N. Y. S. 897; State v. Blakeley \[Mo.\] 83 S. W. 890. 95. State v. Bogardus \[Wash.\] 78 P. 942. 96. State v. Hauser, 112 La. 313, 36 So. 396. 97. People v. Wiechers \[N. Y.\] 72 N. E. 501. 98. United States v. Grunberg, 131 F. 137. 99. Commonwealth v. Packard, 185 Mass. 64, 69 N. E. 1067. 1. Code, $ 5319. State v. De Groate, 122 Iowa, 661, 98 N. W. 495. Contra, Code Cr. Proc. **5** 262-264, 313. People v. Bills, 44 Misc. 348, 89 N. Y. S. 1091. 2. Taylor v. State \[Ga.\] 49 S. E. 317. 3. McKevitt v. People, 203 Ill. 460, 70 N. E. 693. 4. State v. Appleton \[Kan.\] 78 P. 445. 4. 5. Watts v. State \[Mo.\] 57 A. 542. 6. Moore v. State \[Tex. Cr. App.\] 81 S. V. 48. 87. 88. 897. State v. Van Pelt \[N. C.\] 49 S. E. 177. 8. Repugnancy of a count on which the prosecutor has elected not to proceed is not ground for quashing the one proceeds under. Blair v. State \[Neb.\] 101 N. W. 17. 9. Lehman v. U. S. \[C. C. A.\] 127 F. 41. 10. United States v. Doe, 127 F. 982. 11. Burton v. State \[Ala.\] 37 So. 455. 12. Watts v. State \[Mo.\] 57 A. 542. 13. State v. Hauser, 112 La. 313, 36 So. 196. 14. Flohr v. Territory \[Oik.\] 78 P. 565. 15. State v. Brockmiller \[Mo. App.\] 81 S. W. 214. 16, 17. Poeler v. U. S. \[C. C. A.\] 127 F. 509. 18. Watts v. State \[Mo.\] 57 A. 542.

and a conviction generally on an indictment in several counts will be sustained if any count is good and supported by the evidence.\[19\]

Motion to quash and not demurrer\[20\] is proper to raise the objection that the information is not verified or supported by affidavit,\[21\] or that it is not preceded by a proper examination.\[22\] That it appears on the trial that the person making the affidavit supporting the information had no personal knowledge of the facts is not ground for motion to quash.\[23\]

Technical or formal objections to the sufficiency of an indictment will not be considered in proceedings for removal of a Federal prisoner to the district in which he is triable, but will be left for the determination by the court in which it was found,\[24\] but if on broad and liberal construction the indictment does not appear to charge an offense, the prisoner should not be held for removal.\[25\]

That a negro is indicted by a grand jury composed exclusively of white men, negroes having been excluded by reason of race, color, or previous condition of servitude,\[28\] that defendant was compelled to go before the grand jury and give evidence against himself,\[27\] that there were irregularities in the deliberations of the grand jury,\[28\] and that unauthorized persons were present, are grounds of motion to quash;\[29\] but neither the attorney general\[30\] nor an assistant district attorney is unauthorized.\[31\] Irregularity in summoning grand jurors may be raised by motion to quash,\[22\] and disqualification of individual jurors is

1B. Lehman v. U. S. \[C, C. A.\] 127 F. 41;

Pooler v. U. S. \[C. C. A.\] 127 F. 509; Gal-

Inquest before a grand jury is not a trial and a plea in abatement because of not reach the defect that it was not verified or supported by affidavit. State v. Brown,

181 Mo. 192, 79 S. W. 111.

1B. 192, 79 S. W. 111.

1B. 1934. Motion to quash an information lies

1B. 1949. Absence of one member during part

davit. State v. Runal, 105 Mo. App. 319, 80

S. W. 36. Lack of verification. State v. McCage, 181 Mo. 312, 80 S. W. 899. Motion

1B. 1955. Lack of verification

1B. 1965. Lack of verification

1B. 1976. Lack of verification

1B. 1986. Lack of verification

1B. 1996. Lack of verification

1B. 1997. Lack of verification

1B. 1998. Lack of verification

1B. 1999.

ground in some states," though not in others."44: Objection by 'plea in 'abatement' and before arraignment on the ground that some of the grand jurors were disqualified is in due time and taken in the proper way."55: Defendant does not waive his right to raise the question, on motion in arrest; that the indictment was found by a grand jury illegally drawn, by 'pleading' to the indictment and going to trial;'56 but one who has been arrested on 'preliminary information' and released on bail and who fails to appear on the adjourned day of the term on which the grand jury is 'impaneled waives' objection to the grand jury and cannot thereafter have the indictment set aside for objection to the panel."44: A motion to quash is allowable on the ground that essential facts before the grand jury were proved by incompetent evidence;"8 but such motion is addressed to the 'discretion of the court,"8 and is not available after 'conviction', since the verdict supplies the necessity of a prima facie case required as basis for the finding of a true bill."45: Here presence of incompetent evidence with sufficient legal evidence will not avail to quash;"44: and the general rule is that the court cannot inquire into the 'sufficiency' of the proof or the mode of 'examining' the witnesses."45: Failure to swear a witness before the grand jury might be ground of a 'motion' to quash, but is not sufficient reason for acquittal after issue joined."45: Dapileity cannot be taken advantage of in the Federal courts either by general denurrer or motion in arrest,"44: and the 'joinder of several offenses in separate counts is left to the 'discretion' of the court, who may: conipel election; or separate trials."45: In Kentucky, a demurrer to a duplex indictment should be sustained or the prosecution required to elect;"6 though a motion to elect and not dismissal is the proper remedy."45: In the case of answer, or demurrer to a motion to quash does not make it error to overrule it,"45: and a motion to quash for duplicity may be overruled on striking from the information the language claimed to charge the second 'offense."45: A plea inabatement's properly overruled where it appears that the indictment was properly returned in open court, though no entry was made on the minutes at the time."56: The quashing of an information for an amendable defect in charging the offense does not-abate the suit; though the statute under which the prosecution was begun was repealed prior to the quashal."57: Where the court deems an information insufficient, it may, prior to the entry of final judgment. set the verdict founded thereon-side and allow a new information to be substituted, though a demurrer to the portions one has been overruled."57: This is grand juror cannot-write is '59, 40. Raaford v. U. S. \[C. C. A.\] 119 F. around of motion to quash in Iowa. Code, 49. \[58\] 332. Showing held not sufficient, State v., 41., Child under 12 years of age. People Greenland (Jowd) 100-N, V, 341. An In-Micment cannot be quashed because one of the grand jury was above the legend angle for jurors. People v., 178 N.Y. \[60\] 354, 70 N. E. \[78\] 355. People v., 180 N. Y. \[79\] 357. People v., 181 N. Y. \[80\] 358. People v., 44 Mise. \[81\] 359. New Y. \[82\] 361. See 2. Curr., 11, 321, 11, 76. \[83\] 35. Crowley v. U. S. \[91\] 361.88 Law. \[84\] 361. \[85\] 370. And 'discretization' for recent-service may be taken advantage of by challenge or by plan in abatement filed in due time. Plea held good. McFarlin v. State \[Gia\] 49 S. E. \[87\] 386. State v., Edwards \[S. C. \[47\] 5, B. \[39\] 37. State v. McPherson \[Iowa\] 101 N. W. \[78\] 388. Radford v. U. S. \[C. C. A.\] 129 F. \[90\] 390. People v., 44 Mise. \[81\] 491. People v., 44 Mise. \[82\] 492. People v., 44 Mise. \[83\] 493. \[84\] 494. People v., 44 Mise. \[85\] 509. \[86\] 495. United States v. Eastman, 132 F. \[87\] 496. Masser v., 180 N. Y. \[88\] 497. Commonwealth v., Reiecke Coal Min. Co., 25 Ky. L. R. 2037. \[89\] 498. Peekham v. People \[Colo\] 75 P. 428. \[90\] 499. Both manifestly relating to the same act. State v., 16. P. \[83\] 500. Chelsey v., 16. P. \[83\] 511. State v., 16. P. \[84\] 528. State v., 16. P. \[85\] 532. State v., 1 (SS 4) _F. Joinder and separation of counts and election. Joinder of parties.\[55\]_--\_Several may be jointly indicted for offenses arising wholly out of the same joint act or omission.\[54\]_Joinder of counts.\[55\]_--_The propriety of joining offenses of the same nature in different counts is left to the discretion of the court, which may compel election or separate trials;\[56\] but where an act may constitute one or more of several distinct crimes, each of such crimes may be charged in a separate count to meet different phases of the proof.\[57\] A contention that the several counts of an information for exhibiting stock gambling shall be treated as one for the reason that the offense is a continuing one is untenable where the statute makes each exhibition an offense.\[58\]_--_A count that charges two separate and distinct offenses is bad,\[59\]_--\_and where the alternative words in the statute create separate offenses, they cannot both be used in the same count,\[51\] but a single count may state facts that show that a statutory offense has been committed by all the modes named in the statute,\[62\]\_and an indictment is not duplicitous because it sets out the acts done in furtherance of the conspiracy charge.\[58\]\_Acts alleged as incidents or parts of the main offense charged do not render the indictment duplex, though in themselves sufficient to amount to a statutory offense,\[54\]\_and an information is not double when one of the offenses is insufficiently charged.\[65\]_In Kentucky, the statutory enumeration of offenses that may be joined in one indictment is exclusive,\[66\]_and under the act of congress but three offenses committed within six months may be joined.\[67\]_--_

- 53. See 2 Curr. L. 322. 986; Miller v. Com., 25 Ky, L. R. 1931, 79 54. State v. Lehman \[Mo.\] 81 S. W. 1118. 3. W. 962; Steele v. State \[Tex. Cr. App.\] 81 55. See 2 Curr. L. 322. 56. United States v. Eastman, 132 F. 561. 57. Theft from the person and theft of over 550. Flynn v. State \[Tex. Cr. App.\] 83 S. W. 206. 58. State v. Runzl, 105 Mo, App. 319, 80 819. See 2 Curr. L. 322. 60. An indictment charging an assault with intent to murder two persons is not duplicitous. Scott v. State \[Tex. Cr. App.\] 81 S. W. 950. Inditement for bribery by re-cipt of a sum of money contributed by several held to charge a single offense on the theory that the contributions were joint. State v. Ames, 91 Minn. 365, 98 N. W. 190. A charge that defendant feloniously rav-ished and carnally knew a female under the age of consent is not double. State v. Priest, to be charged, is bad for duplicity. State 32 Wash. 74, 72 P. 1024. An indictment charging that on a certain day and on each day thereafter for one year defendant com- 14, 25 Ohio Circ. R. 723; State v. Edmunds mottled a certain offense is duplest and is not cured by confining the proof to the day alleged. Scales v. State \[Tex. Cr. App.\] 81 8. W. 947. 81. Taking female for purpose of "pros-titution" or "concubimage" \[Rev. St. 1899, 8 1842\]. State v. Adams, 179 Mo. 384, 78 S. W. 688. 69. Flohr v. Territory \[Okl.\] 78 P. 665; State v. Cates \[M.\] 68 A. 283; Pooler v. U. S. IC. C. A.\] 127 F. 609; Stanell v. U. S. 8.82; Kemp v. State, 120 Ga. 157, 47 S. E. 548; State v. Howard \[Mon.\] 77 P. 50; Lipschitz v. State \[Ind. App.\] 72 N. 8. 145; People v. Shuler \[Math.\] 98 N. W. 70. C. 232. 4 Curr. Law-- 2. 986; Miller v. Com., 25 Ky, L. R. 1931, 79 54. State v. Lehman \[Mo.\] 81 S. W. 1118. 3. W. 962; Steele v. State \[Tex. Cr. App.\] 81 S. W. 962; State v. Schleuter \[Mo. App.\] 83 S. W. 1012. 63. People v. Rathbun, 44 Misc. 88, 89 80. N. Y. S. 746. 64. Inditement for common nuisance in politing stream also charging statutory of-fense. Peacock Distilling Co, V. Com., 25 Ky. L. R. 1778, 78 S. W. 893. Omission by pole captain to prevent bawdy houses, further charging failure to arrest keegers. State v. Boyd \[Mo. App.\] 84 S. W. 181. 81 S. W. 950. Inditement for bribery by re-cipt of a sum of money contributed by sev- 6 charge a single offense _Election._"--Where two offenses of the same nature are charged, it is discretionary whether the prosecutor shall be required to elect and at what stage of the proceedings," but where each of several acts proved constitutes a distinct offense, the prosecution should be required to elect." A motion to elect for duplicity comes too late after the jury is sworn." Failure to submit a count is tantamount to an election to stand upon the one submitted."

_Consolidation._"--Indictments cannot be consolidated in the Federal court which together charge three offenses not committed within six months," but nine indictments, each charging three offenses, were tried at once in the first circuit, and separate verdict and judgment rendered on each."

(SS 4) _G. Amendments. Indictments._"--Indictments, as a rule, cannot be amended in material matter except by the grand jury finding them," and where a change of venue is had, an indictment must in general be amended if at all in the county from which it came." Statutes of jedofails have relaxed the ancient rule as to matters of form," but such statutes as a rule only authorize amendments after and not before the jury has been sworn," and then cannot avail to cure an indictment that fails to charge a public offense." No prejudice results from an unnecessary or immaterial amendment."

_Informations._"--The insertion of defendant's name in the body of the information during trial is an amendment as to form merely," and a new information filed after demurrer to the original is sustained is not invalidated by writing at the head of it, "Amended information."

(SS 4) \_H. Conviction of lesser degrees and included offenses.

to include it,"" though the two crimes are statutory." the test generally applied being that the evidence required to establish the greater would prove the lesser offense as a necessary element."1 A verdict of assault cannot be rendered on an indictment for homicide in New York where the deceased died of the wound."2

SS 5. _Arraginment and plea. Arraginment.""_--Arraginment and plea are necessary in most states,"4 though in some a formal arraginment is no longer necessary where no prejudice results,"5 and the plea may be waived."6 On discovery after the jury are selected that defendant has not been arraigned, he may then be arraigned, a plea entered for him on refusal to plead, and the trial proceeded with before the jury already chosen."7

_General pleas."_--The court may, in the exercise of a sound discretion, refuse to allow the plea in bar withdrawn,"6 except that the plea of not guilty may be withdrawn at any time before judgment, in order to enter a plea of guilty," and on the entry of such plea, the commonwealth has the right to introduce evidence, the jury being required to fix the penalty." Plea of guilty has the force of a verdict," but amounts merely to an admission of record of the truth of whatever is well charged in the indictment." Permission should be granted to withdraw a plea of guilty induced by error," but a plea of guilty entered on the agreement of the informer to recommend the minimum fine cannot be withheld

der supports conviction of assault. State v. Indictment for breaking and entering with Scott \[Del. Gen. Sess.\] 57 A. 534. Indictment to commit latency authorizes a comment for first degree murder supports conviction of angery where that offense is viction of any degree of felonious homicide. also well pleaded. Ray v. State \[Ga.\] 48 State v. Brune \[De.\] 58 A. 258: United States v. Densmore \[N. J. 75 F. 21; Smith\] latency from person includes assault. State v. Territory \[Okl.\] 77 P. 187. Maiming is not included in shooting with intent to kill.

90. Assault by willfully shooting and assistance v. Mattison \[N. D.\] 100 N. W. 1091. Sambezzlement by national bank officer in-Indictment for shooting will not support cludes abstraction and willful misapproprontion. United States v. Breese, 131 F. 915. Indictment for rape of female under eye of consent will support conviction of as-sault with intent to rape. People v. Dowell \[Mich.\] 99 N. W. 23. Robbery and assault with intent to rob. People v. Elanchard \[Mich.\] 98 N. W. 983; State v. Franklin \[Kan.\] 17 P. 588.

01. A conviction of assault and battery or assault with intent to do great bodily harm may be had on an indictment for assault with intent to rape, though the corroboration of the prosecutrix is not sufficient to support a conviction of the offense charged. State v. Egbert \[Iowa\] 101 N. W. 191.

Rape: No question as to complete sexual intercourse. Instruction on included offenses held properly refused. People v. Keith, 141 Cal. 686, 75 P. 304.

89. Indictment for assault with intent to kill will sustain a verdict of assault, but not assault and battery unless the averments charge and the proof establishes an actual battery. State v. Henry, 98 Mc. 561.

57 A. 891. Likewise assault with intent to rapb. State v. Miller \[Iowa\] 100 N. W. 334: State v. Egbert \[Iowa\] 101 N. W. 191. Attempt to rape need not be specifically charged. Horton v. State \[Miss.\] 36 So. 1033. An indictment sufficiently charging assault with intent to commit murder in the first degree also charges assault with intent to commit murder in the second degree and will support a conviction for the latter crime. Pyke v. State \[Fla.\] 36 So. 577. An 1.2.2.2.3.1.1.2.4.1.2.5.6.6.

4 Cur. Law. INDIDITMENT AND PROSECTIONU SS 7. 21 after the state closed its case and accused had been examined in his own behalf is properly refused.24 Where the plea shows on its face that the offenses are not identical, a demurrer is the proper remedy,27 but the demurrer must specify the objection,28 Where the evidence of defendant makes out a prima facie case in favor of his plea, and the state offers no contradictory evidence, it is error to overrule the plea.29

SS 6. \_Preparation for, and matters preliminary to, trial.20--Defendant is not entitled to a copy of the jury list, unless so provided by statute,31 but when provided for, failure on request to supply defendant with it is fatal,32 though immaterial errors in a list furnished will not vitiate.33 Defendant on trial in one branch of the court is entitled to a list of all jurors drawn for the several branches of the same court.34 The accused is entitled to a list of witnesses in the Federal courts only in treason and other capital offenses,35 and that defendant was furnished with an incorrect list is no ground for motion in arrest or to set aside the judgment.36 Defendant is not entitled to a separate trial on his special plea of limitation,37 but a special issue on the plea of insanity is frequently provided for.38 Allowance of bill of particulars is generally discretionary.39 There is no error in substituting an indictment and then allowing the trial to proceed on the original after it is found, there being no order of substitution, and the original being found pending the substitution.39 Cases may be allotted in the criminal district court of the parish of Orleans, Louisiana, previous to the finding of the indictment.39

_Compulsory process_ to compel attendance of defendant's witnesses guaranteed by the constitution does not guaranty their attendance nor more than ordinary diligence in service of subpoena,39 and a statute authorizing the subpoensing of witnesses to appear at a criminal trial in another state cannot be sustained.39

SS 7. \_Postponement of trial.39--Continuance or postponement on behalf of the state for cause does not invade defendant's right to a speedy trial.39

Postponement should be granted for lack of opportunity for preparation,39 for absence of counsel,39 and for inability of accused from illness to attend.39

26. McNulty v. State, 110 Tenn. 482, 75 S. 11. 127. 131.

Continance should also be granted for the _absence of a witness_,\[40\] but it must appear that his testimony is competent and material,\[50\] credible,\[51\] necessary,\[52\] not merely cumulative\[53\] or impeaching,\[54\] that applicant believes it to be true,\[55\] that the witness is within the jurisdiction of the court,\[56\] that his absence is without the consent or procurement of the applicant,\[57\] that he will probably testify as set forth,\[58\] that diligence was exercised to procure his attendance or

121: State v. Sanders \[S. C.\] 46 S. E. 769, \[S. Franklin v. State \[Tex. Cr. App.\] 78 17 S. E. 55. Four days in murder case in-volving cause of death from chloroform or or Wyoming. State \[Tex. Cr. App.\] 77 S. W. 655: Dodson v. State \[Tex. Cr. App.\] 78 S. W. 614: Blain v. State \[Tex. Cr. App.\] 47. Absence of senior counsel is not ground where defendant was well represented by other able and eminent counsel. Sheperd v. Com. \[Ky.\] 82 S. W. 878; Mason v. State \[Tex. Cr. App.\] 81 S. W. 718; Smith v. State \[Fla.\] 87 S. W. 675. The withdrawal of one of the counsel after the commencement of a criminal trial is not ground for a postponement, where the accused is still represented by an attorney who assisted in a previous trial. Marchan v. State \[Tex. Cr. App.\] 75 S. W. 582. Denial does not infringe accused's right to be represented. Ustner v. State \[Tex. Cr. App.\] 81 S. W. 714. State \[Tex. Cr. App.\] 81 S. W. 896. Forensic appellant to trial with unfamiliar counsel assigned at last minute held error. State v. Barr, 123 Iowa, 139, 98 N. W. 595: People v. Calabur, 91 App. Dlv. 529, 87 N. Y. S. 121. Refusal held proper where cause had once been continued to allow same sensel to prepare. Moore v. Com. \[Ky.\] 81 S. W. 669.

48. Refusal held proper exercise of discretion. State v. Wilson \[Iowa\] 99 N. W. 1060; Barrow v. State \[Ga.\] 48 S. E. 950.

01. Continuance from 5 p. m. to 9 a. m. held properly denied under circumstances. Turner v. Com., 25 Ky. L. R. 2161, 80 S. W. 197. Continuance from 5 p. m. till morning to procure witness whose connection first developed from testimony of defendant. Eatman v. State, 139 Ala. 67, 86 So. 16.

01. Ellis v. Territory \[Arj.\] 76 P. 605: Terry v. State \[Tex. Cr. App.\] 79 S. W. 317; Peres v. State \[Tex. Cr. App.\] 80 S. W. 525: Mitchell v. State \[Tex. Cr. App.\] 80 S. W. 525: 629; State v. Woodward \[Mo.\] 81 S. W. 858: House v. State, 139 Ala. 132, 36 So. 732; Adcock v. State \[Ark.\] 83 S. W. 318: Randle v. State \[Tex. Cr. App.\] 78 S. W. 513: Crayton v. State \[Tex. Cr. App.\] 80 S. W. 839.

Materiality of insanify witness not shown. Ewert v. State \[Fla.\] 37 So. 334. Testimony of threats by deceased is not material where the facts are conclusive against self defense. Territory v. Shankland, 3 Ark., 403, 77 P. 492. Threats by deceased not shown to be material. Klimberlain v. State \[Tex. Cr. App.\] 82 S. W. 1043. Bad character of witness who did not testify. Mullins v. Com., 25 Ky. L. R. 2044, 79 S. W. 258.

Materiality held shown: Thompson v. State \[Tex. Cr. App.\] 78 S. W. 691: Tyler v. State \[Tex. Cr. App.\] 79 S. W. 585: Wal-lace v. State \[Tex. Cr. App.\] 81 S. W. 966. Refusal held error. Klimberlain v. State \[Tex. Cr. App.\] 81 S. W. 966: Cyber v. State \[Tex. Cr. App.\] 81 S. W. 986: Tyler v. State \[Tex. Cr. App.\] 83 S. W. 192: State v. Hesterly \[Mo.\] 81 S. W. 624: Askey v. State \[Tex. Cr. App.\] 83 S. W. 706. Allibt witness. Goldsmith v. State \[Tex. Cr. App.\] 81 S. W. 710.

51. Franklin v. State \[Tex. Cr. App.\] 78 S. W. 934: State v. Woodward \[Mo.\] 81 S. W. 857: Pate v. State \[ 4 Cur. Law. INDICITMENT AND PROSECTION SS 7. 23

deposition," and that there is some probability of procuring his testimony at the postponed trial." Continuance is sometimes avoided by admitting the facts sought to be shown by the absent witness," or that he will testify as averred in the affidavit for continuance," or allowing the affidavit to be read as his deposition," and where this is done, the state may object to the testimony as incompetent," or the absent witness may be impeached 'by showing his bad character in the same manner that he might be if present and testifying;" but where the affidavit is admitted in lieu of the continuance, the prosecuting attorney should not attack it as false."

_An affidavit_ for continuance is not insufficient because it states that the absent witness will testify that defendant "did not and could not" have committed the offense," but an affidavit on information and belief of what the absent witness will testify must state the sources of information and grounds of belief."

_Counter affidavits_ may be received," but not oral testimony," and extraneous facts ascertained by the judge and recited as reasons for overruling an application for a continuance must be shown by affidavit, and an opportunity given defendant to controvert them." It is not improper for the court to recite in its order denying a continuance for lack of diligence, that defendant at a previous term was informed in open court of his rights and duty in regard to witnesses."

Certiorari from the supreme court to the court of sessions is allowed in Penn-

sylvania to operate as a continuance in cases prosecuted by information." It is ex pressly provided by statute in Texas that a severance shall not of itself operate as a continuance.74 Continuance is not grantable at the request of defendant in rape on the ground that prosecutri's pregnancy is plainly apparent and that parturition within a short time would be conclusive that he was not responsible for her condition.75

SS 8. \_Dismissal or noble prosegui before trial.76--\_Dismissal is grantable for want of prosecution in the absence of good cause shown for the delay,77 and where no order of transfer from the county to the district court appears of record, the case should be dismissed.78 The count required in South Carolina of carrying concealed weapons in indictments for murder may be noble pressed without affecting the balance of the indictment.79 In West Virginia, an order retiring an indictment for a felony from the trial docket is equivalent to a dismissal thereof, and the same may not thereafter on motion of the state be restored to the docket for trial;80 but in Kentucky, an order filing away an indictment is permissible where defendant has not been apprehended and is not before the court, is not equivalent to a noble prosequi, and though not providing therefor, does not prevent reinstatement of the indictment on the subsequent arrest of defendant.81 A dismissal is no bar to a subsequent prosecution for the same or an included offense,82 and the order of dismissal need not be set aside before inaugurating the subsequent prosecution.83

SS 9. _Evidence. Judicial notice84_ is taken of the names of the court's own officers,88 and of who are the public officers of the state where the law requires such officers to be commissioned by the governor.88 The state courts take judicial notice of executive orders of the Federal government creating military reservations,87 that such a reservation is in a particular county,88 and that title to it was acquired by the United States by purchase, but notice is not taken of the precise metes and bounds of parcel.89 Judicial notice will be taken of the value of the denominational coins of the United States,89 and of the population of a city of the state,91 but notice is not taken of the plan of numbering houses on streets nor the existence or location of buildings on certain lots and blocks.92 Notice is taken of general statutes, though of local application,93 but not of municipal ordinances.94 A court does not in the trial of one case take judicial notice of proceedings had in other cases, even though shown by its own records.88 Judicial knowledge, however, extends to the record and proceedings of the case on trial.94

Footnote 88: https://www.fnal.gov/fnal.

4 Cur. Law. INDICMENT AND PROSEQUITION SS 9. 25

\_Presumptions and burden of proof,"--Generally speaking, conclusive presumptions and estoppels have no place in a criminal proceeding for the purpose of establishing the body of the crime charged." The jury, however, may find facts by inference from other facts proven in the case," and in the absence of evidence to the contrary, it is presumed that the laws of another state are similar to the laws of the forum.1 There is a presumption that a person intends all the natural, probable and usual consequences of his acts,2 and marriage once shown to exist is presumed to have continued." Presumptions may be retrospective,4 though where the presumption of continuity runs counter to the presumption of innocence, the latter will prevail.5 The presumption of coercion of a married woman by her husband may be rebutted."

In every criminal prosecution, the burden is on the government of proving beyond a reasonable doubt, by competent evidence, every essential ingredient of the crime charged.7 This burden never shifts,8 and the defendant is entitled to have evidence tending to prove facts showing that he did not commit the crime considered by the jury with all the other evidence, and though they do not establish innocence, they may raise the reasonable doubt which must be removed before conviction can be had.9 This rule applies to the defense of alibi.10 The defense of alibi must satisfy the jury that the accused was at a place where it was impossible for him to have committed the crime,11 but the evidence of alibi is to be considered in the general case with the rest of the testimony, and if a reasonable doubt is raised by the evidence as a whole, the doubt must be given in favor of innocence12 and good character.13 The authorities are in conflict as to the burden of proof where insanity or other irresponsibility is relied on as a defense, the rule in England and a majority of the states being that the burden is on defendant of establishing his defense,14 at least by a preponderance of the evidence,13 while the supreme court

Footnote 13: The author is grateful to the referee of of the United States and the courts of many of the states have adopted the contrary rule, placing the burden on the government of proving defendant's responsibility as an element of the offense, beyond a reasonable doubt.\[16\] One charged as an accessory after the fact has the burden of proving such relationship to the principal as excuses him under the statute.\[17\]

\_Relevancy and competency in general.\[18\]--\_The rules of evidence governing the Federal courts are those which were in force in the state at the time of its admission to the Union, unaffected by their subsequent statutory changes.\[19\] Any fact is relevant which alone or in connection with other facts warrants an inference as to the issue on trial.\[20\] Hence a wide latitude is allowed as to evidence tending to show malice, motive or intent,\[21\] its remoteness going rather to its weight than its admissibility.\[22\] Evidence to support a theory that a person other than defendant was guilty is properly excluded as immaterial where there is nothing in the case to pertinently connect him with it,\[23\] and generally testimony tending to prove facts from which no inference relative to any issue in the case can be legitimately drawn,\[24\]

blow by deceased immediately prfer to the killing, the burden is not on defendant to establish his mental condition as claimed by a preponderance of the evidence, but it is sufficient for acquittal If the evidence raises a reasonable doubt thereof; for the blow and its consequences are a part of the res gestae. Dent v. State \[Tex. Cr. App.\] 79 S. W. 525. The statute of Arizona, adapt-ed from California, placing the burden of proving circumstances of mitigation or justification on defendant in homicle, unless they arise from the state's evidence, is construed to require defendant only to raise a reasonable doubt, and not to compel him to .produce a preponderance of evidence. Anderson v. Territory \[Ariz\]. 76 P. 636.

16. See cases cited in State v. Clark, 84 Wash, 485, 76 P. 98, and State v. \[Gugley\] \[R. I\] 68 A. 805; People v. Music \[Ith.\] 100 N. W. 456; People v. Spencer \[N. Y.\] 72 N. E. 461.

01. Rev. St. 1899, $ 2865. State v. Muller

\[Mo.\] 81 S. W. 867.

18. See 2 Curr. L. 832.

01. Withany v. U. S. \[C. C. A.\] 127 F. 530; Balllet v. U. S. \[C. C. A.\] 129 F. 689. Where the prosecution is based on a United States statute, the court is governed by the common law unaffected by the statutes and decisions of the state, except so far as they may be persuasive. Lang v. U. S. \[C. C. A.\] 132 F. 201.

01. Deceased stated that her assistant was a negro who oiled his gun at a certain place the day before. Witness may state that defendant was the man who oiled the gun. Walker v. State, 139 Ala, 65, 35 So. 1011. Sudden and contemporaneous show of funds by one accused of robbery (People v. Sullivan \[Cal.\] 77 P. 1000), or lareeny (Bouckine v. State \[Cal.\] 49 S. B. 257). Deffendant's presence in the vicinity. State v. Johnson \[La.\] 86 So. 30; Spraggkins v. State, 139 Ala, 83 Se. 100. One shown to have been an accomplice may be shown to have been last seen shortly after the crime in company with defendant. Commonwealth v. Kelly \[Mass.\] 71 N. E. 807. Witnesses may be allowed to testify to facts by which they fix the date of the offense. Smith v. State \[Tex. Cr. App.\] 78 S. W. 516.

01. Weaver v. State \[Tex. Cr. App.\] 81 S. W. 516.

01. Weaver v. State \[Tex. Cr. App.\] 81 S. W. 516.

01. Weaver v. State \[Tex. Cr. App.\] 81 S. W. 516.

01. Weaver v. State \[Tex. Cr. App.\] 81 S. W. 517.

01. Weaver v. State \[Tex. Cr. App.\] 81 S. W. 517.

01. Deceased stated that her assistant was a negro who oiled his gun at a certain place the day before. Witness may state that defendant was the man who oiled the gun. Walker v. State, 139 Ala, 65, 35 So. 1011. Sudden and contemporaneous show of funds by one accused of robbery (People v. Sullivan \[Cal.\] 77 P. 1000), or lareeny (Bouckine v. State \[Cal.\] 49 S. B. 257). Deffendant's presence in the vicinity. State v. Johnson \[La.\] 86 So. 30; Spraggkins v. State, 139 Ala, 83 Se. 100. One shown to have been an accomplice may be shown to have been last seen shortly after the crime in company with defendant. Commonwealth v. Kelly \[Mass.\] 71 N. E. 807. Witnesses may be allowed to testify to facts by which they fix the date of the offense. Smith v. State \[Tex. Cr. App.\] 78 S. W. 516.

01. Weaver v. State \[ 4 Cur. Law. INDICMENT AND PROSECTION SS 9. 27 or which depend for their relevance upon other facts not offered or shown, are inadmissible,\[28\] though evidence of otherwise irrelevant facts may be received to rebut an unfavorable inference arising indirectly from other facts apparent or in evidence.\[28\] Matters explanatory of other matters shown in evidence are not restricted to res gestae in Texas, but the explanatory matter may have transpired at another time.\[27\]

On the identity of the person who committed a crime, tracks made in the vicinity may be described and their similarity to accused's shoes shown,\[28\] and evidence of trailing by bloodbounds is admissible where proper foundation is laid.\[29\]

Where one party shows a part of a conversation, the other is entitled to show the remainder,\[30\] but the rule does not require the admission of mere hearsay or self-serving declarations,\[31\] and irrelevant evidence is not rendered admissible because it is the remainder of a conversation part of which has already gone in without objection.\[32\]

Where direct proof of a person's insanity has been given, it may be shown that there has been insanity in his family,\[33\] and where the defense to a charge of murder is insanity caused by a previous physical injury, evidence of defendant's conduct between the injury and the homicide is proper.\[34\] Evidence that defendant was an habitual drunkard and suffering from delirium tremens at the time is admissible,\[45\] and his appearance, emotions, and condition of mind immediately after the offense may be shown.\[36\] Evidence that the family physician of accused had never heard any intimation that he was insane is inadmissible.\[37\]

that he could help it is error, the matter avoid any prejudical effect of that fact, to not being relevant. Miller v. State \[Tex. Cr. show by cross-examination of her that she app.\] SS 8, W. 293. That defendant furnished

welfare to indicted deceased of another crime

Bebb \[Iowa\] 101 N. W. 189. Contra, State is inadmissible In homelide. Tommesil v.

v. Webb \[Iowa\] 96 N. W. 714. Proffred

State \[Tex. Cr. App.\] 78 S. W. 938. On a

testimony to explain the absence of a wit-prosecution for murder, evidence of the pa-

ness should be admitted where the state in

trinity of all the children of a witness who

cross-examining defendant shows that he

was a mistress of the accused, not merely

has not produced such witness who if facts

of those she had by him, was inadmissible,

testified to by defendant are true has knowl-

where it was admitted that some of the

edge of such facts. Long v. State \[Ark.\] children were not his. Ivy v. State \[Miss.\]

SS 1, S. W. 887.

36 So. 265. Exclusion of evidence as to how

27. Smith v. State \[Tex. Cr. App.\] 81 S. defendant acted when drunk or that he was

W. 938. Parker v. State \[Tex. Cr. App.\] 80 S.

drunk the night before the murder is not

error. State v. Brown, 181 Mo. 192, 79 S.

W. 1111. Poverty and distress of witness

29. See 2 Curr. L. 338, n. 67-69. Person-

rendering her easy to deceive and defraud

ily known to witness to be bred, trained

is not relevant, In a prosecution for using

and reliable. Parker v. State \[Tex. Cr. App.\]

the malls to defraud. Bass v. U. S., 20 App.

80 S. W. 1008; Davis v. State \[Fla.\] 36 So.

D. C. 232.

52. V. Whether prosecutor had cattle on an

other range besides the one from which he

claims the cattle were stolen is immaterial,

unless it is proposed to show that the miss-

ing-cattle were on that range. People v.

Green, 143 Cal. 8, 76 P. 649. Placards adapt-

ed to pool room use but also adapted to use

at a bona fide race cannot be used in a

prosecution for pool selling without proof

that they were in fact used illegally or not

intended to be used legally. People v. Ebel,

90 N. Y. S. 628. In the absence of an offer

of proof that defendant in homelide had

not sufficient intelligence to be responsible

for his acts, evidence that he had not "much sense" and was little above an id idiet is not admissible. Demaree v. Com. \[KS.\] 82 S. W.

231. Where, In a prosecution for statutory raep, prosecutri's pregnancy Is apparent, he should be allowed, In order to The mental condition of a witness while testifying may be shown by a third person for the purpose of accounting for discrepancies in her testimony at different trials,\[88\] but the state cannot contradict or impeach its own witness who has given no adverse testimony,\[90\] and a witness cannot state that he testified to the same facts on the preliminary examination.\[40\] Defendant cannot show that an eye witness not sworn by the state was unfriendly to him,\[41\] and that one of defendant's witnesses since a previous trial has been indicted for perjury therein is inadmissible on a second trial.\[42\] Memorandum showing prosecutor's loss of goods may be admitted to corroborate his testimony.\[43\] It is error to admit evidence that defendant accused of murder did not testify at the preliminary examination.\[44\]

_Tampering with the state's witnesses_ by defendant\[45\] or a person introduced by him may be shown,\[46\] but tampering by third persons not traced to defendant is inadmissible,\[47\] and the prosecution's efforts to locate a material witness cannot be shown where there is nothing to connect defendant with his absence.\[48\] Efforts of defendant to conciliate a witness whose credibility he has attacked by showing hostility to him may be shown.\[49\] Where no previous contradictory statement is shown, defendant cannot on cross-examination of a state's witness show that she has been intimidated by the officers and others to testify against him.\[50\]

_Flight of accused\[41\]_ and evidence of the steps taken by the sheriff to apprehend him as showing the extent of his flight,\[52\] and that he refused to return without extradition, may be shown.\[53\] It is proper to show that defendant resisted arrest,\[54\] attempted to escape,\[58\] and attempted suicide while in jail charged with the crime.\[56\] His actions and appearance when a search warrant was read in his presence,\[57\] and his conduct and circumstances at the time of his arrest, may be shown.\[58\] Evidence of what was found on searching him or his premises is admissible, though there was no legal authority for the search.\[59\] That defendant asked to be taken before deceased before she died,\[50\] refused to flee from the scene of the crime when accused, and promptly surrendered to an officer, cannot be shown,\[51\] where such acts constitute no part of the res gestae and the state has made no attempt to show flight or resistance of arrest.\[52\]

_Remoteness_ or uncertainty of evidence, as a rule, affects its weight or credibil-

38. Weaver v. State \[Tex. Cr. App.\] 81 S. S. W. 30; State v. Poe, 123 Iowa, 11$, 98 V. 39. 83. 74 P. 587; State v. Stentz, 33 Wash. 444, 74 P. 588; State v. Descharge \[Vwash.\] 77 V. 544. 504. 511; State v. Havapt \[Iowa\] 80 S. W. 311; State v. Havapt \[Iowa\] 101 N. V. 739. 41. 75. 76. 77. 81 S. W. 30; State v. Deatherage \[Vwash.\] 77 P. 5. 53. 78. 79. 81 S. W. 30. 43. 75. 78. 79. 83. 84. 78. 85. 86. 87. 88. 89. 80. 81. 82. 83. 84. 85. 87. 88. 89. 80. 82. 84. 86. 88. 89. 81. 83. 84. 88. 89. 80. 83. 84. 89. 81. 84. 89. 82. 85. 86. 87. 88. 89. 81. 84. 89. 82. 83. 85. 87. 88. 89. 80. 84. 89. 80. 85. 89. 81. 86. 88. 89. 82. 83. 84. 88. 89. 80. 84. 89. 81. 85. 86. 87. 88. 89. 82. 84. 89. 83. 85. 87. 89. 88. 89. 80. 89. 81. 89. 82. 84. 89. 83. 84. 89. 85. 86. 87. 88. 89. 88. 89. 80. 89. 81. 89. 82. 84. 89. 83. 85. 89. 84. 89. 85. 86. 87. 88. 89. 88. 89. 89. 80. 89. 81. 89. 82. 84. 89. 89. 80. 89. 81. 89. 82. 83. 84. 89. 85. 89. 86. 87. 88. 89. 88. 89. 89. 80. 89. 81. 89. 82. 84. 89. 89. 80. 89. 81 ity and not its admissibility," though evidence has been rejected on the ground of renoteness."

_Other offenses, convictions and acquitals_" are not generally admissible." Exception is made, however, in the case of other offenses committed at the same time with the one on trial, when they are admissible under the familiar rule of res gestae," and when they are so connected with the offense on trial as to illustrate it by way of supplying a motive," or showing the intent with which it was committed," or show a system," or defendant's identity," they may generally be shown, and

63. Andrews v. State {Tex. Cr. App.} 83 67. See post, this section.

01. State v. Johnson \[La.\] 36 So. 30: State .

81 S. W. 39: Alanis v. State {Tex. Cr. App.} v. Bates \[Mo.\] 81 S. W. 408. Indictment for

81 S. W. 709; Gregory v. State \[Ala.\] 87 So.

269; Nickles v. State \[Ala.\] 87 So. 312. Remove and fragmentary evidence to corrob-

\[Fla.\] 37 So. 572. Illicit relations between orate accomplices held properly used. How-

co-defendant and female are proper to show

ard v. Com., 25 Ky. L. R. 2123, 80 S. W. 211.

mevtor for abortion, Barrov v. State \[Ga.\]

Deed made eight years before used to show

48 S. E. 505. Where murder was committed

ownership. Frazier v. State {Tex. Cr. App.} 81 S. W. 532. Inconclusive circumstances

27 So.

may be shown. Schley v. State {Fla.} 37 So.

518. A telephone conversation with accused

testified to by the other party to it is not

to be rejected on the ground of 'insufl-

ciency of proof of identity of accused were

the witness swears positively. Lilli'e v. State {Neb.} 100 N. W. 316.

64. Some of the threats of deceased to

take her own life held too remote where the

charge was murder by poison and the de-

fense was suicide. State v. Kelly \[Conn.\]

58 A. 705. Where issue is as to defendant's

sanity, evidence as to what sort of a man

he was 18 years ago is too remote, State

v. Quigley {R. I.} 58 A. 905. Purpose of

acacused three years before in going to place

where cattle were stolen. People v. Green,

142 Cal. 8, 76 P. 643. Declarations of acused that he would like a reputation of

having killed several men. Castel v. State {Ark.} 83 S. W. 953. Purches of clothes

at a time and place other than witnesses

have stated as showing date of offense.

Laudermilk v. State {Tex. Cr. App.} 83 S. W. 1107.

65. See 2 Curr. L. 333.

01. Dunn v. State, 162 Ind. 174, 70 N. E.

821; Schultz v. People, 210 Ill. 196, 71 N. E.

405; People v. Dowell \[Mich.\] 39 N. W. 231.

Cavthon v. State, 119 Ga. 385, 46 S. E. 897.

State v. Boatright \[Mo.\] 81 S. W. 450; Bass

v. U. S., 200 App. D. C. 282; Owens v. State

\[Tex. Cr. App.\] 78 S. W. 765: State v. Feder

\[Vwash.\] 78 P. 1023; Livingston v. State {Tex. Cr. App.} 83 S. W. 111. Evidence that on

the arrest of defendant for assault with a

pistol, he was found to have brass knuckles

in his pocket, is indmisible on his trial

for the assault. People v. Wells \[Cal.\] 78

P. 470. That defendant was drunk at the

time witness saw him carrying a weapon

concealed. Goney v. State {Ala.} 37 So.

855. Previous violations of local option law.

Belt v. State {Tex, Cr. App.} 78 S. W. 933:

Marks v. State {Tex, Cr. App.} 78 S. W. 512. Prevton disturbances of peace. Mars-

well v. State {Tex. Cr. App.} 78 S. W. 516.

Improper familiarity with another woman

cannot be shown in prosecution for wife

desection. Cuthbertson v. State {Neb.} 101

N. W. 1031. Other thefts by accomplice

not be shown in absence of system. Buck

v. State {Tex. Cr. App.} 83 S. W. 390.

70. Other fiercenties may be shown in a

presentation for larency or for entering with

intent to steal. People v. Nagle {Mich.} 100

N. W. 273: Flohr v. Territory {Okl.} 78 P.

565 30 INDICMENT AND PROSECTION SS 9. 4 Cur. Law.

where unlawful sexual intercourse is under investigation, other acts of the parties may be shown to illustrate their inclination.\[72\] Evidence fairly admissible upon an issue in the case is not rendered inadmissible because indirectly showing the commission of another offense.\[73\] Goods found in the house of another also charged with the larceny are not admissible against defendant, no confederacy or conspiracy being shown,\[74\] and on a trial for poisoning, it cannot be shown that it was current talk in the neighborhood that defendant poisoned others.\[75\] Where evidence of another crime is admitted to show intent, defendant is entitled to show the record of his acquittal thereof on the theory of res judicata.\[76\]

\_Character and reputation.\[77\]--\_The character of the accused as reflected by his general reputation in the community in which he resides,\[78\] with reference to the traits relevant to the offense charged\[79\] may always be put in issue by him by offering evidence that it is good, whereupon the contrary may be proved in the same manner by the state.\[80\] The character of third persons,\[81\] especially of witnesses in the case,\[82\] may be material. Defendant for the purpose of impeachment may be asked whether he has served a term in prison in another state.\[83\] A dying declarant may be impeached as any other witness,\[84\] and where impeached by showing convic-

local option law. White v. State \[Tex. Cr. 77. See 2 Curr. L. 334.

App.\] 19 S. V. 523.

**75. State v. Prins, 117 Iowa, 505, 91 N.**

**71. State v. Lewis, 181 Mo. 235, 79 S. W.**

\*\*75. Discharge from army is not ad-

**671: Cortex v. State \[Tex. Cr. App.\] 83 S.**

**75. State \[Gaj. 48 S. E. 361. Reputation**

**75.** Incest. People v. Koller, 142 Cal. 621,

**76 P. 500. Adultery, State v. Eggleston**

**75.** Zegleston State v. Brady \[N. J. Law\] 59 A. G. Opinion\*\*

**76 P. 738. Rape under age of consent.**

**88.** State v. Lancaster \[Idaho\] 78 P. 1081. Other\*\*

**88.**

**908.**

**91.**

**92.**

**93.**

**94.**

**95.**

**96.**

**97.**

**98.**
tion of felony, pardon cannot be shown in rebuttal.88 Insanity cannot be proved by reputation.86

\_Hearsay.87--\_Unsworn statements out of court by third persons are, unless within certain well known exceptions, inadmissible.88

\_Admissions and declarations.89--\_Incininating statements and admissions of defendant are admissible, whether made before or after the commission of the crime,90 but self-serving declarations are not generally admissible, except in some instances, as showing the intent with which the act under investigation was done.91

Acts and declarations of a joint defendant may be considered against the one on trial when made in his presence, though no conspiracy was shown,92 and where two are charged as principals, the acts and declarations of one at the time of committing the offense are admissible against the other;98 but declarations of a co-defendant in defendant's absence are inadmissible on a separate trial, in the absence of proof of a conspiracy.94 Deelarations tending to prove guilt of the principal may be shown, though made in the absence of the accomplice on trial,95 and

84, 85. Martin v. Com., 25 Ky. L. R. 1928,

Testimony of a witness that he had heard that the prosecutor had lost certain property is not inadmissible as hearsay where Parrish v. State, 139 Ala. 16, 36 So. 1012.

WHY he had carefully examined the property found in possession of defendant. Stafford v. State (RSA. 148 S. E. 903.

Peeople v. Dowell \[Mich.\] 100 N. W. 908; VMID.

S8. See 2 Curr. L. 334.

man v. State, 139 Ala. 125, 35 So. 995; LIGHT.

got v. State \[Tex. Cr. App.\] 17 S. W. 1075;

Gibson v. State \[Tex. Cr. App.\] 18 S. W. 1075;

Gibson v. State \[Tex. Cr. App.\] 82 S. W. 1119. Witness may fix the time of a fact by the time he heard something related by another, and may state what was related, but the hearsay thus produced is admissible for no other purpose nor can it be used for any other. Alford v. State (FIA. 186 S. 436.

Examples. Not admissible: Witness had been informed he could get whiskey from defendant. Holley v. State \[Tex. Cr. App.\] 81 S. W. 957. Witness had heard that defendant, indicted for murder in whipping his child, was addicted to cruel and unusual punishment, and had previously killed a child. Ackers v. State \[Ark.\] 83 S. W. 909.

Evidence of what a third person said about defendant's finsarity. Porter v. State \[Ala.\] 37 So. 81. Statement by relative of deceased that from what deceased's son, the only eye witness, told him immediately after the homicide that defendant was justified. .Hel-

lard v. Com. \[Ky.\] 80 S. W. 482. An entry in a school register is not competent evidence of the age of the pupil. Simpson v. State \[Tex. Cr. App.\] 81 S. W. 320. Witness cannot state that the morning after a horse was stolen he heard defendant had a slim-

llar one. Lightfoot v. State \[Tex. Cr. App.\] 78 S. W. 1075. Statements of an accomplice to witness under such circumstances that 'he facts stated must have been derived from defendant are hearsy. Wallace v. State \[Tex. Cr. App.\] 81 S. W. 966.

Not hearsay: Testlmony to the fact of having received letters from a person is not hearsay. People v. Barker \[Cal.\] 78 P. 266. The place of a crime may be identified, and the fact that such place is within the state proved independently (to prove place of a mock marriage). Barclay v. Com., 25 Ky. L. R. 463, 76 S. W. 4. What another has told witness about it is hearsay. Taylor v. State \[Tex. Cr. App.\] 80 S. W. 378.

a co-defendant's statements against interest may be admitted where the jury are warned that they are to be taken as evidence against him alone." Evidence of the finding of stolen property where it had been hidden by the thieves, one of them being present, is admissible on the trial of another who was not present." Declarations by third persons with regard to defendant's guilt are not admissible, whether exculpatory" or incriminating," except that failure of defendant to deny the statements of others in his presence is sometimes taken as an admission of their truth; but such evidence should be received with caution.1 Statements of deceased, neither res gestae nor dying declarations, are not admissible against or in favor of one accused of homicide.2 Declarations of the prosecuting witness cannot bind the state, but are admissible only as affecting credibility, and then only after witness' attention has been called to them." As a general rule, evidence of prior statements of a witness cannot be introduced to support or corroborate his evidence. The rule, however, has its exceptions, and one of them is that where a witness has been discredited by showing prior statements contradictory of his evidence on the trial, it may be shown that soon after the occurrence he made statements corroborative of his statements at the trial.4

96. State v. Adams \[S. C.\] 47 S. E. 576.

to officers in defendant's presence and defendant's failure to deny them held hand-missible. Geiger v. State \[Ohld\] 17 N. E.

8. W. 518.

1. In the separate trial of one of several cannot show what his mother said when he sent him to the range two years before. People v. Green, 144 Cal. 8, 76 F. 649.

Witness cannot state that a third person had admitted the commission of the offense. Maya v. State \[Neb.\] 101 N. W. 979. The declaration of a third person some time after the homicide, that he accidentally kill-ed deceased is heasray. Selby v. Com., 25

Ky. L. R. 2209, 80 S. W. 221. Witness cannot testify that defendant's wife stated before property was notolen that he had such property. Gibson v. State \[Tex. Cr. App.\] 83 S. W. 1119. Witness cannot state what they did or thought in the absence of defendant and deceased during the interim between the preliminary quarrel and the homicide. Chambers v. State \[Tex. Cr. App.\] 79 S. W. 5172.

99. In the absence of a conspiracy, conversations between third persons in defendant's absence are inadmissible against him. Goodman v. State \[Tex. Cr. App.\] 83 S. W. 196: Willson v. U. S. \[Ind. T.\] 82 S. W. 924.

Defendant is not bound by the statements of others with reference to the facts of the case without his confinance or consent. Suggs v. State \[Tex. Cr. App.\] 79 S. W. 307.

Statement of defendant's father "that he might as well give the case up-me could not account for him after 7'clock, held improperly shown. State v. Tecachey, 134 N. C. 556, 46 S. E. 733. Declarations at a fight some time before the killing and at which defendant was not present are not admissible. Gray v. State \[Tex. Cr. App.\] 83 S. W. 708. It cannot be shown that the alleged purchaser of intoxicating liquor stated in defendant's absence that he got it from defendant. Vaut v. State \[Tex. Cr. App.\] 83 S. W. 186.

Centre: Proof that the person robbed named defendant Immediately afterward is not heasray. Commonwealth V. Kelly \[Mass.\] 71 N. E. 807.

1. Statements of defendant's child of four 4 Cur. Law. INDICITMENT AND PROSECTION SS 9. 33

_Confessions_ are admissible,\* though made while defendant is in custody,' but only when voluntary,\* and made understandingly,\* without threat or inducement.\* Evidence that stolen goods were found where defendant said they were, together with defendant's statement where they were, is admissible, though the confession was obtained by improper inducements,\* but what he said about committing the crime is not,\* and though there be a prior confession improperly induced, a subsequent one, made after the effect of the inducement has passed, may be shown.\* Where defendant is in custody, he must in some states be warned that whatever he says may be used against him,\* but the warning need not be exactly contemporaneous with the confession,\* nor be made by the party receiving it,\* and attempts

Lounder v. State {Tex. Cr. App.} 79 S. W. 9. State v. Sargood \[Yt.\] 58 A. 971. 552; Simpson v. State {Tex. Cr. App.} 81 S. 10. State v. Brinte \[Del.\] 68 A. 258; State v. Huntor, 181 Mo. 316, 80 S. W. 965. Conported by showing statements in harmony with testimory at trial. State v. Sharp \[Mo.\] 82 S. W. 134. Contrers, State v. McDaniel \[S. C\] 47 S. E. 384. 5. See 2 Curr. L35. 6. Nick's V. State \[Tex. Cr. App.\] 79 S. W. 35; Adcock v. State \[Arxl.\] 83 S. W. 318; Abrams v. State {Ga.} 48 S. E. 985. Con-fessions of one of two on trial are admissible only as to himself. Howson v. State \[Arxl.\] 83 S. W. 935. Where two are jointly tried, the confession of one is not inadmisibile because it implicates the other, but it should only be considered against the party making it. State v. Brinte \[Del.\] 68 A. 258. The provisions in American constitutions, that no person in a criminal case shall be compelled to be a witness against himself, are merely declarative of the common law and provide nothing for a defendant's security not already provided by that law. State v. Middleton \[S. C\] 48 E. E. 35. 7. State v. Lewis, 112 La. 874, 36 So. 788; Hilburn v. State \[Ga.\] 49 S. E. 518; Hanth v. Comm (Ky.) 82 S. W. 402; Plant v. State \[Ala.\] 87 So. 159; State v. Worthen \[Iowa\] 100 N. W. 230; State v. Ieebloe \[Iowa\] 101 N. W. 273; State v. Washing \[Vwash\] 78 P. 1019; Williams v. State {Fla.} 37 So. 521. 8. State v. Brinte \[Del.\] 68 A. 258; Compnewault v. Hudson, 158 Mass. 402, 70 N. E. 436. Burden is on state of proving voluntary character. Watts v. State \[Tex.\] 67 A. 542. But not that it was not induced. Jenkins v. State, 119 Ga. 431, 46 S. E. 628. Statements elicited by severe cross-examination from one under arrest are not admissible, though he was warned. Parker v. State \[Tex. Cr. App.\] 80 S. W. 1008. Where confession appears to be voluntary, burden is on defendant to show otherwise. State v. Ieebloe \[Iowa\] 101 N. W. 273. That defendant was in chains and officer had pistol in pocket does not necessarily render confession indammissible. McNish v. State \[Fla.\] 36 So. 176. Where the evidence conflicts, they are admissible, subject to a proper charge. Sanchez v. State \[Tex. Cr. App.\] 78 S. W. 504. "You have been telling me a pack of lies; now you had better tell the truth" renders confession involuntary. West v. U. S., 20 App. D. C. 347. The state of mind of defendant making admissions and his character are material on the question whether his admissions were voluntary. Timid and easily frightened. State v. Lewis \[N. C\] 48 S. E. 654. 4 Curr. Law-3.

to escape after arrest may be shown, though defendant was not warned.17 The evidence being conflicting as to whether defendant was warned,18 or the statement was voluntary,19 the question is primarily for the judge, and finally for the jury;20 and where after confessions are shown, it appears that they were given under duress. prompt exclusion and instructions to disregard them furnish as complete a remedy as has been provided.21 A confession must go to the jury entire,22 except that confessions of other crimes unconnected with the one under investigation, if possible, must be rejected;23 and if the witness can give the substance of the confession, it is immaterial that he does not recall the entire conversation.24 An admission of killing, coupled with a justification, is not properly a confession;25 and offers by a person arrested for forging a check to pay the sum represented or a greater sum to settle the matter are not confessions.26 Defendant's statements to his co-conspirators in plotting and carrying out the plan, being admissible as res gestae, are not to be rejected as confessions.27

\_Acts and declarations of co-conspirators.28--Declarations of co-conspirators made after the conspiracy is formed and in furtherance of it,29 but not those before,20 are admissible, though made in the absence of defendant,31 and the trial is for a crime only incidental to the object of the conspiracy,32 and the declarant is not named in the indictment.38 There must, however, be independent evidence of the conspiracy,34 the acts and declarations of a co-conspirator not being admissible

Danial v. State \[Tex. Cr. App.\] 81 S. W. 301.

16. Kennon v. State \[Tex. Cr. App.\] 82 S. W. 518. Nor by an officer. Black v. State \[Tex. Cr. App.\] 81 S. W. 302.

01. Andrews v. State \[Tex. Cr. App.\] 83 S. W. 188.

01. Kennon v. State \[Tex. Cr. App.\] 82 S. W. 518; Cortez v. State \[Tex. Cr. App.\] 83 S. W. 812.

01. Commonwealth v. Hudson, 185 Mass.

01. 70 N. E. 436; State, v. Middleton \[S. C\] 48 S. E. 45; State v. Washington \[Wash.\] 78 P.

01. Where the testimony of the officer discloses the involuntary character of the confession, it is error to submit the question to the jury, though the defendant denies making a confession, he not denying the inducement. West v. U. S, 29 App. D. C. 347.

01. On the preliminary question as to its admissibility, the court may hear evidence from both parties. Zuckerman v. People \[Ill.\] 72 N. E. 741.

01. State v. Middleton \[S. C\] 48 S. E. 35.

01. State v. Busse \[Iows\] 100 N. W. 536; Owens v. State \[Ga.\] 48 S. E. 21. Extending statements with the incriminating ones. People v. Loomis, 178 N. Y. 400, 70 N. E. 919. Where a confession is the result of questions and is written down, read over to and signed by defendant, the fact that the questions are not written is no objection to its admissibility. State v. Britne \[Del.\] 58 A. 258.

01. People v. Loomis, 178 N. Y. 400, 70 N. E. 919. A written confession admitting other crimes may go to the jury entire, under proper instructions to disregard all except that portion relating to the crime nn-der investigation. State v. Knapp \[Ohio\] 71 N. E. 705, rye, 4 Ohio C. C. (N. S) 184, 35 Ohio Circ. R. 571, which rvd. trial court.

01. Green v. Com \[K.y\] 83 S. W. 628.

01. Owens v. State \[Ga.\] 48 S. E. 21.

01. Michaels v. People, 208 Ill. 603, 70 N. E. 747

01. People v. McGarry \[Mich.\] 99 N. W. 147.

01. See 2 Curr. L. 337.

01. Smith v. State \[Tex. Cr. App.\] 81 S. W. 936; State v. Lewis, 181 Mo. 235, 79 S. W. 671; Graff V. People, 208 Ill. 312, 70 N. E. 293; People v. Mol \[Mich.\] 100 N. W. 913; Wallace v. State \[Tex. Cr. App.\] 81 S. W. 966; People v. Lawrence, 143 Cal. 148, 74 P. 833; Commonwealth v. Stambaugh, 22 Pas.

01. Super. C. 386. Evidence of every act done in furtherance of a common unlawful purpose is relevant as against every one engaged therein. State v. Donavan \[Iowa\] 101 N. W. 122. Testimony merely narrative of something said or done by other conspirators is not admissible. Bowen v. State \[Tex. Cr. App.\] 82 S. W. 520; People v. McGarry \[Mich.\] 99 N. W. 147 * 4 Cur. Law. INDICMENT AND PROSECTION SS 9. 35

for the purpose of proving the conspiracy itself.\*" Slight evidence is sufficient," \[29\] its sufficiency in the first instance being a question for the trial court;" \[37\] but evidence raising a mere suspicion is not sufficient." A conspiracy may be proved by circumstances," \[39\] and if the circumstances tend to prove a conspiracy, it is for the jury and not the court to determine whether they are consistent with a reasonable hypothesis of innocence." \[40\] It is not error to admit evidence of the acts of alleged, conspirators before the conspiracy is established," \[41\] on a promise to subsequently make it competent," \[42\] but where declarations are admitted over objection, on the promise to show a conspiracy, and none is shown, they should be stricken, though no motion is made," \[43\] and such evidence should be disregarded if the jury find on conflicting evidence that there was no conspiracy." \[44\]

_Res gestae._"--Exclamations or other statements made at the time or so soon thereafter as to result from impulse rather than reflection are admissible, whether made by defendant," \[45\] the person injured," or third persons," \[48\] and whether the person explaining would be a competent witness or not." \[49\] Likewise conversation" \[50\] and contemporaneous acts and circumstances of the parties may be shown where they are part and parcel of the transaction under investigation." \[41\] The acts and other on trial for murder. State v. Lewis, \[dental are admissible. Scott v. State \[Tex. Cr. App.\] 81 S. W. 294. Statements by defendant in rape as to his relations with other women. State v. Bebb \[Iowa\] 96 N. W. 714; \[Id., 101 N. W. 189\], \[47\]. Weltnovev v. State \[Fla.\] 85 So. the crime are indamsible in the absence of 86; State v. Charles \[La.\] 86 So. 29; Bowles independent evidence of a conspiracy. State v. Walker \[Iowa\] 100 N. W. 854.

\[Tex. Cr. App.\] 80 S. W. 378; Flores v. State \[Tex. Cr. App.\] 79 S. W. 808; State v. Foley \[La.\] 86 So. 855. Statements of child 3% years old after being raped. Kenney v. State \[Tex. Cr. App.\] 79 S. W. 817.

Other offenses. Com. v. Clancy \[Mass.\] 72 N. E. 842.

40. People v. Moran \[Ca.\] 77 P. 777; People v. Lawrence, 143 Cal. 148, 76 P. 893.

01. People v. McGarry \[Mich\] 99 N. W. 147; People v. Donnolly \[Cal.\] 77 P. 177; Barrow v. State \[Ga.\] 48 S. E. 950. It is not necessary to first establish a conspiracy before evidence of the acts and declarations of co-conspirators in the absence of defendant are admissible against him, but such evidence may be introduced in the first instance and stricken out if no conspiracy is thereafter shown, or disregarded if the jury find on conflicting evidence that there was no conspiracy. Bowen v. State \[Tex. Cr. App.\] 82 S. W. 520.

42, Wells v. Territory \[Okki.\] 78 P. 124.

43. State v. Walker \[Iowa\] 100 N. W. 854. Admission of evidence of acts of unknown persons not shown to have been acting with defendant held not cured by striking ont. Bowen v. State \[Tex. Cr. App.\] 82 S. W. 520.

01. Bowen v. State \[Tex. Cr. App.\] 82 S. W. 520.

01. See 2 Curr. L. 338.

01. Plank v. State \[La.\] 37 So. 159; Ferguson v. State \[Ala.\] 37 So. 448; Moody v. State \[Ga.\] 48 S. E. 340; Johnson v. State \[Tex. Cr. App.\] 81 S. W. 945; Gray v. State \[Tex. Cr. App.\] 82 S. W. 705; Elmore v. State \[Tex. Cr. App.\] 78 S. W. 520; Bates v. State \[Tex. Cr. App.\] 80 S. W. 85.

ments by defendant to or 15 minutes after the homolicide to the effect that it was accel

## 36 Indictment and Prosecution SS 9.

4 Cur. Law.

declarations must be such that the events speak through the participants,\[52\] and where the participants speak about the events,\[53\] or the declarations are in a narrative form,\[54\] or the acts are done,\[55\] or the declarations made so far subsequent to the transaction as to permit reflection, they are inadmissible.\[56\] Testimony as to stolen property in addition to that alleged in the information, stolen at the same time and found in defendant's possession in the execution of a search warrant, is admissible as res gestae.\[57\] Where declarations are not precisely concurrent with a transaction, their admissibility is in the sound discretion of the trial court.\[58\]

_Expert and opinion evidence.\[59\]--Ordinarily, questions are objectionable which call for conclusions of the witness rather than facts,\[50\] and testimony in the nature of conclusions and opinions is generally inadmissible.\[51\] An opinion or conclusion_

P. 308. Train and mail robbery may be 59. See 5 Curr. L. 338.

shown on prosecution for robbery of safe 60. Whether there had been a previous on train. State v. Howard \[Mont.\] 77 P. 50.

Testimony with reference to other property \[Ada.\] 37 S0. 105. Whether stolen at the same time may be shown, \[Tex. Cr. App.\] 78 S. W. 941. What was said and done by the parties at the time of delivery of the bottle 810. In a murder trial, witness cannot be supposed to contain liquor. Patrick v. State \[Tex. Cr. App.\] 78 S. W. 947. Defendant's curses at the time it was claimed he was \[Tex.\] 70 N. E. 1. Whether defendant had had any other altercation with prosecutor.

81 S. W. 209. That defendant began to digle controlled of a few days before the date alleged is admissible as res gestae. Adams v. State \[Tex. Cr. App.\] 81 S. W. 963. If questioned and pursuit by defendant after inflation of fatal wound may be shown on question of malice. Hancock v. State \[Tex. Cr. App.\] 83 S. W. 696. Murder and flight may be shown where defendant killed deceased in resisting arrest thereafter. Cortez v. State \[Tex. Cr. App.\] 83 S. W. 812.

82. Physician called 9 or 10 minutes after shooting said, "Before I put my hands on you, who did the shooting?". Answer held not res gestae. State v. Charles \[La.\] 36 So. 29. State v. Charles \[La.\] 36 So. 29; State v. Kelly \[Conn.\] 83 K. 705.

01. State v. Charles \[La.\] 36 So. 29; Davis v. Com., 85 Ky. L. R. 1426, 77 S. W. 1101; Freeman v. State \[Tex. Cr. App.\] 81 S. W. 955. Expressions of fear of defendant that deceased will attack him made subsequent to prior difficulty. State v. Raymo \[Vt.\] 87 A. 893.

01. Preparations for marriage six months after alleged seduction, not brought to knowledge of accused. People v. Tibbs, 142 Cal. 100, 76 P. 944.

01. State v. Gianfalo \[La.\] 37 So. 30. Bowles v. Com. \[Ya.\] 48 S. E. 557; Sutherland v. State \[Ga.\] 48 S. E. 915; State v. Harness \[Idaho\] 76 P. 78. 78. Statement by defendant to one who heard shooting after walking % mile is not admissible. Pitts v. State \[Ala.\] 37 So. 101. Drying declarations of one of two killed at the same time are not admissible at trial of slayer for murder of the other. Taylor v. State \[Ga.\] 48 S. E. 361. Statements made after walking a mile are not res gestae. Martin v. State \[Tex. Cr. App.\] 83 S. W. 657.

01. People v. Nagle \[Mich.\] 100 N. W. 273: Flobar v. Territory \[Okl.\] 78 P. 565.

01. State v. McDaniel \[S. C.\] 47 S. E. 384: State v. Lindsey \[S. C.\] 47 S. E. 389.

is permissible, however, where the nature of the facts on which it is founded makes it impossible to state them,\[62\] and exception is made with respect to matters presumably not within the experience of ordinary men, but as to which certain learned persons have special knowledge.\[63\] As to such matters, any person shown to be of sufficient learning and experience\[64\] may give his opinion, based on facts in evidence, or on his observation of the subject-matter,\[65\] except that he cannot give an opinion as to the ultimate fact in the case.\[66\] Nonexpert witnesses having an intimate acquaintance with the person under investigation may give their opinion as to his sanity,\[67\] or his handwriting,\[68\] though in most states they must give with their opinion on sanity the facts on which it is based.\[69\] The jury, being informed as to the witness' opportunities to know all the circumstances and of the reasons upon

App. D. C. 169: Shinclair v. District of Co-

lemma of having been hard driven. Ken-

lemma, 20 App. D. C. 336.

62. Sanity of one accused of murder. Parrish v. State, 139 Ala. 16, 36 So. 1012; Kroehl

74 P. 983. Real estate agent cannot testify

v. State, 139 Ala. 1, 36 So. 1025. A person

to the possibility of preventing smoke.

not an expert may describe deceased's

brandley v. District of Columbia, 20 App. D.

wounds and body, there being nothing that

any intelligent person could not relate from

no dynamite or other explosive substance

examination and observation. Wells v. Territory \[Okl.\] 78 P. 124. Whether defendant

State \[Lxa.\] 37 So. 676.

was drunk. Pace v. State \[Tex. Cr. App.\] 65. Regularly licensed physician who has

79 S. W. 531. Appearance and actions of

tested insanity and examined defendant

masy testify as to his sanity. Porter v. State

\[Tex. Cr. App.\] 79 S. W. 81. A numerical

witness may state how deceased's leg looked

just before he died. Pitts v. State \[Ala.\] 37 So. 101. Nonexperts, not intimate with

defendant, may give the result of their obsevations at the various times they came

in contact with him as to his appearance in

respect to being rational or irrational. People v. Manoogian, 141 Cal. 592, 75 P. 177.

Witness may state that certain marks were

"mossy stains." People v. Nunley, 142 Cal.

105, 76 P. 676. Resemblance of tracks. Al-

ford v. State \[Fla.\] 36 So. 436. That person seen near the scene was defendant. Id.

Whether several sunbanks seen and heard

by witness could have been fired by one

person. Kroehl v. State, 139 Ala. 1, 36 So. 1012. A non-

1025. Intoxicating quality of beverage sold

by defendant. Murry v. State \[Tex. Cr. App.\] 79 S. W. 568.

63. State v. Walke \[Kan.\] 76 P. 408.

Whether person suffering from high fever

in the afternoon could walk 12 miles and

kll a man and return and show no fever

the next morning is a matter for expert

testimony. Dixon v. State, 139 Ala. 104, 36 So. 784. Whether fracture of head could be

produced by blow of naked hst. Clemons

v. State \[Fla.\] 37 So. 647.

64. Testimony of a witness that he was

familiar with gun-shot wounds qualified him

to state that a wound was a gun-shot

wound. Patton v. State \[Tex. Cr. App.\] 80

S. W. 86. A chemist and toxicologist is com-

petent to testify from analysis that dece-

dent died of poison, though not a drugist,

or pathological, and there is a claim that

death was due to pneumonia. Scott v. State

(Ala.) 37 So. 357. A qualified medical

pert may testify that a fracture of the skull

of deceased was produced by a blunt instrument other than a man's fist, though he

does not show that he has treated fractures

of the skull. Bowers v. State \[Vls.\] 99 N.

W. 447. One qualified by long experience

in handling cattle may testify that cattle

found in defendant's possession had the ap-

pearance of having been hard driven. Ken-

homb v. State \[Tex. Cr. App.\] 82 S. W. 518.

62. Sanity of one accused of murder. Parrish v. State, 139 Ala. 16, 36 So. 1012; Kroehl

74 P. 983. Real estate agent cannot testify

to the possibility of preventing smoke.

not an expert may describe deceased's

Bradley v. District of Columbia, 20 App. D.

wounds and body, there being nothing that

any intelligent person could not relate from

no dynamite or other explosive substance

examination and observation. Wells v. Territory \[Okl.\] 78 P. 124. Whether defendant

was in his house when he left it. Davis v.

State \[Ala.\] 37 So. 676.

was drunk. Pace v. State \[Tex. Cr. App.

38 INDICITMENT AND PROSECTION SS 9. 4 Cur. Law. which he rests his statements as to the ultimate general fact of sanity or insanity, are able to test the accuracy. or soundness of the opinion expressed, and thus by using the ordinary means for the ascertainment of the truth reach the ends of substantial justice.70 Witnesses, whether expert or not, cannot state their opinion as to physical facts of which ordinary men can judge, one as well as another.71 In some states, only those papers can be used for a comparison of hands which are in the case for some other relevant purpose;72 but in others, any genuine specimen73 with enlarged photographs thereof, are admissible for comparison by experts,74 and writings properly in the case may be compared by the jury, without recourse to expert testimony.78 Books of science are not admissible to prove such matters,79 and previous knowledge of defendant is not necessary to an expert.77 An expert on handwriting not being allowed to give his reasons, it is to be presumed that he would have been able to state his reasons, but not that they would have been convincing.78

\_Best and secondary evidence.--Parol evidence to vary writing.70--\_The rule as to best and secondary evidence applies to criminal cases.80

70. Bothwell v. State \[Neb.\] 98 N. W. 669, citing many cases. If the facts are such \[S. E. 677.\] that no rational mind would draw the conclusion of the witness therefrom the conclusion may be stricken. Watta v. State \[Md.\] 67 A. 542. In New York, lay wit. 520.

01. See 2 Curr. L. 341.

01. Whether stick produced was a deadly weapon. Moran v. State \[Ga.\] 48 S. E. 324.

01. Partish v. State, 119 Ga. 433, 46

01. Partish v. State, 129 Ala. 16, 36 So.

01.

clusion may be stricken. Watta v. State \[Md.\] 67 A. 542. In New York, lay wit. 520.

72. See 2 Curr. L. 341.

01.

01. Canvert cannot give his opinion as to whether accused was capable of the contents of the writing.

01. If Judge right from wrong, that being a question for the jury. State v. Brown, 181

01. But the only exception is that 4 Cur. Law. INDICMENT AND PROSECTION SS 9. 39

_Documentary evidence,\[81\]_ including books of account,\[82\] public records,\[83\] and records of judicial proceedings,\[84\] if accompanied by proper authentication,\[85\] is admissible under the same rules applied in civil cases. Statutes providing for the use of depositions are frequent.\[86\] A written statement by a third person that he committed the crime not authenticated as a deposition cannot be received.\[87\] A letter is not to be rejected as evidence merely because it has no date,\[88\] and courts consider the competency of evidence and not the method by which it was obtained, and the fact that papers pertinent to the issue were illegally taken from the possession of the party is no ground of objection to them.\[89\] The statutes of another state may be proved by showing a compilation which by a statute published therein is made presumptive evidence of the statutes of that state.\[80\] Where a portion of a document is introduced by one party, the other is entitled to the introduction of all the remainder tending in any way to explain or qualify the portion introduced and no more.\[91\]

_Accomplice testimony\[82\]_ is competent when sufficiently corroborated to connect defendant with the commission of the crime,\[82\] and may be introduced without first obtaining consent;\[84\] but defendant should be allowed to probe an accomplice as to his expectation of favor from the prosecution.\[85\] One who compounds a felony is not an accessory after the fact so as to disqualify him as a witness.\[86\]

prosecutor's books. Prosecutor can use book only to refresh memory. Laudermill: v. State \[Tex. Cr. App.\] SS S. W. 1107.

The proper manner of proving a prior conclusion is by the record. State v. Howard \[Mon.\] 77 P. 50. Though the record might be better evidence, a witness may be com-pelled to answer on cross-examination whether he has been convicted of another crime. State v. Knowves, 98 Md. 429, 57 Af. 585. Lang v. U. S. (C. C. A. 132 N. F. 201. Contra, McKevitt v. People, 208 Ill. 460, 70 N. E. 683.

Before secondary evidence of papers may be given, their absence must be accounted for. Kirkland v. State \[Ala.\] 37 S. 352. Existence of letters held sufficiently shown, and absence accounted for. State v. Leasin \[Or.\] 78 P. 288. Letters written by defendant and destroyed by their recipient at his request may be proved by parol. Gould v. State \[Neb.\] 98 N. W. 541. The mere fact that the production of original letters could not be compelled does not avoid the necessity of effort to secure them before using press copies. State v. Lentra \[Mo.\] 83 S. W. 970.

Parol evidence is admissble in a perjury case to show the testimony given, though it was taken down by a stenographer (State v. Woolridge \[Or.\] 78 P. 384), and the Justice before whom the oath was taken may show his authority by oral evidence of lost documents relating to his title to the office (State v. Horine \[Kan.\] 78 P. 411).

S1. See 2 Cur. L. 341.

S2. State v. Stephenson \[Kan.\] 76 P. 905.

S3. Record proof of marriage fn bigamy cases does not violate the constitutional right of confrontation of witnesses. Socket v. People \[III.\] 72 N. E. 282. No notice of Intention is necessary to the introduction of the tax records to show ownership of property. Frazier v. State \[Tex, Cr. App.\] SS S. W. 552.

S4. Judgment of police Judge, regular on its face, is admissble to show prior con-pelled to the contrary.

S5. Record of the defendant's marriage in the state v. House \[Nob.\] 78 P. 411.

S6. Dolligence in searching for witness held sufficient \[Pen. Code, $ 686, subd.\].

People v. Lewandowski, 143 Cal. 574, 71 P.

467.

S7. Mays v. State \[Nob.\] 101 N. W. 979.

S8. State v. Allen \[La.\] 37 S6. 614.

S9. Adams v. New York, 192 U. S. 685,

48 Law. Ed. 575: People v. Adams, 176 N.

Y. 351, 68 N. E. 683.

S0. Beard v. State \[Tex. Cr. App.\] 83 S. W. 824.

W. 83.

**INDICEMENT AND PROSCUTION SS 9.** 4 Cur. Law.

\_Demonstrative evidence and experiments."--\_It is within the discretion of the trial court to admit evidence of experiments to illustrate transactions that have been testified to," but the prosecuting attorney should not perform experiments himself before the jury in the absence of defendant," and the results of experiments not made in the presence of the court nor under its direction need not be admitted.1 The state's counsel while examining an eye witness may place persons in position before the jury to illustrate the relation of the parties to each other during the difficulty that ended in the homicide,2 and in seduction, it is not error to permit prosecutri's child to be brought before the jury and referred to." Instrumentalities claimed to have been used in the commission of the crime are admissible4 when properly identified,s and deceased's clothes are admissible,6 but not unless they illustrate or make pertinent some phase of the oral testimony.7 Enlarged photographs of genuine specimens of handwriting are admissible to facilitate comparison by experts.8 On the issue as to the age of defendant, witnesses may state what it appears to be from observation, but the jury cannot fix his age by merely looking at him.9

Footnote\* 4Cur. Law. INDICMENT AND PROSECTION SS 9. and is properly authenticated,16 and defendant's testimony on a former trial may be admitted where he refuses to testify on the subsequent trial.17 But a mere change in the interest of the witness will not authorize the showing by himself as a witness what his testimony was before,18 and the fact that prosecutri in rape is not constant in her accusation will not authorize the introduction of her testimony below.19 On a separate trial for lareeny, a co-defendant's testimony in the examining court cannot be used against defendant,20 but testimony at a preliminary examination of several is not to be rejected on the separate trial of one of them because part of it is the cross-examination of counsel for a co-defendant.21 The constitutional right of confrontation is provided by confrontation at the previous hearing.22

_Quantity required and probative effect:23_--The proof of guilt must be beyond all reasonable doubt,24 as to every element of the offense,25 including the degree thereof,26 the venue,27 and that the crime was committed within the period of limitations.28 A reasonable doubt, however, that will authorize acquittal must be actual and substantial,29 and must be raised by the evidence in the case and not on the argument of counsel,29 and it is not required that each fact which may aid the jury in reaching a conclusion of guilt be clearly proved; it is sufficient if on the whole evidence the jury are able to pronounce that guilt is proved to a moral certainty, or beyond a reasonable doubt,21 and the exclusion of all uncertainty is not necessary,22 but a probability of innocence is the equivalent of a

it need not be read to the jury. MITchell 904: Smith v. State \[Ga.\] 48 S. E. 904: Lengthand transcript of stenographer's v. State \[Ga.\] 48 S. E. 905: Carroll v. State minutes held sufficiently authenticated. People v. Buckley, 143 Cal. 376, 77 P. 189: City alone is not sufficient. Wooten v. State, 119 G. 746, 47 S. E. 193: Murphy v. State timony was taken through interpreter does not affect its admissibility, People v. Le-readowsk143 Cal. 574, 77 P. 467.

17. Is not unconstitutionally required to prosecutor lived in a certain county and give evidence against himself nor prejudice him for having failed to testify. Bess v. Timpton v. State, 119 G. 304, 46 S. E. 436. Com. \[Ky.\] 82 S. W. 576.

01. State v. Calliahan \[S. D.\] 99 N. W. 1059. People v. Miner \[Mich.\] 101 N. W. 536. People v. Hutchings \[Mich.\] 100 N. W. 753.

01. People v. Mortan \[Cal.\] 17 P. 777.

01. State v. Nelson \[Kan.\] 75 P. 505; State v. Harmon \[Kan.\] 78 P. 806.

01. See 2 Curr. L. 843.

01. State v. Carr \[Del.\] 67 A. 370; State v. Emory \[Del.\] 68 A. 1036; State v. Lax \[N. J. Law\] 69 A. 18; United States v. Breese, 131 F. 915. "Fully satisfying" to jury is not enough. Jones v. State \[Miss.\] 36 So. 248. The jury must acquittal unless so convinced. State v. Brinte \[Del.\] 68 A. 258. State v. Eyrinc \[Del.\] 68 A. 258; State v. Carr \[Del.\] 67 A. 370.

01. A reasonable doubt of the degree acquitts as to the degree about which it is entertained. Wells v. Territory \[Okl.\] 78 P. 124. A reasonable doubt as to the existence of an element of a higher degree of the offense calls for a verdict of the lower degree, provided there exists no reasonable doubt of the existence of every element necessary to constitute the latter offense. The defendant need not "satisfy" the jury that the lower degree only was committed. Galloway v. State \[Fla.\] 36 So. 168.

01. Simpson v. Lumpkin \[Ga.\] 48 S. E. 904: Smith v. State \[Ga.\] 48 S. E. 912; Heard v. State \[Ga.\] 48 S. E. 905: Carroll v. State \[Ga.\] 48 S. E. 905: The name of the town or \[Geo.\] 48 S. E. 909. The name of the town or \[Geo.\] 48 S. E. 909. The name of the town or \[Geo.\] 48 S. E. 909. Venue in murder case held sufficiently shown. Waller v. People, 209 Ill. 284, 76 N. E. 681. Proof that the prosecutor lived in a certain county and was assuatted at his residence is sufficient. Tilpton v. State, 119 G. 304, 46 S. E. 436. And where the only rational conclusion from the evidence is that the offense was committed in the county alleged in the indelment, it is sufficient, though no witness expressly states it was there committed. Weinberg, V. People, 208 Ill. 15, 69 N. E. 936.

01. Field, sufficiently shown: "Last Novelner:

## Chapter 4 Implementation and Prosecution & 9

4.1.1

reasonable doubt and requires an acquittal." Where circumstantial evidence is relied upon, the facts proved beyond a reasonable doubt must be such as to exclude every reasonable hypothesis inconsistent with guilt." but the converse is not true, and where defendant relies on circumstantial evidence, it is error to charge that the proved facts must not only be consistent with innocence but inconsistent with guilt."

An extrajudicial confession must be corroborated by proof aliquude corpus deliciti in order to support a conviction," but full proof is not required," and it may be proved by circumstantial evidence." Though a confession must be considered in entirety, the jury need not believe such portions thereof as seem unreasonable."

Though the testimony of an accomplice is viewed with suspicion, it may be sufficient to convict, in the absence of a contrary statute," though statutes requiring corroboration are usual." Statements of an accomplice made out of court cannot corroborate."

prove its case by positive evidence is prop-

88 N. Y. S. 40. Corroboration In robbery erfused. Dodd v. State \[Tex. Cr. App.\]

held sufficient. People v. Sullivan \[Cal.\] 77 SZ. W. 510.

P. 1000. Corroboration bold insufficient.

83. Gainey v. State \[Ala.\] 37 So. 355.

M. Lillie v. State \[Neb.\] 100 W. W. 316:

83 S. W. 387, 390: More v. State \[Tex. Cr. Commowealth v. Kokovic \[Pa.\] 58 A. 857;

App.\] 83 S. W. 1117, Burglary, Benson v.

State v. Britte \[Del.\] 58 A. 258; Spraggins

v. State \[Jia.\] 37 So. 233; State v. Coleman

\[S. D.\] 98 N. W. 175; State v. Levy \[Idah\]

75 P. 237; Jones v. State \[Ala.\] 37 So. 390:

Fowards v. Territory \[Ariz.\] 76 P. 458; Slices v. State \[Ga.\] 48 S. E. 153.

v. State \[Ga.\] 48 S. E. 153.

35. Sikes v. State \[Ga.\] 48 S. E. 153.

01. People v. Burness, 178 N. Y. 429, 70 N. E. 966; Curran v. State \[Wyo.\] 76 P. 577:

Knapp v. State \[A Ohio C. C. (N.) 184, 25 Ohio Cric. R. 671, rvd. 71 N. E. 705. Corroboration held sufficient. Holland v. Com. \[Ky.\]

82 S. W. 596; Mitchell v. State \[Fla.\] 33 So. 1009; Green v. Com. \[Ky.\] 83 S. W. 628.

Knorn. State v. Rogoway \[Or.\] 78 P. 987.

But the confession may be considered with the other evidence in determining whether the commission of the crime has been established. Griffiths v. State \[Tac. Cr. App.\] 83 S. W. 390:

563; State v. Knowles \[Mo.\] 83 S. W. 1083:

Age of defendant in statutory rape is a necessary element of the corpus deliciti. Vistrand v. People \[III.\] 72 N. Z. 748. Confessions alone are not sufficient to convict one of being accessory before the fact to suicide. Commonwealth v. Hicks \[Ky.\] 82 S. W. 266.

37. State v. Knowles \[Mo.\] 83 S. W. 1083:

01. Curran v. State \[Wyo.\] 76 P. 677.

Arson held sufficiently shown. Davis v. State \[Ala.\] 37 So. 676. Murder. Green v. Com. \[Ky.\] 83 S. W. 638.

39. Brewer v. State \[Ark.\] 78 S. W. 773.

Where a written confession is introduced. the whole of it must be taken together, but the jury may credit that part which in-

priminates and reject that which exculpates or vice versa. State v. Britte \[Del.\] 58 A.

258.

001. State v. Lyons \[N. J. Err. & App.\] 58 A. 398: State v. Simon \[N. J. Law\] 58 A. 107.

41.1 Corroboration held sufficient under Code Cr. Proc. & 399. Receiving stolen property. People v. Ammon, 92 App. Div. 205.

87 N. Y. S. 358. Selling counterfeit trade-marks. People v. Strauss, 94 App. Div. 663,

**4** Cur. Law. **INDICITMENT AND PROSECTION SS 10A.**

**A** conspiracy to commit a crime may be shown by circumstances without direct proof of an agreement,\*\*${}^{ t\[48\]}$ **and intent or knowledge may, and generally must, be proved by circumstances.**${}^{ t\[44\]}$ **Expert testimony is subject to the same tests and is to be weighed and judged, like any other.**${}^{ t\[45\]}$ **Testimony of an eye witness is sufficient proof of marriage.**${}^{ t\[46\]}$ **The absence of a motive may be considered, but where the commission of the crime by defendant is clearly proved, the fact that his motive is not shown is immaterial,**${}^{ t\[47\]}$ **and that defendant when charged with the crime refused to flee but surrendered himself to the proper authorities cannot be considered as showing his innocence.**${}^{ t\[48\]}$ **The prisoner's statement in Georgia not being under oath is not evidence and is therefore insufficient proof of attack by deceased to authorize the admission of uncommunicated threats.**${}^{ t\[49\]}$

**Defendant's good character must be considered,**${}^{ t\[56\]}$ **and good character alone may give rise to a reasonable doubt,**${}^{ t\[51\]}$ **though in a plain case of guilt, good character cannot avail.**${}^{ t\[52\]}$

**Alibi involves the impossibility of the prisoner's presence at the scene of the offense at the time it was committed,**${}^{ t\[53\]}$ **but evidence thereof raising a reasonable doubt of guilt is sufficient to demand an acquittal.**${}^{ t\[54\]}$

**SS 10.** _Trial. A. Conduct of trial in general._${}^{ t\[58\]}$**-Procedure in the Federal courts where not otherwise provided for by act of congress follows that of the state court at the period of its admission to the Union, unaffected by subsequent state legislation,**${}^{ t\[56\]}$ **and the district court of Oklahoma while sitting as a district or circuit court of the United States is governed by the procedure of the territory, except where in conflict with the statutes of the United States.**${}^{ t\[57\]}$

_Severance_ **is discretionary,**${}^{ t\[58\]}$ **but must be asked before trial,**${}^{ t\[59\]}$ **and the court that witness could not have participated in the crime, and the defendants' evidence is the crime was committed either before or nothing in the case to warrant a charge on** **after. Mays v. State \[Neb.\] 101 N. W. 979.**

**But defendant by pleading it makes no ad-ness. Neims v. Com. \[Ky.\] 82 N. W. 260.**

**42.** **Thompson v. State \[Tex. Cr. App.\] 78 N. W. 691.**

**43.** **People v. Lawrence, 143 Cal. 148,** 76\*\*

**P. 893:** **People v. Moran \[Cal.\] 77 P. 777; Owens v. State \[Ga.\] 88 N. E. 21.** **Mere business partnership with one who defrauds the revenue will not justify conviction of the partner as a consplractor, though the defendants is for the benefit of the firm. United States v. Cohn, 128 F. 615.**

**44.** **Knowledge that received goods were stolen. Delahordo v. People \[Ill.\] 72 N. E. 732.**

**45.** **State v. Kelly \[Gonn.\] 88 A. 705.**

**46.** **Adultery. State v. Eggleston \[Or.\] 77 P. 738.**

**47.** **Schmidt v. U. S. \[C. C. A.\] 138 F. 257.**

**48.** **Walker v. State, 139 Ala. 66, 35 So.**

**1011.**

**49.** **Nix v. State, 120 Ga. 162, 47 B. E. 516.**

**50.** **State v. Carr \[Del.\] 67 A. 370;** **United States v. Breese, 131 F. 915; State v. Steintz, 33 V. Wash, 444, 7 P. 688.**

**51.** **Wevils v. Territory \[Ookl.\] 78 P. 124.**

**People v. Childs, 90 App. Dlv. 58, 85 N. Y. S. 627.** **And it is error to refuse to so charge in a case of circumstantial evidence,**

**People v. Bonler \[N. Y.\] 72 N. E. 226.**

**52.** **Henderson v. State \[Ga.\] 48 S. E. 167.**

\*\*State v. Steintz, 33 Vash. 44, 74 P. 888; State v. King, 122 Iowa,need not of its own motion separate a consolidated trial when separate defenses are made.\[60\] On proper application in Texas, severance should be granted, and one jointly indicted for encouraging the crime tried first.\[61\] but a severance which will operate as a continuance must be denied.\[62\] Misedemeanants may be tried together.\[63\]

\_Appointment of counsel.\[64\]--Parties may engage private counsel to assist in the prosecution in Nebraska\[65\] and Illinois,\[66\] though the prosecuting attorney cannot be supplanted by snch counsel. In Texas, counsel are required to be appointed for defendant only in capital cases,\[67\] it being discretionary in other cases.\[68\]

_The witnesses_ may properly be sworn in a body,\[69\] and names may be endorsed after filing the information, if the court is satisfied they were not known to the prosecuting attorney at the time of filing.\[70\] And the statutory requirement that the names of witnesses testifying before the grand jury be endorsed on the indictment does not affect the right of the state to swear witnesses not on its subpoena.\[71\] After repeal of a state statute requiring indorsement of names, a defendant in a Federal court of that state cannot rely on the rule, though the statute was adopted as a rule of the court prior to its repeal.\[72\] Witnesses other than those whose names are endorsed may be sworn in the discretion of the court,\[73\] but in Iowa, if a witness is to be sworn who was not examined by the grand jury, the defendant must be given notice and informed of the substance of his testimony.\[74\]

The state need not call all the eye witnesses.\[75\] The court may question a witness,\[76\] or explain a question,\[77\] and may properly limit the number of witnesses that shall be subpoenaed for defendant at the government's expense.\[78\]

The court in its discretion may exclude the witnesses from the court room during the trial,\[79\] and may except a witness from the operation of the rule,\[80\] and

60. Quinn v. People \[Colo.\] 75 P. 396.

01. Pollius v. State \[Tex. Cr. App.\] 78 S.

01. Evans v. State \[Tex. Cr. App.\] 80 S.

01. O'Hara v. U. S. \[C. A.\] 129 F. 651.

01. Territory V. Dooley \[Ariz.\] 78 T. 138;

01. Coelman v. State \[Ind.\] 78 N. E. 668.

01. People v. Strauss, 94 App. Div, 453.

81 N. Y. S. 40.

64. See 2 Curr. L. 345.

01. Blair v. State \[Neb.\] 101 N. W. 17.

01. Hayner v. People \[Ill.\] 72 N. E. 792.

01. Lopez v. State \[Tex. Cr. App.\] 80 S.

01. Mass v. State \[Tex. Cr. App.\] 81 S.

01. State v. Create \[Idaho\] 76 P. 1013;

01. Walker v. State, 139 Ala. 56, 35 So. 1011.

01. State v. Crea \[Idaho\] 76 P. 1013; State v. Yan Waters \[Wash.\] 78 F. 897. On trial.

Velty v. U. S. \[Ock\]. 76 P. 121; Coehran v. U. S. \[Ock\]. 76 P. 672.

71. Underwood v. Com, \[Ky.\] 84 S. W. 110.

01. Ballet v. U. S. \[C. C. A.\] 129 F. 689;

01. Hauser v. People, 210 Ill. 263, 71 N. E. 416.

01. Notice held sufficient \[Code, $ 5373\].

01. Note that the court is not a court.\[75\]

01. State v. Webb \[Iowa\] 96 N. W. 714. Notice

01. Pollius v. State \[Tex. Cr. App.\] 81 S.

01. State v. Steen \[Iowa\] 96 N. W. 714. Notice

01. O'Hara v. U. S. \[C. A.\] 129 F. 651.

01. Territory V. Dooley \[Ariz.\] 78 T. 138;

01. State \[Ind.\] 72 N. E. 668.

01. State v. Crea \[Idaho\] 76 P. 1013; State v. Yan Waters \[Wash.\] 78 F. 897. On trial.

01. Velty v. U. S. \[Ock\]. 76 P. 121; Coehran v. U. S. \[Ock\]. 76 P. 672.

01. Underwood v. Com, \[Ky.\] 84 S. W. 110.

01. Ballet v. U. S. \[C. C. A.\] 129 F. 689;

01. Hauser v. People, 210 Ill. 263, 71 N. E. 416.

01. Notice held sufficient \[Code, $ 5373\].

01. Note that the court is permitting counsel to talk to the witnesses while together after the rule has been invoked. but before it is granted is not error.\[81\] That certain witnesses were not excluded under the rule is not error where none but they testified on the subject of their testimony.\[82\]

_Defendant must be present\[ss\]_ in court during the whole of a trial for felony,\[84\] though not when the minutes of the court are corrected so as to conform to the truth,\[ss\] nor when return of the venires is made by the sheriff and the veniremen are called to see whether all are present,\[ss\] nor is it necessary that he be present at a view,\[ss\] nor when his motion for a new trial is heard.\[ss\] In South Dakota, his presence is required only at such times as the statute prescribes.\[ss\] Private examination of a juror by the court in appellant's absence with appellant's consent and at the request of his counsel is not fatal.\[ss\] It being shown that defendant was present on a certain day, his continued presence on that day will be presumed in the absence of a showing on the record to the contrary.\[81\] The right to be present at rendition of the verdict is a privilege which may be waived by defendant or his counsel,\[82\] and a defendant voluntarily absent when the jury returned to the court room for further instructions can take no advantage thereof.\[ss\] Absence when the verdict is returned and the jury discharged is not fatal in misdemeanor cases.\[84\]

_The judge must be present and in such a situation that he can see and hear all that transpires so as to protect the legal rights of the defendant,\[ss\] though his temporary absence will not be ground for reversal where no prejudice is shown to have resulted therefrom.\[ss\] The judge may be a witness.\[ss\]_

The prosecutor may be permitted to remain \[91. Gallagher v. People, 211 III, 158, 71 but the court should require him to be examined first. Smartt v. State \[Tenn.\] 80 S. W. 586. Error in allowing witness to testify after having been allowed in court room after promulation of rule will not reverse if not prejudicial. Id.

81. Hatchell v. State \[Tex. Cr. App.\] 84 S. W. 234.

01. Underwood v. Com. \[Ky.\] 84 S. W. 310.

01. See 2 Curr. L. 845.

01. When witness retastes his testimony after jury has once retired. Burton v. State \[Tex. Cr. App.\] 81 S. W. 742. At rendition of verdict. Commonwealth v. Gabor \[Pa.\] 58 A. 278. Califing jury in his absence held cured by recalling after his return. McNish v. State \[Fla.\] 36 So. 175. Error for judge, prosecuting attorney and defendant's counsel to go to jury room and further instruct jury without giving defendant opportunity to go. Stroope v. State \[Ark.\] 80 S. W. 749. The indicment and written instructions or other writings proper to be given to the jury should be delivered to them in presence of the accused and his counsel that objection if any may be made at the time. Bowles v. Com. \[Va.\] 48 S. E. 527.

01. State v. Thomas, 111 La. 804, 35 So. 914.

01. The case is not then "begun." Thomas v. State \[Fla.\] 36 So. 161.

01. Defendant asking view cannot raise constitutionality of statute providing one without his presence. Elias v. Territory \[Ark.\] 76 P. 605.

01. Alexis v. U. S. \[C. C. A.\] 129 F. 60.

01. State v. Swenson \[S. D.\] 99 N. W. 111.

01. Howard v. Com., 25 Ky. L. R. 2213,

80 S. W. 211.

91. Gallagher v. People, 211 III, 158, 71 but the court should require him to be examined first. Smartt v. State \[Tenn.\] 80 S. W. 586. Error in allowing witness to testify after having been allowed in court room after promulation of rule will not reverse if not prejudicial. Id.

01. Hatchell v. State \[Tex. Cr. App.\] 84 S. W. 234.

01. Underwood v. Com. \[Ky.\] 84 S. W. 310.

01. See 2 Curr. L. 845.

01. When witness retastes his testimony after jury has once retired. Burton v. State \[Tex. Cr. App.\] 81 S. W. 742. At rendition of verdict. Commonwealth v. Gabor \[Pa.\] 58 A. 278. Califing jury in his absence held cured by recalling after his return. McNish v. State \[Fla.\] 36 So. 175. Error for judge, prosecuting attorney and defendant's counsel to go to jury room and further instruct jury without giving defendant opportunity to go. Stroope v. State \[Ark.\] 80 S. W. 749. The indicment and written instructions or other writings proper to be given to the jury should be delivered to them in presence of the accused and his counsel that objection if any may be made at the time. Bowles v. Com. \[Va.\] 48 S. E. 527.

01. State v. Thomas, 111 La. 804, 35 So. 914.

01. The case is not then "begun." Thomas v. State \[Fla.\] 3 Remarks of the court intimating his opinion on the facts may be prejudicial," but counsel for defendant may be admonished in presence of the jury to adhere to the rules of evidence."

Applause in the court room is not ground for reversal where rebuked by court.1

The jury may be excluded during argument of discretionary motions and questions of law;2 and that the jury or some of them saw defendants in irons is not prejudicial where they appeared unshackled at all times during the trial.' In Idaho, failure of the clerk to read the indictment and state the plea to the jury is fatal."

Postponement for matters arising during the progress of the trial is discretionary,5 and defendant is not prejudiced by his co-defendant withdrawing his plea of not guilty and pleading guilty after the state has rested, though it is in the jury's presence.6

A view is generally allowable within the court's discretion,7 and testimony may be taken while the judge, jury and defendant are taking a view.8

The order of taking proof is a matter peculiarly within the discretion of the trial court,9 and under the statute in Texas, testimony to a fact pertinent or ma-

98. State v. Glindemann, 84 Wash. 221, 75

applause before nor hostile appliance after verdict are not ground for reversal where memory seems remarkably clear," etc. McMreen v. Com. \[KY.\] 83 S. W. 638.

of court in sustaining objection to testimony, that he did not want the case to be again reversed, held not prejudicial as indicating his expectation of verdict. People v. Keeth, 141 Cal. 686, 75 P. 304. It is improper for the court in terminating the cross-examination of a witness to remark that "it is immaterial anyway." Fruqua v. Com. \[KY.\] 81

S. W. 923. In overwriting a question as to the effect of delirium tremens, it is error for the court to state ln the hearing of the jury that d. t. would not excuse defendant even if he could not distinguish between right and wrong. Parrish v. State, 139 Ala. 16, 36 So. 1012. Remarks of court in sustaining objections to argument of counsel on defendant's failure to testify held prejudicial as accentuating the error rather than pro- tecting defendant. State v. Snyder \[Mo.\] 82

S. W. 12. To say--"The witness has explained for an hour to the satisfaction of the court" is error. State v. Davis \[N. C.\] 49 S. E. 162. A statement by the court of the penalty provided for the crime is not error. People v. Canepj, 87 N. Y. S. 713. To state in the presence of the jury that certain test-mony is admissible because "an inference might be drawn" from it invades their province. Smart v. State \[Ten.\] 80 S. W. 586. For the court on ruling on an objection to argument to state that counsel has a right to present his theory as to what the evidence shows but that the jury will understand that it is argument merely is not error. State v. Tully \[Mon.\] 78 P. 760. A remark of the judge when the jury brought in a verdict of not guilty in another case that if he had not another important case to try he would discharge them is not prejudicial to one-subsequently tried by the same jury. Laathrift v. State \[Ala.\] 37 S. 887.

99. Stripling v. State \[Tex. Cr. App.\] 80 S. W. 376.

01. Bowles v. Com. \[Va.\] 48 S. E. 527; Sullivan, v. State \[Ga.\] 48 S. E. 945. Un hostile terial to the case is introduceable at any time before the close of the argument;10 but in Kentucky, it is error to allow evidence in chief to be introduced in rc-buttal.11

_The purpose of admitting testimony_ admissible only on a particular issue should be stated.12

(SS 10) \_B. Arguments and conduct of counsel.12--\_Counsel should not so conduct the people's case as to unfairly prejudice the defendant,14 but asking questions calling for incompetent answers does not of itself show prejudice,18 and where objection to an improper question is sustained, it is not error to refuse to reprimand counsel or charge with reference to it.16 The opening statement of counsel is not prejudicial, though he makes claims not substantiated by the testimony.17

Unwarranted speeches and statements that may tend to influence the minds of the jury outside and beyond the facts of the case should not be indulged,18 but counsel has the right to fully state his views as to what the evidence shows and as to the conclusions fairly to be drawn therefrom,19 and embellishment by figures

not error not to recall him. Scott v. State | People v. Davey \[N. Y.\] 72 N. E. 244. Ask-\[Tex. Cr. App.\] 81 S. W. 47. Refusal to allow |ing defendant about relations with other accused to make a supplementary statement | women. People v. Dowell \[Mich.\] 99 N. W. after the state on rebuttal had introduced |ing may be so prejudicial as to require cause for new trial. Johnson v. State \[Ga\] |new trial. State v. Greenland \[Iowa\] 100 N. 48 S. E. 199. It is not error to admit evidence in reply which should have been offer- |merly to degrade him and defendant, State ed in chief, but which was ruled out because |v. Rogers \[Mont.\] 77 P. 293. Question to defendant's witness held not prejudicial. People v. Metegger, 143 Cal. 447, 77 P. 155. Hu-\[E. 941. Admitting evidence of defendants having no tendency to develop bias. Ad-\[Rison v. State \[Fia.\] 87 So. 522. \] been produced is not prejudicial. Kroell v. State, 139 Ala. 1, 36 So. 1025. Conversation and subsequent conduct of counsel for state. between defendant and prosecector at the time of the assault may be introduced in rebuttal of the defense of insanity. State v. Jack \[Del. Gen. Sess.\] 58 A. 833. Allowing |cross-examination of defendant's witnesses as to matters properly provable only by the state may be prejudicial. People v. Padilla, 143 Cal. 158, 76 P. 889. 10. Perkins v. State \[Tex. Cr. App.\] 80 S. V. State \[Ark.\] 82 S. W. 490; Mason v. State \[Tex. Cr. App.\] 81 S. W. 690; Johnson v. State \[Tex. Cr. App.\] 83 S. W. 691; People v. Montgomery, 178 N. Y. 219, 68 N. E. 265; Howe v. State \[Tex. Cr. App.\] 18 S. W. 1064; Yijer v. State \[Tex. Cr. App.\] 79 S. W. 558. Argument that defendants principal witness |ing in jail for murdering a poor Gold-federate soldier is prejudicial, there being no evidence of it, though the shelf?s return on the subpoena, not introduced in evidence, shows that he was in jail on a charge of murder. Long v. State \[Ark.\] 81 S. W. 387. Referring to defendant's witness as |ing |"pal" held Improper, People v. Hutchings \[Mich.\] 100 N. W. 763. Reference to trial below held prejudicial. Wilyard v. State \[Ark.\] 78 S. W. 765. Statement that defendant could afford to pay a $50 fine and go on selling liquor as he would do. State v. Gillespie, 104 M. App. 400, 79 S. W. 477. Reference to the trial of another defendant charged with the same offense held fatal. Powers v. Com. \[IKS.\] 83 S. W. 146. 10. Owens v. State, 120 Ga. 290, 47 S. E. 545; Wilson v. State \[Fia.\] 36 So. 580; People v. Mead \[Cal.\] 78 P. 1047; Adams v.

- 48 INDITMENT AND PROSECUTION SS 10A. 4 Cur. Law. of speech20 and persuasive arguments drawn from independent sources of learning may be used,21 and physical objects in evidence may be exhibited and commented upon,22 the matter being one which in every case must be left to the discretion of the trial judge.23 Unnecessary repetition in argument of low coarse expressions while reprehensible is not reversible,24 and the same is true of repetitions of matters once ruled out by the court.25 The court may properly correct a slip of the tongue in counsel's argument.26 The opening statement of the district attorney is not evidence, and the people are not bound by it.27 The state may waive its opening argument.28 Counsel should not comment on \_defendant's failure to testify.29 and such comment will cause reversal, notwithstanding an instruction to disregard it;20

State \[Tex. Cr. App.\] 84 S. W. 231; People \[Tex. Cr. App.\] 83 S. W. 1117. "We cannot re people, 209 III. 215, 70 N. E. 749; People v., as good citizens turn defendant loose," etc., McGarry \[Hich.\] 99 N. W. 147; Walker v., held reprehensible but not reversible for Com., 25 Ky. L. R. 1729, 79 S. W. 191. Allowing prosecutor to argue at length that defendant wayild deceased held not error, 234. 20. Taylor v. State \[Ga.\] 49 S. E. 203. Remarks on the heinousness of the crime are not objectionable. State v. Thomas, 111 L., crimes may be related by way of argument. State v. Busse \[Iowa\] 100 N. W. 536; Powers App.\] 84 S. W. 234. Reference to prosecute?x 's demeanor in rape case held proper. State v. Clark \[Vt.\] 58 A. 796. Prosecuting attorney may state that he leaves it to the jury whether defendant's witness told the truth when testifying or when making a previous contradictory statement. Walker v. State, 139 Ala, 56, 35 So. 1011. Where defendant claims that another participant in the fight, not present at the trial, struck the fatal blow, argument by the prosececting attorney that the absent one if present would probably claim defendant did it is not unflair. State v. Fuller \[Iowa\] 100 N. W. 114. Defendant's jumping ball may be referred to. State v. Smith (S. D.) 100 N. W. 740. Peculiarty of handwriting may be referred to where Ixercency on trial involves forgery. People v. Hutchings \[Michel.\] 100 N. W. 753. Statement in prosecection of a physician for abortion that "defendant used the knowledge gained by his profession for the purpose of murder." Barrow v. State \[Ga.\] 48 S. E. 950. Where the defense is insamight, it is not error to overrule objection to counsel's argument asking why no complaint had been made by defendant's friends, etc., if the was Insane. Parrish v. State, 139 Ala. 16. 36 So. 1012. That defendant who testified was a Hair and a soundberd. Ball v. State \[Tex. Cr. App.\] 78 S. W. 608; Miller v. State \[Tex. Cr. App.\] 83 S. W. 393. "It is just such impotent and sassy negross as this that are causing trouble." Dodoon v. State \[Tex. Cr. App.\] 78 S. W. 514. That defendant, a negress, was "by her own confessional a low down black whore" is legitimate. Love v. State \[Tex. Cr. App.\] 78 S. W. 691. Allusion to number of empty bottles in defendant's back yard. Violation of liquor law. Murry v. State \[Tex. Cr. App.\] 79 S. W. 568. State- ment that "if the evidence be true, the defendant has been as low as the most Ieberd."

Thus defendant might have to be confused with the defendant's failure to testify. 29 and such comment will cause reversal, notwithstanding an instruction to disregard it;20

State \[Tex. Cr. App.\] 84 S. W. 231; People \[Tex. Cr. App.\] 83 S. W. 1117. "We cannot rebelge through the defendant loose," etc., heid reprehensible but not reversible for Com., 25 Ky. L. R. 1729, 79 S. W. 191. Allowing prosecutor to argue at length that defendant wayild deceased held not error, 234. 20. Taylor v. State \[Ga.\] 49 S. E. 203. Remarks on the heinousness of the crime are not objectionable. State v. Thomas, 111 L., crimes may be related by way of argument. State v. Busse \[Iowa\] 100 N. W. 536; Powers App.\] 84 S. W. 234. Reference to prosecute?x 's demeanor in rape case held proper. State v. Clark \[Vt.\] 58 A. 796. Prosecuting attorney may state that he leaves it to the jury yur whether defendant's witness told the truth when testifying or when making a previous contradictory statement. Walker v. State, 139 Ala, 56, 35 So. 1011. Where defendant claims that another participant in the fight, not present at the trial, struck the fatal blow, argument by the prosececting attorney that the absent one if present but legitimate argument on the failure of defendant, who has testified, to explain certain facts, is proper.\[11\]

_Argument by defendants' counsel\[12\]_ is properly stricken out where unsupported by the evidence,\[33\] but quotations from memory may be made and brief extracts read, of literary or historical matter, by way of illustrating argument, though nothing amounting to evidence can be first introduced in that way.\[34\] Defendant's attorney may waive his right to argue after the prosecutor has closed, and if he does so, the prosecutor should not be again allowed to argue on the pre-tense that he had inadvertently omitted something.\[35\]

(SS 10) _C. Questions of law and fact.\[36\]_--Contrary to the general rule,\[37\]\_ juries in Louisiana in criminal cases are the judges of both the law and the evidence.\[48\] They are the judges of the credibility of the witnesses,\[39\] and defendant's intent, the facts being shown,\[40\] identification of defendant,\[41\] and whether positive identification is met by proof of alibi are questions for the jury.\[42\] In-sanity of defendant incapacitating him to form a criminal intent is a question of fact,\[48\] but the doubt of sanity which will require the judge to submit the question to a jury when defendant is brought up for judgment is a doubt in the mind of the judge.\[44\]

Questions of law arising on the face of the indictment,\[48\] whether an act is special legislation,\[48\] whether or not the person killed was a deputy sheriff,\[47\] and whether witnesses, expert or nonexpert, are competent to give opinions as to defendant's sanity, are for the court.\[48\]

(SS 10) _D. Taking case from jury.\[49\]_--A peremptory direction to find a verdict of guilty is not allowable,\[50\] and in some states directions for acquittal are not allowed,\[51\]\_--but if the state fails or refuses to prosecute a cause removed to the Federal court because the accused acted under color of his office as a Federal

31. Jones v. State \[Tex. Cr. App.\] 83 S. W. 198; Balilet v. U. S. \[C. C. A.\] 129 F. 689. 32. See 2 Curr. L. 350. 33. General unreliability of dying declarations. Pitts v. State \[Ala.\] 37 So. 101. 34. Oplinons of experts. Quattlebaum v. State, 119 Ga, 433, 46 S. E. 677. 35. Cunningham v. People, 210 Ill. 410, 71 N. E. 388. See 2 Curr. L. 351. 37. Juries in the recorder's court of Detroit nor not the judges of both the law and the facts. People v. Gardner \[Mich.\] 100 N. W. 126. 38. State v. Cooper, 112 La. 281, 36 So. 350. 39. State v. Leasia \[Or.\] 78 F. 328; State v. Brinte \[Del.\] 85 A. 258; Rodgers v. State \[Tex. Cr. App.\] 82 S. W. 1041; Hauser v. People, 210 Ill. 253, 71 N. E. 416: Ector v. State \[Ga.\] 48 E. E. 151; State v. Ripley, 32 Wash. 185, 72 F. 1036; Peacock Distilling Co. v. Com., 25 Ky. L. R, 1778, 78 S. W. 893; State v. Johnson \[Wash.\] 78 P. 903. Weight of opinions of experts. Parrish v. State, 139 Ala. 16, 36 So. 1012. 40. State v. Play \[Vt.\] 88 A. 794; State v. Clark \[Tv.\] 88 A. 796. 41. State v. Hyatt, 179 Mo. 344, 78 S. W. 601. 42. Tipton v. State, 119 Ga. 304, 46 S. E. 436. State v. Howard \[Mont.\] 77 P. 50; State v. Keerl, 29 Mont. 508, 75 P. 362. 44. State v. Howard \[Mont.\] 77 P. 50. 44. Curr. Law--4. 45. State v. Woods, 112 La. 617, 36 So. 626. 46. State v. Hammond, 68 S. C. 219, 44 S. E. 797. 47. Hendrickson v. Com. \[Ky.\] 81 S. W. 266. 48. Farrish v. State, 139 Ala. 16, 36 So. 1012. 40. See 2 Curr. L. 351. 50. In Michigan, the jury may be told that it is their duty, under the law, to return a verdict of guilty, the facts being admitted or undisputed; but in case they decline to render such verdict, the court cannot enter it for them, and a refusal to poll them on their coming in with a verdict of guilty in such a case is prejudicial. People v. Remna \[Mich.\] 88 N. W. 397. Where there is a general plea of not guilty and a special plea of not guilty by reason of insanity, and the evidence is conclusive of officer, a jury should be impaneled and a verdict of not guilty directed." Where the state's evidence, if uncontradicted, would warrant a conviction, a motion to dismiss or direct an acquittal is properly denied," and instructions amounting to an affirmative charge for the accused are properly refused where the evidence supports a verdict of guilty." Where there is an absolute lack of evidence to sustain a verdict, the case should not be submitted to the jury," and defendant's motion for a discharge should be granted." Offering testimony in his own behalf after denial of his motion for judgment on the close of the case in chief is an abandonment by defendant of his motion."

(SS 10) \_E. Instructions. Necessity and duty of charging.--Requests."\_Instructions clearly defining all the issues in the case should be given." An instruction should not be given unless there is evidence on which to predicate it,"66 or the matter is in issue," nor should mere abstract principles of law be given," but defendant's theory of the case supported by the evidence must be given,"

G2. Virginia v. Felts, 133 F. 85.

S3. State v. Stockhammer, 34 Wash, 262.

A. 474; Owens v. State, 120 Ga, 205, 47. S. E.

76 P. 810. Dyning declarations. State v.

513; Nix v. State, 120 Ga. 164, 47 S. E. 516; Davis, 134 N. C. 638, 46 S. E. 722. Refusal

Wilson v. State \[Fla.\] 36 So. 580; Suggs v.

of a peremptory instruction is proper where State \[Tex. Cr. App.\] 79 S. W. 307; Taylor v.

there is any evidence of guilt. Stancliff v.

State \[Tex. Cr. App.\] 80 S. W. 378; Rooks v.

U. S. \[Ind. T.\] 82 S. W. 882. Where in an

State, 119 Ga. 431, 46 S. E. 631; Norman v.

action for violation of a municipal ordinance, U. S., 20 App. D. C. 494; State v. Hertzog \[VV.

there is evidence of the existence of the or-

V. 46 S. E. 782; Bateman v. State \[Fla.\] 37

dinance and defendant's violation of it, a

So. 576. Charge on circumstantial evidence

nonsult is improper. People v. Croot \[Colo.\] held properly refused. Mahon v. State \[Tex. App.\] 78 P. 310.

C. App.\] 78 S. W. 28; Usher v. State \[Tex.

54. Wilson v. State \[Fla.\] 36 So. 630. As

C. App.\] 81 B. W. 309, 712. Weight of ac-

to whether they are ever proper in criminal

complete testimony. People v. Balkwell, 143 cases, see McCray v. State \[Fla.\] 36 So. 630.

Cal. 259, 76 P. 1011. Frejudle from such a

55. State v. Gordon \[Utah\] 76 F. 882.

charge will necessitate reversal. Blair v.

56. Devoy v. State \[Vis.\] 99 N. W. 455; State v. Egbert \[Iowa\] 101 N. W. 191.

fessions held proper. Abrams v. State \[Ga.\]

67. Ullman v. District of Columbia, 21 48 S. E. 795. Instruction on conspiracy when

App. D. C. 241.

58. See 2 Curr. L. 351. It is proper for the

134 N. C. 719, 47 S. E. 1. Charge on irre-

Recorder of Detroit to instructur juries in

sponsibility held properly refused. State v.

cases tried before him. People v. Gardner

Berry, 179 Mo. 377, 78 S. W. 611; Berry v.

\[Mich.\] 100 N. W. 126.

State \[Tex. Cr. App.\] 80 S. W. 620. Au-

59. What constitutes a "safe" need not be

tadied in a prosecection for unlawful liquor

selling. State v. Green \[Kan.\] 77 P. 95. In-

fendant is prosecected for a straight sale.

declating effect of liquor in prosecection for

Bell v. State \[Tex. Cr. App.\] 78 S. W. 933.

allib held not In issue. Smith v. State \[Tex.

83 S. W. 711. In Kentucky, the trial court

is required without request to give the law,

the correct law and the whole law of the

case. Circumstantial evidence of nomlide

requires submission of every grade. Brown

v. Com., 25 Ky. L. R. 1896, 78 S. W. 1126; Green v. Com. \[Ky.\] 83 S. W. 638. All in-

cluded degrees of homelited must be given.

Demaree v. Com. \[Ky.\] 82 S. W. 83.1 Evidence in case of hogg theft held and generally it is error to fail to charge as to all the necessary elements of the offense,\[44\] and all offenses included in the indicitment,\[48\] and supported by the evidence.\[46\] Included offenses should not be presented where the evidence so excludes them that if the principal crime was not committed defendant is not guilty.\[47\] Where testimony is admissible only on a particular issue, but is persuasive as to other matters, it is error to fail to limit it.\[48\] Ambiguous\[49\] and misleading instructions should not be given.\[70\] The submission of defensive theories finding no support in the evidence is prejudicial.\[71\] Technical words should be defined.\[72\] Matters once covered by the charge need not be repeated.\[73\] Ordi-Gather v. State {Tex. Cr. App.} 81 S. W. 177; {v. U. S, \[C. C. A.\] 126 F. 897. Charge on con-Webb v. State {Tex. Cr. App.} 83 S. W. 394; structulve presence where the defense is alibibib People v. Dowell \[Mich.\] 89 N. W. 23; James 18 error. McDonald V. State {Tex. Cr. App.} v. State {Tex. Cr. App.} 78 S. W. 542.

fendants' own testimony is a sufficient basis 71. Arthur v. State {Tex. Cr. App.} 80 S. for submission of his theory. Casteel v. W. 1017; 72. "Deliberately." Mahon v. State {Tex.

question as to whether a witness was an ac-Cr. App.} 79 S. W. 28. "Corroborated." State

complice or a detective, the question should be submitted to the jury. Lightfoot v. State {Tex. Cr. App.} 78 S. W. 1076. Instability from

Appl. 83 S. W. 699. "Manslabuster" need not use of narctions is a separate defense from

noticeation from ardenit spirits. Otto v. State {Tex. Cr. App.} 80 S. W. 625.

46. Intent trophy. State v. Fordham

instructed to give the proper weight to the evidence, an objection that no definition of proper weight was given is hypercritical.

State v. Drukmann, 34 Wash. 267, 75 P. S14.

6. State v. Franklin {Kan.} 17 P. 588;

Venters v. State {Tex. Cr. App.} 83 S. W.

SS2. Where the evidence in a murder case is circumstantial, all degrees of nondiole must be given. Brown v. Com., 25 K. Y. L. R1896; 78 S. W. 1126; Green v. Com. {IX.} 83 S. W.

SS3; Demaree v. Com. {IX.} 83 S. W. 321. If circumstantial evidence is relied on

murder, and a theory excluding premedita- tion and deliberation may fairly be formulated from it, a charge on second degree is necessary. State v. Moore, 67 Kan. 620, 73 P. 805.

67. Rape under age of consent, issue being intercourse or not. Bryant v. State {Tex. Cr. App.} 79 S. W. 654.

Rape: No question as to complete sexual intercourse, issue being consent vel non-People v. Keith, 141 Gal. 78, 75 P. 804.

68. Mahon v. State {Tex. Cr. App.} 79 S. W. 28; Webb v. State {Tex. Cr. App.} 83 S. W. 83; Fletcher v. Com. {IX.} 83 S. W. 688;

Robbins v. State {Tex. Cr. App.} 83 S. W. 690; Alford v. Com. {Ky.} 80 S. W. 1108.

Confession of joint defendant admissible only in

as to him. Brown v. State {Ark.} 83 S. W. 933.

99. People v. Syvva, 148 Cal. 62, 76 P. 814;

McCormrick v. State {Ala.} 37 S. 377.

70. Hayner v. People {Ill.} 78 N. E. 192.

Requests held properly refused. Mitchell v.

State {Ala.} 37 So. 76; Pitts v. State {Ala.} 11.

77 So. 101; McClellan v. State {Ala.} 37 So. 281; Kirby v.

78. Yeeh v. State {Ala.} 37 So. 281; Kirby v.

State, 139 Ala. 87, 86 S. 711. Ignoring defendants' character as accomplies. People

v. Chin Yuen {Cal.} 77 P. 954. A requested

charge based on a part only of the evidence on an issue is properly refused. Ferguson

v. State {Ala.} 37 So. 448; Curran v. State {Yv.} 1017.

(IVyo.) 76 P. 87. Contradictory statements

out of court. Mima v. State {Ala.} 37 So. 354. A request, correct in itself but not

88.75 P.

narily, an incorrect request is sufficient to require a correct charge on a subject within the issues not already covered,\[74\] but an incorrect request need not be given as requested,\[75\] and where the proper matters in such a request are properly covered by the general charge, or are given after being corrected, there is no error.\[78\] The court may properly modify instructions requested before giving them,\[77\] but need not give a special request which requires qualification, limitation or explanation,\[78\] and where instructions are asked in the aggregate, or propositions are presented as one request, the whole may be refused if there be anything objectionable in any one of them.\[79\] The court may properly instruct the jury to disregard irrelevant testimony, though no objection to its introduction was made,\[80\] and the presence of incompetent testimony unobjected to does not require the submission of an instruction that such testimony shall be considered in arriving at a verdict,\[81\] and caution against considering confessions not admitted in evidence cannot be complained of where the court was actuated by fear that the jury may have heard of them.\[82\] A charge correct in itself cannot be attacked because it fails to present some other or further proposition,\[83\] on which a proper request was not presented,\[84\] and generally instructions more fully developing issues already pre-

State v. Guldor \[La.\] 37 So. 622; Suckow v. \[82\]. Green v. Com. \[Ky.\] 83 S. W. 638. State \[Wis.\] 99 N. W. 440; Johnson v. State \[Ga.\] 48 S. E. 949; \[Ga.\] 48 S. E. 199; State v. Burns \[Nev.\] 74 P. 88; McCy v. State \[Tex. Cr. App.\] 81 S. W. 46; Furlow v. State \[Ark.\] 81 S. W. 232. A requested instruction that neither of two defendants was responsible for what any-error. Webster v. State \[Fla.\] 36 So. 584.

body else did was included in a charge that the jury must consider the case of each seperately and there must be evidence of the result of the particular defendant. People v. Blanchard \[Mich.\] 98 N. W. 983. No error to refuse to again Institut furly that they may convict of murder in the first degree and Impose imprisonment for llfe, after jury has come in with verdict. State v. Hunter \[W. Va.\] 48 S. E. 83. Fair charge on circum-stantial evidence and necessity of excluding hypothesis of Innocence need not be supplied by charge on nocossibly of showing that no other committed the crime. Berry v. State \[Tex. Cr. App.\] 80 S. W. 630.

74. State v. Robertson, 178 Mo. 496, 77 S. W. 628. Not in misdemean cases, Murray v. State \[Tex. Cr. App.\] 79 S. W. 658.

01. Alexis v. U. S. \[C. C. A.\] 129 F. 60: Betts v. U. S. \[C. C. A.\] 132 F. 228; State v. Burns \[Nev.\] 74 P. 883. A request stating an erroneous rule and which counsel declines to modify or inform the court the purpose of may be refused as offered. Fredieating acquitatil on "any doubt" as to what occurred in room where deceased was killed. People v. Boggiano \[N. X.\] 72 N. E. 101.

01. Alexis v. U. S. \[C. C. A.\] 129 F. 60.

01. Town of Orrick v. Akers \[Mo. App.\] 83 N. W. 649. A request stating the hypothesis on which defendant claims an acquitatil may be modified by a reminder that it is for the jury to determine the facts. People v. Moran \[Cal.\] 77 F. 777. But in giving defendants' requests properly stating the law as applied to the facts, it is improper to add repeated modifications on the credibility of defendant as a witness. People v. Chadwick, 143 Cal. 116, 76 P. 884.

78, 79. State v. Guldor \[La.\] 37 So. 622.

80. Bradley v. State \[Ga.\] 48 S. E. 981.

01. Refusal of defendant to flee or resist arrest. Thomas v. State \[Fla.\] 36 So. 161.

01. \[Fea.\] 83 S. W. 638. State \[Fla.\] 83.

01. \[Fea.\] 84 S. E. 949; \[Fea.\] 48 S. E. 949; \[Fea.\] 48 S. E. 199; State v. Burns \[Nev.\] 74 S. W. 646. Vennie State v. Eggleston \[Or.\] 77 P. 738. Nature and value of circumstantial evidence. People v. Balkwell, 143 Cal.

01. \[Fea.\] 86 S. E. 197. Automobile testony. Id. But see State v. Parker, 134 N. C. 209, 46

01. \[Fea.\] 87 S. E. 611, where It is held that failure to limit evidence corroborative of prosecutrix in rape is error. Presumption of continua-ance of insanity. Quattlebaum v. State, 119

01. \[Fea.\] 88 S. E. 677. Reasonable doubt.

01. \[Fea 4 Cur. Law. INDICTMENT AND PROSECTION SS 10B. 53

sented in sufficient general terms if desired must be requested. \[88\] If defendant desires a form of verdict of acquittal, he must request it. \[89\] A theory of defense not raised by the evidence and presented solely by the statement of the accused need not be submitted unless an appropriately worded request is presented. \[90\] The authorities are in conflict as to the propriety of instructing, even on request, that no inference is to be drawn from accused's failure to testify, \[88\] and the court should be careful in charging as to defendant's failure to explain pertinent facts where he does testify. \[89\] A request stating the hypothesis on which defendant claims an acquittal must include all the elements necessary to predicate the verdict, \[90\] and in giving hypothetical instructions, the jury should be cautioned against assuming the existence or nonexistence of the facts stated. \[91\] The constituent elements of the offense may be grouped and the jury instructed that if all be proved beyond a reasonable doubt conviction should follow. \[92\] Where, at the close of the general charge, the jury are told that they must take the law from the court, a similar admonition should accompany special instructions subsequently given for defendant, \[93\] and a statement by the court in submitting instructions to which the accused is entitled, that "they are given because they present his theory of the case," is prejudicial as indicating that the jury are not bound to regard them as the law. \[94\] It is not improper for the judge to call attention to and correct in his charge a misstatement of the law by counsel in argument. \[95\] A charge which does not purport to declare any principle of law, but which is merely a statement of fact, can never be ground for a new trial, unless the judge himself certifies that the statement is incorrect. \[96\] A rule of court that requests be preferred before argument is proper and should be adhered to, but such rule will not justify the court in refusing a proper material instruction not elsewhere given. \[97\]

SS31; Loessim v. State \[Tex. Cr. App.\] SS 1 S. not being requested. State v. Adams \[S. C.\] V. 715. One indicted for a felony and convicted of a misdemeanary is entitled to a charge on ailb presented by the evidence, though not requested. Wilcher v. State \[Ga.\] 48 S. E. 903: \[Tex. Cr. App.\] SS 8 S. W. 384.

In Alabama, written requests must be given as requested or refused, so that a request may properly be refused for an unintentional electrical error. Request referring to defendant in murder as deceased. Thomas v. State, 139 A. Lian. 80, 36 S. W. 734.

Mere omission to instruct as to matters not imperatively demanded by the issues is not error in the absence of a request. State v. Duffy \[Iowa\] 100 N. W. 798; Territory v. Watson \[N. M.\] 78 P. 504; Alexis v. U. B. \[IC. C. A.\] 129 P. 60.

85. Adcock v. State \[Ark.\] 83 S. W. 318; Alexis v. U. S. \[C. C. A.\] 129 F. 60.

That the instructions are general in their nature so that the jury may have misunderstood them is not ground for reversal where counsel did not request further instructions. Self defense. People v. Rodawald \[N. Y.\] 70 N. E. 1: State v. Kellison \[V. Va.\] 47 S. E. 166. Charge on manisharfent in second degree not requested. State v. Konk, 91 Minn, 419, 88 N. W. 334. Failure to apply a rule of evidence to the testimony of a particular witness is not error in the absence of a request to do so. Williams v. State \[Ga.\] 48 S. E. 368. Failure to instruct as to the recommendation to mercy is not error, it

not cured by another correct one in conflict therewith,\[18\] and where instructions are irreconcilable upon a material issue, they are erroneous, regardless of which is right.\[14\] An instruction undertaking to cover all the elements of the offense and omitting one is fatally defective.\[15\] A charge admonishing against assessing punishment by lot should be prefaced by the clause "If you find defendant guilty;"\[16\] but the failure of the trial court to repeat in every clause of an instruction that the jury "must find from the evidence" is not reversible error.\[17\] An instruction designating defendant by the name and aliases used in the indictment to which he has pleaded is not error.\[18\]

\_Invading province of jury or charging on facts.\[19\]--\_Instructions must not invade the province of the jury,\[20\] or assume the existence of facts\[21\] not admitted or undisputed,\[22\] but admitted or conceded facts may be assumed.\[28\] In many states the court is forbidden to charge on the weight of the evidence\[24\] or intimate 70 N. E. 681. Charge on manslaughter ignor-\[40\]. It is error to tell the jury that if they believe the evidence they should convict \[S. C.\] 47 S. E. 676. Emission of words "willfully and corruptiv" in parity case. \[21\]. Arnold v. State \[Tex. Cr. App.\] 83 S. Quigg v. People, 211 Jill 17, 17 N. E. 886. Inadvertent use of phrase "preperdance of evidence of contrary statements. McKinney v. evidence." State v. Rivers \[Iowa\] 88 N. W. 785. Assembling self drense where defendant denies striking. State \[Minn.\] 101 N. W. 499. Charge on insantity. v. Lindsey 85, C.I 47 S. E. 859. Assuming that witnesses will be witness in future civil sent. Sullivan v. State \[Go.\] 48 S. E. 940. Definition of Intoxicating liquors. Murry v. N. Y. 881. An instruction that any "shift vote device" to evade the liquor law is unlaw-\[78\] that is not objectionable, though defendant the context is immaterial. Jackson v. State v. Green \[Kan.\] 77 P. 95. Instruction instruction will be presumed cured by others not in record. Mitchell v. State \[Ark.\] 83 S. W. 1050. An instruction erroneous for this "emission of some necessary element may be cured by another in which the hiatus is supplied. Monroe v. State \[Tex. Cr. App.\] 81 S. W. 726. General rules such as reasonable doubt, etc., need not be repeated with reference to each particular theory or paragraph of the charge. Delahoyde v. People \[Ill.\] 173 N. E. 722; Carter v. State \[Ga.\] 49 S. E. 280.

\*\*13. State v. Williams \[Wash.\] 78 P. 780; Harris v. People \[Colo.\] 75 P. 427; State v. Clark, 134 N. C. 688, 47 S. E. 86. Manslaughter and aggravated assault. Pose v. State \[Tex. Cr. App.\] 78 S. W. 689. Instruction putting burden on defendant. Scott v. State \[Tex. Cr. App.\] 82 S. W. 682; Washington v. State \[Tex. Cr. App.\] 82 S. W. 683. In support of an instruction assuming a fact, it will be presumed, in the absence of the evidence, that it stood admitted or undisputed. People v. Allen \[Cal.\] 77 P. 948.

**15. Embezzement**, consent of prosecutor omitted. State v. Lentz \[Mo.\] 83 B. W. 970.

**16. Hart v. State \[Tex. Cr. App.\] 82 S. W. 652.**

**17. Blashfield**, Instructions to Jurles, & 79.

**18. BleN v. State \[Ga.\] 48 S. E. 197.**

**18. Hauser v. People, 210 Jill 253, 71 N. E. 416.**

**19. See 2 Curr. L. 356.**

\*\*20. People v. Nunley, 142 Cal. 105. 75 P. 676; Lylea v. U. S. 20 App. D. C. 659. Charge on relative credibility of dying declarations and other evidence. Sims v. State, 139 Ala.

**74. 36 So. 138. Instruction on sufficiency of electromyology for acceptability held unobjectionable. State v. Smith \[Iowa\] 100 N. W. 499.**

**19. See 2 Curr. L. 356.**

\*\*20. People v. Nunley, 142 Cal. 105. 75 P. 676; Lylea v. U. S. 20 App. D. C. 659. Charge on relative credibility of dying declarations and other evidence. Sims v. State, 139 Ala.

**74. 36 So. 138. Instruction on sufficiency of electromyology for acceptability held unobjectionable.**

**17. 36 So. 138.**

**18. 44 Cur. Law.**

**18. 45 Cur. Law.**

**18. 46 Cur. Law.**

\*\*18 its opinion on the facts,\[25\] but by statute in Rhode Island, the trial judge is authorized, though not required to comment on the evidence,\[28\] and in that state there is no error in the court's disclosing his opinion.\[27\] It is not error in New Jersey for the court to call attention to the salient features of the evidence corroborative of an accomplice's testimony,\[28\] nor to state that no mitigating or extenuating circumstances are shown,\[29\] and where the disputed questions of fact are clearly left to the jury, the judge's comments and expressions of opinion are not assignable for error.\[30\] In Georgia, an instruction on the weight to be given defendant's statement should follow the statute.\[31\]

A charge applying the law to facts introduced by defendant cannot be complained of as a charge on the facts,\[32\] and the narration of the evidence in defendant's own language is not erroneous, though his story seems unreasonable or incredible.\[33\]

It is error to charge without qualification that positive evidence is stronger than negative,\[34\] but an instruction to carefully scan the evidence of alibi is proper,\[35\] and a statement of the grounds of admissibility of dying declarations is not a charge on the weight of the evidence,\[38\] though the jury should not be instructed that dying declarations are to be given the same weight and force as if the declarant had been a witness in court.\[37\]

Reference to the crime as "murder" is not error where the only issue is as to the identity of the perpetrator,\[38\] and there is no error in charging that the law is no respecter of persons and whether one of the parties is white and the other colored should have no weight with the jury.\[39\]

\_Form and propriety of particular charges.\[40\]-Holdings as to the form and sufficiency of instructions as to burden and degree of proof,\[41\] presumption of inno 4 Cur. Law. INDICMENT AND PROSECUTION SS 10E. 57

cence,\[42\] presumption of intent of natural and necessary consequences of act,\[43\] presumption arising from flight,\[44\] degree of crime,\[45\] included offenses,\[46\] intent,\[47\] responsibility of principals and accessories,\[48\] definitions of reasonable doubt,\[49\] instructions on the issue of insanity,\[50\] intoxication,\[51\] alibi,\[52\] and limitations,\[53\] the purpose and effect of particular evidence,\[54\] rules for considering evidence in

People, 211 III. 17, 71 N. E. 886; State v. 43. State v. Williams \[Wash.\] 78 P. 780: Scrogge, 128 Iowa, 649, 96 N. W. 723; State Clemons v. State \[Fla.\] 87 So. 647.

v. Green \[Kan.\] 17 P. 85; People v. Miles, 44. State v. Knowles \[Mo.\] 83 S. W. 1083.

143 Cal. 536, 77 P. 665; Barnard v. State, 119

45. Error to refuse to charge that a reag-Ga. 436, 46 S. E. 644; Grantham v. State, 120

sonable doubt as to the degree acquists of the Ga. 160, 47 S. E. 618; Chenault v. State (Tex. Cr.), App.\] 81 S. W. 971; Zuckerman v. Peeo-Coelman v. State \[Ind.\] 72 N. E. 568.

ple \[Th.\] 72 N. E. 741; State v. Davis \[N. C\].

46. State v. Leuhrsman, 123 Iowa, 478, 99

48 B. E. 162; McCary v. State \[Tex. Cr.\], App.\]

N. W. 740.

80 S. W. 373. Instruction held bad as putting

47. Charge ignoring necessity of criminal burden on defendaut and giving state bene-

intent held erroneous in view of its juxtapo-

th of doubt. Melton v. State \[Tex. Cr.\].

s3 S. W. 822. Several instructions in a homl-

State v. Morgan \[N. C.\] 48 S. E. 670.

cide case where the evidence was circum-

48. State v. Bland \[Idah T 6. T.\] 780; Cortantali held argumentative and misleading.

Spraggrins v. State, 139 Ala. 83, 35 So. 1000;

sponsibility of accessory. Harrold v. State Bowen v. State \[Ala.\] 87 So. 833. That jury

(Tex. Cr. App.\] 81 S. W. 728.

must convict of higher degree unless "sat-

49. Sbragging v. State, 139 Ala. 93, 35 So.

lafed" that only lower degree was commit-

1000; Walker v. State, 139 Ala. 66, 35 So.

ted. Galloway v. State \[Fla.\] 86 So. 1011; Pitts v. State \[Ala.\] 87 So. 101; Bell v. Burden of proving irresponsibility for murder.

49. State \[Ala.\] 87 So. 821; Little v. State \[Neb.\] 87 So. 821; State v. Collins \[W. Va.\] 47

v. State \[Ala.\] 87 So. 821; State v. Corlvan \[Minn.\] 100 N. W. 633; Kroell v. State, 139

659; Commonwealth v. Gusthall 22, 29. Super.

Ala, 1, 36 So. 1025. Pretermitting considera

C. 268; Alexis v. V. B. \[C. C.\] 129 P. 60;

tion of incriminating evidence introduced by defendant. Wilson v. State \[Ala.\] 87 So. 93.

V. Nunley, 142 Cal. 105, 78 P. 676; People v. Charge on necessity that evidence be con-

1000; Walker v. State, 139 Ala. 66, 35 So.

ted. Galloway v. State \[Fla.\] 86 So. 1011; Pitts v. State \[Ala.\] 87 So. 101; Bell v. Burden of proving irresponsibility for murder.

49. State \[Ala.\] 87 So. 821; Little v. State \[Neb.\] 87 So. 820; West v. State \[Ala.\] 87 So. 821; Street v. Collins \[W. Va.\] 47

100 N. W. 879; Tanks v. State, 11 Ark.

459, 78 S. W. 851. Need not be one that a

125 reason can be given for. Owens v. U. S. \[C.\] 130 P. 218.

C. A.\] 130 P. 218. Contra, People v. Lagropo-

90, 80 App

## 53 Indictment and prosecution SS 10E. 4 Cur. Law.

general,\[85\] and of particular kinds of evidence, such as circumstantial evidence," evidence of intoxication and insanity,\[67\] expert and opinion evidence," acts and declarations of co-conspirators," accomplice testimony," evidence of character of defendant,\[61\] testimony of defendant,\[62\] admissions and confessions,\[63\] and as, to the credibility of witnesses,\[64\] as to the form of the verdict,\[65\] as to the conduct of the jury's deliberations,\[66\] as to their power and duty to judge the effect of the evidence,\[67\] as to their duty in arriving at a decision,\[68\] and their power to fix the punishment,\[69\] are collected in the notes.

mation. State v. Darling \[Vt.\] 58 A. 974. \[B. 915; Schultz v. People, 210 Ill. 196, T1 N. Inference arising from flight. State v. Poe, 123 Iowa, 118, 98 N. W. 587; State v. Death-errage \[Vwash.\] 77 P. 504. \[C. 55. United States v., Breese, 131 F. 915. \[C. 56. Several instructions refused as argumentative and misleading. Spraggins v. State, 139 Ala. 93, 85 So. 1000. Probability that another may have done the shooting calls for acquital. Spraggins v. State, 139 Ala. 93, 85 So. 1000. Circumstances capable of explanation on any reasonable hypothesis other than guilt. Bowen v. State \[Ala.\] 37 So. 283: Lillie v. State \[Neb.\] 100 N. W. 316: State v. Jackson \[S. C.\] 46 S. E. 583. As content as any other. State v. Coleman \[S. D.\] 58 N. W. 175. Flight of accused. State v. Stants, 83 Wash. 444, 74 P. 588. Right to consider other crimes as evidence of co-spiracy. Commonwealth V. Clancy \[Mass.\] 72 N. E. 842. That if from the "established facts" defendants' guilt appears, the verdict rests on a foundation as secure and reliable as though supported by the testimony of eye witnesses. People v. Smith \[N. Y.\] 72 N. E. 931. Where the evidence is circumstantial, the court need not instruct as to any particular circumstance, but a general instruction on circumstantial evidence is sufficient. Smotherman v. State \[Tex. Cr. App.\] 83 S. W. 838.

57. People v. Nihell \[Cal.\] 77 P. 916, and cases cited.

01. Significance to be attached to defendant's objection to expert's stating his reasons for his opinion and the weight those reasons would have probably been entitled to had they been stated. Withaup v. U. S. (C. A.) 137 F. 530.

01. Failure to specifically.instruct as to purpose of recelving evidence of acts and declarations of co-conspirators held not error. Allen V. Com, \[Ky.\] 82 S. W. 589.

01. People v. Balkwell, 143 Cal. 259, 76 P. 1017; People v. Ruiz \[Cal.\] 77 P. 907; Loses in v. State \[Tex. Cr. App.\] 81 S. W. 715.

Caution against conviction on accomplice testimony alone while usual is not necessary. State v. Simon \[N. Y. Law\] 85 A. 107.

61. Bell v. State \[Ala.\] 37 So. 281; Lillie v. State \[Neb.\] 100 N. W. 316; Henderson v. State \[Ga.\] 48 S. E. 167; People v. Childs, 59 App. Div. 58, 85 N. Y. S. 627; People v. Engl. \[N. Y.\] 72 N. E. 226; United States v. Breese, 131 F. 915; State v. Stents, 33 Wash. 444, 74 P. 588; Cox v. State \[Ark.\] 81 S. W. 1056.

01. People v. Wells \[Cal.\] 78 P. 470; Alexis v. U. S. (C. C. A) 129 F. 60; McCracken v. People, 205 Ill. 216, 70 N. E. 749; Donner v. State \[Neb.\] 100 N. W. 305; People v. Tibbs, 143 Cal. 100, 76 P. 904; Waller v. People, 209 III. 284, 70 N. E. 81; Walker v. State \[Ga.\] 48 S. E. 184; Sutherland v. State \[Ga.\] 48 S. E. 184; Sutherland v. State \[Ga.\] 48 S. E. 185;(SS 10) _F. Custody of jury, conduct and deliberations._"--The jury should not be allowed to separate while deliberating on their verdict under circumstances such that any harm could possibly come to the defendant from the separation," but in the absence of a showing of prejudice, temporary or slight separation will not reverse," though prejudice will be presumed from separation in California." Under the statute of Washington, allowing separation on consent, the defendant's counsel may consent for him," and where the jury are admonished as to its duties on separation, failure to repeat the admonition on subsequent separations is not error." Where veniremen have not been sworn as jurors, the rule in capital cases forbidding them to separate has no application." Communication with jury-men during the trial is improper," and after retirement, fatal," and all communications between judge and jury must take place, in open court in the presence of defendant." Where the statute does not require that the officer in charge of the jury shall be specially sworn, it is not error that they were not all the time in the custody of the sworn officer." The jury may carry from the bar papers used in evidence," but exhibits other than papers should not be taken to the jury room in Idaho," and the indictment on which is plainly written the verdict rendered on a former trial should not be given the jury to take out with them." The jury should not discuss or consider the absence of witnesses and defendant's failure to account for the whereabouts of third persons," nor discuss matters

ment where they could not fix 1 is fatal. 75. State v. Stockhammer, 34 Wash. 262, Hayner v. People \[IIL\] 72 N. E. 792. 76. Bell v. State \[Ala.\] 37 So. 281. 71. Murder. Walter v. People, 209 III. 284, 70 N. E. 681. Where a juror was seen conversing with an outsider, the burden is on the state of proving nonprejudice and is met by showing that the conversation was on a domestic matter entirely foreign to the trial. Youwell v. State \[Ark.\] 78 S. W. 762. 893. For prosecutor to accompany a juror home to dinner and stay until after court years. Johnson v. Com., 102 V. 927, 46 S. E. 789. 78. 79. 78. It is error to deliver a sealed letter to a juror after retirement. State v. Bland 309 III. 284, 70 N. E. 681; Commonwealth by court VIIIams \[Pa.\] 58 A. 922. Temporary absence of part of jurors, and presence of veniremen ln jury room held not material. Jones v. State \[Tex. Cr. App.\] 83 S. W. 188. Jury attending theatre and sitting in two separate boxes facing each other. State v. Levy \[Idah\] 75 P. 227. Separation after conclusion of instructions but before case has been finally committed is not reversible ln absence of showing of prejudice. State v. Ferrell, 69 Ohio St. 521, 69 N. E. 995. Separation of one juror from the rest under surveillance of ballif held not fatal. May v. State \[Ga.\] 48 S. E. 153. 715. Whites and negrees on jury taking meals apart but within view is not error, nor is allowing juror to visit place where horse was tied, still within view. Leonard v. State \[Tex. Cr. App.\] 79 S. W. 552. 73. People v. Adams, 143 Cal. 208, 76 P. 954. 74. Ball. Ann. Codes & St. $ 6947. State v. Stockhammer, 34 Wash. 262, 75 P. 810. 75. State v. Stockhammer, 34 Wash. 262, 75 P. 810. 76. Bell v. State \[Ala.\] 37 So. 281. 77. Communeation by father of deceased to juror held not reversible. State v. Daniels, 134 N. C. 671, 45 S. E. 991. That during a murder trilame of the jurors read an account of another similar murder is not ground for reversal, no prejudice being shown. Schlossler v. State \[Visi.\] 98 N. W. 683. For prosecutor to accompany a juror home to dinner and stay until after court years. Johnson v. Com., 102 V. 927, 46 S. E. 789. 78. It is error to deliver a sealed letter to a juror after retirement. State v. Bland \[Idah\] 76 P. 780. Communication by court ballifif to jury held violative of Burns' Ann. St. 1901, $ 1887, and to vltite the verdict. Coolman v. State \[Ind.\] 72 N. E. 658. Leaving the door of the jury room unguarded for a short time is not reversible where no prejudice is shown, though the prosecuting attorney made statements that indicated knowledge of the state of the jury's delibments. State v. Neighbaker \[Me.\] $3 S. W. 552. 73. For judge to go to jury room and hold converse with juror or jury after retirement is error. State v. Bland \[Idah\] 76 P. 780. 80. Territory v. Dooley \[Ark.\] 78 P. 188; State v. Kellinson \[V. Va.\] 47 S. E. 166; State v. Crillson \[Kan.\] 77 P. 701. 81. Code 1887, $ 3388. Johnson v. Com.. 102 outside the evidence in the case,"" and discussion by jurors of defendant's failure to testify will vitiate their verdict." Conflict in the evidence should be reconciled if possible." A verdict arrived at by lot will be set aside."

Any conduct of the judge amounting to coercion of a verdict is fatal," and a discharge of the jury for failure to agree without a judicial investigation of whether they can agree, and entry thereof on the record operates as an acquittal, though the judge was satisfied in his own mind they could not agree."

(SS 10) _G. Verdict."_--When polling the jury, it is not necessary to call each by name or require an audible answer." Bad spelling" or ungrammatical construction will not vitiate a verdict," and writing by some juror the value of property stolen in the blank verdict submitted with the charge is not prejudicial." An informal verdict, received without objection by defendant or his counsel, though not sufficient basis for judgment, will not be ground for discharge, but only entitles him to a new trial." A general verdict of "guilty as charged" is sufficient as a rule," but where the jury attempt to set out a description of the offense and it is not responsive to the indictment, it is bad;" and where defendant pleads not guilty and autrefois acquit, a verdict is necessary on each issue, and judgment entered on a general verdict of guilty will be set aside." Where defendant pleads

SS5. Juror offered personal opinion as to credibility of witness based on knowledge of hlm, and argued that an example should be made of somebody to stop killing. Riley v. State \[Tex. Cr. App.\] 81 S. W. 711. Jurors visited scene, drew a plat and used it in discussing case, and one stated that he knew v. State \[Fla.\] 37 So. 334. Vwe "fine" decdeceded was a law-abeling man. Logan v. State \[Tex. Cr. App.\] 81 S. W. 721. Juror made statements derogatory of defendant's general character. Crow v. State \[Tex. Cr. App.\] 82 S. W. 1033. Juror stated that he knew defendant kept saloon because he had drunk beer there. State v. Duncan \[Kan.\] 78 P. 427. Juror stated that he knew defendant was lying because he knew train did not stop, etc. Dixon v. State \[Tex. Cr. App.\] 79 S. W. 310. Juror stated that defendant had assaulted prosecutor on a prior occasion. Mann v. State \[Tex. Cr. App.\] 83 S. W. 195. Other offenses were discussed. Robbins v. State \[Tex. Cr. App.\] 83 S. W. 690. Failure on defendant's request to summon juror who had stated that foreman said they must give defendant the death penalty or he would be hung before morning. Lax v. State \[Tex. Cr. App.\] 79 S. W. 579.

**86. State v. Rambo \[Kan.\] 77 P. 563:**

Broglen v. State \[Tex. Cr. App.\] 80 S. W. 378. Showing held insufficient to reverse. Mason v. State \[Tex. Cr. App.\] 81 S. W. 718.

87. State v. Dyer \[Del.\] 58 A. 947.

01. Sanders v. State \[Tex. Cr. App.\] 78 S. W. 518.

01. Charge on attempt first given after jury came back second time and full disclosure of their position had been made. People v. Stouter, 142 Cal. 146, 75 P. 780.

To urge the jury to "get together and make a verdict" is prejudicial. State v. Chambers \[Idah\] 75 P. 274: State v. Nelson, 181 Mo. 340, 80 S. W. 947; United States v. Densmore \[N. M.\] 78 P. 31. Threat to punish jury by keeping them locked up during adjournment. State v. Earthly \[Mo.\] 83 S. W. 1081. Urging held not prejudicial. People v. Miles, 143 Cal. 636, 71 P. 66.

90. State v. Klauer \[Kan.\] 78 P. 802.

01. See 2 Curr. L. 364.

01. Brown v. State \[Aia.\] 37 So. 408.

01. Bain v. State \[Tex. Cr. App.\] 79 S. W.

01. The incorrect spelling of defendant's

01. State v. Dancen \[Tex. Cr. App.\] 81 S. W. 711. Jurors visited scene, drew a plat and used it in discussing case, and one stated that he knew v. State \[Fla.\] 37 So. 334. Vwe "fine" decedeced was a law-abeling man. Logan v. State \[Tex. Cr. App.\] 81 S. W. 721. Juror made statements derogatory of defendant's general character. Crow v. State \[Tex. Cr. App.\] 82 S. W. 1033. Juror stated that he knew defendant kept saloon because he had drunk beer there. State v. Duncan \[Kan.\] 78 P. 427. Juror stated that he knew defendant was lying because he knew train did not stop, etc. Dixon v. State \[Tex. Cr. App.\] 79 S. W. 310. Juror stated that defendant had assaulted prosecutor on a prior occasion. Mann v. State \[Tex. Cr. App.\] 8 4Cur. Law. INDICTMENT AND PROSECTIONI SS 11. 61

gnilty to the charge of former conviction, and the count-charging it is not read to the jury, failure to return a verdict as to that charge is of no harm to defendant.1 A verdict of conviction on each of two counts charging separate offenses may be found, but the better practice is to find a general verdict for the two cognate offenses.2 Silence of the verdict as to a particular count operates as an acquittal on that count,3 and in Georgia a general verdict of guilty is referred to the count charging the highest offense, and a verdict of guilty of a named offense will be construed as a conviction of the highest degree of that offense;4 but in Texas, where the principal and an included offense are submitted, the verdict must state the offense of which defendant is convicted.5 Where the essence of the offense charged in each of two counts is the same, an acquittal of one bars conviction on the other;6 but where both counts are predicated on the same fact, but allege different offenses, an acquittal on one does not require an acquittal on the other.7 Where a crime is punishable under the indeterminate sentence law, the jury are not required to fix the time of imprisonment,8 and a finding of defendant's age is not necessary to support a sentence under that law.9 Jurors cannot impeach their own verdicts, as by stating that they agreed upon persuasion that the punishment would be light.10

SS 11. _New trial and arrest of judgment._ _Writ of error coram mobis.11_--The harmful effect of error is elsewhere treated.12

_The grounds.13--A new trial may be granted upon discovery that a juror was prejudiced14 or disqualified,15 for surprise in the testimony of the party's witnesses,16 for misconduct of counsel for the state17 or the jury,18 for insufficiency of the evidence,19 and for errors occurring at the trial.20 But not because witness_

1. People v. Chadwick, 143 Cal. 116, 76 P. 584. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 11. 13. 15. 16. 17. 18. 19. 12. 14. 16. 18. 19. 13. 15. 17. 19. 18. 19. 19. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 21. 23. 25. 27. 28. 29. 22. 23. 26. 28. 29. 23. 27. 29. 24. 28. 29. 25. 29. 26. 29. 27. 28. 29. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 31. 34. 37. 39. 32. 35. 38. 39. 32. 36. 39. 33. 37. 39. 34. 38. 39. 35. 39. 36. 37. 39. 38. 39. 39. 37. 39. 38. 39.

in a capital case received a part of the reward offered for the arrest and conviction of the guilty person,\[21\] nor because of the disqualification of grand jurors returning the indictment ascertainable before arraignment,\[22\] nor because of defendant's ignorance of the law and of his right to examine certain witnesses, though he was unrepresented by counsel.\[23\] Error in overruling a motion for change of venue\[24\] and excessiveness of sentence\[25\] cannot be raised by this motion. Refusal to grant new trial for incompetence of witness on ground of prior conviction of felony will not be reviewed where no diligence is shown, even on appeal to procure the record.\[26\] Where there is nothing in the record showing the race of the jurors, the refusal of a new trial on the ground that defendant, a negro, was tried by a jury of white men, is proper.\[27\] The grant of a new trial to one conspirator does not require that a new trial be granted to any co-conspirator tried and convicted with him.\[28\]

_Newly discovered evidence\[29\]_ is one of the well recognized grounds,\[30\] but applications on this ground are regarded with disfavor,\[31\] and the applicant must satisfy the court that the proposed evidence is competent and material,\[32\] credible,\[33\] not merely cumulative,\[34\] impeaching or contradictory,\[35\] such as to probably affect the result,\[36\] and that he could not by the exercise of proper diligence have procured the evidence for the previous trial.\[27\] Where it appears that the jury did not have the real case before it but acted on an erroneous assumption as to the facts, which may have been material, a new trial should be granted as of course.\[38\] Defendant is not entitled to a new trial in order that he may avail himself of the testimony of a witness unaffected by an indictment for perjury under which he has since the trial been acquitted.\[38\] Laches in applying may defeat the motion.\[40\]

fered at trial and rejected. Nordgren v. People, 211 III. 425, 71 N. E. 1042. 21. State V. Levy \[Idaho\] 75 P. 227.

_A motion in arrest of judgment_\[41\] lies only on account of some intrinsic defect apparent on inspection of the record,\[42\] and the objection must of course be one which is not required to be made at the trial.\[48\] Judgment will be arrested where defendant was not present when the verdict was received, but a new trial and not absolute discharge is the extent of his relief.\[44\] Failure of the record to show that a venire facias had been issued for the summoning of the grand jury is not ground of a motion in arrest,\[45\] and judgment will not be arrested when the part of the verdict that is repugnant to the indictment may be rejected as surplusage.\[46\]

_A motion to set aside a judgment,\[47\]_ like a motion in arrest, must be predicated on some defect apparent on the face of the record and differs from it only in the time at which it should be made.\[48\] In Georgia, the silence of the record as to defendant's presence when the verdict was rendered and sentence pronounced,\[49\] or its failure to show that defendant was asked whether there was any reason why sentence should not be pronounced upon him, is no ground for setting aside or arresting the judgment, it not being the practice in that state to enter such fact.\[50\]

_A writ of error coram mobis,\[51\]_ in the absence of statutory inhibition, may be issued by any court of common law jurisdiction,\[52\] is applicable as well to criminal as to civil cases,\[53\] and lies to correct an error of fact in respect to a matter affecting the validity and regularity of the proceedings in the same court in which the judgment was rendered and where the record is, when the error assigned is not for any fault of the court.\[54\] It may be applied for and issue at any time, though practically obsolete, as the same purpose. may be attained by motion.\[55\] The denial of a motion to set aside the proceedings on the ground that defendant was insane at the time of trial is tantamount to a determination by the court that he was sane, leaves the verdict in force against him, and is erroneous.\[56\] The authority and jurisdiction of the district court of Nebraska to grant new trials in criminal cases are derived from the statute, and that court cannot, in the exercise of its equity jurisdiction, grant a new trial in such case on the ground of newly discovered evidence, because the time to apply therefor under the statute has expired.\[57\]

_Practice on motion.\[58\]_--Time to move for new trial is generally regulated by statute,\[69\] and briefs of evidence must be filed within the statutory or allowed time

40. Laches held not fatal. United States v. Radford, 131 F. 378.

01. See 2 Curr. L. 367.

01. State v. Henry, 98 Me. 561, 67 A. 891; State v. Smith \[Me.\] 58 A. 779. A motion in arrest can be taken for defect in the In- formation only when founded on a defect enumerated in Pen. Code, 8 1922. State v. Tully \[Mon.\] 78 B. 760.

01. See post, 8 14.

01. Commonwealth v. Gabor \[Pa.\] 58 A.

01. State v. Pine \[W. Va.\] 48 S. E. 206.

01. State v. Henry, 98 Me. 561, 67 A. 891.

01. See 2 Curr. L. 367.

01. Lies not for furnishing defendant with incorrect list of witnesses. Regopoulas v. State, 116 G. 596, 42 S. E. 1014.

49, 50. Franks v. State \[Ga.\] 48 S. E. 148.

51. See 2 Curr. L. 367.

52, 53. Fugitt v. State \[Miss.\] 37 S. 554.

54. As where defendant was insane at the time of the trial. Linton v. State \[Ark.\] 83. B. W. 608. Lies not to revoke judgment for bias of jurora. Fugitt v. State \[Miss.\] 37 S. So. 554.

01. A motion to set the trial aside because of defendant's insanity should be treated as an application for the writ and requires an inquiry to determine the truth of the facts alleged in the motion. Linton v. State \[Ark.\]

81 S. W, 608; Fugitt v. State \[Miss.\] 37 So.

55. Linton v. State-\[Ark.\] 81 S. W, 608.

01. Hubbard v. State \[Neb.\] 100 N. W. 153.

01. See 2 Curr. L. 367.

01. By statute In Pennsylvania a new trial in murder cases may be allowed in a term subsequent to that in which the conviction occurred. Act of April 22, 1903 (P. L. 245). But there is no right of appeal from a discharge of the rule for a new trial by the lower court. Commonwealth v. Greason, 208 Pa. 126, 67 A. 349. An application for a new trial at a term subsequent to that at which the judgment was rendered cannot be entertained in Nebraska. Hubbard v. State \[Neb.\] 100 N. W. 153. Where the statute requires that the motion for new trial be made before judgment, and defendant's motion on all statutory grounds is denied and judgement entered on the same day, he is not en or the motion will be dismissed."\* Motions are addressed in great measure to the discretion of the court," \[91\] but a motion on general grounds addressed to the discretion of the court need not be approved by him and it is error to dismiss it for lack of such approval." \[62\] In Kentucky, an appeal may be taken by the commonwealth before final judgment to have the law of the case settled by the court, but the appeal cannot interfere with the action of the trial court in granting a new trial." \[63\] Defcendant should produce other evidence than his own affidavit of the facts on which he relies," \[64\] but a motion on the ground that the judge was absent from the court room during the argument may properly be presented by affidavit, and the mere unsworn statement of the judge in contradiction will not suffice." \[65\] An application on the ground of prejudice of a juror must identify the juror." \[66\] Counter affidavits are properly received and the motion denied where the applicant's showing is overcome," \[67\] and where a juror was stood aside for cause insufficiently proved, additional evidence of his disqualification may be produced on the hearing of the motion." \[68\] In passing on the motion, the trial judge has power to correct the minutes to make them speak the truth," \[69\] and the fact that the indictment was duly returned and filed in the county where it was found may be shown on motion for new trial in the county to which the venue was changed." \[69\] A juror may be worn to show that defendant's failure to testify was discussed in the jury room," \[70\] and testimony of jurors showing misconduct vitiating their verdict will not be excluded merely because the court would discipline such misconduct." \[69\] Affidavits of jurors as to unlawful conduct in arriving at their verdict have no probative force." \[69\]

Motions in arrest must be filed before judgment." \[69\] An unsworn statement in the motion will not overcome the presumption that the trial court followed the law in ordering a special grand jury." \[69\] Extrinsic evidence cannot be received at a hearing on motion in arrest," \[69\] but if the record before the court is not a true record, the court may permit its amendment at any time before deciding the question raised by motion." \[69\] The verdict may be set aside and a new trial ordered on motion in arrest and for discharge," \[69\] and the allowance of a motion in arrest does not operate as an acquittal, but only places defendant in the position of one against whom no prosecution has been begun." \[69\]

titled to another motion on the judgment \[69\]

title v. Cantero, 112 La. 453, 36 So. 493.

bemg set aside for a formal defect and again \[69\]

proonnced. People v. Walker, 142 Cal. 90, 75 P. 658. Amended motions after time are \[70\]

**SS 12.**_Sentence and judgment._**\[**80**\]\*\*\*\*.**The court should take evidence as to aggravating or mitigating circumstances before sentencing on a plea of guilty,**\[**81**\]** but a conviction of felony will not be reversed because no evidence of defendant's age was introduced in conformance with the act, confining persons between the ages of 16 and 30 in a reformatory.**\[**82**\]** Where the record fails to show the date of the return of the bill by the grand jury, a sentence in accordance with the law as it was prior to an amendatory act is legal.**\[**83**\]** Sentence of death must substantially follow the statutory language,**\[**84**\]** but immaterial words may be rejected as surplusage.**\[**85**\]** Sentence may be imposed the same day the verdict is rendered if the court does not intend to remain longer in session,**\[**85**\]** but where a felon is convicted at a special term called expressly to try his case, he is entitled to two days' respite before sentence.**\[**87**\]** Sentences imposed by different courts cannot be concurrent,**\[**88**\]** and where the fine imposed is not greater than might be assessed for a single offense, a single judgment and sentence is not objectionable as cumulative, though based on an information charging two offenses.**\[**89**\]** Prior convictions can be considered only on conviction of crime committed subsequent to the prior conviction,**\[**89**\]** and one convicted and sentenced under the habitual criminal act is not after repeal of the act entitled to the parole provided therein.**\[**81**\]** A judge at chambers has no authority to change the judgment.**\[**82**\]** Where defendant in a criminal prosecution removed into the Federal court because the acts complained of were done under color of Federal office is convicted and sentenced in that court in accordance with the state law, either to be executed or imprisoned, he should be delivered to the proper officer of the state for the execution of the sentence, and if a fine is imposed, which is paid, it should be transmitted to the clerk of the court from which the cause was removed.**\[**89**\]** The indeterminate sentence laws of Kansas\*\*\[**84**\]\*\* and Michigan are valid,**\[**89**\]** are prospective in their operation, and under the latter, where no minimum sentence is fixed by the act defining the crime, the court is empowered to fix a minimum not less than six months,**\[**88**\]** but the court need fix no maximum where the statute defining and punishing the crime fixes one.**\[**87**\]** A sentence for the maximum and minimum period of five years is improper,**\[**88**\]** but not absolutely void.\*\*\[**90**\]\*\*\*\*

**on that ground. State v. Riley \[Wasb.\] 78** **S8.** **Hightower v. Hollis \[Ga.\] 48 S. E. 969. P. 100L.** **S9.** **State v. Darling \[Vt.\] 58 A. 974.** **S1.** **Perjury committed in the presence of state on the same day and separate convictions thereof will not authorize the in- 914.** **S2.** **Bradburn v. State \[Ind.\] 71 N. E. 133.** **S3.** **Baker v. State, 118 Ga. 787, 45 S. E. 617.** **S4.** **Rev. St. 1892, **S** **2947, providing that sentence shall "be executed within the walls or enclosure of the jail or prison where the prisoner may be confined" is not compled with by a sentence that defendant be taken "to the jail" and there "to the yard surrounding the jail" and there "to the yard surrounding the jail" and there "to the ywebset v. State \[Fla.\] 36 S0. 58A.** **S5.** **In a sentence for the crime of "robbery, etc.," the etc., is meaningless and the sentence is for robbery only, irrespective of the circumstances of aggravation charged in the indicment.** **McKevitvit v. People, 208 III.** **460, 70 N. E. 693.** **The words "at hard labor" in a judgment sentencing to imprisonment cannot be rejected as surplusage in order to unbold the judgment. State v. Houghton \[Or.\] 75 F. 82B.** **S6.** **Code Cr. Proc. 5 472.** **People v. Spencer \[N.Y.\] 72 N. E. 461.** **S7.** **Powers V. Com. \[Ky.\] 83 S. W. 146.** **4.** **Curr. Law-5****

**SS 13.**_Record or minutes and commitment._**\[**1**\]**--The record is conclusive,**${}^{\\sharp}$ **but may be amended by the court,**${}^{\\sharp}$ **though only on record evidence;**${}^{\\sharp}$ **and the action of the trial judge in so amending his minutes as to make them speak the truth is binding and conclusive.**${}^{\\sharp}$ **Minutes cannot be entered or signed after adjournment in Texas.**${}^{\\sharp}$ **The record must show every jurisdictional fact,**${}^{\\sharp}$ **but the presumption of regularity of the proceedings avails to aid a record not showing lack of jurisdiction.**${}^{\\sharp}$ **A reeital that defendant admitted the violation of the statute as charged and that a certain fine was imposed sufficiently shows a plea of guilty.**${}^{\\sharp}$ **A minute entry showing a judgment of sentence by the court in accordance with the verdict sufficiently implies a judgment of guilt, though the formal adjudication on the verdict is omitted.**${}^{\\sharp}$ **Commitment.**${}^{\\sharp}$ **SS 14.**_Saving questions for review. Necessity of objection, motion or exception._**${}^{\\sharp}$ **-Aside from objections to the jurisdiction,**${}^{\\sharp}$ **the sufficiency of the indictment,**${}^{\\sharp}$ **or the competency of witnesses,**${}^{\\sharp}$ **prompt objection and exception in** **99.** **Will be treated as a sentence for 5** **that the jury were sworn "the truth to speak years maximum, and for the minimum pre-verb by the statute defining the offense. In re Cummins \[Mich.\] 100 N. W. 1008.** **I. See 2 Curr. L. 368.** **I. See 2 Curr. L. 368.** **I. See 2 Curr. L. 368,** **I. See 3 Curr. L. 368,** **I. See 4 Curr. L. 368,** **I. See 5 Curr. L. 368,** **I. See 6 Curr. L. 369.** **I. See 7 Curr. L. 369.** **I. See 8 Curr. L. 369.** **I. See 9 Curr. L. 368,** **I. See 2 Curr. L. 369.** **I. See 10 Curr. L. 369.** **I. See 11 Curr. L. 369.** **I. See 12 Curr. L. 369.** **I. See 13 Curr. L. 370.** **I. See 14 Curr. L. 381.** **I. See 15 Curr. L. 382.** **I. See 16 Curr. L. 390.** **I. See 17 Curr. L. 391.** **I. See 18 Curr. L. 392.** **I. See 19 Curr. L. 393.** **I. See 19 Curr. L. 394.** **I. See 20 Curr. L. 395.** **I. See 21 Curr. L. 396.** **I. See 22 Curr. L. 397.** **I. See 23 Curr. L. 398.** **I. See 24 Curr. L. 399.** **I. See 25 Curr. L. 399.** **I. See 26 Curr. L. 399.** **I. See 27 Curr. L. 391.** **I. See 28 Curr. L. 392.** **I. See 29 Curr. L. 393.** **I. See 20 Curr. L. 394.** **I. See 21 Curr. L. 395.** **I. See 21 Curr. L. 396.** **I. See 22 Curr. L. 397.** **I. See 23 Curr. L. 398.** **I. See 24 Curr. L. 399.** **I. See 25 Curr. L. 399.** **I. See 26 Curr. L. 399.** **I. See 27 Curr. L. 399.** **I. See 28 Curr. L. 390.** **I. See 29 Curr. L. 391.** **I. See 20 Curr. L. 392.** **I. See 29 Curr. L. 393.** **I. See 20 Curr. L. 394.** **I. See 21 Curr. L. 395.** **I. See 22 Curr. L. 396.** **I. See 23 Curr. L. 397.** **I. See 24 Curr. L. 398.** **I. See 25 Curr. L. 399.** **I. See 26 Curr. L. 399.** \*\*I. See 27 Curthe trial court is necessary to preserve the right to a review of the ruling complained of. This rule is applied to failure to serve copy of indictment,\[16\] procedure on change of venue,\[17\] errors in the selection and impaneling of jurors,\[18\] and disqualification of jurors.\[19\] Matters disqualifying jurors are waived where not inquired about on voir dire,\[20\] or of the judge,\[21\] remarks and conduct of the court,\[22\] the order of proof,\[23\] examination of witnesses,\[24\] rulings on the admissibility of evidence,\[25\] permitting stenographer to read notes of evidence to jury,\[26\] remarks\[27\] and argument of counsel,\[28\] remarks of the court,\[29\] instructions,\[20\] failure to swear officer in charge of jury.\[31\] It is frequently required that the objection be also presented to the trial court by motion for new trial,\[28\] but such no tion, while customary, is not necessary in Georgia.\[38\] Matters first brought to the attention of the trial court by motion for new trial are not generally reviewable on appeal,\[34\] but where a motion in arrest and for a new trial was based on written exceptions to the instructions filed therewith, and was received, considered and denied by the trial court, the exceptions were reviewed by the circuit court of appeals, though the exceptions were not taken at the time the charge was given.\[35\] Statutes in some states authorize a general review of criminal cases especially where there is judgment of death,\[36\] irrespective of whether proper objection was made and exception saved on the trial,\[37\] and exceptions to instructions in a capital case were reviewed in North Carolina where first raised on appeal, the attorney general consenting,\[38\] and where no objection or exception was taken to the introduction of hearsay evidence and there was barely enough to sustain a conviction, the court granted a new trial in the interests of justice, the attorney general so advising.\[39\] Hearsay testimony not objected to at the time of its introduction should be stricken on motion.\[40\]

\_Waiver of objection.\[41\]--An objection and exception timely made may be waived,\[42\] and an exception against invited error is unavailing.\[43\] The request of instructions embodying an erroneous theory adopted by the court does not estop defendant from urging error in refusing his prior requests based on the correct theory,\[44\] and the introduction of incompetent evidence over objection is not waived by defendant's afterward attempting to explain it,\[45\] but where evidence is admitted over objection with the statement that it will be passed upon later, failure motion for a new trial. People v. Walker, Laws 1897, $ 10274, authorizing review of instructions given and refused, does not authorize review of ruling on challenge to Cawthon v. State, 119 G., 395, $ 6. S. E. 897.

\[X\] Act. Code Frac. $ 281. Green v. Com. \[X\]. \[X\].

to again raise the question waives any error in its admission,"48 and error cannot be predicated on refusal to rule out a paper admitted on consent."That defendant offered a wrong reason for the admission of certain testimony does not render it any the less admissible, nor its rejection any the less erroneous.48 Where defendant properly objected to the discharge of two jurors after the jury had been impaneled and sworn, he did not waive his objection by failing to object to the jurors sworn in their place or by calling for a new venire.49

Footnote 48: The author is grateful to the anonymous referee for his constructive comments.

Footnote 49: The author is grateful to the anonymous referee for his constructive comments.

Footnote 50: The author is grateful to the anonymous referee for his constructive comments.

Footnote 51: The author is grateful to the anonymous referee for his constructive comments.

Footnote 52: The author is grateful to the anonymous referee for his constructive comments.

Footnote 53: The author is grateful to the anonymous referee for his constructive comments.

Footnote 54: The author is grateful to the anonymous referee for his constructive comments.

\_Sufficiency of objections.64--\_Objections must be specific,61 the grounds of objection to testimony must be stated,62 since a general objection to evidence will not avail if it be admissible in part,63 or for any purpose,64 and a general objection will not raise specific grounds, such as that the question calls for an opinion as distinguished from a fact,65 or that physicians offered as experts are not qualified.65 The objection must be to the question, not to the answer,67 unless the question does not disclose the incompetency of the response,68 or the answer is unresponsive. An objection to a question after it is answered comes too late.65 The remedy for an unresponsive answer to a cross question,68 and for incompetent evidence admitted without objection, is by motion to strike.61 Where, on motion to strike out an entire declaration, a part only is stricken and what remains is objectionable because disconnected, the remedy is by motion to restore subject to objection.62 Where testimony is admissible for only a particular purpose, the remedy is by asking for a specific direction limiting its scope and not by general objection to its admission.63 If defendant wishes to raise the question of the sufficiency of the evidence, he must move for a directed verdict.64 Defendant surprised by the testimony of a state's witness and failing to move for a postponement cannot complain on appeal,65 and the question of surprise is not

open for review where defendant only objected to the evidence on the ground that the people had closed their case.\[48\] Objections to the manner of allotting cases in the criminal district court should be made before going to trial.\[47\] Refusal to discharge the jury for an improper remark by the state's counsel is not error, the remedy being by motion to have it withdrawn.\[48\] To raise a constitutional question, the objection must point out the particular part of the constitution violated.\[49\] The remedy to correct misconduct of counsel in argument is by motion to exclude it and exception to the court's refusal, not by exception to the remarks.\[49\] In Texas, a written request to charge is the proper way to call to the court's attention prejudicial argument by counsel for the state.\[49\]

_Sufficiency of exceptions.\[49\]_--Exception must be specific,\[48\] and if it covers several rulings, is insufficient if any one was correct.\[40\] A general exception will not raise special matters.\[48\] An exception to the exclusion of evidence is not available where its object is not stated to the trial court.\[48\] Whether the prosecuting attorney heard an exception made to his argument is immaterial.\[49\]

SS 15. _Harmless or prejudicial error. Trivial or immaterial error.\[49\]_--Generally speaking, a conviction will not be reversed for technical errors where substantial justice has been done,\[49\] or because of error that resulted in no harm or prejudice to defendant,\[49\] though he has properly saved his objection and exception to the ruling.\[49\] Prejudice will not be presumed from error in excusing a juror.\[49\] Errors favorable to defendant\[49\] or his co-defendant,\[49\] or which he has

66. Graff v. People, 208 IIL 512, 70 N. E. 78. See 2 Curr. L. 373. 295. 79. Quigg v. People, 211 III. 17, 71 N. E. 67. State v. Henderson \[La.\] 36 So. 950. 886: State v. Moore, 67 Kan. 620, 73 P. 905; 68. Miller v. Com., 25 Ky. L. R. 1931, 79 S. 8. Smith, 83 N. Y. S. 1998, 44 Mbs. 77: Smith v. 69. State v. Brockmiller \[Mo. App.\] 81 S. 8. V. 214. 70. State v. Van Waters \[Wash.\] 78 P. 897. errors upon which to reverse judgments. 71. Hatchell v. State \[Tex. Cr. App.\] 84 S. 8. V. 234: Adams v. State \[Tex. Cr. App.\] 84 S. 8. V. 231; Ball v. State \[Tex. Cr. App.\] 78 S. 8. V. 508. 72. See 2 Curr. L. 872. 73. Where the original instructions are elaborated in response to a request from the jury, an exception thereto for the same reasons given for exceptions to the original charge is not specific enough to cover the objection that the jury's question was not answered categorically and specifically. Roberts v. U. S. \[C. C. A.\] 126 F. 897. An exception to a charge containing a correct principle of law cannot be considered unless the vice or error is specified. Owens v. State, 139 A. I17, 86 So. 88. 8183, 120 Ga. 205, 47 S. E. 513. 74. A general exception to .an entire charge will not avail if the charge contains a signle correct proposition. Parnell v. State \[Fla.\] 36 So. 165; Thomas v. State \[Fla.\] 36 So. 161; Griffin v. State \[Fla.\] 37 So. 209: Ewert v. State \[Fla.\] 37 So. 384; Sullivan v. District of Columbia, 20 App. D. C. 29. Exception to the court's refusal to give several instructions is unavailing if any one is bad. Johnson v. State \[Ala.\] 37 So. 456. 75. State v. Sargood \[Vt.\] 58 A. 971. A general exception to instructions does not raise for review the court's failure to .struct the jury to fix the punishment in case of conviction. Stancliff v. U. S. \[Ind. T.\] 82 S. W. 882. 76. State v. Kelley \[Conn.\] 58 A. 705. 77. Adams v. State \[Tex. Cr. App.\] 84 S. 8. V. 231. 78. State v. Sargood \[Vt.\] 58 A. 971. A general exception to instruction .false for review the court's failure to .struct the jury to fix the punishment in case of conviction. Stancliff v. U. S. \[Ind. T.\] 82 S. W. 882. 76. State v. Kelley \[Conn.\] 58 A. 705. 77. Adams v. State \[Tex. Cr. App.\] 84 S. 8. V. 231. 78. See 2 Curr. L. 373. 79. Quigg v. People, 211 III. 17, 71 N. E. 886: State v. Moore, 67 Kan. 620, 73 P. 905; 68. Miller v. Com., 25 Ky. L. R. 1931, 7 4 Cur. Law. INDICMENT AND PROSECTION SS 15. 71

invited\*\* or acquieseed in, are not reversible.\*\* No harm is done defendant by a question asked by the court which gives him an opportunity to deny an unfavorable inference arising from his testimony.\*\* The rule that reversal will not follow nonprejudicial error has been applied to rulings on application for continuance,\*\* procedure on change of venue,\*\* ruling on pleas,\*\* selection of jury,\*\* conduct of trial,\*\*${}^{ t\[2\]}$ **rulings on the sufficiency of indicitments,**${}^{ t\[3\]}$ **examination of** vit-

from jury followed by less than minlanum Instruction substantially like one requested. sentence. Taylor v. State \[Ark.\] 83 S. W. State v. Willen \[Lowsl.\] 93 N. W. 1060; Clemens 922. The restriction of the state's evidence on yes. State \[FLA.\] 37 S. Bot. 647. One cannot to a particular offense where several are procure the discharge of a jury and then charged is not prejudical. Miller v. Com., 26 JK. L. 1931, 79 S. W. 250.

was Improperity discharged. Nixon v. State

**Instructions placing greater burden on** \[Ga.\] 48 S. E. 966. Transcript admitted at state than law requires. State v. Hunter, request of defendant for best evidence. State

181 Mo. 316, 8 B. W. 855. Repairing jury to v. Woodward \[Mo.\] 81 S. W. 857. Dependant be convinced beyond a reasonable doubt of cannot complaint that the judge permitted the facts limiting right of self defense. Ad. him to point out important locations while

**Kims v. Com. \[Key.\] 83 S. W. 242. Requiring**

**emission in soudomy. State v. McGrover**

**W. 310.**

**\[lowsl.\] 101 N. W. 646. Stating rule as to**

\*\*\[lowsl.\] **the** of sick huror, swearing annecessity of corroboration of incomplete test-

**\[lowsl.\] 93 N. W. 344. Immune**

**\[lowsl.\] 93 N. W. 348. Immune**

\*\*\[lowsl.\] 93 N. W.

INDICITMENT AND

## 4 Cur. Law. INDICTMENT AND PROSECTION SS 15.

or failure to instruct,\[8\] judgment.\[8\] Refusal to charge on an issue as to which the state was entitled to an affirmative charge is not prejudicial.\[7\] Submission of a lesser degree not charged in the indictment,\[8\] or which the evidence does not warrant, it being sufficient to support conviction of the principal crime,\[8\] and con * 74 INDITMENT AND PROSECTION $ 15. 4 Cur. Law.

viction of an included offense where the evidence would support a verdict of guilty of the principal crime, are harmless.\[10\] Where the testimony is in sharp conflict and evenly balanced, it cannot be said that the admission of incompetent evidence is harmless,\[11\] and where the state's case can be sustained only by reference to incompetent evidence admitted over objection, manifest injury has resulted which can only be redressed by reversal.\[12\] It cannot be presumed that unintelligible evidence was harmless where expressly treated as competent by the court in his charge.\[18\]

_Cure of error.\[14\]_--Reversible error is not committed by denying a continuance for the absence of a witness who afterwards appears and testifies,\[18\] and any error in overruling a challenge for cause is cured by allowing an additional peremptory challenge after defendant had used his number.\[14\] Where the state peremptorily chal!enged all jurors who did not appear, defendant was not harmed by refusal to delay the trial until they could be brought in by attachment.\[17\] The admission of improper evidence may be cured by afterwards excluding it,\[18\] or withdrawing it from the jury,\[19\] or permitting proof of otherwise immaterial facts rendering it innocuous,\[20\] or sufficiently establishing the same fact by other unobjectionable evidence,\[21\] by instructions rendering it immaterial,\[22\] or by verdict showing that it was disregarded.\[22\] Error in admitting evidence of defendant's sanity as a part of the state's case in chief is cured by admitting defendant's evidence of insanity.\[4\] The improper exclusion of evidence may be cured by afterwards admitting the same,\[23\] or other evidence of similar effect,\[24\] or recalling the witness

der. People v. Lagroppo, 90 App. Div. 219, 86

"Kill somebody." Friday v. State \[Tex. Cr. App.\] 79 B. W. 815. Questions to defend-

10. Burglary in first and second degrees.

Pople v. Coulter \[Cal.\] 78 E. 348. Defendant

charged with burglary and larceny cannot

L. R. 2203, 80 S. W. 223. Inability of blood-complaint that he was convicted of the bur-

hounds to find trail. Allen v. Commonwealth

glary and acquitted of the larceny though

\[KJ.\] 82 B. W. 858. Statement of defend-

ne admitted the larceny. State v. Helms, 179

Mo. 820, 78 S. W. 892.

11. Thompson v. State \[Miss.\] 36 So. 389;

People v. Montgomery, 176 N. Y. 219, 68 N. E.

128. Though there be sufficient competent

Denton v. State \[Tex. Cr. App.\] 79 S. W. 800;

evidence to sustain a conviction, defendant is

entitled to a verdict free from prejudice arls-

ing from improper evidence, and the appelfendant did not pay the funeral expenses of

late court cannot determine the sufficiency of

dependent yellowed to authorize the verdict.

State v. Walker \[Iowa\] 100 N. W. 354.

12. State v. Ricardo \[N. Y. Law\] 85 A. 1087.

01. People v. Ebel, 90 N. Y. S. 628.

01. See 2 Curr. L. 277.

01. Underwood v. Commonwealth \[KJ.\] 84

S. W. 310; State v. Forbes, 111 La. 473, 35 So.

710.

001. Where a copy of a mortgage is introduced to show that defendant made it, he is

W. 773; Lax v. State \[Tex. Cr. App.\] 79 S. W.

17. Miller v. State \[Tex. Cr. App.\] 83 S. W.

01. Hendrickson v. Com. \[KJ.\] 81 S. W.

266; State v. Serogrgs, 123 Iowa, 649, 86 N. W.

723; People v. Smith, 44 Misc, 379, 83, N. Y. S.

1908; De Yampert v. State, 139 Ala, 53, 86 So.

772. Revisual to strike, cured by subsequent-

001.

001. Stirling. Wilson v. State \[Fla.\] 36 So.

001. Evidence may be so predictable that

prompt striking out will not remove its

effect. People v. Dave \[N. Y.\] 72 N. E. 244.

16. Evidence of attempts to influence witnesses not connected with defendant.

Lour-
der v. State \[Tex. Cr. App.\] 79 S. W. 552.

General statements of defendants' intentions

17.

and offering defendant the privilege of examining him as to the excluded matter." Error in allowing a question to be put may be cured by the answer,\[28\] or failure to answer,\[29\] or subsequently bringing out the same fact by a proper question.\[30\] A verdict on an issue to which the error did not relate renders the error innocuous.\[21\] Improper remarks,\[22\] conduct\[33\] and argument by the prosecuting attorney, may, if not too flagrant, be cured by prompt action of the court and instructions to disregard them.\[34\] Refusal to correct an erroneous ruling by instruction is prejudicial,\[35\] and improper evidence may be of such a damaging character as not to be curable by withdrawal or instructions to disregard it.\[30\] Error in overruling a motion to quash is cured by the withdrawal of all except one count as to which all the evidence applies,\[37\] but where a demurrer should have been sustained, the action of counsel in stating that he would not ask for a conviction under the invalid count will not relate back to cure the error.\[38\]

**SS 16**. _Stay of proceedings after conviction.\[39\]_--Regardless of the state practice, the Federal courts do not suspend sentence pending proceedings in error.\[40\] In order to entitle a convicted misdemeanant to a stay of proceedings pending appeal in Kansas, the record must be filed in the supreme court within 90 days.\[41\] Arrest of defendant on a capias pro fine after notice of appeal and reogmanance

v. Carpenter \[Towa\] 98 N. W. 775; Eatman v. State \[Tex. Cr. App.\] 83 S. W. State \[Fla.\] 37 So. 576. 1128. Refusal of instructions on greater degress. Williams v. State \[Ala.\] 37 So. 228.hammer, 34 Wash, 262, 75 P. 810. Character Condition of shooting eures error in defendant. State v. Anderson \[Iowa\] 101

N. W. 201. Character of defendants wife

tent to murder. Harris v. State, 120 Ga, 167, whom he killed, and their relations. People

v. Ochoa, 142 Cal. 268, 75 P. 847. Error in rejecting evidence of defendants' good rep-

upon murder in the second degree will not be

utation for truth and veracity is not cured

by allowing his honesty and integrity to be

647. Errors in Instructions with respect to shown. In perfurty, People v. Albers \[Mich.\] 100 N. W. 908, Fraudulent intent in forgery

ty convicted are harmless. State v. Sargood

State v. Rivers \[Iowa\] 98 N. W. 785. 1

(Vt.) 58 A. 971. An erroneous Instruction

27. People v. Spencer \[N. Y.\] 12 N. E. 461. 28. State v. Steen \[Iowa\] 101 N. W. 96;

Peeople v. Majoine \[Cal.\] 77 P. 952; Townley

v. State \[Tex. Cr. App.\] 81 S. W. 309. Asking defendant about the commission of a

distinct offense. Answer in negative. Rosa

v. State, 189 Ala. 144, 34 So. 718. Question

salling for conclusion answered by relating

1314; People v. Smith 143 Cal. 591, 77 P. 449;

fact. Willson v. State \[Ala.\] 37 So. 93. Neguve is improper though the fine imposed was less than the amount required to give the appellate court jurisdiction.\[42\]

SS 17. _Appeal and review. A. Right of review.\[48\]_--Appeals are allowable only where expressly authorized by statute.\[44\] The general rule is that an acquittal, however accomplished, is final, and that appeal or error on behalf of the government does not lie,\[48\] but in some states an appeal or error proceedings on behalf of the state are provided.\[49\] The supreme court of Minnesota were equally divided on the question whether one convicted of a capital crime waives his right of appeal by accepting commutation to life sentence.\[47\] The statute 11 Hen. VII, c. 12, providing for the prosecution of suits by poor persons, has reference only to civil cases, and neither this statute nor the similar act of congress\[48\] gives a person convicted of crime the right to prosecute a writ of error at the expense of the government.\[49\]

(SS 17) _B. The remedy for obtaining review.\[50\]_--Statutory modes of review such as appeal and error must be pursued where provided and applicable and not certiorari,\[61\] prohibition,\[62\] or habeas corpus.\[58\] Criminal cases are reviewed by error and not by appeal in Illinois,\[54\] but an unauthorized appeal will in the absence of a motion to dismiss be heard as a writ of error, where everything essential to a review on error is present.\[58\] A judgment of conviction of contempt in violating an injunction is reviewable in the circuit court of appeals by error and not by appeal.\[60\]

(SS 17) _C. Adjudications which may be reviewed.\[57\]_--The judgment must be a finality in the trial court.\[58\] Intermediate orders are generally not appealable.\[59\] An order sentencing defendant and fixing the date for execution is not 42. Ex parte Parsons \[Tex. Cr. App.\] 78 S. 55. Graff v. People, 208 Ill. 812, 70 N. E. W. 502: Ex parte Freedman \[Tex. Cr. App.\] 295. 78 S. W. 503. 56. Bullock Elee. & Mfg. Co. v. Westinghouse Elee. & Mfg. Co. \[C. C. A.\] 129 F. 105. 57. See 2 Curr. L. 378. 58. State v. Miquon, 112 La. 180, 35 So. 59. State from a judgment of a court having jurisdiction of a criminal case where the accused is discharged. State v. Hance, 4 Ohio C. C. \[N. S\] 541. 58. W. 575. An entry of what seems to be a confession of judgment for fine and Order granting new trial. People v. Sling Les \[Cai\] 78 P. 636. In Kentucky, where the punishment can only be a fine, the commonsult may have a reversal for new trial of a judgment on a vertical of acquittal \[Cr. Code Pr. 852\]. Commonwealth v. \[Techn.\] 79 S. W. 162. Motion in arrest after final judgment in no manner affects the finality of the judgment nor operates to stay it, hence error lies notwithstanding the motion. State v. Rosenblatt \[Mo.\] 83 S S. W. 915. Conviction of contempt in violating injuncunc- \[N. S\] 81. W. 165. 55. Valueline v. Police Court, 141 Cal. 161, 75 P. 336. Does not lie to review the action of a police judge in summoning a jury. Wittman v. Police Court \[Cai\] 78 P. 105; State v. Thompson, 111 La. 315, 35 So. 582. Valentine v. Police Court, 141 Cal. 615. 75 P. 336; State v. Thompson, 111 La. 315, 35 So. 582. 583. 583. 584. 585. 586. 583. 585. 583. 584. 585. 586. 587. 588. 588. 589. 589. 590. 591. 592. 593. 594. 595. 596. 597. 598. 599. 599. 598. 599. 599.

appealable, defendant having escaped after conviction and his appeal therefrom having never been perfected." No appeal lies in South Carolina from an order setting aside a verdict on motion of the state." Though an order granting a new trial is not ordinarily appealable, where the defendant claims to be entitled on the record to an absolute discharge, the appeal will be heard on its merits." An order denying a motion to set aside a conviction on the ground that defendant was insane at the time of trial is appealable." Further appealability of judgments of courts of review rests in statute." The remedy applicable to criminal cases is proper on conviction of contempt," but an order of the judge of a county court denying discharge on habeas corpus is not-a judgment within the statute allowing writs of error in criminal cases."

(SS 17) \_D. Courts of review and their jurisdiction."--\_The supreme court of the United States does not consider itself bound on the question of its jurisdiction by a prior case in which jurisdiction was entertained without any suggestion as to the want of it." That court has jurisdiction of a writ of error to the district court of Porto Rico where a right claimed under the constitution, a treaty or statute of the United States is denied," and in any case which if determined in one of the territories could be taken to the supreme court." It cannot review a capital case decided in Oklahoma." The supreme court of Missouri has jurisdiction where a right claimed under the constitution is denied below," or where a political subdivision of the state is a party." The supreme court of appeals of West Virginia cannot entertain a writ of error from the judgment of appealable. West v. U. S., 20 App. D. C. 347. 68. Code 1896, $ 4327. Smotherman v. No right of appeal exists in a murder case \[Ala.\] 37 So. 376. 67. See 2 Curr. L. 280. 68. New v. Oklahoma, 25 S. Ct. 68, 49 Law. which defendant was tried. Act Apr. 22, Ed. 1903 (P. L. 245). Commonwealth v. Green. 69. Law governing qualifications of grand son, 208 Pa. 126, 57 A. 449. Where a motion for new trial is made before judgment, error will not lie from the refusal unless the court below grants a stay, the remedy in such case being error to the final judgment. Uliman v. State \[Wis.\] 100 N. W. 818. 60. Allen v. State \[Ala.\] 37 So. 393. 61. State v. Timmons \[S. C.\] 47 S. E. 140. 62. Commonwealth v. Gabor \[Pa.\] 58 A. 278. 63. Linton v. Stay. \[Ark.\] 31 S. W. 608. 64. Refusal by the common pleas of a writ of error to a municipal court is not re-viewable on error in the circuit court. Village of Canfield v. Brobsl \[Ohlo\] 12 N. E. 459. No appeal lies in Arizona from a judgment of the district court rendered on appeal from a justice of the peace \[Pen. Code 1801, $ 1067\]. Hall v. Territory \[Arliz\] 76 P. 476. 68. 69. Contempt in violating an injunction is criminal, and the supreme court has juris-diction to review the judgement punishing it. Wright v. People, 31 Colo. 461, 73 P. 86. A judgment of the United States circuit court convicting one of contempt in an equity suit is revlewable in the circuit court of appeals, juris-on writ of error. Under 26 Stat. 826, the court has jurisdiction to review judgments in criminal cases. In re Hening \[C. C. A.\] 127 F. 96; Bullock Elec. & Mfg. Co. v. Westinghouse Ellec. & Mfg. Co. (C. C. A.) 129 F. 105. Appeal lies in contempt cases in Indiana where the punishment is imprisonment or a fine of $50 or more. Mahoney v. State \[Ind. App.\] 72 N. E. 161. 68. Code 1896, $ 4327. Smotherman v. No right of appeal exists in a murder case \[Ala.\] 37 So. 376. 67. See 2 Curr. L. 280. 68. New v. Oklahoma, 25 S. Ct. 68, 49 Law. which defendant was tried. Act Apr. 22, Ed. 69. Law governing qualifications of grand son, 208 Pa. 126, 57 A. 449. Where a motion for new trial is made before judgment, error will not lie from the refusal unless the court below grants a stay, the remedy in such case being error to the final judgment. Uliman v. State \[Wis.\] 100 N. W. 818. 60. Allen v. State \[Ala.\] 37 So. 393. 61. State v. Timmons \[S. C.\] 47 S. E. 140. 62. Commonwealth v. Gabor \[Pa.\] 58 A. 278. 63. Linton v. Stay. \[Ark.\] 31 S. W. 608. 64. Refusal by the common pleas of a writ of error to a municipal court is not re-viewable on error in the circuit court. Village of Canfield v. Brobsl \[Ohlo\] 12 N. E. 459. No appeal lies in Arizona from a judgment of the district court rendered on appeal from a justice of the peace \[Pen. Code 1801, $ 1067\]. Hall v. Territory

### 78.1Indictment and prosecution $ 17E.

4 Cur. Law.

the circuit court discharging a defendant from prosecution for violating a city ordinance, though the validity of the ordinance is involved." And the circuit court of Ohio has no jurisdiction to hear a petition in error filed by the state in criminal case to reverse a judgment of the common pleas discharging the accused." The decisions of the court of criminal appeals of Texas are conclusive as to the validity and construction of criminal statutes when called in question in the supreme court of that state." Where the fine is less than $100, there is no appeal in Texas."

(SS 17) \_E. Procedure to bring up the cause."--\_Where accused'scepts to the overruling of a demurrer and brings error before trial on the merits, the clerk of the court in which the case is pending has no right to demand the payment of accrued costs before sending up the record." In New Mexico, appeals must be applied for at the term at which judgment is rendered," and an appeal taken more than 30 days before the beginning of a term of the supreme court is returnable to that term."

_A recognizance on appeal_" in the statutory form is necessary," and in Texas must state the crime of which defendant was convicted\* and the amount of punishment inflicted;" and a defective bond cannot be amended by filing a new one before expiration of the time to file bond." A bond on appeal from a justice to the county court is not defective for failure to contain the number of the case appealed, the judgment being otherwise sufficiently described."

(SS 17) \_F. Perpetuation of proceedings' in the "record." What must appear, and whether by record proper or bill of exceptions."--\_What must appear to authorize a review of particular errors is elsewhere treated." The transcript must show that an appeal was taken from the judgment." When the bill of exceptions recites that the court passed an order overruling a motion for new trial, it is not necessary that such order should be specified as a part of the record to be transmitted." In Texas, in misdemeanor cases, the record must contain a recognizance or a certificate that defendant is confined in jail pending appeal." Those matters which belong to the record proper must appear thereby," and such mat4 Cur. Law. INDICITMENT AND PROSECTION SS 17F. 79

ters need not be and cannot be otherwise shown; \[94\] but all matters not part of the record proper must appear by bill of exceptions, or its equivalent, \[98\] and where there is no bill of exceptions, or it is not properly in the record, matters necessary to be presented thereby cannot be reviewed, \[99\] only the record proper in such case being presented for review. \[91\] No bill of exceptions is required to raise the error of trying defendant without a plea, notwithstanding the statute providing otherwise. \[98\] A statement filed by the judge and entered of record relating to an alleged contempt in the presence of the court imparts absolute verity, \[99\] and recitals in the judgment as to matters necessary to be set out therein will prevail over contradictory statements in the bill of exceptions. \[1\] In Indiana, the original bill is properly made part of the record, \[9\] but nothing but the evidence and its incidents can be brought up thereby. \[9\] Affidavits filed in support of a motion for new trial cannot be taken as evidence of what occurred at the trial. \[9\] The bill of exceptions cannot be aided by reference to the statement of facts. \[9\]

94. Gratuttous recitals in the record can- | State \[Tex. Cr. App.\] 81 S. W. 292; Viescas not supply matters necessary to appear by | State \[Tex. Cr. App.\] 81 S. W. 292. In-bill. Motion for continuase. State V. Bates | Accuracies and misleading references to the Making, settling and approving."\_--The bill of exceptions or like memorial of the proceedings must be approved by the trial judge, and filed within the statutory or allowed period," and signing must precede filing," and the bill must show such facts." It is no longer the practice to make up the bills of exceptions during progress of the trial.10 The bill of exceptions must be submitted by the judge to the district attorney before signature,11 and should be granted or refused outright, and not signed with the qualification that the judge was unable to say whether the matter complained of occurred.12 Upon settlement, the minutes of the clerk are not conclusive, but the judge may of his own knowledge, or from the reporter's transcript determine the true facts.13 Affidavits attached to a transcript on appeal cannot be considered where they are not certified as a part of the record in the case.14 It is counsel's duty to see to the making and settlement of exceptions,15 but where defendant makes and files his statement in proper time, but no approval is had because of the laches of the judge and district attorney, reversal follows.14

S. W. 1107; Kennon v. State \[Tex. Cr. App.\] of a bill of exceptions in connection with 82 S. W. 518.

6. See 2 Curr. L. 382.

1. Territory v. Flores, 3 Arlz. 215, 77 P.

91; United States v. Sena \[N. M.\] 78 P. 68;

State \[Tex. Cr. App.\] 82 S. W. 657.

Petermann v. State, 139 Ala. 131, 36 S. 106. 167;

Extension must be granted before explra- Dunn v. State, 162 Ind. 174, 70 N. E. 521;

Union of statutory or extended period. Con- Talty v. District of Columbia, 20 Amp. D. C.

(489; Washington V. State \[Fla.\] 37 Sc. 573;

person held not to extend time. Myers v. State, V. Youngberg \[Kan.\] 78 P. 421; Cook

State \[Ind.\] 71 N. E. 557. Extension cannot v. State, 120 Ga. 137, 47 S. E. 562. A state-

be made at subsequent term. Scott v. State

ment marked "approved" and signed by the judge

order extending time is properly filed.

have been made by the judge because the

Sampson v. State \[Tex. Cr. App.\] 78 S. W. 926.

\[Tex. Cr. App.\] 81 S. W. 37. An express ap-

8. Where both appear to have been on proval of the grounds of an amendment to a

same day, signing will be presumed to have motion for a new trial affords a presump-

preceded in the absence of contrary showing.

then that the amendment was allowed. Smith

v. State, 162 Ind. 174, 70 N. E. 521.

v. State, 119 Ga. 564, 46 S. E. 846. Agreement of counsel as to its correctness will not

the draft thereof was noticed for settlement supply the necessary approval by the trial

will not be considered. State v. Stickney, judge of a brief of evidence appearing in

29 Mont. 523, 75 P. 201. The record must af-the record. Cawthon v. State, 119 Ga. 385, 46 S. E. 897.

Irmantively show a compliance with the statutory as to the time of presentation of the bill

of exceptions for allowance. Territory v.

clude that day. State v. Horine \[Kan.\] 78 P. 413.

shown that the bill of exceptions was 'ever

Signing nunc pro tunc after appeal is taken

is Improper. State v. Hauser, 112 La. 313.

36 So. 386. The bill of exceptions must be

prepared and filed during the term at which

the trial was had, unless the time is extend.

ed by order of the court. State v. Chenow-

eth \[Ind.\] 71 N. E. 197; Mason v. State \[Tex. Cr. App.\] 81 S. W. 718; Talty v. District of

Columbla, 20 App. D. C. 489. After timely

moving for a new trial, accused has until

the day set for the hearing, it not being

more than 30 days distant and before the end

of the term, to file his brief of evidence.

Hall v. State, 120 Ga. 305, 47 S. E. 907. Evi-

dence as to change of venue must be per-

petuated In a bill of exceptions prepared and

filed during the term. Code Cr. Proc. 1895.

art. 621, is not affected by Act 2811 Leg. p. 88.

32, c. 25, authorizing bills to be filed out of

term time. Wallace v. State \[Tex. Cr. App.\] 81 S. W. 66;Lax v. State \[Tex. Cr. App.\] 79 S. W. 675;Mason v. State \[Tex. Cr. App.\] 81 S. W. 718. The statutory providing that a

party may be granted 20 days after term to

file a statement of facts and bill of except

tions, authorizes the filing during such time

8. W. 37.

81 S. W. 966;Lax v. State \[Tex. Cr. App.\] 91 * 4 Cur. Law. INDICMENT AND PROSECTION SS 17F. \_Amendments, additions, and corrections.\_17--The appeal court cannot correct or amend the memorial of the evidence.\_18 corrections of the record being necessarily made in the trial court on application seasonally made.\_19 In Washington the trial judge has authority to correct his certificate according to the fact at any time before the appeal is heard,\_20 \_and may be compelled by mandate in a proper case to correct it.\_21 \_A motion for certiorari to correct the record and rehear the cause as corrected will be granted in North Carolina after reversal.\_22 \_An amendment of the record made nunc pro tune showing proper arraignment and plea will control in deciding assignments of error.\_23 \_In some states parties are allowed to present the affidavits of bystanders as to what occurred at the trial where they deem themselves aggrived by the action of the judge in settling the bill,\_24 _but in Kentucky the verity of the bill as certified by the judge cannot be so_ \_assailed,\_25 \_and the trial court's explanation of a bill of exceptions cannot be attacked by ex parte affidavits.\_26\_\_The statement of facts_27 \_must be approved,\_28 \_served_29 \_and filed,\_20 \_within the statutory or allowed period, and a statement not agreed to by counsel nor approved by the court will not be considered though authenticated by the affidavit of three witnesses.\_21 \_A statement not appearing to have been approved cannot be considered,\_24 \_but where defendant takes all the necessary legal steps to have his statement of facts approved and the court refuses to approve it or prepare a correct one, reversal will follow.\_23 \_It should state that it contains all facts admitted, the facts admitted to have been proven, and the evidence of the facts disputed.\_24\_\_Under the Georgia practice, the motion for new trial,\_25 \_unless the recitals of fact contained in a ground of a motion for new trial are approved or certified as true by the trial judge, the errors therein alleged cannot be considered.\_28 $A$

- 16. Shepherd v. State \[Tex. Cr. App.\] 79 27. See 2 Curr. L. 383. 28. A statement merely signed by counsel is not sufficiently authenticated by the sig- nature of the judge approving the record as of the brief of the evidence, matter which affrmatively appears to have been stricken 83 83. V. 1110. The statement of facts to be therefrom before it was filed below and which is sought to be incorporated therein \_limited by the statute or an extension therefrom the hearing in the supreme court. Davis of. Territory v. Flores, 3 Aris. 315, 77 P. 491. 19. Affidavits will not be received to contradict reits in the record and show that the bill was in fact presented and signed in time and insidvertiently dated too late by the judge. Talty v. District of Columbia, 20 499. 75 P. 88. 20, 21. State v. Klein \[VWash.\] 78 P. 137. 22. State v. Marsh, 134 N. C. 184, 47 S. E. 6. 23. Cooper v. State \[Fla.\] 36 So. 53. 24. Conflicting affidavits of bystanders held insufficient to establish matter stricken (Cr. App.\] 78 S. W. 938. The order limiting from the hill by the court. State v. Steen \[Iowa\] 101 N. W. 96. A bill signed by the judge cannot be impacted by affidavits of counsel. Statute provides for affidavits of bystanders. Moree v. State \[Tex. Cr. App.\] 83 S. W. 1117, Counsel's affidavit stating that the court qualified the bill of execution without counsel's knowledge at a time when he could not secure the affidavits of bystanders presents nothing for review where it shows no prejudice or what the qualifications were. Laudermill v. State \[Tex. Cr. App.\] 83 S. W. 1107. 23. Dodson v. Commonwealth, 25 Ky. L. R. 1765, 78 S. W. 874. 28. Littlefield v. State \[Tex. Cr. App.\] 80 S. W. 85. 4 Curr. Law--4 **27**. See 2 Curr. L. 383. 28. A statement merely signed by counsel is not sufficiently authenticated by the sig- nature of the judge approving the record as correct. Ex parte Wallace \[Tex. Cr. App.\] 83 S. W. 1110. The statement of facts to be considered must be made up within the time limited by the statute or an extension therefrom the hearing in the supreme court. Davis of. Territory v. Flores, 3 Aris. 315, 77 P. 491. 29. 30. 28. Where the copy of the statement of facts is served before the original is filed, as required by statute, it cannot be considered, time and insidvertiently dated too late by the judge. Talty v. District of Columbia, 20 499. 75 P. 88. 30. 20. 21. State v. Klein \[VWash.\] 78 P. 137. 22. State v. Marsh, 134 N. C. 184, 47 S. E. 6. 23. Cooper v. State \[Fla.\] 36 So. 53. 24. Conflicting affidavits of bystanders held insufficient to establish matter stricken (Cr. App.\] 78 S. W. 938. The order limiting from the hill by the court. State v. Steen \[Iowa\] 101 N. W. 96. A bill signed by the judge motion for new trial cannot be amended in the supreme court by adding new assignments of error.\[31\]

_Limitation of review to matters in the record.\[38\]_--Except as to those jurisdictional matters which the record is in most states required to show,\[39\] every reasonable presumption is in favor of the correctness of the proceedings below, and unless the record shows error this presumption will prevail,\[40\] and the certified record is conclusive as to matters contained therein.\[41\] .Accordingly, to entitle appellant to review a ruling it must affirmatively appear that such ruling was made,\[42\] or the proceeding had,\[43\] of which complaint is made, and such facts as show that it was error,\[44\] or explain the objection,\[45\] and the objection and excep-

37. Miller v. State \[Ga.\] 48 S. E. 904.

Mo. 192, 79 S. W. 1111. Reading from books or paper by prosecuting attorney not shown

38. See 2 Curr. L. 384.

01. See ante, this section, "The Record."

01. State v. Honk, 91 Minn. 419, 98 N. W. 82 S. W. 384. Where testimony at the in-

324; People v. Allen \[Cal.\] 77 P. 948. Record

at the trial is not set out, and the prosecut-

32. State v. Smith \[Iowa\] 100 N. W. 40.

ing attorney denies reading it and the court

This presumption will require the court to

assume that counsel adopted a line of argu-

been read it should be disregarded, the objection is untenable. Scott v. State \[Tex.

34. on the argument should cause the jury

Cr. App.\] 81 S. W. 47. Objection to allowing

to fall to follow the court's instructions.

State v. Lehvhrman, 123 Iowa, 476, 98 N. W. 838.

140. Presumed in favor of conviction, that

001. State v. Lewis, 112 La. 872, 36 So. 788;

after an attempt to impench her had been

State v. Henderson \[La.\] 36 So. 950. The

511. The record will not be interpreted to

storming whether the statute under which

show error if it be susceptible of a reason-

defendant was convicted was constitutional

able interpretation to the contrary. State v.

Durein \[Kan.\] 78 P. 152. On appeal in a

in the bill. Peckham v. People \[Colo.\] 75

contempt case it will be presumed in aid of

7. 422. An exception on the ground of

the conviction that the accused was present,

there being no showing to the contrary.

Ile of the indictment where necessary to

Mahoney v. State \[Ind.\] 72 N. E. 151.

41. That defendant acquiesed in excus-

01. Objectionable publication getting into

ing slck juror, swearing another and repro-

ducing testimony. State v. Renk, 91 Minn.

State v. Schonen \[Kan.\] 76 P. 823. Remarks

419, 98 N. W. 234. A statement of the time

at which defendant moved to discharge the

jury, which appears in the statement of fact

Sanders \[S. C.\] 47 S. E. 85. Refusal to dis-

contained in the order of the court in the bill

1988 for delay in prosecution. State v. Yan

of exceptions must be accepted as true.

Waters \[Wash.\] 78 P. 897. Refusal to con-

Turner v. Commonwealth, 25 Ky. L. R. 2161,

since on the ground that the district attor-

80 S. W. 197. The statement of facts is con-

clusive as to the date of the commission of

the offense and cannot be controlled by the

averment of the indictment, though the

statement shows the prosecution to be barred by limitations. Lane v. State \[Tex. Cr. App.\] 81 S. W. 239. Refer-

App.\] 82 S. W. 1034.

42. State v. Eggleston \[Or.\] 77 P. 738;

State v. Henderson \[La.\] 86 So. 950. A

tlen for new trial for newly-discovered

dence cannot be considered an appeal where

there is no bill of exceptions in reference to

the matter, and no order of the trial court

overviling the motion, or any exception

there, appears in the record. Elmore v. State \[Tex. Cr. App.\] 78 S. W. 520. Where

no motion to quash the affdavit on which

the arrest was made is set out in the tran-

script, no question as to the ruling of the

court on such motion is presented for re-

view. Ross v. State, 139 Ala. 144, 36 So. 718.

Objections to jurors will not be reviewed

where the bill does not show whether they

sat in the trial and what disposition was

made of them. Dodd v. State \[Tex. Cr. App.\] 82 S. W. 510.

43. Improper remarks of the prosecuting

attorney will not be reviewed unless preserved in the record. State v. Brown, 181

44 tion must be shown\* with the grounds.47 Where there is no certificate that the

variance existed. McClellan v. State \[Ala.\]

of a system. Buck v. State \[Tex. Cr. App.\]

83 S. W. 387. Seemingly irrelevant testialized of must be set out. Whittington v.

mony will not be regarded as prejudicial in State \[Ga.\] 48 S. E. 948; Andrews v. State \[Tex. Cr. App.\] 83 S. W. 188; Landermilk v.

might prejudice. Why people often went to State \[Tex. Cr. App.\] 83 S. W. 1107. Ma-

a depot where a domicide occurred. Black terality, relevancy, reception, and probable injury, must appear. State v. Woods, 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

190

191

192

193

194

195

196

197

198

199

190

191

192

193

194

195

196

197

198

199
record contains all the material evidence its sufficiency cannot be considered,\[48\] and it cannot be assumed, in the absence of the evidence, that the court erred in admitting certain evidence because he instructed the jury to disregard it,\[48\] but where pleas of not guilty and autrefois acquit are both at issue, and judgment is entered on general verdict of guilty, it cannot be presumed in aid of the judgment, the evidence not being brought up, that none was offered in aid of the plea of autrefois acquit.\[60\] Questions not raised by the record will not be considered though argued.\[51\]

_Setting out evidence or statement of facts.\[52\]_--A statement of facts or other showing of the evidence is necessary to a review of the sufficiency of the evidence,\[53\] giving or refusal of instructions,\[54\] denial of new trial,\[56\] admission of evidence,\[50\] refusal of continuance,\[57\] acceptance of juror,\[58\] variance,\[69\] misconduct of jurors.\[60\] Testimony should be presented in narrative form unless it is material that the court should know how it was given.\[61\] Written and printed exhibits objected to should be set out, not merely referred to and described by date and general import.\[62\] The bill of exceptions to the admission of a person's declaration should state as a fact and not merely as a ground of objection that the declarant was an unpar-doned convict and hence incompetent to testify.\[63\]

(SS 17) _G. Practice and procedure in reviewing court.\[64\]_--The Federal courts in matters of procedure in error, follow the common law without regard to the practice in the state courts.\[65\]

_Assignments, abstracts, briefs, etc.\[68\]_--In some states, in criminal cases, all questions apparent on the record must be considered, though there are no assignments.\[67\] Generally, however, errors must be specifically assigned,\[68\] and a general assignment to several rulings will be overruled if any ruling be correct. A gen 4 Cur. Law. INDICITMENT AND PROSECTIONI SS 17G.

eral assignment referring to several instructions will be overruled if any be good." Unless apparent, the assignment must show wherein the error consists," and set out the matters complained of and the rule of law claimed to be violated." In some states, neither brief nor argument is necessary;" but the general rule is that in the absence of a brief, the court will only look to the jurisdiction of the court, the sufficiency of the indictment, and the regularity of the judgment;" and that exceptions" and assignments not referred to in the brief or argument will be treated as abandoned," unless error in the ruling is so glaring or patent that no argument, is needed to demonstrate it." The assignment or brief should refer to the portion of the record where the error lies," and point out the exact defect." An additional argument filed for the state will not be stricken where pertinent and called forth by the defense."

_Dismissal_\[80\] will be granted for failure to properly bring up the case," or where appellant dies pending the appeal." Dismissal appeals may be reinstated on proper application and showing." Where exceptions are waived after being entered

68. Miller v. State \[Ind. App.\] 71 N. E. 248: Parnell v. State \[Fla.\] 86 So. 166: Miller v. State \[Ga.\] 48 S. E. 904. And one refer-ring to several requests will be overruled if any should not have been given. Miller v. State \[Ind. App.\] 71 N. E. 248.

01. Assignment of error on refusal to allow counsel to read from book on argument must show what he desired to read.

Smith v. State, 120 Ga. 161, 47 N. E. 662. General objections that extracts from the charge are erroneous will be overruled if it appear that they are correct, viewed as abstract propositions of law. Owens v. State, 120 Ga. 209, 47 N. E. 645. Where the law is correctly given by the trial judge, the appeal court will not, in the absence of a special assignment, undertake to require the charge was adjusted to the facts of the case. Bone v. State \[Ga.\] 48 S. E. 986. An omission to charge a proposal.

68. 166: If the acceptance of law favorable to accused cannot be taken advantage of by assigning error on an unobjectionable instruction given. Williams v. State \[Tex. Cr. App.\] 82 S. W. 617: v. State \[Ga.\] 48 S. E. 986. An assignment of error in allowing to be put a certain question set out in full, and which appears to be answerable only by yes or no only one of which answers would be prejudtal to de-

01. 162: Lane v. State \[Tex. Cr. App.\] 82 S.

01. 164: If the court will not look into the transcript for instructions and at the code the court, etc. Yann v. U. S. \[Ind. Ter.\] 82 to determine whether error was committed.

01. 167: Where the record fails to show

01. In criminal cases, unlike civll, the court must examine the record and render

81 S. W. 302: Lowrey v. State \[Tex. Cr. App.\] judgment thereon, though neither party

82 S. W. 517: Lane v. State \[Tex. Cr. App.\] favorons the court with argument. State v.

99. 179: If the acceptance in the supreme judicial court and a rescript sent to the superior court, it is not too late for that court to entertain a motion for revision of the sentence.\[84\]

_Rehearing.\[88\]--Rehearing in criminal cases are not granted in North Carolina.\[89\]_

A motion for rehearing sent before expiration of the time fixed by rule to a judge of the court for permission to file, but not soon enough for him to forward to the clerk within the prescribed time, is too late.\[90\]\_

_Interlocutory and provisional proceedings.\[88\]--A_

_arit of error may be amended in Wisconsin to show that its purpose is to review the order refusing a new trial and not the final judgment as stated therein.\[89\]_

(SS 17) $H$_. Scope of review.\[90\]--Review is confined to matters made of record\[91\]_

_and properly assigned and argued\[92\] and which have been preserved by necessary and proper objection and exception;\[93\] but some states have relaxed the requirements by requiring a review of apparent error.\[94\] The review of the refusal of the trial court to discharge defendant or direct a verdict in his favor at the close of the state's evidence, permitted and required by the New Jersey criminal procedure act,\[95\] brings into question only whether there were then presented facts proper to be submitted to the jury in respect to the charge contained in the indictment.\[96\]_

_Where there is no bill of exceptions or other memorial of the proceedings required to be shown thereby, nothing is reviewed but the record proper.\[97\] Review is restricted to the rulings below,\[98\] and to the theory on which the action below was based;\[99\] but a correct decision will not be reversed because based on a wrong reason.\[1\]_

No neglect of defendant's counsel to introduce available evidence favorable

84. Commonwealth v. Lobel \[Mass.\] 72 N. \[command=

$4.\] $2 N. \[command=

$5.\] $6 A. 278. \[command=

$8.\] $97. \[command=

$8.\] $8.\] $97. \[command=

$8.\] $8.

to him, or unskillful conduct of the case, is ground for reversal." Gratiutous questions are not decided," and excessiveness of sentence will not be reviewed where the judgment is reversed on other grounds."

Rulings on matters within the discretion of the trial court, such as denial of motion to quash indicitment for insufficiency of evidence on which it was found," resubmission of bill to grand jury, or setting aside so much of their findings as imposes costs on the prosecutor," continuances," change of venue," allowance of bill of particulars," appointment of counsel in noneepital case," placing of witnesses under the rule," application to disqualify sheriff," rulings on the qualification of jurors," the examination of witnesses," the order of proof," the primary admissibility of confessions," dying declarations," or declarations claimed to be res gestae," competency of witnesses," limiting the time for argument," the argu ment of counsel for the state,\[21\] refusal to direct a verdict,\[22\] motion for new trial,\[23\] allowing amendment thereof after time,\[34\] will be reversed only in clear cases of abuse of discretion to the prisoner's prejudice. Sentence within the limits of the law is within the discretion of the trial judge.\[25\]

On questions of fact, the findings of the trial judge\[26\] and the verdict of the jury will be sustained, as where based on sufficient,\[27\] or conflicting evidence,\[28\] or

ple v. Manoogian, 141 Cal. 592, 75 P. 171;

People v. Suesser, 142 Cal. 364, 75 P. 1033.

Witness not understanding nature of oath.

State v. Burns \[Nev.\] 74 P. 983.

20. State v. Rogowsky \[Cr.\] 78 P. 987.

01. Gallinger V. People, 211 III. 168, 71

\[Utah\] 71 P. 8; State v. Jackson \[S. C\] 46 N. E. 842; People v. Sing Lee \[CaL\] 78 P.

S. E. 833: McNish V. State \[Tr.\] 84 S. W. 601;

636.

001. Davis v. State \[Ga.\] 48 S. E. 162.

001. Thomas V. State, 139 Ala. S. 36 So.

Pople v. Gonzales, 143 Cal. 605, 77 P. 448;

73.4, citing cases; McDennell v. V. Is C. C. A.J.

Johnson V. State, 119 Ga. 661, 46 S. E. 838;

138 F. 283. Cr. Code Pr. 8 281. Moore v.

Kincald v. Com., 25 Ky. L. R. 1685, 78 S. W.

Com. \[Ky.\] 81 S. W. 669. Misconduct of 433. Circumstantial evidence. State v.

counsel. State v. Greenland \[Iowa\] 100 N. Wulteman \[S. C\] 46 S. E. 765; Nelson v.

W. 841; People v. Sing Lee \[CaL\] 78 P. 636.

State, 120 Ga. 312, 47 S. E. 899. On review

Improper conduct of county attorney in jury

room. King v. Com., Zs. K. L. R. 713, 714, 71 G where the defense of lnsainly was Inter-

S. W. 341. Misconduct of juror. People v.

Posed, the verdict will be regarded as con-

Koeppling, 178 N. Y. 247, 70 N. E. 778. For-

clause upon that Issue in the absence of

mer conviction first raised by motion for

such elements in the case as show the ver-

new trial. State v. Duration \[Kan.\] 78 P. 152.

dict was against the weight of the evidence,

Relationship. Qualification of juror. Lillill

or that it was influenced by some mistake,

v. State \[Neb.\] 100 N. W. 216; Commonwealth

error, or prejudice. People v. Spencer \[N.

v. Wong Chung \[Mass.\] 71 N. E. 292. Jurro Y. 72 N. E. 461. The appeal court does not

under 21 Colde Cr. Prac. 8 281. Hensley v.

pass upon the question of reasonable doubt.

Com. \[Ky.\] 83 S. W. 456; Howard v. Com.

State v. Pray \[Iowa\] 99 N. W. 1065. Wheth-

\[Ky.\] 80 S. W. 817; State v. Lipscomb, 144

er the verdict is supported by the weight of

N. C. 689, 47 S. E. 84. Nonesciecn. Kling

evidence cannot be considered on writ of

v. State, 119 Ga. 426, 46 S. E. 638. Newly error. State v. Donohue \[N. J. Law\] 59 A.

discovered evidence. People v. Buckley 12.

\[CaL\] 77 P. 169; State v. Lowell, 123 Iowa, 28. In case of conflict of the evidence its

427, 59 N. W. 125; People v. Sing Two \[CaL\] 81 sufficiency to support a conviction cannot be

78 P. 235; Nix v. State, 120 Ga. 162, 47 S. E. 816;

516; Bradley v. State \[Ga.\] 48 S. E. 317.

Cuthbertson v. State \[Neb.\] 101 N. W. 1031;

Jordan V. State \[Ga.\] 48 S. E. 352; Miller v.

Searborn v. Com., 25 Ky. L. R. 2903, 80 S. W.

State, 119 Ga. 661, 46

## 4 Cur. Law. INDICTMENT AND PROSECTION SS 17L

depends on the credibility of witnesses,\[29\] even though the evidence be not of the most convincing kind,\[30\] or preponderates against the verdict,\[31\] especially where the trial court has approved the verdict.\[32\] Where the jury impose the penalty, the ease must be rare and the abuse flagrant to justify setting it aside on the ground of excessiveness.\[33\] The admission of evidence subsequently ruled out on its incompetence appearing cannot be deemed prejudicial in a case tried to the court without a jury.\[34\]

An order of reversal that does not upon its face exclude the possibility that it was based upon an examination of the facts, or made as a matter of discretion, presents no question of law reviewable by the court of appeals of New York.\[35\] Where the instructions are ambiguous and the verdict can only be accounted for on the theory that the jury were misled as to the law or willfully disregarded it, it cannot be presumed they did the latter.\[36\]

(SS 17) _1. Decision and judgment of the reviewing court.\[37\]--An equal division of judges makes an affirmance.\[38\]_

Remand for new trial is not necessary if the error is one that requires no retrial of the facts. Thus the judgment may be conformed to the verdict,\[39\] but generally, where a judgment is reversed for failure of the court to pronounce a legal judgment, the case may be remanded with instructions to render judgment on the verdict.\[40\] New trial was granted on affirmance in a hard case in North Carolina.\[41\] In California a new trial need not be directed where the reversal

founded doubt arises from all the evidence. Lewis V. State \[Ga.\] 48 S. E. 227; Cotton v. McCracken V. People, 209 Ill. 216, 70 N. E. State \[Ga.\] 48 S. E. 902; Collins v. State 749. Whether defendant or deceased was \[Ga.\] 48 S. E. 903; Harris v. State \[Ga.\] 48 S. E. 904, 905; Buckline v. State \[Ga.\] 49 S. E. 267; reason to believe deceased intended to kill \[Ga.\] 49 S. E. 268;ham and did so believe. State v. Sharp \[Ga.\] 49 S. E. 268; State \[Mo.\] 82 S. W. 134.

20. McNish v. State \[Fi.\] 36 S. E. 176.

01. Peacock Distilling Co. v. Com., 25 Ky. Whether witnesses have been successfully \[L. R. 1778, 78 S. W. 893.

01. Terry v. State \[Tex. Cr. App.\] 79 S. v. Sharp \[Mo.\] 82 S. W. 134.

01. People v. Calabur, 178 N. Y. 463, 71 witnesses. State v. Levy \[Idaho\] 75 P. 227;

01. People v. Sylva, 143 Cal. 62, 76 P. 1041; Quigg v. People, 211 Ill. 17, 71 N. E. 814.

01. See 2 Curr. L. 890.

01. State v. Rijlory, 82 Vash. 182, 72 P. 1086; Garfson V. Territory, 131 Oct. 69, 76 P. 182; Shady v. State, 120 Ga. 202, 47 S. E.

01. If there is evidence which, with the incorrectness which the jury were warranted in reasonably drawing therefrom, supports the judgment rendered on every material point, a reversal is not authorized on the ground \[Mn.\] 88 S. W. 1074; Lander-

01. State v. Houghton, (7.75 P. 822;

that upon certain points such evidence is weak and unsatisfactory. Larklin v. State \[Kan.\] 77 P. 290; McCormick v. State \[Ind.\] 71 N. E. 859.

31. Ball v. State \[Tex. Cr. App.\] 78 S. P. 625. For error in the sentence the judgment will be reversed and the cause re-

01. State v. Callahan \[S. D.\] 99 N. W. 79.

1100: Black v. State, 119 Ga. 746, 47 S. E. 870; Hicks v. State, 120 Ga. 176, 47 S. E. 547.

a vodable sentence to be set aside on ap-

As by refusal to set It aside. Brown v. State \[Ga.\] 48 S. E. 152; Murphy v. State, 120 Ga. 179.

119 Ga. 300, 46 S. E. 450; Nix v. State, 120 Ga. 162, 47 S. E. 516; Courvey V. State, 120 Ga. 162, 47 S. E. 564; Butler v. State, 119 Ga.

562, 46 S. E. 838; Bickers v. State, 120 Ga.

172, 47 S. E. 615; Ramfson v. State, 120 Ga.

175, 47 S. E. 662; Powell v. State, 120 Ga.

181, 47 Sextends to the order denying a new trial as well as the judgment."22 Where there is no evidence to sustain the verdict, and it appears from the record that there is no probability that any could be produced, defendant should be discharged."23 In New York, where the verdict in a prosecution for homicide is for assault but is not justifiable under the law, deceased having died of the wound, a reversal on appeal does not necessitate defendant's discharge."24 After affirmance, plaintiff in error cannot procure the setting aside of his conviction by motion on the theory that the record he brought up was incorrect."25

(SS 17) \_J. Proceedings after reversal and remand."26--\_The issuance and filing of the mandate after reversal is not essential to the jurisdiction of the lower court to again try the accused."27 New trial after reversal is had upon the same indictment in the same court, and the entire proceedings constitute one record."28

Questions determined on a prior appeal are the law of the case."29 Where a conviction of an included offense is reversed, defendant cannot, on motion for new trial, first raise the question that he could not again be tried for the original offense."29

SS 18. \_Summary prosecutions and review thereof."21--\_Prosecutions under municipal ordinances are generally regarded as civil in their nature rather than criminal,"22 and may be founded on any oral or written accusation reasonably informing accused of the nature of the charge."28 Affidavits and complaints in prosecutions for misdemeanors may be amended."29 Trial by jury is not necessary,"29 and pleas of guilty may be received."29 Sentence must conform to the statute."29 Summary prosecution followed by punishment consisting of hard labor in the public chain gang is not due process of law within the constitution of the United States."29

42. Statute requires direction either that new trial be had or defendant discharged \[Pen. Code # 1267\]. People v. Lee Look, 143 Cal. 216, 76 P. 1028.

01. State v. Gordon \[Utah\] 76 P. 882. Though defendant must be discharged on reversal if it appears no offense has been committed, where reversal is had for defects in the information and defendant appears to be guilty, he must be held for a new trial \[Baltimore's Ann. Codes & St. 6532\]. State v. Riley \[Vwash\] 78 P. 1001. $ 44. People v. Schlavi. 86 App. DIV. 479, 89 N. Y. S. 564. The fact that defendant moved for a discharge Instead of for a new trial does not prevent the court on appeal from ordering a new trial. People v. Schlavi, 86 App. DIV. 479, 89 N. Y. S. 564.

01. State v. De Mata \[N. J. Law\] 58 A.

01.

01. See 2 Curr. L. 390.

01. May be waived by failing to object. State v. Houghton \[Or.\] 75 P. 887.

01. McInish v. State \[Fla.\] 38 So. 176.

01. People v. Jan John \[Cal.\] 77 P. 950.

01. State v. Houghton \[Or.\] 75 P. 887.

01. See 2 Curr. L. 391.

01. City of Billings v. Brown \[Mo. App.\]

80 S. W. 322. An ordinance providing that any person violating it shall forfeti a cerstain penalty contemplates a civil and not a criminal proceeding to recover the penalty. People v. Sloan. 90 N. Y. S. 762.

53. Prosecution may be founded on an accusation based on an affavit. Affavit held sufficient. Murphy v. State, 119 Ga. 300, 46 S. E. 450. An afflavit upon which an accusation in a city court is founded is not necessary.

01. State requires direction either that new trial be had or defendant discharged \[Pen. Code # 1267\]. People v. Lee Look, 143 Cal. 216, 76 P. 1028.

01. State v. Gordon \[Utah\] 76 P. 882. Though defendant must be discharged on reversal if it appears no offense has been violated. State v. Thompson, 111 La. 315, 35 So. 582. A proceeding for violating a city or ordinance being civil in its character, an information is not necessary. City of Billings v. Brown \[Mo. App.\] 80 S. W. 322.

01. McInguen v. State \[Ala.\] 37 So. 360.

01. May be waived. Hillier v. State, 5 Ohio C. C. (N. S.) 245. The constitutional guaranty of trial of halcitments by a jury does not extend to prosecutions for violations of clty ordinances. Bray v. State \[Ala.\] 37 So. 250.

01. A mayor having complete jurisdiction in cases of misdemeanor, a plea of guilty entered before him is to be given the same effect as in the courts of higher jurisdiction. Values jury trial. Hillier v. State, 5 Ohio C. C. (N. S.) 245. A plea of guilty in a prosecution begun before a justice of the peace, can properly be put in only when the offense charged is one within his final jurisdition. McVeigh v. Ripley \[Conn.\] 58 A.

01.

01. A sentence of a police court that the defendant be imprisoned and pay a fine and stand committed "until the fine and costs of prosecution The record must show all the legal requisites of a legal trial, conviction, and judgment\[59\] including the offense,\[40\] the names of the witnesses,\[91\] the evidence,\[41\] and judgment.\[63\]

Review.\[64\]--In the Indian Territory the filing of the statutory afflavit is a condition precedent to defendant's appeal from a conviction of violation of a city ordinance.\[65\] In Missouri failure to give a recognizance does not prevent the appeal,\[66\] and a recognizance filed the same day a motion to dismiss was overruled will be presumed to have been filed first.\[67\] A motion in the circuit court on appeal to dismiss a complaint for violation of a city ordinance because it charges no offense under the ordinance cannot be disposed of where the ordinance is not before the court,\[68\] and an unauthenticated paper purporting to be a copy of an ordinance among the papers filed by the police judge is no basis for a constitutional construction of the ordinance.\[69\] Defendant's unsupported motion will not overcome the presumption of correctness of a justice's return supported by his afflavit, and authorize the court to compel him to amend it.\[70\] An appeal and trial de novo from a conviction in a city court which had no jurisdiction of the offense does not vest the county court with jurisdiction.\[71\] On trial before mayor and aldermen on appeal from the mayor it is improper for him to state that there is a variance in the evidence of a witness who testified on both trials.\[72\] Review is limited by the statute.\[73\]

On certiorari.\[74\]--On certiorari to a magistrate on a commitment in the nature of a final judgment, the only question is that of jurisdiction.\[75\] In Pennsylvania, a special allowance from the court of common pleas must be had for a writ of certiorari to a justice of the peace or alderman in a summary conviction for a violation of the Sunday law.\[76\] No bond is required as a condition precedent to the issuance of the writ in Georgia;\[77\] and the proceeding will not be dismissed on final hearing for want of bond in New Jersey, where it appears that the judgment must be for the petitioner.\[78\] The writ may stay execution of the sentence but will not operate to discharge the prisoner. That privilege must be secured as in all other basilable cases.\[79\] Application for a certiorari to a municipal court need not state that accused has not had a fair trial, etc., as required where the writ runs against a county court.\[80\] If petitioner makes no move to have a defective return perfected, the petition should be overruled.\[71\] A certiorari dismissed for failure to serve the officer whose action is sought to be reviewed is not one which cannot be renewed under the statute.\[81\]

59. City of Orange v. McConnell \[N. J. LaW\] 59 A. 97.

60,61. Leek v. Kreps \[N. J. LaW\] 56 A. 167.

62. City of Orange v. McConnell \[N. J. LaW\] 59 A. 97.

01. Sentence is not sufficient. Lewis v. State \[Del.\] 58 A. 94.

01. See 2 Curr. L. 891.

01. Fortune v. Wilburton \[Ind. T.\] 82 S. W. 738. The afflavit must be filed with the justice before whom conviction is had, and not with the appeal court. Id.

66,67. City of Tarkio v. Loyd \[Mo. App.\] 82 S. W. 137.

68. City of Billings v. Brown \[Mo. App.\] 80 S. W. 322.

01. City of Tarkio v. Loyd, 179 Mo. 600,

01. S. W. 197.

01. Fortune v. Wilburton \[Ind. T.\] 82 S. W. 738.

01. Ex parte Hinson \[Tex. Cr. App.\] 81 S. W.-,987.

01. Erwin v. Cartersville, 130 Ga. 150,

01. E. 512.

01. Under the Beal Liquor Law there is no provision for the review of a conviction before the mayor of a misdemeanor on the ground that the judgment is against the weight of the evidence. FIke v. State, 4 Ohio C. C. (N. S.) 81, 25 Ohio Circ. R. 554.

01. See 2 Curr. L. 392.

01. People v. Warren of City Prison, 44 Misc. 149, 89 N. Y. S. 830.

01. Commonwealth v. Antone, 22 Pa. Super. Ct. 412.

01. Dixon v. State \[Ga.\] 49 S. E. 311.

01. City of Orange v. McConnell \[N. J. Law\] 59 A. 97.

01. Dixon v. State \[Ga.\] 49 S. E. 311.

01. Williams v. Sylvester, 119 Ga. 424, 46 S. E. 662.

01. Return did not even indicate what charge the accused was tried upon, nor what, if any, disposition was made of the case. Stephens v. Macon \[Ga.\] 48 S. E. 152.

01. Civ. Code 1895, is $786. Bass v. Mill-edgeville \[Ga.\] 48 S. E. 919.

Indisposing Papers; Infamous Crimes, see latest topical index.

INFANTS.

$ 1. Status and Disabilities in General

$ 4. Property and Conveyances (92).

(92).

$ 5. Contracts (93).

$ 2. Canbody, Protection, Support, and

$ 6. Torts (94).

$ 7. Crimes (94).

$ 3. Status for the Protection of Infants (92).

$ 8. Actions by and Against (94).

$ 1. Status and disabilities in general.'--Rights and duties as between parent and child,2 powers and proceedings of guardians ad litem," and commitment of infants to penal and reformatory institutions,4 are elsewhere treated, as is the application to infants of the doctrines of contributory negligence and assumption of risk.5

Footnote 4: The 1990s removed by an order valid on its face, cannot be set aside so as to affect innocent purchasers from his grantee, even though his sale had been induced by fraud.20 Though an infant owner of real estate may maintain partition, the use, without authority, of the name of an infant owner, in partition proceedings, does not confer jurisdiction over the infant, so as to bind him by the decree rendered; nor is his suit to set aside the partition barred by the statute of limitations, though fraud is an incidental cause of action.21 In actions for partition, where the legal formalities have not been fulfilled, the partition, in the case of minors, is considered provisional, and may be redemanded for the least lesion.22 The statute allowing infants one year after becoming of age in which to redeem lands sold for non-payment of taxes is construed liberally in their favor.23 In certain cases the vested estates of minors in real property may be sold by order of court of equity.24

SS 5. Contracts.28--A minor must disaffirm his contract within a reasonable time after coming of age, or be bound thereby.29 Contracts of infants to sell real estate may be ratified when they come of age, and specific performance then compelled; but so long as they remain infants, specific performance cannot be had against them.27 All voidable contracts of an infant in reference to personalty may be avoided by the infant at any time during his minority, or on his arrival at full age; nor is he obliged to place the other party in statu quo;28 but he cannot sue and recover anything thereunder.29 A nonenforceable contract may be ratified after suit has been commenced thereon.29 A partial payment made after part of such estate, there being no change of relation to the property on the part of the money for himself. Kinard v. the purchasers on account of any acts of the hefs. Ball v. Clothier, 34 Wash. 299, 75 P. 27 Tillery v. Lane \[N. C.\] 48 S. E. 824. 1089. A minor may use to recover property inherited from the mother, and illegally sold 803.

majority constitutes a ratification of a contract made during minority.\[31\] Payment to a minor is full satisfaction for services rendered by him, and the parents or guardian cannot recover therefor.\[32\] The marriage contract of an infant is voidable only at the election of one of the parties.\[33\] An infant is not liable on an executory contract to furnish him with necessaries. His executed contract is not absolutely void, but only voidable.\[34\] A minor's contract for other than necessaries, is, if executory, voidable; if executed on both sides he must restore what he received in order to recover what he parted with. If he cannot restore he may rescind and recover what he parted with, unless the other party shows that the contract was fair and free from fraud or over-reaching.\[35\] A minor making a mortgage on land belonging to him may, if the same be not a purchase-money mortgage, disavow the same.\[36\] A minor cannot disaffirm his mortgage in part, and affirm a part beneficial to himself.\[37\] Under a law prohibiting the disaffirm-ance of a minor's contract, where he has engaged in business as an adult, so as to give other parties reason to believe him capable of contracting, his employment as a farm laborer is not being "engaged in business" so as to preclude him from rescinding a contract for the purchase of land.\[38\] A minor may sue for recovery of money paid on a contract rescinded by the opposite party.\[39\]

8. 6. _Torts.\[40\]_
1. 7. _Crimes.\[41\]_--A boy of 13 is presumed incapable of committing crime, and the state must prove him to have the mental capacity of knowing right from wrong in reference to the offense charged.\[42\] A minor arrived at the age of discretion may be convicted of a violation of the local option laws.\[43\]
1. 8. _Actions by and against.\[44\]_--A minor to whom is refused a transfer from one line of city railway to another is entitled to bring an action, through a guardian ad litem, for the penalty provided by statute.\[45\] As an infant cannot maintain an action for seduction--that right belonging to him who bears to her the relation of master (ordinarily the parent)--the right of action does not survive her death.\[46\] Minors are allowed a reasonable time after coming of age to institute suits to defend or enforce their property rights.\[47\] The prescription of 10 years
1. 8. But a direction to a minor's debtor to pay the amount of the debt to the holder of the minor's note, believing that the holder had agreed to look to such debtor for payment, does not constitute a ratification \[Rev. St. 189, $ 34231. Snyder V. Gericke, 101 Mo. App. 647, 74 S. W. 877.
1. 8. **Ping Min. & Mill. Co. v. Grant \[Kan.\]**

75 P. 1044.

8. **A father cannot under Code Civ. Proc. 1 1744, maintain an action to annul his daughter's marriage on the ground that she had not arrived at the age of consent, unless she is a party thereto. Wood v. Baker, 43 Misc. 310, 88 N. Y. S. 854.**

1. **Jones v. Valentines' School of Telegraph \[WIs.\]**

1. **Praucht v. Graves-May Co. \[Minn.\]**

1. **W. v. 417.**

1. **Citizens' Bldg. & Loan Ass'n v. Arvin, 207 Pa. 293, 56 A. 870.**

1. **Lake v. Lund \[Minn.\]**

1. **W. v. 884.**

Evidence held insufficient to show s disaffirm-formance. Id.

8. **Code, $ 190.**

1. **Code, $ 2190.**

1. **W. v. 885.**

1. **Vanatter v. Marquardt \[Mich.\]**

95 N. W. 917.\*\*

40, See 2 Curr. L. 394.

41. **See 2 Curr. L. 395.**

01. **Harrison v. State \[Ark.\]**

01. **Brown v. State \[Tex. Cr. App.\]**

01. **W. 378.**

01. **See 2 Curr. L. 395.**

01. **Code Civ. Proc. 5 468.**

01. **R. Co., 42 Misc. 538, 86 N. Y. S. 84.**

01. **Laroque v. Conheim, 42 Misc. 613, 87 N. Y. S. 625.**

01. **Under Kentucky statutes infants may institute an equitable action to impeach a judgment within twelve months after reaching their majority \[Key. St. 1899, $ 4851\].**

01. **Johnson v. Tarbin, 25 Ky. L. R. 515, 76 S. W. 46. A minor hekr for good cause shown may be allowed to defend his interest in real property, in actions involving title to same, within two years after his coming of age. Gen. St. 1894, $ 842.**

01. **Jurisdiction was obtained by publication and the their was without actual notice of the pendency of the action, before the entry of judgment.**

01. **Hoyt v. Lightbody \[Minn.\]**

101 N. W.

- 4 Cur. Law. INFANTS SS 8.
- aequirendi causa does not run against infants.44 Limitations do not run against an infant, save for penalties and forfeitures, until one year after majority.45 Where a minor's disability ceases during the running of a limitation period, the period allowed him must run concurrently with the limitation period and not successively to it.50 The doctrine that a person has a reasonable time after reaching majority in which to disaffirm or ratify acts performed during infancy does not give an infant a time other than that specified by limitations.51 The requirements as to the service of summons on a minor are mandatory and must be strictly followed, or the judgment rendered against him will, as far as his rights are concerned, be void.52 The court acquires no jurisdiction over a minor defendant by the appointment of a guardian ad litern and the filing of his answer, unless due service of process has been made.58 No judgment can be rendered against a minor until after a defense by guardian.54 It is error to render judgment against minors, parties to trespass to try title, without their appearance by guardian;58 but a default judgment against an infant personally served is voidable only, and where the record is silent as to his nonage, he may not restrain the levy of an execution thereunder, without taking steps to vacate or modify the judgment.58 While it is error to try a case against a minor, where the guardian has not filed a general denial, the defect is not jurisdictional.57 The rendering of a judgment against infant defendants, which is void by reason of no defense having been made, is not a ground for appeal, until acted upon by the lower court.58 A submission to arbitration of an infant's cause by himself, or his next friend, or attorney for him, is absolutely void.59 Where a suit is brought by a minor, by his next friend, the minor, on arriving at his majority, may at his election, assume the prosecution in his individual capacity.60 It is the duty of a chancellor to see that infants are not prejudiced by any act or omission of their next friend,51 and the court is bound to protect the rights of infants notwithstanding the failure of the guardian ad litern to do so.52 The court will protect infant litigants from oppression or ex- 48. Civ. Code art. 3522. George v. De- laney, 111 L. 760, 35 So. 894.
- 40. Code, SS 3453. Rice v. Bolton \[Iowa\] 57. Swartwood v. Sage \[Kan.\] 75 P. 508.
- 100 N. W. 634.
- 50. 20 years after title accrved is allowed to make entry into lands. A minor is allowed to make entry into lands. A minor is allowed 10 years after coming of age to make entry. If he come of age during the 20 year period he cannot tack his 10 years on the end of the 20 year period. Wickes v. Wickes \[Md.\] 56 A. 1017.
- 51. Action to attack a constructive fraud of guardian in purchasing trust property at foreclosure sale. The ten years' limitation having expired during infancy, the infant had but one year after reaching majority to begin suit. Cahill v. Seltz, 93 App. Div. 105, SS 8. X. 8. 109.
- 52. Code, SS 76, as to service of summons on a minor under 14. If the judgment shows it is against a minor, but is silent as to his age, he will be presumed to be under 14 for the purpose of questioning the jurisdiction.
- 53. Boden v. Mier \[Neb.\] 98 N. W. 701.
- 54. On petition by administrator to sell lands, it was necessary to appoint a guardian for Intestate's minor child, who had no guardian \[Code, SS 3482\]. Rice v. Bolton \[Iowa\] 100 N. W. 634.
- 55. Butner v. Norwood \[Tex. Civ. App.\] 81 S. W. 78.
- 56. Cook v. Edson, Keith & Co. \[Ind. T.\] 82 S. W. 918.
- 57. Swartwood v. Sage \[Kan.\] 75 P. 508.
- 58. Lyon's Ex'x v. Logan County Bank's Assigne, 25 S. L. R. 1668, 7 S. W. 454.
- 59. Milletasy v. Estes, 134 N. C. 486, 46 S.
- 58. Ellisburg v. Estes, 134 N. C. 486, 46 S.
- 58. Ellisburg to amend, by striking out the name of the next friend, did not prejudice defendant, plaintiff having recovered a judgment including costs. Bernard v. Pittsburgh
- 59. Cool Co. \[Mich.\] 100 N. W. 396.
- 61. The chancellor may revoke the au- tortion in the matter of costs.${}^{ulletulletullet}$ Infants have the right to sue by guardian or next friend to recover damages for injuries to the person from the torts of others.${}^{ulletulletullet}$ In an action by an infant for injury, there can be no recovery for loss of wages.${}^{ulletulletullet}$ Where $\\cdot$an infant has neither natural nor legal guardian, he may recover for loss of time, in suing for damages for personal injury.${}^{ulletulletullet}$ An infant in an action against his employer cannot recover the cost of things for which his parents are primarily liable, without showing facts rendering himself liable for such cost.${}^{ulletulletullet}$ Where defendant in partition is an infant and has filed an answer traversing the allegations of the complaint, it is error to direct a compulsory reference over plaintiff's objection.${}^{ulletulletullet}$ The law permitting a minor to take an appeal from orders of the probate court, within a certain time after arriving at full age, does not prohibit him from taking an appeal by next friend during his minority; nor is an authority from any court necessary to enable a next friend to commence an action on behalf of an infant.${}^{ulletulletullet}$ But if an infant during his minority sues by guardian, he cannot thereafter institute another suit for the same purpose.${}^{ulletulletullet}$

INFORMERS, see latest topical index.

INJUNCTION.

SS I. Nature of Remedy and Grounds

Therefor (90).

SS II. Vho and What may be Enjoined

Easements and Rights of Way

(100).

A. In General (100).

B. Actions or Proceedings (100).

C. Public, Official, and MunicipalAts

(102). Elections and Right to Office

A. Issuance (113).

D. Enforcement of Statutes or Ordinances (104).

E. Exercise of Right- of Eminent Domain (104).

F. Acts Affecting Rights in Highways

and Public or Quasi Public Places

(104).

G. Acts of Quasi Public and Private Corporations or Associations (105).

H. Breach or Enforcement of Contract

or of Trust (106).

I. Interference with Property, Business,

or Comfort of Private Persons

(125).

SS 1. Nature of remedy and grounds therefor.${}^{ulletulletullet}$In general, the function of injunction is to compel inaction and of mandamus to compel action.${}^{ulletulletullet}$

A special injunction is one granted for the prevention of irreparable injury, when the preventive aid of the court is the ultimate and only relief sought, and the

delay In a cause If needed for the protection

66. Lynchburg Cotton Mills v. Stanley,

of a minor's interests, the minor being considered the ward of the court. State v.

87. Bering Mfg. Co. v. Femelat \[Tex. Civ.

Sommerville \[La\] 36 Sc. 104.

93. There were two infant plaintiffs and two infant defendants. They might all have been plaintiffs and appeared by one attorney. The costs allowed were reduced one-half by the appellate court. Grannemann v. Grannemann, 95 App. Dlv. 37, 88 N. Y. S. 405.

where infant appelices are not represented by guardian or next friend, the costs of ap-

peal should be taxed to appellants, though

the cause be reversed. Ex parte Cooper \[N.

C.\] 48 S. E. 681.

64. Clasen v. Prus \[Neb.\] 95 N. W. 640.

01. There was no showing that plaintiff

was entitled by emanelation to recover for his earnings, and being under age they belonged to his father. Nemorofskie v. Interurban St. R. Co., 87 N. Y. S. 463.

66. Lynchburg Cotton Mills v. Stanley,

102 Va. 590, 46 S. E. 908.

67. Bering Mfg. Co. v. Femelat \[Tex. Civ.

Appl.\] 79 S. W. 589.

68. Code Civ. Proc. 8 1544. Fairweather

V. Burling, 90 N. Y. S. 516.

69. Williams v. Cleaveland, 76 Conn. 426.

01. A. 850.

01. Bohannon v. Tarbin, 25 Ky. L. R.

515, 76 S. W. 46.

71. See 2 Curr. L. 397. In many of the topics relating to particular matters, e. g.

Corporations, 3 Curr. L. 880, the applicability

of injunctive relief is Incidentally discussed.

72. Newlin v. Harris \[Pa\] 58 A. 925. In conjunction restrains, and mandamus commands

action. State v. Board of Com's, 162 Ind.

580, 70 N. E. 373. A mandatory injunction is

11. in effect a mandamus, Waddick v. Merrill, 5 Ohio C. C. (N. S.) 103.

primary equity involved in the suit."A common injunction is one granted in aid of, or as secondary to, another equity."4

An injunction issues against persons and not against property or a business."5

The right thereto depends upon the facts existing at the time of the rendition of the judgment."7 The motive of defendant is immaterial."7 The fact that the chancellor acts as "of grace" does not authorize him to refuse an injunction to which a person has shown himself clearly entitled."8

As a general rule injunction will only issue where there is an unquestionable right,"9 and where irreparable injury will result from the acts complained of,"8 for which there is no adequate remedy at law."81 The remedy at law must be plain and

73, 74. Cobb v. Clegg. \[N. C.\] 49 S. E. 80, referred to in his bill of complaint. Ollphant

75. Not to suppress a business in which

v. Richman \[N. J. Eq.\] 59 A. 241. If threat-defendant has no right to engage. Flecken-

ened act is in the nature of a tort, it must

stel Bras Co. v. Fleckenstein \[N. J. Eq.\] 57 A. 1025.

stitute a legal wrong. Sale of nontransfer-

76. Under N. Y. Laws 1895, p. 882, e. 953;

have comments and excursion tickets by

Laws 1895, p. 486, e. 264; and Laws 1904, p.

P. 770. F. 1906, c. 749, Plaintiff held not entitled to

continuance of injunction restraining injury

to lee in river by operation of cement factory. American Ice Co. v. Catskill Cement

blaintiff, although the injury is not irrepara.

Co., 90 N. Y. S. 801.

77. Malice, etc. Robertson v. Montgomery

edges. Idaho Rev. St. 1887, g 4288. To re-

strain trespas in alteration of premises a

78. Shilivan V. Jones & L. Steel Co., 208

01. Caltech, v. Kingsbury \[Ill.\] 72 N. E.

01. Endrewa v. Kingsbury \[Ill.\] 72 N. E.

njunction is not defeated by the mere

11. Lease held not to give defendant right

absence of substantial damage from the acts

to cut lee from pond. Oliphant v. Richman

\[N. J. Eq.\] 59 A. 241. Plantiff must show a

ryryry complained of is the invasion of a right,

right in himself, and it is not sufficient to

show an absence of right in defendant. Indefandent to maintain possession of public

ofmce. Watson v. McGrath \[La.\] 36 So. 204.

Plaintiff restrained from leaving gates across

Must be admitted or established by legal

his right of way over defendants land open.

adjudication. Not issued where real purpose Ia to settle disputed title to reality.

Christman v. Howe \[Ind.\] 70 N. E. 809.

81. Andrews v. Kingsbury \[Ill.\] 72 N. E.

01. By any of action for damages for breach

a probable danger that it will be defeated

of contract, or for wrongfully preventing

without the intervention of the court. Caltech

lampairnant from carrying it out. American

laway v. Baltimore \[Md.\] 57 A. 661. Even

Ligniting Co., v. Public Service Corp., 132 r.

where the injunction is only sought for the

Purpose of protecting a legal right until it

can be established in some other proceed-

case. Augusta Steam Laundry Co. v. Debow,

ing, the application must show a fair prima

fake case in support of such right. Will

not issue at instance of vendors of reservoir

site to restrain enforcement of ordinance

repealling ordinance under which city purported

chased it and diverting proceeds of bonds

issued for that purpose into sinking funds so

as to put them beyond complainant's reach.

where it does not appear that vendors have

legal title or ever will have. Id. One can-

not enjoin the commission of waste on lands

to which he has no title and of which he

is not in possession. Perkins v. Mason \[Md. App.\] 79 S. W. 897.

80. Andrews v. Kingsbury \[Ill.\] 72 N. E.

11; Ollphant v. Richman \[N. J. Eq.\] 59 A.

241. Compilinant must make out plain case

of injury and damage. Sullivan v. Jones & L. Steel Co., 208 S. Pat, 549, FZ 1. 1065; Stauffer

v. Cincinnati, etc., R. Co. \[Ind. App.\] 70 N.

E. 643. This does not mean that complain-

ant must show that all his financial tran-

actions will be ruined unless the relief is

granted; but that he will be irreparably de-

prived of the particular right or property

4 Curr. Law--7.

Primary equity involved in the suit."81 A common injunction is one granted in

aid of, or as secondary to, another equity."81

An injunction issues against persons and not against property or a business."81 The right thereto depends upon the facts existing at the time of the rendition of the judgment."81 The motive of defendant is immaterial."81 The fact that the adequate, that is it must be as practical and efficient to the ends of justice, and its proper administration, as the remedy in equity.\[82\] It must also be one which may be invoked as a matter of right, without let or hindrance,\[83\] and by way of a civil action and not by criminal proceedings.\[84\] The remedy at law may be inadequate, that is it must be as practical and efficient to the ends of justice, and its proper administration, as the remedy in equity.

quate because requiring a multitude of suits,89 or because defendant is insolvent,89 or because the resulting damages will not be susceptible of computation.87

Footnote 89: The author is grateful to the anonymous referee for his comments.

An injury may be irreparable because the party cannot be adequately compensated therefor by damages,88 or because the damages cannot be measured by any certain pecuniary standard,89 or because defendant is insolvent.90

Injunction will not issue to allay mere apprehensions of injury,"11 nor to prevent an imaginative or fanciful wrong or injury."12

Where defendant is solvent, no injunction can be predicated on acts done before the suit is commenced." In order that mere threats may be the basis of an injunction they must be threats to do a wrong which is within the power of a court of equity to correct."13 Where an intention to commit the acts complained of is admitted, the writ, if otherwise proper, may issue before their actual commission."14 Preventive injunctions necessarily operate upon unperformed and unexeucutedacts, and prevent threatened but nonexistent injuries.15 In granting them, the court does not prescribe a rule of civil conduct, or invade the province of the law-making body, but merely enforces rules prescribed by organic or statute law, or that arise naturally and regulate all men.2

The right to injunction may be barred by laches."

SS 2. \_Who and what may be enjoined. A. In general.4--\_The various grounds whereon equity in general may be invoked8 and the general nature and office of injunctions6 have already been discussed. Injunction as a statutory remedy pertains to the particular subject-matter or right whereto the statute relates.7

(SS 2) _B. Actions or proceedings._"--The bringing of actions or suits may be restrained to work out any principle of equitable relief like multiplicity," vexation, and groundlessness;"15 but action will not be enjoined at the instance of parties having a perfect defense thereto at law,"16 nor will one legally liable be protected

9C. Petition for injunction to prevent sale of nontransferable tickets by brokers held, unsound. VVII issue to prevent sale of non-transferable tickets by brokers, though tickets not yet issued. Sehbach v. McDonald, issue as to tickets then held by brokers or thereafter issued. Sehbach v. McDonald, 179 Mo. 163, 78 S. W. 1020.

179 Mo. 163, 78 S. W. 1020.

publication of result of local option election because action in promulgating void result might lmpel others to use it to detriment of private. Inteects. Robinson v. Wingate 162. Plaintiff not stepped by laches to \[Tex. Civ. Appl. 80 S. W. 1067. Will not be granted on a hearing on demurter to an answer denying any intention to do the thing complained of. Fritter v. Bohl, 2 Ohio N. P. (N. S.) 365. An action to enjoin the construction of a system of sewers will not lie where it is averred in the answer that the contract for the work has been canceled for failure to comply with the Burns Law. Id.

9C. WIII not restrain location of cemetery next to plaintiff's land unless it is shown to be a nuisance. Elliott v. Ferguson \[Tex. Civ. App.\] 83 S. W. 56.

9C. Cutting timber. North Lumber Co. v. Gary \[Miss.\] 36 S. B. Not to enjoin crefton of sewer and water pipes by owner of upper story of building. Christman v. Howe \[Ind.\] 70 N. E. 809. WIII not lie to prevent city from enforcing alleged void resolution v. casting certain streets. Vanderburgh v. Minneapolis \[Minn.\] 100 N. W. 668.

9C. Forbes v. Carl \[Iowa\] 101 N. W. 100.

## 4 Cur. Law.

Injunction SS 2B.

while he works out a right to be indemnified against such liability,\[12\] nor where the doing of equity on complainant's part will discontinue the other suit.\[13\] It is proper to grant injunction in aid of, or ancillary to, actions at law, e. g., to restrain the setting up of a defense at law which is inequitable\[14\] or to maintain the status quo.\[15\] None will issue to prevent the bringing of a suit for injunction against complainant.\[16\] Enforcement of a judgment will not be restrained to permit the set-off of a prospective judgment which will be amply secured.\[17\] Injunction will issue to prevent the enforcement of a foreign judgment obtained through accident and mistake where it does not appear that there is an adequate remedy at law.\[18\]

Injunction will not issue when the defendant will thereby be put in conflict with the order of another court,\[19\] nor will equity interfere with matters over which another court is given exclusive jurisdiction.\[20\]

Statutes in some states provide that no injunction shall issue to stay the trial of a personal action in a court of law until the party applying therefor shall execute a bond to the plaintiff in such law action.\[21\]

By statute, federal courts are forbidden to grant a writ of injunction to stay proceedings in state courts, except where authorized by the bankruptcy act.\[22\] This

estoppel and forgery in suit for land. Mc-

Ilen on land and a bond with good surety for performance of contract on which com-

Call v. Fry \[Ga.\] 48 S. E. 200.

12. Abutting owners will not be enjoined

plainants's action is based. Montgomery Wa-

from suing railroad company for changing

ter Power Co. v. Chapman, 128 F. 197.

street grade, without ordinance authorizing

1st. Where plaintiff's attorney was not

It, because city has contracted to assume

notified by clerk of dissolution of previous

Iliability for damages resulting from change.

Injunction restraining prosecention of suit,

United New Jersey R. A. Canal Co. v. Lewis

in accordance with his agreement with eierk

\[N. J. Eq. \] 59 A. 227; United New Jersey R. A. Canal Co. v. McCulley \[N. J. Eq. \] 59 A.

12. A private citizen cannot maintain a

01. Action to foreclose trust deed when

ill to restrain the enforcement of a writ of

it appears from complainant's own showing

mandamus to compel a state treasure to

that the proceedings would be discontinued

pay the salary of a public officer under an

if he would pay what he admits to be due,

and avers his willingness and ability to pay.

the judges issuing the writ had no authority

Injunction properly dissolved where it appears that plaintiff did not make tender or

58 A. 925. Mandamus will not lie to compel

meet offer, on hearing, to accept part of sum

admitted to be due and discontinue

forcediction of a railroad aid tax which it

closure proceedings. Meets v. Mohr, 141

has been enjoined from enforcing. Even if

Cal. 667, 75 P. 298.

induction restraining board of county com-

14. Execuritz restrained from setting up,

as defense to action on claim, a decree of

the surrogate barring all claims not duly

verified and presented within a specified

time and which cannot be collaterally attack-

fornishes defense to mandamus against board

ed, on complainant showing a waiver of veril-

to order its collection. State v. Board of

faction of his claim which was presented

before such decree. Seymour v. Goodwin \[N.\]

20. Vill not enjoin qualification of execution

trx named ln will, or restrain her from

15. Making a change of the subject-mat-

preventing motion made to county court to

ter of a litigation pending an appeal, which

remove administrator appointed during her

might render the judgment of the appellate

consur nugatory when pronounced. Defend-

ant restrained from occupying street with

simmons \[V. Va.\] 48 S. E. 841.

railway tracks pending appeal of complain-

21. Injunction by bondholders to restrain

ant, who claimed exclusive rights, where law

removal of machinery from factory by ven-

court could not grant relief because not in

dor pending determination of rights of bond-

session. People's Traction Co. v. Central

pass. R. Co. \[N. J. Eq. \] 58 A. 597. Property

rights will not be disturbed by a preliminary

injunction pending trial of the right. See

post, SS 4.

16. Presumed that no application will be

allowed without sufficient showing of right.

Robertson v. Montgomery Baseball Assn'

\[Ala.\] 37 So. 388.

17. Defendant judgment creditor was in-

solvent but plaintiff had valid attachment

18. The reason why theact does not prevent them from enjoining proceedings in state courts when such remedy is ancillary to granting relief in a case of which the federal court has jurisdiction,28 nor does it apply to proceedings not pending, but merely threatened.24 The federal court has jurisdiction, under such act, to restrain a suit by a claim-ant against a trustee in bankruptcy for conversion of the proceeds of goods sold by order of the court.28

Footnote 28: The author is grateful to the anonymous referee for the support of the work of the author.

A state court has no jurisdiction to enjoin actions or proceedings in a federal court, or to enjoin parties from commencing or continuing them.28

(SS 2) _C. Public, official, and municipal acts27_ that are wrongful or unlawful may be restrained, as where police surveillance is made a trespass,28 or a drainage scheme will collect surface water and irreparably damage land,29 or part of a public park will be used as a public highway.30 Injunction may issue to restrain a breach of contract on the part of a city,31 but it will not be so restrained as to disable the city to serve the public interests and needs.32

Footnote 28: The author is grateful to the anonymous referee for the support of the author.

Acts of boards or officers33 exercising judicial discretion vested in them will not be controlled.34 Injunction will also lie to prevent the exercise of duties which are purely ministerial,35 and it may also restrain public officers and boards from exercising unconstitutional powers,36 but not excesses of authority adequately remediable at law, such as invalid contempt proceedings." Threatened acts in alleged excess of authority given by a board may be restrained until the question be legally settled.\[38\]

_Elections and right to office.\[39\]_--As a general rule equity will not interfere in any matter growing out of an election which may be settled by a contest provided for by statute.\[40\] It may do so, however, where the property or person of a citizen is imperiled under the guise of an unauthorized election.\[41\] The right to office, or of the nomination to an office, or the acts of public officers in the discharge of their duties, cannot be regulated or controlled by injunction.\[42\] The writ will not issue to restrain the removal of one from a public office,\[43\] nor to prevent the incumbent of an office from exercising the functions thereof pending a suit to determine his right thereto.\[44\] But the officer having the apparent title will be protected by injunction from interference by rival claimants.\[45\]

Equity has no jurisdiction to enjoin the publication of the result of a local option election, either on the ground of its invalidity, or because of unfairness in conducting it, even where irreparable injury to property in case of such publication is alleged.\[48\] If it can interfere at all, complainant must await the attempted enforcement of the law.\[47\]

In a proceeding to obtain for relator the office of member of the city council, other members cannot be enjoined from interfering with his enjoyment of the office, since it will be presumed that, when the courts have decided that he is entitled thereto, they will no longer do so.\[48\]

baum Grain Co. v. Chicago, etc., R. Co., 130

tioned In certificates of nomination filed with F. 46. May issue on petition of taxpayers to

him. City of Annapolis v. Gadd, 97 Md. 734, restrain city officers who are about to ex-

57 A. 941. The eligibility of a person to pend money or incur obligations purporting

an office cannot be raised in a suit for an in- to bind the city in a manner beyond its

junction restraining election commissioners power. Mass. Rev. Laws, c. 25, $ 100. To

refrain mayor from ordering repairs to

where they have no power to pass upon the streets. Draper v. Fall River, 185 Mass. 142,

question. Smith v. Doyle, 25 Ky. L. R. 958.

69 N. E. 1068. Wills lie to prevent unauthorized acts by county officers on petition

The remedy is que warrantous which see, 2

for a change of a county seat. To prevent

Curt. L. 1377; and see, also. Officers and auditor and commissioners from taking action on petition for removal. Remedy at law

43. Commissioners will not be restrained by election contest inadequate. Gile v.

Referer \[Minn.\] 100 N. W. 101.

37. County commissioners will not be enjoined from proceeding against the tax collector for contempt for failure to appear before them with his books and papers, since,

if they have no authority to do so, he has ample remedy at law to prevent its collection.

Remedies under Ga. Pol. Code, $ 419. Sayer

v. Brown, 119 Ga. 539, 46 S. E. 649.

38. Attempted change of grade under co-

cr of authority for crossing. Southern R. Co. v. Washington, etc., R. Co., 102 Va. 483, 46

5. E. 784.

1. See 2 Curr. L. 412.

1. Will not enjoin ordinary from proclaiming result of an election under Georgia local option liquor law on ground that notice thereof was not published for the prescribed time. Ogburn v. Elmore \[Ga.\] 48 S. E. 702.

1. Ogburn v. Elmore \[Ga.\] 48 S. E. 702.

1. Injunction prohibiting secretary of state from certifying name of one as nomine to office held void for want of jurisdiction. People v. Rose, 211 III. 259, 71 N. E. 1125. Equity held to have no jurisdiction to re-

strain a city clerk from putting on the official ballot the names of persons men-

94. W. E. 11
    Taxes.\[49\]As a general rule, injunction will not issue to prevent the collection of taxes,\[60\] but it will issue to prevent an assessment for taxation made on uncons constitutional principles.\[61\] In such case no payment or tender of any amount is a necessary prerequisite to suit.\[62\] It will not lie to restrain the collection of an assessment for a local improvement unless the action of the municipal authorities has been fraudulent or unless the assessment is so excessive as to clearly exceed the benefits to the property.\[83\]

_A suit to restrain the removal of a county seat_ because the consent of the people has not been obtained by the requisite constitutional majority does not fall under the class of contested election cases.\[64\]

(SS 2) _D. Enforcement of statutes or ordinances\[85\]_ may be restrained if they are invalid.\[66\]

(SS 2) _E. Exercise of right of eminent domain\[87\]_ without prior compliance with the requirements of law\[88\] will be prevented; thus if payment be prerequisite, to prevent taking before ascertaining and at least paying the award into court.\[80\] A statutory procedure for the ascertainment of damages suffered by a landowner who has permitted a right of way over his land to be taken without previous compensation will be enjoined, when the right to compensation is denied, until such right is determined in the injunction proceedings.\[60\]

(SS 2) \_F. Acts affecting rights in highways and public or quasi public places.\[81\]An injunction will lie at the instance of an abutting property owner to

- 40. See 2 Curr. L. 410.
- 50. Fargo v. Hart, 193 U. S. 490, 48 Law.
- Ed. 761. Not to prevent a municipality from enforcing taxes on personally, by seizure and sale thereof, without lawful authority, vs. Cleveland City R. Co., 194 U. S. 517, 48
- remediable in a court of law. City of Jacksonville v. Massey Business College \[Fla\].
- 51. Taking personal property of nonresidential express company eltuated outside the state into account in fixing value of its property within the state for taxation purposes. Fargo v. Hart, 193 U. S. 490, 48 Law.
- Ed. 761. Even if proceedings by petition to board of county commissioners for canceling railroad aid tax on ground of nonperform-
- since by it are exclusive, they do not prevent injunction to restrain its collection on other grounds rendering it void. State v. Board of Com'rs, 162 Ind. 580, 70 N. E. 373.
- 52. Fargo v. Hart, 193 U. S. 490, 48 Law.
- 53. Price v. Toledo, 4 Ohio C. C. (N. S.)
- 54. Lindsay v. Allen \[Tenn.\] 82 S. W. 171.
- Chancery court may go behind findings of county court and determine for itself whether constitutional majority voted for removal.
- 55. See 2 Curr. L. 415. Compare Municipal Corporations, 2 Curr. L. 940.
- 56. Mills v. Chicago, 197 T. 731. Whether bill will lie to restrain enforcement of municipal ordinance see line of cases cited in Duluth Brewning & M. Co. v. Superior \[C. C. A.\] 123 T. 853 at p. 366. It may do so to prevent a multiplicity of suits. Ordinance fixing rates to be charged by gas company to consumers. Mills v. Chicago, 197 T. 731. Equity will entertain jurisdiction to restrain, as impairing contract obligations, the enforcement of a municipal ordinance reducing rates of fare on a section only of a con * 4 Cur. Law. INJUNCTION SS 2G. 105

prevent an interference with his property rights in the street,62 or park63 when such acts constitute a public nuisance, and complainant is specially injured thereby,64 but not where a servitude contemplated when the highway was taken is newly exercised, e. g., a street railway.65

The mere anticipation of future breaches and injuries resulting therefrom is insufficient.66 It will issue to prevent the laying of street railway tracks in a street under a void ordinance.67 Where consent of the owners of a majority of the foot frontage on a street in which it is proposed to lay a street railway is necessary to such action, an abutting owner who has not consented thereto may enjoin its construction if such consent has not been obtained.68 If the requisite number of consents have been obtained, a consenting abutter cannot prevent a change of route, unless such change is alleged and proved to have worked a fraud on him.69

Injunction is the proper remedy to prevent interference with and obstruction of the exercise of the statutory right of natural gas companies to lay pipes through cities,79 or to prevent the tearing up or removing of a track lawfully laid,71 but not to prevent the repeal of valid ordinances granting permission to occupy the streets.72

Footnote 68: May raise the question as to whether entrance to factory where wagons are load- ed and unloaded is a material interference with his rights. Cleveland Burial Case Co. Ft Wayne, V. W. & L. Traction Co., 2 Ohio

V. Erle R. Co., 4 Ohio C. C. (N. S.) 365.

68. Use of park for a highway, Village of

01. General public and not owner is then Riverside v. MacLean, 210 Ill. 308, 71 N. E.

real party in interest. Ireton Bros. v. Ft. 408.

64. One carrying on retail business next door held specially injured by platform for

01. Rights given by Kan. Gen. St. 1901, 8

unloading wagons. Brauer V. Baltimore Re.

136. City of La Harpe v. Elm Tp. Gas. frigrating & Heating Co. (M.J.) 58 A. 21.

Light, Fuel & Power Co. (K.L.N.) 76 P. 448.

To restrain use of street in front of hotel as

71. Injury treparable. Belington & N. public hack stand. Odell v. Bretney, 93 App.

01. Railroad oudell v. Bretney, 93 App.

01. Realroad oudell vrent improper repeal from creating building with columns en-

as void, or else have council's action review-

croaching on street, pursuant to permission

ed at law. Bellington & N. R. Co. v. Alston,

granted by council, and not interfering with its reasonable use. Sautter v. Utieta City Nat.

74. Bille to show grounds for equit-Bank, 45 Misc. 15, 90 N. Y. S. 838. A rail-

road company improperly occupping a public 411, 69 N. E. 865.

highway may be enjoined. Without obtain-

ing city's consent. Collier v. Union R. Co.

\[Tenn.\] 83 S. V. 155.

65. Interurban railroad held not addl-

tional burden. Mordhurst v. Ft. Wayne & S.

W. Traction Co. \[Ind.\] 71 N. E. 642.

66. Will not be presumed that contract

will be broken. If it is, injured parties

will have action for damages. Mordhurst

Wilt, etc., R. Co. v. Puckett \[Tex. Civ. App.\]

V. Ft. Wayne & S. W. Traction Co. \[Ind.\] 71 N. E. 642.

75. Gulf, etc., R. Co. v. Puckett \[Tex. Civ. App.\]

01. Property owners may maintain suit

against city and company in federal court.

Holst v. Savannah Elec. Co., 131 F. 331.

76. See 2 Curr. L. 416, 419. Compare title

Corporations, 3 Curr. L. 880.

jured thereby, to prevent the others from proceeding illegally and wrongfully.\[17\] It will not lie unless it affirmatively appears that the plaintiff has exhausted all the remedies provided by the constitution and by-laws of the organization.\[8\] Unsecured creditors cannot obtain an injunction against a corporation to deprive it of its assets, and to administer and distribute them, solely on the ground of its insolvency.\[8\]

A state court cannot issue an injunction against a national banking association before final judgment.\[8\] A foreign corporation may be enjoined only as to acts within the state.\[8\]

A public service gas company may be restrained from shutting off the city's supply of gas for failure to pay an unreasonable price,\[8\] or a telephone company from exacting an illegal rate.\[8\]

(SS 2) _H. Breach or enforcement of contract or of trust.\[8\]_--Injunction will not ordinarily lie to compel specific performance of a contract where complainant has an adequate remedy at law by way of an action for damages for its breach.\[8\] Recently, however, it has been done to prevent the violation of express negative covenants, even though such violation would have occasioned no substantial injury or though there was an adequate remedy at law.\[8\] It will not be denied merely because the contract is one which cannot be specifically enforced,\[8\] but it will not issue to prevent breach of a contract against public policy.\[8\] Where the bill alleges that a breach of the contract will result in injury which cannot be adequately compensated in damages, it is not necessary to allege that defendant is

7. To prevent persons claiming to be even though the contract provides for liquid-stockholders from acting as such pending acted damages for its breach, the breach in determination of their rights. State v. Launchy Co. v. Debow, 98 Me. 496, 57 A. 845. holders who intervene after an injunction has issued against them in a suit against the corruption alone, cannot thereafter claim that the court had no jurisdiction of their persons. Id. V. Davis, 127 F. 875; Flekenstein Bros. Co. v. Dr., 4 Ohio C. C. (N. S.) 11. 79. Jones v. Mutual Fidelity Co., 123 F. 506. No. U. S. Rev. St. $ 5242 \[3 U. S. Comp. St. 1901, p. 3517\], does not prevent injunction restraining officers from committing tress-pass on rights of lessee in building purchased subject to lease. Meyer v. First Nat. Bank \[Idaho\] 77 P. 834.

1. Temporary injunction to restrain defendant from selling or delivering bag frames to persons other than plaintiff in violation of contract. Rosenblatt W. Jersey Noveity Co., 45 Misc. 59, 90 N. Y. S. 816.

1. Public Service Corp. v. American Lighting Co. \[N. J. Eq.\] 57 A. 482.

1. Charles Simon's Sons Co. v. Maryland Tel. & T. Co. \[M.J.\] 57 A. 193.

1. See 2 Curr. L. 421.

1. Contract to use complaintant's trading stamps only. Sperry & H. Co. v. Vine \[N. J. Err. & App.\] 57 A. 1038. Contract for hailing grain. Rosenbaum Grain Co. v. Chicago, etc., R. Co., 130 F. 46. To restrain the violation of a contract whereby defendant agreed not to carry on a particular business within a certain territory for a certain period. Augusta Steam Laundry Co. v. Dewow, 98 Me. 496, 57 A. 845.

It is greatable where promisor is Insolvent insolvent.\*\* One may be enjoined from violating a contract by acts which in any view would exceed his right.\*\* In the absence of anything in a contract to the contrary, the injured party has the option to proceed either in law or in equity.\*\*

**In case of covenants respecting real property, violation will be restrained.**

**Executors** will, at the suit of devisees, be enjoined from conveying property of their testator which they have no authority to dispose of under the will.\*\*

**Third persons** may be enjoined from causing a covenantor to violate his contract by employing him in a similar business,\*\*

**or otherwise unfairly and fraudulently interfering with performance.**

**Injunction also lies against a party, who has contracted to do for complainant exclusively some act calling for the exercise of skill or artistic capacity, from giving his services to anyone else,**

**and the assignee of a trade secret may enjoin employes of the assignor from disclosing or using the same.**

**(SS 2)** _I. Interference with property, business, or comfort of private persons.\*\*_

**It is against the policy of the law to restrain industries and such enterprises as tend to develop the country and its resources,**

**nor will the court impair the right of the owner to the use of his property further than may be necessary to protect the rights of the parties.**

**Injunction may issue to protect intangible as well as tangible property rights, including the right to carry on business and to fulfill contracts made in the course thereof.**

**Thus it will issue to prevent strikers from interfering with plain-tiff's business and property and indulging in violence toward, and intimidation of,**

**80. Fullington v. Kyle Lumber Co., 139**

**95. By indueling merchants to sell trading stamps in violation of their contracts**

**90. Injunction issued to restrain board of**

**which plaintiff, and by selling stamps to other education from hiring principal of academy**

**mechanics, and by false and fraudulent ad-at larger salary and to prevent introduction**

**vertising. Fact that defendant had acquired of nonresident pupils free, in contravention**

**some stamps in proper manner would not of contract between such board and academy. Trustees of Washington Academy v. Crukl-shank, 89 N. Y. B. 375.**

**91. Augusta Steam Laundry Co. v. De-bow, 98 Me. 496, 57 A. 845.**

**92. To restrain lateral addition to pier**

**on ocean side of board walk in violation**

**93.**

**of covenant in deed by defendant's grantor**

**94.**

**of co-vignan't in deed by defendant's grantor**

**95.**

**of co-vignan't in deed by defendant's grantor**

**96.**

**of co-vignan't in deed by defendant's grantor**

**97.**

**98.**

**Equity will construre will and compel**

**executive to perform their duties therounder.**

**reveal it cannot defend on the ground that it**

**McClane v. McClane, 207 Pa. 465, 56 A. 956.**

**94.**

**By employing him as the manager of a similar business, with knowledge that the other party is thereby being injured and ob-tanting a corresponding 'dvantage to themselves in their business. Fleckenstein Bros. Co. v. Fleckenstein (N. Y. B.G.) 57 A. 1028.**

**Complinant held entitled to injunction re-straining defendant from breach of contract**

**not to engage in fish business, and restrain-ing third person from benefiting in any way by his services and experience in such business. Booth & Co. v. Davis, 127 F. 875, modified Davis v. Booth & Co., 131 F. 31.**

**is no defense that such third person hired him in ignorance of the contract, and will suffer damage if deprived of his services. Id. Injunction, in so far as it concerns the third person, should be limited to his actions in regard to defendant. Davis v. Booth & Co. \[C. C. A.\] 131 F. 31, modifying Booth & Co. v. Davis, 127 F. 875.**

**99.**
his employes. None will issue where the title to personality is the sole question involved.4 Equity will not enjoin threatened trespasses upon the person, even though they infringe upon the constitutional rights of life, liberty, and pursuit of happiness.5

_Trade names_ or reputations, though not registered or properly selected as trade marks, may be protected.6 This will not be done, however, where plaintiff has himself been guilty of unfair competition, or such fraud as disentitles him to relief in equity.7

_Waste_ may be prevented by injunction,8 also the destruction of property in an attempt to enforce a supposed right.9 By statute in New York, the owner of property sold for taxes may, after notice of the sale, be restrained from despoiling the same.10

\_Nuisance.11--Equity has original jurisdiction to restrain a nuisance.12 An injunction will issue to restrain the maintenance of a private nuisance.13 The fact that the persons maintaining it did not know that it was offensive to complainant and that, had they known it, they would have endeavored to minimize it as far as possible,14 or the mere fact that it is profitable to the person maintaining it, is no defense.15 Where the evidence does not satisfy the court that the facts complained of constitute a nuisance, injunction will not issue until such fact has been passed upon by a jury.16 But where the facts clearly and certainly establish its existence, the rule is otherwise.17 The petition in a suit to enjoin a threatened nuisance must allege such facts as show with cogency, clearness, and reasonable certainty that the acts threatened will, if committed, bring into existence a nuisance, and that complainants will suffer irreparable injury thereby.18 Injunction will also lie to protect one suffering private injury or annoyance from that which is a * 4 Cur. Law. INJUNCTION SS 2I.

public nuisance.19 The fact that a landowner purchases the property after the establishment of such nuisance, which is a continuing one,20 or that the municipal authorities tolerate its continuance, is immaterial.21 So is a change therein which does not do away with the injury.22

\_Trespass.\_23--Injunction will not issue to prevent a mere threatened 'trespass upon real estate,24 but it will do so where, by reason of the continuous character of the threatened invasion, many actions at law would be necessary, in none of which could compensation for the whole wrong be obtained,25 or where the threatened 'trespass will work irreparable injury to the property itself, amounting essentially to a destruction thereof,27 or where defendant is insolvent.27 Complainant must show an intention to continue the injurious acts and a reasonable ground to apprehend that defendant can do so.28 Injunction will not issue to restrain the cutting of timber by one who is solvent and is in possession of the property under a 'bona fide claim of title, where no other action of any kind is pending' to which the relief asked is ancillary.29 By statute in some states it is not necessary to allege defendant's insolveney where the 'trespass' is continuous, or is the cutting or destruction of timber trees.30 Such acts have been held not to deprive the court of the discretion to require defendant to give bond to secure plaintiff's damages, or to appoint a receiver, instead of issuing an injunction.21 By statute in Georgia, injunction to prevent the 'cutting of timber will only issue to one having perfect title, in the absence of an allegation of insolveney or of irreparable injury.32 The title required is a duly executed paper one, the exhibition of which will show both the right of possession and the right of property in plaintiff.23

\*\*10. By reason of crowds of disorderly per- appropriate action to prevent or restrain insons on public highways, drawn there by jury to or trespass on land. Chambers v. entertainments given by third persons on Haskell, 25 Ky. L. R. 1707, 78 S. W. 478. their own lands. Sunday ball games. Also Crossing right of way. Alderman & Sons Co. nuisance to restrain noise. Seastream v. v. Wilson (S. C.) 48 S. E. 85. Will issue to New Jersey Exhibition Co. \[N. J. Eq.\] 58 A.

523. To prevent Sunday base ball. Dissolution of temporary injunction properly denied, danying timber. Fact that defendant had Dunham V. Binghamton & L. Baseball Ass'n, almost completed use held no defense, where '$9 N. Y. S. 762. To restrain adjoining land-complainant supposed he intended to per- 'sist. Rhoades v. McNamara \[Mich.\] 98 N. N.

used as a house of Ill-fame. Ingersoll v. Rousseau, 35 Wash.

Rousseau, 35 Wash.

92. To remain with awaitable stream so as to ob- 'sistute it and interfere with ordinary navi- 'gation. Evidence sufficient. Reyburn v. Sawyer, 135 N. C. 288, 47 S. E. 761.

01. Right is property right running with land. Ingersoll v. Rousseau, 35 Wash.

01. To remain with awaitable stream so as to ob- 'sistute it and interfere with ordinary navi- 'gation. Evidence sufficient. Reyburn v. Sawyer, 135 N. C. 288, 47 S. E. 761.

01. To prevent Sunday base ball. Dissolution of temporary injunction properly denied, danying timber. Fact that defendant had Dunham V. Binghamton & L. Baseball Ass'n, almost completed use held no defense, where '$9 N. Y. S. 762. To restrain adjoining land-complainant supposed he intended to per- 'sist. Rhoades v. McNamara \[Mich.\] 98 N. N.

01. To remain with awaitable stream so as to ob- 'sistute it and interfere with ordinary navi- 'gation. Evidence sufficient. Reyburn v. Sawyer, 135 N. C. 288, 47 S. E. 761.

01. To remain with awaitable stream so as to ob- 'sistute it and interfere with ordinary navi- 'gation. Evidence sufficient. Reyburn v. Sawyer, 135 N. C. 288, 47 S. E. 761.

01. To remain with awaitable stream so as to ob- 'sistute it and interfere with ordinary navi- 'gation. Evidence sufficient. Reyburn v. Sawyer, 135 N. C. 288, 47 S. E. 762.

01. To remain with awaitable stream so as to ob- 'sistute it and interfere with ordinary navi- 'gation. Evidence sufficient. Reyburn v. Sawyer, 135 N. C. 288, 47 S. E. 763.

01. To remain with awaitable stream so as to ob- 'sistute it and interfere with ordinary navi- 'gation. Evidence sufficient. Reyburn v. Sawyer, 135 N. C. 288, 47 S. E. 764.

01. To remain with awaitable stream so as to ob- 'sistute it and interfere with ordinary navi- 'gation. Evidence sufficient. Reyburn v. Sawyer, 135 N. C. 288, 47 S. E. 765.

01. To remain with awaitable stream so as to ob- 'sistute it and interfere with ordinary navi- 'gation. Evidence sufficient. Reyburn v. Sawyer, 1 In states where it is the duty of the owner of land to fence it, injunction will not issue to prevent one from permitting cattle to wander on the unfenced land of another,\[34\] but it will issue to prevent his herding or driving them there.\[85\] The decree will not be extended so as to include land on which defendants have not trespassed or threatened to trespass.\[86\]

\_Incorroreal property.--\_It will lie to prevent the destruction of a well defined underground watercourse, or its diversion from the spring of a lower propriator,\[37\] or for the malicious diverting or wasting of percolating waters,\[87\] or to prevent the unauthorized interference with water and ditch rights.\[88\] It will also issue to restrain the taking of oysters from a non-navigable stream flowing over plaintiff's land.\[89\]

_Easements and rights of way.\[41\]_--Equity has jurisdiction to prevent, by injunction, the actual or threatened interference with, disturbance, or destruction of easements,\[42\] or rights of way.\[43\] A right of way will be protected though plaintiff does not own the land in fee simple,\[44\] and he need not allege that he has an exclusive right thereto.\[45\]\_

(SS 2) _J. Crimes.\[40\]_--Equity has no jurisdiction to enjoin the commission of threatened crimes,\[47\] or threatened prosecutions for the commission of alleged crimes.\[48\] Violations of state laws and of penal municipal ordinances, and prosecutions.\[49\]

\[\] 34. Martin v. Platte Valley Sheep Co. \[ right of way aoross railroad's right of way. Bubenser v. Philadelphia, etc., R. Co. \[\] \[Wyo.\] 76 P. 571. \[\] 35. Evidence sufficient to justify decree enjoining defendant from herding or driving cattle on or across plaintiff's land. Martin v. Platte Valley Sheep Co. \[Wyo.\] 76 P. 571. \[\] 37. Demerge two broad as in effect restricting owners from permitting cattle to run at large on government land. Id. The fact that plaintiff has constructed an unlawful fence enclosing public land is no defense to an action for an injunction to restrain defendant from driving cattle on plaintiff's land within such enclosure. Id. Martin v. Platte Valley Sheep Co. \[Wyo.\] 76 P. 571. \[\] 37. Damage irreparable. St. Amand v. Lehman, 120 Ga. 253, 47 S. E. 949. \[\] 38. St. Amand v. Lehman, 120 Ga. 253, 47 S. E. 949. \[\] 39. Restraining interference with water and ditch rights. Rodgers v. Pitt 129 F. \[\] 39. Turning water from irrigation ditch on land of another. Boglino v. Giorgetta \[Co. App.\] 78 P. 612. \[\] 40. Petition held sufficient. Instructions approved. Evidence sufficient to authorize verdict for plaintiff. Prey v. Oemler, 120 Ga. 223, 47 S. E. 546. \[\] 41. See ante, SS 2F. Aets affecting rights in highways, etc. \[\] 42. Railroad right of way obtained by prescription. Louisville & N. R. Co. v. Smith \[\] \[C. C. A.\] 128 F. 1. Every such disturbance will be restrained whenever, from the essential nature of the injury or its continued character, the legal remedy is inadequate. Id. Right of way over railroad right of way. Bubenzer v. Philadelphia, etc., R. Co. \[Del. Ch.\] 57 A. 242. Defendant held entitled to injunction restraining destruction of fence on land on which she had easements without regard to whether she owned fee or not. Evidence held to 37 So. \[\] 37 So. \[\] 38. To restrain obstruction of private reality to maintain flagmen at street cross * 4Cur. Law. INJUNCTION SS 3.

- .

tencments may join in a suit to restrain a nuisance or other grievance common to them all and affecting each in a similar way,\[64\] but they may not so join to restrain a distinct and separate injury to each of their properties.\[68\] Where the injuries are dissimilar complainants must, at some stage of the proceedings, elect on which kind of injury they will rely.\[69\] Different landowners may be joined in a suit to restrain them from interfering with a right of way, where the same right is asserted against each,\[70\] and one of several joint owners of an irrigation ditch may maintain a suit to enjoin third persons from interfering therewith.\[68\] Several subscribers, each having a contract with a telephone company, may join in a bill to restrain it from charging higher rates than those fixed by ordinance,\[69\] or an individual may maintain the suit.\[69\] Though all proper parties have not been joined as defendants, the decree is binding on those duly served.\[71\]

The bill must state facts showing that plaintiff is entitled to the relief sought,\[72\] and a failure to allege facts showing a right to equitable relief may be taken advantage of at any time, since it goes to the jurisdiction of the court.\[78\] In Alabama it has been held that a bill insufficient in regard to the allegation that the injury cannot be adequately compensated in damages will, on motion to dismiss, be considered as amended in this regard.\[74\] The character of the bill must be determined from the allegations upon which relief can be allowed.\[78\] As a rule a statement of ownership of the property, for an injury to which relief is sought, is sufficient.\[70\]

There must be a formal prayer for injunction,\[71\] and the extent of the relief granted will be confined to that prayed for.\[78\] The insufficiency of the jurat tached to the bill goes only to the temporary injunction and has no effect upon the bill as a whole when it shows sufficient equity to require an answer.\[79\]

Defenses arising after answer filed and issue joined must be presented by a cross bill in the nature of a plea puis darrein continuance.\[80\] A defendant against whom writs of ne exact and injunction have issued, and who has escaped from custody and remains beyond the jurisdiction of the court, cannot, on appeal, question the correctness of the action of the lower court in granting them.\[81\] Where defendant desires a mutual or reciprocal injunction, he must apply for it in the original suit in which an injunction pendente lite issued against him.\[82\] Where an injunction is denied, plaintiff may not, after dismissing it, institute another suit on the same grounds and again apply for an injunction for the same purpose.\[83\]

Complainants may dismiss, or consent to the dismissal of, their bill at any time before decree.\[84\] This is true when they sue as members of a class and expressly state that the suit is not only for their own benefit but also for that of such others of the class as may come in and share the expense.\[85\] But this right ends when one of the class, not a party to the original bill, is admitted, by order of court, as a complainant.\[86\] In Missouri when a petition for an injunction is filed, in which no temporary injunction is asked, the court may, on defendant's voluntary appearance, order the case to be tried at the term when such appearance is made instead of the term to which the process was returnable.\[87\] The complaint should be dismissed as to persons losing, after the filing of the complaint, the property rights on which the right to injunctive relief depended.\[88\]

**SS 4.**_Preliminary injunction. A. Issuance.\[89\]_--The object of a preliminary injunction, preventive in its nature, is the preservation of the property or rights involved until it can be finally determined.\[80\] It is provisional in its nature and does not finally conclude the rights of the parties.\[81\] A preliminary injunction will not issue to change possession of premises during the trial of an action for specific performance.\[92\]

The granting of an injunction pendente lite is largely in the discretion of the trial court,\[83\] and it may be conditioned as he may deem proper.\[94\] It must appear

WIII not issue to prevent a nuisance on a pin v. Universal Tobacco Co. \[N. J. Eq.\] 57 prayer specifically asking for it on an en- triey different ground and for a different purpose. Where asked to restrain company from digging up streets until it obtnined a ply where defendant appears voluntarily, doing so in such a manner as to constitute a nuisance, it appears that defendant had a right to excavate without a permit. Id. The alternative "or until the further order of this court" cannot enlarge the relief v. Bretny, 93 Apr. Div. 607, 87 N. Y. S. 655. prayed for. Restraining company from laying pipes until they obtained permit, "or," etc. Id. 79. Wormley v. Wormley, 207 Ill. 411, 69 N. E. 865. 88. 88.

that complainant's right is reasonably certain,"" and that the injury to his property is imminent and will be irreparable." Regard should be had to the nature of the controversy, the object for which the injunction is sought, and the comparative hardship or convenience to the respective parties which will result from awarding or denying it." It should usually be granted where its denial would, on the assumption that complainant will ultimately prevail, result in greater detriment to him than would, on the contrary assumption, be sustained by defendant through its allowance." It may properly issue to protect the status quo whenever the

ties Co., 182 F. 464. Its decree will not be disturbed unless there has been a plain violation of some settled rule of equity which should govern the issue of injunctions, so rent rentals at instance of administrator of one, dently. Injunction restraining seizure and sale of municipal property held not improvro-identity granted. Kerr v. New Orleans \[C. 1\] plainant being shown, and defendant being able to respond in damages. Id. Not issued flieting. Pittman v. Colbert, 120 Ga. 341, 47 S. E. 948. Denied to compel gas company to permit assignment. Paul Steam Sys-Grurush gens to nonresident corporation whose only interest in city arises out of contract to allow defendant to amband his answer in to furnish burners for street lamps. Amer- sent to cabin him from cutting timber, so lean Lighting Co. v. Public Service Corporation, 132 F. 794. Held no abuse of discrete- amms, 32 Ind. App. 281, 69 N. E. 696.

tion In refusing to enlarge scope of injunc- tion in regard to operation of mine. Heineine v. Boston & M. Consol. Copper & Silver Min.

measurement. Hicks v. American Natural Co. \[Mont.\] 77 F. 421. Restraining sale of

Gas Co., 207 Pa. 570, 57 A. 55. Preliminary property purchased at sheriff's sale, pend- injunction issued restraining state railroad

in suit to set aside dead. Massie v. Buck

\[C. C. A.\] 128 F. 27. The apellate court

with not examine into the merits of the case

Rosenbaum Crain Co. v. Chicago, etc., R.

where the injunction was granted before

Co., 130 F. 46, Injunction restraining de-issue joined and it appears that the case

fendant from assigning patents and manu- involves controverted questions of fact. Kerr

facturing inventions thenumber refused in v. New Orleans \[C. C. A.\] 126 F. 920; Massie

suit to compel specified performance of con- v. Buck \[C. C. A.\] 128 F. 27. Temporary

injunction granted to restrain defendant

tem Co., v. Paul, 129 F. 157. Will be refused

from carrying out combination, declared by

out to be illegal, to prevent plaintiffs from

question the necessity thereof. Wrong purchasing books, Straus v. American Pub- must be manifest. Hicks v. American Natlishers' Assu, 92 App. Dtw. 350, 38 N. X. S.

1091. Where it is practically admitted that

bridge could not be built without consent

132 F. 464. Will not be issued to compel

of government and that, in absence thereof,

gas company to furnish gas to company hav- an injunction was proper, an order granting it will not be disturbed on appeal be- atrect lamps where it would be detrimental

deuse it is made binding until further or- de- of the court rather than until such consent has been obtained, in the absence of an abuse of discretion. Gordon County v. Py- jured. Restraining disposal of funds of

non, 120 Ga. 101, 47 S. E. 645. Held no abuse

of discretion to refuse, under evidence, to

grant injunction restraining cutting of tim- barkup pending determination of plain-

the, questions of fact being for the trial court. Steadman & Co. v. Dorminey-Price

Lumber Co., 119 Ga. 616, 46 S. E. 839. Evidence conflicting. Decree refusing injunction affirmed with leave to present another application. St. Amand v. Lehman, 120 Ga. 255, 47 S. E. 949. Court held not to have

abused discretion in restraining defendant

from enforcing cost f. fa. issued by presiding judicial officer in contested election case,

v. Seaver-Randford, 129 F. 761. Will issue

until hearing could be had on issues raised by pleadings. McLeod v. Reld \[Ga.\] 48 S. E. 316.

94. Suspension of injunction restraining

pollution of stream on payment of damages. Sponenburgh v. Gloverville, 96 App. Dtw. 157, 89 N. Y. S. 19, affirming 43 Misc. 563,

removal of machinery by vendor where no

87 N. Y. S. 602. May require bond on refusal

144.

questions of law or fact to be ultimately determined are grave and difficult, and injury to the moving party will be immediate, certain, and great if it is denied, while the loss of inconvenience to the opposing party will be comparatively small if granted." It should not, however, be granted where the benefit or advantage to claimant will be out of proportion to the injury or disadvantage necessarily resulting to defendant.1 The fact that no appeal lies from an interlocutory decree denying a preliminary injunction is of no weight where it clearly appears that complaint cannot prevail on final hearing;3 but it may be of controlling importance where there is room for reasonable doubt as to the ultimate result.3 It should issue where the action is for the sole purpose of an injunction and a temporary injunction is essential to the preservation of a legal right, if established as alleged in the complaint.4 It should be denied if it does not appear on the prima facie showing that plaintiff is entitled to any relief, and does appear that the bill will probably be dismissed on final hearing.5

junction," and must pray for permanent equitable relief." The motion for a preliminary injunction must rest, on the part of complainant, on the bill and accompanying affidavits originally filed." The verified petition and answer serve the office both of pleading and evidence.10 The office of the affidavits is merely to support the bill or petition,11 and they cannot amend it or add new grounds of relief.12 Imperfections in the original affidavits may be corrected.13 Affidavits and a complaint based upon complainant's understanding or information and belief are insufficient unless the sources and grounds of such understanding and belief are stated.14 Affidavits in rebuttal are not permissible except under special circumstances and by leave of court.15 As a general rule a preliminary injunction will not be granted on ex parte affidavits unless in a clear case.18 This does not, however, apply where its function is merely to preserve the status quo until final decree and where comparatively great injury may result from withholding, and comparatively little can result from granting it.17 In such case the court will regard with just discrimination the balance of convenience and hardship, and endeavor to do the most good with the least harm.18

A decree of a court of concurrent or superior jurisdiction determining the validity of a patent is ordinarily sufficient basis for a preliminary injunction in a suit for its infringement, where such infringement clearly appears.19 When the infringement is doubtful no preliminary injunction will issue.20

The merits of the action cannot be considered except in so far as is necessary to determine whether or not complainant has made a prima facie showing.11 .

Unless under special circumstances, a motion for preliminary injunction will

7. Mere allegation that unless defend-

D.\] 99 N. W. 48: Glascoe v. Willard, 44 Misc. ant is restrained from using opening cut in wall of demixed premises without permission, irreparable damages will be sustained by plaintiffs, held insulficient. Glascoe v. Willard, 44 Misc. 166, 89 N. Y. S. 791.

8. In New York, where the right to such relief depends upon the nature of the action, a temporary injunction will not be granted where plaintiff makes no demand for any permanent relief which a court of equity may decree. Code Civ. Pree. 603. Should not issue to restrain directors of corporation from selling treasury stock, where compliant's purpose was merely to prevent such sales until after next election of directors so that he could, by reason of controlling majority of stock, secure election of persons friendly to his interest. Gillette v. Noyes, 92 App. Div. 313, 86 N. Y. S. 1062.

1. Infringement of patent. Benbow-Brammer Mfg. Co. v. Simpson Mfg. Co., 132 F. 614. A petition for a preliminary injunction must be regarded as pursuant to and in aid of the bill. Montgomery Water Power Co. v. Chapman, 128 F. 197.

1. St. Amand v. Lehman, 120 Ga. 253, 47 S. E. 949.

1. Montgomery Water Power Co. v. Chapman, 128 F. 197.

1. Injunction will not be granted to restrain enforcement of judgment against complainant pending action by him against defendant, where compliant has sufficient security to cover amount claimed, because affidavit alleges that it is proposed to apply for increase thereof. Montgomery Water Power Co. v. Chapman, 128 F. 197. Cannot supply defects. McClure v. Hunnewell \[N. M.\] not be entertained when complainant has completed testimony for final hearing, leaving defendant to oppose by affidavits only.\[22\] When defendant's proofs are also complete, application should be on interlocutory hearing, and not by motion, so that each side may have equal opportunity to appeal.\[23\] An injunction is properly issued against a defendant who does not answer.\[24\]

A decree will be so framed as to maintain the status quo, as far as possible, until final hearing or judgment.\[25\] When the rights of a litigant are protected to the extent of excluding all possibility of injury, he has no cause to complain.\[26\]

The court has a discretion in disposing of an application for a second interlocutory injunction upon proper showing made,\[27\] but this rule does not apply, where the record shows that the first proceeding resulted in the dismissal of the petition upon general demurrer.\[28\]

In South Carolina the judge may grant a temporary restraining order without notice and before summons is served or lodged for service, for the purpose of having it served with the summons.\[29\] Procuring a restraining order before the service of summons, which is served with it, is a mere irregularity which is waived by answering to the merits.\[30\]

(SS 4) \_B. Bonds.\[31\]--\_The injunction is not effective until the statutory bond is given,\[32\] but the defendant may apply to the appellate court for its dissolution or modification before the bond is executed.\[33\] If the bond given is shown to be insufficient, a new one may be required as a condition precedent to continuing the injunction to the time of trial.\[34\] The amount of the bond is generally left to the discretion of the court granting the order,\[35\] but it must not be oppressive or unreasonable.\[36\] Where the statute makes the giving of a bond a condition precedent to the granting of an injunction, the court cannot dispense with it.\[37\]

The fact that the bond is in a larger sum than that required by the order is immaterial where the damages recovered are smaller than the amount fixed by such order.\[38\]

(SS 4) \_C. Dissolution, modification, or continuance; reinstatement.

### 44.3 The 1980s

The 1980s are the 1980s of the 1980s. The 1980s are the 1980s of the 1980s.

4 Our. Law. INJUNCTION SS 4D.

An injunction may be modified upon a proper showing affecting the grounds upon which it was originally issued, or setting up new matter from which it appears that to continue it would result in serious or unnecessary injury.\[54\]

In Idaho when the adverse party moves to dissolve the temporary injunction upon the papers upon which it was granted, no notice to the party obtaining it is required, and no further showing can be made in opposition thereto.\[55\]

The dissolution of an injunction which will support an appeal is one effected by an order or decree of the chancellor and not by the act of complainant.\[56\] A judgment dissolving an injunction, if not appealed from, is conclusive on all parties.\[57\]

In Nebraska, an order dissolving or modifying a temporary injunction is not final, and is not appealable until after a final judgment in the action.\[58\] In Louisiana plaintiff is entitled to an appeal from an order dismissing the injunction on bond, if it may be that irreparable loss will result therefrom.\[59\] The particular facts of each case control as to such question.\[60\]

_Costs.\[61\]_--On dissolution of a temporary injunction, costs will be awarded dc-fendant where complainant is not entitled to enjoin the acts complained of and the injunction is not necessary because defendant has no intention of violating plaintiff's rights.\[62\] One losing his rights on which his right to injunctive relief depends, after the filing of the complaint, should not be taxed with costs on dismissal of the bill as to him.\[63\]

(SS 4) _D. Damages on dissolution, and liability on bond.\[64\]_--In order to recover damages on the vacation of a temporary injunction, there must be a determination that plaintiffs were not entitled to the injunction,\[65\] and that defendant was damaged thereby.\[66\] The dismissal of the action by plaintiff without defendant's consent and against his consent is, in legal effect, a determination that he was not entitled to such injunction.\[67\] The final outcome of the suit, and not the 130 INJUNCTION SS 4D. 4 Cur. Law.

orders entered upon motions to vacate a temporary injunction granted therein, determines the right to damages.\[48\] Hence suit cannot be maintained on an injunction bond pending an appeal or petition in error from a judgment dissolving the injunction, even though no supersedeas bond is filed.\[49\]

An adjudication, on appeal, that defendant is entitled to a reference to ascertain his damages on dissolution of an injunction, necessarily is a determination that he is entitled to damages.\[70\] The petition for damages must show that the injunction was wrongfully issued.\[71\]

Damages are recoverable either by an action on the bond or by an allowance in the suit in which the injunction issued.\[72\] In either case they consist of those actually sustained by defendant by reason of the issuance of the writ,\[73\] including reasonable counsel fees incurred in procuring its dissolution,\[74\] or in preparing to move for its dissolution.\[75\] In the latter case the fact that plaintiff dismissed the action and dissolved the writ before the filing or hearing of the motion is immaterial.\[76\] Counsel fees incurred in resisting the application for a preliminary injunction\[77\] and those incurred on the trial of the issue in the action, unless in-

68. McGown v. Barnum, 42 Misc. 585, 87 moval of county seat. Hinton v. Perry Coun-

N. Y. S. 605.

60. Not a final determination that plaintiffts were not entitled to it \[Rev. St. 1899, $ 4043, relating to injunction bonds and H

& 4247, 4249, 4256, 4265, relating to appeals\].

Inturity v. Ryan \[TVv.0\] 78 P. 657.

70. Perlman v. Bernstein, 93 App. Div.

335, 87 N. Y. S. 862.

71. Need not so state if it states facts

showing that such was the case. Williams

v. Ballinger \[Iowa\] 101 N. W. 139. Complaint alleging that plaintiff had right to remove building and that he was wrongfully enjoined from so doing to his damage

held sufficient without stating the nature and extent of such right. Id.

72. The extent of the recovery on the bond depends upon its conditions which are

fixed by the statutes of the various states.

Quinn v. Baldwin Star Coal Co. \[Colo. App.\]

76 P. 552.

73. Bonds generally provide for the reimbursement of the defendant for all damages

and costs incurred by reason of an injunction

ton Improperly issued (Quinn v. Baldwin Star Coal Co. \[Colo. App.\] 76 P. 552), and

action, then a recovery may be had on the door only damages sustained after the giv

ing of the bond which are the direct and

fromatative result of the insuance of the witit

\[MIIs' Ann. Code Colo. $ 156\] (Id.). Evil-

25 Key. L. R. 2295, 80 B. W. 515), but when

dence held to show that defendant was enthetized to damages for sand which he other

fact would give such relief if sustained, no

wlee could have sold but not for injuries

recovery for counsel fees can be had (Id.).

to lawn caused by drifting sand. Chicago

Not where injunction was to prevent inter-

Title & Trust Co. \[Colo. App.\] 76 P. 555.

70 N. E. 672. Pleadings and evidence insu-

ficient to show damage resulting from injunction

only damages recoverable are those result-

junction restraining enforcement of Judge

Inform the operation of the injunction it-

ment. Warren v. Foust \[Tex. Civ. App.\]

81 S. W. 323. Injuries to coal mine by fall-

Inform necessary costs and expenses in-

ing In of workings pending injunction

armed in procuring a dissolution may be

against its operation recoverable by equta-

te recovered in action on bond, where injunc

ble owner of reality. Evidence sufficient to

in the only remedy sought. Complaint

authorize recovery. Quinn v. Baldwin Star

Cool Co. \[Colo. App.\] 76 P. 552; Quinn v.

Silka \[Colo. App.\] 76 P. 555.

74. Chicago Title Title & Trust Co. , V. Chicago,

75, 76. Quinn v. Baldwin Star Coal Co.

209 Ill. 172, 70 N. E. 672. Fees of solicitors

employed by defendant's successor. To-

77. Action on bond. Quinn v. Baldwin

ledo, etc., R. Co. v. St. Louis, etc., R. Co.,

78 Ill. 623, 70 N. E. 715. Restraining re-

79.

curred solely or principally on account of the injunction, are not recoverable." Costs and expenses stated to have been incurred will be presumed to be reasonable."

Depreciation in the value of stock, the sale of which was enjoined, may be recovered." It is no defense that plaintiff held title thereto in fraud of the creditors of the true owner." One securing an injunction restraining a minor from disposing of his property cannot defend on the ground that no order of court was obtained authorizing him to sell." The fact that defendant violated the temporary injunction does not prevent a recovery of damages for its wrongful issuance," and it is no defense that the assignment of defendant's claim for damages to his attorneys is champertous."

\_Practice in actions on bonds."\_The complaint must allege a failure to pay the damages suffered." The fact that the injunction suit is still pending, if relied on as a defense, must be pleaded, where it is not disclosed by the petition." The admission of such fact at the close of the evidence does not change the rule."

The Kentucky statutes provide that on dissolution of an injunction to stay-proceedings on a judgment the damages shall be assessed by the court, and judgment shall be rendered against the party obtaining the injunction for the amount." Such remedy is exclusive and is a condition precedent to an action on the injunction bond."

(SS 4) _E. The appealability_ of preliminary orders, and of the dissolution, vacation, modification, or refusal thereof, is regulated by statute, and has been fully discussed elsewhere."

SS 5. \_Decree, judgment, or order for injunction."\_The formal order of injunction fixes the rights of the parties." It must clearly specify the acts enjoined." Clerical errors therein will be corrected."

All questions decided on the hearing for a preliminary injunction are open for review on final hearing, but the original decision should be adhered to unless it clearly appears that an error was committed, or additional facts were brought out on the trial requiring a modification or reversal of the views then expressed."

Neither a decree for an injunction nor a decree dissolving an injunction is suspended by appeal." In Kentucky the order granting the injunction and not the action of the clerk issuing the writ is reviewable by the appellate court."

78. Perlman V. Bernstein, 98 App. DIV. 1225. Mason, Gooch & 335, 87 N. Y. S. 862. 79. Williams v. Ballinger \[Iowa\] 101 N. 180. Mason, Gooch & Hoge Co. v. Mechan-

01. "Though caused by company's forfeti-

ure of lease and injuries to its property," Complaint held to authorize evidence that

plaintiff had purchaser for stock. Slack v. Stephens \[Coi. App.\] 76 P. 741. 81, 82. Slack v. Stephens \[Coi. App.\] 76 P. 741. 83. Toledo, etc., R. Co. v. St. Louis, etc., R. Co., 208 Ill. 623, 70 N. E. 715. 84. Champerty only a defense in action to enforce champertous agreement. Lacey v. Davis \[Iowa\] 98 N. W. 366. 85. See 2 Curr. L. 441. 86. Yan Horn v. Holt \[Mont\] 75 P. 680. 87. Lacey v. Davis \[Iowa\] 98 N. W. 866. An abatement of the action on such ground cannot be accomplished by a motion in arrest of judgment \[Iowa Code, # 3758\]. Id.

88. "Lacey v. Davis \[Iowa\] 98 N. W. 366. 88. Applies to injunction to stay proceedings on an execution issued on a judge."

## 6 Violation and punishment

The willful violation of an injunction by a party to the cause is contempt of court, constituting a specific offense\[1\]. An injunction is operative from the time the order is made\[2\], and is binding on all parties having actual notice thereof, whether served with the writ or not\[3\]. The spirit as well as the letter of the writ must be observed\[4\]. Persons confederating or conspiring with defendant in a breach of an injunction are punishable for contempt if they have actual notice thereof\[5\]. Persons enjoined individually cannot escape liability for a violation of the injunction by changing their relations to each other, as by forming a corporation\[6\]. Advice of counsel operates in extenuation only\[7\]. Where the violation is not willful or intentional but is the result of the advice of counsel and the defendant's view of his rights under the decree, the punishment imposed will be nominal\[8\].

In order to support contempt proceedings, the proof should be so clear and convincing as to leave no reasonable doubt of guilt\[9\]. One cannot be punished for contempt for violating an injunction which is void for want of jurisdiction\[10\].

An appeal does not lie from an order refusing to punish as for contempt an alleged violation of an injunction\[11\]. In New Mexico an appeal will not lie from a judgment committing one to jail for contempt for the violation of an injunction\[12\]. Mandamus to compel the chancellor to punish violations of an injunction will be denied where the bill has been dismissed and the preliminary injunction dissolved\[13\].

4 Cur. Law. INNS, RESTAURANTS AND LODGING HOUSS.

The Indiana statute relating to contempts of court does not apply to contempt proceedings for violation of an injunction.14

Contempt proceedings may not be resorted to to settle and adjudicate the title to property in no way affected by the decree in the injunction proceedings.15 In New York the mandate of commitment for contempt for violating an injunction must set forth the particular circumstances of the offense.16

Matters relating to practice in contempt proceedings are treated elsewhere.17

SS 7. _Liability for wrongful injunction.18_

**INNS, RESTAURANTS AND LODGING HOUSS.19**

\_Who is a guest.--\_One who registers at a hotel as a guest retains his status as guest though, after a week's stay, he is charged at the regular weekly rate.20 One who merely allows his baggage to be taken to a hotel, and does not go there himself or procure any accommodation, does not become a guest.21 In such case the hotelkeeper is only the gratuitous bailce of the baggage, liable for its loss only if guilty of gross negligence.22

Under the Kentucky "hospitality act" a person, not a keeper of a tavern or house of private entertainment, cannot recover for accommodations furnished unless a contract was made therefor.23

\_Liability for guest's safety.24--\_An innkeeper is not an insurer of the safety of the persons of his guests; his obligation is limited to the exercise of reasonable care for their safety, comfort and entertainment.25 He is therefore not liable for negligent, willful or violent acts of servants without the scope of their employment.26

\_Liability for effects.--\_While the strict rules making hotel and innkeepers in surers of the effects of guests do not apply to restaurant keepers," yet the latter are liable for damages caused by the negligence of their servants in the conduct of the business for which they are employed.28 A watch and fob is included within the meaning of the phrase "jewels and ornaments" in the Tennessee innkeepers' liability act.29

In an action to recover for baggage lost in a hotel fire, the question of plain-tiff's contributory negligence in failing to remove the baggage in time is ordinarily one for the jury.30 The clerk's statement to the guest that the hotel was fireproof was held admissible on that issue.31 A guest has the right, in case of fire, to rely to some extent on statements of persons, apparently servants, or employees, in regard to the danger; but he must use his own intelligence and not rely on such statements as those of experts.32

\_Liens.38--\_Where a statute regulating innkeepers' liens provides that nothing therein contained shall preclude any other existing remedy for the enforcement of innkeepers' liens, the common-law lien of an innkeeper is not affected by it.34 Where the guest has lawful possession of property which he brings to a hotel and treats as his own, the innkeeper has a lien thereon for the accommodation of the guest, though the general ownership is in another, the innkeeper having no notice of such general ownership.38

\_Public regulation; licenses.--\_Municipalities have such power to license or regulate inns as their charters and the statutes give them.38 The power to license inns and taverns is said to be administrative rather than judicial, and the right to impose it on courts of New Jersey rests only on long continued usage in that state.37 A license tax on restaurants and boarding houses apportioned according to the amount of business done, as determined by the method of conducting it, is not invalid for unreasonable discrimination.38

Footnote 38: http://www.lien.com/lien/

In a prosecution for failure to obtain a hotel license, the fact that the propriator, being ill, directed his clerk to obtain the license, and believed he had done so, though in fact he had not, was no defense.38 Under provisions of the charter

27. Block v. Sherry, 43 Misc. 342, 87 N. \[ ties. Polk & Co. v. Melenbacker \[Mich.\] Y. S. 160. \[89 N. W. 867. \[88.\] \[88.\] \[89.\] \[90.\] \[91.\] \[92.\] \[93.\] \[94.\] \[95.\] \[96.\] \[97.\] \[98.\] \[99.

4 Cur. Law. INQUEST OF DEATH.

of New York requiring hotels and other establishments to adopt means of communicating alarms of fire to the police and fire departments, it is held that the fire commissioner's order must specify the means of communication to be adopted, in order to render one notified liable to the penalty imposed for failure to obey such an order.49

INQUEST OF DAMAGES, see latest topical index.

INQUEST OF DEATH. 4

Under Idaho statutes, it is the duty of the coroner to hold an inquest when he is informed that the death of the deceased was under such circumstances as to afford reasonable ground to suspect that it was caused by the act of another by criminal means.42 But failure of the coroner to hold an inquest is no ground for the release of one charged with murder of the deceased,43 since the coroner is not a magistrate, authorized to hold preliminary examinations; and the inquest is not a sufficient basis for information by the public prosecutor.44

A verdict on an inquest of death being an ex parte finding of facts in aid of the public administration of the law has no force as evidence, in a collateral proceeding, of the cause of death,48 but there is authority for the other view.46 If admissible the inquest is only prima facie,47 and since even a conviction for homi cide is only prima facie as against an insurer of deceased," it should on reason yield to slight contrary evidence. It is not evidence of the character or degree of negligence wherefrom death resulted,\[49\] nor even that there was negligence.\[50\]

**INSANE PERSONS.**

**SS 1. Existence and Effect of Insanity in**

**SS 4. Commitment to Asylmus (128).**

**SS 5. Property and Debts (128).**

**SS 2. Inquisitions (126).**

**SS 6. Contracts and Conveyances (129).**

**SS 7. Torts (129).**

**penses and Accounts (127). Support (128).**

**SS 8. Actions by or Against (129).**

This topic includes only adjudication of insanity and the rights and disabilities of adjudicated lunatics. Contractual capacity in general,\[81\] and capacity to commit crime,\[62\] are elsewhere treated.

**SS 1.**\_Existence and effect of insanity in general.\[82\]--\_The presumption that where unsoundness of mind is shown it continues until the contrary is shown does not extend to temporary, intermittent unsoundness, caused by intoxication, sickness, or other transitory causes.\[54\] While an adjudication of a probate court that one is non compos and placing him under guardianship remains in force, he is prima facie without testamentary capacity.\[85\] A finding that one was desperate when he killed another does not amount to a finding that he was insane;\[86\] nor is a finding by a jury that a person is "feeble in mind, incapable of managing business affairs, and a typical imbecile," a finding of insanity within the statutory meaning of the term.\[87\] The fact that a person has been duly committed as insane, and thereafter discharged as cured, is not, in the absence of peculiar conduct, notice to persons dealing with him in good faith, that he is incompetent.\[88\] The insanity of a client operates to terminate the relation of attorney and client.\[89\] Where a party becomes insane while indebted to an attorney representing him, the appointment of a guardian does not divest the attorney of any lion he may have acquired, but the attorney has no right per se of representing the guardian.\[88\]

**SS 2.**\_Inquisitions.\[81\]--\_In lunacy proceedings, summons must be served on the alleged lunatic as a foundation to any judgment declaring him to be of unsound mind.\[92\] Where a person is mentally incompetent, it is proper for the court to competent, is not conclusive. Metradt v. 59. An agreement by a sane person with modern brotherhood, 112 Iowa, 522.\*\*

**48. Schreiner v. High Court, etc., of For-esters, 35 Ill. App. 576.**

**49. Callaway v. Spurgeon, 63 Ill. App. 571.**

**50. Cox v. Chicago, etc., R. Co., 92 Ill. App. 15: Chicago, etc., R. Co. v. Staff, 46 Ill. App. 499.**

**Where the policy called for the lunquest with proofs of loss it was, when offered and not limited to proof of compliance with that condition, evidence of every fact which it tended to prove. Lawrence v. Mutual Life Ins. Co., 5 Ill. App. 280.**

**51. See Incompetency, 3 Curr. L. 1696.**

**52. See Criminal Law, 3 Curr. L. 979.**

**53. See 2 Curr. L. 454.**

**54. Bronstruct v. Crow, 162 Ind. 362, 69 N. E. 668.**

**55. In re Wheelock's Will \[Yt.\] 56 A. 101.**

**56. Box v. Lanier \[Tenn.\] 79 S. W. 1042.**

**57. Gen. St. 1901, 6570.**

**58. Leins v. Weiss \[Ind. App.\] 71 N. E. 54.**

**59. An agreement by a sane person with modern brotherhood, 112 Iowa, 522.**

**48. Schreiner v. High Court, etc., of For-esters, 35 Ill. App. 576.**

**49. Callaway v. Spurgeon, 63 Ill. App. 571.**

**50. Cox v. Chicago, etc., R. Co., 92 Ill. App. 15: Chicago, etc., R. Co. v. Staff, 46 Ill. App. 499.**

**51.**

**52.**

**53.**

**54.**

**55.**

**56.**

**57.**

**58.**

**59.**
4 Cur. Law.

INSANE PERSONS $ 3.

appoint a guardian ad litem on the hearing of an application for the appointment of a general guardian. \[82\] The question of sanity should not be tried on affladavits, but should be sent to a commissioner or a jury. \[64\] A commissioner on an inquisition may dissent from the finding of a jury on the question of sanity and the court may refuse to confirm the finding. \[85\] In a trial of an issue as to whether one was and is of sound mind, the evidence must relate to his condition up to the time of the trial. \[96\] The finding of an inquisition should recite that the incapacity of a person to manage himself and his property is the result of unsoundness of mind. \[97\] Where physicians appointed by the probate court certify to sanity the probate judge has no authority to proceed and himself determine the question of sanity. \[98\] Where a lunatic is too imbecile to desire that a defense be made for him to an inquisition, his interests are properly confided to the prosecuting attorney. \[99\] When upon an application for leave to traverse an inquisition of lunacy, an issue is directed to be tried at law, a motion for a new trial of the issue is to be made before the chancellor, and not in the supreme court. \[99\] A cause of action to have defendant declared a lunatic does not survive the death of the defendant. \[99\]

SS 3. \_Guardianship and support. \[12\] The Federal courts have no jurisdiction to exercise the function of parents patrize for the determination of the right to the custody of an insane person. \[99\] In Texas the county judge may of his own motion, and without application made therefor, appoint a guardian for a person of unsound mind. \[99\] Under a statute permitting a guardianship where one is likely to bring himself or his family to want, a petition merely stating his incapacity to manage his estate is insufficient, and a decree entered thereon is a nullity, and open to collateral attack. \[99\] The fact that one is confined in an asylum in another county does not affect his residence, or the jurisdiction of the court of his residence to appoint a guardian for him. \[99\] An order appointing a guardian for an alleged incompetent will be reversed if purely a consent order. \[99\] Where a guardian receives funds of his insane ward and mingles them with his own he is properly charged with interest upon the balance left in his hands at the beginning of each year after the first. \[99\]

_Expenses and accounts. \[99\]_--\_Estates of insane persons and of those legally bound to support them are liable to the county for reasonable expenses for their care in the county asylum, but such estates may not be taxed with the costs of the hearing as to insanity, and the costs of transportation to the hospital. \[99\]

63. County Court Rule 3, $ 1. Ziegler v.

shch physician. Grinky v. Durfee \[Mich.\]

Bark \[ViRs.\] 99 N. W. 224.

64. Even if, as in this case, the evidence

01. Burns' Ann. St. 1901, $ 2715. Chase v.

adduced by the affladavits would be ground

for dismissing the petition, or of reversing

69. In re Comfort \[N. J. Eq.\] $7 A. 426.

a finding of incompetency. In re Milschack,

88 N. Y. B. 524.

65. In re Preston, 95 App. Div. 89, $ 89 N. Y. B. 517.

01. A stipulation that the evidence should

be restricted to the period covered by the

inquisition is unlawful and is ground for

a retrial. In re Comfort \[N. J. Eq.\] $7 A.

67. A find that he is "of unsound mind

and incapable of such management" is not sufficient. In re Dayton \[N. J. Eq.\] $7 A.

871.

001. Pub. Acts pp. $28, $29, provides that

two reputable physicians appointed by the court shall pass on the sanity of an alleged

69. JUNE, and that no person shall be held

in any asylum, except on the certificate of

_Support._"--An asylum to which a person was committed on a void inquest may recover on a quantum mernuit for necessaries furnished him; and he is entitled to credit for services rendered."Necessaries furnished to a lunatic are recoverable against him, and after his death against his estate."Insane residents of the state shall receive board and treatment free at the state insane hospital and there is no provision for reimbursing the county from the property of those who are obliged to support the lunatic."Judgment for necessaries furnished to an alleged lunatic cannot be recovered, where, in an action for same, the lunacy is denied and not proved."The services voluntarily rendered to an incompetent, by a person who knows of a contract made by the guardian with third parties for such care, cannot be recovered for as necessaries where the guardian knew nothing of their being rendered."

SS 4. _Commitment to asylums._"--The statutory requirements in committing insane persons to an asylum must be followed even though the prescribed delay cause inconvenience or even danger."On habeas corpus by a person committed as insane, the ordinary procedure will be followed unless the court in its discretion, on account of some special cause, see fit to direct a jury trial."An act providing that a person acquitted of murder on the ground of insanity may be committed to an asylum for the dangerous insane, and can only be discharged by act of the general assembly, is unconstitutional; but a person so committed cannot be released on habeas corpus if he is insane at the time of the return of the writ and must be restrained pending the inquiry as to his insanity."Keepers of asylums are not given judicial powers, because they may not hold a patient except on certificates of insanity and an order for admission."The detention of a widow in an insane asylum is not a voluntary abandonment of her homesetad, and does not affect her rights therein."

SS 5. _Property and debts._"--A widow, insane at the time of her husband's death, is not barred of her right to apply for dower, until the statute of limitations has run, dating from the time of the removal of her disability; but the right to take a child's share in the estate is dependent upon her election within the period prescribed after administration granted."A wife acting as conservatrix of her insane husband's estate, and who inventories certain lots as part thereof, is not estopped from claiming, after his death, a resulting trust in her favor as to such lots."A second committee of an insane person may maintain a suit in his own name against the estate of a deceased committee for money chargeable to the first committee as such; and money so received under color of his appointment may be used for, though the appointment be void."

80. Westiake's Estate v. Scott County \[Iowa\] 101 N. W. 88. 82. See 2 Curr. L. 457. 82. Michels v. Central Kentucky Asylum \[Ky.\] 81 S. W. 247. 83. Vuldron v. Davis \[N. J. Err. & App.\] 58 A. 293. After obtaining an allowance of 550 per month from the court, the guardian cannot after the ward's death, claim 8395 for extraordinary services to the ward in the last ten weeks of his life. Gibson v. Villi \[Iowa\] 99 N. W. 569. 84. Hamilton County v. Tauer \[S. D.\] 100 N. W. 430. 85. Norman v. Central Kentucky Asylum \[S. L. R. 1846, 79 S. W. 189. 86. Scharnke v. Shepeck \[VWs.\] 98 N. W. 213. 87. See 2 Curr. L. 457. 88. A Judgment appointing a guardian for * Cur. Law. INSOLVENCY $ 1.

## 6 Contracts and conveyances."

The deed of an insane person may be avoided as against a grantee for value without notice of his grantor's insanity." The deed of an insane person is not absolutely void, but voidable at his election, on recovery of his reason, and is of force and effect until the option to declare it void is exercised." but neither the court, nor a person under guardianship by reason of insanity, nor the guardian of the latter, nor all together, can ratify a conveyance of land by the ward made previous to the guardianship, but while he was insane.1 An assignment of a contract to purchase land, by a person non compos mentis is voidable only.2 A confirmed insane person may, in a lucid interval, make a valid contract, and if the insanity be intermittent, it must be proved to exist at the time of making the contract in order to avoid the same." But ordinarily the burden of showing that a conveyance by an insane person was made during a lucid interval is upon the person claiming under the instrument." The record in one action where a conveyance was set aside on the ground of mental incapacity is not admissible in an action to set aside a second and subsequent conveyance by the same grantor."

## 7 Torts."

## 8 Actions by or against."

The mental condition of an incompetent does not prevent him from commencing in his own name, prior to the appointment of a guardian for him, an action to set aside an agreement conveying his property to another." A committee appointed for an incompetent infant after the latter has commenced an action by guardian ad litem may be properly substituted as plaintiff." Where on foreclosure, personal service is had on an insane person and his guardian, failure to appoint a guardian ad litem for the insane person is a mere irregularity not affecting the judgment." In a suit by a next friend for a lunatic, the objection that there is no allegation of no guardian, or reason for not appearing by guardian, if there be one, must be taken by special demurrer or plea in abatement." The statute of limitations does not run against a committee of a lunatic, who is also his administrator, who has never been discharged from these offices, and who sues the heirs for an accounting." The rule that a person may voluntarily dismiss his appeal has no application where the party is of unsound mind."

## 1 Effect of Federal Bankruptcy Act on

- 1. Effect of Federal Bankruptcy Act on
- State Insolvency Laws (129).
- 2. Procedure and Parties to Adjulate
- 3. Property Passing to the Assignee
- 4. \*\*1. Effect of federal bankruptcy Act on state insolvency laws.\*\*15--The enact-
- 5. Boilnow v. Roach, 210 Ill. 364, 71 N. E. 454.
- 6. **7. See 2 Curr. L 458.** 8. Ziegler v. Bark \[Wis.\] 99 N. W. 224.\*\* 8. Callahan v. New York, etc., R. Co., 90 N. Y. S. 657.\*\* 10. Carroll Imp. Co. v. Engleman \[Iowa\]
- 93 N. W. 574.\*\* 11. LaGrange Mills v. Kener \[Ga.\] 49 S. 200.\*\* 12. Cauthen v. Cauthen \[S. C.\] 49 S. E. 321.\*\* 13. Combs v. Combs \[Ky.\] 82 S. W. 298.\*\* 14.\*\* 15.\*\* 14.\*\* 15.\*\* 16.\*\* 17.\*\* 18.\*\* 19.\*\* 19.\*\* 18.\*\* 19.\*\* 19.\*\* 20.\*\* 21.\*\* 22.\*\* 23.\*\* 24.\*\* 25.\*\* 26.\*\* 27.\*\* 28.\*\* 29.\*\* 29.\*\* 28.\*\* 29.\*\* 29.\*\* 29.\*\* 30.\*\* 31.\*\* 32.\*\* 33.\*\* 34.\*\* 35.\*\* 36.\*\* 37.\*\* 38.\*\* 39.\*\* 40.\*\* 39.\*\* 41.\*\* 42.\*\* 43.\*\* 44.\*\* 45.\*\* 46.\*\* 47.\*\* 48.\*\* 49.\*\* 49.\*\* 41.\*\* 48.\*\* 49.\*\* 42.\*\* 49.\*\* 43.\*\* 44.\*\* 45.\*\* 47.\*\* 48.\*\* 49.\*\* 49.\*\* 44.\*\* 48.\*\* 49.\*\* 45.\*\* 49.\*\* 46.\*\* 47.\*\* 49.\*\* 48.\*\* 49.\*\* 49.

ment of the federal bankruptcy law did not suspend the jurisdiction of state courts in insolvency cases where no proceedings in bankruptcy have been instituted respecting the matters in controversy.\[16\]

SS 2. _Procedure and parties to adjudicate insolvency._\[17\]--One is insolvent when the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, or removed, or permitted to be sold or removed, with intent to defraud, hinder, or delay his creditors, shall not, at a fair valuation, be sufficient in amount to pay his debts.\[18\] When the question of insolvency is in issue in a state court it is proper for it to follow the definition of insolvency as embraced in the federal bankruptcy act.\[19\]

In Louisiana the test of the jurisdiction of the supreme court in appeals in insolvency cases is the amount of the funds to be distributed in the case.\[20\]

It is no defense to an action on an insolvent bond, based on the party's failure to appear at the next term of court and take advantage of the insolvency laws, that he thereafter appeared pending such action.\[21\]

The Washington insolvency law is not unconstitutional as embracing more than one subject not expressed in its title.\[22\]

SS 3. _Property passing to the assignee_\[23\] is generally such as might be subjected to payment of debts.\[24\]

SS 4. _Administration of insolvent estate._\[28\]--As a general rule only debts absolutely due are provable.\[26\] The liability of a surety on an administrator's bond does not constitute a debt provable in insolvency until after a breach of the bond.\[27\]

All creditors will, as far as possible, be placed on an equality.\[28\] Therefore creditors who have realized on collaterals before a dividend has been declared are entitled to a dividend only on so much of their debt as remains after deducting the proceeds of such collaterals.\[20\] The fact that their claims have therefore been proved and allowed for the full amount is immaterial.\[20\] The statutory rule as to secured claims, generally applied in bankruptcy proceedings, limits a creditor with a secured claim, to the amount of his claim less the value of his security, unless he surrenders the security.\[31\] In equity a creditor of an insolvent whose estate is in process of administration under judicial supervision, having a secured claim against such insolvent, may prove it to the full amount, and in such case

tinent to Bankruptcy ($ Curr. L. 484), and to Assignments for Creditors ($ Curr. L. 326), are not included. Discharge of insolvents from imprisonment for debt (Civli Arrest, $ Curr. L. 700), and Composition with Creditors ($ Curr. L. 718), are related matters but are also excluded. '15. See 2 Curr. L. 459. '16. Jensen-King-Byrd Co. v. Williams, 35 Wash. 161, 76 F. P. 934. 17. See 2 Curr. L. 459. 18. Bankruptcy Act 1898, $ 1, subol. 15, 30. $1. 544, 545 \[U. S. Comp. St. 1901, 3420\]. Owen v. American Nat. Bank \[Tex. Civ. App.\] $1 S. W. 988. Instruction defining insolvency sustained as favorable to plaintiff. Id. 19. Owen v. American Nat. Bank \[Tex. Civ. App.\] $1 S. W. 988. 20. Not amount distributed under provisional account \[Act 1898, No. 159, p. 314, $ 4; Const. 1898, art. 85\]. In re New Ibera Cotton Mills Co. \[La.\] $7 So. $. 21. Glynn v. Kelly \[N. J. Law\] $8 A. 178. 22. Laws 1890, $8. Jensen-King-Byrd Co. v. Williams, 35 Vash. 161, 76 F. P. 934. 23. See 2 Curr. L. 459. 24. See the titles Assignment for Benefit of Creditors, $ Curr. L. 341; Bankruptcy, $ Curr. L. 446; Fraudulent Conveyances, $ Curr. L. 1658. 25. See 2 Curr. L. 460. 26. Must be absolutely due at time of publication of notice of issuance of warrant, though payable in future \[Mass. Pub. St. 1882, e. 157, $ 26\]. McIntire v. Cottrell, 185 Mass. 178, 69 N. E. 1091. 27. Under Mass. Pub. St. 1882, c. 143, $ 10; Rev. Laws, c. 149, $ 20; is no violation of bond as to any debt until it has been established by judgment, which administrator has failed to pay on demand. Until that time is not absolutely due within meaning of Pub. St. 1882, c. 157, $ 26. McIntire v. Cottrell, 185 Mass. 178, 69 N. E. 1091. 28. Property of insolvent debtor placed in hands of receiver, by order of court, to be administered upon for payment of his debts. State Nat. Bank v. Esterly, 69 Ohio St. 24, $8 N. E. 582. 29. 30. State Nat. Bank * 4 Cur. Law. INSOLVENCY SS 5.

he is entitled to share with general creditors upon that basis in every general distribution of trust funds till the dividends, together with the recepits, if any, from the security, are sufficient to fully pay such claim, the residue of the security remaining to belong to the trust fund or to the owner of the equity."

Preferences must be surrendered" and may generally be recovered by the receiver in an action brought for that purpose." The fact that receivers of an insolvent corporation know of and report the existence of assets, from which report a creditor obtains his knowledge thereof, shows that the latter is not entitled to a preference on account of diligence."

A receiver collecting from a stockholder of an insolvent corporation more than is necessary to pay its debts and the costs of administration is bound to restore the balance."

SS 5. _Rights and liabilities affected by insolvency and discharge of insolvent."_--A creditor whose claim antedates the proceedings and who has full notice thereof cannot enforce such claim outside such proceedings."

Insolvency proceedings have no effect, proprio vigore, beyond the state in which they are instituted." But a nonresident creditor voluntarily becoming a party thereto thereby elects to take advantage of, and become bound by, them, and cannot thereafter resort to remedies against the property of the insolvent in other states, to which he might otherwise have had recourse." Statutes generally provide for an order requiring creditors to show cause why a discharge should not be granted, and fixing a day for the hearing thereof." The fixing of the day is jurisdictional." Notice of the order to show cause must generally be given, and the same must be published, and proof of such publication must be made and filed

- - before a valid discharge can be granted."

Proceedings to obtain a discharge are strictly adversary, and creditors whose

- 3S. After attachment of property of off-

cer In suit on his bond and giving of note

for the benefit of his creditors and his es-

by him and his sureties to bank to raise

tates is administered according to law. Jen-

money to make settlement, held that giving

of trust deed by him to secure its payment

161, 76 P. 934.

was not a preference within meaning of Ken-

tucky St. 1899, 1 910, since condition of

surretes was not bettered thereby. Stephens

v. Wilson, 25 Ky. L. R. 662, 76 S. W. 180.

Insurance company deposited money with

trust company to secure surety on appeal

bond in case judgment recovered against it

was affirmed. Judgment was reversed and

on retrial judgment creditor again recovered. Insurance company had, in meantime

become Insolvent. Held that judgment creditor was not entitled to preference in such

depostr. Mallick v. Bulkley, 206 Ill. 249, 69 N. E. 87.

- 34. In New Jersey the receiver of an insolvent corporation may recover payments

made when it was insolvent or in contemplula

tion of insolvency to creditors having knowl-

edge thereof. Where president and treasure

paid claims due themselves within ten days

of appointment of receiver. Jessup v. Thomson

sson \[N. J. Eq. 1\] 59 A. 226. Evidence held

to show that creditor had knowledge of insolvency so as to require him to refund

preference. Id.

3S. Money deposited with trust company. Mallick v. Bulkley, 206 Ill. 249, 69 N. E. 87.

36. In re New Iberia Cotton Mills Co. \[La.\]

37 S. See 2 Curr. L. 460.

38. Where a debtor makes an assignment

for the benefit of his creditors and his es-

by him and his sureties to bank to raise

maney to make settlement, held that giving

sen-King-Byrd Co. v. Williams, 35 Wash.

of trust deed by him to secure its payment

161, 76 P. 934.

was not a preference within meaning of Ken-

tucky St. 1899, 1 910, since condition of

vastries was not bettered thereby. Stephens

v. Wilson, 25 Ky. L. R. 662, 76 S. W. 180.

Insurance company deposited money with

trust company to secure surety on appeal

bond in case judgment recovered against it

was affirmed. Judgment was reversed and

on retrial judgment creditor again recovered. Insurance company had, in meantime

become Insolvent. Held that judgment creditor was not entitled to preference in such

depostr. Mallick v. Bulkley, 206 Ill. 249, 69 N. E. 87.

34. In New Jersey the receiver of an insolvent corporation may recover payments

made when it was insolvent or in contemplula

tion of insolvency to creditors having knowl-

edge thereof. Where president and treasure

paid claims due themselves within ten days

of appointment of receiver. Jessup v. Thomson

sson \[N. J. Eq. 1\] 59 A. 226. Evidence held

to show that creditor had knowledge of insolvency so as to require him to refund

preference. Id.

35. Money deposited with trust company. Mallick v. Bulkley, 206 Ill. 249, 69 N. E. 87.

01. In re New Iberia Cotton Mills Co. \[La.\]

37 S. See 2 Curr. L. 460.

38. Where a debtor makes an assignment

for the benefit of his creditors and his es-

by him and his sureties to bank to raise

maney to make settlement, held that giving claims are to be barred must be made parties and jurisdiction of them obtained in the way provided by statute, or their claims will not be affected thereby.44 In Maine the omission of the name of a creditor from the schedule of creditors, when not willful or fraudulent, does not affect the validity of the discharge duly granted, in a suit brought by the creditor whose name was thus omitted.45

In New Jersey the insolvent must make an assignment of all his nonexempt property to the assignee appointed by the court before he can be discharged from custody.44 An order of discharge from custody will be set aside where the petition presented to the court is not filed with the clerk for more than two months afterwards.47 A discharge may be collaterally attacked for want of jurisdiction appearing upon the face of the record.48

INSPECTION, see latest topical index.

The states have power to enact and enforce inspection laws applicable to interstate commerce.50 Inspection laws are not invalid because designed to enforce police regulations calculated and suited to prevent frauds and crimes.51 So long as the fee required to be paid by an inspection law is not so much in excess of the reasonable expense of inspection as to change the nature of the act to a tax law, the amount of the fee presents no judicial question.52

A statute regulating the fees of inspectors is not unconstitutional as local or special legislation though it in fact applies only to the inspector in one city, where it in terms applies to all cities which have or may have a certain number of inhabitants53 or over; but a law in Pennsylvania has been held not to apply to places subsequently attaining that population.54 The inspectors to whom the Missouri law applies are state, not county, officers.55 The maximum compensation fixed by the act was $7,000 per annum.56

They act upon the subject before it becomes an article of foreign commerce or of commerce among the states, and prepare it for that purpose." Again it was said in Turner V. Maryland, 107 T. S. 38, 55, 27 Law. Ed. 370: "Recognized elements of inspection laws have always been quality of the article, form, capacity, dimensions, and weight of package, mode of putting up, and marking and branding of various kinds; all these matters being supervised by a public officer having authority to pass or not pass the article as lawful merchandise, as it did or did not answer the prescribed requirements."

52 If the charge proves to be in excess of ten cents per hide,and prohibitions the shipping beyond the limits of the terri-tory of hides uninspected and untagged, is valid. Territory v. Denver, etc., R. Co. \[N. M\] 78 P. 74. A fee of talent centers per hide for all animals killed at slaughter houses, held not to change law from one of inspection to one of taxation \[Laws 1901, p. 96, c. 45\]. Ted. This law does not apply to pelts and skins, other than Notes This case, following Neilson v. hides; the fee is not therefore unreasonable. Zwaods, 287, Fed. Cas. No. 10,091, extends the doctrine of the earlier cases as to the proper purpose and scope of inspection laws. Thus, Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. \[U. S.\], 1, 208, 62 Law. Ed. 23, defined inspection as follows: "The object of inspection laws is to improve the quality of articles produced by the labor of a country, to fit them for ex-portation, or, it may be, for domestic use.

## 11 Object and Purpose (133).

1. **2. Province of Court and Jury (133).**

1. **3. Duty of Instructions; Requests for Instructions (134). Limiting Number of Instructions (135). Requests for Instructions (135). Form and Sufficiency of Request (136). Time of Making Request (136). Disposition of Requests (136). Repetition (137).**

1. **4. Assumption of Fuets (138).**

1. **5. Charging with Respect to Matters of Fact or Commenting on Weight of Evidence (140).**

1. **6. Form of Instruction (142). Instruction Should be Certain (143). The Instructions Should be Consistent (145).**

1. **7. Relation of Instruction to Pleading and Evidence (145).**

1. **8. Stating Issues to Jury (145).**

\_Scope of topic.--\_This topic is confined to instructions in civil cases. Instructions in criminal prosecutions is elsewhere treated."

1. **8 1.**\_Object and purpose.--\_The object and purpose of instructions is to submit questions of fact,\*\*\[**88**\] **and to convey to the jury the correct principles of law as applicable to the evidence introduced,**\[**88**\] **and nothing should be given unless it will promote that end.**\[**88**\] **Questions of law should not be submitted.**\[**88**\] **A court need not comment on the wisdom and benefcience of the statute of limitations after properly instructing the law,**\[**88**\] **but may instruct as to the result of a verdict.**\[**88**\] **The jury must take the whole charge as the law of the case.**\[**88**\]\*\*\*\*

1. **8 2.**\_Province of court and jury.**\[**88**\]\*\*\*\*.--\_It is the exclusive province of the jury to determine all issues of fact,**\[**88**\] **the credibility of the witnesses, and the weight to be given their testimony.**\[**88**\] **Therefore, when there is substantial conflict in the**

1. **87. See Indictment and Prosecution, 4**

1. **87.** **11.** **87.** **11.** **88.** **111.** **88.** **112.** **88.** **113.** **88.** **114.** **88.** **115.** **88.** **116.** **88.** **117.** **88.** **118.** **119.** \*\*89.

evidence relating to material facts68 or when fair and rational minds may well draw different conclusions from the established facts, the issues should be submitted to the jury,69 and an instruction which invades this province is erroneous;70 but where the evidence leaves the material facts and the deductions from them admitted or undisputed71 or of such a conclusive character that the exercise of sound judicial discretion would permit effect to be given to but one verdict, it is the duty of the court to instruct the jury to return it.72

too general"2 or is not as full as desired"3 in that it omits reference to particular points,"4 theories,"8 issues86 or defenses,"9 or that such reference is not sufficiently specific,"88 it is incumbent on the litigants to request such particular instruction as they deem proper,"9 and this rule is not changed by a mandatory statute making it the duty of the court to instruct in writing."90

\_Limiting number of instructions.--\_The court has no authority to arbitrarily fix the number of instructions that shall be presented or passed upon;91 such unauthorized conduct, however, is not reversible error unless prejudicial.92

\_Requests for instructions.93--\_A party is entitled to have the jury instructed as

**82.** Failure to apply the principle in a \[Civ. App.\] 83 S. W. 27. To submit one of hypothetical way to the particular facts. Central of Georgia R. Co. v. McCifford, 120 Co. v. Bolton \[Tex. Civ. App.\] 81 S. W. 123. Ga. 90, 47 S. E. 590. Not error to fail to amplify or particularize or state other contracts in assessing damages for uniawful rect principles. "O'Brien v. Fouke \[Kan.\] 77 \[Mich.\] 98 N. W. 992. P. 103. That the court in giving a charge that is legal and pertinent omits to charge some equally applicable principle. Atlanta R. & Power Co. v. Johnson \[Ga.\] 48 S. E. 389. 88. International, etc., R. Co. v. McVey \[Tex. Civ. App.\] 81 S. W. 991; Nadeau v. Sawyer \[N. H.\] 69 A. 369. Objection to an instruction to find for plaintiff they believed the facts hypothesized without stating that they should believe them from the evidence is unavailfully where no explanatory charge was asked. Davis v. Korman \[Ala.\] 37 S. 789; Wingate v. Johnson \[Iowa\] 101 N. W. 751; Indianapolis St. R. Co. v. Johnson \[Ind.\] 72 N. E. 571; Gooding v. Watkins \[Ind. T.\] 82 S. W. 913. An instruction on the question of damages. Longan v. Weltmer \[Mo.\] 79 S. W. 655. 84. Evans v. Gay \[Tex. Civ. App.\] 74 S. W. 675; Chicago Live Stock Commission Co. v. Fix \[Cokl\] 78 P. 316; Chicago Live Stock Commission Co. v. Connolly \[Cokl\] 78 P. 318; Miller V. Shumway \[Mich.\] 98 N. W. 855; Pritchard v. Edison Elec. Illuminating Co., 92 App. Dlv, 178, 87 N. Y. 325; Ellington v. Great Northern R. Co. \[Minn.\] 100 N. W. 218; Cowles v. Lovin, 135 N. C. 48, 47 S. E. 610; Atlanta R. & Power Co. v. Johnson \[Ga.\] 48 S. E. 389; Nashville, etc., R. Heva \[Tenn.\] 79 S. W. 1028; Gooding v. Watkins \[Ind. T.\] 82 S. W. 913; International, etc., R. Co. v. McVey \[Tex. Civ. App.\] 81 S. W. 591; Missouri, etc., R. Co. v. Baker \[Tex. Civ. App.\] 81 S. W. 67; Texas Cotton Froduce Co. v. Denny Bros. \[Tex. Civ. App.\] 78 S. W. 557; Turner v. Faubion \[Tex. Civ. App.\] 81 S. W. 810. Not to consider evidence admitted on Irrelevant allegations. Martin v. Seaboard Air Line R. Co. \[S. C\] 48 S. E. 616. On the subject of expert testimony. Godwin v. Atlantic Coast Line R. Co. \[Ga.\] 48 S. E. 139. As to intervening or prepondentative causes. I. Failure to call the attention of the jury to corroborating circumstances. Stewart V. New York & C. Gas Coal Co., 207 Pa. 220, 55 A. 435. Features essential to his recovery not mentioned. Cornwell v. St. Louis Transit Co. \[Mo. App.\] 80 S. W. 744. Failure to instruct upon some particular feature. Oison v. Aubolee \[Minn.\] 99 N. W. 1128. Omission which does not constitute positive error. Keas v. Gordy \[Tex. Civ. App.\] 78 S. W. 385. To submit a particular fact. San Antonio, etc., R. Co. v. Votaw \[Tex. Civ. App.\] 81 S. W. 180; San Antonio, etc., R. Co. v. Hahl \[Tex.\] 83.

to the issues and law bearing upon his theory of the case,94 and where a special request is made for an instruction which fairly reflects either a meritorious cause of action or a ground of defense95 which has not been covered by other instructions,96 or where the instruction is made necessary by erroneous procedure,97 it should either be given or its substance embodied in another instruction.

Footnote 94: Suburban R. R. Co. v. Malstrom, 105 without change or modification or refused in 111. App. 631. Requested charge should have been given where the main charge failed to curate. Lynch v. Waldwick \[Wis.\] 101 N. affirmatively submit. Missouri, etc. R. Co. v. Renfro \[Tex. Civ. App.\] 83 S. W. 21. Each party is entitled to an instruction announced in the law applicable to the evidence introduced in his behalf. Hot Springs St. R. Co. v. Hildrten \[Ark.\] 82 S. W. 245; North Texas Condon. Co. v. Rostick \[Tex.\] 83 S. W. 12. Submitting defenses pleaded. Bering Mfg. Co. v. Fermelat \[Tex. Civ. App.\] 79 S. W. 868. Western Mattress Co. v. Ostergaard \[Neb.\] 101 N. W. 334. A party has a right to demand that the jury be instructed what facts are admitted of record. Barton v. Odessa \[Mo. App.\] 82 S. W. 111. It is reversible error to refuse a request for a proper instruction. Collard v. Reach, 81 App. Div. 682, 81 N. Y. S. 619. Error to refuse an instruction that "it is presumed that public officers do their duty." McKinstry v. Collins \[Vt.\] 56 A. 885; Braucht v. Graves-May Co. \[Minn.\] 93 N. W. 417.

96. Wright v. Roberts, 90 N. Y. S. 752; Chicago, etc., R. Co. v. Appell, 103 Ill. App. 185; Weinberg v. Novick, 88 N. Y. S. 168. It is error to refuse instructions correct and applicable. City of Columbus v. Anglin \[Ga.\] 48 S. E. 318; International, etc., R. Co. v. Tsdale \[Tex. Civ. App.\] 81 S. W. 347.

01. False argument of counsel. Drumm-Flato Commission Co. v. Gerlach Bank \[Mo. App.\] 81 S. W. 503.

01. See 2 Curr. L. 474.

01. A request which does not state a distinct proposition of law but only groups together a portion of the alleged facts essential to such an issue is ordinarily insufficient. Leaves the jury no opportunity to determine qualifying matters. McQueen v. Kondelin \[C. C. A.\] 127 F. 76.

01. Pennsylvania R. Co. v. Naive \[Tenn.\] 79 S. W. 124. Request which does not correctly state the law. Harris v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 80 S. W. 1023. Not error to refuse to charge sn unconsontutional status as the law. Ballentine v. Hammond \[BS. C.\] 46 S. E. 1000. Under Rev. St. 1898, 8 2853, providing that requests must be given to the following: \[N. Y. S.\] 101 N. 334. A party has a right to demand that the jury be instructed what facts are admitted of record. Barton v. Odessa \[Mo. App.\] 82 S. W. 111. It is reversible error to refuse a request for a proper instruction. Collard v. Reach, 81 App. Div. 682, 81 N. Y. S. 619. Error to refuse an instruction that "it is presumed that public officers do their duty." McKinstry v. Collins \[Vt.\] 56 A. 885; Braucht v. Graves-May Co. \[Minn.\] 93 N. W. 417.

01. Wright v. Roberts, 90 N. Y. S. 752; Chicago, etc., R. Co. v. Appell, 103 Ill. App. 185; Weinberg v. Novick, 88 N. Y. S. 168. It is error to refuse instructions correct and applicable. City of Columbus v. Anglin \[Ga.\] 48 S. E. 318; International, etc., R. Co. v. Tsdale \[Tex. Civ. App.\] 81 S. W. 347.

01. False argument of counsel. Drumm-Flato Commission Co. v. Gerlach Bank \[Mo. App.\] 81 S. W. 503.

01. See 2 Curr. L. 474.

01. A request which does not state a distinct proposition of law but only groups together a portion of the alleged facts essential to such an issue is ordinarily insufficient. Leaves the jury no opportunity to determine qualifying matters. McQueen v. Kondelin \[C. C. A.\] 127 F. 76.

01. Pennsylvania R. Co. v. Naive \[Tenn.\] 79 S. W. 124. Request which does not correctly state the law. Harris v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 80 S. W. 1023. Not error to refuse to charge sn unconsontutional status as the law. Ballentine v. Hammond \[BS. C.\] 46 S. E. 1000. Under the charge. The practice of taking all the requests and formulating a general charge properly covering the case is to be commended.\[12\] The court may modify requests by striking out erroneous propositions,\[13\] but is not required to do so.\[14\] Where a provision in a request is erroneous, the entire instruction may be refused.\[15\] An inadvertent el elerial error, however, should be corrected.\[16\]

_Repetition._--A requested instruction substantially covered by the charge already given may be refused,\[17\] even though it contains correct propositions applica-

egin{tabular}{l|l} cover. Cleveland, etc., R. Co. v. Tehan, 4 & Co. v. Beck \[III.\] 72 N. E. 423; Kehl v. \\ Ohio C. C. (N. S.) 145. & Abram, 210 Ill. 218, 71 N. E. 347; Chicago 12. Instructions are thereby made more & City R. Co. v. Matthieson \[III.\] 72 N. E. 443; clear and unnecessary repetition avoided. & City of Aledo v. Honeyman, 298 Ill. 418, 70 Mountain Copper Co. v. Van Buren \[C. C. A.\] 13. F. & 1. & N. E. 338; Chicago Union Traction Co. v. 13. Chicago City R. Co. v. Bundy, 210 Ill. & etc., R. Co. v. Ostoft \[III.\] 72 N. E. 287; 39, 71 N. E. 28. & Illinois, etc., R. Co. v. Freeman, 210 Ill. 270, 14. St. Louis S. W. R. Co. v. Kennemore & 71 N. E. 441; Chicago City R. Co. v. Bundy, \[Tex. Civ. App.\] 81 S. W. 802; Werner & 210 Ill. 29, 71 N. E. 28; Chicago City R. Co. \\ Co. v. Calhoun \[Vv. Val.\] 46 S. R. 120. & V. Biederman, 102 Ill. App. 617; Chicago City 15. International, etc., R. Co. v. Shuford & R. Co. v. Lannon \[III.\] 72 N. E. 585; Chicago, \[Tex. Civ. App.\] 81 S. W. 1189. Partly & etc., R. Co. v. Strathmann \[III.\] 72 N. E. 800; \\ Inapplicable (City of Rome v. Sududin & Chicago City R. Co. v. Leach, 208 Ill. 198, 70 \[Ga.\] 49 S. R. 800), Objectionable in form & N. E. 222. \\ and substance (Stern v. Leopold Simens & Indiana: Blanchard-Hamilton Furniture \\ ons & Co. \[Conn.\] 58 A. 696, also contained & Co. v. Colvin, 32 Ind. App. 398, 69 N. E. 1032; \\ matter that was misleading, inaccurate & Engenpush v. Ellis \[Ind.\] 72 N. E. 627; \\ argumentative (Chicago, etc., R. Co. v. Burridge, 211 Ill. 9, 71 N. E. 838). Not sup- & Experiand, etc., R. Co. v. Potts & Co. (Ind. App.) 71 N. E. 685; Southern R. Co. v. State \[Tex. Civ. App.\] 80 S. W. 99. Court is not & Ind. App.) 72 N. E. 174; Baltimore, etc., R. \\ required to reduce it to accuracy and give & Co. v. Cavananagh \[Ind. App.) 71 N. E. 229; \\ the unobjectionable part. International, etc., & Indianapolis St. R. Co. v. Schenberg \[Ind. App.) 71 N. E. 237; Vincent v. Willis \[Ky.\] 1036; Smyrthe's Ekate v. Evans, 209 Ill. 376, & 82 S. W. 583. Instruction that burden Is on 70 N. E. 906; Chicago G. W. R. Co. v. Roddy & plaintiff to show that an instrument was \\ C. C. A.\] 131 F. 71. & A request which does & signed by defendant in the form in which it \\ not state the law correctly may be refused. & appeared is properly refused where the court \\ Frank v. Metropolitan St. R. Co., 91 App. & has already charged that if the instrument \\ Div. 485, 86 N. Y. S. 1018. & had been materially altered defendant was 16. Term "plaintiff" used Instead of "de- & not Ilab. Graham v. Middleby, 185 Mass. 16. & 49. 70 N. E. 416. & Missouri: Maguire v. St. Lonks Transit Co., 17. Anglin v. Thomas \[Ala.\] 37 So. 784; & 103 Mo. App. 459, 78 S. W. 838. As to \\ ble to the case,\[18\] as it would have the effect of giving undue prominence to the issues to which it relates,\[19\] and would tend to mislead and confuse the jury.\[20\] The court is not required to charge the converse of a proposition.\[21\] An instruction may be refused when a more favorable charge has been given,\[22\] especially where the requested instruction is faulty.\[23\]

## 4 Assumption of facts

The court may not assume the existence or non-existence of disputed facts,\[25\] no matter how slight the evidence,\[26\] but uncontrovers

\[N. C.\] 48 S. E. 801; Stewart v. North Caro-

\[N. C.\] 48 S. E. 793; Chafn n v. Carroll \[Tex. Civ. App.\] 81 S. W. 1029; Th. Fries Mfg. & Power Co., 135 N. C. 96, 47 S. E. 226; Strickler v. Glicenl \[Okl.\] 78 P. 94; Clv. App.\] 80 S. W. 685; Chicago, etc., R. Co. Anderson V. Oregon R. Co. \[J.\] 71 P. 119; W. Barrett \[Tex. Civ. App.\] 80 S. W. 660; Barnes v. Leidigh \[Or.\] 79 P. 51; Reynolds v. Narraganset Elec. Lighting Co. \[R. I.\] 59 A. 393; Memphis St. R. Co. v. Haynes \[Tenn.\]

\[N. C.\] 48 S. E. 801; Stewart v. North Caro-

\[N. C.\] 48 S. E. 803; Chicago, etc., R. Co. v. Ilina R. Co. \[N. C.\] 48 S. E. 793; Chafn v. Carroll \[Tex. Civ. App.\] 81 S. W. 1029; Th. Fries Mfg. & Power Co., 135 N. C. 96, 47 S. E. 94; Clv. App.\] 81 S. W. 902; Th. Fries Mfg. & Power Co., 135 N. C. 96, 47 S. E. 94; Clv. App.\] 81 S. W. 903; Chicago, etc., R. Co. \[Civ. App.\] 80 S. W. 685; Chicago, etc., R. Co. Anderson V. Oregon R. Co. \[J.\] 71 P. 119; W. Barrett \[Tex. Civ. App.\] 80 S. W. 660; Barnes v. Leidigh \[Or.\] 79 P. 51; Reynolds v. Narraganset Elec. Lighting

\[N. C.\] 48 S.

## 4 Cur. Law.

INSTRUCTIONS $\\lx@sectionsign$ 4.

verted facts," facts established by such evidence as would admit of but one find-

R. Co. v. Turner \[Tex. Civ. App.\] 78 S. W. 712. The existence of negligence or con-

tstator acted of his own free will. West

truber negligence. Montgomery St. R. Co. v. Shanks \[Ala.\] 37 So. 166. That failure to

That a motorman knew that there was a

sonnd statutory signals before reaching a

crossing is not negligence even where a

Son injured knew of the approach of the

train. International & G. N. R. Co. v. Mc-

Yey \[Tex. Civ. App.\] 81 S. W. 901. That

failure to discover a defect in the cylinder

of an air jack is negligence. Chicago, etc.,

R. Co. v. Harton \[Tex. Civ. App.\] 81 S. W. 1236. That ice on a sidewalk resulting from

certain causes was negligence. Cresler v.

Asheville, 134 N. C. 311, 46 S. E. 738. That

a switchman's failure to keep a lookout was

the proximate cause of his injury. Peoples

v. North Carolina R. Co. \[N. C\] 49 S. E. 87. Request assuming that one attempting to

cross a railroad track without stopping to

look and listen is negligent per se properly

refused. Louisville & N. R. Co. v. Satter

white \[Ten.\] 79 S. W. 106. That a certain

act constitutes negligence. Bauer v. Du-

buque \[Iowa\] 98 N. W. 855. Such acts not

amounting to negligence per se. Alabama

Midland R. Co. v. Guilford, 119 Ga. 623, 46

S. E. 655. The court may, however, charge

what would be negligence per se. Violation

of speed ordinance. Memphis St. R. Co. v.

Haynes \[Ten.\] 81 S. W. 374.

Miscellaneous facts: Existence of relation

of principal and agent. First Nat. Bank v.

Bover \[Neb.\] 98 N. W. 834. Assuming evidence

note that in case. Pim W. St. Louis Transit

Co. \[Mo. App.\] 84 S. W. 155. That a person

injured, purposely allowed his finger to come

in contact with the machinery. Going v.

Alshama Steel & Wire Co. \[Ala.\] 37 So. 784.

That there was an agreement to pay a

broker commissions. Green v. Southern States

Lumber Co. \[Ala.\] 37 So. 670. As to terms on which contract in suit was ambiguous

Locke v. Lyon Medicine Co. \[Ky.\] 84 S. W. 807. That it is the duty of an insured person to do a specified thing in case of danger

ger from fire. Insurance Co. v. Leader \[Ga.\]

48 S. E. 972. That warnings of approaching

train, given, were sufficient. Central Tex.

etc., R. Co. v. Gibson \[Tex. Civ. App.\] 79 S.

W. 851. That a brakeman had authority to

create the relation of passenger by taking

fare from a person and allowing him to ride

on a coal car. Missouri, etc., R. Co. v. Hurt

\[Tex.\] 81 S. W. 525. That a certain structure

is a scaffold. Conger v. Wiggins, 208 Pa. 122,

57 A. 341. That a certain machine is dangerous. Vollman Buggy Body Co. v. Byry

\[Ky.\] 80 S. W. 1092. Seeming to Imply a

material fact prejudicial to a party. Roach v. Johnson, 71 A.k, 344, 74 S. W. 299. That

a passenger aligned from a car, might have

been taken by the jury as an intimation that he was not thrown from the car. Bir-

mingham R. Light & Power Co. v. Lindsey

\[Ala.\] 37 So. 289. That an assignor of a

claim could settle it after he assigned it.

lvy Coal & Coke Co. v. Long, 131 A. 635,

36 So. 782. That rules and regulations of a

railproof company governing the operation of

trains had been published prior to the date

of an injury. Chicago & A. R. R. Co. v.

O'Leary, 102 Ill. App. 665. That the burden

of proof is upon the defendant in a will

test to show affirmatively the testamentary

ing," facts admitted or assumed by each of the parties,"9 or facts that are necessary inferences or deductions from other facts proved,"30 or from the ordinary conduct of men"31 or business,"32 may be assumed.

SS 5. \_Charging with respect to matters of fact or commenting on weight of evidence.33--\_The force and weight to be given to the testimony of respective witnesses is a question for the jury,"34 and as a general rule trial courts are not permitted to comment on the evidence or express an opinion as to its weight.35 This

pror to the train's reaching it," stated in connection with other facts held not to assume that it was a material issue; it being an admitted fact. Harris v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 80 S. W. \[1025. To find for plaintiff "if you believe he was exerclisting ordinary care for his own safety" does not assume that the plaintiff was not negligent. Missouri, etc., R. Co. Vones \[Tex. Civ. App.\] 80 S. W. \[852. Charge to find for defendant if plaintiff was guilty of contributors negligence in using a hand ear "at time, place and under conditions alleged by him In his petition" was not objectionable as assuming facts alleged where in other parts of the charge the jury were care-fully instructed as to contributory negligence. Texas & N. O. R. Co. V. Kelly \[Tex.\] 80 S. W. \[79.\]

rule may be violated by incorporating the testimony into the charge,"8 but not by

Waggoner Nat. Bank \[Tex. Civ. App.\] 81 S. \[ officers of the law" are entitled to better W. 1050. That there was no evidence tend- credit than plaintiff. Durst v. Ernst, 91 N. ing to prove what motive actuated a section \[ Y. S. 13. Instruction to answer an issue of foreman to attempt to remove a pns car contributory negligence "No" is bad in form.

from a track to prevent its being struck by harmless where there is an entire 'absence' or negligence. Wallever v. Carolina Cent. R. Co. v. McVey \[Tex. Civ. App.\] 81 S. W. 919. "The evidence must show" with a reasonable degree of certainty. St. Louis S. W. R. Co. v. Burke \[Tex. Civ. App.\] 81 S. W. 774. \[ The warranted capacity of a motor was 75 horse power." Capacity of motor was 12 dispute. Wofford v. Buchel petition and instruct to find for plaintiff if Power & Irrigation Co. \[Tex. Civ. App.\] 80 S. W. 1078. Directing the jury to consider a portion only of the facts in evidence. Wallever v. Garg \[Mo. App.\] 80 S. W. 72. \[ In personal standing and experience of ex- an action for unlawful death, an instruction that in determining damages, "Industry of the test test economy. Cosgrove v. Burton deceased, capacity, ability, and disposition to continue to earn money and contribute to v. Rebuildrel to the party who plaintiff's support." Gulf, etc., R. Co. v. Phillips \[Tex. Civ. App.\] 80 S. W. 107. "If you believe plaintiff got a cinder in his eye while riding on defendants' car, and that at the time he had his face near to and turned to the open window and that a person of or- dinary care possessed of information of the danger he was subjected to from flying clin- greed at which ear was being propelled was ders would not have remained in such position you will find for defendant." Missouri, etc., R. Co. v. Flood \[Tex. Civ. App.\] 78 S. W. 1054. \[ The want to tell the jury that an- other court has passed on the facts in this case and rendered judgment for plaintiff."

In an action for injuries an underwriters' Fire Ass' W. Henry \[Tex. Civ. App.\] 79 App.\] 79 S. W. 1072. Authorizing recovery if a master with knowledge that a servant was inexperienced sent him to work around dangerous machinery, without warning. Being Mfg. Co. v. Pemelat \[Tex. Civ. App.\] 79 S. W. 106. \[ The fact of plaintiff if they find \[101 N. W. 679. That a brakeman can as- the facts alleged, unless, as a matter of law, the facts alleged establish his case. Id.

That the testimony of two witnesses as to the general reputation for truth and veracity is insufficient to impeach. Schuch v. McC-Gulire \[Colo. App.\] 77 P. 109. \[ Stating the amount of damages sustained by loss of employment according to his calculation. Hellev v. Donellan, 90 N. Y. S. 352. That a father and son in dealings with each other are upon the same footing as strangers. Merrili v. Merrili, 105 III. App. 5. That a purchaser of potatoes would not in the exercise of ordinary care be required to examine the entire mass in a car or look at them in other than an ordinary way in order to determine whether they corresponded to the grade ordered. Northern Supply Co. v. Wander \[Ws.\] 100 N. W. 1066. In an action for damages because of delay of a train where there was evidence that it remained at the station some hours and that the conductor refused to give any information as to when it would start or the cause of delay, an instruction that defendant was not liable for punitive damages was properly refused as a charge on the evidence. Miller v. Southern R. Co. \[S. C.\] 48 S. E. 99. That certain facts are shown by undisputed evidence. Gaus- dirm to which they were delivered was not prejudical where it was added that whether the secretary was authorized to buy the goods was a question for the jury. That the bought the goods was admitted. Turner v. Lyles \[S. C.\] 48 S. E. 301. Prefacing a requested instruction not previously given by "d did not cover that, gentinem, in so many words." Wrightsville & T. R. Co. v. Kelley, 119 Ga. 853, 47 S. E. 366. That a servant's work done in the presence of a foreman is equivalent to an assurance by the master that he may proceed to do the work and is not bound to search for danger. Carson v. Southern R. Co. \[S. C.\] 48 S. E. 585. Assuming uncontroverted facts. El Paso, etc., R.

reciting admitted facts\[37\] or facts as to which there is no reasonable ground for difference of opinion:\[88\] and when the introduction of evidence to prove the existence of evidentiary facts is necessary, the court may instruct as to the effect of the establishment of such fact.\[39\] In the federal courts it is not reversible error for the judge to express his own opinion of the facts if the jury are given to understand that they are not bound by such opinion.\[40\]

\_Conflicting evidence.--\_The respective value of positive and negative testi-mony should be called to the attention of the jury.\[41\] In Texas it is error to instruct the jury to reconcile as far as possible any conflict in the evidence.\[42\]

SS 6. \_Form of instruction.\[43\]--\_Instructions assuming to cover the entire case should not omit material elements.\[44\] They should be so framed as to indicate the burden of proof without expressly referring to presumptions of law.\[45\] They should be fair and not tend to excite prejudice,\[46\] and when dealing with conflicting evidence they should use the words "from the evidence" after "if your believe,\[37\] and should not conclude "plaintiff is not entitled to recover" under a system in which the jury responds to specific issues.\[48\] An act made the subject of several counts may be submitted as a single proposition.\[49\]

Co. v. McComas \[Tex. Civ. App.\] 81 S. W. 760. Where the facts are undisputed and 75 P. 288.

there could, in reason, be but one in-reference drawn from them, the court may v. Mundish Assur. Co., 123 F. 820. Where the charge that they constitute negligence. Hot decided weight of evidence on an issue is in Springs St. R. Co. v. Hildreth \[Ark.\] 82 S. favor of one party. Butler v. Barret, 130 F. W. 245. Advising the jury as to the ele-

ments they are to consider in determining

minute that they did any such thing, but the preponderance of evidence and after

that is a question of fact for you to deter-

numerating those elements directing that

mine and not me." Sebeck v. Plattoitcache

from all the evidence they are to determine

Volksfest Yerein \[C. C. A.\] 124 F. 11. The on which side is the preponderance. Miller

Judge may in supplementing his charge ex-

v. John, 208 III. 173, 70 N. E. 27. That jury

press his opinion to the jury on the evi-

in assessing damages should take into account

dence, if necessary to avert a probable mis-

count physical and mental pain and consider

trial of a case after several prior new trials:

the permanent or temporary character of the

injury. Wells v. Missouri-Edison Elec. Co. 408.

\[Mo. App.\] 84 S. W. 204. A charge on a hypothetical state of facts does not violate

subended. Those within hearing testified that

the rule. Sentell v. Southern R. Co. \[S. C.\]

they did not hear it. St. Louis, etc., R. Co.

49 S. E. 215. That plaintiff "must recover

v. Brock \[Kan.\] 77 P. 86.

this case by the preponderance of the evi-

49. Williamson v. Smith & Co. \[Tex. Civ. App.\] 78 S. W. 61.

not direct a verdict. Gray v. Moore \[Tex. Civ. App.\] 84 S. W. 293. Stating the reasons

why the plaintiff wlthrew an issue. Lowns-

dale v. Gray's Harbor Boom Co. \[Wash.\] 78 P. 904.

consideration of the jury certain defenses

36. Const. 1895, art. 5, 8 26, providing that

the judge shall not charge with respect to

Gerlach Bank \[Mo. App.\] 81 S. W. 603.

matters of fact. Ballentine v. Hammond \[S. C.\] 46 S. E. 1000. Reciting the evidence.

Missouri, etc., R. Co. v. Stinson \[Tex. Civ. App.\] 78 S. W. 986.

87. Where applicant has admitted such

facts he cannot complain. Bedenbaugh v. Southern R. Co. \[S. C.\] 48 S. E. 53; Turner v. Lyles \[S. C.\] 48 S. E. 301. Constitutional In-

hibition against commenting on the facts

refers only to disputed facts. Lownsdale v. Gray's Harbor Boom Co. \[Wash.\] 78 P. 904.

SS. That a shock to the nervous system

might be the result of a blow. Davis v. Collins \[S. C.\] 48 S. E. 469. Under a const-

tutional provision that judges are not allowed to state the testinrov to the jury, the

statement must be of a fact in Issue and

there must be reasonable ground for supposing that the jury may have been in-

fluenced in a manner prejudicial to the rights

of a party. Turner v. Lyles \[S. C.\] 48 S. E. 301.

\[S. C.\] 48 S. E. 301.

\[S. C.\] 48 S. E. 302.

\[S. C.\] 48 S. E.

4 Cur. Law. **INSTRUCTIONS SS 6.**

_Verbal inaccuracies and inelegancies_\[80\] in the charge do not constitute ground for reversal unless the jury was misled.\[81\]

_Instruction should be certain._\[82\]--Instructions should be clear, concise, and plain so as to be readily understood,\[83\] especially where the evidence is conflicting,\[54\]

49. Allegations of negligence in different counts. International, etc., R. Co. v. Villalreal \[Tex. Civ. App.\] 82 S. W. 1063. Instruction that the question of negligence designing it, is one of fact, is proper. Economy Light & Power Co. v. Hillier, 211 Ill. 568, 71 N. E. 1096.

01. See 2 Curr. L. 465.

01. Strebin v. Lavenged \[Ind.\] 71 N. E. 494.

Held harmless: Use of "its" in designating the preponderance of evidence by which a case must be proved. Indianapolis It. R. Co. v. Schohemberg \[Ind. App.\] 71 N. E. 237.

"Properiy" instead of "improperly." Bussell v. Ft. Dodge \[fowal\] 101 N. W. 1126. Use of disjunctive "or" instead of charging on the conjunctive. Robert Porner Brew. Co. v. Cooper, 120 Ga. 20, 47 S. E. 631. Qualifying the rule that a party must prove his case by a preponderance of evidence by adding that "the degree of preponderance is Imma-terla" City of Aleo v. Honeyman, 208 Ill. 415, 70 N. E. 388. Charge as to negligence though not happily worded held not ground for a new trial. Atlanta R. & Power Co. v. Johnson \[Ga.\] 48 S. E. 389. "Testimony" instead of "evidence." Russell v. Brunswick Grocery Co., 120 Ga. 38, 47 S. E. 528. "Adverse" and "nostile" used together. Weiler v. Wagner \[Mo.\] 79 S. W. 941. Term "contractive notice" held not misleading. Denhind had been given. Texas Southern R. Co. v. Long \[Tex. Civ. App.\] 80 S. W. 114.

Use of the word "disease" instead of "m malaria" in an action for death caused by maintaining a cespool. Godwin v. Atlantic Coast Line R. Co. \[Ga.\] 48 S. E. 139. "Immediate and proximate" causes was not error: it being apparent that "immediate" did not mean "speed" but was used in contradistinction to "remote." Id. "Plaintiff" for "defendant." Bowelv v. American Pipe Mfg. Co. \[S. C.\] 48 S. E. 276. "Plaintiff" instead of "plaintiff" in metastate." Blackshear v. Delle \[Ga.\] 48 S. E. 311.

Inaccurate: "Reasonably safe condition" should be used instead of "good condition." Missouri, etc., R. Co. v. Smith \[Tex. Civ. App.\] 81 S. W. 787. \[Slightest neglect or negligence" should be avoided. Magne v. St. Louis & S. R. Co. \[Mo.\] 81 S. -W. 1158.

"If it appears from the evidence" without the qualification "by a preponderance." Richardson v. Dybedahl \[S. D.\] 83 N. W. 164. To believe the theory of one side or the other "right through" where the jury might have believed plaintiff as to the cause of the accident and disbelieved him as to the extent of his injuries. Butler v. Detroit. etc., R. Co. \[Mich.\] 101 N. W. 232. "Competent" instead of "eredble" in charging that if a witness was disbelieved as to any material fact his entire testinmony might be disregarded except in so far as corroborated by other "copmetent" evidence. Weston v. Teufel \[Ill.\] 72 N. E. 908.

\*\*Held non inaccurate: "Prudent man" is synonymous with "person of ordinary prudence." San Antonio & A. P. R. Co. V. Kiersey \[Tex. Civ. App.\] 81 S. W. 1045. "Proper or slight or doubtful,"58 or where the case is a very close one upon the facts."58

consider a fact on a wrong theory. Griffin \[App.\] SS2 S. W. 1073. An instruction should v. Atlantic Coast Line R. Co. \[N. C.\] 49 S. E. \[limit the consideration, interest, and relationship of the witnesses to the weighing of might from a moving train. The train was 100 N. W. 516: Westfeldt v. Adams, 135 N. C. \[591, 47 S. E. 816. A rule of court that proxy of cattle in satisfaction of a mortgage held misleading. Drumm-Flato Commission Co. v. Gerlach Bank \[Mo. App.\] 81 S. W. 503. Instructions on "prescription" and "dedication" given together so as to be confusing. Evans v. Scott \[Tex. Civ. App.\] 83 S. W. 874. Instruction as to measure of damages for obstruction of a stream held not misleading. Neely v. Detroit Sugar Co. \[Mleh.\] 101 N. W. 664. A charge in an action for pollution of a stream that damages to the fish could not be assessed was properly refused. Might lead the jury to assume that the right to fish was not a substantial right. West Muncie Strawbour Co. v. Slack \[Ind.\] 72 N. E. 879. Frequent repetition of a phrase calling attention to a particular circumstance held to render the charge ambiguous. Gulf, etc., R. Co. v. Condra \[Tex. Civ. App.\] 82 S. W. 528. Instruction as to fraud in a sale of merchandise led too indefinite and uncertain. Roach v. Johnson, 71 Ark. 344, 74 S. W. 298. From which the jury might have inferred an erroneous idea of the law. Espenlaub v. Ellis \[Ind. App.\] 72 N. E. 527. Leaving the jury to consider whatever circumstances they desired to in assessing natural misleading because not designating the parameter. McKinstry v. St. Louis Transit Co. \[Mo. App.\] 82 S. W. 1108. "Such damages as City R. Co. v. Chapman \[Tex. Civ. App.\] 80 they feel" he is entitled to." Fries v. American Lead Pencell Co., 141 Cal. 610, 75 P. \[164. Which allows a recovery of an amount is greater than claimed. Miller v. Armstrong, 123 Iowa, 86, 98 N. W. 561. In personal injury case, erroneous as allowing double damages. Galveston, etc., R. Co. v. Perry \[Tex. Civ. App.\] 80 S. W. 343. Warranting an inference that double damages might be allowed. Red Driver, etc., R. Co. v. Hughes \[Tex. Civ. App.\] 81 S. W. 1235. "You will find for plaintiff in such sum as will be fair compensation for injuries to hearing, etc., and if you find such injuries to be permanent you should find for plaintiff or defend. should find for him in such sum as would be just compensation," etc. International & G. \[Tex. Civ. App.\] 81 S. W. 347. "If defendant killed one or both of plaintiff's ponles you will return a verdict for the value of each of the ponles." Gulf, etc., R. Co. v. Anson \[Tex. Civ. App.\] 82 S. W. 785. Where testimony was conflicting as to the manner in which a collision occurred, an instruction in an action by one injured that the jury might find for him "either on the view you take of his own testimony or on the view you take of the defendant's testi-mony" is erroneous. No negligence could be inferred from defendant's testimony. Gasicewsky v. North Jersey St. R. Co. \[N. J. Law\] 88 A. 1000.

Exent te which evidence may be considered. The jury should be instructed that evidence admitted to impeach a witness can only be considered in that connection. South Covington & C. St. R. Co. v. Riegler's Adm? \[Ky.\] 82 S. W. 382. Where evidence is admitted for a special purpose the jury should be instructed to consider it for such purpose only. Bell v. Missouri, etc., R. Co. \[Tex. Civ. App.\] 82 S. W. 1073. \[Tex.\] 82 S. W. 383. Where evidence is admitted for a special purpose the jury should be instructed to be that of the jury. Bell v. Missouri, etc., R. Co. \[Tex. Civ. App.\] 82 S. W. 1073. \[Tex.\] 82 S. W. 384. \[Tex.\] 82 S. W. 385. \[Tex.\] 82 S. W. 386. \[Tex.\] 82 S. W. 387. \[Tex.\] 82 S. W. 388. Where evidence is admitted for a special purpose the jury should be instructed to be that of the jury. Bell v. Missouri, etc., R. Co. \[Tex. Civ. App.\] 82 S. W. 388. \[Tex.\] 82 S. W. 389. \[Tex.\] 82 S. W. 389. \[Tex.\] 82 S. W. 389. \[Tex.\] 82 S. W. 389. \[Tex.\] 839. \[Tex.\] 840. \[Tex.\] 851. \[Tex.\] 861. \[Tex.\] 872 4 Cur. Law.\*\*

They should specifically call attention to circumstances to which they are referred."7 A confusing instruction is not ground for new trial if not prejudicial,"8 and an ambiguous" or misleading instruction is cured by one correctly stating the law."9 Where special questions are submitted, the instructions should be confined to an explanation of them and not extend to the law applicable to the ultimate facts."1 In Kentucky the court may, at the request of a juro, explain the instructions after the submission of the case."2

_Argumentative_ instructions are properly refused."8

_The instructions should be consistent."9--Where one instruction is inconsistent with others given, the erroneous one is not cured by the correct one;"8 but in order to require a reversal, the inconsistent paragraphs must leave the jury in doubt as to the law."9_

**SS 7.**\_Relation of instruction to pleading and evidence."7--The instructions must be confined to the issues made by the pleadings."8 Requests not based on

Southern Kansas R. Co. v. Sage \[Tex. Civ.\]

road company to furnish absolutely safe

Appl. 80 S. W. 1088. Where the only part of

crops in question was the landiord's share,

an Instruction that a sale without reservula

him reasonably safe appliances and use or

tion carried growing crops was not misleadable."9,

in, nor prejudicial to the tenant. Abbott v.

Abbott \[Kan.\] 75 P. 1040. Instruction not to

consider evidence stricken need not identify

such evidence. Considlire v. Dubique \[Iowa\]

102 N. V. 102.

54. Illinois Cent. R. R. Co. v. Smlesni, 104

01. App. 184; Gillespie Home Tp. Mut. Fire

Ins. Co. v. Prather, 105 Ill. App. 128.

55. Chicago City R. Co. v. Osborne, 105 Ill. App. 462.

01. Chicago, etc., R. Co. v. Appell, 103 Ill. App. 185.

01. "Conduct improper under the instructions herein" was error. No language to

which the words could apply. There were, however, many facts relied on not mentioned

in the instructions and it might be inferred

that these were excluded from consideration. Weston v. Tewel \[Ill.\] 72 N. E. 908.

58. Freeze v. White, 120 Eq. 446, 47 S. E.

01. Chicago Union Traaction Co. v. Han-

thorn, 111 Ill. 367, 71 N. E. 1022, citing other

Illinois cases.

60. City of Aledo' v. Honeyman, 208 Ill.

415, 70 N. E. 338. A misleading charge is

ground for reversal. Southern Pine Co. v. Powell \[Fin.\] 72 N. E. 570.

61. Lyon v. Grand Rapids \[Vis.\] 98 N. W.

01.

01. Civ. Code Prac. & 321. City of Covington v. Bostwick \[Ky.\] 82 S. W. 669.

01. That the jury could look to a fact, if

it be a fact. Lyn v. Bean \[Ala.\] 37 So. 515. See 2 Curr. L, 466.

64. See 2 Curr. L, 466.

01. Impossible to tell upon which the verdict was based. Harte v. Fraser, 104 Ill. App. 201. Plengl, Dodge & Co. v. Miller \[Tex. Civ. App.\] 83 S. W. 218; Flannery v. Campbell \[Mon.\] 75 P. 1108. Inaccurate special

charges in conflict with the general charge

leave the jury without any proper guide. St. Louis S. W. R. Co. v. Terhune \[Tex. Civ. App.\] 81 S. W. 74.

Held Inconsistent: "That uncontradicted

evidence shows a certain fact" and "that

whether such fact exists is a question for

the jury." Eddy v. Bostwick \[Tex. Civ. App.\]

78 S. W. 565. "It is not the duty of a rail-

4 Curr. Law--10.

They should specifically call attention to circumstances to which they are referred."9 A confusing instruction is not ground for new trial if not prejudicial,"8 and an ambiguous"9 or misleading instruction is cured by one correctly stating the law."9 Where special questions are submitted, the instructions should be confined to an explanation of them and not extend to the law applicable to the ultimate facts."10 In Kentucky the court may, at the request of a juro, explain the instructions after the submission of the case."92

such issues are properly refused." The submission of such an issue may be rendered harmless where no evidence was introduced to support it." An issue made by evidence not admissible under the pleadings, but admitted without objection, need not be mentioned in the instructions;" such instructions, however, are not erroneous." Instructions having no relevancy to the matters in controversy should not be given." Instructions should be applicable to and limited to the evidence

SS 84, where It is stated that there is a diversity of opinion as to whether instructions must be strictly within the issues made by made by the pleadings.

Theattle were roughly handled in translit. Houston, etc., R. Co. v. Dolan \[Tex. Civ. App.\] 84 S. W. 297. Charge as to burden to prove "each and every item" error when some are admitted. Oliver V. Love \[Mo. App.\] 78 S. W. 385. Instruction as to an issue not ten-, or "W. Prabler" 101. App. 123. Georgia, etc., dered is ground for new trial. Hydlinger v. Chicago, etc., R. Co. \[Iowa\] 101 N. W. 746.

Theore to permit verdict for verdict for verdict for verdict. Deform v. Arkansas & O. R. defense not pleaded. Dur v. Willamete Co. \[Ind. T.\] 82 S. W. 895. Richey v. Southern Iron & Steel Works \[Or.\] 78 P. 668; Un-, R. Co. v. Jones \[Tex. Civ. App.\] 80 S. W. 65. Issue of discovered peril not raised by the fact that a conductor knew when a into but differed as to its terms, the right passioner entered the ear that she was to recover on a quasi contract should not sick and needed assistance. Action for injuries caused by sudden starting of a car.

Theore v. Ellis \[N. J. Err. & App.\] 67 A. \[Mo.\] 81 S. W. 848. Error to instruct that a verdict may be based on a cause not alleged, however meritorious or satisfactorily proved. Louisville & N. R. Co. v. Gugton \[Fla.\] 85 So. 84. On an issue as to whether a contract had been compiled with, instruction presuming a requirement S. W. 430.

Theore of the contract not shown by pleading or evidence. Stafford v. Christian \[Tex. Civ. App.\] 79 S. W. 695. Where no affirmative approach is set up, error to charge that deforms the headant must establish his defense by a 120 Ga. 446, 47 S. E. 928.

Theore of evidence. Strickland v. Capital City Mills \[S. C\] 49 S. B. 478. Al-, Appl.\] 82 S. W. 785; Helms v. Helms, 135 lowing a recovery on a cause of action not pleaded is erroneous. Heller v. Donellan, 20 N. Y. 852. There being nothing in the pleadings to support a recovery of certain interest, it was error to construct to consider it. Sullivan & Co. v. Owens \[Tex. Civ. App.\] 78 S. W. 373. Where a complaint did not charge any negligence in failing to furnish rules and regulations for safety of employees, it was error to charge that it was the master's duty to furnish such rules.

Theore of evidence. Stafford v. Christian \[Tex. Civ. App.\] 82 S. W. 533. In-, R. Co. v. Wiedale \[Tex. Civ. App.\] 81 S. W. 362. There is nothing in the pleadings to support a recovery of certain interest, it was error to construct to consider it. Sullivan & Co. v. Owens \[Tex. Civ. App.\] 78 S. W. 373. Where a complaint did not charge any negligence in failing to furnish rules and regulations for safety of employees, it was error to charge that it was the master's duty to furnish such rules.

Theore of evidence. Stafford v. Christian \[Tex. Civ. App.\] 83 S. W. 385. In-, R. Co. v. Wiedale \[Tex. Civ. App.\] 83 S. W. 385. Instructions should be applicable to and limited to the evidence produced by the "true" ("true tain correct statements of law.77 An instruction having no support in the evidence is not ground for reversal where not prejudicial.78 It is the province of the court to determine whether there is evidence to render a particular instruction relevant,79 and in determining this it is not to be considered as upon demurrer to the evidence. The question is, is there evidence to which it is referable.80

SS 8. \_Stating issues to jury.81--It is the duty of the court to instruct the jury as to the issues to be tried.82 This duty is not fulfilled by referring them to the pleadings,83 especially where the pleadings are voluminous or involved;84 but if the pleadings are short and unambiguous it is not error.85 The use of the words "as charged in the declaration" is approved in Illinois.84 It is not required that issues should be submitted in any particular form.87 An instruction which misstates the issues as made by the pleadings88 or allows the jury to find the existence of elements of a cause of action not stated therein is erroneous.89 Error in stating the issues made by the pleadings must be excepted to if it is desired to make it ground of appeal.80

SS 9. \_Ignoring material evidence, theories, and defenses.91--Instructions so framed as to withdraw from the jury the consideration of material evidence are erroneous.92 Requests for such instructions may be refused.83 So, also, it is

77. Parker v. National Mut. Bldg. & Loan \[Bering Mfr. Co. v. Femelat \[Tex. Civ. App.\] Ass'n \[Tw. Va.\] 46 S. E. 811; Bering Mfr. Co. v. Femelat \[Tex. Civ. App.\] 79 S. W. 869. 78. So guarded by the language of the court that the jury could not be misled. 85. City of South Omaha v. Ruthjen Camp v. Chicago G. W. R. Co. \[Iowa\] 99 \[Neb.\] 99 N. W. 240. 86. See Illinois Cyc. Dig. Illinois Terminal R Co. v. Thompson, 210 Ill. 226, 71 N. E. E. 92. An instruction cannot be given and its consideration by the jury made to depend upon whether they find that there is or is not such evidence. Id. 80. Southern R. Co. v. Oliver, 102 Va. 710, 47 S. E. 862. 811. See 2 Curr. L. 469. 82. No definite Issue submitted. Allen v. St. Louis Transit Co. \[To.\] 81 S. W. 1142. In order that the jury may not be misled, abstract principles of law instructed should be connected with the evidence. Parker v. National Mut. Bldg. & Loan Ass'n \[Tw. Va.\] 46 S. E. 811. 83. Chicago City R. Co. v. Mauger, 105 Ill. App. 579; Magrane v. St. Louis & S. R. Co. \[Mo.\] 81 S. W. 1158. Referring the jury to the pleadings to determine for themselves what the issues are reversible error. Bering Mfr. Co. v. Femelat \[Tex. Civ. App.\] 79 S. W. 869. Held harmless in this case; the issues having been fully stated in other instructions. Lackland v. Chicago & A. R. Co., 101 Mo. App. 420, 74 S. W. 505. 88. Held not refer jury to the pleadings: Referring to the petition for the purpose of identifying a thing about which an issue was raised is not a reference to the petition to find what the issues are. Dwyer v. St. Louis Transit Co. \[Mo. App.\] 83 S. W. 808. Instruction if the driver "forev the drafts described in the petition" does not refer the jury to the pleadings for a description of the drafts where such drafts were in evidence. Farmers' Bank v. Fudge \[Mo. App.\] 82 S. W. 112. 84. 112. 13. 14. 15. 16. 17. 18. 19. 20. 19. 21. 22. 23. 24. 25. 26. 27. 28. 29. 21. 23. 25. 28. 29. 20. 21. 24. 26. 28. 29. 22. 23. 26. 27. 28. 29. 23. 24. 28. 29. 24. 25. 26. 27. 28. 29. 28. 29. 29. 20. 21. 23. 27. 29. 21. 24. 28. 29. 23. 25. 26. 28. 29. 24. 27. 28. 29. 25. 26. 29. 27. 28. 29. 28. 29. 29. 29. 21. 29. 22. 23. 28. 29. 24. 29. 25. 26. 27. 28. 29. 28. 29. 29.

- 4 Cur. Law. **INSTRUCTIONS SS 9.**

error to ignore or exclude from the consideration of the jury any of the issues,"\* defenses,"\* or theories,"\* and a refusal of instructions defective in this respect is proper."\* Where a party relies on two theories and but one is submitted he cannot complain unless he requests the submission of the other."\*

disputed. Yooke v. Chicago, 208 Ill. 192, S. W. 1197, Where one preferred to ride on 70 N. E. 325. A party is entitled to have the whole case submitted, either for a general verdict or for such special findings as will be determinative of the case. Coolidge v. Ayers \[Vt.\] 57 A. 970. Any instruction by which a court assumes as a matter of law 81 S. W. 526. to direct a verdict must embrace all the evidence which under the pleadings and evidence is essential to a verdict. Chicago City R. Co. v. Mauger, 195 Ill. App. 579, Disrecting a finding on facts provable under the first paragraph of a complaint without reference to an issue made by the second paragraph. Ludwick v. Petrie, SS 2nd. App. 550, 70 N. E. 280.

- **03.** Request that if a servant knew of 925. Instruction to find for plaintiff Iran-danger and of the employer's failure to provide a safe place to work he could not recover. Proof of specific order to do the work ignored. Cobb Chocolate Co. v. Knudson, 207 Ill. 452, 69 N. E. 817: Central of \[Vt.\] 72 N. E. 614. Georgia R. Co. v. Larkins \[Ala.\] 37 So. 660; Sh. Louis S. W. R. Co. v. Cannon \[Tex. Civ. App.\] 81 S. W. 778. As to the effect of part only of the facts established. Lakeside Mfg. Co. v. Worcester \[Mass.\] 72 N. E. 81; Black-more v. Ellis \[N. J. Err. & App.\] 57 A. 1047. As to a case as shown by an auditor's report, where there was other evidence introduced: being a ruling as to a part of evidence considered separately from the rest. American Tube Works v. Tucker, 185 Mass. 236, 70 N. E. 58. Request confined to certain enumerated facts the effect of which is to withdraw from the jury all other facts. Hodges v. Pike \[Md.\] 59 A. 178. Based on a theory of the case not supported by the evidence and Ignoring evidence qualifying supposed facts. Mayer v. Gersbacher, 207 Ill. 296, 69 N. E. 789. A request to charge the legal effect of a portion of the -test- - 10. _Giving undue prominence to evidence, issues, and theories._"--If a court undertakes to rehearse the evidence it should cover all the essential facts on both sides;" particular facts" or portions of the testimony should not be singled out and given undue prominence,\[3\] even when such facts cannot be considered except in connection with the issue to which they are limited,\[4\] and such a practice is not authorized by the principle which authorizes the court to advise the jury as to the relative value of certain species of evidence.\[5\] Singling out particular witnesses,\[6\] or the witnesses of one party, is improper." Undue prominence may be given by reiterating certain features of the case,\[8\] and while the practice is con

#### 14.4.1 The possibility of a witness

The witness is a witness of the jury.\[24\] It is a witness of the jury.

to facts tending to affect their credibility" or the weight of their testimony," and in connection with such a charge to add that "you are not required to believe as jurors what you would not believe as men."27 This is not violating the rule that the testimony of one witness should not be singled out by special comment." But an instruction that tends to belittle testimony," or that the jury "should" consider certain facts as affecting credibility, is an invasion of the province of the jury."60

"_Falsus in uno falsus in omnibus"_ is applicable only where a witness wears to a falsehood willfully and knowingly."11 It may be given in a case where the only

698; Acolia v. Elizabeth, etc., R. Co. \[N. J. \]

ceeding part of the instruction was caution-Law\] 67 A. 257; Ball-Barnhart-Putman Co. \[Appl.\] 81 S. W. 1176. The court may instruct the court to tell the jury that a witness knows what he is talking about. Partridge

many be entitled to more weight than the v. Cutter, 104 Ill. App. 89.

125. Under a statute declaring that the presumption that a witness speaks the truth may be repelled by the manner in which he testifies, an instruction to judge his credibli-1ty by his "appearance" is erroneous. Fries

001. American Lead Pencil Co., 141 CaI, 610,

75 P. 164. An instruction that the testimony of a witness who had intentionally sworn to statements inconsistent with his own testimony might be disregarded was erroneous.

It should also have been stated that the statements must have been knowingly false and on a material matter. Doyle v. Burns, 123 Iowa, 488, 95 N. W. 195.

26. Instruction held not erroneous as telling the jury how to weigh evidence. Indianapolis St. R. Co. v. Johnson \[Ind. App.\] 72 N. E. 571. The court may tell the jury they "should" consider the interest of the witnesses, their manner and conduct while testifying. Strebin v. Lavengood \[Ind.\] 71 N. E. 494. Especially where they are cautioned against drawing an unfair inference because of such interest. Lovely v. Grand Rapids & I. R. Co. \[Mich.\] 100 N. W. 894.

Error to refuse such an instruction. Kaya-anugh v. Wausaus \[VWs.\] 88 N. W. 569. Where a party has made no admissions, it is proper to refuse an instruction that what he has testified to against his interest is to be taken as true and what he has testified to In his favor is to be given only such weight as the jury believe from all the evidence it is entitled to. Conner v. Missouri

Pac. R. Co. \[Mo.\] 81 S. W. 145. Where a general instruction on the credibility of witnesses, authorizing the jury to consider, their interest in the result of the litigation has been given, an instruction specifically referring to plaintiff stating that admissions against interest are to be taken as true and testimony In his favor given only such weight as the jury believe from all the evidence in the case it is entitled to may be refused. Montgomery v. Missouri Pac. R. Co. \[Mo.\] 79 S. W. 830. 'Where it has been instructed that it is the duty of the jury to consider the interest of all witnesses in determining their credibility, it is not error to make such reference to the plaintiff specific- ally. Strasraser v. Goldberg \[VWs.\] 88 N. W. 564. Instruction that expert testimony should be received with "great caution" modified by substituting the words "with other evidence," held proper where the suc testsimony to which it could apply was either true or knowingly false,\[32\] and where applicable it is error to refuse it.\[38\]

SS 13. \_Admonitory and cautionary instructions.\[34\]--The giving of cautionary instructions is largely within the discretion of the court,\[35\] and such instructions must be so framed as not to be misleading.\[36\] A charge that a verdict must not be based on inference or guess is too broad.\[37\] It is not error to refuse to caution the jury to ignore matters not included in the pleadings nor involved in the proof.\[38\] It is proper to instruct not to be influenced by passion or prejudice and that a verdict rendered against the law and evidence would be set aside.\[39\] In an action against a corporation, an instruction that the case should be considered the same as a case between two private citizens is correct.\[40\]

SS 14. \_Necessity of instructing in writing.\[41\]--In Oklahoma when special instructions are desired, they must be reduced to writing, numbered and signed, and delivered to the court at the conclusion of the evidence.\[42\] In Illinois instructions cannot be modified otherwise than in writing.\[43\] It is within the discretion of the court to waive the requirement that requests for instructions must be in writing,\[44\] and though a statute so requires, a cause will not be reversed because of a failure to do so, unless prejudice resulted.\[45\]

SS 15. _Presentation of instructions.\[46\]--Noting at the head of each instruction the volume and page of the statute or report supposed to authorize the instruction held harmless where the jury did not have the books in the jury room.\[47\]_

SS 16. \_Additional instructions after retirement.\[48\]--The court has a large discretion in the matter of giving additional instructions after the jury has retired,\[49\] and only in case of abuse, resulting in injury, will an exercise of such discretion be reviewed.\[50\] It may supplement the original charge whenever no substantial right will be infringed.\[51\] As a general rule such communications to the jury should be made in open court,\[52\] but it is held that they may be given in the absence

32. _Glenn v. Augusta R. & Elec. Co. \[Ga.\]_

01. _S. E. 684._

01. _Where witnesses were contradicted by their owntestimony. Strasser v. Goldberg \[Vis.\] 98 N. W. 554._

01. _See 2 Curr. L473._

01. _Instruction against arriving at a quotient verdict. Carson v. Southern R. Co. \[S.\]_

C.J 46 S. E. 525.\_

36. _An instruction which attempts to state that petitioner should not be dispriminated against because it was a railroad company. Illinois, etc., R. Co. v. Freeman, 210 Ill. 270, 11 N. E. 447. Proper radiometry instructions may be refused if coupled with misleading and inaccurate statements of the law. Indiana, etc., R. Co. v. Ostoft \[Ill.\]_

01. _N. E. 387._

01. _Excludes the right to draw inferences from facts. Spink v. New York, etc., R. Co. \[R. I\]_

01. _Diminished earning capacity as an element of damages. Cronk v. Wabash R. Co., 123 Iowa, 349, 8 N. W. 884._

01. _Action against a coal mining company at a time of labor troubles. Bachert v. Lehigh Coal & Navigation Co., 208 Pa. 862, 57 A. 765._

01. _Chicago, etc., R. Co. v. Burridge, 211 Ill. 9, 17 N. E. 888._

01. _See 2 Curr. L473._

01. _Chicago Live Stock Commission Co. v. Flx \[Okl.\]_

01. $T$

01. _Chicago Live Stock Commission Co. v. Flx \[Okl.\]_

01. $T$

01. _Chicago, etc., Co. v. Zapp, 209 Ill. 339._

01. _Chicago, etc., Co. v. Zapp, 209 Ill. 339._

01. _N. E. 623._

01. _Such rules being for the benefit of the court. Willis v. Western Union Tel. Co. \[S. C.\]_

01. _Schwartzlose v. Mehlitz \[Tex. Civ. App.\]_

01. _Dept.\]_

01. _Schwartzlose v. Mehlitz \[Tex. Civ. App.\]_

01. _Dept.\]_

01. \_Dept.

of counsel;"s" it not being the duty of the court to send for counsel.\[54\] The court may enter the jury room and withdraw an improper instruction.\[55\]

SS 17. \_Review.\[56\]--Objections and exceptions below.\[57\]--It is presumed on appeal that the jury understood the instructions.\[58\] No exception lies to the charge as a whole.\[59\] Where no specific assignment of error is made, the charge will be considered no further than to determine whether it states an abstractly correct principle of law;" but error in failing to submit a material issue may be complained of under a general assignment alleging error in the charge given.\[61\] Objections to instructions will not be considered on appeal unless special exception thereto was taken below,\[92\] at the time they were given,\[63\] in the manner prescribed by rules of court.\[64\] In Federal courts, exceptions must be taken while the jury are at the bar.\[65\] Exceptions must point out the defects complained of.\[66\] Errors will not be reviewed on any other ground than that assigned.\[67\] Where an erroneous instruction is excepted to, a party may avail himself of the error though he requested no special instruction.\[68\]

_The record of appeal_ must set out the language or a succinct statement of the instructions complained of\[69\] and the evidence upon which it is based.\[70\]

ES. National Life & Trust Co. v. Onians \[Mich.\] 100 N. W. 585.

54. It is the duty of counsel to remain in attendance. Usually, however, the court will not, in the absence of counsel, give further instructions as to the correctness of which there can be any question. Fournier v. Pike, 128 F. 911.

01. Martin, Moodie & Co. v. Petty \[Tex. Civ. App.\] 178 S. W. 878.

01. See 2 Curr. L. 477; Appeal and Review, 3 Curr. L. 167.

01. See 2 Curr. L. 477.

01. Presumption not overcome by an affl-davit of a party that he believes the jury misunderstood. Conrad v. Cleveland, etc., R. Co. \[Ind. App.\] 72 N. E. 489.

01. Savage v. Maribborough St. R. Co. \[Mass.\] 71 N. E. 531. Exception that a charge is reversible error is too general. Central Tex., etc., R. Co. v. Gibson \[Tex. Civ. App.\] 79 S. W. 351.

01. Mulherin v. Kennedy \[Ga.\] 48 S. E. 437. Where an instruction includes different and Independent subjects, a general exception thereto cannot be considered unless it is incorrect as a whole. Mathews v. Daly West Min. Co., 27 Utah, 193, 75 P. 722.

01. Metcalfe v. Lowenstein \[Tex. Civ. App.\] 81 S. W. 362.

01. Vonderhorst Brew. Co. v. Amrhein \[Mid.\] 56 A., 833; Morstette V. Canadian Pac. R. Co. \[Yv.\] 65 A. 1102; Quinn v. Baldwin Star Coal Co. \[Colo. App.\] 76 F. 552. Errors not assigned in motion for a new trial cannot be considered. Kehl v. Abram, 210 Ill. 218, 71 N. E. 347. Error in limiting number of instructions. The Fair v. Hoffman, 209 III. 330, 70 N. E. 622.

Exception held sufficient: A request to "save 4 and 8 of defendant's requests which were given" and an asset thereto by the court is a "willet" exception to the general nature of the charge given covering such requests. Gallifan v. Old Colony St. R. Co., 182 Mass. 211, 68 N. E. 48.

63. Chicago Live Stock Commission Co. v. Fix \[OkI.\] 78 P. 316; Chicago Live Stock Commission Co. v. Connally \[OkI.\] 78 P. 318.

01. Where error is alleged as to a portion of an instruction such portion must be set forth in tudem verbis. City of Denver v. Strobridge \[Colo. App.\] 75 P. 1076. Specialization of error which merely refers to the pages of the transcript in which the instructions which comprise the entire charge are to be found is not a compliance with the rules of court. Doherty v. Arkansas & O. R. Co. \[Ind. T.\] 82 S. W. 899. Assignment of error which complains of two distinct matters is bad. Metcalfe v. Lowenstein \[Tex. Civ. App.\] 81 S. W. 362.

01. Improper practice to permit formal exceptions to be then noted and specification of the objection to be supplied in the record later. Mountain Copper Co. v. Van Buren \[C. C. A.\] 133 F. 1.

01. Penn v. Tropmen \[Neb.\] 100 N. W. 312. No error can be predicated on a refusal to give instructions when no special reasons for giving them are pointed out. Miller v. John, 208 III. 173, 70 N. B. 27.

Where the record of appeal does not show whether requested instructions were given or refused they will not be considered on appeal. Texas Cotton Produce Co. v. Denny Bros. \[Tex. Civ. App.\] 78 S. W. 557.

67. Errors in instructions will not be considered on any ground other than that assigned. Fauboin v. Western Union Tel. Co. \[Tex. Civ. App.\] 81 S _Invited error._"--A party cannot complain of an instruction given at his own request,"2 though it be erroneous,"4 or when he has himself requested a similar instruction,"4 nor of the submission of an issue which his own instructions have submitted?" or suggested," or which is based on his pleadings."7

_Harmless error._"--Error in giving or refusing to give instructions must have been prejudicial to the appellant,"9 and must have materially affected the merits of the action."6 Therefore he cannot complain of an error favorable to himself."1 And if it appear from the record that even under a correct instruction a different conclusion would not be justified, the error will be deemed harmless."82

\_Instructions must be considered as a whole,\_83 and if, taken together and

charge is omitted from the record. Sharp v. 78. _Sear 2 Claim T._ 478: Farmless and PrejClinchnattl, 4 Ohio C. C. (N. S.) 19. The record of appeal must contain the portion of the charge exceeded to and the reasons. 79. _Dobery v._ Arkansas & O. R. Co. \[Ind. Freenman & T. News Co. v. Mencken, 115 Ga. 1017, 42 S. B. 869. 87. 889. 899. 889. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 899. 999. 999.

156

InSTRUCTIONS 17.

4 Cur. Law.

reasonably construed they present the law with reasonable accuracy and it cannot be said the jury was misled,84 a judgment will not be reversed though excerpts as abstract propositions do not accurately state the law,85

Omission to give a correct instruction is cured if the charge as a whole conveys the same impression,86

lifton Furniture Co. v. Colvin, 32 Ind. App. 398, 68 N. E. 1032; Hunting & Co. v. Quarter-

defendant's servants there could be no re-

comery did not take from the jury the issue

man, 120 Ga. 344, 47 S. E. 983; Taylor & of contributory negligence. Shippers' Com-

Taylor's Estate \[Michel.\] 11 N. W. 833; Bo-

press & Warehouse Co. v. Davidson \[Tex.

wick V. American Pipe Mg. Co. \[S. C.\] 48 S. Civ. App.\] 80 S. W. R.

E. 276: City of Columbus v. Anglin \[Ga.\] 48

So. v. Matthews \[Tex. Civ. App.\] 79 S. W. S. E. 318; McKinsstry v. St. Louis Transit Co. 71.

\[Mo. App.\] 82 S. W. 1108; International & G.

N. R. Co. v. McGehee \[Tex. Civ. App.\] 81 S. W. R. Co. v. Matherly

W. S04: Missouri, etc., R. Co. v. Matherly

S. 862: Miller v. John, 208 Ill. 173, 70 N. E. 175. Civ. App.\] 81 S. W. 144;

misson Co. v. Bowsell \[Ky.\] 83 S. W. 144;

27; Allison v. Long Clove Trap Rock Co.,

Parsons V. Hecha Iron Works \[Mass.\] 17 N. 92 App. Div. 611, 86 N. Y. S. E. 833; Teasley v.

E. 672. 'to determine whether any particutic-

Dar charge was misleading. Beattie v. Detroit \[Mich\] 100 N. W. S74; El Paso & N.

mmaterial. Hinchide v. St. Louis Transit

W. R. Co. v. McCounts \[Tex. Civ. App.\] 81 S. C. \[Mo. App.\] 82 C. \[Mo. App.\] 83 C. \[Mo. App.

refusal to give a correct instruction is deemed harmless where no substantial rights are prejudiced.87 If an incomplete instruction is supplemented by ample instructions on the point, the error is nonprejudicial.88 When, however, misleading instructions have not been corrected, and it is impossible to say from the record that justice has been done, there is ground for reversal.89

_A bad instruction_ is cured only by its withdrawal,90 and as a general rule an incorrect instruction is not cured by a correct one subsequently given,91 especially where a case is close upon the facts,92 or if the latter instruction does not refer to the former,93 or it is expressly stated that they are to be considered in connection with each other.94 The giving of an erroneous instruction is not reversible error if the jury have not been misled.95

## 11 Insurance Laws, Regulations and Supervision in General (158).

**SS 10. The Risk or Object of Indeminity**

**SS 11. Employers's Liability Insurance (186).**

Accident Insurance (186). Fire Insurance (187).\*\*

**SS 11. The Benefiery and the Insured (188).**

**SS 12. Employers' Liability Policy (190).**

**SS 13. The Loss, Its Extent and Extent of**

**SS 14. Assignments and Transfer of Benefits or Insurance (193).**

**SS 15. Change or Substitution of Contract, or Risk, or of Conditions Thereupon (194).**

**SS 16. Reselsion, Forfeiture, Cancellation, and Avoidance (196).**

**SS 17. Comments of Relonsurance and Conjectment Insurance (196).**

**SS 18. The Loss, Its Extent and Extent of**

**SS 19.**

**SS 11. The Benefiery and the Insured (189).**

**SS 18. Employers' Liability Insurance (211).**

**SS 19. Notice, Claim, and Proof of Loss**

**SS 11. Failure Value in Cash or Loons Before Loss (193).**

**SS 13. Options and Privileges' Under Policy (193).**

**SS 14. Assignments and Transfer of Benefits or Insurance (193).**

**SS 15. Change or Substitution of Contract, or Risk, or of Conditions Thereupon (194).**

**SS 16. Reselsion, Forfeiture, Cancellation, and Avoidance (196).**

**SS 17. Comments of Relonsurance and Conjectment Insurance (196).**

**SS 18. Employers' Liability Insurance (211).**

**SS 19.**

**SS 10.**

**SS 18. Employers' Liability Insurance (211).**

**SS 19.**

**SS 11. The Benefiery and the Insured (189).**

**SS 18. Employers' Liability Policy (190).**

\*\*SS 19.

4 Cur. Law. INSURANCE SS 2A.

An article of a mutual fire insurance company authorizing it to make an assessment as often as necessary on premium notes to settle losses and pay expenses does not preclude it from issuing insurance for cash premiums.\*

The board of directors and the president of a mutual life association are governed by the articles of incorporation and the statutes of the state defining and limiting their respective duties and powers.\* Fidelity bonds of the president, though running to the association, may be enforced by anyone for whosos benefit they were executed.\* Such association acts as trustee in the collection of funds and their distribution to the beneficiaries entitled to them,\* and its obligations end with such collection and distribution.\* It may follow any part thereof which has been wrongfully diverted to another purpose and recover it for the benefit of such beneficiaries,*\[13\] and this right passes to a receiver winding up its affairs.*\[12\] Under the Iowa code, the articles and by-laws of a mutual life association and its notices of assessments must state the objects to which the money to be collected is to be devoted, and no part of the proceeds thereof can be applied to any other purpose, any excess being set aside to be used for like purposes.*\[13\] The act applies only to assessments made, and not to fixed charges for contingent expenses, such as an agent's commission charge on renewals.*\[14\] The president of an association is not, in the absence of knowledge, liable on his bond for the error of its bonded cashier, whose duty it is to receive the moneys and apportion them to their proper funds, in depositing money received from investments to the credit of

death losses should not be diverted, authorizes change from "assessment" to "old line" insurance business. Id.

6. Graham v. Mercantile Town Mut. Ins. Co. \[Mo. App.\] 84 S. W. 93.

1. Violations by president constitute breach of duty, though acquiesced ln or di-rected by board. Sherman v. Harbin \[Iowa\] 100 N. W. 629.

1. Liability on each becomes fixed at termination of period covered by it, and breach during such period and resulting damage must be shown. Sherman v. Harbin \[Iowa\] 100 N. W. 622.

9, 10, 11. Sherman v. Harbin \[Iowa\] 100 N. W. 622.

12. Sherman v. Harbin \[Iowa\] 100 N. W. 622. Neither, however, can recover on the bond of an officer misappropriating such funds, more than the actual damages resulting therefrom. Id. New bond executed by president on hls re-election held not a renewal of old one but a separate and independent undertaking. Sherman v. Harbin \[Iowa\] 100 N. W. 622.

100 N. W. 629. Provisions of bond held broad enough to cover all delinquencies complained of. Id. Act of president in applying proceeds of assessments to payment of beneficiaries to whom they do not belong is mere breach of duty and not act involving fraud or dishonest on his part so as to re-write notice to be given to surety. Id. Neither can recover for funds wrongfully paid to one beneficiary which ln fact belonged to another, where the latter has been subsequently paid in full from funds subsequently acerning. Sherman v. Harbin \[Iowa\] 100 N. W. 622. The receiver cannot recover on the bond of president for moneys erroneously withdrawn from the benefit fund for the payment of expenses of litigation and the investigation of claims, except for the wrong fund.18 The directors of a mutual life insurance company who are authorized to distribute the surplus earnings of the company may declare a dividend provisionally, conditioning its distribution upon the payment of the next maturing annual premium.19 An agreement whereby an assessment life insurance association, on assuming the policies of another association, undertakes to pay the agent of the latter his renewal commissions charged on policies written by him is not ultra vires.17 In an action by an agent for such commissions, the burden is on defendant to make a showing from which the court can determine the amount due.18 If it does not do so, it cannot complain if the court adjudges it liable for the largest amount which plaintiff's evidence tends to establish as his due.19

A receiver of a trust and life insurance company, appointed in sequestration proceedings, is vested with 'title to all its property and choses in action, and represents both the creditors and stockholders, and may sue to set aside an illegal transfer of its property previously made.20 An action for that purpose brought by a judgment creditor,' suing on behalf of all 'creditors and stockholders who may come in and be made parties, must be treated substantially as one brought on behalf of the receiver.21 The assets of the company constitute a trust fund for the benefit of its creditors.22 Any assignment thereof depriving them of their lien is a fraud on them and may be set aside.23

The receiver of a co-operative fire insurance company cannot maintain an action to recover an alleged preference under the insolvency laws, since the company itself could not do so.24 The payment by such a company of money borrowed to pay losses is not, as against its members, a fraudulent preference.25

An order or decree of a court having jurisdiction levying an assessment upon the policy holders of an insolvent mutual insurance company without personal notice to them is conclusive as to all matters relating to the necessity for making it and the amount thereof,26 but it is not conclusive upon any one of them as to the question whether his relation to the company is such as to subject him to liability therefor, or as to any other defense personal to himself.27 Policy

15. Sherman v. Harbin \[Iowa\] I00 N. W. Co., 44 Misc. 31, 89 N. Y. S. 753. Transfer 622, 629.

16, Dividend apportioned to policy did not immediately become applicable to reduce amount of loan made by company to insolvent, so as to increase difference between debt and cash surrender value, which was applicable to the purchase of extended insurance under the terms of the policy, and thereby extend insurance until after insured's death. Petrie v. Mutual Ben. Life Ina. Co. \[Min.\] I00 N. W. 236.

17. Schrimplin v. Farmer's Life Ass'n, 123 Iowa, 102, 98 N. V. 613. Estopped to plead ultra vires where it coletes such assessments knowing of and having promised to pay such charges. Id.

01. Since it has books and all information. Schrimplin v. Farmer's Life Ass'n, 123 Iowa, 102, 98 N. V. 613.

01. Judgment held excessive, Schrimplin v. Farmer's Life Ass'n, 123 Iowa, 102, 98 N. V. 613.

01. Raymond v. Security Trust & Life ins. Co., 44 Misc. 31, 89 N. Y. S. 753.

01. Creditor cannot thereby obtain undue advantage over other creditors. Raymond v. Security Trust & Life Ins. Co., 44 Misc. 31, 89 N. Y. S. 753.

01. Raymond v. Security Trust & Life Ins. Co., 44 Misc. 31, 89 N. Y. S. 753.

01. Raymond v. Security Trust & Life Ins.

- 4 Cur. Law. 113

holders are not estopped to defend an action for such assessments because they have met with a loss and have been paid the full amount of their policies.28 Limitations against the right to enforce liability of policy holders begins on in-solvency of the corporation and does not stop running until they are served with summons and made parties.29

Taxation of the property of domestic or foreign companies within the state is governed by the provisions of the general and special revenue laws and is treated elsewhere.30

(SS 2) \_B. Conditions necessary to engage in insurance business, and certification and withdrawal of right.31--\_In Illinois, the insurance superintendent is authorized to file a bill for an injunction to restrain an insurance company which has abandoned its charter from doing business in that state and for the appointment of a receiver.32

Under the New York insurance law, companies must make a deposit with the superintendent of insurance to secure the payment of policies.38 The distribution of such fund should be made by the superintendent himself, and he cannot be compelled to pay it over to the receiver.34 The court having acquired jurisdiction may direct its distribution.38

SS 3. Foreign insurers and companies.38--\_The power of an insurance company to do business in a state other than that where it was organized is derived from the express or implied will of the legislature thereof.37 Where there is no positive prohibitive statute, the presumption, under the law of comity, prevails that a state permits a foreign company to do any act authorized by its charter or the law under which it is created, unless it is manifest that such act is obnoxious to the policy of its laws.38 This rule applies to companies authorized by their

to assessment on its insolvency, and by-laws held not to impose any liability on $ l.

them beyond amount of cash deposit. Id.

32. Under Laws 1883, p. 108, $ 3, giving 28. Swing v. Humbbird (Minn.) 101 N. W.

01.

01. Boyd v. Mutual Fire Ass'n, 116 Wis.

155, 90 N. W. 1086, 94 N. W. 171.

30. See Licenses, 2 Curr. L. 730; Taxes, 2 Curr. L. 1786.

01. In Idaho mutual co-operative Insurance companies are not liable to the 2 per cent tax on earnings and the annual income provided for by Sess. Laws 1901, p. 165. Idaho Mut. Co-O-D, Ins. Co. v. Myer (Idaho) 77 P. 628. In Louisiana the license on the business of insurance as carried on by foreign companies is based on the gross annual amount of premiums. Not on the number of agents or agencies in the state (Act No. 17 of 1895). State v. Philadelphia Underwriters., 112 La. 47, 36 So. 221. Where two nonresident Insurance companies have paid their license fees, additional fees for the same years cannot be collected from their joint agents issuine their joint policies under a certain name or style, on premiums included in the returns therefore made by such companies. Id. Evidence dehors such returns is admissible to show that a certain amount of the total premiums was derived from the business transacted by such agency. Id. Under Mo. Rev. St. 1899, 5508, cites of the second class may impose license tax on foreign companies. Not re-pealed by, or in conflict with Id. 8043, providing for tax on premiums in lieu of all other taxes. City of St. Joseph V. Metro.

01. See, post, $ 3. See, also, Fraternal

4 Curr. Law--11.

34. Under Laws 1883, p. 108, $ 3, giving 28. By-laws, 116 Wis.

01. See, post, $ 3. See, also, Fraternal

01. See 2 Curr. L. 438. See Fraternal

01. Is a mere privilege or license which legislature may withhold. United States F1-elity & Guaranty Co. v. Linehan \[N. H.\] 58

01. Foreign life insurance company authorized to write employers' liability insurance may be licensed to do so in Ohio, even though domestic life companies are not specifically authorized to do so. Employer's liability insurance expressly recognized by Rev. St. $ 3596. State v. Aetna Life Ins. Co.

\[Ohlo\] 69 N. E. 608. There being no provision to contrary it is policy of New Hampshire to allow foreign surty and buriglary insurance companies to carry on business in that state, subject to their charter provisions and the insurance laws. United States
**INSURANCE SS 3.** **4** Cur. Law.

charters to carry on two or more distinct classes of insurance business, though the statutes of the state where it proposes to carry on business do not provide for the organization of such companies.\*\*

The legislature of a state may absolutely exclude foreign insurance companies,**40** or it may allow them to do business therein upon- such conditions as it may see fit to impose.**41** It also has power to revoke or recall a permission once granted,**42** or to add new conditions after such companies have commenced to do business;**43** but rights acquired cannot be taken away except by express legislative action.**44** Provisions imposing retaliatory taxes or licenses on such companies,**45** and providing for the revocation of the license of a company which shall remove actions brought against it to the Federal courts, without the consent of the plain-tiff, have been held to be valid.**46** Retaliatory tax laws become operative immediately upon the existence of the conditions against which they provide,**47** and regardless of whether any agency has been established or attempt to do business has been made in the state against whose companies it is directed.**43**

As a general rule foreign companies are required to file a stipulation appointing the insurance commissioner or some other public officer as their agent upon whom process may be served.**49** Such stipulations are for the benefit of the 44. United States Fidelity & Guaranty Co. v. Linehan \[N. H.\] 58 A. 956.

**30.** Surety and burglary insurance company. United States Fidelity & Guaranty Co. v. Linehan \[N. H.\] 58 A. 956. Insurance commissioner cannot exclude them solely on the ground that he believes that such combinations are opposed to the public interest.

**31.** Not 11 arbitrary and unreasonable classical-flation within art. 9, $ 1 of the Nebraska constitution, because applicable only to companies having domlele in states discriminating against Nebraska corporations. Id. W. 611; Fisher v. Traders' Mut. Life Ins. Co. \[Ky.\] 83 B. Co. \[N. C.\] 48 B. 67; Johnston v. Mutual Reserve Fund Life Ins. Co., 43 Misc. 251, 87 N. Y. 8. 438.

**32.** Not 11.

- 4 Cur. Law. INSURANCE SS 3.1.163
- policy holders, and may be enforced by them.\[50\] A stipulation permitting such service so long as any liability remains outstanding within the state is irrevocable
- while such liability exists, though the company ceases to do business therein,\[51\] or though its license has been revoked.\[52\] Where policies are issued before the enactment of such a statute but under an act requiring the company to maintain some agent or attorney within the state upon whom process may be served so long as contractual liability exists, service may be made on the commissioner as long as the company continues to transact business within the state.\[53\] A company does not cease doing business so long as it collects premiums and settles claims on outstanding policies, even though it has ceased to accept new business within the state.\[54\] A statute substituting the insurance commissioner for the secretary of state as the officer on whom process may be served, when accepted by the company, applies to policies theretofore issued.\[55\] By the statutes of Wisconsin, service upon a foreign insurance company may be made upon any one who aids or assists it in transacting any business.\[56\] In some states foreign companies must obtain a license to do business from the insurance commissioner or other officer.\[57\] In others their assets must equal their liabilities.\[58\] It is the duty of the insurance commissioner to issue a license
- stitutional\] Fisher V. Trasders' Mut. Life Ins. Co. (N. C.) 48 S. E. 667. Act applies to all foreign corporations doing business or switch have done business in the state, whether they have property therein or not. Id. Continues to operate until all its debts to citizens are paid. Id. Will be presumed that facts necessary to validity of such service existed where record is silent on the subject. Id. The act authorizing such serve- lee on foreign corporations generally and Id. that authorizing service on foreign insurance companies by leaving process with the insurance commissioner (Acts 1829, p. 175, c. 54, 8 62) are cumulative, and service may be made in either way. Id.
- 50 Where stipulation provided for serve- lee on secretary of state as long as any polices should remain in force and thereafter, and in accordance with subsequent statute, new stipulation was filed authorizing service on insurale commissioner, latter innued to benefit of those receiving policies when first was in force. Foreign judgment could not be attacked on ground that such service conferred no jurisdiction. Woodward v. Mut. Reserve Life Ins. Co., 178 N. Y. 485, 71 N. E. 10. Cannot be revoked at least as to polles on which it has thereafter received premiums. Johnston v. Mutual Reserve Fund Life Ins. Co., 43 Misc. 251, 87 N. Y. S. 438. Attempted cancellation invalid both as to transactions originating within state and also with regard to claims on policies is- sued to persons in other states on which suits were properly brought in North Caro- lina. Hunter v. Mutual Reserve Life Ins. Co., 97 App. Div. 22, 89 N. Y. S. 849.
- 51 N. C. Laws 1899, p. 147, c. 54. Mutual Reserve Fund Life Ass'n v. Scott (N. C.) 48 S. E. 581; Woodward v. Mutual Reserve Life Ass'n v. Scott (N. C.) 48 S. E. 581; Woodward v. Mutual Reserve Life Ass'n v. Scott (N. C.) 48 S. E. 582; Woodward v. Mutual Reserve Life Ins. Co., 178 N. Y. 485, 71 N. E. 10.
- 52 Does not revoke the stipulations so as to render such service insufficient in an action by a citizen of such state upon a seme of action arising out of transactions between the parties while the company was doing business thereunder. Mutual Reserve Fund Life Ass'n v. Phelps, 190 U. S. 147, 47
- 53 The use of the insurance commissioner for the insurance commissioner is to accept new business in the state, but to to a company possessing and complying with the statutory requirements," and mandamus will lie to compel him to do so." New burdens cannot be imposed or exclusions effected by the unauthorized acts of any state officer or private person."1 A foreign company transacting business in the state as a corporation but failing to take out a license cannot raise the question of its want of corporate capacity as against the person with whom it has so dealt."2

SS 4. \_Agents and solicitors for insurance. A. The right to negotiate insurance and regulations thereabout."3--\_The state superintendent of insurance may refuse a license to an insurance agent who has solicited applications without it and offered rebates as an inducement."4

(SS 4) \_B. Rights and liabilities of agents.\_68--\_The general rules of contract and agency apply to the relations existing between insurance companies and their agents."6

Footnote 68: See Fraternal Mutual Benefit Associations, 3 Curr. L 1502, SS 8. Right of agents to waive warrantes and conditions, post, SS 16e. Right to waive proofs of loss, etc., post, SS 19.

The mere fact that the agent introduces the applicant to the insurer, or discloses names by which they come together to treat will not entitle him to compensation." But if it appears that such introduction or disclosure was the foundation on which the negotiation was begun and conducted and the contract entered into, the parties cannot afterwards, by agreement between themselves, withdraw the matter from the agent's hands so as to deprive him of his commissions.68 An agent is not entitled to commissions where the original application was postponed and the second application was procured by another agent

values of polfolios. Bankers' Life Ins. Co. v. 66. See Agency, 3 Curr. L 68; Contracts, Frequently 57 A. 259. Amendment does not require computation of the net value of all outstanding policies on a prescribed basis, without distinguishing between those by 4 Cur. Law.. INSURANCE SS 4B. 165

after he had abandoned his employment." Where an agent induces an applicant to increase the amount applied for through another agent, the agent procuring the first application is not entitled to commissions on such increase." An agent is, in the absence of a special agreement to the contrary, bound by a general custom among insurance companies to allow commissions to the agent procuring a new application rather than to the one procuring the original application which has been postponed or abandoned."

The fundamental duty of an insurance agent is to obey his instructions." If he fraudulently issues a policy at a lower rate than authorized, against the express directions of the company, and continuously and purposely fails to make report thereof, and the latter is thereby compelled to pay a loss which it might otherwise have avoided, such agent is liable both for the premium which he should have exacted and for the full amount of damages suffered by reason thereof." In case the risk is not a prohibited one, the measure of damages is the difference between the premium charged and that which should have been charged, or, in case the premium has not been paid, the full amount which should have been exacted." The fact that, owing to its provisions, the policy could not have been canceled before the loss, even if the company had been informed of its issuance, is no defense." The acceptance of the premium actually exacted does not constitute an election of remedies, or a ratification or estoppel." The petition in such case need 'not negative contributory negligence."

An agent inducing an applicant by means of false representations to take out insurance in an insolvent company is liable for the damages resulting therefrom." An agent of a foreign company is not ordinarily personally liable for misrepresenting to an applicant that the company has been admitted to do business in the state, thereby inducing him to take out a policy of insurance, where such policy is not thereby rendered invalid." By statute in some states, the agent of any foreign company which has not complied with the laws in relation to such companies is made personally liable on all contracts of insurance made by or through him on its behalf." Such statutes apply only to contracts of insurance on property situated in such state." The liability is on the contract and cannot be enforced after the expiration of the time within which, by its terms, action may be brought thereon."

69. Leviness v. Kaplan \[Md.\] 59 A. 127. Instruction in action for commissions, authoring finding for defendant, though plaintiff's work led to second application, if insurance was placed by second agent because of his negligence, properly refused where evidence did not raise question of negligence. Id.

70, 71. Leviness v. Kaplan \[Md.\] 59 A. 127. 72. Continental Ins. Co. v. Clark \[Iowa\] 100 N. W. 524. 100 N. W. 524. 73. Amount of loss and expenses of adjustment, etc., recoverable where it apperks that the company would have canceled the policy if it had known of its insuance. Continental Ins. Co. v. Clark \[Iowa\] 100 N. W. 524. 73. Where one of the agents, who were partners, advised the adjustter to pay the amount of the loss, defendants cannot claim that they are not bound by his adjustment on the question of damages. Id.

74. Continental Ins. Co. v. Clark \[Iowa\] 100 N. W. 524. 75. Required five days' notice. Continental Ins. Co. v. Clark \[Iowa\] 100 N. W. 524. 76. Company entitled to premium. Con The business of an agent who represents several companies, and whose customers leave the matter of the selection of the company to him, has a well recognized value, which is the subject of sale.84 A former agent of a company may solicit its customers and patrons in behalf of any company he may see fit, so long as he does not use for that purpose information gathered exclusively from such company's property, or abridge its enjoyment of existing contracts by inducing improper cancellations.84

An agreement by the company to pay its agent a reasonable commission on renewals received upon the insurance negotiated by him is not unreasonable and void as operating to tie up the future aceruing funds, and to control the discretion of future boards of directors.85

85. \_Insurable risks and interests. Fire insurance.86--\_The insured must have an insurable interest in the property covered by the policy or the contract is void.87 In general, it may be said that anyone who will suffer pecuniary loss by its destruction or injury has such an interest,88 even though he has neither the equitable nor legal title thereto.89

\_Life insurance.90--\_The issue of a policy of life insurance to one having no interest in the life of the insured is in the nature of a wager, and hence is contrary to public policy and void.91 In order to have such an interest, the parties must be

85. Sale can only be defeated by refusal ownership is to remain in the patentee until of company to appoint vendee as agent, or refusal of vendor's customers to patronize

Springfield Underwriters' Mut. Fire Ins. Co., him. National Fire Ins. Co. v. Sullard, 97

2 Ohio N. P. (N. S.) 111. The owner of a App. Div. 233, 89 N. Y. S. 934.

1 life estate, to the full value of the property.

84. National Fire Ins. Co. v. Sullard, 97

01. Ap. Div. 233, 89 N. Y. S. 934.

01. A carrier, in goods in his possess-register of agent held his own property. Id.

01. Company is entitled to an injunction to re-

01.

related by blood or marriage,"2 or the beneficiary must be dependent on the insured for support,"3 must have a reasonable expectation of pecuniary benefit or advantage from his continued life,"4 or there must be some contract between them, the fulfillment of which would be prevented by death."5 The insured has an insurable interest in his own life,"6 and a creditor in that of his debtor."7

Evidence that the insured was a person of no property and had no capacity or ability to earn money to pay premiums is admissible to show that the policy was a mere wager."8 Evidence that the policy was procured pursuant to an agreement with plaintiff having no insurable interest to pay the premiums and take the proceeds and that plaintiff, though suing as administrator, is in fact seeking to recover so as to carry out such agreement, is not objectionable as an attempt to vary the policy by parol."8

Footnote 8: The contract of insurance in general, and general rules for its interpretation."--Insurance on life includes all policies in which the payment of insurance money is contingent on the loss of life.4

\_Essentials and validity; acceptance.--An insurance contract is not within the statute of frauds, and may be oral." Hence an acceptance by the company of the

Indiana, by statute, the beneficiary under a | 98. Hinton v. Mutual Reserve Fund Life life policy must have an insurable interest in the life of the insured, where assessments are paid by any person other than the insured and without this written consent. Ats 1883, p. 204, c. 136, SS 6. Sec. 9 makes it leigny to procure insurance on life of an- undenent 168 INSURANCE $ 7. 4 Cur. Law.

proposal for insurance contained in the application constitutes a valid and enforceable contract, though no policy is issued.\* This of course does not apply where the contract provides that the insurance shall not take effect until the policy is issued or delivered,\* or where such is the evident intention of the parties.\* Nor does a contract to write and deliver a policy render the insurer liable for loss occurring before such delivery in the absence of a contract for temporary insurance.\* Although in writing, the policy may be subsequently modified by parol, even though it contains a provision to the contrary.10

The general rule that to establish a bi-lateral contract, when the parties are at the same place, there must be an offer and an acceptance actually communicated to the offerer, applies to contracts of insurance.11 Hence the insurer is not liable until it communicates to the insured its acceptance of his application.12 Delivery of the policy to the insured must ordinarily be shown,13 in the absence of a provision mask-curred. Loomis v. Jefferson County Patrons' \[Insured 1s entitled to assume that his per-Fire Relief Ass'n, 92 App. Div. 601, 87 N. Y. S. 6.

The general rule that to establish a bi-lateral contract, when the parties are at the same place, there must be an offer and an acceptance actually communicated to the offerer, applies to contracts of insurance.11 Hence the insurer is not liable until it communicates to the insured its acceptance of his application.13 Delivery of the policy to the insured must ordinarily be shown,13 in the absence of a provision mask-curred. Loomis v. Jefferson County Patrons' \[Insured 1s entitled to assume that his per-Fire Relief Ass'n, 92 App. Div. 601, 87 N. Y. S. 6.

Inseth shortly thereafter, notwithstanding verdict for plaintiff on appeal. Herring v. American Ins. Co., 123 Iowa, 533, 99 N. W. 130. Binding contract may be consumulated with mutual fire company with-out issuance of policy, in absence of agreeement or provision in by-laws to the contrary. Evidence held to show contract. Indistructures approved. Alliance Co-operative Ins. Co. v. Gerbet \[Kan.\] 71 P. 108.

Life Insurance: Insurer liable for loss before issuance and delivery of policy if contract completed by meeting of minds. Summers v. Mutual Life Ins. Co. \[Vyo.\] 75 P. 93T. Contract not finally executed until delivered and accepted, though it may be so far asserted to as to give right of action thereon. Stringham v. Mutual Life Ins. Co., 447, 75 P. 822.

7. Summers v. Mutual Life Ins. Co., \[Vyo.\] 75 P. 93T. Application and receipt of sum to be applied as first premium held not to constitute preliminary contract for temporary Insurance, but to render insurance effective only when application is accepted and policy signed by secretary and issued. Cooksey v. Mutual Life Ins. Co. \[Ark.\] 83 S. W. 357.

1. Evidence held to show intent that policy should not take effect until policy was issued. Summers v. Mutual Life Ins. Co., \[Vyo.\] 75 P. 93T. Complaint In action to recover premiums on nondelivery of policy heid not to be construed as alleging that agents themselves had authority to issue it. Id. Fact that petition demands damages for retusal to issue policy on which first premium has been paid, held not to affect right of plaintiff to recover in that action amount so paid, as money had and re-evolved. Id.

1. Consumers' Match Co. v. German Ins. Co. \[N. Y. Eur. & App.\] 57 A. 440. Where a provisional certificate of insurance is issued for a definite period to be then merged in a permanent policy and the amount paid therefor to be applied on the first year's premium. Unless the company shall decide not to accept the risk, in which event such insurance may be terminated at any time prior to its expiration by notice to the insured and a return of the amount paid, and no such notice is given or return made, the * 4 Cur. Law. INSURANCE $ 7. 169

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- that of all other contracts, is to be determined from the language used by the parties as embodying their intention, in the light of the circumstances under which it was made,\[37\] which should receive a reasonable construction,\[28\] and be taken in its plain, ordinary, and popular sense, unless a contrary intention appears.\[29\] When the language is ambiguous, it is to be understood in the sense in which the insurer had reason to suppose it was understood by the assured,\[30\] and extrinsic evidence in regard to the relations of the parties, the subject-matter and circumstances surrounding its making is admissible.\[31\] The position taken by defendant in regard thereto may also be looked to to determine its meaning.\[32\] All the terms of the contract should be considered together,\[33\] and if possible should be so construed as to give effect to every clause.\[34\] Special provisions control general ones,\[38\] and the written must prevail over the printed parts.\[39\] The policy will if possible be construed so as to give it effect rather than to make it void.\[37\]

Contracts of insurance will be strictly construed against the insurer and liberally construed in favor of the insured,\[38\] particularly when prepared by the insurer,\[39\]

Co. v. Western Assur. Co., 129 F. 610. Where there is no waiver, the rights of the parties are to be determined by the written contents alone. As to double insurance and building additions. Meigs v. London Assur. Co., 126 F. 781. Where there is no standard form of policy prescribed by statute, courts will enforce the contract as made and can not relieve against the results of the insureds? failure to comply with its lawful provisions. Proofs of injury under accident policy. Travelers' Ins. Co. v. Thornton, 119 G. 455, 46 S. E. 678.

**27.** Fire policy issued to one engaged in reparing vehicles, on stock of earrigages, 72 N. E. 558; L'Engle v. Scottish Union & supplies, etc., either belonging to insured or held by him in trust, or in storage, or 85. Where contract provides that it Is to for repairs, held to cover not only interest be governed by laws of New York, and also of insured, but also interest of owner, specifically provides that failure to receive Johnston v. Abresch Co. \[VWs.\] 101 N. W. 4. a notice of dues and assessments shall not 395; Bracher v. Equitable Life Assur. Soc., 42 Misse. 290, 86 N. T. S. 557. Condition statutory notice is not necessary. Mutual against foreclosure proceedings. London & Reserve Fund Life Ass'n v. Minehart \[Ark.\] L. Fire Ins. Co. v. Davis \[Tex. Clv. App.\] 84 S. W. 823: Mutual Life Ins. Co. v. Hill, S. W. 260. In so far as it is lawful. Blunt 193 U. S. 551, 48 Law. Ed. 788.

v. Flidelity & Casualty Co. \[Cal.\] 78 P. 729.

Where the words are clear and free from ambiguity cannot change it by a forced construction. Id.

**28.** Provisions allowing cancellation.

Hamburg-Bremen Fire Ins. Co. v. Brown-

held to have waived any provision of policy ing \[Vz.\] 48 S. E. 2. Concurrent insurance.

L'Engle v. Scottish Union & Nat. Fire Ins.

Co. \[Fla.\] 37 S.o. 462.

**29.** Bainstin v. British American Assur. Co., 208 Co. \[Cal.\] 17 P. 63; London & L. Fire Ins. Co. v. Davis \[Tex. Clv. App.\] 84 S. W. 260: & Rachter. Fequitable Life Assur. Soc., 42 Misc. 290, 86 N. Y. S. 557. Age 1mlt in \[Vz.\] 47 S.o. 462: Howeer-policy held to refer to time of accident and \[Vz.\] 47 S. E. 101. Providing for for-not to age when policy was issued. Hence

declaration must allege that insured was

Ins. Co. v. Excelsior Mill. Co. \[Kan.\] 76 P. between prescribed ages when accident hap-

423. Burglary Insurance. Flidelity & Casualty Co., Vanders, 32 Ind. App. 448. 70 N. Co. \[N. J. Law\] 67 A. 124. Fact that defendant knew that he was 64 when policy issued, age limit being 65, and that policy issued for a year held immaterial. Wheeler

v. United States Casualty Co. \[N. J. Law\] 59 A. 347.

**30.** Bracher v. Equitable Life Assur. Soc., 42 Misc. 290, 86 N. Y. S. 557. Age 1mlt in \[Vz.\] 47 S. E. 101. Providing for for-in-progress to operate factory. Queen

Inso. Co. v. Excelsior Mill. Co. \[Kan.\] 76 P. between prescribed ages when accident hap-

423. Burglary Insurance. Flidelity & Casualty Co., Vanders, 32 Ind. App. 448. 70 N. Co. \[N. J. Law\] 67 A. 124. Fact that defendant knew that he was 64 when policy issued, age limit being 65, and that policy issued for a year held immaterial. Wheeler

v. United States Casualty Co. \[N. J. Law\] 59 A. 347 or when they are ambiguous in their terms;40 but this rule does not go to the extent of disregarding a plain provision of the policy.41

Warranty clauses will be construed most favorably toward the insured.42 Forfeitures are not favored and it is generally held that they will not be enforced unless specifically and definitely provided for in the contract,43 though it has been held that when the situation is such as will, as a matter of law, carry with it a forfeiture as a penalty, that result will follow whether expressly stipulated for or not.44 Provisions creating them will be construed strictly against the insurer and liberally in favor of the insured.45 If susceptible of more than one meaning, that most favorable to the insured should be adopted.40 The fact that a forfeiture is specifically provided for in other clauses and omitted in the one under consideration will tend to show that it was not intended.47 Where the language used is equally susceptible of two interpretations, the one giving greater indemnity and sustaining the claim will be adopted.48 The rights of the parties cannot be affected by subsequent expressions of the agent's opinion in regard to them.40 An agreement for a policy of insurance contemplates the issuance of a policy containing the ordinary conditions, and when delivered, such conditions are binding on the insured.50 In Kentucky it is held that a life policy payable to insured's wife and children

forcolosure proceedings. London & L. Fire was entitled to deduct next seml-annual Ins. Co. v. Davis \[Tex. Civ. App.\] 84 S. W. premium due after death of insured. Id. 260. In bond indemnifying employer against

Where two constructions are possible, the loss by dishonesty of employees. Union Pac. one avoiding a, forfeiture will be adopted. Tea Co. v. Union Surety & Guaranty Co., 43

Promissory warranty as to keeping books. Misc. 50, 86 N. Y. S. 466.

40. Provisions of marine policy held not

S. W. 370. ambiguous. Fulton v. Insurance Co., 127

44. Brigname v. Pacific Mut. Life Ins. Co., F. 413; New York Life Ins. Co., v. Smith, 139

112 La. 574, 38 So. 595. Ala. 303, 35 So. 1004. As to vacancy. Central Mont. Mines Co. v. Fireman's Fund Ins. Co. \[Ind.\] 71 N. E. 897. For foreclosure proceedings. Teligrobens v.

should be construed as a testamentary instrument in the light of statutes relating to devises and bequests.\[81\]

The contract will be presumed to have been made with reference to statutes then in force,\[52\] which become a part thereof.\[53\] Any provisions in conflict therewith are, of course, void.\[54\]

The standard fire policy adopted by statute is generally made the exclusive contract between the parties,\[55\] and notwithstanding the fact that it is dictated by law, it must be construed under the rules applicable to similar contracts voluntarily entered into.\[56\] The power of the legislature to prescribe a standard form of policy cannot be delegated.\[57\] Statutes authorizing a state officer to prepare a form of policy do not give him authority to insert provisions therein which are contrary to existing statutes.\[58\] Statutes creating stipulations in the contract to which the parties have not agreed should be strictly construed.\[59\] The rights of the parties to a policy issued by a foreign company are not affected by subsequent legislation in the state of its domicile.\[60\]

Where a policy calling for extended insurance does not designate what mortality tables are to be used in calculating it, it will be presumed that the parties contracted with reference to the tables in use when it was issued,\[61\] and the company cannot thereafter adopt a table less favorable to the insured.\[62\]

Provisions and conditions in riders are to be construed as constituting a part of the policy to the same extent and with like effect as if embodied therein.\[63\] Any doubt as to whether a paper attached to the policy is a part of it will be resolved against the company.\[64\] Where the policy consists of one sheet of four pages, containing the main contract, conditions, a copy of the application, and endorsements, the entire sheet will be considered to be the policy.\[65\] By statute in some states, 4 Cur. Law. INSURANCE SS 8.

the application cannot be considered as a part of a policy of life insurance which refers to it, or be received in evidence, unless a correct copy thereof is attached to the policy.68

Footnote 68: The author is grateful to the anonymous referee for his help and to the anonymous of the time when the payment is due." The fact that the notice allows ten days of grace within which payment may be made does not invalidate it," nor does the fact that it does not contain the name and address of the agent to whom the premium receipt has been sent relieve the insured from making payment at the home office in accordance with the terms of his policy." The affidavit of any officer, clerk or agent of the company or of any one authorized to mail such notice that it has been duly addressed and mailed is made presumptive evidence that it has been given." This statute has no extraterriorial effect, and does not of itself apply to contracts made by New York companies outside of that state," in the absence of provisions in the policy showing a contrary intention."

Policies generally provide for forfeiture for nonpayment of premiums," but no forfeiture will take place in the absence of an express provision to that effect."

TG. Notice of premium held InsuffleentLife Ins. Co., 112 La. 879, 86 So. 790. Policy under such acts and terms of policy to work held forfeited by failure to pay second semi-a forfeiture for nonpayment \[Laws 1892, c. annual premium when due. Provision allow-$90, $92, as amended by Laws 1897, c. 218, ingrace of one month in payment of sec-p. 921. Nederland Life Ins. Co. v. Meinert \[C. A.\] 137 F. 651. Notice must state ampulable. Gayford v. Metropolitan Life amount due, place where and person to whom \[Ins. Co. \[C.\] 78 F. 258. Evidence held to it must be paid, and that unless paid on day show payment of six annual premiums on it becomes due, policy will be forfeited. Foreign v. Union Mut. Life Ins. Notice held sufficient. Summit v. United States Life Ins. Co., 128 Iowa, 681, 93 N. W. was renewed from year to year on payment of year's premiums. Insured, under direc-more than 45 days before due. Id. of company, sent it bank draft for 77, 78. Summit v. United States Life Ins. Co., 128 Iowa, 681, 95 N. W. 663.

TG. Affidavit accompanied by testimony of person making it held sufficient. Summit v. United States Life Ins. Co., 123 Iowa, 681, 99 N. W. 658. Evidence of nonpayment of premiums sufficient in view of fact that there was no affirmative claim of payment on part of plaintiff, who merely relied on defendants' inability to prove forfeiture. Id. Notice giving authority to pay premium to person holding receipt held to cast burden on company of showing that he did not receive it. Evidence sufficient. Id. Affidavit insufficient to show giving of required no-fice, because not showing that notice related to policy in suit, and not containing copy of it. McCall v. Prudential Ins. Co., 90 N. Y. S, 644.

so. Notice required under Laws 1876, c. 841, as amended by Laws 1877, c. 821, Mutual Life Ins. Co. v. Hill, 193 U. S. E, 48 Law. Ed. 788; Grevenig v. Washington Life Ins. Co., 112 La. 879, 86 So. 790. Does not apply where Insured lives in Texas and policy is delivered there, though premiums and policy are payable in New York. Metropolitan Life Ins. Co. v. Bradley \[Tex.\] 82 S. W. 1081.

S1. Will not be presumed where policy contains waiver of notice. Metropolitan Life Ins. Co. v. Bradley \[Tex.\] 82 S. W. 1081. Where contract made and delivered in Arkansas provides that it is to be governed by laws of New York, and also specifically provides that failure to receive notice of certain dues and assessments shall not exense their nonpayment, the notice provided for by the New York statute is not necessary. Mutual Reserve Fund Life Ass'n v. United States Life Ins. Co. v. Hill, 193 U. S. E, 48 Law. Ed. 788.

sz. Life Insurance: Evidence held to show forfeiture, Grevenig v. Washington \[C. A.\] 127 F. 651.

A requirement of "actual payment" does not exclude all other methods of payment than those made in cash.\[84\] Where the company delivers a policy reciting a payment of the premium before such payment is actually made, it will be held to have thereby extended credit to the insured.\[88\] If it delivers the policy under such circumstances that it goes into effect at once, and accepts, in lieu of cash the promissory note of the insured payable to the company, which is delivered and accepted as payment, a failure to pay the note will not work a forfeiture.\[89\] But where, as a favor to the insured, credit is extended to him for some portion of a cash premium, a failure to pay the note representing such portion is regarded as a failure to pay the premium, and the policy is forfeited.\[87\] A provision that the policy shall be void if the premium or any note given therefor shall have been due and unpaid for a specified time before the loss occurs is binding, and the policy is canceled by the mere failure to pay within such time, in the absence of a waiver.\[88\] Neither a demand for payment or notice of an intention to enforce the forfeiture is necessary.\[89\] Payments of semi-annual premiums on a policy once in force are conditions subsequent, of which the insurer may or may not avail itself to defeat a recovery.\[90\] Hence the burden of proving their nonpayment is on the insurer.\[91\] As a general rule, an agent may not accept property in lieu of cash for premiums, in the absence of express authority to do so.\[92\] But where he actually pays the premium in cash to the insurer, it is immaterial whether he has received cash from the insured or not.\[89\] An agreement by an insurance agent to pay premiums out of his own funds is sufficient consideration for a premium note.\[94\] The policy cannot be forfeited for nonpayment of such note in the absence of a provision to that effect.\[95\] There can be no forfeiture for nonpayment where the insured tenders the amount due within the time limited by the policy, and the same is refused.\[96\] He need not repeat the tender without notice from the insurer that it will be received,\[97\] but unpaid premiums, with interest, will be deducted from the amount due on the 176 Insurance $ 8. 4 Cur. Law. policy.9\* A tender of a bank check is good where it is refused on some ground other than that it is not lawful money, which is not well taken."

4 Cur. Law. INSURANCE SS 9.

The premiums on policies of insurance on the lives of partners, taken out in pursuance of the partnership agreement, are, as between the partners, partnership debts.\[10\]

By statute in Illinois, insurance companies are prohibited from making or permitting any discrimination between insurants of the same class and equal expectation of life, and both the companies and their agents are made jointly and severally liable to a penalty for so doing.\[11\] It is no defense to an action for such penalty that a rebate of premium was allowed by the agent without the knowledge of the company and in violation of its instructions.\[12\]

SS 9. _Warranties, conditions and representations.\[13\]--A substantial compliance with the contract is sufficient.\[14\]_

A warranty is a statement of fact made by the insured, on which the insurer relies, and on the strength of which he enters into the contract.\[15\] Affirmative warranties consist of a representation in the policy of a fact.\[16\] Promissory warranties are those that require that something shall be done or not done after the policy takes effect.\[17\]

In the absence of statutory prohibition, the parties may, as in the case of other contracts, incorporate into the contract of insurance such conditions as they see fit, whether they are material or immaterial.\[18\] If there is no agreement as to the materiality of a statement, its falsity does not affect the policy unless the misstatement is, as a matter of fact, material to the risk assumed by the insurer.\[19\] If a representation partly fails, but is true or is complied with, in so far as it is essential to the risk, the policy remains in force.\[20\]

Where no specific inquiry has been made as to facts material to the risk, and there is no misrepresentation in regard thereto by the insured, and no intentional concealment thereof, their existence will not invalidate the policy.\[21\] In such case

French v. Milliville Mtg. Co. \[N. J. Err. & App.\] 59 A. 214.

10. White v. McPeck, 185 Mass. 451, 70 N. E. 453.

01. Dawyer v. Mutual Life Ins. Co., 72 N. N. E. 452, 85 A. 502; Brignac v. Pacific Mut. Ins. Co. V. People, 209 III. 42, 70 N. E. 643.

01. Metropolitan Life Ins. Co. v. People, 209 III. 42, 70 N. E. 643. Amendment of bill to recover penalty for allowing rebate of premiums by substituting name of local agent for that of assistant superintendent

to show that life policy was issued in re-

include not to change cause of action so as to enable company to plead limitations. Id.

Ideh of Insured. Bankers' Life Ins. Co. Proper under Hurd's Rev. St. Ill. 1899, e. 110, v. Miller \[Md.\] 59 A. 116. False and fraud-

11. to render judgment against insurance

then statements in regard to material mat-

terning rebates of premiums, and to con-

tune case against agent, jointly liable and

a party, who had not been served. Id.

13. See 2 Curr. L. 508. See, also, Fra-

ternal Mutual Benefat Associations, 3 Curr. L. 1504, $ 5A: Id., 1507, $ 5D.

14. Phoenix Assur. Co. v. Stenson \[Tex. Civ. App.\] 79 S. W. 865.

01. Under Cal. Code, $ 2607, is a statement, as a fact, of a matter relating to the person or thing insured, or the risk. By

$ 2508, a statement importing that it is intended to do or not to do a thing which

materiality affects the risk is a warranty that

such act or omission shall take place. Con-

ner v. Manchester Assur. Co. \[C. C. A.\] 130

F. 743.

16, 17. Rosenthal Clothing & Dry Goods

Co. v. Scottish Union & Nat. Ins. Co. \[W. Va.\] 46 S. B. 1021.

4 Curr. Law--12.

it will be presumed that the insurer has obtained all the information desired.22 But a misrepresentation or concealment in regard to a fact specifically inquired about, though not material, avoids the policy,23 a question and answer being equal to an agreement that the matter is material.24 Whether the parties have agreed that a particular statement shall be a material part of the contract is a question of interpretation.25 The intention of the parties controls,26 hence the fact that statements are called warranties is not necessarily conclusive if they are not warranties within the fair meaning and spirit of the contract.27 The absence of a forfeiture clause may be considered in determining whether they are intended as representations or warranties.28 With respect to matters which the insurer must know are not within the personal knowledge of the applicant,29 and with respect to those calling for statements of belief or opinion, the letter of the contract will be controlled by its spirit and purposes, and the answers will be held warranties only of the bona fide belief and opinion of the applicant.20 This does not apply to statements calling for a mere matter of fact within the knowledge of the applicant.21 In order to avoid the policy for misrepresentations, the insurer must allege that it would not have been issued but for the alleged false statements.82 .

The falsity of a statement which the parties have expressly warranted to be true, or agreed shall constitute a material part of the contract,23 or the breach of a promissory warranty, ordinarily avoids the policy, whether actually material to the risk or not.34 Their materiality cannot be inquired into.35 By statute in some states, no conditions or warranties may be construed as other than mere representa can Cent. Ins. Co. v. Nunn \[Tex. Clv. App.\] 79 S. W. 88.

22. American Cent. Ins. Co. v. Nunn \[Tex. Clv. App.\] 79 S. W. 88.

01. Brignac v. Pacific Mut. Life Ins. Co. v. Nunn \[Tex. Clv. App.\] 79 S. W. 88.

01. Brignac v. Pacific Mut. Life Ins. Co.

- 4 Cur. Law. INSURANCE SS 9.,

tations unless they materially affect the risk.\* A stipulation that the insurer shall not be liable for loss from certain specified causes is not a warranty.${}^{37}$

Where the application is made a part of the contract and the answers to questions therein are made warranties, a false answer avoids the policy,${}^{38}$ even though the applicant acted in good faith and believed his answers to be true.${}^{39}$ Representations in the application are not warranties where they are not made so, and are not made a part of the policy or referred to therein.${}^{40}$ In such case they need

- 4 statements were warranted true. Dwyer v. \[Iowa\] 100 N. W. 532.

not be strictly and technically accurate, but must be essentially and substantially true when they relate to matters material to the risk.41 They must be construed and interpreted in connection with the language used in the policy.42 A provision that the policy shall be void if any material fact or circumstance stated in the application has not been fairly represented by the insured refers exclusively to the conditions upon which the contract was entered into and the policy issued, and not to the conditions of the insurance or facts arising subsequent to the issuance of the policy.43

Footnote 40: https://www.

reading it." This is not the case, however, where the insured knows that his answers have been improperly recorded," unless the agent represents to him that they are sufficient as written."

Where the agent inserts in the policy as warranties facts different from those stated to him by the insured, the latter may have it reformed in equity."

_Fire insurance._\[60\]--Provisions in fire policies requiring the insured to be the sole and unconditional owner of the property are valid, and a breach of warranty to that effect works a forfeiture." The whole policy is avoided where title to a part of such property is not in the insured." A company insuring property located in the Cherokee Nation at a time, when by statute the land of such nation was not subject to individual ownership, is estopped to claim a forfeiture under a clause making the policy void if the property is not owned by the insured in fee."

Provisions avoiding the policy for any change in the title to the property,"

even though it contains the express stipu-

Fire Ins. Co. v. Ruddell \[Tex. Civ. App.\] $2

lation that any such statement will render

S. W. $26. Owner of life estate. Requests

It invalid. As to ownership. Schaerer v.

for Instructions properly refused. Medley

Anchor Mut. Fire Ins. Co. \[Towa\] 100 N. W.

V. German Alliance Ins. Co. \[W. Va.\] 47 S.

$5. Continental Fire Ins. Co. v. Whitaker

orty, which he has unqualifiedly agreed to

\[Tenn.\] 79 S. W. 119.

by and which the owner has unqualifiedly

$3. That such answer was inserted by

the medical examiner is immaterial where

is sole and unconditional ownership, since

the insured had knowledge that it was immaterially

properly recorded. SignIng application and

and suffer any loss that occurs. Phenix

possession of copy thereof and of policy

his. Co. v. Kerr \[C. C. A.\] 129 F. 723. One

held to charge him with notice. Hook v.

giving another the possession of property

Michigan Mut. Life Ins. Co., 44 Misc. 478,

under an Irrevocable option to sell the same

90 N. X. S. 56.

to him still has sole and unconditional own-

94. Where the insured makes true answers as to chatted mortgage, but the agent

tion may abandon it at any time, and is not

writes different ones, asseruing him that they

bound to accept the property. Plaintiff held

will meet the requirements of the policy,

the company is liable, though It might have

refused the insurance had true answers been

to take the property and to suffer any loss

given. Manchester Assur. Co. v. Dowell &

Co., 25 Ky. L. R. 2240, 80 S. W. 207.

$5. Rhode Island standard policy. Gen.

55. Medley v. German Alliance, Ins. Co.

Laws 1896, c. 183. Vold where Insured was

\[W. Va.\] 47 S. E. 101.

purchasing part of property In house under

56. See 2 Curr. L. 518.

Instalment plan, and title was in vendor.

57. Object is, to protect the company

against taking risks beyond the value of

the interest insured so that the insured will

use all reasonable precautions to avoid the

\[Ind. T.\] 83 S. W. 60. Proof of ownership of

destruction of the property. Security Ins.

Co. v. Kuhn, 207 Ill. 166, 69 N. E. 822. Not

whificient to justify submission of question to

broken by the existence of an incumbrance

on the land. Requests for instructions

or properly refused. Medley v. German Alliance Ins. Co. \[W. Va.\] 47

ance Ins. Co. \[W. Va.\] 47 S. E. 101. Provision requiring entire, absolute, unincomp

bered and unconditional ownership is reasonable, and valid. Tyree v. Virginia Fire

& Marine Ins. Co. \[W. Va.\] 46 S. E. 706.

**Following have been held to have sole and**

unconditional ownership. Insured having

Hfe estate In property or Its proceeds, unit-

ed with absolute right as an active test-

mentary truste to dispose of the same as

she saw fit for the purposes of the trust,

held to be sole and unconditional owner in

fee simple. Security Ins. Co. v. Kuhn, 207

III. 166, 69 N. E. 822. A vendee in possession, to whom the vendor has sold and con-

veyed the property, taking notes containing

a vendor's lien thereon to secure the pur-

chase price, and giving a bond for a feed

to be executed on payment of such price.

Instruction approved. Hamburg-Bremen

\[Tex. Civ. App.\] 82

Fire Ins. Co. v. Ruddell \[Tex. Civ. App.\] 82

IInstitution that any such statement will render

S. W. 826. Owner of life estate. Requests

for Instructions properly refused. Medley

Anchor Mut. Fire Ins. Co. \[Towa\] 100 N. W.

V. German Alliance Ins. Co. \[W. Va.\] 47 S.

85.

E. 101. The interest of a purchaser of prop-

67. which he has unqualifiedly agreed to

buy and which he was unqualifiedly

by

## 182 Insurance $ 9.

4 Cur. Law. or for its removal without the company's consent, \[61\] or if, with the knowledge of the insured, foreclosure proceedings are commenced against the property or notice of sale under a mortgage or trust deed is given, \[62\] or for any increase of the hazard, \[63\] or for keeping explosives on the premises, \[64\] or for failure to employ a watchman, \[65\] or for allowing the premises to remain vacant and unoccupied, \[66\] or idle or shut down, without the company's consent, are valid and binding on the insured, and any violation thereof will ordinarily prevent a recovery in case of loss. \[67\] The term "occupied as a dwelling" will be construed as a warranty, and the company is not liable where the building is unoccupied when the policy is issued, and continues to be so until the time of the fire. \[68\] The examination of the premises by the insurer required by the Minnesota statute is only for the purpose of fixing the value of the structure, and noncompliance therewith does not charge the company with notice that the premises were vacant."

Where the policy provides that it shall be void if the property be or becomes covered by a chattel mortgage, the existence of such an incumbrance on a part of the property avoids the whole of the insurance, even as to the portion of the property not covered thereby." The policy is avoided though the mortgage is thereafter set aside as a fraud upon creditors under the insolvency laws." The foreclosure of a mortgage does not work a forfeiture under a provision that no lion or incumbrance shall fall or be placed on the property."

Provisions requiring the insured to keep certain books" and to make certain inventories," which he must keep in an iron safe during other than business,hours, and making their production a condition precedent to recovery, arc valid." A substantial compliance therewith is generally held to be sufficient, and no forfeiture will result where the information sought to be preserved thereby can be obtained from the other sources." There seems to be some conflict of authority in this regard, however." The burden is on the company to show that the fire occurred at a time when the books were required to be kept in the safe."

69. Laws 1895, p. 401, c. 175, $ 25. Alple v. Boston Ins. Co. \[Minn.\] 100 N. W. $.

01. Separable policy covering barriers and providing for taking of inventory once a year, failure to take an inventory is not a defense where the loss occurred before and implements used by him in his business. Vovel v. North British & Mercantile Ins. Co., 105 Mo. App. 575, $ 8. Co., $8 N. Y. S. $. $86.

01. Action to set aside pending at time

of fire. Mortgage valid as between the parties. Secrest v. Hartford Fire Ins. Co. \[S.\] 15 months. German Ins. Co. v. Kistner, 5 Ohio C. C. (N. S.) 165.

72. Does not create new item, but confirms old one. Fitzgibbons v. Merchants' & Bankers' Mut. Fire Ins. Co. \[Iowa\] 101 N. W. 454.

01. Record of goods taken from stock for honfe consumption held not required. Aetna Ins. Co. v. Fitze \[Tex. Civ. App.\] 78 S. W. 370. Not substantially compiled with by the preservation of silps from a cash register. Monger v. Delaware Ins. Co. \[Tex.\] 79 S. W. 7. Occasional ciereal errors or millions in Keeping books will not avoid the policy, but the company must show that the books as kept would not enable it, with reasonable certainty, to arrive at the actual loss sustained. Aetna Ins. Co. v. Fitze \[Tex. Civ. App.\] 78 S. W. 370. Provision held not compiled with. Everett-Ridley-Ragan Co. v. Traders' Ins. Co. \[Ga.\] 48 S. E. 918. Books held sufficient. First Nat. Bank v. Cleland \[Tex. Civ. App.\] 82 S. W. 387.

01. Making inventory on date of transfer of policy and keeping books from that time held substantial compliance. Scottish Union & Nat. Ins. Co. v. Moore \[Tex. Civ. App.\] 81 S. W. 573. Policy held to require that inventory next preceding date of policy and one taken afterwards should be kept and produced. Continental Ins. Co. v. Cummings \[Tex.\] 81 S. W. 705. A provision requiring the Keeping of the books and inventory "and also the last preceding inventory, if such has been taken," in a safe, held to mean last inventory taken before issuance of the policy. Phoenix Assur. Co. v. Stenson \[Tex. Civ. App.\] 78 S. W. 866.

**INSURANCE SS 9.** 4 Cur. Law.

A policy so written as to place separate valuations upon separate and distinct classes of property will ordinarily be regarded as severable, and a breach of a condition covering one class will not affect the validity of the insurance on the other classes," in the absence of fraud, or increase of risk on the whole of the property, or any unlawful act against public policy." This rule applies even in cases of breach of warranty," and even though the policy provides that any breach of a condition shall render the entire contract void."

_Life insurance._"--A provision that the policy shall not be binding unless the insured is in sound health upon the date of its delivery applies only to unsoundness of health arising after the application and medical examination." Actual and not apparent good health at such time is essential to liability." The insurer is under no obligation to investigate the state of insured's health when the premium is paid," but it is the duty of the applicant to disclose such changes in his physical condition as occur pending the negotiation which would influence the judgment of the company in passing on the risk." Before any temporary ailment can be called a disease within the meaning of a warranty in the policy, it must be such as to indicate a vice in the constitution, or be so serious as to have some bearing upon general health and the continuance of life, or such as, according to common understanding, would be called a disease."

_Accident insurance._"--Restrictions in accident policies rendering the insurance nugatory and valueless by attempting to avoid liability for injuries sustained by the insured while performing necessary acts embraced in his classified occupation are inoperative." The incurring of risks and dangers ordinarily incident to such occupation is not a voluntary exposure to unnecessary danger."

**70. Republic County Mut. Fire Ins. Co. v. Johnson \[Kan.\] 76 P. 419; Donley v. Glens**

remote cause of his death held not in good Falls Ins. Co., 91 N. Y. S. 302; Vucel v. \[Noth British & Mercantile Ins. Co., 88 N. 38 N. 886. Thompson v. Travelers' Ins. Co. \[N. 80. Under policy covering building, furniture and fractures, and stock of merchant- disce, a breach of the Inventory and iron \[D.\] 101 N. W. 900. Admission of and refusal safe clause only prevents recovery of loss on merchandise, Miller v. Delaware Ins. \[Noth a.\] 75 P. 1121, and cases there cited. Does not apply unless it appears that the risk intended to be excluded by the violated condition does not affect the item of property for which a recovery is sought. Policy covering losses from fire, lightning, orna- does and windstorms on house, hay and grain, and corn erb held not divisible, so as to prevent forfeiture for vacancy of house. Republic County Mut. Fire Ins. Co. v. Johnson \[Kan.\] 76 P. 419. Fact that machinery of shingle milli was shut down for more than specified time held to render policy void as to dry kiln and stock of shingles, where omission to keep steam in boilers affected entire risk. Brehm Lumber Co. v. Svea Ins. Co. \[Wash.\] 79 P. 34. \[Noth a.\] 81. Donley v. Glens Falls Ins. Co., 91 N. Y. S. 302. \[Noth a.\] 82. Miller v. Delaware Ins. Co. \[Okl.\] 75 P. 1121; Donley v. Glens Falls Ins. Co., 91 N. Y. S. 202. \[Noth a.\] 83. See 2 Curr. L. 516. See, also, Fraternal Mutual Benefit Associations, 3 Curr. L. 1504, $ 5. \[Noth a.\] 84. Metropolitan Life Ins. Co. v. Moore, 85 Ky. L. R. 1613, 1748, 79 S. W. 218. \[Noth a.\] 85. Thompson v. Travelers' Ins. Co. \[N. \[Noth a.\] 101 N. W. 900. Applicant suffering from the 1999 paper. \[Noth a.\] 86. Thompson v. Travelers' Ins. Co. \[N. \[Noth a.\] 87. Thompson v. Travelers' Ins. Co. \[N. \[Noth a.\] 88.\] 88. Thompson v. Travelers' Ins. Co. \[N. \[Noth a.\] 89.\] 89.\] 80.\] 87.\] 88.\] 89.\] 88.\] 89.

4 Cur. Law. INSUANCE SS 9. 185

To make one guilty of voluntary exposure to unnecessary danger, he must intentionally have done some act which reasonable and ordinary prudence would pronounce dangerous." In such case the general principles of negligence apply, and a recovery cannot be had unless the insured exercised ordinary care." The burden is on defendant to show such exposure."

The term disease in an accident policy does not cover the temporary de-rangement of the functions of some organ."

A provision for double indemnity in case the insured is killed while riding in or on a public conveyance does not require that he should have been killed while riding inside the car." A provision- exempting the company from liability in case the insured is killed while attempting to enter or leave a public conveyance does not preclude a recovery for death caused by being thrown from the platform of such car when not attempting to alight."

Policies frequently exempt the company from liability in case the insured is killed while fighting," or in case death results from injuries intentionally inflicted."

_Insurance against embezzlement._--A provision in a bond, guarantying an employer against loss, sustained by reason of the fraud or dishonesty of any of his employes, requiring him to use all diligence in prosecuting any such employee to conviction, and making such action, when requested, a condition precedent to recovery thereunder, only requires him to use due diligence in endeavoring to secure a conviction.1

cident policy as occupation of insured, held

Not precluded from recovery where death

not risk excluded under language relating

results from being thrown from platform

to occupation of handling explosives. Mor-

of car where insured had gone to vomit

tensen v. Central Life Assur. Ass'n \[Iowa\] 99

after being unable to get into closet. Pre-

N. W. 1058. Perils incident to occupation as

Profered Acc. Ins. Co. v. Murt \[C. C. A.\] 126

bridgeman not "exposure to unnecessary

F. 926.

danger or obvious risk of injury." Jamison

93. Verdict for plaintiff, who poured

v. Continental Casualty Co., 104 Mo. App. 206,

94. Jannison v. Continental Casualty Co.,

78 S. W. 812. Evidence

78 S. W. 812.

F. 926. Exposure

vnuecessary danger or to obvious risk of

injury means a voluntary assumption of un-

necessary risk. Assumption of risk in ex-

operation of encountering the danger

avoiding the injury from It. Jamison v.

104. Compton A. App. 306,

78 S. W. 812. Steeple-chase riding is volu-

tary exposure to unnecessary danger where

plaintiff states In his application that he is

a cotton manufacturer. Not a common sport

or amusement and not incident to his bus-

ness. Fact that it was for amateurs Imma-

terial. Smith v. Aetna Life Ins. Co. \[Mass.\] 97. Preferred Acc. Ins. Co. v. Murt \[C. C.

59 N. E. 1058. Unnecessary exposure to ob-

vluos risk of injury or obvious danger will

be deemed to include all cases of exposure

to unnecessary danger attributable to neg-

ligence on the part of the insured. Price

v. Standard Life & Acc. Ins. Co. \[Minn.\] 99

N. W. 887. Petition held to sufficiently aver

that insured's death was caused by as-

dent. Jamison v. Continental Casualty Co.,

93. App. Div. 524,

01. Y. N. 821. Statements

of insured while in semiscons condition

as to cause of accident held not entitled to

to grand jury, though no inficentent is re-

weight in determining whether he unnever-

essarily exposed himself to danger. Id. & Guaranty Co., 43 Misc. 50,

86 N. Y. S.

## 10 The risk or object of indemity

The risk covered to a large extent depends upon the terms of the policy

### Employer's liability insurance

Such policies generally limit liability to cases where injuries result from certain specified occupations

Under a policy indemnifying the insured against a "loss actually sustained and paid in satisfac; tion of a judgment after trial of the issue," there can be no recovery until a judgment recovered against the insured by an employee is paid

The fact that the insurer undertakes the defense of an action against the employer by an injured employee does not preclude it from relying on a provision making payment of the judgment a condition precedent to an action on the policy

Under a policy insuring against liability and loss resulting therefrom for a specified term, the insurer is liable where an employee is injured during such term, though plaintiff's liability to the employe is not fixed by judgment until after its expiration

A provision that the insurer shall not be liable for injuries caused by failure of the insured to observe any statute for the safety of his employe is not repugnant to a preceding general statement agreeing to indemnify against common law or statutory liability to servants

To take the liability of an employer for injuries to his employees, under the provisions of a contract with third persons, out of the provisions of the policy, the contract must be such as to make the liability not that of one engaged in the described occupation but a separate and independent liability

### Accident insurance

A provision that the policy shall not cover injuries

### Evidence Insulfclient to sustain find-

91 Minn. $58, 98 N. W. 200. Carpenter killed

ing that employe defuathed in specified

while removing scaffold in water tower held

amount. La Evidence held sufficient to

have been engaged in making "ordinary

sustain finding that employe had defuathed

repairs" and to have "been on duty in an

in specified amount by failure to account

occupation described" within the meaning

for goods sent to him. Id.

of employers liability policy, describing

B. See 2 Curr. L. 516.

B. Insurance against loss in mails: Provision that no article should be deemed

Fidelity & Casually Co. v. Lone O'A Cotton

sured until a letter of advice should be de-

posited in postoffice not complied with by

depositing it in mall box. Banco De Sonora

on policy amount of judgment against

v. Bankers' Mut. Casually Co. \[Towa\] 100

sured. Cushman v. Carbondale Paul Co.,

N. W. 522.

122 Iowa, 656, 98 N. W. 509. Policy of em-

Burtigary Insurance policy held to limit

display of company to sum of $250 on any

that company, after taking control of the

one article of jewelry. Wormser v. General

Ace. Assur. Corp., 94 App. Div. 213, 87 N. Y.

s. 974. Loss by breaking into money drawer

in safe after working combination held

within terms of policy. Fidelity & Casually

policy provided that no claim should lie

Co. v. Sanders, 32 Ind. App. 448, 70 N. E.

against insurer unless brought by insured

167.

Heinth Insurance: Policy held to render

Insurer liable only in case disease necessi-

tated continuous confinement indoors and

treatment by a physician was reasonably

required. Bishop v. United States Casual-

ty Co., 91 N. Y. S. 176.

Acedleat indemity policy construed and

held merely to indemnify insured against

loss of time and earning capacity by accident

and not to insure his life against

death by accident. Shaw v. Equitable Mut.

Acc. Ass'n \[Neb.\] 93 N. W. 672.

4. See 2 Curr. L. 519.

1. Work in and about the construction

of a new building to replace an old one

held not additions to or repairs to the latter

within meaning of employer's liability

policy, Andrus v. Maryland Casually Co.,

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4 Cur. Law. INSURANCE SS 10. 187

received while the insured is insane is valid.11 Total disability means inability to do substantially all the business necessary for one to do in carrying on his ordinary occupation.18 Murder is an accidental death.14 So is death resulting from blood poison due to cutting a corn with a knife.15 Insured's pallor, cmaication, and decline are visible marks on the body within the provisions of a policy covering only injuries leaving such marks.16

\_Fire insurance.17--\_An exception to liability for a fire loss should be clearly expressed.18 Policies generally exempt the company from liability for losses caused by order of the civil authorities,19 or by explosives.20 As a rule no exceptions can be added to those contained in the standard policy prescribed by statute.21 The terms of the policy determine the liability for losses on additions to buildings insured thereunder.22

\_Mistake.--\_The company and not the insured is chargeable with the agent's failure to correctly report the risk as contracted for.28 An agent's authority to issue a policy continues until he has completely executed it by issuing one embodying the terms of the binding contract therefor;24 hence, where he, by mistake, omits words necessary to make it embody the binding contract for insurance, he may insert them, even after loss has occurred.25 This rule is not changed by the fact that the policy is left in the agent's custody until after the loss.28 Errors in the description of the location of the property will not avoid the policy if, after eliminating them, sufficient remains to clearly point out its actual location.27 Where there is a mistake in reducing the agreement to writ ing but no mistake in the contract itself, the policy will be reformed after loss.28 A court of equity will reform and enforce contracts of insurance on the ground of fraud or mistake.29 Relief will not be granted unless a plain mistake is clearly made out by satisfactory and unquestionable proof.30 Fraud relied on must be established by the same degree of proof.31 One seeking to recover for damage to property not covered by the policy on the ground of a mistake in its description must allege and prove that a mistake has been made, and that it was mutual.22 Mistakes may be reformed in an action on the policy.33 In a suit to reform the policy and to recover for a loss thereunder, a failure to show facts authorizing a reformation does not prevent a recovery of the amount to which plaintiff shows himself entitled under the policy as written.34

\_Life policies generally exempt the company from liability in case the insured is killed while serving in the army or navy,35 or in case of suicide.36 Where the policy is silent in regard to the matter, the insured is liable in case of suicide.37 Where it provides against liability in case of suicide, the insurer is not liable in the event of intentional self-destruction while sane, but is liable if the insured was insane.38 There is a conflict of authority as to the effect of a provision exempting the company in case of suicide while sane or insane, some courts holding that it avoids the policy in every case,39 and others that it does not prevent a recovery where insured does not have sufficient mind to render him conscious that he is taking his own life when he commits the act.40 A clause

age warehouse "\*\*\*\***itunate No. 73 M street" not** **writers'** **Fire Ass'n v. Henry \[Tex. Civ. App.\] rendered void because it was in one of four** **79 S. V. 1072.**

**buildings composing warehouse which was on B street, where such building was on the policy by an agent, having authority needed with, and only access it was** **and with knowledge of the facts, for the through designated building. Edwards v.**

**Fireman's Ins. Co., 43 Misc. 354, 87 N. Y. S.**

**is defective, and fails to express the true 507.**

**is an action on the policy. Mistake may be reformed in** **an action on the policy. Mistake may be**

**was situated described as on southerly in** **shown by parad. Hartford Fire Ins. Co. v. stead of northerly side of road. Le Gendre v.**

**v. Scottish Union & National Ins. Co., 95**

**of Georgia & Scottish Union & Nat. Ins. Co., 119 Ga. 672, 46 S. E. 855. Petition held to**

**from fact that plaintiff's agent may have**

**set out good cause of action on policy as represented house in which insured person-**

**is defective, though it did not show**

4 Cur. Law. INSURANCE SS 11. 189

forfeiting the policy in case the insured dies by his own hand or act, voluntary or involuntary, sane or insane, covers only acts done with suicidal intent.41

SS 11. \_The beneficiary and the insured.42--\_The beneficiary has a vested interest in the policy, and it cannot be surrendered by the insured without his consent.43 Where the policy so provides, the insured may change the beneficiaries at will.44 Substituted beneficiaries must have an insurable interest.45 A provision giving the insured the right to change the beneficiary .with the consent of, and on written notice to, the company, makes its approval of the change a condition prerequisite to its validity.46

Where the policy is payable to any one of several persons no one of them has an exclusive right to recover the proceeds, and hence no one of them has an attachable interest in the fund.47 A provision that the production by the company of the policy and a receipt signed by any person giving satisfactory proof that he is an executor, husband or wife, or relative by blood, or lawful beneficiary of the insured, shall be conclusive evidence that the sum has been paid to the person lawfully entitled to the same, gives the company the right to pay the amount of the policy to any one of such persons.48

A husband has no attachable interest in the proceeds of a policy of life insurance payable to his wife, until her debts have been paid and he has reduced her estate to possession.48

The construction of the policy as to who are the beneficiaries, as in other contracts, depends upon the language used, to be read when doubt arises, in the light of the circumstances surrounding the parties when the contract was made.50

41. Does not include taking of opium Ins. Co., 90 N. Y. S. 471. The mere fact that for sake of obtaining relief. Brignac v. Paplintiff's agent obtained at the company's cime Mut. Life Ins. Co., 112 La. 574, 36 So. office blanks for the purpose of making the plaintiff beneficiary, and was instructed to have them filled out, does not estop the Mutual Benefit Associations, 3 Curr. L. 1513, $ 8. 43. Leonhard v. Provident Sav. Life As- sur. Soc. (C. C. A.) 110 P. 287; Fish W. Mass- that it had paid some other of the persons chuests Mut. Life Ins. Co. (Mass.) 71 N. E. 786. Beneficiary who thereafter joins in ex. Vadnals \[R. I.\] 58 A. 454, changing second policy for third cannot, in absence of fraud, claim that first was not nails \[R. I.\] 58 A. 454. Under Industrial Insurance policy giving company right to that she was exchanging first one. Leonmarriage to the insured, or to any other person appearing to the insured to be equalingly. Allegations insufficient to show different rule in state where contract was and making production of receipt eachundae. Penn Mut. Life Ins. Co. v. Norcrosses \[Ind.\] 72 N. E. 132. A surrender of the policy by the insured for his wife, who is the beneficiary is ineffectal it made with: the 190 INSURANCE SS 11. 4 Cur. Law.

Neither a beneficiary who feloniously takes the life of the insured, nor those claiming under him, can recover on the policy,\[51\] but the insurer is not thereby relieved from liability.\[52\]

No resulting trust arises in favor of one paying premiums on a life policy, where the money is merely advanced as a loan.\[53\]

Mere physical custody of the policy does not create either a trust or a lien.\[54\]

Where creditors are made beneficiaries under a life policy, and are required by contract with the insured to pay a part of the proceeds to third persons, they become trustees, and suits against them for settlement of such trust should be brought in equity.\[55\]

Under a fire policy payable to the owner of a life estate in the property, the remaindermen are entitled only to the excess over the value of such life estate.\[56\]

In order to recover, they must show the value of such excess.\[67\]

Where a creditor secured by a trust dedec proucures insurance on the trust property for his own benefit, and himself pays the premiums, the trust debtor cannot require him to account for money received therefrom.\[58\]

Any claim of an insolvent corporation to share in the proceeds of a policy on the life of its managing director on the ground that the premiums were paid from its assets is enforceable only by its receiver.\[59\]

_Rights of employee under employer's liability policy._--Under a policy insuring directly against liability, the amount thereof, to the extent of the liability incurred by the employer on account of an accident to an employe, becomes, immediately upon the happening of the accident and the giving of the notice provided for, an asset of the insured, which, in the absence of a provision to the contrary, may be assigned by him or taken for his debts, subject to the making of the required proofs.\[60\]

But under a policy insuring against loss or damage by reason of liability, the amount of insurance does not become available until the insured has paid the loss and proper notice has been given as provided for therein.\[61\]

Under both classes, the contract is one between the insurer and the

to their guardian if under age," and the

to the state, but they go to the wife's ad-

other to the wife "or to her legal representa-

ministrator. Id.

tives," if she was then living, and if not,

52a. Proceeds of benefit certificate held

"to her children, or their guardian if under

spayable to insured's heirs. Under ordinary

age," held that, on the death of the wife

life policy rule appears to be that adminis-

before the husband, the policies tested

inrator of insured may recover. Supreme

the children then living, who became sub-

Lodge Knights & Ladies of Honor V. Menk-

stituted beneficiaries under the contract and

halosen, 209 IIL 277, 70 N. E. 567.

did not take through their mother. On

53a. Johnson V. Cooney \[G..\] 48 S. E. 373.

death of insured, proceeds divided equally

54a. Johnston V. Cooney \[G..\] 48 B. E. 373.

between surviving child and issue of

To show implied trust In proceeds of life

ceased child. Id. Under a policy payable

to the wife and child of the insured, "or if

they are not living, to his executors, adminis-

S. Duty to disburse money according to

listors, or assigns," where the wife dies

enforact. Wrature v. Stacy \[Ky..\] 82 S. W.

before the insured, the surviving child is

42a. Under contract widow and insured's

entitled to the whole amount by force of the

estate held to have no interest in part of

contract. Fish W. Maasachusetts Mut. Life

proceeds which beneficiaries were required

Ina. Co. \[Mass.\] 71 N. E. 786.

to pay to insured's father. Id.

55a. Legal representatives of insured who

murders his wife, the beneficiary, cannot re-

cover proceeds of policy as against her

resentatives on the ground that right there

passed to him as survivor. Box v. Lanier

\[Tenn.\] 71 S S. W. 1042; Supreme Lodge

\[Tenn.\] 82 S. W.

Kights of Ladies of Honor V. Menkhausen,

209 IIL 277, 70 N. E. 567. Such rule does

not violate provisions of federal constitution

poration claiming proceeds. Northwestern

against forfeiture \[art, I & 12\] (Box v.

Mult. Life Ins. Co. v. Kidder, 162 Ind. 382, 70

Lanier \[Tenn.\] 79 S. W. 1043), nor those

N. E. 489. See Id. \[Ind. App.\] 69 N. E. 204.

prohibiting bills of attainofer \[art, I, S #,

60. Finley v. United States Casualty Co.

10\] (Id.). A refusal to permit the husband

\[Tenn.\] 82 S. W. 2.

to take such proceeds does not escchent them

61. Policy held to belong to this class,

**i** Cur. Law. **INSURANCE SS 11. 191**

master for the benefit of the latter, and the employe is not regarded as being in privity with them.**\[**42**\]** There is a conflict of authority as to whether equity will compel the company to pay the proceeds of the policy directly to the injured employe.**\[**64**\]** In no event will such suit lie until the employer has complied with all the provisions of the policy which are made conditions precedent to his right to recover thereon.**\[**64**\]\*\*\*\*.**

\_Rights of mortgage.--Under a policy made payable to a mortgage as his interest may appear, the insurer undertakes that the capacity of the property to pay the mortgage debt shall not be diminished, and that, if it is diminished by fire, it will pay over the loss to the mortgage, irrespective of the fact that the property in its .damaged condition may be more than sufficient to pay the mortgage debt.**\[**64**\]** The mortgage may maintain an action at law on the policy, in his own name alone, when the amount of the mortgage debt exceeds the value of the insurance, and the mortgage covers all the property destroyed.**\[**64**\]** Where a policy which provides that the loss, if any, shall be payable to the mortgage for the owner's account, is issued to the owner, who pays the premium, suit thereon is properly brought in the name of such owner for the use of the mortgage.**\[**64**\]** In the absence of a provision in the policy to the contrary, the mortgage's rights are generally held to be subject to the same defenses as could be set up against the insured,**\[**64**\]** though there seems to be some conflict of authority in this

\*\*though provided that, on suit being brought by acceptance of the deed. Unfelder v. against the employer, he should forward pro-

regard." A by-law of a mutual company providing that the policy may, at the request of the insured, be indorsed payable to the mortgagee as his interest may appear, is not obligatory, and a failure to so indorse it does not relieve the insurer from liability."

Under a contract for the sale of land requiring the vendee to insure the buildings thereon, the loss, if any, to be paid to the vendor as his interest may appear, the amount of such policy is payable to the vendor for the purpose of indemnifying and protecting him to the extent of the purchase price unpaid." He cannot be compelled to apply the proceeds to the rebuilding of the destroyed property, in the absence of an agreement to that effect," nor in the absence of proof of what such rebuilding would cost." Nor can the vendee compel the application of the proceeds to that purpose without an offer to rebuild or a showing that such rebuilding can be done so as to protect the vendor's interest."

_Insurance by bailee or agent._"--A bailee or agent, holding property for the purpose of repair or sale, may, in his own name, insure it against loss or damage by fire for the protection of his special interest and that of the owner." In case of loss, the avails of the policy may be applied in satisfaction of his claim against the property," but he holds any surplus, remaining after such claim is satisfied, in trust for the owner." The amount of loss paid by the insurer is payable to the owners in such proportion as the value of the property of each bears to the whole amount paid, notwithstanding the fact that the proceeds of the policy are less than the value of all the property destroyed, the insured having the right to deduct from the share of each the amount of his lien on the property." He should collect such surplus in his name as trustee of an express trust, and is liable for the resulting damage to any owner whose property he fails to include in the proofs of loss." The insurance need not be upon specific property, nor need the owner be known at the inception of the contract," though it must appear from the policy that he was within the contemplation of the parties when the contract was made." It will be presumed that the parties intended that the insurance provided for in the policy shall inure to the benefit of every person assuming the relationship to the assured which is covered thereby, whenever a loss occurs." Such presumption is binding both on the assured and the insurer, and cannot be varied or contradicted unless it can be shown that there was an agreement between them and the owner that the latter's interest was not to be included." The insurer is supposed to have intended that all persons assuming the prescribed relationship were within the protection of the policy, if, when informed of its existence, they asserted to and adopted the acts of the insured." The right of such adoption and ratification continues while the contract is in force," and the fact that loss has occurred does not preclude its exercise within a reasonable time thereafter." Such adoption makes the owner, in legal effect, a * Cur. Law.

INSURANCE SS 14.

party to the contract, and hence its terms, as to him, cannot thereafter be modified, contradicted, or varied by parol.\[88\]

SS 12. _Policy value in cash or loans before loss._"--No policy has a cash surrender value unless it contains a provision to that effect, enforceable by the insured." A policy of a foreign company is not affected by a statute authorizing the recovery of the cash surrender value of forfeited policies.\[91\]

SS 13. _Options and privileges under policy._"--Under a policy providing that on default in the payment of premiums the insured shall be entitled to term insurance for the full amount of the policy, or, on application and surrender of the policy within a specified time, to a nonparticipating paid-up policy, it is generally held that a failure to make such application and surrender will be deemed an election to take the term insurance.\[93\] This rule is not changed by the fact that the beneficiaries are minors.\[94\] Some courts, however, hold that time is not of the essence of such a contract."

SS 14. _Assignments and transfers of benefits or insurance._"_Life insurance._"--The ordinary essentials of a valid assignment must, of course, exist." It may be oral," and an assignment under seal imports a consideration.\[1\] The insured has at least a contingent interest in a life policy payable to his wife, if she survives him, and if not to his executors, administrators, or assigns, which he may assign.\[2\]

There is a conflict of authority as to whether the assignee. of a life policy must have an insurable interest in the life of the insured.\[8\] Some courts hold that an assignment for value and in good faith by one having such an interest

- See 2 Curr. L. 581.

- More fact that company has adopted custom of paying surrender value on semi-tontine policies does not bring them within meaning of section 70 of bankruptcy act allowing bankrupt to retain policy upon paying amount of surrender value \[30 St. 565 (U. S. Comp. St. 1901, p. 3451)\]. In re Mertems, 131 F. 972.

- Ferguson v. Union Mut. Life Ins. Co. \[Mass.\] 72 N. E. 365.

- See 2 Curr. L. 581.

- Mutual Ben. Life Ins. Co. v. Harvey, 35 Ky. L. R. 1989, 79 S. W. 218. Failure to subrard assignment. Locket v. Lockett v. Lockett take term insurance though application for paid np policy was made. Inices v. Pruden-ciamond lms. Co. \[Mo. App.\] 82 S. W. 1089. Provision requiring surrender before default in the payment of any premium, or within six months thereafter, is reasonable and blind-tent to one who has not is valid.4 This rule of course does not apply where the transaction is made with a preconceived intention to avoid the rule against wagering contracts.5 Others hold that no one can enforce a policy issued on the life of another unless he has an insurable interest therein,6 and that when the insurable interest ceases, the interest in the policy also ceases except that the beneficiary or assignee has a lien thereon for premiums paid.7

Footnote 4: The \_L * 4 Cur. Law. INSURANCE SS 14.

- 15 cellation of the policy, to the pledge of the policy who holds it as security for the repayment of premiums advanced by him, and under an agreement providing that he may collect such unearned premiums and apply the same on his debt, is a complete defense to an action therefor brought by the insured against the insurer.\[13\] One holding a life policy as collateral may enforce his rights thereunder notwithstanding the fact that the debt which it is given to secure and a judgment recovered thereon are barred by limitations.\[14\] The fact that the assignee is nominally acting as the insurer's general agent does not vitiate the assignment, in the absence of fraud.\[18\] In an action to compel the company to comply with the terms of a life policy by making a loan thereon, where the insured's divorced wife claims the policy under a previous assignment, and the company declares its willingness to make the loan to the true owner, it should be treated as a stakeholder and is entitled to costs and attorney's fees.\[14\] The insured cannot in such case compel the loan until he pays the lion of the assignee for premiums paid by her, in the absence of her consent.\[17\] The title to a life policy payable to the insured's executors, administrators, or assigns passes to his trustee in bankruptcy provided it has a real cash value which can be realized by the latter through a sale or otherwise, even though it has no surrender value.\[18\] _Five insurance._--An assignment of a fire policy after an adjusted loss is valid as between the assignor and the assignee.\[19\] On assignment of the policy with the consent of the insurer to the purchaser of the personalty covered thereby, it becomes a new contract and is unaffected by the acts of the person original-ly insured.\[20\] The rights of persons holding policies as collateral are dependent on the terms of their contracts with the insured.\[21\]
- 18 Agreement cannot be regarded as tending of fasten on the policy any new or different contract so as to exclude parol proof thereof. Millier v. Home Ins. Co. \[N. J. Lawl 58 A. 98. Such contract is a dealing by the insured with the unearned premium to become due in case of cancellation before the expiration of the policy, Id. In 14. Plaintiffs held to have no title to policy until defendant's debt was paid. Conway V. Caswell \[Ga.\] 48 S. E. 956. Evidence held to show that defendant was entitled to policy, plaintiff's ancestor having consented to its assignment to his ancestor, and defendant and his predecessor having paid premiums. Id.
- 15 Peck v. Washington Life Ins. Co., 91 App. Div. 597, 87 N. Y. B. 210. Where a life policy is delivered by one having the authority of a general agent without payment of the premium, a subsequent acceptance of the premium by the company with knowledge that the policy had been assigned to its general agent on the day of its delivery gives complete force and effect to the contract on such day of delivery. Id.
- 16, 17. Hatch v. Hatch \[Tex. Civ. App.\] 80 S. W. 411.
- 18 Where Policy had no cash or surrender value at time of adjudication, held that trustee took no title thereto and on bankrupt's subsequent suicide before policy lapsed the proceeds were payable to his administration. Gould v. New York Life Ins. Co., 132 F. 927. A semitointhe life policy payable to a bankruptcy, or his assigns,

## 15 Change or substitution of contract, or risk, or of conditions thereupon

An insurance company is bound by the act of a clerk in the office of its agents transferring the insurance on goods located in a certain building to the same property in a different building, if he was acting under general or specific authority from such agents to make such transfer.\[28\]

## 16 Rescission, forfeiture, cancellation, and avoidance. A. By agreement

The policy may, of course, be surrendered and canceled by consent at any time.\[28\]

_B. For breach of contract, condition, or warranty, or misrepresentation.\[29\]_--All prior negotiations will be presumed to have been merged in the written policy.\[27\] The insured is presumed to know the contents of his policy, and is bound by other instruments therein referred to and made a part of the contract.\[28\] It is his duty to examine it and see that it conforms to the one contracted for.\[29\] Where it differs materially from that for which he applied or intended to apply, it is his duty, if he does not wish to accept it, to return it within a reasonable time;\[30\] and if he fails to do so, and neglects to examine it, he cannot avoid payment of the promissory note given by him for the first premium,\[31\] or claim that it contains any provisions to which he did not consent and agree.\[32\] The only damages which can be recovered for fraud in issuing a policy different from that contracted for are such as are the natural, probable, and proximate consequences thereof.\[33\] The acceptance of the policy, by the beneficiary, and

''' ter of credit to secure payment of subsecurented indebtedness, and to share same proportionately with other bankers holding other policies. In re McElheny, 91 App. Div. 131, 86 N. Y. S. 326. 22. 22. See 2 Curr. L. 502. For amendment to by-laws as affecting benefit certificates, see Fraternal Mutual Benefit Associations, 3 Curr. L. 1507, $ 5D. 23. Evidence sufficient to justify submission of question to jury. Thuringia Ins. Co. v. Goldsmith \[C. C. A.\] 132 F. 456. 24. See 2 Curr. L. 506. 25. Evidence held not to show legal surrender of policy. Winn v. Provident Life & Trust Co., 91 N. Y. S. 167. 26. See 2 Curr. L. 508. Forfeiture for breach of condition, ante, $ 9. For nonpayment of premiums, ante, $ 8. 27. As to premiums. Jijms v. Provident Sav. Life Assur. Soc. \[Mo.\] 84 S. W. 61. Where the contract is not for parol insurance. Evidence held to show that the contract was not for parol insurance. Young v. St. Paul Fire & Marine Ins. Co. \[S. C.\] 47 S. E. 681. 28. May demand inspection of it and refuse to enter into contract if it is denied. them. Plaintiffs held bound by provisions of an open policy so referred to though they had no knowledge thereof. Conner v. Manchester Assur. Co. \[C. C. A.\] 130 F. 743. Policy providing for payment of part of premium in cash and balance by note held to merge antecedent agreement for issuance of Insurance for cash premium. Graham v. Mercantile Town Mut. Ins. Co. \[Mo. App.\] 84 S. W. 93. 29. Cannot, in absence of fraud, contended that agent misrepresented meaning of 'level rate" policy, where he retained policy for seven years without objection, and policy 4 Cur. Law. INSURANCE SS 16B. 197 the commencement of suit thereon, will, in the absence of fraud or imposition, be held to show that he had notice of, understood, agreed to, and is bound by the terms, limitations, and conditions contained therein.\[34\] The insurer may insert in the policy conditions not mentioned in the application.\[38\] Plaintiff, in a suit to set aside a life policy on the ground of the agent's fraudulent representations, will not be estopped to complain of their falsity because he could have informed himself of the truth by means of information at hand, unless he was inexcusably negligent in not doing so.\[38\] He need not allege that the agent knew that the representations were false,\[37\] nor is defendant prejudiced by his retention of the binding receipt.\[39\] It is not necessary for him to offer to pay any part of the premium.\[40\] One who executes and delivers a note to an agent in consideration of an agreement that the company will deliver a policy within a stated time may, on the latter's receiving the note and appropriating the proceeds and failing to deliver the policy, treat the contract as rescinded and recover the money advanced as money had and received.\[41\]_Life insurance._--A life policy cannot be surrendered without the consent of the insured and the beneficiary.\[42\] Many policies contain provisions making them noncontestable after a certain number of premiums have been paid.\[43\] Before a loss, a court of equity has jurisdiction of a suit brought by the insurer for the surrender and cancellation of a policy on the ground that it was procured through fraud, false representations or concealments, since plaintiff has no adequate remedy at law.\[44\] Having once acquired jurisdiction, it may proceed to a final decree, though a loss occurs pending suit and before final hearing,\[45\] and though the beneficiary immediately brings suit on the policy.\[46\] This is particularly true where, on account of the peculiar nature of the contract, the beneficiaries have no adequate remedy at law.\[47\] After loss the company has an adequate remedy at law by setting up such facts as defenses to an action on the policy, and hence the courts have no jurisdiction, in the absence of special
198 INSURANCE SS 16B. 4 Cur. Law. circumstances invoking the aid of a court of equity.47 Such remedy is not rendered inadequate because the action may be brought in a state court, where the company will have a right to remove it, even though such removal may forfeit its license to do business in such state,48 nor because it has no choice of the time or place of the commencement of such action, and less control of its conduct than the insured.49

Before a forfeiture will be declared, the terms of the contract must be strictly complied with.50

Incorporated mutual assessment insurance companies have no power of expulsion or forfeiture unless granted by their charter or general municipal law.51 The mere failure of a member to seek reinstatement after a void expulsion does not operate to ratify the illegal forfeiture of his certificate, where the association has sufficient money in its hands to discharge all assessments coming due before his death, and sustains no injury by his conduct.52

_Fire insurance.--A_ policy is canceled when the agent advises the insured to that effect, and that the unearned premium will be remitted to him on receipt of the policy,53 especially when the amount of such premium is insufficient to keep it alive until the date of the fire.54 An attempted cancellation without notice to the insured or a return of the premium is invalid.55 In such case the acceptance by him of the amount of the premiums returned by the agent after the fire is not an election to treat the contract as void,56 nor can it be regarded as a compromise.57 Conditions requiring a certain number of days' notice before the policy can be canceled are for the benefit of the insured only.58 Under

47 Riggs v. Union Life Ins. Co. \[C. C. A.\] been canceled and had been replaced by plaintiff's agent with policy in another company. 911. Bill to cancel life policy after death (in theity where plaintiff ratified his acts with application. Des Moines Life Ins. Co. v. Selfer, 120 In 11. 157, 11 N. E. 84. In an action to cancel policy for fraud, office of a net's policy would, under terms of other pole held to be to bring before court the field of Insured\* death and the pendency of adjusting loss. Larsen v. Thuring American at law on policy as bar to suit and hence not to bring before court want of equity in complainants bill. Mutual Life Ins. Co. v. Blair, 130 F. 971. 48, 49. Riggs v. Union Life Ins. Co. \[C. C. A.\] 129 F. 207. 50. Nederland Life Ins. Co. v. Meinert \[C. C. A.\] 137 F. 651. See, also, ante, 8 7. 51. Certificate held not forfeible because member's habits had become intermediate, though that might be a good defense to an action there. Purdy V. Bankers' Life Ass'n. 101 Mo. App. 91, 74 S. W. 486. By-law in regard to expulsion held unreasonable. Id. 52. Purdy v. Bankers' Life Ass'n. 101 Mo. App. 91, 74 S. W. 486. Under articles and by-laws, held that assessments should be both leveled and collected from guaranty fund, and that any assessment must be passed and not collected if there was money enough on hand to pay mortuary benefits. 53. For nonpayment of premiums. Insured\* made no objection until after fire. Hamburg-Bremen Fire Ins. Co. v. Browning \[Va.\] 48 S. E. 2. 54. Hamburg-Bremen Fire Ins. Co. v. Browning \[Va.\] 48 S. E. 2. 55. Cassville Roller Mill Co. v. Aetna Ins. Co., 105 Mo. App. 146, 79 S. W. 720. Default held not liable on policy which had 4 Cur. Law. INSURANCE SS 16B. 199

a provision that the policy may be canceled by the company giving five days' notice of such cancellation, and returning the unearned premium, it does not cease to be in force until five days after the act of cancellation and the giving of the notice and the tender of the return premium.\[50\] Under a policy authorizing cancellation at any time by either party, the insurer cannot have it canceled after loss on account of fraud exercised in obtaining it.\[50\]

An insurance agent may be the agent of the insured in .procuring policies, in so far as his authority to so act is not restricted by statutes making him the agent of the insurer.\[61\] But the mere fact that one is employed as such agent to procure insurance does not authorize him to represent the insured to receive notice of cancellation of subsisting policies and to substitute other insurance in place thereof.\[62\] By statute in Wisconsin anyone transmitting an application for, or a policy of, insurance, other than for himself, to or from an insurance company, is made the agent of the company.\[63\] Under this act agents receiving orders for insurance and placing them through other agents, without any directions being given to the latter by the insured, are agents of the company writing the policies.\[64\]

_Recovery of premiums paid.\[63\]_--As a general rule, the insured may recover premiums which he was induced to pay through fraudulent representations of the agent as to the insurance to be issued therefor.\[63\] This does not apply where the policy is illegal by statute or because against public policy,\[63\] unless the party paying them is innocent of any wrong, and is induced to do so by the false and fraudulent misrepresentations of the agents of the insurer.\[63\] A demand is a necessary prerequisite to an action to recover premiums paid on a void policy where such payments were made because of the false representations of the company as to its validity.\[63\] The statute of limitations does not begin to run until such demand is made.\[63\] In the absence of fraud, where the risk has once attached, a recovery of premiums paid cannot be had because of a breach of the conditions of the policy by the insurer.\[63\] The amount of premium in such case is not apportionable and the remedy is by a suit for specific performance.\[63\]

_Return of premiums.\[63\]_--The return of the premium is not a prerequisite to an assertion of forfeiture for the violation of conditions after the policy becomes effective and operative.\[63\] There is a conflict of authority as to whether agent issuing policy against instructions, to \[ judgment for plaintiff in action to recover show that company would have been liable premiums on life policy because of fraudu-even had he notified them of its issuance.\[63\] Intsuance to be issued therefor. Prudential Ins. Co. v. Clark \[Iowa\] 100 N. Ins. Co. v. Donnel \[Neb.\] 98 N. W. 812. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. American Mut. Life Ins. Co. v. Ber- \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[63\]. \[65\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[64\]. \[65\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[63\]. \[64\]. \[65\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[63\]. \[64\]. \[65\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[63\]. \[64\].

it is necessary where the policy is invalid in its inception.78 A provision that the unearned premium shall be returned in case the policy becomes void or is canceled on its surrender, does not require a return until such surrender is made.78

(SS 16) _C. Estoppel or waiver of right to cancel or avoid.71_--Waiver is the intentional reliquishment of a known right.78 To create an implied waiver, there must be some act inconsistent with the right waived.79 An insurer whose conduct is such as to induce the insured to rest on the well founded belief that strict performance of a condition will not be insisted upon cannot in good faith afterwards set it up as a bar to recovery,80 but will be deemed to have waived compliance therewith.81 No waiver by acts or conduct can become effective until the party making it is informed of the essential facts on which it is based.82

75. Must do so where the policy is invalid.ployer's liability policy not waived. O'Con-because the insured was not the sole owner of the property. Virginia Fire & Marine Ins. E. 879.

Co. v. Cummings \[Tex, Civ, App.\] 78 S. W. 716. Also, in order to avoid a recovery under a condition that it shall not be binding unless to jury. Rundell v. Anchor Fire Ins. Co. of its delivery. Metropolitan Life Ins. Co. v. Moore, 25 Ky. L. R. 1613, 1748, 79 S. W. 213.

The return or tender of the premiums is not necessary to entitle the insurer to defend on the ground that policy never went into effect. Because insured was not in good health when it was delivered. Austin v. that Reserve Fund Life Ass'n, 132 F. 555.

The remedy for a return of premiums in such case is by an action therefor. Id.

76. Senor v. Western Millers' Mut. Fire Ins. Co., 181 Mo. 104, 79 S. W. 687.

01. See 2 Curr. L. 512. See Fraternal Mutual Benefit Associations, 3 Curr. L. 1504, 8 5 5; Id., 1510, $ 7.

NOTE. "Electron," "walker," "forfeiture," as applied to insurance: In a recent critical article in XVIII. Harv. L. R. 364, Mr. John S. Ewart advances with great force the theory that the doctrine of waiver in its relation to insurance cases is erroneously so called; that the true principle is election; that the conflict and confusion in the doctrine and its applications are explainable by the known principles of an election. The term "wivar" is so well fixed in the law that limitations on its meaning or attempted submergencies of it in other terms are not likely to be accepted. Its intimate relationship to election is recognized in the title Election and Wafver, 3 Curr. L. 1177. In two comparatively recent cases the indicia of an election appears in the statement that "if the company contemplated the forfeiture of the policy because of the non payment of the premium it should at once have so de- elnered plainy and unconditionally." United States L. I. Co. v. Lesser, 126 Ala. 568, 28 So. 646; Pollock v. German Ins. Co. \[Mich.\] 86 N. W. 1017, cited by Mr. Ewart. \[Editor.\]

78. Proofs of loss. Nicholas v. Iowa Merchants' Mut. Ins. Co. \[Iowa\] 101 N. W. 115. A voluntary relloquishment of a right that one party has in his relations to another. Definitions of express and implied waiver. Astrich v. German-American Ins. Co. \[C. C. A.\] 131 F. 13.

01. Provision making payment of judgment condition precedent to liability on em 4 Our Law. INSURANCE SS 16C. 201

The burden is on plaintiff to show such knowledge.\[83\] Where it is sought to charge the company through notice to its agents, it is only required to produce the agent to whom plaintiff claims notice was given, and need not prove a negative by producing them all.\[84\] Declarations of the agent made after the issuance of the policy that the company desired to change it by inserting the name of the true owner are inadmissible in the absence of a showing that, at the time, the agent was charged with any duty in regard to the policy.\[85\] Where it is conceded that the policies permitted other insurance, conversations with the agent at the time of issuing it, tending to show a waiver of the clause forbidding it, are immaterial.\[85\] Evidence of the general reputation in the neighborhood that property was partnership property is admissible to show the agent's knowledge of that fact, but is not of itself sufficient for that purpose.\[87\] The company is not charged with the duty of inquiring into the title, and the fact that the agent could have learned the truth by inquiry will not avoid the warranty of title.\[85\] It is proper to show that defendant knew the true state of the title after the policies issued and before the fire.\[86\] Conditions inserted for the benefit of the insurer may be waived by it.\[86\] Maryland Casualty Co., 91 Minn. 358, SS 8. W. \[w\] was informed of and consented to the pro-200. To sustain finding of jury that agent knew that defendant used gasoline when is allowed to remain vacant and unoccupied to do so, contrary to their terms. \[w\] led for more than a certain number of days Hartley, Pennsylvania Fire Ins. Co., 91 Minn. 382, SS 8. N. W. \[w\] of iron the policy was issued, when the insurer had safe clause requiring keeping and produc- no knowledge of that fact (Bartlett v. Britton of books. Question improperly submit- \[w\]). \[w\] of because the Insurer made no inquiry in Co., \[w\] of the premium does not con- \[w\] of the premium does not con- \[w\] of the premium.

203

**INSURANCE SS 16C.** 4 Cur. Law.

Very slight evidence may be sufficient to show waiver. \[91\] The fact that policies are prepared for general use without reference to particular cases may be considered. \[92\]

The issuance and delivery of a policy and the acceptance of premiums with knowledge on the part of the insurer of facts making it, by its terms, inoperative at its inception, is a waiver of all conditions therein inconsistent with such facts. \[98\] Some courts base their refusal to allow the insurer to set up such conditions on the doctrine of estoppel. The principle is the same in either case. \[94\] In Wisconsin it is held that the doctrine rests on the principle of estoppel in pais, and not on waiver, the latter applying only to acts occurring after the making of the contract, and not those involved in its inception, \[95\] and that statutory provisions requiring waivers to be in writing do not apply. \[96\]

Knowledge of an agent at the time of delivering the policy \[97\] or knowledge on the part of the soliciting agent when he takes the application is generally held

- \[noitemsep,topsep=0pt 4 Cur. Law. INSURANCE SS 16C. 203

to be the knowledge of the company, and will estop it from relying on provisions ignoring such knowledge," though the agent has never communicated such facts to the company." In most states these rules apply even where the policy provides that all waivers must be indorsed thereon in writing,1 though there is some conflict or authority in this regard.2 This is not the case, however, if the in-

ure collateral to the principal agreement to

Company will not be heard to say that agent

insure the property upon payment of a certain premium. Agent of foreign company

known to it facts communicated to him by

held to have authority to waive condition

that existing incumbrance by way of chat-

Co. v. Richmond Mica Co., 102 Va. 429, 46 S.

ei mortgage, whose existence is known to

E. 463.

him, should avoid the policy, German-

American Ins. Co. v. Yeagley (Ind.) 71 N. E. 897.

Avernents that plaintiff had no no-

gina Fire & Marine Ins. Co. v. Richmond

tice that incumbrance would avoid policy,

and that provisions for forfeiture In such

cases. German-American Ins. Co. v.

case were in fine print and not known to

Yeagley \[Ind.) 71 N. E. 897. Company has

him until after fire held mere surplusage.

Id. If he makes false statements of fact in

which involves the power to waive any con-

the policy after having been truthfully and

Gtions therein. Penn Mut. Life Ins. Co. v.

fully informed in regard to the matters

covered thereby, the company is estopped to

avoid the policy by reason thereof. As to

store of title. Nuto v. Hartford Fire Ins.

Co. \[Mo. App.\] $3 S. W. 83. The same rule

applies to statements in an indorsement

Ande by him on account of changes in the

title. Agent makes false statements. Id.

Where an agent is correctly informed as to

all facts inquired into affecting the inception

of the contract, and takes no written appli-

cation, and inserts in the policy as war-

Aarhus v. Maryland Casualty Co., 91 Minn.

ranties facts different from those so stated

to him, the company is estopped from de-

fending on the ground of their fality, in

the absence of a showing that the insured

knew of the agent's want of authority to

wavice conditions. Raises equitable stop-

pel which may be asserted in court of law.

Medley v. German Alliance Inc. Co. \[W. Va\].

47 S. E. 101. Failure to read the policy for

a short time after its delivery does not pre-

vent such a wavier, or the reformation of

897. Yeagley \[Ind.) 71 N. E.

the policy. Id. By statute in Wisconsin

\[S. D.\] 101 N. W. 1074. Whereby conduct

one who delivers the policy and receives the

mundues insured not to comply. Mattingly

premium, though acting as a broker, is an

or, Springfield Fire & Marine Ins. Co. \[Ky.\]

agent of the company within this rule.

Applies where he receives it from company's

Co. v. Straughan \[Kan.) 78 P. 447. Fact that

agents, and pays premiums to them \[Rev.

St. 1898, 1 ??7\]. Welch v. Fire Ass# of

policy was issued and thereafter at insured's

Philadelphia \[Wis.\] 98 N. W. 227.

98. Cannot avoid policy because of chat-

tel mortgage, where agent told insured that

it was not necessary to mention it because it

was so small. Manchester Assum. Co. v.

Dowell, 25 Ky. L. R. 2240, 80 S. W. 207.

General agent held to have authority to

waive provisions as to sole ownership.

Hartford Fire Ins. Co. v. McCarthy \[Kan.\]

77 P. 90. Agent held to have waived forfeiture on account of contract

to sell premises, by informing owner that no

change in the policy was necessary. Virgin

gina Fire & Marine Ins. Co. v. Richmond

Mica Co., 102 Va. 429, 46 S. E. 463.

99. Yeesey v. Commercial Union Assur. Co.

\[S. D.\] 101 N. W. 1074. It

be presumed that he informs the company of any circum-

stances affecting its liability which come to

his knowledge, and if subsequently it re-

eieves premiums without objection it will be

deemed to have waived any forfeiture in-

curred by reason thereof. German-American
204 INSURANANCE SS 16C. 4 Cur. Law.

sured has actual notice of the agent's want of authority.\* More constructive notice from the fact that the policy contains the limitation is insufficient.\* Where no question as to the delivery of the policy is raised by the pleadings, it will be presumed that it was delivered by some one representing the power of the company to waive all conditions precedent,\* or else that the circumstances were such that, as against the insured and the beneficiary, the company had become estopped to deny its validity.\*

Prior negotiations are merged in the policy.\* Hence, the insured cannot show that the agent agreed before the policy was issued that some of its conditions need not be complied with.\*

There is a conflict of authority as to the power of an agent to waive the forfeitures occurring after the delivery of the policy. Some courts hold that he cannot do so without express authority,\* others that a provision in the policy that he shall have no such power is binding;\* and still others that he may do so\* even when the policy contains a provision to the contrary.\*

limit. Wheeler v. United States Casualty

mise not a waiver of previous forfeiture for Co. \[N. J. Law\] $9 A. 347. Condition provided that if personal property Insured was imnison. Lippmann v. Acta. Ins. Co., 120 Ga. 247, 4 S. E. 593. Burden is on plaintr to to be shown that insured told the agent it was incumbent. Hammel v. Insurance Co.,

- Ohio C. C. (N. S.) 380. That there was a chattel mortgage on the property insured. It

- Testimony of witness to prove Ilmta-

- of agents authority in commission ap-

- of Effective and binding as to all conditions or showing that insured knew of such limitation. Fire Assn. of Philadelphia v. Masterson \[Tex. Civ. App.\] $3 S. W. 49. A parol contract to insure a house occupied by negross 1s unnerforceable where the insured has actual notice that the agent has no authority to make such contracts, as where company had previously refused to take such risks on other hones belonging to plantiff. Hartford Fire Ins. Co. \[W. Va.\] $2. 94.

- E Ky. L. R. 1497, 78 S. W. 462; Virginia Fire & Marine Tas. Co. v. Richmond Mica Co., 102 V. 429, 46 S. E. 463. Must show that insured knew of want of authority. Nedley v. German Alliance Ins. Co. \[Vv. Va.\] $1 S. E. 101.

- Virginia Fire & Marine Tas. Co. v. Richmond Mica Co., 102 V. 429, 46 S. E. 463.

- Such limitation not conclusive. Aetna Ins. Co. v. Eastman \[Tex. Civ. App.\] $0 S. W. 455.

- Condition requiring first premium to be paid before contract takes effect. Penn Mut. Life Ins. Co. v. Norcross \[Ind.\] $2. N. E. 132.

- Penn Mut. Life Ins. Co. v. Norcross \[Nat.\] $2. N. E. 132.

- T. Instruction erroneous. Gillum & Co. v. Fire Asn? (Mo. App.\] $0 S. W. 283.

- S. As to keeping books, and iron safe clause. Gillum & Co. v. Fire Assn's \[Mo. App.\] $0 S. W. 283. Knowledge on the part of the sollecting agent that the insured does not intend to procure a safe in which to keep his books, does not constitute a waiver of the promissory condition therein. Run-

- Bell v. Ancher Fire Ins. Co. \[Iowa\] $01 N. W. 517. Statements of agents, relled on to show a waiver, must be made after the insurance and delivery of the policy. Otherwise merged

- therein. German Ins. Co. v. Allen \[Kan.\] $7 P. 529.

- Letter of local agent offering compro-

- ( When a company issues its policy and accepts and retains the premium without requiring an application by the insured, and without making any inquiry as to the condition of the property or the state of the title, and the insured has in fact an insurable interest, it will be conclusively presumed to have insured such interest, and to have waived all conditions in the policy in regard thereto.18 Under similar circumstances it will be held to have waived conditions against incumbrances.14 The contract is made before the policy is written, and its mere acceptance cannot be construed as a representation as to the title.18

The mere neglect of the insurer to declare its intention of insisting on a forfeiture in a policy does not of itself constitute a waiver thereof.19 An eighty per cent. average or co-insurance clause contained in the policy does not constitute a waiver of a forfeiture by reason of other insurance obtained without the insurer's permission, beyond the eighty per cent. therein mentioned.17

A condition precedent to the attaching of the risk, which must be performed before the policy takes effect with respect to the property to be insured is not waived by exacting additional proofs of loss after knowledge of its breach.18 Neither the fact that the company received notice and proofs of loss,19 nor that it required the insured to submit to an examination in regard to the fire,20 nor the acceptance and retention of the premium,21 nor that it refused to pay the loss because of a violation of a condition requiring the keeping of certain books,22 is a waiver of such condition. A provision that the company shall not be deemed to have waived any provision or condition of the policy or any forfeiture thereof by any act or requirement on its part relating to the appraisal, or the examination of the insured on each, is valid and binding on the insured.22

The subsequent acceptance of premiums waives a lapse of the policy for failure to pay them when due.24 A clause exempting the company from liability until the premium is paid may be waived by the insurer on its authorized agent.25 A provision that the policy shall not take effect until the first premium is actually paid is- ordinarily waived by delivery of the policy on receipt of a premium note.26 A general agent has authority to waive the immediate payment of the agent of condition of title and of existence of chattel mortgage, and his statement that policy was all right without indorsement is a waiver of indorsement required by its terms. Id.

13. Building on leased premises. Policy required that fact to be expressed herein, and recited sole ownership. Farmers' & Merchants' Ins. Co. v. Mickel \[Neb.\] 100 N. W. 130.

01. When the company, without a written application, and without any inquiry in regard to incumbrances or any statements or representations being made by the insured with reference thereto, issues a policy covering mortgaged property, and accepts and retains the premium which is paid and the policy accepted by the insured in good faith and without knowledge that the incumbrance in any way affects the contract, or that the company intends to insid on the mortgage clause, it will be held to have accepted the risk with the existing liens and incumbrances thereon, and to that extent to have waived the printed terms of the policy. Al-lesina v. London & L. & G. Ins. Co. \[Or.\] 78 P. 392.

01. Farmers' & Merchants' Ins. Co. v. Mickel \[Neb.\] 100 N. W. 130.

01. For breach of Iron-safe elasne. Run-

01. Nestler v. Germania's Fire Ins. Co., 91 N. Y. S. 29, aff. 89 N. Y. S. 782.

01. Condition in policy, insuring artaues sent by mail, that no risk should attest un-resolved letter of advice should be deposited in post office not waived by requiring proofs that notice that it had been deposited in mail box. Bance De Sonora v. Bankers' Mut.

01. 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 19, 12, 14, 17, 19, 18, 19, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 53, 54, 56, 57, 59, 61, preminum on delivery of the policy." The acts or silence of the officers of the corporation after it has constructive notice of his act in delivering it before such payment may constitute a waiver, at least where good faith requires a timely disaffirmance.\[28\] An agent cannot absolutely waive the payment of a part of the premium, thereby reducing the rate of insurance, without express authority.\[29\] An agreement between the applicant and the agent that the latter shall hold the policy until a certain date and then deliver it upon payment of half the premium in cash and the giving of the applicant's note for the balance is not a waiver of such a condition.\[30\] The acceptance by the insurer of a partial payment on account of a premium and the giving of credit for the unpaid balance is a waiver of the condition that a failure to pay the premium at or before the time mentioned in the policy will work a forfeiture thereof.\[31\] Statements of the agent that he had tried to get the insured to pay the premium, and had kept it up, hoping he would do so are admissible to show waiver of a forfeiture for nonpayment.\[32\]

Where the agent issuing the policy, having power to waive forfeitures, has knowledge of the fact that it has been forfeited, he is bound to return the unearned premium to the insured, and his failure to do so ordinarily constitutes a waiver of such forfeiture.\[33\] This rule does not apply where the premium is a lump sum and the policy is only forfeited as to one of the items which it covers, and there is no showing as to what portion thereof was paid for the insurance on such item,\[34\] nor where the insured leads the agent to believe that he will use such unearned premium in procuring a transfer or new insurance.\[85\] A retention by the company of unearned premiums after notice before the fire that the policy has become void under its terms may be evidence of waiver.\[38\]

The retention of premium notes by the company is not inconsistent with an intention to treat the policy as void for their nonpayment,\[37\] particularly where the policy provides that their possession by the insurer shall be conclusive evidence of their nonpayment, and that the insurance has ceased at the expiration

was 'not a waiver of stipulation that first

Co. IC. C. A.J 130 F. 874. Provisions that no premium should be paid while insured was

premlum after first should be deemed paid

in good health. Stringham v. Mutual Life

unless receipt should be given therefor and

Ins. Co., 44 Or. 447, 75 P. 822. Note taken

that the payment of any premium less than

by agent and company did not object when

full annual one should not continue policy

it ascertained the facts. Penn Mut. Life Ins.

longer than three or six months held not ap-

Co., v. Norcross \[Ind.\] 72 N. B. 132. In such

plicable, where it was alleged that on ma-

case it takes effect from the date of such ac-

turity of annual premium a certain part

ceptance. Lawrence v. Penn Mut. Life Ins.

thereor was paid and received on account.

Co. \[Lal.\] 36 S. 898.

and credit extended to insured for balance.

27. Peck v. Washington Life Ins. Co., 91

Id.

App. Div. 597, 87 N. Y. S. 210. The hus-

32. Made after insured's death. Thomas

band of a general agent, acting for her with

v. Northwestern Mut. Life Ins. Co., 142 Cal.

the knowledge of the company has the au-

79, 75 P. 665.

thority of a general agent. Id. The pro-

33, 84. Miller v. Insurance Co. \[Mo. App.\]

visions of a policy which the company has

caused to be signed and placed in the hands

of an agent for delivery may be waived by

the latter, if he has sufficient power in the

premises. Penn Mut. Life Ins. Co. v. Norcross \[Ind.\] 72 N. B. 132.

28. By making no objection to acceptance

of note for first premium waives provision

that premium must actually be paid before

policy takes effect. Penn Mut. Life Ins. Co., v. Norcross \[Ind.\] 72 N. E. 132.

29. Cannot reduce rate of insurance. Graham v. Mercantile Town Mut. Ins. Co. \[Mo. App.\] 84 B. W. 93.

01. Mutual Life Ins. Co. v. Lucas, 25 Ky.

L. R. 2052, 79 S. W. 219.

31. Battin v. Northwestern Mut. Life Ins.

4 Cur. Law. INSURANCE SS 17. 207 of the term for which the premium has been paid.88 Any attempt to collect such notes, however, is a waiver.89 Demands for the payment of premium notes after loss do not alone constitute a waiver of the breach of a condition of the policy whereby it is rendered void,90 but are material as showing the intention of the company.41

Waiver of conditions will not be implied from a retention of the policy by the agent until after the fire, at the request or with the acquiescence of the insured.42

The mere expression by the local soliciting agent of hope and confidence that the loss will be paid is no evidence of waiver,43 nor is the fact that he notified the adjuster of the loss, and that the latter came and investigated it.44

If notice be given to the company or its agent of the procuring of additional insurance, and no objection is made, the insurer will be estopped from insisting on a forfeiture because its- consent was not indorsed thereon, in accordance with the requirements of the policy.45

One holding a policy in a mutual fire insurance company may be estopped by his conduct from asserting as a defense to an action against him for premiums that he is not legally a member,46 and the association may also be estopped in the same manner from setting up the same defense to an action on the policy.47

(SS 16) \_D. Reinstatement.--\_On reinstatement of the policy, the insured is only bound to exercise good faith in his statement that his condition is not substantially different from what it was when the policy was issued.48 Where he is not afflicted with any other diseases than those mentioned in the original application, and those have not become so aggravated as to make his condition substantially different from what it then was, he is in good health within the meaning of the contract.48

SS 17. \_Contracts of reinsurance and concurrent insurance.59--\_Double insurance exists where there are two separate insurers liable for the same loss.51 The fact that one policy covers more property or wider risks than the other is immaterial.52

38. Roberta v. Aetna Life Ina. Co. \[III.1\] condition. Evidence held to sustain finding of waiver. Id.

01. May retain it as evidence of nonpayment but cannot retain and treat it as evlience of indebtedness. Union Cent. Life Ins.,

isneed in good faith and accepted and pre-Co. v. Spinks \[Ky.\] 83 S. W. 615. Attempting to enforce collection by suit and judgement. National Life Ins. Co. v. Reppond \[Tex. Clv. App.\] 81 S. W. 1012.

40. As to other insurance. Glasscock v.

Des Moines Ins. Co. \[Iowa\] 100 N. W. 603.

Breach of iron-safe clause requiring keeping and production of books. Rundell v. Anchor Fire Ins. Co. \[Iowa\] 101 N. W. 617.

41. Glasscock v. Des Moines Ins. Co. \[Iowa\] 100 N. W. 603.

01. Against other insurance. Young v. St. Paul Fire & Marine Ins. Co. \[S. C.\] 47 S. E.

01.

43, 44. Young v. St. Paul Fire & Marine Ins. Co. \[S. C.\] 47 S. E. 681.

45. Evidence sufficient to sustain finding of notices. Aetna Ins. Co. v. Eastman \[Tex. Clv. App.\] 80 S. W. 255. Company must, within a reasonable time, notify him whether or not it elects to stand on the strict terms of the contract. Glasscock v. Des Moines Ins. Co. \[Iowa\] 100 N. W. 503. A fallure to do so amounts to a waiver of such A prohibition against concurrent(tm) or additional insurance beyond a certain limit will be enforced.\[54\] The continuation of existing insurance, either by renewals of existing policies, or the substitution of others therefor, is not proving other insurance within the meaning of the policy.\[58\]

The term "total concurrent insurance" means that the total insurance operates at the same time and upon the same property as designated in the policy upon which the suit is brought.\[58\]

Valued policy laws do not prevent concurrent insurance to a larger amount than the designated value of the property.\[57\] Overvaluation of the property in taking out a policy providing for other insurance not to exceed a certain percentage of its value avoids the policy.\[58\] But this rule does not apply where the property is merchandise and hence constantly changing in value, and the amount to be paid is made to depend on the value of the goods at the time of their loss.\[59\] The eighty per cent average clause in the New York standard policy authorizes, by necessary implication, additional insurance on the property up to eighty per cent of its actual value, though additional insurance is forbidden.\[60\] Such clause also refers to and includes insurance already existing, provided the aggregate amount thereof does not exceed the eighty per cent limit specified.\[51\]

A provision that, in case other insurance shall be permitted and it shall be invalid, it shall be deemed an election to cancel the policy and that it shall be void, refers only to insurance procured after the issuance of the policy.\[58\]

Fire policies frequently contain a provision that the insurer shall not be liable for any greater proportion of the loss than the amount of the policy shall bear to the whole insurance, whether valid or invalid.\[63\] By statute in Iowa, no condition or stipulation fixing the amount of liability or recovery with reference to the pro rata with other insurance is valid except as to valid and collectible insurance, any agreement to the contrary notwithstanding. \[44\] The fact that a company, which has issued invalid insurance, regards its policy as valid or pays something on the loss to avoid litigation, is immaterial. \[66\]

\_Reinsurance. \[66\]--\_The right of a mutual insurance company to transfer risks and reinsure is generally recognized, unless prohibited by statute. \[67\] Statutes in some states restrict transfers and reinsurance and provide the methods by which it may be accomplished. \[68\]

An application clerk and counterman employed at the home office, having full authority to accept risks and cancel policies, has prima facie authority to sign an agreement waiving a provision in a contract of reinsurance, providing that such company shall not be liable on such risks to exceed the amount retained by the ceding company. \[69\]

SS 18. \_The loss, its extent and extent of liability therefor. \[60\]--_A_ contract of fire insurance is one of indemnity, and the insured is only entitled to be put in the same pecuniary condition that he would have been in had there been no fire. \[71\] Hence he is only entitled to recover the value of his insurable interest in the property at the time of the fire. \[72\] His damages are not to be diminished because he has collateral contracts or relations with third persons which relieve him wholly or in part from the loss, \[73\] but this rule does not operate to enlarge an insurable interest, the value of which fixes the amount to be paid under the policy. \[74\] The rights of the parties become fixed at the time of the loss and cannot be affected by subsequent agreements between the insured and other companies. \[76\] It is competent for the company and the insured to fix the measure of damages in case of loss. \[76\] A company fixing the amount of the risk and accepting a premium based thereon, after having an opportunity to fully examine the property, is estopped in case of a total loss, to question the value as agreed upon. \[77\]

**64.** Code, $ 1746. Gurnett v. Atlas Mut. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 543. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 543. \[Town\] 100 N. W. 544. \[Town\] 100 N. W. 545. \[Town\] 100 N. W. 546. \[Town\] 100 N. W. 547. \[Town\] 100 N. W. 548. \[Town\] 100 N. W. 549. \[Town\] 100 N. W. 540. \[Town\] 100 N. W. 540. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 543. \[Town\] 100 N. W. 544. \[Town\] 100 N. W. 545. \[Town\] 100 N. W. 546. \[Town\] 100 N. W. 547. \[Town\] 100 N. W. 548. \[Town\] 100 N. W. 549. \[Town\] 100 N. W. 540. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 543. \[Town\] 100 N. W. 544. \[Town\] 100 N. W. 545. \[Town\] 100 N. W. 546. \[Town\] 100 N. W. 547. \[Town\] 100 N. W. 548. \[Town\] 100 N. W. 549. \[Town\] 100 N. W. 540. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 543. \[Town\] 100 N. W. 544. \[Town\] 100 N. W. 545. \[Town\] 100 N. W. 546. \[Town\] 100 N. W. 547. \[Town\] 100 N. W. 548. \[Town\] 100 N. W. 549. \[Town\] 100 N. W. 540. \[Town\] 100 N. W. 542. \[Town\] 100 N. W. 543. \[Town\] 100 N. W. 543. \[Town\] 100 N. W. 544. \[Town\] 100 N. W. 545. \[Town\] 100 N. W. 546. \[Town\] 100 N. W. 547. \[Town\] 100 N. W. 548. \[Town\] 100 N. W In order that the negligence of the insured resulting in the destruction of the property may defeat a recovery, it must be willful or of such a degree as to amount to fraud.78 Where the policy requires him to use all reasonable efforts to save the property from threatened destruction, the company is responsible to him for loss sustained in consequence of his compliance therewith.79 Thus, it will be held liable for loss caused by a removal or preparation for removal, where, at the time the work is begun, it is in such imminent danger of destruction that a reasonably prudent man would take measures to protect it.80 The insured is only bound to use reasonable means to protect the property.81

\_Valued policies.--\_Valued policy laws in many states make the insurer liable for the total amount of insurance specified in the contract, in case of a total loss, notwithstanding any provision in the policy to the contrary.82 In such case, no proof of its value is necessary in an action on the policy.83 It may be shown, however, that personalty has been reduced by sales, or has depreciated in value.84 Such laws do not deprive the insurer of the right to defend on the ground that the fire was caused by the criminal conduct of the insured,85 or that the insurable value was fixed at too high a figure through his fraud.86 The insurable value under valued policy laws is fixed with reference to the particular policy in which it is written, and not with reference to other insurance which may be permitted.87 It is for the purpose of fixing the measure of damages, and does not prevent

78. Instructions approved. St. Paul Fire greater risk, but when value is fixed, and & Marine Ins. Co. v, Owens \[Kan.\] 77 P. 544. risk taken on given amount, that sum can- 79 Is a loss under Ga. Civ. Code 1895. 1 in fact more than three-fourths of the ac- 972.

01. Insurance Co. v. Leader \[Ga.\] 48 S. E. App.\] 81 S. W. 637. Makes policy a valued 972.

01. Such a course as a reasonably prudent man would have adopted under the circumstances. Requested Instruction properly re- \[Co. \[Mo. App.\] 80 S. W. 342. The company fused. Insurance Co. v. Leader \[Ga.\] 48 S. E. 972. Amendment to complaint alleging loss and damage by preparation for removal held not to set up new cause of action. Id. As to duty of insured to remove goods for their protection. Id.

01. West Virginia: Applles only to pollecs on reality \[Acts 1899, c. 23, p. 120\]. Ritchie County Bank v, Firemen's Ins. Co. \[W. Va.\] 47 B. E. 94.

Arkansas: Acts Gen. Assem. 1899, p. 112. No. 61, applies only to reality. Minneapolis: Fire & Marine Mut. Ins. Co. v. Fults \[Ark.\]

80 S. W. 676.

In Georgia all insurance companies must pay the full amount of the loss on property insured by them, not to exceed the amount of the policy, except that in the case of stocks of merchandise and other personality changing in quantity by the usual customs of trade, only the actual loss need be paid. This act does not violate \[Itl amement to\] U. S. Constitution \[Civ. Code 1895, $ 2110\]. Aetna Ins. Co. v. Brigham \[Ga.\] 48 S. E. 348. Nor is it unconstitutional because making arbitrary and unreasonable classification. Id.

Missouri: Rev. St. 1899, $ 797, providing that no company shall take a risk on property greater than three-fourths of its value, and, when taken, its value shall not be questioned in any proceeding, applies to both reality and personality. Howerton v. Iowa State Ins. Co., 105 Mc. App. 575, $ 0.8 V. 27. Its practical effect is to make a valued policy. Statute anions company from taking either party from showing that the property was worth more, if such fact becomes material.\[88\]

\_Employers' liability insurance.\[89\]--It is the duty of the employer to make the loss as small as possible so far as he reasonably can, though the insurer does not avail itself of its right under the policy to defend the suit.\[90\] If he in good faith and with reasonable prudence, compromises the claim, the company is bound to pay the loss actually sustained.\[91\] Such compromise is not conclusive as to the actual loss, but may be considered in determining it.\[92\] Where the company defends an -action for such injuries to an employee in accordance with the terms of the policy, and a judgment exceeding the full amount of the indemnity is recovered against the insured which he pays, the insurer is liable for the full amount of the policy with the costs of suit and interest from the date of the judgment.\[93\] The insurer is liable for interest thereon and costs and expenses incurred in defending suits which it should have defended or settled,\[94\] but it is not liable for costs incurred by the insured in defending its own liability for the injury on a contract with a carrier over whose line it operates,\[95\] nor for hospital expenses incurred in caring for the injured employe, to an extent increasing the total liability above the amount limited.\[96\]

**SS 19.**\_Notice, claim, and proof of loss.\[97\]--Provisions requiring notice and claim of loss are conditions precedent and must be complied with before a recovery can be had on the policy, unless they are waived.\[98\] The same is true in regard to the sworn statement required by the standard policies of some states.\[98\] Under the valued policy laws of some states, no proofs are necessary where the loss is total.\[1\] Notice of loss may be given through the mail at the risk of the insured.\[99\]

Where no time is specified, notice and proofs of loss must be furnished within a reasonable time.\[99\] Immediate notice means notice within a reasonable time under all the circumstances.\[99\] The period of sixty days from the date of the loss is a reasonable limitation.\[99\] The statutes of Indiana prohibit foreign insurance companies doing business in that state from requiring notice of loss to be given forth-with or within a less time than five days.\[99\]

**SS.** Does not prevent concurrent insurance **\[**1.** Hence, in such case the fact that they were made by mortgagee instead of mortgagee is Immediat. Hamburg-Bremen Fire **89.** See **2** Curr. L 521.** Inso, Vo. Ruddell \[Tex. Civ. App.\] 82 S. W. **90, 91, 92.** Southern R. News Co. v. Flodel. **826.**

**ity & Casualty Co. (Ky.) 83 S. W. #20.**

**93.** **Cudab's Packing Co. v. Amster-dam Casualty Co., 132 F. #23.**

**94.** Policy Imiting amount of recovery in case of death. Southern New Co. v. Flidelity **\[Fla.\] 37 S. #20.**

**& Casualty Co. (Ky.) 83 S. W. #20.**

**95.** News company had contract with railroad exempting latter from liability for injuries to employees. Southern News Co. v. Flidelity & Casualty Co. (Ky.) 83 S. W. #20.\*\*

**96.** Southern News Co. v. Flidelity & Casualty Co. (Ky.) 82 S. W. #20.\*\*

**97.** See **2** Curr. L 521.\*\* See Fraternal Mutual Benefit Associations, **5** Curr. L 1517, # 10.\*\*

**98.** Burglary insurance. Flidelity & Casualty Co. v. Sanders, **32** Ind. App. 448, **70 N.**

**E.** 167.\*\* Exchange Bank v. Thuringla Ins. Co. (Kop.) 83 S. W. #54; Munson v. Germann-American Fire Ins. Co. (V. V.) 47 S. E. #160; Missouri Pa. R. Co. v. Swertern Assur. Co., 135 F. #10.\*\*

**90.** Boruszewski v. Middlesex Mut Assur. Co. \[Mass.\] 72 N. E. #260.\*\*

**99.** Burglary insurance. Flidelity & Casualty Co. (Ky.) 83 S. W. #54; Munson v. Germann-American Fire Ins. Co. (V. V.) 47 S. E. #160; Missouri Pa. R. Co. v. Swertern Assur. Co., 135 F. #10.\*\*

**90.** Boruszewski v. Middlesex Mut Assur. Co. \[Mass.\] 72 N. E. #260.\*\*

**91.** Delays caused by the company will be deducted in reckoning the time within which proofs must be furnished."

A requirement that proofs of loss be furnished within a specified time does not work a forfeiture for noncompliance therewith in the absence of a provision to that effect, but at most only affects the maturity of the claim." This is true even where the policy provides that no action may be maintained thereon until after a full compliance with its conditions." They must, however, be made within such time as will enable the insured to bring his suit within the time limited by the policy." In Arkansas it is held that the rule does not apply where the furnishing of proofs within the specified time is made a condition precedent to suit."

A proof of loss may be made by an agent, in the absence of his principal, where he has knowledge of the facts therein stated," or by a receiver in bankruptcy of the insured, specially authorized to do so by the court appointing him, where the insured has absconded." No duty to give notice to the insurer rests upon the beneficiary until his right becomes vested by the death of the insured." In the absence of a provision to the contrary, proofs may be served on the agent who countersigned and issued the policy." Proofs of loss may also serve as notice of loss when sufficiently full to give the required information." The sufficiency of the notice depends upon the provisions of the contract or of the statutes." Proofs of death need not show any greater degree of proof that death was caused by accident than would be necessary to establish a prima facie case in a court of law." Loss of the policy does not excuse compliance with its requirements as to furnishing notice and proofs of loss."

Where the first proofs under an accident policy show injury and disability sufficiently to render the company liable, in rendering additional proofs it is only necessary to show a continuation of such disability during the life of the policy." The fact that the insured makes proof of disability and loss of time to a certain date only does not prevent him, in an action on the policy, from claiming for disability continuing after that time." Where the policy forfeits to the company are vold (Id.), and the Insured is only re-quired to use reasonable diligence in the premises (Id.).

13. Sims v. Union Assur. Soc., 129 F. 804.

01. German-American Ins. Co. v. Paul \[Ind. T.\] 83 S. W. 60. Evidence held to sustain verdict that delay was caused by previous delay of insurer in repliging to request to send blank forms. Robinson v. Northwestern Nat. Ins. Co. \[Minn.\] 100 N. W. 226.

01. Operates merely to postpone day of payment. St. Paul Fire & Marine Ins. Co. v. Owens \[Kan.\] 77 P. 544; Munson v. German-American Fire Ins. Co. \[W. Va.\] 47 S. E. 160.

01. Hartford Fire Ins. Co. v. Relative to furnish proofs with 60 days not a bar to action. Continental Fire Ins. Co. v. Whitaker \[Tenn.\] 78 S. W. 119. Same rule applies under Wris. standard policy \[Rev. St.\] 1898, SS 1941-1957\]. Welch v. Fire Ass'n of Philadelphia \[Vris.\] 83 N. W. 227.

01. Applies to notice and proofs of loss required by Florida standard policy, Hartford Fire Ins. Co. v. Redding \[Fla.\] 37 So. 62.

01. Hartford Fire Ins. Co. v. Redding \[Fla.\] 37 So. 62.

01. Where policy provides that they must be furnished within specified time, and that no action can be maintained "until after full compliance by the insured with all the foreglong conditions." Teutuation Ins. Co. v. Johnson \[Ark.\] 82 S. W. 840.

01. Pearlstine v. Westchester Fire Ins. Co. \[S. C.\] 49 S. E. 4.

01. Sims v. Union Assur. Soc., 129 F. 804.

01. Though insured bound to give notice of accident in order to secure benefits, the beneficiary needs only to give notice of death. Nax v. Travelers' Ins. Co., 130 F. 885.

01. Where policy provides that they must be served on company. Particularly true In case of foreign companies. Vesey v. Commercial Union Assur. Co. \[S. D.\] 101 N. W. 1074.

01. Hartford Fire Ins. Co. v. Redding \[Fla.\] 37 So. 62.

01. Proofs of loss held sufficient under W. Va. valued policy law. Ritchie County Bank v. Fireness Ins. Co. \[W. Va.\] 47 S. E. 84.

Prooks held substantial compliance with provision requiring them to state knowledge and belief of insured as to time and origin of fire. Hartford Fire Ins. Co. v. Redding \[Fla.\] 37 So. 62.

18. Aetna Life Ins. Co. v. Millward \[Ky.\] 82 S. W. 364.

01. Munson v. German-American Fire Ins. Co. \[W. Va.\] 47 S. E. 160.

01. Woodall v. Pacific Mut. Life Ins. Co. \[Tex. Cuv.\] 79 S. W. 109.

01. Proofs made under advice of physicalen that he would probably then be well. Pa 4 Cur. Law. INSUANCE SS 19.

any sum for which proofs are not made within a stipulated time, the insured cannot recover any greater amount than that claimed in such proofs.\[22\] A provision requiring a notice containing full particulars of the accident is complied with if such notice contains the best information the insured possesses, or that is available at the time.\[23\] A defense that no notice of the accident was given within the time limited by the policy, and a defense that no accident happened, are not inconsistent.\[24\]

Under an employer's liability policy covering any loss resulting from accident caused by plaintiff's teams and requiring immediate notice of any accident to be given to the insurer, the insured is bound to exercise ordinary diligence to acquire knowledge of accidents.\[25\] The knowledge of an employe who could not give the required notice cannot be imputed to the insured.\[26\] Failure to give such notice is not excused by the fact that the employer who knew of the accident did not know of the policy, and that the one who knew of the policy did not know of the accident.\[27\]

A condition in a policy of health insurance forfeiting all benefits thereunder unless the insured gives to the company notice of any sickness within a certain time after its commencement is valid.\[26\]

_Waiver.\[29\]_--Notice and proofs of loss\[30\] and delay in furnishing them may be waived by the insurer,\[81\] even when they are required by statue.\[82\] A waiver once made cannot be abrogated without the consent of the insured.\[83\]

cific Mut. Life Ins. Co. v. Branham \[Ind.\] not intend to insist on its statutory rights. App.\] 70 N. E. 174.

Verification of proofs made by telegram held 22. Travelers' Ins. Co. v. Thornton, 119

Waived. Nicholas v. Iowa Merchants' Mut. Ga. 455, 46 S. E. 678.

Inso. Co. \[Iowa\] 101 N. W. 115. Agreement

23. Notice sufficient. Root v. London

to settle loss if insured would "knock off"

Guarantee & Acc. Co., 92 App. Div. 578, 86

specified sum from his claim and acceptance N. Y. S. 1055. Proofs of death under accel

by adjuster of requested afflavidu held waiver. Exchange Bank v. Thuringia Ins. Co. 24. Western Travelers' Acc. Ass'n v. Tom-

\[Mo. App.\] 83 S. W. 534. There must be

some official act or declaration during the

25. Vovleventu &. Fidelity & Casualty

currency of the time from which the insured Co., 96 App. Div. 275, 89 N. Y. S. 292. A rule

requiring drivers to make a full report of all

acidents shows the exercise of such care.

Ld.

Evidence held to show waiver: Penn Mut.

Life Ins. Co. v. Torces \[Ind.\] 72 N. E. 132;

of the vehicle causing the accident nor that

of the employee in charge of insured's freight

depot. Could not, by withholding knowledge,

Jontification Ins. Co. v. Cummings \[Tex.\] 81

avoid policy. Woviewton v. Fidelity & Casualty

Vality Co., 96 App. Div. 275, 89 N. Y. S. 292.

27. Deer Trail Consol. Min. Co. v. Mary-

land Casualty Co. \[Vwash.\] 78 P. 138. Statements and conduct of agent eight months

after accident held not a waiver of a pro-

vision requiring immediate notice. Id.

28. Failure avoids policy, Whalen v.

Equitable Acc. Co. \[Me.\] 58 A. 1057. The

Maine statute relating to notice does not

apply to health insurance \[Rev. St. c. 49, 95\]. Id.

29. See 2 Curr. L. 623.

01. Queen Ins. Co. v. Straughan \[Kam.\] 78 P. 447. Offer of settlement after receipt of

paper purporting to show some statement of

loss, and fact that company did not claim for

over three months that it was without preju

diec to its right to proofs held to raise in-

ference from which jury might have found

wavier of formal proofs of loss, and hence

it was error not to submit question to jury.

Glazer v. Home Ins. Co., 90 N. Y. S. 426. By

any acts or conduct on the part of the com-

pany justifying the conclusion that it does

19.

any sum for which proofs are not made within a stipulated time, the insured cannot recover any greater amount than that claimed in such proofs.\[22\] A provision requiring a notice containing full particulars of the accident is complied with if such notice contains the best information the insured possesses, or that is available at the time.\[23\] A defense that no notice of the accident was given within the time limited by the policy, and a defense that no accident happened, are not inconsistent.\[24\]

Under an employer's liability policy covering any loss resulting from accident

caused by plaintiff's teams and requiring immediate notice of any accident to be

given to the insurer, the insured is bound to exercise ordinary diligence to acquire

knowledge of accidents.\[25\] The knowledge of an employe who could not give the

required notice cannot be imputed to the insured.\[26\] Failure to give such notice

is not excused by the fact that the employer who knew of the accident did not know of the policy, and that the one who knew of the policy did not know of the accident.\[27\]

A condition in a A distinct denial of liability, made by a company after the loss and within the time prescribed for furnishing proofs, upon other grounds than a failure to furnish them, is a waiver of proofs of loss\[34\]. The fact that denial of liability and a refusal to furnish blanks is made to one having no authority to receive payment is immaterial\[85\]. A denial of liability is also a waiver of a provision giving the insured a certain time after notice in which to pay the loss\[86\].

The mere fact that the company sends to the insured blank forms for proof of his claim after the expiration of the time within which proofs may be made under the terms of the policy does not constitute a waiver of such limitation, in the absence of knowledge by the company of all the facts\[87\].

Where the proofs of death are required to be made on blanks furnished by the insurer, the latter thereby assumes the obligation of furnishing them\[88\], and it is its duty to place such blanks in the hands of the beneficiary after proper request\[89\]. By statute in Missouri, on notice of loss, the company is required to furnish the insured blank forms for making proofs, and a failure to do so constitutes a waiver of proofs\[40\]. It has a reasonable time in which to do so, but must act reasonably and in good faith\[41\].

It is the duty of the insurer to notify the insured of defects in the proof of loss\[42\], and their retention for an unreasonable time without objection, constitutes a waiver thereof\[43\]. A local agent with authority to represent the company in mak ing contracts of insurance, collecting premiums and signing policies, may, in the absence of a provision in the policy to the contrary, waive proofs of loss, either in writing, or orally, or by acts constituting an estoppel.44 A provision requiring such waiver to be in writing is valid.45 A provision that no alterations or waivers shall bind the company unless by the written consent of an officer of the company is inoperative as to conditions to be performed after loss.46

Slight evidence has been held sufficient to show waiver.47 Evidence that the insurer's superintendent stated that the company would not pay the policy and would not furnish blanks because the premiums had not been paid,48 declarations of the company's supervisor of death claims relative to the grounds of its refusal to pay,49 and evidence that the adjuster agreed to settle the loss if the insured would "knock off" a certain sum from his claim,50 are admissible. So is an answer in a prior suit, in which defendant was nonsuited, pleading a failure of compliance with the arbitration clause.61

\_Examination under oath.--\_The insurance company has a right, when the policy so provides, to require an examination under oath of the insured, and his failure to appear for that purpose is a good defense to an action on the policy52 unless waived.63 Neither his agent54 nor his trustee in bankruptcy55 can take his place for this purpose. The privilege given to the company by the policy of examining the body of the insured must be exercised within a reasonable time,64 and application therefor must be made to some one authorized to grant such privilege.67

\_False swearing.--\_In dealing with the insurer, the insured must observe the utmost good faith, without which there can be no recovery.65 The unexplained presccepted an inventory of the property fur-
52\. Receiver in bankruptcy cannot take nished by the insured, and waived further proofs, is estopped from denying the sufficiency of proofs therefore sent it. Min-policy provides that the term "insured" shall incapalls Fire & Marine Mut. Jns. Co. v. Fultz \[Ark.\] 80 S. W. 576.

Footnote 53: The insured must be used to define the insured, and the insured must ence of false invoices in the proofs of loss avoids the policy for fraud, though enough goods, actually covered by it, are destroyed, to have warranted a recovery of the full amount of the insurance.\[59\] False swearing must be intentional and for the purpose of defrauding the insurer,\[60\] and must have a prejudicial or harmful result.\[61\] No part of the claim can be recovered though the false swearing is as to one item only.\[62\] Where the proofs of loss are made by defendant's agent, who inserts false statements therein after having been fully informed of the facts, the company cannot avoid liability on the ground of false swearing.\[63\]

SS 20. _Adjustment and arbitration.\[64\]_--The value of the property remaining after the fire must be ascertained in the manner provided by the policy.\[65\] Provisions looking to the ascertainment of the loss cannot be disregarded by the insured, and a sale of the damaged property by him which cuts off these rights avoids the policy.\[66\] It is no defense to a sale before appraisal that the object of the latter is to determine the value of the property, which is sufficiently shown by the sale itself.\[67\]

A provision making an appraisal a condition precedent to suit is valid and binding on the insured\[68\] unless waived.\[69\] Where no time is fixed within which it may be had, the right thereto must be exercised within a reasonable time under the circumstances.\[10\] Where the goods are deteriorating it is the duty of the insured to notify the insurer of the necessity for a prompt disposition of them.\[11\] The motive of the insurer in requiring an appraisal cannot be inquired into, when he has an absolute right to do so.\[12\] A denial of liability dispenses with the necessity for an appraisal,\[18\] but such denial must ordinarily occur before answering in a suit on the policy.\[14\] No arbitration is necessary where the loss under a valued policy is total,\[15\] or where there is no dispute as to the amount of the loss.\[18\] It is generally held that where arbitration is made a condition precedent to recovery in case of disagreement, it is incumbent on plaintiff to secure, or attempt to secure, such arbitration,\[17\] though there seems to be some conflict of authority in this regard.\[18\] The provisions in regard to an appraisal should receive a reasonable construction.\[19\] A stipulation for an appraisal other than that provided for in the policy depriving the insured of his right of action, is in derogation of common right, and will be strictly construed.\[80\] Any substantial departure therefrom will make the agreement in which it appears collateral with and independent of the policy, and will avoid the effect of the latter instrument.\[41\] There must be a fair and reasonable effort to make the appraisal successful.\[19\] If the insured or his appraiser, by acting in bad faith, prevents an appraisal, that fact will be a good defense to an action on the policy.\[83\] If a failure to arbitrate arises from the fault of the insurer, the insured is thereby relieved from compliance with the condition requiring it.\[84\] Though the arbitrator is not the agent of the party selecting him, yet the latter will be held responsible for any conduct on his part defeating an appraisal.\[85\] If both parties endeavor to prevent an appraisal, or to render abortive an agreement for one, it will cease to be a con dition precedent to suit.84 Neither arbitrator should endeavor to secure a prejudiced, incompetent, or dishonest person for umpire, or a person living at a distance, when competent parties can be found nearby.87 Prior service of an arbitrator in a similar capacity does not render him incompetent or invalidate an award in which he takes part, in the absence of a showing that he was prejudiced.88

Footnote 88: The author is grateful to the anonymous referee for his help.

Footnote 89: The author is grateful to the anonymous referee for his help.

Footnote 90: The author is grateful to the anonymous referee for his help.

Footnote 91: The author is grateful to the anonymous referee for his help.

Footnote 92: The author is grateful to the anonymous referee for his help.

Footnote 93: The author is grateful to the anonymous referee for his help.

Footnote 94: British Amerlica Assur, Co., V. Darragh

Footnote 95: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757.

Footnote 96: Award made by other appraiser and umpire. Eisenberg V. Stuyvesant Ins. Co., 87 N. Y. S. 463.

Footnote 97: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757. Where company and insured stated their disagreement in writing, and each selected an arbitrator, latter cannot contented that there was no dissagreement.

Footnote 98: Where has made honest effort to secure award and has failed. Fritz v. British Amerlica Assur, Co., 208 Pa. 268, 57 A. 573.

Footnote 90: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757.

Footnote 91: The author is grateful to the anonymous referee for his help.

Footnote 92: The author is grateful to the anonymous referee for his help.

Footnote 93: The author is grateful to the anonymous referee for his help.

Footnote 94: British Amerlica Assur, Co., V. Darragh

Footnote 95: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757.

Footnote 96: Award made by other appraiser and umpire. Eisenberg V. Stuyvesant Ins. Co., 87 N. Y. S. 463.

Footnote 97: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757. Where company and insured stated their disagreement in writing, and each selected an arbitrator, latter cannot contented that there was no dissagreement.

Footnote 98: Where has made honest effort to secure award and has failed. Fritz v. British Amerlica Assur, Co., 208 Pa. 268, 57 A. 573.

Footnote 90: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757.

Footnote 91: The author is grateful to the anonymous referee for his help.

Footnote 92: The author is grateful to the anonymous referee for his help.

Footnote 93: The author is grateful to the anonymous referee for his help.

Footnote 94: British Amerlica Assur, Co., V. Darragh

Footnote 95: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757.

Footnote 96: Award made by other appraiser and umpire. Eisenberg V. Stuyvesant Ins. Co., 87 N. Y. S. 463.

Footnote 97: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757.

Footnote 98: Award made by other appraiser and umpire. Eisenberg V. Stuyvesant Ins. Co., 87 N. Y. S. 463.

Footnote 97: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757. Where company and insured stated their disagreement in writing, and each selected an arbitrator, latter contented that there was no dissagreement.

Footnote 98: Where has made honest effort to secure award and has failed. Fritz v. British Amerlica Assur, Co., 208 Pa. 268, 57 A. 573.

Footnote 90: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757.

Footnote 91: The author is grateful to the anonymous referee for his help.

Footnote 92: The author is grateful to the anonymous referee for his help.

Footnote 93: The author is grateful to the anonymous referee for his help.

Footnote 94: British Amerlica Assur, Co., V. Darragh

Footnote 95: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757.

Footnote 96: Award made by other appraiser and umpire. Eisenberg V. Stuyvesant Ins. Co., 87 N. Y. S. 463.

Footnote 97: Carp V. Queen Ins. Co., 104 Mo. App., 502, 79 S. W. 757.

Footnote 97: Carp V. Queen Ins. Co., 4 Cur. Law. INSUANCE SS 32.

ants.\[5\] If the award is set aside, the court will retain jurisdiction, and grant full relief by prorating the loss among the several defendants.\[6\] The test in determining whether the award is in fact insufficient is whether it results in a substantial loss to plaintiff as compared with the actual value of the property destroyed.\[7\] Fraud or want of good faith on the part of an appraiser must be pleaded and proved.\[8\] An arbitrator cannot contradict an award which he has signed.\[9\] Where it is agreed that the award shall be in reference to the amount of loss and damage only, the insured should sue on the policy and not on the award.\[10\]

SS 21. _Option to pay loss or restore property._--The company must exercise its option to take the damaged goods at their appraised value within a reasonable time,\[11\] and a failure to do so is a waiver of the right.\[11\] It is, however, ordinarily entitled to the full period given it by the policy in which to determine whether it will take and replace any part or all of the damaged property.\[12\] Any material abridgment of this right avoids the policy,\[14\] notwithstanding the fact that there are several insurers who are only ratably liable, and may have divergent views.\[15\] Several insurers only ratably liable for the loss may severally elect to take advantage of clauses giving them the right to take and replace any part or all of the goods damaged.\[16\]

SS 22. _Payment of loss or benefits and adjustment of interests in proceeds.\[17\]_--The debt evidenced by the policy is extinguished by giving a check in payment therefor,\[18\] and the insurer is thereby estopped from denying that the payee was the real party in interest when it was executed.\[19\] A policy of insurance, after loss, is not a liquidated demand, and, if a defense is made thereto, is a proper subject of compromise.\[20\] Where the company denies all liability and pays to the insured a sum less than he claims in full settlement of the controversy, and the latter executes a release and surrenders the policy, he cannot maintain an action at law thereon on the ground that such release was obtained by fraud, without a return or tender of the amount received.\[21\] Where the settlement is pleaded in the answer, the reply must set up such payment or tender.\[22\] Payment by the company of sick benefits due under an accident policy is

5. **e.** Redner v. New York Fire Ins. Co. \[Minn.\] 95 N. W. 886. \[Minn.\] 95 N. W. 886. \[7\]. New York Mut, Sav. & Loan Ass'n v. Manchester Fire Assur. Co., 94 App. Div. 104, 87 N. Y. S. 1075. \[8\]. No evidence to show that conduct of defendants' appraiser was "contrary, aggressive, and not in good faith." Else Elsewhere v. Stuyvesant Ins. Co., 87 N. Y. S. 463. \[9\]. Van Wohlle v. Continental Fire Ins. Co., 70 N. Y. S. 82. \[10\]. Collateral agreement to arbitrate before disagreement. British-America Assur. Co. v. Darragn I.C. A.I. 128 F. 890. \[11\]. Phoenix Assur. Co. v. Stenson \[Tex. Civ. App.\] 79 S. W. 886. \[12\]. Phoenix Assur. Co. v. Stenson \[Tex. Civ. App.\] 78 N. W. 866. Failure of the company for three days after the fire to avail itself of a provision requiring the insured to separate the damaged from the undamaged property and giving the insurer an option to take such-goods at their appraised value, held a waiver, so that insured did not break the contract by disposing of them after that time. Id. \[13\]. Astrich v. German-American Ins. Co., 133 F. 477. \[14\]. Sale of goods within such time, over 69 Ohio St. 294, 70 N. E. 74.

no consideration for a release of liability for additional benefits subsequently accruing.23 Where there is no consideration, it is immaterial whether the release was fraudulently obtained by the insurer, or whether insured knew of its contents, or failed to exercise reasonable diligence in ascertaining its import.24 Equity has jurisdiction to set aside as fraudulent a settlement of a minor's claim made by his guardian by order of the probate court.25

Footnote 24: The author is grateful to the anonymous referee for his comments.

The widow of insured is not entitled to half the proceeds of a policy payable to his estate, where there is no surplus estate after the payment of his debts even including such proceeds.26 A wife joining her husband in the mortgaging of his realty, conveying away.her dovert therein, may require the proceeds of a life policy payable to his estate to be applied to the payment of the mortgage debts, in order that she may realize her dower interest therein.27 Under a life policy payable to insured's wife and children, the wife's interest survives to the children on her death before the insured, and his second wife is not entitled to any portion of the proceeds.28

Footnote 24: The author is grateful to the anonymous referee for his comments.

Statutes in some states provide that where there are no persons in existence to whom the insurance can be paid by the terms of the policy, it reverts to the estate of the insured.29

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

It is the duty of an insurance company having notice of an assignment of the proceeds of the policy, when summoned as garnishee in an action against the insured, to set it up as a defense, and, if it fails to do so, it cannot be relieved from liability to the assignee to the amount paid into court in such proceedings, to which the assignee was not a party.30

Footnote 26: The author is grateful to the anonymous referee for his comments.

In many states the proceeds of life policies are exempted from the payment of decedent's debts31 except by special contract or agreement.32 Such contract must be clearly and explicitly shown, a mere intention that the debt is to be paid therefrom being insufficient.33

Footnote 27: The author is grateful to the anonymous referee for his comments.

SS 28. _Subrogation and other secondary rights of insurer.34_--An insurance company which has indemnified the owner of property for loss incurred by him is entitled to all the means of indemnity which the latter had against the party primarily liable, to the extent of the payment,35 and it may therefore bring and control, in the name of the insured, a suit against the wrongdoer who has occasioned the loss.36 Under the code requiring suits to be brought in the name of the real party in interest, it must sue in its own name.37 If the liability covers the entire loss, the company's right of action becomes absolute at law.38 If it covers a part only, the insurer has an equitable interest merely, which it has and holds jointly with the insured, and they together may maintain an action for the 4 Cur. Law. INSURANCE SS 34A. 221 entire loss against the wrongdoer.\[89\] The insurer must recover thereon, if at all, in the right of the insured alone.\[40\] The company must have actually asserted its right of subrogation by bringing and controlling a suit in the name of the insured against the party causing the loss, before it can be vested with such an interest as a party as will render its admission evidence on the part of defendant.\[41\] The Maine statute giving to railroad companies the benefit of any insurance effected by the owner of any property damaged by fire communicated by locomotives applies only to those cases where the liability of the company is, by the act, made that of an insurer, and not to those where the fire is caused by its own negligence.\[42\] Hence, in the latter case an insurance company which has paid a policy upon the property injured, may maintain an action against the railroad in the name of the owner, to recover from it the amount so paid, not exceeding the difference between the value of the property and any sum already paid by the railroad to the owner.\[43\]

SS 24. \_Remedies and procedure. A. Rights of action and defenses and parties.\[44\] The court has jurisdiction to determine the rights of a nonresident mortgage in the proceeds of a policy issued by a foreign corporation authorized to do business in the state, where the plaintiff and his assignor are both residents of the state, though the property insured is located in a foreign country.\[45\] The office of an insurance agent representing several companies, maintained at his own expense, is the "place of doing business" of such of them as have no other place in such city for the transaction of their business.\[46\] Equity will enforce specific performance of a policy in the nature of a contract to insure or grant an annuity.\[47\] A policy creates a single cause of action though the amount of insurance is apportioned in part to personalty and in part to reality,\[48\] but it has been held that separate actions may be prosecuted under separate and distinct items.\[49\] An action on an account stated may be maintained on a claim under an insurance policy for loss by fire, where the amount due has been agreed upon by the parties.\[50\] In an action brought by a receiver in the name of the beneficiary for the benefit of the insured, neither he nor the widow can stand in any better position than the beneficiary.\[61\]

\_Process.--\_By statute in Missouri, process may be served on town mutual insurance companies by serving a certified copy of the petition and summons on the 40. Hence, no declaration of company con-cerning character of risk is admissible. Judd v. New York & T. S. S. Co., 130 F. 911. Can take nothing but the rights of the insured. Id. \[C. A.\] 128 F. T. 41. Judd v. New York & T. S. S. Co. \[C. C. A.\] 128 F. T. 41. 128 F. 41. 128 F. 41. 128 F. 41. 128 F. 41. 128 F. 41. 128 F. 41. 124. Rev. St. 1883, c. 51, SS 64, as amended by Pub. Laws 1895, c. 79, p. 77, makes rall-road company an insurer. Dyer v. Maine Cent. R. Co., Id. 58 A. 994. 13. Evidence sufficient to show negligence. Dyer v. Maine Cent. R. Co. \[Me.\] 58 A. 994. 14. See 2 Curr. L. 532. See Fraternal Mutual Benefit Associations, 3 Curr. L. 1518, 12. Lewis v. Guardan Pire & Life Assurance Co., 93 Ap. Div. 157, 87 N. Y. S. 525. 46. City court of Richmond county has jurisdiction in such case under Ga. Civ. Code, & 2145. Aetna Ins. Co. v. Brigham \[Gd.\] 48, E. 248. 15. Aetna Ins. Co. v. Brigham \[Gd.\] 48, E. 248. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 31. 34. 37. 39. 32. 34. 38. 39. 33. 35. 37. 39. 34. 38. 39. 35. 39. 36. 37. 38. 39. 38. 39. 39.

president or secretary or other chief officer in charge of its principal office.\[52\] Service may also be had in the manner prescribed for service on corporations generally.\[53\]

\_Parties.\[54\]--The party named in the policy as the insured is a necessary party to a suit therecn, even though plaintiff claims that he was named through mistake, and seeks a reformation of the policy in that particular.\[55\] Insured's widow is not a necessary party to any action on a life policy by his special administrator.\[56\] The assignee of a mortgage, to whom the policy is payable as his interest may appear, is a necessary party to a suit thereon, and, if he fails to join as a plaintiff, is properly made a defendant.\[57\] The persons insured and a mortgage to whom the policy is made payable as his interest may appear are properly made joint plaintiffs in an action thereon.\[58\] By statute in many states the person to whom a policy of life insurance is payable may sue thereon in his own name.\[59\] In such case, the right survives to the administrator of the beneficiary.\[60\] By statute in Missouri, an action may be maintained on a risk or policy by a member or stockholder of a company organized under the laws of that state, if the loss is not paid within two months after it becomes due.\[61\]

\_Limitation of actions.--\_There is a conflict of authority as to the validity of provisions limiting the time within which actions may be brought on the policy. Some courts hold them to be valid and binding on the insured and the beneficiaries\[62\] even when such limitation is shorter than that allowed by the general statute of limitations.\[63\] Others' hold that stipulations fixing a shorter limitation than that provided by such statutes are void.\[64\]

In South Dakota by statute, limitations on the time within which actions may be brought on the policy are void.\[64\]

52. Return showing service on secretary in charge of company's "usual business office" held insufficient. Thomassen v. Mercantile Town Mut. Ins. Co. \[Mo. App.\] 81 B. \[No. App.\] 81 B. \[No.

The limitation begins to run from the day of the fire.\[58\] The beneficiary is chargeable with knowledge of the terms of the policy in this regard.\[60\] Statutory exceptions to the running of limitations do not apply.\[97\] In the absence of a statute or provision of the contract to the contrary, an injunction restraining the bringing of the action, issued after such limitation has begun to run, will not stop the running of such limitation.\[88\] Plaintiff cannot contend that he is excused for failure to sue within the time limited because defendant had no agent within the state on whom service of process may be had where he calls a witness for the purpose of proving that he was the company's agent so as to bind it by his statements.\[60\]

Provisions requiring actions on policies to be brought within a certain time after loss are for the benefit of the insurer, and may be waived.\[70\] In the absence of an express waiver, some of the elements of an estoppel must exist.\[71\] Any conduct on the part of the company which is fairly calculated to induce a beneficiary to delay in bringing his action, and causes him to believe that the limitation will not be insisted upon, is sufficient to estop it from setting up such limitation as a defense.\[72\] It is not the duty of the insurer to inform the beneficiary of such limitation, and hence no waiver or estoppel can be predicated on his failure to do so.\[73\] Nor can it be predicated on the fact that, upon a demand after such limitation had run, the insurer gave another excuse for refusing payment.\[74\] Slight evidence is sufficient to show a waiver or estoppel.\[75\]

In order that a waiver by an agent may be valid, it must be shown that he had express or implied authority to make it.\[76\] The mere fact that he is authorized to receive proposals for insurance, and to countersign and deliver policies and collect premiums, does not show his authority to adjust losses or to waive proofs

65. Under policy providing that action must be brought within twelve months next authorized to adjust loss, and his action in after the fire. Allen v. Duteness County that.

334 INSUANCE SS 24B. 4 Cur. Law. of loss or the limitation on the time within which suits must be commenced on the policy.\[77\] His authority cannot, of course, be proved by his own declarations.\[78\] The Michigan statute requiring agents of foreign insurance companies to hold certificates of authority does not increase an agent's authority or make the company liable for his representations with reference thereto.\[79\] Some courts hold that if the company, by its acts, induces the beneficiary to delay bringing suit on the policy, the time of such delay is not to be counted as a part of the time limited therein for the bringing of the action.\[80\] Where the insurer requires an appraisement, it will be deemed to have thereby waived its right to enforce a provision that all actions on policies must be brought within a specified time after the loss occurs, until the appraisers have made an award, or the appraisement has been abandoned, unless the delay in the award or the abandonment is due to the conduct of the insured.\[81\] A provision that the award of appraisers shall not become due until the expiration of a certain time after it is made is valid, and an action therefor before such time is premature.\[82\] (SS 24) \_B. Practice and pleading.\[83\] Pleading.\[84\] The usual rules of pleading apply.\[84\] The complaint must allege the execution of the policy,\[85\] describe the property destroyed,\[86\] and must allege that plaintiff owned it at the time of the fire.\[87\] The performance or waiver of conditions precedent must be alleged,\[88\] but as

77. Agent held not to have had such authority. Barry & F. Lumber Co. v. Citizens\[8\] Assur. Co. \[Mo. App.\] 80 S. W. 259. Ins. Co. \[Micl.\] . .

- Cur. Law. INSUANCE SS 34B. 235

a rule this may be done generally." The complaint need not negative any of the provisions of the policy not made conditions precedent to the right to institute suit." The three-fourth value clause and provisions in regard to concurrent insurance are matters of defense, and need not be referred to in the petition where the loss is total."

The facts showing a waiver must be pleaded." It cannot be shown under an allegation of performance." It is sufficient if acts constituting an estoppel are pleaded without pleading the conclusion that one is estopped." An averment that after the death of the insured the defendant waived the provision that the policy should only apply to persons between certain ages, and ratified and confirmed the policy as a contract for a specified time, sets forth a new contract with the beneficiary, and must show a consideration therefor." The truth of answers in the application must be alleged where they are made a part of the policy, which provides for a forfeiture if they are not strictly true.

Where the pleading, by incorporating the policy, shows that it applies only in certain cases, it must aver facts bringing the case within its provisions." It is not necessary to attach to the complaint a copy of the application on which the life policy sued on was issued."

In an action on an accident policy, the complaint must allege that the disability resulted immediately from the injury," or that insured came to his death by violent, external and accidental means within the time covered by the policy."

A mixed bill for discovery and relief must state a good case for recovery or defense in order to obtain discovery."

62. Complaint insufficient to show waiver of notice and proofs of loss. Fidelity & Cas-

Everett-Ridley-Ragan Co. v. Traders' Ins.

C. \[Ga.\] 48 S. E. 18.

E. 167.

89. Where pleaded waiver only of clause

01. Under Mo. Rev. St. 1899, SS 634, general

in regard to filing proof of loss, and alleged allegation of performance is sufficient to

performance of all other conditions, could cover furnishing of notice and proofs of loss.

not prove waiver of limitation of time within

Farmers' Bank v. Manchester Assur. Co.

\[Mo. Appl.\] 86 W. 299. N. Y. Code Cliv.

Dutches County Mut. Ins. Co., 95 App. Div.

Proc. 1833. Guarino v. Firemen's Ins. Co., 86, 88 N. Y. S. 530.

44 Misc. 218, 88 N. Y. S. 1044. An allegation

94. Estoppel of company to claim, in action for return of premiums, that contract conditions required of him by the contract

was still in force, where it retained policy does not take the place of an allegation that

when plainful returned it. Anderson v. New

the disease from which he suffered necces-

York Life Ins. Co., 34 Wash, 616, 76 P. 109.

sitated his continuous confinement within

doors, and the services of a physiclan, within

United States Casanity Co. \[N. J. Law\] 57 A.

the conditions of a policy of health insurance.

ance. Bishop v. United States Casanity Co. \[N. J. Law\] 57

90. Conditions excusing insurer from payment or reducing principal sum insured are

matter of defense. Petition sufficient.

\[Ind.\] 72 N. E. 132.

Aetna Life Ins. Co. v. Milward \[Ky.\] 82 S.

W. 364. Farmers' Bank v. Manchester Assur.

No. L. 174.

Co. Mo. Appl.\] 80 S. W. 299.

92. Petition held to sufficiently allege facts

constituting waiver of forfeiture for nonpay-

ment of full amount of premium when due.

Batth v. Northwestern Mmt. Life Ins. Co.

\[C. C. A.\] 130 F. 874. An allegation that

defendant has, in its dealings - with the in-

sured, now deceased, treated the policy as In

force held insufficient. Id. Reply held to

sinflecently allege authority of agent to waive

condition against incumbrances. German-

American Ins. Co. v. Yeagley \[Ind.\] 71 N. E.

897. An amendment to show waiver Is prop-

relly disallowed where none of the des al-

lean Fire Ins. Co. \[W. Va.\] 47 S. E. 160.

In West Virginia the statute provides a short form of declaration on an insurance policy,2 and if the defense is a failure of the insured to comply with, or his violation of any clause, condition, or warranty, the defendant must file a statement specifying the particular one with respect to which such failure or violation occurred.' Such statement must be filed even though the warranty is a condition precedent to recovery.4 After it is filed, the burden of showing a compliance, if a condition precedent to recovery, is on plaintiff.\* Such statement is not a plea but only a specification, and is not open to demurrer for want of sufficiency.6

Facts showing a forfeiture must be pleaded.7 An allegation in the answer that no notice of loss was given is admitted by a reply pleading waiver and estoppl or matter to avoid the effect of failure to give it.8 An affladvir of defense charging false answers and representations in the application and letters must have a copy of such applications and letters attached.9

\_Practice.--\_Allowing the jury to view the premises,10 and allowing amendments,11 are matters largely in the discretion of the trial court. A motion for nonsuit on the ground that plaintiff has not complied with the conditions of the policy, made at the close of plaintiff's evidence, should not be granted since plaintiff may show waiver in reply.12

\_Variance.18--\_The usual rules as to variance apply.14

(SS 24) _C. Evidence, questions for jury, instructions.18 Burden of proof.--_ The burden is on plaintiff to prove every element necessary to establish liability on the part of the insurer.18 The burden is on him to show the value of the property destroyed.\[17\] In a suit on an accident policy, the burden is on plaintiff to show that the death of the insured was due to accidental causes.\[18\] The burden of proving the materiality of false representations is on the insurer.\[19\] The burden of ultimately proving the truth of representations contained in the application, which is made a part of the policy, is on the plaintiff.\[20\] They are, however, presumed to be true, in the absence of countervailing proof.\[21\] Hence, he need not, in the first instance, offer proof to support his allegations that such is the fact, but may do so in rebuttal after defendant has offered evidence tending to show misrepresentations.\[22\] But such presumption has no probative force in determining an issue of fact_as to-whether such representations were true.\[28\]

A company securing the right to open and close by filing an admission that plaintiff was entitled to recover unless defendant established one or more of its affirmative defenses has the burden of proving a breach so alleged.\[24\] The defendant has also been held to have the burden of showing that the property was idle longer than the period allowed by the policy,\[25\] the intentional and fraudulent exaggeration of the amount of the loss,\[26\] and that the insured had cancer at the time he applied for insurance.\[27\]

The law presumes against suicide.\[28\] Hence, the burden of proving it is on the insurer defending on that ground.\[29\] It may be shown by circumstantial as well as direct testimony.\[30\]

_Evidence._--Proofs of death are evidence against the beneficiary of facts therein contained only on the theory that they are admissions by him.\[31\] Where they are

208 Pa. 439, 57 A. 830. Where employer's Ihability policy exempted defendant from liability for injuries caused by subcontractor or his workman, insured must prove that asseur, Co. v. Stenson \[Tex. Civ. App.\] 79 S. Infures on which liability was based were not so caused. Tolmle v. Fidelity & Casualty Co., 95 App. Div. 352, 88 N. Y. S. T. Invent season, contrary to the terms of the racetor, held that judgment roll in action against city for same injury, of which defendant had notice and which it had opportunity to defend, was conclusive against it

206 Goldstein v. St. Paul Fire & Marine Ins. Co. \[Low\] 99 N. W. 694.

127. That a sore on the insured's tongue at the time of the application was a cancer or freedom from negligence, and the amount of that he believed it to be such. Evidence damages recovered, but that it did not estab-

held not to show that insured had cancer 1ish whether injury was due to act of plain-

or that he had reason to believe that cancer 1iff or of subcontractor. Id.

17. Howreton v. Iowa State Ins. Co., 105 Mo. App. 575, 80 S. W. 27; Tabubit v. American Ins. Co., 185 Mass. 419, 70 N. E. 430.

01. To show that it was not due to sulde. Hill v. Central Acc. Ins. Co. \[Pa.\] 59 A. 262. That fall resulting In death was accidental. Taylor v. General Acc. Assur. Corp., 208 Pa. 439, 57 A. 830.

01. Brignac v. Pacific Mut. Life Ins. Co., 112 L2, 574, 36 So. 595.

01. Vincent v. Mutual Reserve Fund Life Asseur (Conn.) 58 A. 963. Burden is on him to show it as one by which are denied. Feil v. John Hancock Mut. Life Ins. Co., 76 Conn. 494, 57 A. 176. Unless their truth is established by a fair preponderance of all the evidence, defendant is entitled to judgment. Evidence held to show breach of warranty as to occupation as matter of law. Id.

01. Vincent v. Mutual Reserve Fund Life Ass'n \[Conn.\] 58 A. 963.

01. Introduction of policy, certificate of death, and proofs of death and loss, make prima facle case. Vincent v. Mutual Reserve Fund Life Asseur \[Conn.\] 58 A. 963.

01. Insructions erroneous. Vincent v. Mutual Reserve Fund Life Asseur \[Conn.\] 58 A. 963.

01. By sale of goods after fire. Phoenix says. So. v. Stenson \[Tex. Civ. App.\] 79 S. Infures on which liability was based were not so caused. Tolmle v. Fidelity & Casualty Co., 95 App. Div. 352, 88 N. Y. S. T. Invent season, contrary to the terms of the policy. Barker v. Citizens' Mut. Fire Ins. Co. \[Mich.\] 99 N. W. 866.

01. Goldstein v. St. Paul Fire & Marine Ins. Co. \[Low\] 99 N. W. 694.

01. That a sore on the insured's tongue at the time of the application was a cancer or that he believed it to be such. Evidence damages recovered, but that it did not estab-

hold not to show that insured had cancer or that he had reason to believe that cancer on tongue was a cancer. Peck v. Washington-

17. Howreton v. Iowa State Ins. Co., 105 Mo. App. 575, 80 S. W. 27; Tabubit v. American Ins. Co., 185 Mass. 419, 70 N. E. 430.

01. Where death explainable on another theory, it will be adopted. Ross-Lewin v. cide. Hill v. Central Acc. Ins not verified by plaintiff, it is incumbent on the company offering them to prove the circumstances making them admissible against him as an admission.\[32\] There is no presumption that plaintiff furnished them.\[58\] There is a conflict of authority as to the admissibility of affidavits of others than the beneficiary constituting a part of the proofs of death.\[4\] Proofs of death, though not made by 'plaintiffs, are admissible against them when they are made on behalf of all the beneficiaries, and no other proofs having been made, the right to recover depends on them.\[85\] A provision in a life policy that the proofs shall be evidence of the facts therein stated in behalf of, but not against, the company, is valid.\[86\] Proofs of loss under a fire policy are not evidence for the plaintiff and cannot be read to the jury.\[9\] They are for the court in order that it may determine, as a preliminary matter, whether there has been a sufficient compliance with a condition precedent to the institution of the action.\[38\] Before a copy of the proofs can be introduced by the insured, he must give notice to the company to produce the original.\[9\] In an action on an accident policy, the verdict of the coroner's jury is not admissible to show the cause of death.\[40\]

Parol evidence of the contents of an inventory destroyed with the goods is admissible.\[41\] The insured may testify that he was the owner of the insured building,\[42\] and as to the nature of the fixtures insured and their value at the time of the fire.\[48\] Declarations of the assignor of a life policy as to his age, made after the assignment, are not admissible against the assignee in an action on the policy.\[44\] Expressions of the agent's opinions as to the rights of the parties, made after the policy was issued, are inadmissible.\[45\] Statements of the insured made after the time for payment of premiums that he intended to keep up the policy are inadmissible for any purpose,\[46\] and his declarations, made after the policy is delivered, to the effect that he has dropped it, are inadmissible when offered with reference to the invalidity of the policy on account of the first premium not having been paid in full on delivery.\[47\] In an action on a life policy by an assignee thereof, declarations of the insured made after the assignment, tending to show an intention to commit suicide, are not admissible to prove that fact, when so separated from the act by lapse of time as not to be a part of the res gestae.\[48\]

\[\] **32, 38.** Barnett v. Prudential Ins. Co., **91** **37, 88.** Rosenberg v. Fireman's Fund Ins. Co. \[Pa.\] 58 A. 671. **39.** Underwriters' Fire Ass'n v. Henry Itex. Civ. App.J '9 S, W. 1072. **40.** Atena Life Ins. Co. v. Milward \[Ky.\] interest. To show breach of warranty. Not 82 S, W. 864. Also, see Inguest of Death, 4 privileged. Carmichael v. John Hancock **41** **32.** Refusal to admit verdict Mut. Life Ins. Co., 90 N. Y. S, 1033. Affidavits of others than the beneficiary constituing proofs of death are inadmissible except for purposes of impeachment. American Benev. Ass'n v. Stough \[Ky.\] 83 S, W. 126. **35.** Fey v. I. O. O., F. Mut. Life Ins. Soc. \[Wis.\] 88 N. V. 206. **42.** Thoenarls Ins. Co. v. McAtee \[Ind.\] 88 N. V. 206. **43.** Thoenarls Ins. Co., 90.\*\* Thoenarls Ins. Co., 91.\*\* Thoenarls Ins. Co., 91.\*\* Thoenarls Ins. Co., 92.\*\* Thoenarls Ins. Co., 93.\*\* Thoenarls Ins. Co., 94.\*\* Thoenarls Ins. Co., 95.\*\* Thoenarls Ins. Co., 96.\*\* Thoenarls Ins. Co., 97.\*\* Thoenarls Ins. Co., 98.\*\* Thoenarls Ins. Co., 99.\*\* Thoenarls Ins. Co., 99.

4 Cur. Law. INSUANCE SS 24C. 229

The general rules as to the admissibility of evidence apply." Proof that the insured did not sign the application on a particular occasion is insufficient to show that he never signed it." The fact that the verdict is less than the amount claimed and the face of the policy does not establish the fact of fraudulent overvaluation as a matter of law." The evidence as to loss need not be conclusive in character or mathematical in certainty, but only the best obtainable under the circumstances."

Where a 'rider was attached to a policy permitting a mill insured thereby to

**Evidence sufficient: To authorize verdict**

**for plaintiff** in action on fire policy. Aetna

**Ins. Co. v. Brigham \[Go.\] 48 S. E. 348; German-American Ins. Co. v. Yeagley \[Ind.\] 71 N. E. 897; Wells Vpho Co. v. Tanners' Mun.**

\*\*W. E. 894. 118. 118.

remain idle during the "winter season" it will be presumed, in the absence of evidence to the contrary, that the company understood the local meaning of that term.\[88\]

Where plaintiff introduces the policy on the back of which is a copy of the application purporting to be signed by insured, and in the claim of loss herself states that it was so signed, she is thereby estopped to introduce proof that he never signed it, for the purpose of avoiding the effect of a breach of warranty.\[54\] Allowing the jury to take with them, to assist them in reviewing and considering the evidence, a statement, prepared by plaintiff's counsel, of the items of loss claimed, the contents of which has been given in argument without objection, is in the discretion of the court.\[88\]

A custom cannot be shown to contradict the plain terms of the contract.\[89\] Where fraud in falsely overstating the amount of the loss is alleged as a defense, evidence of plaintiff's financial condition at the time when the merchandise was in his possession is admissible.\[97\] A postal registry receipt signed "Underwriters' Fire Association," with a name signed underneath, is admissible to show receipt of a letter by such company on proper proof of the authority of the signer, notwithstanding its full corporate name is not signed thereto.\[88\]

_Questions for the jury.\[59\]_--Whether the insured was in sound health when the policy was issued,\[90\] whether answers to questions in the application were made by the insured or the company's medical examiner,\[61\] the materiality of representations,\[82\] whether the insured used liquor to excess within the meaning of the application,\[90\] the sufficiency of a notice required by an accident policy,\[64\] whether it was given within a reasonable time,\[95\] whether the delay in giving it has been waived,\[96\] whether delays in furnishing blanks were unreasonable and prevented the beneficiary from making proofs of death within the time limited by the policy,\[97\] what constitutes unnecessary exposure to obvious danger,\[98\] the cause of insured's death,\[99\] whether or not a person was the agent of the company as between it and the insured

53. Notwithstanding fact that home office was not there and that insurance was issued thanksers' Life Ins. Co. v. Miller \[Md.\] 59 A. through broker. Barker v. Citizens' Mut. Fire Ins. Co. \[Mich.\] 99 N. W. 866. Evidence sufficient to raise presumption as to meaning of term "winter season" in policy, and that contract was made in reference to usage in regard to term. Id.

01. Berry v. Metropolitan Life Ins. Co., 43 Misc. 670, 88 N. Y. S. 140.

01. Rickeman v. Williamsburg City Fire Ins. Co. \[Wis.\] 98 N. W. 960.

01. Substituting mere notice of loss for sworn statement required by policy, and making company liability within 60 days after it is given. Bornszewski v. Middlesex Mut. Assur. Co. \[Mass.\] 72 N. E. 250.

01. May show that he was in pressing need of money, and was compelled to overdraw bank account when he claimed to have had goods, which were readily convertible into money. Rickeman v. Williamsburg City Fire Ins. Co. \[Wis.\] 98 N. W. 960.

01. Underwriters' Fire Ass'n v. Henry \[Tex. Civ. App.\] 79 N. W. 1072.

01. See 2 Curr. L. 544.

01. Emerson v. Metropolitan Life Ins. Co., 185 Mass. 316, 70 N. E. 200.

01. As to health, on conflicting evidence. Price v. Washington Life Ins. Co. \[Minn.\] 99 N. W. 810.

01. Unless materiality is palpable and manifest. Question of materiality erroneous.

01. Notwithstanding fact that home office was used buthmitted to jury in view of evidence. Bankers' Life Ins. Co. v. Miller \[Md.\] 59 A.

01. Moore v. Prudential Ins. Co., 92 App. Div. 155, 87 N. Y. S. 368.

01. Where beneficiary had no knowledge of policy until she found it two months after insured's death, when notice was immediately given. Nax v. Travelers' Ins. Co., 130 P. 885.

01. May be question of law in determining sufficiency of pleading as against demurrer. Flidelity & Casualty Co., V. Sanders, 32 Ind. App. 448, 70 N. E. 167.

01. Where company demanded further proofs and did not object to that furnished. Nax v. Travelers' Ins. Co., 130 F. 895.

01. Proofs required to be made on such banks. Robinson v. Northwestern Nat. Ins. Co. \[Minn.\] 100 N. W. 226.

01. Taking into consideration all the circumstances. Unnecessary or negligent excurances to obvious danger. Preferred Acc. Ins. Co. v. Mur \[C. C. A.\] 126 F. 926.

01. Where the evidence is circumstantidi and admits of more than one reasonable conclusion. American Benev. Ass'n v. Stough \[Ky.\] 83 S. W. 126. In an action on an accident policy, where there is evidence that death resulted from external and violent means, and the theories as to how it occurred are conflicting. Hill v. Central Acc. Ins. Co. \[Pa.\] 59 A. 262.

4 Cur. Law. INSURANCE SS 24C. 231 in relation to the policy such on,76 whether title passed by a verbal sale of goods so as to work a forfeiture for any change of ownership,71 what is material to the risk,72 whether plaintiff fraudulently overvalued the goods destroyed,73 whether the removal of the debris was done for the purpose of destroying evidence,74 whether plaintiff feloniously caused the fire,75 whether he complied with provisions permitting examination of the property, and his examination under oath,76 and the responsibility for delay in, or abandonment of, an appraisal,77 are ordinarily questions for the jury. Waiver,78 and whether insured ratified the action of the agent of the mortgage in surrendering the policy for cancellation,79 are questions of mixed law and fact. It is unnecessary to submit to the jury the question of plaintiff's compliance with conditions where there is no evidence of his failure to do so.80

\_Instructions.81--\_The usual rules as to instructions apply.82

70. On conflicting evidence. Lewis v., lespite Home Tp. Mut. Fire Ins. Co. v. PraGuardian Fire & Life Assnr. Co., 93 App. Div., 155 Ill. App. 123. Instruction that 157, 87 N. Y. S. 525.

01. Richardson v. Insurance Co. of North

coroneous and also prejudicial because the American \[N. C.\] 48 S. E. 733.

72. Except in such clear cases as can be

changed so as to make only first premium

determined by the court as a matter of law.

Hanna & Co. v. Orient Ins. Co. \[Mo. App.\]

as v. Northwestern Mut. Life Ins. Co., 142

82 S. W. 1115.

73. On conflicting evidence. Goldstein v.,

T. Capv. Queen Ins. Co., 104 Mo. App.

84. Paul Fire & Marine Ins. Co., 107 19 S. W. 157. Field that instruction

N. W. 696; Rosenberg v. Fireman's Fund

should have been given submitting issue as

Ina. Co. \[Pa.\] 58 A. 671.

74. Under facts and circumstances show-

ing opportunities given defendant to examine it, length of time it had been kept.

V. 27. Directing verdict for plaintiff in

and explanations given why it was removed.

Instructions approved. Rickenman v., Wili-

liability of company for commissions on ap-

liamship City Fire Ins. Co. \[Vis.\] 98 N. W. 960.

75, 76. Rosenberg v. Fireman's Fund Ins.

Instructions appeared: As to weight of

Co. \[Pa.\] 58 A. 671.

77. Question as to responsibility for de-

layer or abandonment of appraisal for jury.

telling it. Morrow v. National Massonio

Yritz v. British America Assur. Co., 208 Pa.

Acc. Ass"n \[Iowa\] 101 N. W. 468. As to

268, 57 A. 57. Evidence held to warrant

cause of death in suit on accident policy.

submission to jury of question whether fall-

I. As to continuing and total loss of busi-

ure to arbitrate was fault of company or of

ness not inconsistent. Pacific Mut. Life Ins.

Insured. Carp v. Queen Ins. Co., 104 Mo.

Co. v. Branham \[Ind. App.\] 70 N. E. 174.

App. 502, 73 S. W. 757.

As to fraudulent exaggeration of amount of

78. A question of intention, and a fact to

loss. Goldstein v. St. Paul Fire & Marine

be determined by the jury. Each case must

Ins. Co. \[Iowa\] 99 N. W. 696. As to fraud

depend on its peculiar facts. Exchange Bank

v. Thuringla Ins. Co. \[Mo. App.\] 83 S. W. 83. As to own-

534. Where there is sufficient evidence to

v. Pearling v. Westechuster Fire Ins.

warrant a finding of wavier, question is for

the jury. Limitation of time for commen-

Acta Ins. Co. v. Fitze \[Tex. Civ. App.\] 78

cing action. Fritz v. British America Assur. Co., 208 Pa. 268, 57 A. 673.

79. Decision of Illinois appellate court

on such question conclusive on supreme court. Hartford Fire Ins. Co. v. Peterson,

203 Ill. 112, 70 N. E. 157.

80. W. Woodall v. Pacific Mut. Life Ins. Co.

\[Tex. Civ. App.\] 79 S. W. 1090.

81. See 2 Cur. L. 545.

01. Instructions erroneous: As to liability on partnership note given for premiums

on policies on lives of partners. White v. McPeek, 185 Mass. 451, 70 N. E. 468. As to

when policy went into effect. An instruction that a policy of insurance was entered

into by the secretary's acceptance of the application and membership fee is erroneous

in not touching upon the authority of the

secretary which was a point in dispute. Gil-

19.

(SS 24) _D. Verdict, findings, judgment, costs, and fees._"--A finding that a clause has been waived eliminates it from the policy."44 Where the petition does not seek a return of the premiums, it is not error to refuse to render judgment therefor."45

Interest will be allowed on premiums paid under a void policy only from the date of the demand for their repayment."46

_Costs and penalties._--In an action on a life policy by an assignee of the insured, the latter's administrator, brought in by interleader at the instance of the company, should not be personally taxed with costs, though unsuccessful."47 By statute in Kansas, the court in rendering judgment against insurance companies in certain cases may allow the plaintiff a reasonable attorney's fee, to be recovered as a part of the costs."48 The amount to be recovered is not determinable by a jury."49 In Florida the plaintiff may recover attorney's fees in actions on fire and life insurance policies and have the same included in the judgment."49 By statute in Tennessee, insurance companies refusing in bad faith to promptly pay a loss, and policy holders bringing suit thereon in bad faith, are made liable to a penalty as damages."49

(SS 24) _E. Enforcement of judgment._"49

PROXIMATE CAUSE IN ACCIDENT INSURANCE.

\[SPECIAL ARTICLE BT GEO. F. Lonsendorf.\]

The distinction between an accident which is the "sole and proximate cause" of death and a bodily or physical "condition" contributing thereto or a "secondary or predisposing" cause is difficult in its application to the facts rather than in formulation of doctrine. The words themselves express the distinction as well perhaps as it can be defined though definitions of them are numerous. Efficiency49

loss of consciousness, or bad spells held harmless in view of finding that he was not subject to such disabilities. Emerson v. Mertropolitan Life Ins. Co., 185 Mass. 316, 70 N. E. 200. In action on accident policy charge to find for plaintiff he had compliant functions, that it was valid \[Burns' Rev. all the "conditions and agreements," where policy required compliance with the "agreements as conditions," held not misleading, where all agreements were made conditions precedent. Woodall v. Pacific Mut. Life Ins. Co. \[Tex. Civ. App.\] 75 B. V. 1090.

Submission of interpretations Interrogrogators seeking finding as to whether goods were placed in stock at place to which he had removed held not objectionable as equivalent to general finding on issue. Goldstein v. St. Paul Fire & Marine Ins. Co. \[Iowa\] 99 N. W. 598. Held proper to refuse to submit to jury interrogatories as to size of boxes in which goods were shipped, and weight of goods, etc., where such facts had only remote bearing on issues. Id. Question submitted to jury as to whether insured committed suicide held not well framed. Fey v. I. O. O. F. Mut. Life Ins. Soc. \[Wis.\] 98 N. W. 206. Special interrogatories in suit on accident policy bearing on cause of death held objectionable. Morrow v. National Masonic. Acc. Ass'n \[Iowa\] 101 N. W. 468.

SS3. See & Curr. L. 546. See Fraternal Mutual Benefit Associations, 3 Curr. L. 1518, 12.

& Hatana & Co. v. Orient Ins. Co. \[JMo. App.\] 82 S. W. 1115.

SS5. Beneficary had no Insurable interest. Wilton v. New York Life Ins. Co. \[Tex. Civ. App.\] 75 B. V. 402.

& St. Paid by assignee of vold policy under belief, induced by defendant's false representations, that it was valid \[Burns' Rev. Soc. Ind. 1901, $ 7045\]. American Mut. Life Ins. Co., v. Bertram \[Ind.\] 70 N. E. 258.

& St. P. von Schuchnemann v. Heinrich, 83 App. Div. 78, 87 N. Y. S. 673.

& St. Gen. St. 1901, $ 3410, Is constitutional.

Alliance Co-operative Ins. Co. v. Corbett \[Kan.\] 77 P. 108; German Ins. Co. v. Allen \[Kan.\] 77 P. 529.

& St. Recovery limited to reimbursement for necessary expense, and taxable as costs. Not a penalty. Alliance Co-operative Ins. Co. v. Corbett \[Kan.\] 77 P. 108.

& Co. v. Corbett \[Kan.\] 77 P. 108.

& St. P. Aot June 3, 1893, 4173, p. 101, held constitutional. Hartford Fire Ins. Co. v. Redding \[Fla.\] 37 S. 62; L'EnEngle v. Scottish Union & Nat. Fire Ins. Co. \[Fla.\] 37 S. 462.

& Act not repealed by Act May 31, 1893, c.

& St. P. A. Hartford Fire Ins. Co. v. Redding \[Fla.\] 37 S. 62; L'Engle v. Scottish Union & Nat. Fire Ins. Co. \[Fla.\] 37 S. 462.

& St. P. A. Hartford Fire

& St. P. A.

4 Cur. Law. INSURANCE \[Special Article\]. 233

and not relation in time or place**34** is the test of causal proximity. A " predisposing cause" would seem to fall within the class of causes which while they do not owe their origin to the accident do owe their efficiency to its impulse.**45** A "secondary cause" may be secondary in origin or its causal efficiency may be secondary and in that sense it would cover predisposing cause. The physical or bodily "condition" of insured is his state or situation as regards the cause. Out of the condition the cause may generate a secondary cause, but the condition is not any of the degrees of cause.\*\*46 In their application to accident insurance the difference between proximate and remote cause may be compared by analogy to the difference between accident and incident,\*\*47 the meaning of "accident" being an important question to be first determined.**48** It is a question for the jury what was the proximate cause.**49** The burden of proof of accidental cause is on the plaintiff but he is aided in making his prima facie case by certain presumptions.**41** In applying stipulations and terms designed to limit the risk to accidental causes, "the tendency of the courts under the settled rules of construction applicable to insurance contracts is to interpret the clause in a manner favorable to the insured, and where the accident can be considered as the proximate cause of death although disease may have been present as a secondary cause,**42** or where death is the reasonable and natural consequence of the injury although disease may have supervened,**43** the policy is not avoided unless the exception plainly includes such case.**45** To do so, "the intervening cause **46** must be a new and independent cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable result of the original accidental injury, and produces a different result that could not reasonably be anticipated. It may not be a mere effect of that injury, produced by it, and dependent upon it for both its existence and its effect.**49** Liability

St. Rep. 808, note; Lynn Gas & Elec. Co. v. Meriden Fire Ins. Co., 158 Mass. 570, 20 L. I. I. 297.

**94**. Not necessarily the nearest cause in 7 Am. Rep. 410. Meaning of word "accident" time or place. Freeman v. Merentistu Mt., see note 30 L. R. A. 206, and note 54 Am. Acc. Assn., 156 Mass. 251, 17 L. R. A. 753.

**95**. See Travelers' Ins. Co. v. Melick, 65

**96**. In Jarmagin v. Travlers' Protective "Orosen", "Munufactures" Acc. Ins. Co. v. written on one who was killed by assail- "Dorgan, 85 P. 945. Recurrence of disease by ants against whom arresting officers failed to protect him: "The shots for "secondary" or "predisposing" causes may of course be avoided by stipulation but it must clearly so intend. Thus insurance against injury by accident which is the "sole and direct cause," excepting certain diseases causing death "directly or jointly" with the accidental injury, protects one who died under operation to relieve an excepted disease, hernia, caused directly by accident." He was not, however, protected under similar circumstances by a policy which excluded death from "secondary" causes." There is a class of cases wherein the exception of death "accelerated or promoted" by disease excludes recovery if the disease contributed with an otherwise nonfatal accident to cause death."

Reducing the cases to classes, it appears that as regards proximate and remote causes the following general conclusions may be reached :

_Disease which owes its existence to the injury or accident is not a cause."_

_A disease causing accident which in turn causes death is not always the proximate cause._ The accident may be.10 The cases may perhaps be reconciled by applying the test--did the accident operating after the disease produce a different

death where tetanus had set in with aber-

27 L. R. A. 629. Western Commercial Trav-

ration of mind caused by the pain during

elex' Ass'n v. Smith, 85 F. 401. Peritonitis

which the insured cut his throat.

6. Fitton v. Accidental Death Ins. Co.,

17 C. B. \[N. S.\] 122, cited 8 Am. Rep. 218,

296, cited 17 L. R. A. 753. Eryspielas caused by

note: Traveler's Ins. Co., V. Murray, 16 Colo.

280, cited 1 Am. & Eng. Enc. Law \[21nd Ed.\]

281, 85 Am. St. Rep. 267. \[It would seem

316; Montreal L. Rep., 6 Super. Ct. 3, cited 17

its existence solely to the other.\]

7. Smith v. Accidental Ins. Co., L. R. 5 Exch. 302, cited 8 Am. Rep. 218, note. Cases

bearing on the doctrine of secondary causes

are collected in 46 Am. St. Rep. 859-861, note.

Death "resulting * * either as a cause or effect" did not exempt the insurer

where temporary sickness led a passenger to

go on the platform of a train to vomt and

he fell off. Preferred Acc. Ins. Co. v. Murl

\[C. C. A.\] 126 F. 936. In that case the court

spacks of the sickness as a "coincidence."

8. See note 80 L. R. A. 211, citing Cawley v. National Employers Acc. & General

Assur. Ass'n, 1 Cab. & El. 537; Anderson v.

Socettih Ins. Co., 27 Scot. L. Rep. 20.

Whether an exclusion of liability for

death "resulting wholly or partly, directly or indirectly from disease or bodily infirmity

in any form" has a like effect is doubtful.

No doubt "result" might be regarded

mologically as broader than "effect," which

is the correlative of cause. Whether it is so

when used in a policy seems never to have

been specially considered. Probably it would

be interpreted as synonymous with "effect."

at least in all but the Federal courts, and

even their later decisions warrant this forecast. See 4 Cur. Law. INSURANCE \[Special Article\]. 235 result that could not reasonably be anticipated \[211\]. Such an injury is usually accepted by express provision,\[12\] in applying which the rule of ejusdem generis does not apply to an exception against death from intoxication, sunstroke, vertigo, hernia, "or any disease or bodily infirmity."\[18\]

_A disease fatal or nonfatal, antedating an accident, not necessarily or probably fatal, but so set in motion by the accident that death results, is merely a condition or a predisposing cause._ It is not the efficient cause. The accident is a "sole and proximate cause independent of all other causes." The words quoted do not refer to remote or secondary causes.\[14\] Of the opposite contention it was said "there would be scarcely any limit to their nullifying power.\[15\]

## 3. Assignability of Life Insurance Policies.

\[Special Article by Eascal R. Brill, Jr.\]

\_The common law and statutes.--\_Being a chose in action an insurance policy was not originally assignable at common law, though the assignee had his remedy in equity.\[16\] By statute in most states they are now made assignable,\[17\] and the assignee may generally sue thereon in his own name.\[18\]

have resulted from the blow. Being thrown against a car scat is the cause and not the diseased condition which was thereby hastened. Aetna Life Ins. Co., V. Hicks, 23 Tex. Civ. App. 74, 65 S, W, 87. In Standard L. & the window of his sick room is the proximate cause. Carr v. Pacific M. L. Ins. Co., 64, 61 L R. A. 337, a charge was approved which read--_If_ * * chronic Bright's disease combined with the injury as an em-flem operative to produce death" there could be no recovery under a policy restricted to death from accident as the "proximate and sole cause thereof." The holding is dictum since the judgment was reversed for other errors. According to the other cases, it could on a direct challenge be sustained only by interpreting the words "efficient opera-tive" so as to exclude predisposing and secondary causes. This is the correct rule. See endgame for a change to \_Necessity of insurable interest.--\_One having an insurable interest may become the owner of the policy by assignment.10

There is a conflict of authority as to whether a life policy may be assigned to one having no insurable interest in the life of the insured.20 Some courts hold that if the policy is valid in its inception it may be assigned to anyone, whether he has such an insurable interest or not,21 provided the transaction is in good faith and assignable under Ga. Civ. Code, SS 3077.

Shebley, SS 711. App. 385; Bloomington Mut.

Steele v. Gatlin, 115 Ga. 925, 42 S. E. 253.

Policies of insurances are governed by the rules. applicable to ordinary simple contracts. St. John v. American Mut. Life Ins. Co., 13 N. Y. 31, 64 Am. Dec. 629. A policy issued to one in his own name, payable to his representatives, may be assigned, and assigne may recover full amount, regard-less of what he paid for It. Id.

18. New York Life Ins. Co. v. Flack, 3 Md. 341, 56 Am. Dec. 742, note: Farmers' & Traders' Bank V. Johnson, 118 Iowa, 282, 91

N. W. 1074. Assignee may sue in his own name \[Pa. Act March 17, 1843\]. O'Grady v. Prudential Ins. Co., 3 Pa. Super, Ct. 548. An assigne of a policy valid in its inception may maintain an action thereon. Peek v. Washington Life Ins. Co., 91 App. Div. 697, 87 N. Y. S. 210.

19. Cheveves v. Anders, 87 Tex. 287, 47 Am. St. Rep. 107. Creditor. Martin v. Stubbings, 126 Ill. 387, 9 Am. St. Rep. 620. One to whom insured assurances parental relations. Carpenter v. U. S. Life Ins. Co., 161 Pa. 9, 23 L. R. A. 571.

As to what is insurable interest, see Insurance, 4 Curr. L. 166, SS 5; compare Fraternal Mutual Benefit Associations, 3 Curr. L. 149.

20. Discussions of the subject and collections of authorities on both sides will be found. In notes to the following cases: Bursinger v. Bank, 58 Am. Rep. 852; Currier v. Continental Life Ins. Co., 52 Am. Rep. 143; Singleton v. St. Louis Ins. Co., 27 Am. Rep. 327: New York Life Ins. Co. v. Flack, 56 Am. Dec. 147; Morrell v. Preton Ins. Co., 57 Am. Dec. 103; 9 L. R. A. 660; 7 L. R. A. 583. Note 17 Am. L. Reg. 86, 64 Am. Dec. 629.

The question is one of general law in the decision of which the federal courts are not bound by the decisions of the court where it arises. Gordon v. Ware Nat. Bank

\[C. C. A.\] 132 F. 444.

**21. California:** By statute a policy of insurance on life or health may pass by transfer, will, or succession to any person, whether he has an insurable interest or not, and he may recover on it whatever the insured might have recovered. Civ. Code, SS 2764. Whether under this act parties can stipulate against assignment to one having no interest, quaere. Curtis v. Aetna Life Ins. Co., 90 Cal. 245, 27 P. 211, 26 Am. St. Rep. 114. After a loss and fixed liability attached, it is no concern whatever to the insured whether the assigne has or has not an insurable interest. Id.

Connecticut Fitzgerald v. Hartford, etc., Ins. Co., 56 Conn. 116, 13 A. 673, 677, 678, 17 A. 411, 7 Am. St. Rep. 885; Lemon v. Phoenix Mut. Life Ins. Co., 38 Conn. 294.

Hinois' Not against public policy when it does not appear that assigne ever paid any portion of the premium. Benefit Ass'n v. Blue, 120 Ill. 121. See, also, Cisna v.

Siebley, SS 711. App. 385; Bloomington Mut.

Life Ben. Ass'n v. Blue, 120 Ill. 121, 60 Am. Rep. 588; Martin v. Stubbings, 126 Ill. 387, 18 N. B. 657, 9 Am. St. Rep. 620.

Iowait Farmers' & Traders' Bank v. John-son, 118 Iowa, 282, 91 N. W. 1074, and cases cited; Bellknap v. Johnston, 114 Iowa, 265, 86

N. W. 267; Carpenter v. Knapp, 101 Iowa, 729, 70 N. W. 764, 38 L. R. A. 128; Shuman V. Supreme Lodge, K. H., 110 Iowa, 480, 81 N. W. 717.

Louisiana: Succession of Hearing, 26 La. Ann. 362, 327.

Marrindzi, Ritt and not merely for the purpose of avoiding the rule against wagering contracts.22 Hence, the transfer is void where it is the result of an agreement made prior to

of the policy, or if the debt has been paid, \[New York Mut, Life Ins. Co. v. Armstrong, or If a portion of the policy was designed by the payee in a contingency for the benefit of some other than the payee under the policy. * Wright N. Mutual Sen. Life Ass", 118 N. Y. 237, 16 Am. St. Rep. 749, 6 L. R. A. 731. See, also, Rawls v. American Mut. Life Ins. Co., 27 N. Y. 282, 84 Am. De. 280. By statute insurance on the life of a husband for the benefit of his wife may be assigned to any one, whether having an in-surable interest or not \[Laws 1879, 52, 48, $ 1\]. Fuller v. Kent, 13 App. Div. 529, 43 N. Y. 8, 649. Ohio. Eckel v. Renner, 41 Ohio St. 232, 233. See, also, Union Cent. Life Ins. Co. v. Hillard, 63 Ohio St. 478, 59 N. E. 230. Oregon: Brett v. Warnick, 44 Or. 611, 75 P. 1061. Rhode Island: Clark v. Allen, 11 R. I. 439, 23 Am. Rep. 496. South Carolina: Croswell v. Conn. Indem. Ass"n, 51 S. C. 103, 28 S. E. 200. Tennessee: Clement v. New York Life Ins. Co., 101 Tenn. 22, 46 S. V. 561, 70 Am. St. Rep. 650, 42 L. R. A. 247. Vermont Fairchild v. North Eastern Mut. Life Ass", 51 V. 613. Wilkinson: Strike v. Wisconsin, etc., Ins. Co., 95 Wis. 583, 10 R. N. W. 815; Hurd v. Doty, 86 Wis. 1, 56 N. W. 371. It is not an established rule of law that every contract is void which gives a party thereto a pecunary interest in the death of the other party, or of a third person. Bursinger v. Bank of Watertown, 67 Wis. 76, 30 N. W. 290, 58 Am. Rep. 848, and note, citing Clark v. Durand, 12 Wis. 233. By statute (Laws 1895, 20), policies in the Wisconsin Odd Fellows Mutual Life Insurance Company can only be assigned to persons having an insurable interest in the life of the insured, and no money may be paid to any assignee not having such interest. This act has no retroactive effect, and does not apply to assignments made before its adoption. Strike v. Wisconsin O. F. M. Life Ins. Co., 95 Wis. 583, 70 N. W. 819. United States Contr.: In Warnock v. Davis, 104 U. S. 715, 26 Law. Ed. 924, the supreme court lays down the rule that a policy is not assignable to one having no in-surable interest in the life of the insured, and bases its holding on the ground that the assignment is as objectionable as allowing the assignee to take out the policy in his own name. The facts in that case were that the policy "was taken out by the insured and assigned on the next day, in pursuance of a prior agreement, and that the assignee paid the premiums. It has frequently been cited to the proposition that all such assignments are void, but later cases in the supreme and inferior federal courts hold that such transactions are valid unless they are merely colorable and for the purpose of evading the rule against wagering policies, apparently on the theory that the Warnock Case turned on the fact that the transaction there considered was in the nature of a wager. See Aetna Life Ins. Co. v. France, 94 U. S. 561, 24 Law. Ed. 287 (citing Connecticut Mut. Life Ins. Co. v. Barger, 94 U. S. 457, 24 Law. Ed. 281); 238

INSUANCE \[Special Article\]. 4 Cur. Law.

or contemporaneous with the taking out of the policy. \[23\] The question is one of intention, to be arrived at by a consideration of all the attending facts and circumstances. \[24\] It has been held that there can be no objection to the assignment where the insured has covenanted to himself pay the premiums, \[28\] or where all of the premiums have been paid, \[26\] nor to the assignment of an endowment policy where nearly all of them have been paid. \[27\] The rule applies equally in the case of benefit certificates, except in so far as the right to change the beneficiary is limited by the laws of the order. \[23\]

Other courts hold that, unless the assignee has an insurable interest, the transaction is as much a wager on human life and as opposed to public policy as if he had taken out the insurance in the first instance, and hence is invalid, \[29\]

65 N. E. 908. Void where taken with intent to assign it to third person who pays premiums merely as speculation. Brockway v. Mutual Ben. Life Ins. Co., 9 F. 249. Assignment amounting to a mere wagering contract is invalid. Assignment on considera- tion that assignee pay a past due premium and in event of assignee's death within a certain time pay a part of the amount of the policy to third persons held a wager. Quilman v. Johnson \[Ga.\] 49 S. E. 801. \[28\]. Mussachusetts In the absence of evidence that it was intended as a gambling transaction the purchaser or done takes good title. King v. Cram. 185 Mass. 103, 69 N. E. 1049: Stevens v. Warren, 101 Mass. 564. \[30\]. Schamberlain v. Butler, 61 Neb. 85 N. W. 481, 54 L. R. A. 338. \[31\]. New York: Steinback v. Diepenbrock, 158 N. Y. 24, 44 L. R. A. 417, 53 N. E. 662, arg. 1 \] App. Div. 417, 87 N. Y. S. 279. \[32\]. North Carolina: Where policy payable to insured's estate was assigned to third person who used as administrator, but for purpose of securing proceeds under original agreement, he could not recover. Hinton v. Mutual Reserve Fund Ass"n, 135 N. C. 314. \[47\] S. E. 474. \[33\]. Rhuble Island: Mowry v. Insurance Co., 9 R. T. 346. \[34\]. Tennessee: Clement v. New York Life Ins. Co., 101 Tenn. 23, 70 Am. St. Rep. 650, 42 L. R. A. 247. \[35\]. Federal Courts: Gordon v. Ware Nat. Bank \[C. C. A.\] 132 F. 444. Not valid where obtained with intent to assign to one not having interest. Brockway v. Mutual Ben. Life Ins. Co., 9 F. 249; Swick v. Insurance Co., 2 Dill. 180. \[24\]. Steinback v. Diepenbrock, 158 N. Y. 24, 53 N. E. 622, 44 L. R. A. 417, arg. 1 App. Div. 417, 37 N. Y. B. 279. \[36\]. Metropolitan Life Ins. Co. v. Brown, 159 Ind. 644, 65 N. E. 908. \[37\]. Bursinger v. Bank of Watertown, 67 Nips, 75, 8 Am. Rep. 844. In Gordon v. Ware Nat. Bank, 132 F. 444, the court in speaking of those cases holding such assignments vod, says: "The reason for this view that the assignee who pays the premium practically waggers it upon the early close of the life insured has much less force where, as in the case at bar, the premiums have been paid before the assignment is made." Connecticut Mutual Life Ins. Co. v. Schaefer, 94 U. S. 457, 462, 24 Law. Ed. 251; Bursinger v. Bank of Watertown, 67 Nips. 75, 83, 80 N. W. 290, 68 Am. Rep. 848."

27. Bursinger v. Bank of Watertown, 67 Nips. 75, 83, 84 N. W. 290, 68 Am. Rep. 849. \[38\]. Wis. 75, 58 Am. Rep. 848. \[39\]. Wis. 75, 58 Am. Rep. 848. \[40\]. Wis. 75, 58 Am. Rep. 848. \[41\]. Wis. 75, 58 Am. Rep. 848. \[42\]. Wis. 75, 58 Am. Rep. 848. \[43\]. Wis. 75, 58 Am. Rep. 848. \[44\]. Wis. 75, 58 Am. Rep. 848. \[45\]. Wis. 75, 58 Am. Rep. 848. \[46\]. Wis. 75, 58 Am. Rep. 848. \[47\]. Wis. 75, 58 Am. Rep. 848. \[48\]. Wis. 75, 58 Am. Rep. 8 * 1 Cur. Law. INSURANCE \[Special Article\]. 239

notwithstanding the fact that the company assents to the assignment." The same rule applies to benefit certificates." The fact that the insured surrenders his benefit certificate and procures another payable directly to the assignee is immaterial."2 The fact that the policy is an endowment one is immaterial."2

Footnote 2: The fact that the assignee has no such interest does not relieve the company from liability under the terms of its contract."4 It is bound to perform and the law will dispose of the money according to the rights of the parties."3 If the assignee collects the insurance it is generally held that he will hold the proceeds in trust for the benefit of those entitled by law to receive them,"4 and that the insured's personal representatives may recover the same from him, less the premiums or assessments which he has paid."7 Some courts hold, however,

Bowman, 119 Ind. 448, 21 N. E. 1094, 5 L. R. A. Texas: Cheeves v. Anders, 87 Tex. 287, 28 95, to the same effect.

S. W. 274, 47 Am. St. Rep. 107; Schonfield v. Turner, 75 Tex. 324, 12 S. W. 626, 7 L. R. A.

The complaint need not negative the fact that the assignment is void as a wayering

188. Has interest only to amount of pre-policy. Metropolitan Life Ins. Co. v. Brown,

miums pad. Equitable Life Assur. Soc. v.

159 Ind. 644, 65 N. E. 908.

Kansas: Missouri Valley Life Ins. Co. v.

T. R. A. 217. See note-to this case in Am. Sturges, 18 Karan. 93, 26 Am. Rep. 761; Mils-

St. Rep. Hatch V. Hatch \[Tex. Civ. Appl.\] 80

souri Valley Life Ins. Co. v. McCrum, 36 Kan.

S. W. 411; Coleman V. Anderson \[Tex. Civ.

146, 12 P. 517, 59 Am. Rep. 537; Price v. First App.\] 82 S. W. 1057. Assignment upon no

Nat. Bank, 62 Kan. 743, 64 P. 639.

other consideration than payment of pre-

Kennchev: Schlamp v. Burer's Adm'r, 21

miums. Price v. Knights of Honor, 68 Tex.

Ky. L. R. 244, 61 S. W. 312; Burnam v. Wyhte,

361, 4 S. W. 633. The assignment of a bene-

16 Ky. L. R. 241, 22 S. W. 556; Basve v.

fit certificate to one having no interest in

Adams, 81 Ky. 368. Surety of insured, to the life of the insured and upon no other

whom policy was assigned, held, as against

consideration than the payment of premiums

original beneficiary, to be entitled only to

by the assignee does not vitate the policy,

amount of debt and premium paid by him,

but is of itself of no effect and leaves the

with interest. Lee v. Mutual Life Ins. Co.

(KY.) 82 S. W. 258.

milssontri Heusner v. Mutual Life Ins. Co.,

47 Mo. App. 336. Assignee has interest only

Assignee cannot recover unless assignment

to extent of premiums paid. Mutual Life

was to secure indebtedness, In which case

Ins. Co. v. Richards, 90 Mo. App. 88, 72 S.

It is valid to the extent thereof, Wllton v.

W. 487. See, also, Singleton v. Insurance Co.,

New York Life Ins. Co. (Tex. Civ. App.) 78

66 Mo. 63, 27 Am. Rep. 321; Whitmore v. Su-

S. W. 403. Insurable interest must be al-

preme Code, 100 Mo. 86, 13 S. W. 495; Ma-

solic Benev, Ass"n v. Bunch, 109 Mo. 560, 19 Civ. App.\] 81 S. W. 335.

S. W. 25; Insurance Co. v. Rosenheim, 66 Mo.

Virginial Long v. Meriden Brittania Co.,

Appl. 21.

W. 512, 6 L. R. A. 136. Assignee can only

val the premiums. Powell v. Dewey, 123 . N. Recover premiums paid. New York Life Ins.

Co. v. Blanks, 90 Mo. App. 88, 72 S. R. 476, 44 L. R.

Pennsylvania: Downey v. Hoffer, 110 Pa.

A. 305. See, also, Beaty v. Downing, 96 Va.

109, 20 A. 655; Gilbert v. Moose's Adm'r, 104

451: Tate v. Commercial Bldg. Ass'n, 97 Va. Pa. 74, 49 Am. Rep. 570. See, also, Ruth v.

Katternman, 112 Pa.

that the whole transaction contravenes public policy and hence that the law will leave the parties where it finds them.\[38\] In this view neither the assignee(tm) nor the assignor(tm) can recover on the policy, nor can the personal representatives of the 'insured recover the proceeds of the policy from the beneficiary to whom the company has paid it.\[41\]

\_Assignment as collateral.--\_No insurable interest is required to support an assignment by way of collateral.\[42\] As in the case of other pledges, an assignment absolute in form may be shown to have been made by way of security only,\[43\] and the assignee must account to the assignor for any balance remaining in his hands after the debt is paid.\[44\]

In those states where assignments to one having no insurable interest are held void an assignment _as collateral_, whether absolute or conditional, is void beyond the amount of the debt secured thereby, together with the premiums paid by the assignee and interest thereon.\[45\]

\_Transfer by will.--\_One may by will bequeath the proceeds of a life policy

terest, assigned policy to third person, who also had no interest, held that the insured's administrator could recover proceeds of policy from assignee, less premiums paid by him. Gilbert v. Moose, 104 Pa. 74, 49 Am. Rep. 570; Tate v. Commercial Bldg. Ass'n, 97 Va. 74, 45 L. R. A. 243.

38. Missouri Valley Life Ins. Co. v. McCrum, 36 Kan. 14, 59 Am. Rep. 637. Ass. Signor cannot set up lack of interest in assignee as defense. Groff v. Mutual Life Ins. Co., 92 Ill. App. 207.

01. Missouri Valley Life Ins. Co. v. Sturges, 18 Kan. 93, 26 Am. Rep. 761; Frank-l1n Ins. Co. v. Hazarad, 41 Ind. 116, 13 Am. Rep. 313; Powell v. Dewey, 123 N. C. 103, 31 S. E. 381, 68 Am. St. Rep. 818. See, also, Burbage v. Windley, 108 N. C. 358. Policy assigned by insured and beneficiaries to one having no interest. After insured's death assignee, being unable to collect, canceled assignment and returned it to beneficiaries, who reassigned it to plaintr. Held, whole transaction was against public policy, and as beneficiaries could not recover, plaintr could not Missouri Valley Life Ins. Co. v. McCrum, 36 Kan. 146, 59 Am. Rep. 537.

40, 41. Powell v. Dewey, 123 N. C. 103, 31 S. E. 381, 68 Am. St. Rep. 818. See, also, Burbage v. Windley, 108 N. C. 358.

42. Curtis v. Aetna Life Ins. Co., 90 Cal. 245, 25 Am. St. Rep. 114; Brett v. Warnick, 44 Or. Si1, 76 P. 1061. Assignee of fire policy as collateral, the company consenting to assignment, may recover thereon though he has no insurable interest. Merrill v. Colonial Mut. Fire Ins. Co., 169 Mass. 10, 47 N. E. 439.

01. See Pledges, 2 Curr. L. 1245, 8 4.

01. See Pledges, 2 Curr. L. 1247, 1248, 85 5, 6; Curtis v. Aetna Life Ins. Co., 90 Cal. 245, 25 Am. St. Rep. 114. On assignment as security for debt, legal title passes to assignee, and only interest remaining in assignee.

In other states where assignments to one having no insurable interest are held void an assignment _as collateral_, whether absolute or conditional, is void beyond the amount of the debt secured thereby, together with the premiums paid by the assignee and interest thereon.\[45\]

\_Transfer by will.--\_One may by will bequeath the proceeds of a life policy

116. Where the assignee, on default in pay-also had no interest, held that the insured's assignment of debt to secure which the policy was assigned as collateral, surrenders it and policy from assignee, less premiums paid by him. Gilbert v. Moose, 104 Pa. 74, 49 Am. Rep. 570; Tate v. Commercial Bldg. Ass'n, 97 Va. 74, 45 L. R. A. 243.

001. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Life Ins. Co. v. Missouri Valley Valley Life Ins.

payable to himself, or his executors or administrators to whom he pleases, and the fact that the legatee has no insurable interest will not defeat his right to recover.40 The fact that he has previously made a void assignment thereof to the legatee is immaterial.47

_Provisions in policy affecting assignability._--Provisions prohibiting assignments to persons not having an insurable interest are valid,48 but they have been held not to apply to assignments as collateral.49

There is a conflict of authority as to whether a provision making the policy incontestable after a certain period prevents the insurer from defending on the ground that the assignee had no insurable interest and that the assignment was made in furtherance of a mere wagering contract.50

_Consent of beneficiary._--In case the policy is payable to a named beneficiary, he must of course assert to the assignment.51

_Policy as assets of insured._--The right of the insured's trustee in bankruptcy to policies payable to his estate52 or the similar right of the personal representative to collect policies as assets53 are not within this discussion.

_The effect of the cessation of an insurable interest_ in the assignee54 embraces matters also beyond the scope of this article.

INTERREST.

SS 1. Right to Interest and Demands Bear. $\\lx@sectionsign$ 3. Remedles and Procedure to Receiver Ing Interest (241). Compound Interest (244). $\\lx@sectionsign$ 2. Rate and Computation (245).

SS 1. Right to interest and demands bearing interest.55--Interest has been defined as the compensation for the use of money or the recompense for withholding it.56 It is grounded on contract, on a rule of damages, on fraud, delinquency or breach of trust, or on the making of interest out of another's funds.57

_It may rest in contract express58 or implied._--An agreement for an increased rate of interest after maturity of a note is not affected by an extension according to the original terms,59 but where the holder has the option to accelerate maturity

40. Clement v. New York Life Ins. Co., Bankruptcy, 3 Curr. L. 446, $\\lx@sectionsign$ 9A. Only sur-101 Tenm. 22, 70 Am. St. Rep. 650, 42 L. R. A. $\\lx@sectionsign$ 241, 6 L. $\\lx@sectionsign$ 247; Stoelker v. Thornton, 88 Am. 241, 6 L. $\\lx@sectionsign$ 248; R. A. 140. See, also, Rison v. Wilkerson, 3 In re McKinney, 15 F. 535. Sneed \[Tenn.\] 565; Weil v. Traftord, 3 Tenm. 53. See Insurance, 4 Curr. L. 189, $\\lx@sectionsign$ 11; Es-Ct. 108; Williams v. Corson, 2 Tenn. Ch. 269; tates of Deedents, 2 Curr. L. 1277, $\\lx@sectionsign$ 6D. Tennessee Lodge v. Ladd, 5 Lea \[Tenn.\] 716; T Highland v. Highland, 109 Ill. 366, 13 Ill. Sep. 65; Mahahathatra Life Ins. Co. v. Hen-App. 510; Cath. Mut. Ben. Assn'v. Priest, 1essy \[C., C. A.\] 99 F. 64, and cases cited: 46 Mich. 479; Clark v. Durand, 12 Wis. 265; Ganes v. Anders, 87 Tex. 287, 47 Am. St. Gambs v. Conn. Mut. L. Ins. Co., 56 B. 44; Ret. 107; Hatch v. Hatch \[Tex. Clv. App.\] 80 Swift v. Railway Pass. Assn'v. 96 Ill. 309; S. W. 411; Schonfield F. Turner, 15 Tex. 224, .Bickerton v. Jaques, 28 Hun \[N. Y.\] 119; Union Mut. L. Ins. Co. v. Stevens, 19 F. 671. 47. Stoclker v. Thornton, 88 Am. 241, 6 L. R. A. 140. 48, 48 Currits v. Aetma Life Ins. Co., 90 Cel. X. 245, 25 Am. St. Rep. 114. 50. In Tennessee it does not. Clement v. New York Life Ins. Co., 101 Tenn. 22, 70 Am. St. Rep. 650, 42 L. R. A. 247. In New York it is held that such a stup-lation includes the defense of lack of insurable interest in the assignee. Wright v. Mutual Ben. Life Ass'n, 118 N. Y. 287, 6 L. R. A. 189; note of Morrell v. Trenton Ins., 50 F Am. Dec. 103; Scott v. Dickson, 58 Am. Rep. 196. Dickson, 58 Am. Rep. 196. Dickson, 58 Am. Rep. 196. Dickson, 58 Am. Rep. 196. Dickson, 58 Am. Rep. 196. Dickson, 58 Am. Rep. 196. Dickson, 58 Am. Rep. 197. Dickson, 58 Am. Rep. 198. Dickson, 58 Am.

213

INTEREST SS 1. 4 Cur. Law.

for breach of conditions it does not take effect until the option has been exercised,\[69\] and where the right to interest rests on the performance of certain conditions precedent, such conditions must be strictly and literally performed.\[61\] An agreement to pay interest on money held at the option of a prospective borrower renders him liable therefor whether he exercises the option or not.\[62\] A junior lienor lienor lienor lienor money to take up a mortgage without intent to cancel it is entitled to interest.\[63\]

Open accounts do not imply a contract to bear interest,\[64\] nor will an over-draft carried in an account do so until payment be demanded or it becomes a separate settled debt,\[65\] but it is in some states allowed on annual balances of an open account.\[66\] An account stated bears interest from date.\[67\] Where a statute provides that accounts shall bear interest from due-time, a debtor cannot avoid payment by disputing the account.\[68\]

A debt, the amount of which is ascertained, bears interest from due-time\[69\] and not before.\[70\] In the absence of an agreement, a loan will not bear interest until demand for repayment.\[71\]

_Interest as damages is recoverable_ for the breach of a contract to pay money when it is rightfully due and owing.\[72\] Such is the case of over-due commercial paper and matured contracts for payment of money.\[73\] Whence it is said that demand paper bears interest from date.\[74\] It should not be allowed on a note more than covered by contemporaneous right of set-off or recoupment.\[75\] An amount stipulated as liquidated damages bears interest from the time the right of action accrues.\[76\] It may be allowed for nonpayment of an award of arbitators.\[77\]

tion of period of extension, rate was ten per cent. Mutual Ben. Life Ins. Co. v. Daniels \[Web.\] 93 N. W. 134.

60. A note stipulated that a default In payment of interest should mature the entire debt at the option of the holder. Mortgage Trust Co. v. Bach \[Kan.\] 77 P. 546.

01. Agreement to pay interest on non-interest bearing notes providing that certain conditions were performed. They were copulative and were never performed. Haynesworth & Co. v. Adler, 139 Ala, 168, 36 So, 513.

01. He was to borrow the money if he could obtain security. Ehlen v. Seiden \[Md.\] 59 A. 120.

01. Bennett v. First Nat. Bank \[Iowa\] 102 N. W. 129.

01. Thie principle applies to an overdraft, running without adjustment. Henness Bros. de Evans Co. v. Memphis Nat. Bank \[C. C. A.\] 129 F. 557.

01. Tennessee Bros. & Evans Co. v. Memphis Nat. Bank \[C. C. A.\] 129 F. 557.

01. Store account. Howe v. Hammond \[Vt.\] 58 A. 124. See, also, Langdon v. Castleton, 30 v. 285. Mutual accounts carry simple interest on annual balances. Holt v. Howard \[Vt.\] 58 A. 197.

01. De La Cuesta v. Montgomery \[Cal.\] 77 P. 887. As to what constitutes an account stated, see Accounts Stated and Open Accounts, 3 Curr. L. 27.

01. Florence & C. C. R. Co. v. Tennant \[Colo.\] 75 P. 410.

01. Amount of a street assessment. Gill-feather v. Grout, 91 N. Y. S. 533. The amount for which an article was sold under appeal contract. McAfee v. Dix, 91 N. Y. S. 464.

01. Where a business was sold to be decent. Mutual Ben. Life Ins. Co. v. Daniels \[Web.\] 93 N. W. 134.

01. A note stipulated that a default In payment of interest should mature the entire debt at the option of the holder. Mortgage Trust Co. v. Bach \[Kan.\] 77 P. 546.

01. Agreement to pay Interest on non-interest bearing notes providing that certain conditions were performed. They were copulative and were never performed. Haynesworth & Co. v. Adler, 139 Ala, 168, 36 So, 513.

01. He was to borrow the money if he could obtain security. Ehlen v. Seiden \[Md.\] 59 A. 120.

01. Bennett v. First Nat. Bank \[Iowa\] 102 N. W. 129.

01. Thie principle applies to an overdraft, running without adjustment. Henness Bros. de Evans Co. v. Memphis Nat. Bank \[C. C. A.\] 129 F. 557.

01. Tennessee Bros. & Evans Co. v. Memphis Nat. Bank \[C. C. A.\] 129 F. 557.

01. Store account. Howe v. Hammond \[Vt.\] 58 A. 124. See, also, Langdon v. Castleton, 30 v. 285. Mutual accounts carry simple interest on annual balances. Holt v. Howard \[Vt.\] 58 A. 197.

01. De La Cuesta v. Montgomery \[Cal.\] 77 P. 887. As to what constitutes an account stated, see Accounts Stated and Open Accounts, 3 Curr. L. 27.

01. Florence & C. C. R. Co. v. Tennant \[Colo.\] 7 4 Cur. Law. INTEREST SS 1. 243

Moneys received which ought to be refunded," e. g., illegal taxes" and moneys had and received for the use of another and retained without his consent" bear interest as damages especially when so provided by statute," and so do moneys necessarily paid to another's use." The circumstances may require demand to fix breach," as in case of an improper preference of creditors, when it runs from date of demand and refusal to return." On a quantum merit for work and labor it runs from demand." And so a secondary liability like the individual liability of a stockholder does not commence to bear interest until action brought or he is charged with notice that he is to be held for a specific corporate obligation," but where payment of a judgment was coerced and thereafter the judgment was reversed, the debtor was entitled to interest from date of reversal." The commencement of an action suffices for a demand," but demand on one not authorized to pay avails nothing."

Unless otherwise provided by statute," so long as a demand rests on a con-

78. A statute providing that taxes illegal-

payment of interest until it complies with ly assessed and collected should be refunded

the demand. Heiene v. Corn Exch. Bank, 96 need not expressly provide for interest. In App. Div. 592, 89 N. Y. S. 310.

re C/Berry \[N. Y.\] T8 N. B. 109. In the ab-

SL Under Burny' Ann. St. 1901, SS 7045, essence of evidence of special loss because of

allowing interest on money had and received negligent delay of goods shipped, the shipper can only recover interest on the amount

his consent, interest is recoverable from a invested in the goods. Lee & Co. v. St. Louis, etc., R. Co. \[N. C\] 48 S. E. 89.

money due the county. Tucker v. State

79. NOTE. Interest on taxes (IIEparty)

collected. The patiitioner paid a transfer tax

82. A mortguese in possession who pays on a vested remainder which she had access

taxes is entitled to interest (Pollard v. quired. The law under which the tax was

American Frehold Land Morg. Co., 139 collected having been held unconsontutional,

Ala. 183, 86 So. 767), but he cannot on fore-the petitioner sues to have her money re-

closure recover interest on attorney's fees funded with interest. A statute provided for

pad in advance. No evidence to show that the refunding of taxes under the situation

he had paid them or the amount. Id. above stated, but was silent as to interest.

83. Presentation of check is demand, and Held, the state having provided by statute

dishnor ie refusal. Heiene v. Corn Exch. for the refunding of taxes collected under

Bank, 96 App. Div. 892, 89 N. Y. S. 310.

an unconsontutional law, the right to collect

Money had and received, York v. Farmer's

interest follows, even though not expressly

Bank, 105 Mo. App. 127, 78 S. W. 968.

so declared. In re O'Berry, 179 N. Y. 286.

84. Capital Nat. Bank v. Wilkerson \[Ind.

The rule is that taxes do not draw interest

Appl. 172 N. E. 247. Commerement of an unless interest is expressly allowed by statute.

action by a truste in bankruptcy to recover

ute. Cooley, Taxation \[3rd Ed.\] pp. 20, 1487.

a preference starts the running of interest

At first glance, the principal case in allow-

on the claim. Kaufman v. Tredway, 25 S. Ct.

ing interest would seem to be at variance

83. Such ie not unliquidated in the sense however, rather than real; for money col-

that it could not become due Util ascertained.

lected as a tax, under an unconsontutional

Braas v. Spripville, 91 N. Y. B. 699.

statute, is really no tax at all. There was

86. Action by creditors against individual

no right to take the money, but since it was

members of a dissolved corporation. Man-

taken, it must be regarded as money had

ley v. Mayer \[Kan.\] 76 P. 650.

and received to the plaintiff's use, and in-

ST. Florence Cotton & Iron Co. v. Louis-

test can thus be allowed without conflict-

ville Banking Co. \[Ala.\] 36 So. 466.

ing with any doctrine of taxation. Another

88. Where the complaint contained no requisite for the recovery of taxes paid is

averment as to date of demand, interest

that payment should have been involuntary.

runs from institution of the suit. Mulligan

Odenahl v. Board, 112 Iowa, 182. This is

v. Smith \[Co.\] 76 P. 1063. Under a statute

usually taken to mean that the tax must be

alding interest on claims after they be-

paid under some threatened seizure of per-

coms due and demand for payment is made,

son or property. Town of Ednlupy v. Hack

Interest runs from date of commencement of

ney, 54 Ind. SS 3. The principal case is liberal

in its interpretation of what is an involuntary payment. G Columbia L. R. 66.

the action where there is no evidence of

in its interpretation of what is an involuntary payment.

for C. 180 Mo. 674, 79 S. W. 678. Under a

80. Interest tingency and the amount is not ascertainable by general recognized standards it will not bear interest.91 In Wisconsin it is allowed after demand sufficiently specific to inform the debtor of the claims made.92 Judgment does not, until it is a finality, work a liquidation.93

_Interest from the date of the injury may be allowed in tort94_ and it is said that jurors have an equitable power to allow it.95 It will not be allowed as damages for personal injury.96 In Missouri it is not allowable if no pecuniary benefit could accrue from the wrong.97

_A conversion or breach of trust of money_ imposes liability for interest,99 e. g., a surviving partner who appropriates funds.99

_Interest ceases with the cessation or tender of the debt or obligation._--Thus interest is not allowable after the ancestor's death on a note evidencing an advancement,1 nor one more than offset when due.2 But it was allowed on an overdue special legacy to a trustee who charged himself with interest on funds remaining in his hands.2

Footnote 94: The author is grateful to the anonymous referee for the support of the author.

Footnote 95: See Estates of Decedenta, SS 9C, SS 9A, SS 9B, SS 9 continues after maturity, a stipulation as to semi-annual rests has no application after maturity.8 An agreement made, before interest becomes due, to compound it, is void,9 but after it becomes due such an agreement is valid.10

8 2. _Rate and computation_,11--Interest beyond the legal rate is usury.19 Subject thereto the contract rate is adopted13 or if there be none, the legal rate,14 and it may be allowed on nonpayment of a debt bearing less.15 Interest on a debt is computed up to the time of the first payment and the payment so made is first applied to discharge the interest; the surplus if any, to sink the principal.16 Where the legal rate was changed pending an obligation of co-sureties to contribute, on judgment for contribution, interest should be charged at the rate provided by the contract until the legal rate was changed and from that time at the legal rate.17 Where default has been made before due date, interest should be deducted from future installments the face of which have been increased to include interest.18

8 3. _Remedies and procedure to recover interest_.10--Ordinarily, principal and interest must be recovered in the same action, but a party may be precluded from objecting that a demand therefor was not made.20 A complaint must contain a prayer for interest,21 but a prayer for general relief is sufficient,22 and where a contract is set aside for fraud, interest may be allowed on payments made though it was not demanded.23 None is recoverable beyond what is prayed.24 An allega-

yond such date. Carpenter v. Rice's Adm'z, 25 Ky. L. R. 1704, 78 S. W. 458.

8. Provision In a school bond for payment of interest semi-annually does not enclose the holder to computation on his judgment with semi-annual rests. Rev. W. Dide-

pendent School Dist. \[Iowa\] 98 N. W. 802.

**12** Gay V. Berkey \[Michel\] 100 N. W. 920.

**13**. Dickson v. Stewart \[Neb.\] 98 N. W.

**14**. Gay v. Berkey \[Michel\] 100 N. W. 920.

**11**. See 2 Curr. L. 549.

**12**. See Usury, 2 Curr. L. 1966. "Legal Interest" to be rebated In case of foreclosure

**13**. Under equitable principles and under state providing that when the residue of a secured demand payable at a future date without interest is paid, a rebate of legal interest shall be deducted. Building assocation loan. Greenville Bldg, & Loan Ass'n \[N. J. Eq.\] 69 A. 341.

**NOTE: Taking interest in advance at the highest rate allowed by law is not uavury (Bank of Burlington v. Durkee, 1 Vt, 403).**

**14**. See 2 Curr. L. 549.

**15**. See 2 Curr. L. 549.

**20**. Where an administrator severs the rather from necessity (overwhelming current of decision) than upon principle (Tholen v. Duffy, 7 Kan. 405; Westmore v. Brien, 3 Head (Tenn.) 732; Fleischer v. Bank of U. S., 8 Wheat. \[U. S.\] 388, 5 Law. Ed. 631; Marvine v. Hymers, 12 N. Y. 223; Agricultural Bank v. Bissell, 12 Pick. (Mass.) 586; Maine Bank v. Butta, 9 Mass. 49). Stattory authority to discount or loan money includes authority to take such Interest in advance.

\*\*Lyon v. State Bank, 1 Steve. \[A1a.\] 442. Indivduals as well as banks have a right to take interest in advance. Vahlberg v. Keaton, 51 Ark. 634; Parker v. Cousins, 2 Grat.

\[Va.\] 872, 44 Am. Dec. 388; Cole v. Lockhart, 2 Ind. 631; Marvine v. Hymers, 12 N. Y. 223. But in Penn. Mut. Ins. Co. v. Carpenter, 49 Ohio St. 260, express authority given by statute to banks and other corporations was held a strong implication that other persons were not so entitled.--Note to Bank of Newport v. Cook, 60 Ark. 288, 29 L. R. A. 761.

**13**. The rate agreed by a lender of money to take up a mortgage, not the mortgage rate, governs. Bennett v. First Nat. Bank \[Iowa\] 102 N. W. 129.

**14**. In re Immanuel Presbyterian Church, 112 L.A. 348, 36 So. 408.

**15**. A bank which suspends payment is imable to depositors for interest at the legal rate, from date of suspension. The fact that savings deposits draw less rate is Imma-

**16**. Dickeon v. Stewart \[Neb.\] 98 N. W.

**17**. The probability of a bank to be (or ) is (or ).

**18**. Under equitable principles and under state providing that when the residue of a secured demand payable at a future date without interest is paid, a rebate of legal interest shall be deducted. Building assocation loan. Greenville Bldg, & Loan Ass'n v. Wholey \[N. J. Eq.\] 69 A. 341.

**19**. See 2 Curr. L. 549.

**20**. Where an administrator severs the tion that interest is due at a given rate from a given day will be sufficient to authorize a recovery of all interest due on the debt,\[28\] but if a stated sum is set forth as due at a stated date, no larger sum can be recovered for interest up to the date given.\[26\] When a verdict is rendered for a certain amount with interest, the court may compute it and include it in the judgment.\[27\] The reversal of a decree which awarded interest on an arbitrator's award unpaid does not prohibit a reallowance if the reversal was not in respect of the allowance of interest.\[28\]

INTERNAL REVENUE LAWS.\[29\]

1. The Tax on Liquors and Tobacco and March 2, 1901 (247). Documentary (246).

1. Oleomergarine Aet August 2, 1886 (249).

1. Wax Revenue Aets, June 13, 1898,

1. The tax on liquors and tobacco\[30\] has called for many laws to facilitate collection and prevent evasion. Thus failure to stamp and mark a package makes it forfeitable,\[31\] and the penalty also provided for failure to stamp packages as required by law is not exclusive.\[32\] The law against false marks on wines and liquors being removed or transported applies only to wholesale dealers and the like,\[33\] does not require contents of a package to be indicated\[33\] and does not re-gard shipping directions as a label.\[34\] A vehicle not the property of a common carrier, used in transporting liquor illegally brought into the United States, is subject to forfeiture, though the owner had no knowledge of the purpose for which it was to be used.\[33\] In a forfeiture proceeding it must be shown that the substance was liquor,\[32\] that the act was unlawful when done,\[33\] and it must be proved as laid.\[34\] Proof of the intoxicating properties of a well known spirituous liquor is unnecessary.\[35\] The fact that the proof of spirits had been reduced so as to show a smaller percentage of alcohol raises no presumption that it had been reduced by the addition of spirits of a different quality.\[36\] The giving of a ware-

Brick Co. v. Clement \[Tex. Clv. App.\] 84 S.

37. The court may of Its own motion re-

01.

25., 26. King v. Westbrook, 116 Ga. 753, 42

41

42

43

44

45

46

47

48

49

4 Cur. Law. INTERNAL REVENUE LAWS SS 3. 247

house bond will not relieve suretics on the distiller's bond from the payment of the tax on all spirits distilled during its term.\[42\]

SS 2. \_Oleomargarine Act August 8, 1886.\[43\]--The congressional power to levy excises was not exceeded by the enactment of this law,\[44\] and the motives or purposes of its enactment are not open to judicial inquiry in considering the power of that body to enact such legislation.\[45\] Due process of law is not denied because natural butter artificially colored is not taxed,\[45\] or because the effect of the tax may be to suppress the manufacture of this commodity,\[47\] and any implied constitutional prohibition which may prevent the destruction by congress of fundamental rights cannot be invoked to invalidate this law.\[48\] Products made in conscious imitation of butter are taxable, and when any substance, although named as a possible ingredient, substantially serves only the purpose of coloring so as to cause the product to "look like butter of any shade of yellow" it is an artificial coloration.\[49\] Only the factory and manufacturing apparatus are subject to for-future for an attempt to evade payment of the tax.\[50\]

SS 3. \_War Revenue Acts, June 18, 1898, and March 2, 1901.\[51\]--The special tax imposed on the gross receipts of a sugar refining company is an excise.\[52\] Such receipts include money's derived from subsidiary enterprises incidental to the refining of sugar,\[53\] but not those from independent business enterprises or investments.\[54\] The tax on banking capital reaches whatever has become substantially a part of the capital of a corporation regardless of bookkeeping.\[55\] The tax on telephone messages applies where by contract subscribers pay a fixed sum per term for the privilege of transmitting not to exceed a certain number of messages.\[56\]

\_Documentary stamps.\[57\]--The stamp tax is not a direct tax but falls within the class of "duties, imposts and excises.\[58\] Terms used in the act are to be

42. It is not a substituted but a cumula-

tive security, United States v. Richardson,

127 F. 893.

43. See 2 Curr. L. 551.

01. McCray v. U. S., 195 U. S. 27, 49 Law. Ed.

01. McCray v. U. S., 195 U. S. 27, 49 Law. Ed.

01. McCray v. U. S., 195 U. S. 27, 49 Law. Ed.

Note: The recent decisions of McCray v. U. S., 195 U. S. 27, 49 Law. Ed.

and

Chip V. U. S., 25 S. Ct. 1, 49 Law. Ed.

(Oleomargarine Cases) are criticised in a 8.

Note in a "Michel. L. R. 220, as verging on an

abdication of the judicial power to declare

voids a law obviously for an inhibited object,

while ostensibly for a valid one.

46, 47, McCray v. U. S., 195 U. S. 27, 49

Law. Ed.

48. McCray v. U. S., 195 U. S. 27, 49 Law. Ed.

The tax cannot be deemed invalid

because so high as to destroy the manufacture.

49. Palm o1. Out of a total of 160 ounces

there was not one and one-half ounces of

palm o1. Civ. U. S., 25 S. Ct. 1, 49 Law. Ed.

Color produced by an ingredient

of butter which is itself artificially colored

is not "free from artificial coloration." McCray v. U. S., 195 U. S. 27, 49 Law. Ed.

Cray v. U. S., 195 U. S. 27, 49 Law. Ed.

50. Sections 3450, 3453, of the Rev. St.

\[U. S. Comp. St. 1901, pp. 2271, 2278\], providing forfeiture of all property used in the

manufacture for attempting to defraw the

U. S. of the tax, enacted prior to the Act of

1886, was repealed by the section of the

the tax.

later act which limits forfeiture to the fac-

the tax.

42. It is not a substituted but a cumula-

tory and manufacturing apparatus. United

States v. One Bay Horse and One. Buggy, 128

127 F. 893.

43. See 2 Curr. L. 551.

01. McCray v. U. S., 195 U. S. 27, 49 Law. Ed.

01. See 2 Curr. L. 551.

01. Spreckelets Sugar Ref. Co. v. McClain,

Ed.
192 U. S. 297 U. S. 297, 48 Law. Ed.

53. Receipts from whatwes used almost

exclusively for unloading sugar consigned

its properly included in the gross receipts

up upon which the tax is to be computed.

54. Speckies Sugar Ref. Co. v. McClain, 192 U.

(Oleomargarine Cases) are criticised in a 8.

8. 397, 48 Law. Ed. 496.

note in a "Michel. L. R. 220, as verging on construct.in the sense in which they are used in business,\[59\] and documents are free if without such meaning.\[60\]

"Registered tonnage" fixing tax on charter parties is not used in a technical sense.\[61\] All memorandums of distinct transactions between broker and customer are required to be stamped.\[62\] A notary's certificate of acknowledgment attached to a declaration of homestead is within the provision requiring "certificates of any description required by law not otherwise specified," to be stamped,\[63\] and since the stamps are required to be furnished by the persons for whose benefit they are used, the tax is not objectionable as imposing a burden on a function of the state government not subject to taxation.\[64\] The tax cannot be evaded by executing charter parties in a foreign country and using only copies.\[65\]

The provision rendering instruments inadmissible unless stamped does not apply to state courts,\[66\] but is binding on the Federal courts,\[67\] and the repeal of the act did not authorize the subsequent admission in evidence of an unstamped certificate subject to the tax.\[68\] A telegraph company is not liable for damages resulting from failure to transmit a message to which no stamp was affixed.\[69\]

_Legacies_ which are vested\[70\] only are transfers subject to tax. Debits of the estate are to be deducted from the amount of a residuary legacy before assessing the tax.\[71\] A contingent beneficial interest not absolutely vested in possession or enjoyment is not subject to the tax under Amendment of June 27, 1902.\[72\]

mental functions. The fact that the tax is \[67\] 67. Sackett v. McCaffrey \[C. C. A.\] 131 required before the officers qualify is not important. Manifestly, therefore, the validity of the bond given by the officer to the state \[67\] 67. Wheaton v. Weston & Co., 128 F. 151.

In addition to the \[67\] 67. Sackett v. McCaffrey \[C. C. A.\] 131 F. Am. Rep. 315; Bertman v. Warwick, 108 F. 219.

In the last case the bond of a notary public is held to be exempt from the tax \[67\] 67. Sackett v. McCaffrey \[C. C. A.\] 131 imposed by the act of 1883, within the provision of schedule "A.", exempting states in generally Wills, 2 Curr. L. 2141. Transfer the exercise of governmental functions.\[68\] 67. Sackett v. McCaffrey \[C. C. A.\] 1383.

In the following sections, we will discuss the role of the "Executive" and "Executive" in the following sections.

4 Cur. Law. INTERPLEADER $ 1. 249

The tax imposed by the Act of June 13, 1898, on any person having in charge or trust any legacy or distributive shares is payable from the capital.7a

\_Recovery back of taxes paid.--\_An appeal to the commissioner of internal revenue from an adverse decision of the collector is essential to the maintenance of a suit to recover a sum voluntarily expended for revenue stamps,7a and one who pays more internal revenue taxes than under the law are due cannot go around the collector and commissioner and sue the government any time within six years.7a Where one appeals to the commissioner of internal revenue for re-dress, the action is subject to the two-year limitation prescribed by Rev. St. SS 3226,7a and the running of the statute is not suspended during the pendency of an appeal before the commissioner.7a The allowance of a refund by the commissioner is not an allowance of a mere claim, but is an award7a actionable as such7a and conclusive unless impeached for fraud or mistake.8a If rejected, the collector may be used;8a if allowed, but payment is refused by accounting officers, the government may be sued in the court of claims.8a In suing to recover tax paid, plaintiff's allegation that he was not party to the document must not be pregnant with admission that he was a party's agent.8a Where tax is paid under duress, an action to recover is an action for damages sounding in tort.8a

SS 4. \_Filled Cheese Act June 6, 1896.--\_The imposition under the act of June 6, 1896, of the same manufacturing tax on filled cheese manufactured for export, as upon other filled cheese, is not a tax on articles exported from any state.8a No exemption from the tax imposed by this statute was effected by the provision that the laws relative to tobacco stamps are made to apply to stamps provided for in this statute, though exported tobacco is relieved from the manufacturing tax.8a A suit to recover a tax exacted under this law and paid under protest, in which the construction and constitutionality of the statute and the application of the Federal constitution are involved is not one arising under reve-nue laws, and the judgment of the circuit court of appeals is not final.8a

INTERNATIONAL LAW.8a

INTERPLEADER.

$ L. Nature of Remedy and Right to It. $ 2. Procedure and Rellef; Discharge of (249). (249). (8.1.1.

protection against conflicting claimants,"" while if additional relief be sought it is said to make a bill in the nature of interpleader."1 If the object be to determine between claimants against an indifferent debtor complainant, it is interpleader, whatsoever other relief be sought or however it be called."2 Interpleader is an equitable proceeding" and is largely governed by statutory provisions." The remedy is concurrent with, and not superseded by, statutory remedies authorizing defendants in law actions to bring in or substitute other parties." In order to be entitled thereto, the same debt, fund or thing" must be claimed by hostile parties under adverse title" derived from a common source," and the complainant must have incurred no independent liability to either of the claimants," and must have no claim or interest in the subject-matter,1 though this last element is not essential 4 Cur. Law. INTERPLEADER SS 3. 251

in bills in the nature of an interpleader,${}^{ ext{a}}$ which bills are otherwise governed by the same rules as bills of interpleader.${}^{ ext{a}}$ The opposing claims must be such that the complainant cannot decide without hazard to himself,${}^{ ext{a}}$ and, in some states, he must satisfactorily show to the court that there is reasonable doubt as to his safety in undertaking to determine for himself to whom the fund belongs.${}^{ ext{a}}$ The danger existing, the stakeholder is entitled to the bill, though by reasonable inquiry the right of one claimant would become clear.${}^{ ext{a}}$ The claimants must have present rights to the fund or thing,${}^{ ext{a}}$ which rights must be on an equality with each other.${}^{ ext{a}}$ It is essential that the third party sought to be substituted be in existence and capable of interpleading.${}^{ ext{a}}$ The bill cannot be maintained where it appears that, as to either of the defendants, the plaintiff is a wrongdoer,${}^{ ext{a}}$ and it must not appear from the face of the bill that other interested parties have not been made defendants.${}^{ ext{a}}$ That the claim was derived from a different source by fraud or mistake cannot be set up in the interpleader proceeding.${}^{ ext{a}}$ The right may be lost by laches${}^{ ext{a}}$ or estoppel.${}^{ ext{a}}$

A statutory interpleader can only be made in accord with terms of the statute,${}^{ ext{a}}$,${}^{ ext{a}}$ but by consenting to a payment into court and substitution of parties, jurisdiction may be changed from one to another defendant.${}^{ ext{a}}$

SS 2. \_Procedure and relief; discharge of complainant; costs.${}^{ ext{a}}$--\_The bill should only set out the claims as made to the complainant.${}^{ ext{a}}$ An irregularity which plain-

Council of Legion of Honor v. Palmer \[Mo.\] suit. May v. Disconto Gesellschaft, 211 III. App.J 80 S. W. 693. See 2 Curr. L. 563, n. 310, 71 N. E. 1001. Vendee of goods having 71.

2. Stephenson v. Burdett \[V. Va.\] 48 S. entitled when used by the assignee to interpleader, 162 Ind. 382, 70 N. E. 489. The object of the defendants, would stand as to

1. \_Stephenson v. Burdett \[V. Va.\] 48 S. entitled when used by the assignee to interpleader, 162 Ind. 382, 70 N. E. 489. The object of the defendants, would stand as to

1. _Stephenson v. Burdett \[V. Va.\] 48 S._

1. \_Stephenson v. Burdett \[V.

iff, upon leave granted, has the right to correct as against the defendant, cannot be taken advantage of by an interpleader whose rights have been acquired pendente lite,19 nor can the insufficiency of the allegations in the bill generally be questioned after judgment.20 No reply being filed to an answer to a bill of interpleader, by any of the parties interpleading, it must be taken to be true.21 There must be a prayer that the several claimants be compelled to interplead and state their claims that the same may be adjudged,22 and an affidavit of good faith must be annexed.23

The right existing, the court must bring in such party and enjoin his proceeding in an independent action.24 Each party must recover on the strength of his own title.28 A verdict which in addition to finding an interpleader entitled to the property fixes the amount of his special interest therein, though erroneous, is generally harmless.28

The stakeholder to be discharged from liability must pay into court the amount the claimant is entitled to recover at the time when the order for interpleader was granted.27 When nothing is paid into court, injunction will not be granted in aid.28 Defendant on paying the money into court pursuant to an order of interpleader is not entitled to recover costs,29 but on an interpleader caused by the fault of one of the claimants, the stakeholder should be allowed costs out of the fund, and the claimant who is not in fault is entitled to a decree against the other defendant for the costs taken out of the fund as well as his own.29

INTERPLETATION; INTERPLETERS; INTERSTATE COMMERER; INTERVENTION, see latest topical index.

INTERDIACTATING LIQUORS.

$ 1. Control of the LIquor Traffic. Valid-

$ 3. Licenses and License Taxes; Appliea-

$ 4. Control of the LIquor Traffic. Valid-

$ 5. Licenses and License Taxes; Appliea-

$ 6. Control of the LIquor Traffic. Valid-

$ 7. Control of the LIquor Traffic. Valid-

$ 8. Control of the LIquor Traffic. Valid-

$ 9. Control of the LIquor Traffic. Valid-

$ 10. Where plaintiff in attachment first

$ 11. Control of the LIquor Traffic. Valid-

$ 12. Control of the LIquor Traffic. Valid-

$ 13. Where plaintiff in attachment first

$ 14. Control of LIquor Traffic. Valid-

$ 15. Control of the LIquor Traffic. Valid-

$ 16. Control of LIquor Traffic. Valid-

$ 17. Control of LIquor Traffic. Valid-

$ 18. Control of LIquor Traffic. Valid-

$ 19. Control of LIquor Traffic. Valid-

$ 10. Where plaintiff in attachment first

$ 11. Control of LIquor Traffic. Valid-

$ 12. Control of LIquor Traffic. Valid-

$ 13. Where plaintiff in attachment first

$ 14. Control of LIquor Traffic. Valid-

$ 15. Control of LIquor Traffic. Valid-

$ 16. Control of LIquor Traffic. Valid-

$ 17. Control of LIquor Traffic. Valid-

$ 18. Control of LIquor Traffic. Valid-

$ 19. Control of LIquor Traffic. Valid-
(263), Scope and Effect of License (263). Surrender, Transfer, or Revocation of License (263). Sale Without License, or Without Paying Tax (264).

- $ 4. Regulation of Traffic. 'Prohibition of Sale or Keeping Open at Certain Times (265).
- $ 5. Action for Penanities (267).
- $ 6. Criminal Prosecution (267).
- $ 6. Offenses and Responsability Therefor in General (267).

**SS 1.**_Control of the liquor traffic; validity of statutes and ordinances._**\[**31**\]\*\*\*\*.**-No one has a natural,**\[**32**\]** **inalienable, or constitutional**\[**33**\]\*\* **right to sell intoxicating liquor at retail, the traffic being subject to the control of the state through an exercise of its police power;**\[**34**\]\*\* **but the law being complied with, the business is a legitimate one.**\[**35**\]\*\* **Thus, the state may absolutely prohibit the sale**\[**36**\]\*\* **or giving away**\[**37**\]\*\* **of intoxicants or nonintoxicants,**\[**38**\]\*\* **or it may provide for the regulation of the traffic, local option laws not being unconstitutional as special**\[**39**\]\*\* **or class**\[**40**\]\*\* **legislation, nor generally, as denying to one the equal protection of the law though certain classes of persons be excepted,**\[**41**\]\*\* **or as lacking uniformity in operation,**\[**42**\]\*\* **or as disfranchising one;**\[**43**\]\*\* **and, being complete,**\[**44**\]\*\* **such law is not unconstitutional as delegating legislative powers to the people.**\[**45**\]\*\* **Requiring persons of the excepted classes to** 31. See 3 Curr. L. 554.\*\* **constitutional in that it discriminates against druggists doing business in a local option** 1112.\*\* **County as compared with those doing busl-ness in the counties in which that law is** **in manedment to the Constitution of N. W. #85. Rev. St. art. 389, which places the United States. Jourdan v. Evansville** **restrictions on the resubmission of a vote in \[Ind.\] 72 N. E. 544. See 2 Curr. L. 555, which "no license" is carried, and prac-n. 90.** **thatlo**\]\*\* **none where it is not carried does not violate the 14th amendment of the Fed-544: City of New Orleans v. Macheca, 112** **call Constitution. Rippev v. State, 193 U. S. L.A. 559, 48 So. 590: State v. New Orleans $ 384, 3893. Hoover v. Thomas \[Tex. Civ. $2 8. V. 179: State v. Scampini \[Vt.\] 59 A. App.J. 80 S. W. $59. See 2 Curr. L. 555, n. 97.** **\[**33**\]** **.** **Conteres: Act 1902, $ 21, No. 30, excepting able. Mitchell v. Branham, 104 Mo. App. 480, 79 S. V. 739. By the Constitution of Golfed and native wines by the barrel by Louisiana and by statutory provisions, the business is made lawful. State v. New Orleans \[L.A.\] 86 So. 999.** **\[**36**\]** **State v. O'Connell \[Mc.\] 58 A. 59; and** **is not thereby rendered totally void, and by permitting all persons to sell older by the barrel, and wine, not to be drunk** **\[**37**\]** **.** **\[**38**\]** **.** **\[**39**\]** \*\*.

make reports is not compelling them to be witnesses against themselves." The law must conform to all constitutional requirements as to its title" and manner of amending." Status exempting the liquor of certain classes of dealers from the special liquor tax are not unconstitutional." The liquor being an article of interstate commerce" it is not subject to state legislation," but its introduction into a state must not be for the purpose of an illegal sale." Requiring it to be shipped under its proper name is not an interference with interstate commerce." Legislative powers must not be vested in the judiciary." By Vermont constitution, fines must be proportionate to the offense," and the same rule is applied under the constitutions of most states." The constitutionality of an act cannot be contested by one whose rights it does not affect."

Municipalities generally have the power either under statutory enactment" or "

46. Considering Pub. Acts 1899, p. 275, No. 188, which requires drugists to make weekly reports. People v. Shuler \[Mich.\] 98 N. W. 986, 47. Acts 1898, p. 1273, c. 562, entitled "An act to enable the * * * voters of * * * to determine * * whether * * * follows * shall be sold in the county" is not unconstitutional as containing more than one subject which shall be described in the title, though it provides for the submission of the question every 4 years, the appointment of a license board and contains a number of sections providing for the regulation or prohibition of the sale of liquors. Price v. Board of Liquor License Com's \[Md.\] 57 A. 215. House Bill No. 162, of the session of 1897, does not violate Const. art. 5, $2, declaring that no bill shall contain more than one subject, which shall be clearly expressed in its title. State v. Courtney, 27 Matt. 378, T1 P. 808. As to whether Pol Code $4084 is properly mentioned in title of act, quaree. Question not decided in case awarding the damages prescribed by $4044 the amount being less than 10 per cent of the amount of the license. Id. Rev. Pol Code $2856 as amended by Laws 1993, p. 191, providing for annual submission of the question of license is not a prohibition law and is not invalid because "prohibition" is not expressed in the title. State v. Barber \[S. D.\] 101 N. W. 1078. Civil damage provisions are within the scope of the title "An act for the restriction and regulation" of the liquor traffic. Garrigan v. Kennedy \[S. D.\] 101 N. W. 1081. As to whether the title of Laws 1992, chap. 84, p. 105, is defective, quaree. Parker v. State \[Md.\] 87 A. 677.

01. The local option law (Pub. Acts 1899, p. 275, No. 183) is not repugnant to Const. art. 4, $ 25, providing that no law shall be amended or revised by reference to its title alone. People v. Shuler \[Mich.\] 98 N. W. 986. 48. Rev. St. 1895, tit. 104, c. 1a, art. 50601, exempting wine growers and manufacturers of domestic wines from the tax imposed thereby. Douthit v. State \[Tex. Civ. App.\] 82 S. W. 982. 50. Retailing liquors on a boat engaged in Interstate commerce is not Interstate commerce. Fopiano v. Speed \[Tem.\] 82 S. W. 222. See In this connection, Commonwealth v. Louisville & E. Packet Co., 25 Ky. L. R. 2008, 80 S. V. 154.

01. See note Constitutionality of laws affecting interstate commerce. 3 Curr. L. 711, 82 S. W. 986. 46. Considering liquors on a boat engaged in Interstate commerce is not Interstate commerce. Fopiano v. Speed \[Tem.\] 82 S. W. 222. See In this connection, Commonwealth v. Louisville & E. Packet Co., 25 Ky. L. R. 2008, 80 S. V. 154.

01. See note Constitutionality of laws affecting interstate commerce. 3 Curr. L. 711, 82 S. W. 986. 46. Considering liquors on a boat engaged in Interstate commerce is not Interstate commerce. Fopiano v. Speed \[Tem.\] 82 S. W. 222. See In this connection, Commonwealth v. Louisville & E. Packet Co., 25 Ky. L. R. 2008, 80 S. V. 154.

01. See note Constitutionality of laws affecting interstate commerce. 3 Curr. L. 711, 82 S. W. 986. 46. 47. 48. 49. 50. 51. See note of the 1899, 40 S. W. 986. 46. 49. 51. See note of the 1899, 40 S. W. 986. 46. 52. See note of the 1899, 40 S. W. 986. 46. 53. 54. 55. 56. 57. 58. 59. 60. 59. 61. See note of the 1899, 40 S. W. 986. 46 4 Cur. Law. **INTOXICATING LIQUORS SS 3.** 255

under the general welfare clanse in their charters\[59\] to pass reasonable\[60\] ordinances restricting or regulating the liquor traffic in such city, and their reasonableness, in case of contest, must be finally decided by the courts.\[61\] Such ordinances must conform to state statutes,\[92\] for the state, by authorizing such regulation, does not surrender its power to license and regulate the traffic,\[63\] and may revoke such authority at any time.\[64\] The granting of such power is not unconstitutional as taking one's property without just compensation,\[65\] but the ordinance to be valid must not discriminate between persons in the same business in the same place.\[66\]

SS 2. _Local option laws.\[67\]--In most states the determination of the question of prohibiting is left to the electors of the political subdivisions of the state.\[66\] A_

_ington, N. C. have such power. Paul v. city, Stephens v. Henderson, 120 Ga. 218, 47 Washington, 134 N. C. 363, 47 S. B. 793._

S. B. 498. Inspection ordinance enacted by Under Rev. St & 1344-20, a village may pro-

mayor and alternon of Carterville in 1887 vide for the Sunday closing of saloons, does not contravene Pub. Laws 1877, p. 33. Bramley v. Euclid, 2 Ohio N. F. (N. S. 508). Id.

Under Mill" Ann. St. # 2833, 440, an in-

63. A local option law being adopted in

corporated town may enact an ordinance

inoperated town in the county, though

Iquors. Litch v. People (Colo. App.) 75 P.

such town in its articles of incorporation

1079.

has the right to regulate the sale of liquor

50. Robinson v. Americus \[Ga.\] 48 S. E.

within its limits. In re O'Brien, 23 Mont.

924. May make the keeping of such liquor

530, 75 P. 196. See 2 Curr. L. 555, n. 19.

for sale criminal. Reese v. Newman, 120

64. Though delegation was made by per-

01. In 198, 47 S. E. 656, n. 257.

14-19.

65. Burns' Ann. St. 1901, & 3927, giving s

vent obstruction of view of interior of sa-

tion from outside. Paul v. Washington, 134

ing litours within 4 miles of its corporate

N. C. 363, 47 S. B. 793. Establishing busi-

limits. Jourdan v. Evansville \[Ind.\] 72 N.

ness hours between 6 A. M. and 8 P. M. Id.

E. 544.

Probighting use of billiard or pool tables,

66. An ordinance should not allow certain

gaming devices, bowling alleps, etc., in sa-

leon. Id. Prohilting saloon keeper or his

tain place, and at the same time prohibit

sevents from being in the saloon during

others from subsequent engaging in the

closed hours. Id. Requiring all liquors to

business in such place. Town of Mandeville

be served and drunk at the counter, and

v. Band, 11 Cha. 804, 85 Bo. 915.

prohilting the use of tables and lounges.

67. See 2 Curr. L. 557. As to conchitu-

Id. Prohilting maintenance of any restu-

rant or committee rooms in connection with

68. Under Const. art. 16, & 20, the state-

barroom, unless divided by solid perpetu-

ute empowering the commissioners' court to

lar walls. Id. Delearning that saloon keeper-

order a local option election to be held in

ers, their servants and employees shall not

use any side, rear, or trap doors, or elevators

equity and includes more than one of the

or stairways for the purpose of selling or

political subdivisions of the county is void.

delverting liquor. Id. Ordinance providing

for inspection of liquors. Stephens v. Hen-

W. 194. The combination of prechents in

derson, 129 Ga. 218, 47 S. B. 498. A pro-

which prohibition is in force with those in

hilption against allowing females to enter

which it does not prevail, the entire ter-

a place where liquor is sold is unreasonable;

it priority being less than the whole country, Is

but prohibition of entry for immoral purposes

posses is not. State v. Nelson (Idaho) 79 P.

art. 16, & 20a, commissioners' court has no

79.

authority to combine subdivisions of a coun-

61. Paul v. Washington, 134 N. C. 363, 47

ty for the purpose of a local option election. Ex parte Mills (Tex. Cr. App.) 79 S.

62. Penalites must be the same. City of

W. 585; Err parte Mitchell (Tex. Cr. App.) 79

Assaria v. Wells \[Kan.\] 78 P. 1026. Const.

81 168. Ord

### 256. Introducing Liquors SS 2.

4 Cur. Law.

locality adopting a local option law with the right to again vote on the subject at a subsequent date, the legislature must preserve the autonomy of such locality.44 Such local option law constitutes the exclusive system for the regulation or manner of liquor selling in the given locality, and suspends during its continuance all inconsistent laws.70 Local option statutes are criminal laws,71 and are not impliedly repealed by the passage of a general law.72 They generally prescribe the date on which they take effect,73 and in such case take precedence over a general legislative enactment prescribing the time when all laws should go into effect.74 In Ohio, the right to adopt local prohibition is extended to residence property holders and localities,75 and denied to manufacturing or mercantile property,76 the number of petitioners required depending on the street frontage.77 Names may be added to or withdrawn from the petition at any time before the election is ordered,78 and a petitioner removing from the district before such order is made, his name cannot be counted.70 The petition cannot be withdrawn and changed after filing.80 Substantial compliance with statutes requiring the filing of the petition is sufficient.81

authorizing the commissioners' court to designate "subdivisions" by combining justices' prechers. Ex parte Wells \[Tex. Cr. App.\] 78 S. W. 928. Const. art. 16, $ 20

75 Offices of physicians attached to resontemplated that local option districts in ices are to be regarded as residence property under Brannock Law. In re Petition 1897, p. 235, c. 162 makes possible a result for Election, 2 Ohio N. P. (N. S.) 245.

not contemplated by the constitution. Ex parte Heipman \[Tex. Cr. App.\] 78 S. W. 349. Sp. Laws (28th Leg.) p. 391 held not void because providing for local option in \[Brannock Law\]. In re Petition for Election, 2 Ohio N. P. (N. S.) 245. Both sides Dahlas. City of Oak Cliff v. State \[Tex.\] 79 of the streets, bounding a local option dis-S. W. 1. Local option law (Rev. St. # 4344- 20a) applies to hamlets as the \[Hannon\]
In Ohio, summons must be served on the mayor of the city.\[82\] The designation of the time within which the election may be ordered is directory only.\[83\] The order must recite the finding of the court that the petition was properly signed,\[84\] must designate the day of the election,\[85\] the question to be voted on,\[88\] who may vote,\[87\] and the time when the law if adopted shall take effect\[88\] with a reasonable degree of certainty. Generally, only qualified electors can vote,\[89\] and the court may notify the managers of the election of his ruling that certain persons are disqualified to vote.\[90\] Persons being illegally permitted\[91\] or restrained from\[92\] voting, it must be shown that in the absence of such illegal acts the result would have been different. Irregularities in the form of the ballots may be disregarded unless they tend to confuse or mislead the voter,\[93\] and a substantial statement of the questions is sufficient.\[94\] Provisions which affect the time and object of the election are mandatory,\[95\] though in Ohio this does not seem to be true.\[95\] The notice may be a substantial copy of the order.\[97\] No voter being deprived of any opportunity to vote,\[82\]

82. The requirement of the Brannock Law \[90\] 90. Ex parte Wood \[Tex, Cr. App.\] 81 S. that service shall be made on the mayor does \[92\] 91. However v. Thomas \[Tex, Civ, App.\] 80 code which determines who is the mayor at \[82\] 92. Under Sayles' Ann. Civ. St. 1897, art. \[N. S.\] 389. Under the Brannock Law, a summons directed to B. as mayor of the \[92\] 93. Where caption of question was print-city or S., and left at the office of the mayor, is not good, in the absence of B., against the acting mayor. Id. The Brannock Law having the garden, held error would be disging fixed 20 days from the date of election as the time within which a mayor may be sum-moned to defend on behalf of a resident district, an alias summons issued more than 20 days thereafter is void. Id.

01. Brannock Law. In re Petition for Election, 2 Ohio N. P. (N. S.) 245; In re Petition, etc., in Toledo, 2 Ohio N. P. (N. S.) 246; In re retition states the questions to be subtled. I.e. Rice, 95 App. Div. 28, 88 N. Y. 469. Except where elections are asked in \[82\] 93. Adding a question regarding high-different districts containing common territory. Id. Time within which an election may be held under the Brannock Law is mandatory. Cole v. Columbus, 2 Ohio N. P. (N. S.) 653.

01. Under Rev. St. 1899, $ 3027, order rejecting that petition is signed by over a designated number held void. State v. Bird \[Mo. App.\] 83 S. W. 284.

01. An order of the commissioners' court \[11\] the majority of the votes approving a petition asking that the election be held on the 17th of Dec., 1902, and then ordering the election for the 6th of December, 1902, is not objectionable as rendering the election day uncertain. Thurmond v. State \[Tex, Cr. App.\] 79 S. W. 316.

01. Submitting the question "whether or not" local option shall be adopted is not objectionable, though the law is "whether" it shall be adopted. Thurmond v. State \[Tex, Cr. App.\] 79 S. W. 516.

01. The law stating that only qualified voters can vote, the order need not say that the election is to be held by the "qualified voters" of the county. Thurmond v. State \[Tex, Cr. App.\] 79 S. W. 316.

01. Order requiring publication of result for four weeks before the law should go into effect held unobjectionable, though the pub-I location continues for five weeks. Thurmond v. State \[Tex, Cr. App.\] 79 S. W. 316.

01. Under Laws 1903, $ 63, or 75, 1 and the constitutional amendment of 1902, persons who had not paid their poll taxes on Feb. I, 1908 could not vote at a local option election held May 30, 1903. Ex parte Wood \[Tex, Cr. App.\] 81 S. W. 529.

4 Curr. Law--17.

In Ohio, summons must be served on the mayor of the city.\[82\] The designation of the time within which the election may be ordered is directory only.\[83\] The order must recite the finding of the court that the petition was properly signed,\[84\] must designate the day of the election,\[85\] the question to be voted on,\[88\] who may vote,\[87\] and the time when the law if adopted shall take effect\[88\] with a reasonable degree of certainty. Generally, only qualified electors can vote,\[89\] and the court may notify the managers of the election of his ruling that certain persons are disqualified to vote.\[90\] Persons being illegally permitted\[91\] or restrained from\[92\] voting, it must be shown that in the absence of such illegal acts the result would have been different. Irregularities in the form of the ballots may be disregarded unless they tend to confuse or mislead the voter,\[93\] and a substantial statement of the questions is sufficient.\[94\] Provisions which affect the time and object of the election are mandatory,\[95\] though in Ohio this does not seem to be true.\[95\] The notice may be a substantial copy of the order.\[97\] No voter being deprived nonobservance of the time during which polls are to be kept open will not vitiate the election." In contesting the result, facts showing the illegality of the election and that without such illegality the result would have been different must be averred."

The validity of the election cannot be impeached collaterally in a criminal prosecution.1 A court of equity has no jurisdiction to enjoin an election,2 or to enjoin the publication of the result on the ground of illegality of the election,3 and such publication being made after the dissolution of an injunction prohibiting the enforcement of prohibition is not void, the appellate court affirming the decision below."

The fact that the election was held and the result may be shown by evidence other than the record of the corporation clerk.5 After the election, it will be presumed that the petition was in legal form6 and that the notice was properly posted,7 the burden being on the attacking party to show the invalidity thereof.8 A local option law providing for the prohibition or regulation of the sale of liquors, the fact that the vote favors the sale of liquors does not operate as an implied repeal of the part relating to prohibition.9 A vote that the local option law shall become inoperative is equivalent to voting that liquors may be sold.10 In the absence of notice given and formal application made, one will not be allowed to intervene on an application for resubmission of local option questions.11 The local option laws extend to sales on steamers on navigable waters within the local option territory.11 One buying beer from a nonresident brewing corporation and reselling the same is not a distiller or manufacturer.11

Footnote 11: The author is grateful to the anonymous referee for the support of the anonymous referee 4 Cur. Law. INTOXICATING LIQUORS SS 3. 259

is vested in the discretion \[16\] of the county court or a board of commissioners. The exercise of such power is ordinarily held to be a judicial act \[17\] though the contrary is held in some states \[18\], but in no case does the licensing body's judicial powers extend to criminal prosecutions for violations of the law \[19\], and the discretion cannot be arbitrarily used \[20\] nor delegated \[21\]. In Missouri the jurisdiction of the county court in this regard is exclusive \[22\]. In the absence of express authority, a municipal corporation has no power to grant licenses \[23\]. A statute fixing the amount of the license tax does not authorize the issuance of licenses unless otherwise allowed by law \[24\]. Number of dealers to be licensed may be limited \[25\].

The applicant must generally be a permanent resident of the locality wherein he applies for the license \[26\], and the application should show that he is a citizen of the United States \[27\], and the location of the place where he desires to carry on business \[28\]. The personal fitness of the applicant and licensee is a matter of legislative concern \[29\], one who has been adjudged guilty of violating the liquor laws being generally ineligible for a certain time \[30\].

The application must generally be supported by a petition signed by the state v. Medton, 44 N. C. 45; State v. Woodfield \[Min.\] 101 N. W. 1063.

Under Actu 1903, p. 288, e. 238, and p. 342,

to pass a resolution denying all applications

c. 247, % 66, the county commissioners have

such discretionary power. Barnes v. Wilson County Com'rs, 135 N. C. 27, 47 S. E.

v. Stuart, 21 L. R. A. 680.

787.

\*\*17. State v. Common Council of North-

Icease. In re Krug \[Neb.\] 101 N. W. 242.

Iown ordinance requiring applicant to first

State v. Fort \[Mo. App.\] 81 S. W. 476.

Obtain license from county court, held ap-

Where they have to find from the evidence

pileant after obtaining such license could

whether or not the applicant is entitled to

not demand a license from the town as a

the license, and determine the amount of

matter of right. State v. Stiff, 104 Mo. App.

the fee has a should pay. Sargent v. Little, 685, 78 S. W. 675.

72 N. H. E555, 68 A. 44. See 2 Curr. L. 569,

n. 39.

**18. Appeal of Hewitt, 76 Conn. 675, 85**

from acting on petition to issue license.

A. 231; Town of Hawk's Nest v. County

State v. Fort \[Mo. App.\] 81 S. W. 476.

\*\*23. A charter by providing for disposal of

205. Prohibition will not lie to prohibit a

county assessor from issuing a license. Id.

19. Commissioners having the same pow-

er to make presentment as a grand juror,

have no judicial power in the matter of

eriminal prosecutions. State v. Scampini

\[Vt.\] 89 A. 201.

**20. C. B. George & Bro. v. Winchester**

\[Ky.\] 80 S. W. 1163; State v. New Orleans \[La.\] 36 S. W. 999; Barnes v. Wilson County Com'rs, 135 N. C. 27, 47 S. E., 737 The

license ought not to be refused on the objection of a minority of the property hold-

ers in a neighborhood where others are

engaged in the business, or on the ground

that no more bar-rooms are needed. State v. New Orleans \[La.\] 36 S. 899.

**NOTE. Discretion in granting license:**

The discretion must be based upon the circumstances of each particular case as pre-

sented to the court, and must not be biased

by general opinions as to the propriety or

impropriety of such licenses. Schlanchecker

v. Marshall, 72 Pa. 200. All the merits must

be considered before the application can be

the application should show that he is a citizen

refused. People v. Symonds, 4 Mice. G. The

discretion must be exercised according to

the requirements of the people, regard be-

so. Code $ 2387. It makes no difference

ing had to the location and to the accommodo-

that the judgment was entered by consent,

dation of the public therein. Atty Gen. v.

or in settlement of pending civil or criminal

Guilford Justices, 27 N. C. 316; Muller v.

w. 44.

Buncombe County Com'rs, 89 N. C. 171; owners of a majority of the property in the neighborhood, such signature may be made by an authorized agent,\[81\] a minor, however, is not qualified to sign such a petition,\[82\] and a signature by his guardian, to be effective, must be as such.\[88\] Park frontage should be considered,\[84\] the park commissioners generally having the power to sign for the same.\[85\] The signature of a part of a number of tenants in common is a valid signature as to such proportion of the frontage as the number of tenants signing bears to the whole number.\[88\] In other states, the consent of a certain number of "qualified electors,"\[37\] or "assessed taxpaying citizens"\[38\] or "freeholders,"\[38\] or owners of dwelling houses in the vicinity"\[40\] is required. The statute grouping those eligible to sign the petition, the requisite number of the group is sufficient.\[41\] A law requiring the consent of such persons is not illegal as conferring arbitrary powers on them.\[42\] One must not have been made a freeholder for the purpose of qualifying him to sign the petition\[43\] nor must his consent have been obtained for a valuable consideration,\[44\] for in neither case can his signature be counted. A petitioner may withdraw his name at any time prior to the final action on the application,\[45\] or at the end of, but not during, the year for which a tax has been paid.\[48\] A law requiring the consent of nearby property owners, excepting from its provisions places being used for the business when the law was enacted, the right to a liquor tax certificate without consent of such property owners is a property right attaching to such places;\[47\] which property right cannot be extinguished by a vote of the electors of the town that no liquor should be sold therein for a period of two years.\[48\] A blank petition is invalid.\[49\] Matters essential to the validity of the petition cannot be supplied by amendment after the time fixed for its filing is past.\[50\]

The remainder of this paper is organized as follows. In Section 2 we describe the results of the paper. In Section 3 we describe the results of the paper. In Section 4 we describe the results of the paper. In Section 5 we describe the results of the paper. In Section 6 we describe the results of the paper. In Section 7 we describe the results of the paper. In Section 8 we describe the results of the paper. In Section 9 we describe the results of the paper. In Section 10 we describe the results of the paper. In Section 11 we describe the results of the paper. In Section 12 we describe the results of the paper. In Section 13 we describe the results of the paper. In Section 14 we describe the results of the paper. In Section 15 we describe the results of the paper. In Section 16 we describe the results of the paper. In Section 17 we describe the results of the paper. In Section 18 we describe the results of the paper. In Section 19 we describe the results of the paper. In Section 19 we describe the results of the paper. In Section 20 we describe the results of the paper. In Section 21 we describe the results of the paper. In Section 21 we describe the results of the paper. In Section 22 we describe the results of the paper. In Section 23 we describe the results of the paper. In Section 24 we describe the results of the paper. In Section 25 we describe the results of the paper. In Section 26 we describe the results of the paper. In Section 27 we describe the results of the paper. In Section 28 we describe the results of the paper. In Section 29 we describe the results of the paper. In Section 20 we describe the results of the paper. In Section 20 we describe the results of the paper. In Section 21 we describe the results of the paper. In Section 21 we describe the results of the paper. In Section 22 we describe the results of the paper. In Section 23 we describe the results of the paper. In Section 24 we describe the results of the paper. In Section 25 we describe the results of the paper. In Section 26 we describe the results of the paper. In Section 27 we describe the results of the paper. In Section 28 we describe the results of the paper. In Section 29 we describe the results of the paper. In Section 20 we describe the results of the paper. In Section 21 we describe the results of the paper. In Section 20 we describe the results of the paper. In Section 21 we describe the results of the paper. In Section 22 we describe the results of the paper. In Section 23 we describe the results of the paper. In Section 24 we describe the results of the paper. In Section 25 we describe the results of the paper. In Section 26 we describe the results of the paper.

4 Cur. Law.

INTOXICATING LIQUORS SS 3.

261

The execution and presentation of a remembrance is in no sense the exercise of judicial power. \[81\] All the names thereto may be signed by one person pursuant to a power of attorney. \[82\] The burden of proof is on a remonstruct to prove that those signing the petition are not qualified to so do. \[83\] Persons who by redistricting have ceased to be voters in the ward cannot be counted as such voters. \[84\] Ir Indiana a remonstruct cannot revoke his signature after the first of the three days providing for the filing of the remonstrance. \[85\]

The license must issue in pursuance of a decision reached by a majority of the board, \[86\] and the fact that a member is unavoidably absent from the public hearing does not prevent his participating in such decision. \[87\] The board may reject the application on their own knowledge of the applicant's unfitness to deal in liquors. \[88\] The proceedings must affirmatively show on their face all jurisdictional facts, \[88\] such recitals being generally conclusive \[86\] except on direct attack. \[89\] Affirmance by the district court of the grant or refusal of a license is not reviewable on appeal. \[88\]

Certiorari, not prohibition, is the proper way to prevent issuance of license, \[88\] though the issuance being illegal it may be enjoined if the bill show some ground of equitable jurisdiction. \[86\] Certiorari being invoked it is a direct attack on the order of the court. \[86\] As to whether mandamus will lie to compel the issuance of a license there is a conflict. \[86\] In Nebraska a motion for a new trial is not essential in order to obtain a review of the judgment of the district court entered on an appeal from the license board. \[87\]

business, State v. Tulloch \[Mo. App.\] 82

83. W. 645.

01.

01. Where requisite number of qualified electures did not sign certificate required by P. L. 259. In re Forts License, 208 Pa.

01. Flinding of sufficiency of petition.

01. 67 A. 991.

01. Hence Burns' Ann. St. 1901, $ 17831, providing that two-thirds of the voters of any town may by filing a remonstrance prevent the granting of a license is not violativle of Const. art. 7, $ 1, providing that all judicial power shall be vested in the courts.
    An act imposing a license tax is a revenue law.\[65\] Such laws are not unconstitutional for lack of uniformity in taxation,\[69\] nor do they generally violate the taxation provisions of state constitutions,\[70\] nor do they deny one the equal protection of the laws.\[71\] In the absence of statutory provisions, a vote to raise license fees may be had, upon sufficient notice,\[12\] at the same time a vote to accept a local option law is held.\[73\] A municipality being given unrestricted power to impose license taxes, the authority conferred is not affected by state law.\[74\] One selling liquor on a boat coming within the territory of a state is liable to taxation.\[75\] Repeals are stated in the notes.\[76\]

\_Bonds.\[77\]--The legislature has a right to require a bond in addition to other civil and criminal penalties,\[78\] but, in the absence of statutory authority, a court has no power to require such a bond.\[79\] The bond is a contract, the sum stated therein being in the nature of liquidated damages.\[80\] The principal and surety are jointly and severally liable,\[81\] their liability continuing during the life of the certificate,\[82\] and extending to the illegal acts of an agent, though done in violation of his specific instructions, unless committed in pursuance of a deliberate purpose to injure his principal.\[83\] A brewing company may become liable as surety upon the bond.\[84\] Defects in the application do not affect the validity of the bond,\[85\] and the latter need not designate the particular building in which the business is to be carried on.\[86\] The bond being accidently given in less than the statutory $\\pm$ Cur. Law.

INTOXICATING LIQUORS SS 3.

263

amount it is nevertheless a good statutory bond to that extent." The court excluding the bond for defects in the application, plaintiff is not obliged to prove a breach of the bond, and file a statement of facts on appeal, in order to review the court's ruling.\[88\]

\_Payment of license fee or tax.\[99\]--A license tax being illegally levied and voluntarily paid it can be recovered on the ground of error only under exceptional circumstances.\[90\] In Wisconsin a village not charged with the legal obligation to support its poor is obliged to pay the license money it receives to the town.\[91\]\_Scope and effect of license.\[92\]--A license is not a contract,\[93\] nor a "franchise," an "office," or "letters patent,"\[94\] but it is a mere personal privilege,\[95\] which may be canceled at any time.\[96\] Its protection extends to agents of the licensee," but is limited by the scope of the license and the law under which it is granted.\[98\] A void license is no protection.\[99\] A license to manufacture gives no right to sell, where the act requiring license to sell makes no exception.\[1\]\_Surrender, transfer, or revocation of license.\[92\]--In the absence of power to forbid the sale of intoxants, a municipal corporation cannot issue licenses subject to forfeiture.\[9\] In revoking the license, the board acts judicially,\[9\] and hav ing jurisdiction," or the proceedings showing on their face that it has absolutely no jurisdiction," certiorari will not lie. On the return day of an order to show cause why a license should not be revoked, the court has authority to order a reference." The license board generally has no power to declare the license void in its inception." Assignee of a license after surrendering the same for cancellation may intervene in an action to revoke the license." If one suffers his license to be revoked by consent before the expiration of the time for which it was granted, he has, after the expiration of such time, no beneficial interest in litigation to review the order of revocation." In some states the license being revoked, the licensee is not entitled to a rebate," even though the license was wrongfully revoked," but in New York the rule is otherwise, the licensee establishing, as a condition precedent, his compliance with the law." An action is not maintainable against license commissioners as such, or as individuals, to recover back alleged overpayments on fees or forfeitures."

The license is not generally assignable at the will of the licensee."

_Sale without license, or without paying tax._"License laws have no extra territorial force." A dealer violating the conditions of his license is, in Florida, guilty of selling without a license." It is no defense to one selling without a license that the city or town did not vote license," nor that there were no commissioners to whom application for it could be made." Each separate sale constitutes an offense." The statute prohibiting a sale without a license, the indictment need not allege that the sale was for gain." One selling liquor without a license cannot contest the legality of the appointment of the license commissioners.\[23\]

In order to convict it must be proved that the tax was imposed.\[24\] It is no defense that the liquor was the property of a partnership of which defendant was a member,\[25\] but the fact that defendant had no knowledge of the intoxicating qualities of the compound sold may be considered in mitigation of punishment.\[26\]

SS 4. \_Regulation of traffic. Prohibition of sale or keeping open at certain times.\[27\]--Generally the owner\[28\] of a saloon is prohibited from keeping the same open or selling liquor on legal helidays, election days\[29\] Sundays,\[30\] and certain hours of the night,\[31\] and he is liable for the act of his bartender in so doing,\[33\] though contrary to his express instructions,\[33\] though some states hold that knowledge or consent on his part is essential;\[34\] but proof of sale by the bartender pre-suptively establishes defendant's guilt.\[35\] The finding of the jury on the question of good faith in prohibiting sales is conclusive.\[34\] A law forbidding the sale of liquor on all legal holidays applies to those created after the passage of the law.\[37\] By shutting off the bar by a substantial adjustable partition, one may keep the remainder of the building open without violating the law,\[38\] but such partition must reach to the ceiling.\[39\] That the owner or another entered the building for the purpose of engaging in work pertaining to the business is no defense in the absence of an emergency,\[40\] and in such case they should not remain any longer than is absolutely necessary.\[41\] A druggist authorized to sell medicines on Sunday may sell intoxicants on such day.\[42\] An exception is sometimes made in favor of \[32\]

## 23 State v. Seampmini \[Yt.\] 59 A. 201

**32.** People v. Lundell \[Mich.\] 99 N. V. 24, 25, 26. Scott v. State \[Tex. Cr. App.\] 12; People v. Posing \[Mich.\] 100 N. V. 356. An information charging a saloon keeper with keeping his saicon open on Sunday. proof that the saloon was kept open by defendant's bartender and not by defendant Beane v. State \[Arl.\] 80 S. V. 573. Personly does not constitute a variance. Id. 20. Under Acts 1901, p. 266, c. 89, % 76, making it a misdemeanor for anyone to give away intoxicating liquons on election day, it is no defense for a licensed dealer to sell such liquons on that day. State v. 79 S. V. 988. Edwards, 134 N. C. 636, 46 S. E. 764. Pen. Code 1895, relating to sale of Intoxicants on election days, is by implication repealed by Gen. Laws (28th Leg.) p. 164, c. 101. 75. Telexts v. State \[Tex. Cr. App.\] 83 S. W. 881. See 2 Curr. I. 564, n. 21. 80. Under Laws 1895 (p. s. 4, 432, % 9), a licensed dealer cannot sell liquor on Sunday. Crab v. State \[Fla.\] 26 So. 169. Eval law. Kappes v. State, 4 Ohio C. C. (N. S.) 14. In such case all reference in the indictment to a sale in surplusage. Id. in Florida, a sale' on Sunday and a sale with-out a license constitute the same offense. Crab v. State \[Fla.\] 36 So. 169. An ordinance prohibiting "keeping open" on Bun-day is violated by keeping open for purpose other than sale of liquor. To permit consultation of propriator and bartender. McCarty v. Atlanta \[Ga.\] 49 S. E. 287. Evidence as to purchase of liquor held sufficient to warrant a conviction of keeping open on Sunday. State v. Gillespie, 104 Mo. App. 400, 79 S. V. 477. 51. A complaint charging defendant, a licensed saloon keeper, with keeping his place of business open after 11 o'clock at night in violation of the law held sufficient, and to state facts constituting a public of-fense. State v. Clemmensen \[Minn.\] 99 N. V. 649. 82. People v. Lundell \[Mich.\] 99 N. V. 573. 12; People v. Fiorlice \[Mich.\] 100 N. V. 356. An information charging a saloon keeper with keeping his saicon open on Sunday. proof that the saloon was kept open by defendant's bartender and not by defendant personally does not constitute a variance. Id. 20. Under Acts 1901, p. 266, c. 89, % 76, making it a misdemeanor for anyone to give away intoxicating liquons on election day, it is no defense for a licensed dealer to sell such liquons on that day. State v. 79 S. V. 988. Edwards, 134 N. C. 636, 46 S. E. 764. Pen. Code 1895, relating to sale of Intoxicants on election days, is by implication repealed by Gen. Laws (28th Leg.) p. 164, c. 101. 75. Telexts v. State \[Tex. Cr. App.\] 83 S. W. 881. See 2 Curr. I. 564, n. 21. 80. Under Laws 1895 (p. s the propriator of a hotel \[45\] who is allowed to serve liquor to guests ordering meals, \[46\] and, in the absence of knowledge to the contrary, the propriator may assume that a single sandwich constitutes a meal for the person ordering. \[47\]

_Prohibition of sale in certain places. \[48\]_--Statutes commonly provide that the business shall be carried on in one room, \[49\] which shall not be in a place where a mercantile \[47\] or restaurant \[48\] business is carried on, nor located in a residential part of the town, \[49\] or within a certain distance of a school or church. \[40\] One acquiring a right of way over public lands for ditch purposes acquires no right to erect a saloon thereon. \[41\] In some states saloons must front on streets or highways. \[48\] The granting of a license is not an adjudication that the premises correspond to the statutory requirements. \[49\]

_Prohibition of sale to certain persons. \[40\]_--One is prohibited from selling liquor to an Indian, \[40\] and lack of knowledge of the latter's nationality is no defense. \[40\] Sales to minors are generally prohibited; as to whether or not lack of knowledge is a defense depends upon the statutes of the state and the construction thereof, \[49\] and the way this question is decided largely determines the sufficiency of the indictment \[40\] and the admission \[49\] and sufficiency \[41\] of the evidence. Evidence that

48. A house having 24 bed rooms, a kitchen -- the passage of said act. Kettern v. State en adequate to provide for the feeding of the guests, a dining room containing over 300 -- 18 8. W. 758. Under Sand. & H. Dig. \[40\], a dining room containing over 300 -- 18 847, the requisite number of persons sign-square feet and harboring between 30 and 18 people, is a "hotel" within the meaning

sale within three miles of a school or church, of Laws 1897, p. 234, c. 312, $ 31, cl. "K." In 18 the imperative duty of the court to re Cullinan, 93 App. Div. 427, 87 N. X. S. 650.

79 S. W. 762. That the signers' names appear on different petitions at different such defense, Cullinan v. Rorphburg, 93 App. Div. 200, 87 N. X. S. 670. Evidence as to filed, makes no difference. Id. Acta 1896: sale of liquor without meals considered and 97, p. 79, prohibiting sale of liquors withheld not to justify a revocation of the license. Matter of Cullinan, 90 App. Div. \[40\], pailed by the charter of the town whereby the latter is given authority to license the sale of liquors, State v. Rushing \[A1a\] 36

45. Where one bought a sandwich de- salo- 4 Cur. Law. **INTOXICATING LIQUORS SS 6A.** 267

minor is a gambler is not admissible," nor is evidence of previous sales competent to show knowledge.\[68\] Written consent of a parent or guardian being a defense, that of a stepfather is sufficient." In some states minors are not permitted to enter or remain in a saloon; remaining in this ease means loitering,\[68\] and the fact that the entering was for a harmless purpose is no excuse,\[69\] nor is lack of knowledge, though it would be a defense to a sale.\[70\] The conditions of the license often restrict one in his right to sell." Liquor dealers may not be prohibited from allowing females to enter their places of business, but entry for illegal purposes may be prohibited."

SS 5. _Action for penalties.\[71\]_--The sum recoverable on a dealer's bond being in the nature of a penalty,\[72\] an action therefore, in the absence of statutory provisions, does not survive.\[73\] Until it is exhausted there may be as many recoveries on the bond as there are breaches,\[74\] and recoveries for several breaches may be recovered in the same action.\[75\] The penalty provided for the sale of liquor to a minor cannot be recovered by the latter's parents.\[76\]

SS 6. _Criminal prosecution. A. Offenses and responsibility therefor in general.\[76\]_--In various states, county courts\[77\] and the mayors of towns\[78\] have jurisdiction over violations of the liquor laws.

State \[Tex. Cr. App.\] $0 S. W. 628\], but it is not allowable to permit a witness to testify that from the personal appearance of the minor he would not have taken him to be a minor (Id.). In suit on bond for sale to do sure for its violation, and that such performance, held improper to place other boy on the stand and merely prove their age, the object being to allow the jury to make comparisons. Poynot v. Holitzfer \[Tex. Civ. App.\] $0. W. 613\], but it is not allowable to permit a witness to testify that from the personal appearance of the minor he would not have taken him to be a minor (Id.). In suit on bond for sale to do sure for its violation, and that such performance, held improper to place other boy on the stand and merely prove their age, the object being to allow the jury to make comparisons. Poynot v. Holitzfer \[Tex. Civ. App.\] $0. W. 628\], but it is not allowable to permit a witness to testify that from the personal appearance of the minor he would not have taken him to be a minor (Id.). In suit on bond for sale to do sure for its violation, and that such performance, held improper to place other boy on the stand and merely prove their age, the object being to allow the jury to make comparisons. Poynot v. Holitzfer \[Tex. Civ. App.\] $0. W. 613\], but it is not allowable to permit a witness to testify that from the personal appearance of the minor he would not have taken him to be a minor (Id.). In suit on bond for sale to do sure for its violation, and that such performance, held improper to place other boy on the stand and merely prove their age, the object being to allow the jury to make comparisons. Poynot v. Holitzfer \[Tex. Civ. App.\] $0. W. 628\], but it is not allowable to permit a witness to testify that from the personal appearance of the minor he would not have taken him to be a minor (Id.

Inoxicating liquor statutes, other than those relating to the transportation of such liquor,79 are to be liberally construed, to the end that evasions may be prevented.80

In states where information prevails, a county attorney is not obliged to institute proceedings upon his own knowledge,81 but, whenever notified by an officer or other person of any violation of the liquor laws, it is his duty to diligently exercise all the authority conferred upon him by law for the purpose of disclosing, prosecuting, and punishing the offender.82 In an action of quo warranto for failing to prosecute, the issue of primary importance is that of good faith.83 This good faith is presumed.84 That the city authorities are about to prosecute does not excuse him from prosecuting.85 Two laws being violated one may be indicted under either.86 Preliminary proceedings before the license commissioners are not a necessary condition precedent to instituting criminal proceedings.87 In New York the prosecution of an agent involving the forfeiture of the principal's license, it should be by indictment.88 A statutory enumeration of intoxicating liquors while conclusive as to the liquors mentioned,89 is not exclusive, the intoxicating qualities of any other liquor being a question of fact80 to be proved by any competent evidence,91 and the force and effect of such evidence are for the jury to determine.92 Mistake of fact as to intoxicating qualities is a defense.83

In some states keeping liquor for sale94 or giving it away88 is prohibited.

**79. Commonwealth v. Beck \[Mass.\] 72 N.**

**81. The composition and character of the liquor, the amount of alcohol it contains, and in what quantities it produces intoxicating, are all competent evidence tending to determine the character of the liquor as an intoxicant. State v. Piche, 98 Me. 348, 56 A. 1052.**

**82. State v. Piche, 98 Me. 348, 56 A. 1052.**

**83. State** v. Trimkle \[Kan.\] 78 P. 854.\*\*

**84. State must prove contrary by preponderance of evidence. State v. Trimkle \[Kan.\] 78 P. 854. That saloons were openly run is relevant on question of motyle. Id. 85. State v. Trimkle \[Kan.\] 78 P. 854.**

Evidence led to be insufficient to warrant defendant's removal from office. Id. 86. Special act being merely cumulative to a general law. Kemp v. State, 120 Ga. 157. 47 S. E. 648. Acts 1874, p. 403, is supplementary to the general law. Id. See 2 Curr. L. 566, n. 46.\*\*

**87. Under Acts 1902, No. 90, 85 45-67.**

**88. Second prosecution made Laws 1896, p. 76, c. 112. People v. Hoenig, 86 N. Y. S. 673.**

**89. Considering Rev. St. 1883, c. 27, 8 33.**

**89. State v. Piche, 98 Me. 348, 56 A. 1052.**

**89. Constructory prohibition of the sale of a specific liquor being absolute it is not necessary for the jury to determine whether or not it is intoxicating. Under Rev. St. 1883, c. 17, 8 1, the amount of alcohol in malt liquor is immaterial. State v. O'Connell \[Me.\] 58 A. 69.**

**90. State v. Piche, 98 Me. 348, 56 A. 1052.**

**A liquor which contains 3 per cent or more of alcohol is not as a matter of law intoxicating, nor is one which contains a less percentage nonintoxicating as a matter of law, but the question is for the jury to determine from all the evidence in the case. Id. Charge that if the liquor will not produce intoxication "If drank in reasonable quantities" etc., held incorrect, a reasonable quantity being left undefined. The expression here used is not equivalent to saying "when drank in such quantities as may practically be drank." Murray v. State \[Tex. Cr. App.\] 79 S. W. 568.**

**91. The composition and character of the liquor, the amount of alcohol it contains, and in what quantities it produces intoxicating, are all competent evidence tending to determine the character of the liquor as an intoxicant. State v. Piche, 98 Me. 348, 56 A. 1052.**

**82. State v. Piche, 98 Me. 348, 56 A. 1052.**

**83. State v. Piche, 98 Me. 348, 56 A. 1052.**

**84. State must prove contrary by preponderance of evidence. State v. Trimkle \[Kan.\] 78 P. 854. That saloons were openly run is relevant on question of motyle. Id. 85. State v. Trimkle \[Kan.\] 78 P. 854.**

**85. State v. Trimkle \[Kan.\] 78 P. 854.**

Evidence led to be insufficient to warrant defendant's removal from office. Id. 86. Special act being merely cumulative to a general law. Kemp v. State, 120 Ga. 157. 47 S. E. 648. Acts 1874, p. 403, is supplementary to the general law. Id. See 2 Curr. L. 566, n. 46.\*\*

\*\*87. Under Acts 1902, No. 90, 85 4 Our Law. INTOXICATING LIQUORS SS 6A. 269

To constitute an illegal sale, the seller must have been the owner or have the rightful possession of the liquor,98 and must have received therefor a present, valuable consideration,99 but it is not necessary to prove the precise person who furnished the money.98 Tickets may take the place of money,99 and no sham or device to invade the above principles will be tolerated,1 but a mere loan to be returned in kind does not constitute a sale.3 That defendant acted in good faith

as agent for the purchaser is a good defense,' but in the absence of evidence to the contrary, one receiving money in exchange for whiskey will be treated as the seller.4 One present aiding and abetting the sale is equally guilty,' and it is no defense that others who might be equally guilty with defendant were not indicted,4 or that there was no drunkenness at the place and time of sale.7 Liquor being shipped to the purchaser, the sale occurs at the time and place of delivery to the carrier.8 In North Carolina the place of delivery is the place of sale.9 In considering statutes on this subject, it should be remembered that the legislature has no power

8. Though at purchaser's request he ad- 293. In the above cases the principle was ap-vanced part of the purchase money which

plied so as to sustain an action for the pur-vass repald him when he gave the liquor to

chase price, or upon a security given for the his principal. Chote v. State \[Tex. Cr, App.\]

purchase price, notwithstanding that the or-s8 S. W. 371. Defendant receiving money

der was given to an agent in, and the liquor and forwarding it with order to liquor deal-

was shipped into, a state (generally the fo-er outside of local option territory, the

turn) by the law of which the sale would have liquor being shipped to the third party, de-

been invalid for made there. And the prin-fendant then kept it on ice for him if he

desired it, issuing checks for it, held de-

with the result of upholding the action for

\[radon not guilty of a sale. Kirby V. State

\[Tex. Cr, App.\] 8 S. W. 1007. See 2 Curr.

sent directly by mail from the state in which L. 568, n. 80-82.

Evidence held aniffleent to overcome de-

fense of agency; Kelly v. Com. \[Ky.\] 83 S.

v. Priest, 65 Iowa, 221, N. W. 680; Orcut

W. 85. Evidence of money passing to

\[Mass.\] 536; Porstmouth

defendant and statement of latter that he

both the whiskey to get rid of it. Burden v.

4 Cur. Law. INTOXICATING LIQUORS SS 6A. 271 to arbitrarily fix the locus of a sale regardless of the rules of contract law.10 In some states the carrier must keep a record of all liquor transported.11 A law regulating the transportation of liquor by express companies does not by implication apply to other carriers.12 In Iowa a citizen may obtain an injunction against illegal sales and may enforce the same.13

Footnote 24: People v. Shuler \[Mich.\] 98 N. W. 986.

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

Footnote 27: People v. Shuler \[Mich.\] 98 N. W. 987.

Footnote 28: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 29: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 20: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 21: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 22: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 23: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 24: People v. Shuler \[Mich.\] 98 N. W. 986.

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

Footnote 26: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 27: People v. Shuler \[Mich.\] 98 N. W. 987.

Footnote 28: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 29: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 20: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 21: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 23: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 24: People v. Shuler \[Mich.\] 98 N. W. 986.

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

Footnote 27: People v. Shuler \[Mich.\] 98 N. W. 987.

Footnote 28: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 29: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 20: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 21: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 22: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 23: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 24: People v. Shuler \[Mich.\] 98 N. W. 986.

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

Footnote 27: People v. Shuler \[Mich.\] 98 N. W. 987.

Footnote 28: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 29: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 20: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 21: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 23: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 27: People v. Shuler \[Mich.\] 98 N. W. 987.

Footnote 28: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 29: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 20: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 21: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 22: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 23: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 24: People v. Shuler \[Mich.\] 98 N. W. 986.

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

to be binding on the druggist.28 The statement of the quantity sold must be definite.29 A blank affidavit containing nothing but the signature of the notary is insnfficient.30 In the absence of a customary signification, abbreviations of necessary words in a prescription are not allowable.31

Good faith in believing sale was for sacramental purposes is a defense in some states.32 A "wine grower" is one who manufactures wine from grapes grown on his own premises.38 "Corked" and "sealed" when used in reference to bottles are not synonymous.44 A minor having arrived at years of discretion he may be convicted of having violated the local option law.38

The state need not prove the exact date on which the sale took place but only that the action was not barred by limitation.38 An action on one's bond being of a civil nature, it does not take the place of nor prevent a prosecution by information or indictment for an act made criminal by the law.37 Whether convicted or acquitted, the accused cannot be again tried for such an offense, committed within the period of limitation governing the case on trial.38 The term "offense" is the equivalent of "conviction."39

(SS 6) B. Indictment, information, or complaint.40--The indictment must be an intelligent statement,41 and is sufficient if it charge the offense in the language of the statute or in terms equivalent thereto.32 The indictment need not set out that the defendant,43 or the liquor,44 or the purpose for which it was sold,45 was of

28. In a prosecution for keeping a drug not to prevent prosecution for illegal sales. store for the unlawful sale of liquor, the jury were not bound as a matter of law, to believe that illegal sales reported by defendants were actually made. People v. Remss on the same day, but does not allege a previous conviction is in legal effect a charge of a first offense only, and the party so beer," does not, it seems, state the "quantity of liquor procured" as required by Pube. Ats 1899, p. 280, No. 183, p. 256. People v. Remss \[Mich.\] 98 N. W. 397.

01. Where law requires drugist to "make and swear to" his report, People v. Remss \[Mich.\] 98 N. W. 397.

01. Letters "P. N. R." held not a valid substitute for "prescribed as a necessary remedy." State v. Manning \[Mo. App.\] 81 S. W. 223.

01. Instruction held sufficient. White v. State \[Tex. Cr. App.\] 79 S. W. 523. Instruction that good faith was a defense though defendant entered into no extended investigation held properly refused as being on the weight of the testimony. Id. That one was in the habit of selling wine to boys for sacramental purposes, and taking their certificate to that effect, is admissible to show his lack of good faith. White v. State \[Tex. Cr. App.\] 78 S. W. 1068.

01. If he manufacture the wine partly from the grapes grown on his own premises and partly from grapes purchased he is not protected. State v. Miller, 104 Mo. App. 297, 78 S. W. 643.

01. A grower selling wine In corked bottles only, held to violate Laws 1899, p. 187. Koban v. State \[Ark.\] 81 S. W. 235.

01. Where he was 16 years old conviction sustained. Brown v. State \[Tex. Cr. App.\] 83 S. W. 378.

01. Watts v. State \[Ga.\] 48 S. B. 142. Though a date was named in Indictment. Cole v. State \[Ga.\] 48 S. B. 156.

01. That one's bond was in force held an excepted class, unless such exception is contained in the enacting clause of the statute.\[46\] It need not name the purchaser;\[47\] by analogy this ruling is applicable to an indictment for suffering liquor to be drank on the premises,\[46\] nor the date of the sale,\[49\] especially if the accused admits an illegal sale on a day within the period of limitation,\[50\] nor the time the law on which it is based took effect.\[41\] The indictment should allege that the local option law was in effect in the territory where the act was committed,\[52\] and in such case need not allege that the sale was illegal.\[53\] All facts which would affect the degree of punishment should be alleged.\[54\] The offense charged being a sale within a prohibited distance from one of a certain class of places, the indictment ought to name the particular place, but failure to do so is not fatal.\[55\] It must allege the manner of the illegal sale, as having been made without a license.\[56\] A sale to an agent may be alleged as a sale to the principal.\[57\] Precise technical words or expressions need not be used.\[58\] An information charging a wholesaler with selling at "retail" charges a sale to a consumer;\[59\] if it alleges that the purchaser did not have a license, it sufficiently charges that the sale was not at wholesale.\[50\] "Spirituous" is synonymous with "intoxicating" so far as proof is concerned.\[41\] Indictments charging the sale of spirituous,\[52\] with keeping open on Sunday and with selling liquor,\[69\] or charging a druggist with making a specific illegal sale, and also with keeping a place where liquors are sold,\[69\] are not double. Allegations which are surpluslange will be disregarded.\[69\] If a 54. Whether sale was within or without local option territory. Cousins v. State {Tex. State v. Duretn \[Kan.\] 78 P. 152. Under Fc. Appl. 79 S. W. 549. As to whether sale exceeded a gallion or not. Id. 55. An information charging sale of in- vase in which liquor is sold on week days. Bramley v. Euclid, 2 Ohio N. P. (N. S.) 508. 508. 44. Indictment need not allege that the liquor sold was not domestic wine. Kemp v. State, 120 G. 157, 47 S. B. 548. 45. An information charging the illegal sale of liquor in local option territory need not allege that the sale was not for sacarmental, medicinal, etc., purposes. People v. Snuer \[Mich.\] 98 N. W. 986. 46. The information must negative the proviso in the Terrell Election Law, # 120, that such liquor may be sold on the prescription of a physician, etc. Fleeks v. State {Tex. Cr. Apppl. 83 S. W. 381. 47. Amdavt charging the offense of facep- ing a place for the sale of intoxicating liquors in violation of the Beal Local Option Law. Dalrympic V. State of Ohio, 5 Ohio C. C. (N. S.) 186. Where the particular sale is not of the essence of the offense. Langan v. People \[Colo\] 76 P. 1048. 48. State v. McGanlily, 105 Mo. App. 333, 79 S. W. 990. 50. Brennan v. Roberts \[Iowa\] 101 N. W. 460. 51. Court will take judicial notice thereof. State v. Seampini \[Vt\] 59 A. 201. 52. Under Fc. Appl. 1093, 85570, Crigler v. Commonwealth \[Ky.\] 83 S. W. 587. See 2 Curr. L. 569, n. 98. 53. Ikard v. State {Tex. Cr. Apppl. 79 S. W. 32. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 21. 23. 25. 27. 28. 29. 22. 23. 24. 25. 28. 29. 23. 24. 26. 27. 28. 29. 24. 29. 25. 29. 26. 28. 29. 27. 28. 29. 28. 29. 29. 30. 31. 32. 29. 33. 34. 35. 36. 37. 38. 39. 38. 39. 39. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 45. 47. 49. 42. 48. 49. 43. 45. 48. 49. 44. 45. 46. 47. 48. 49. 45. 49. 46. 47. 48. 49. 48. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 4 274

Introoxicating LiquORS $ 6B.

4 Cur. Law.

proviso is a part of the definition of the offense, it must be stated in the affidavit, but if it be an exception of certain persons, the negative averment is unnecessary.\[66\] No election is required unless two or more offenses are charged.\[67\] The prosecutor is not obliged to furnish a bill of particulars of the testimony on which he will rely to prove the charge.\[68\]

_Judicial notice.\[69\]_--Courts will take judicial notice of the time an act takes effect, though that time depends upon the result of a popular vote,\[70\] of the sort of goods and chattels saloonkeepers keep on sale,\[71\] of the population of a city in the state,\[72\] and of the fact that joint eating houses and drinking saloons afford opportunities for carousals and lawlessness;\[73\] but not that a compound of intoxiants and noninoxicants is intoxicating.\[74\]\_ Presumptions and burden of proof.\[75\]_--B burden is on the state to prove a sale\[76\] of intoxicating liquor.\[71\] The burden is on one selling to an habitual drunkard after notice to prove his good faith,\[78\] but the contrary is true of a sale by a drug-gist for an apparently legal purpose.\[79\] Possession of liquor is not evidence of illegal possession.\[80\]_ Admissibility of evidence.\[81\]\_--Evidence of other sales at different times is inadmissible unless part of the res gestae or unless it serves to show a system or criminal intent.\[82\] The sale of a particular liquor being alleged, evidence of sales of other liquors is inadmissible.\[83\] Evidence of previous sales and that accused had received consignments about the time of the alleged sale is admissible.\[84\] What was said and done between the parties at the time of the alleged sale is admissible,\[85\] but not statements made by the purchaser to a third party, defendant not being present.\[86\] Declarations of a principal, in order to be admissible against his surety, must ordinarily be a part of the res gestae.\[87\]

ficient negation of license, other negations in the same court for the same purpose, whether or argumentative or otherwise, are more surplusage. State v. Scampini \[\[Vt.1\] # 201.

Adding the words "then in force" to an averment negativing a license held immaterial and not to affect the force of the averment. Id.

66. Bramley v. Village of Euclid, 2 Ohio N. P. (N. S.) 608.

01. Prosector testifying that he bought "Tron Tonic" in the morning and whisky in the evening the state need not elect on which transaction it will seek a conviction, there being no evidence that the tonic was intoxicating. Brown v. State (Tex. Cr. App.) 63 $ 8. W. 378.

01. People v. Congdon \[\[Mich.\] 100 N. W. 336. See 2 Curr. L. 669, n. 6.

01. See 2 Curr. L. 670.

01. State v. Scampini \[\[Vt.\] # 201.

01. State v. Clememensen \[\[Minn.\] 99 N. W. 640.

01. State v. Page \[\[Mio. App.\] # 80 S. W. 912.

01. Paul v. Washington, 134 N. C. 363, 47 S. E. 733.

01. Bradley v. State \[Ga.\] 48 S. E. 73.

01. An indictment falling to allege that "mediicated bitters" are intoxicating is fatally defective. Cousins v. State {Tex, Cr. App.} 73 S. W. 549.

01. See 2 Curr. L. 670.

See particular sections for specific presumptions and instances of burden of proof, as regularity of elections, $ 2; that one is the seller, $ 6a: good faith of druggist, $ 6a, etc.

76. Scales v. State \[Tex. Cr. App.\] 83 $ 8. W. 380.

01. Scales v. State \[Tex. Cr. App.\] 83 $ 8. W. 380.

01. Scales v. State \[Tex. Cr. App.\] 83 $ 8. W. 380. Where witness testified that liquor tasted like whisky, and in his opinion was whisky, and defendant put in evidence that it was a nonintoxicant limitation of whisky.

Patrick v. State {Tex. Cr. App.} 78 S. W. 417.

78. Kaney v. Mannn \[Tex. Civ. App.\] 81 S. W. 66.

01. People v. Shuler \[Mich.\] 98 N. W. 986.

See ante, $ 6a.

80. State v. Blackman, 134 N. C. 683, 47 S. E. 16.

01. See 2 Curr. L. 670.

01. Set v. State \[Tex. Cr. App.\] 83 $ 8. W. 378.

01. There being simply evidence of straight sales for money to various parties, held erroneous to charge that they could be considered as part of a system. Id. System.

White v. State {Tex, Cr. App.} 19 S. W. 523. See 3 Curr. L. 670. n. 28, 30. Good faith.

84. See 3 Curr. L 4 Cur. Law. INTOXICATING LIQUORS SS 6B. 275

Evidence of intoxicating qualities of liquor put up by the same manufacturer, in bottles labeled similarly to that sold, is admissible.\[88\] One who has drunk an alleged medicine may testify as to its intoxicating properties, though he has not qualified as an expert.\[89\]

Knowledge gained by internal revenue officers officially is privileged.\[90\] Copies of books or records from the office of the internal revenue collector are admissible,\[91\] but not statements which a witness swears he saw recorded in the books\[92\] or his opinion as to the effect of an entry therein.\[93\] Where defendant alleges that the sale was on a physician's prescription, the prescription is the best evidence of its contents.\[94\]

The evidence must be admissible under the allegations in the indictment.\[95\] Evidence of search and finding of liquor on day subsequent to that of alleged sale,\[96\] and the testimony of one who accompanied defendant to the house where the sale was alleged to have taken place, that defendant had no liquor with him,\[97\] are admissible. An admission of an illegal sale amounting to a misdemeanor is inadmissible in a subsequent prosecution for the same offense, but after it has been raised to the grade of a felony.\[98\] Hearsay evidence is inadmissible.\[99\] Admission of druggist's afflavit and bond not to adulterate liquors is harmless.\[1\]

Orders of commissioners' court are admissible to prove existence of local option law.\[9\]

\_Weight and sufficiency of evidence.\[9\]-\_All facts required to be stated in the indictment must be proved.\[9\] Proof of single illegal sale is sufficient to establish keeping for unlawful purpose,\[9\] though in Michigan the contrary seems to prevail as the general rule.\[9\] A witness may be shown to be prejudiced against defendant.\[9\]

of whisky defendant sold. Vauter v. State \[dence of its contents. Cuillman v. Hosmer, \[Tex. Cr. App.\] 83 S. W. 186. Evidence of a 91 N. Y. S. 607. conversation between prosecutor and a third party which caused them to go to the place with selling "intoxicating liquor" without where the alleged sale took place. Patrick v. State \[Tex. Cr. App.\] 78 S. W. 947.

**E7.** Declarations of principal night before teaching liquors" is admissible. State v. deceased's death held indadmissible in action \[Vt.\] 59 A. 201.

against surely on bond. Knott v. Peterson \[Oo. Cole v. State \[Ga.\] 48 S. E. 156. \[Iowa\] 101 N. W. 173.

**97.** The issue being whether or not de-s88. Evidence that other liquor from the same brewery and labeled the same way con- \[dined alcohol is admissible. State v. Vills \[Mo. App.\] 80 S. W. 311. Persons having drunk such liquor may testify on such question, whether the drinking occurred on the same day as the alleged sale or not. State v. Good \[W. Va.\] 49 S. E. 121.

**98.** Murray v. State \[Tex. Cr. App.\] 79 S. W. 568. See 2 Curr. L. 571, n. 36.

**90.** In re Lambern, 124 F. 446.

**91.** Thurman v. State \[Tex. Cr. App.\] 78 S. W. 937. Copy of books of internal revenue collector held admissible, though un- \[e.\] the witness testifying that he had correctly copied the same. Intiale "R. L. D." under caption "Business" held to mean retail liquor federal and intelligibly. Terry v. State \[Tex. Cr. App.\] 79 S. W. 319.

**92.** Thurman v. State \[Tex. Cr. App.\] 78 S. W. 937.

**93.** A witness' opinion. conclusion or understanding that a record of an internal revenue collector covered taxpayers from June or July 1, 1902 to the same date in 1903 is inadmissible. Thurman v. State \[Tex. Cr. App.\] 78 S. W. 927.

**94.** Evidence of search for prescription held insufficient to justify secondary evi- \[dence of its contents. Cuillman v. Hosmer, \[Tex. Cr. App.\] 83 S. W. 186. Evidence of a 91 N. Y. S. 607. conversation between prosecutor and a third party which caused them to go to the place where the alleged sale took place. Patrick v. State \[Tex. Cr. App.\] 78 S. W. 947.

**95.** Under an information charging one party which caused them to go to the place where the alleged sale took place. Patrick v. State \[Tex. Cr. App.\] 78 S. W. 947.

**E7.** Declarations of principal night before teaching liquors" is admissible. State v. deceased's death held indadmissible in action \[Vt.\] 59 A. 201.

**96.** Cole v. State \[Ga.\] 48 S. E. 156.

**97.** The issue being whether or not de-s88. Evidence that other liquor from the same brewery and labeled the same way con- \[dined alcohol is admissible. State v. Vills \[Mo. App.\] 80 S. W. 311. Persons having drunk such liquor may testify on such question. Whether the drinking occurred on the same day as the alleged sale or not. State v. Good \[W. Va.\] 49 S. E. 121.

**98.** Mur ant.7Excise agents are not to be ranged in the same category of witnesses as persons hired to procure evidence, nor even as detectives.8 Original minutes of commissioners' court containing all the essential orders are sufficient to prove the existence of the local option law.9

_Trial.10_--Accused admitting an illegal sale, it is not error to deny a change of venue.11 Defendant being accused of violating a local option law, his guilt can only be determined in a criminal proceeding in which the right of trial by jury can be accorded him.12 Defendant's attorney should be permitted to ask jurors if they have a prejudice against one who from his occupation might be in a position to violate the liquor law.13 It is error for the prosecuting attorney, during the non recess, in the absence of defendant and his counsel and in the presence of some of the jury, to pour out the contents of an analyzed bottle of the liquor and light the same.14 Counsel for the state may allude to defendant's failure to explain where he got the liquor.15

Charges must be applicable to the facts of the case,16 and elerical errors will be disregarded.17 The court need not define words in common and ordinary use, the definition and meaning of which jurors are presumed to understand as well as the court.18 One cannot complain of the giving of a requested definition.19

Defendant's violation being a question of fact, it is for the jury.20 Guilt must be proved beyond a reasonable doubt.21 In a prosecution for the violation of a local option law, the court may permit the jury to return their verdict while defendant is in jail, and may discharge the jury in the absence of defendant and his counsel.22 The extent of the fine often depends on whether it is defendant's first offense or not,23 and the amount being within the discretion of the trial judge and not exceeding the statutory limit, it is not subject to review.24

store for the unlawful sale of liquor. People v. Remus \[Mich.\] 100 N. W. 402. Restricting and practically overruling. People v. Remus \[Mich.\] 98 N. W. 397.

7. It is competent to elicit from a witness from the state that he had been convicted of an illegal sale, that defendant had testified against him, and that he had preferred this charge against the defendant and testified before the grand jury. Vann v. State \[Ala.\] 37 Sep. 158.

1. Cullinan V. Rorphuro, 93 App. Div. 200,

87 N. Y. S. 570.

9. Introduction of original petition is not necessary. Holley v. State \[Tex. Cr. App.\] 81 S. W. 957.

1. See 2 Curr. L. 572.

1. Brennan v. Roberts \[Iowa\] 101 N. W. 460.

1. Not by injunction. Hargett v. Bell, 134 N. C. 394, 46 S. E. 749.

1. Patrick v. State \[Tex. Cr. App.\] 78 S. W. 947.

1. Hendrick v. State \[Tex. Cr. App.\] 83 S. W. 711.

1. Rippey v. State \[Tex. Cr. App.\] 81 S. W. 531.

1. Where the sole issue is to the existence of the sale, a charge as to excuses is erroneous. Ratify v. State \[Tex. Cr. App.\] 78 S. W. 936. The evidence not raising the issue of a loan, it is not error to refuse to charge therenon. Arnold v. State \[Tex. Cr. App.\] 79 S. W. 547. Defendant testifying that he did not sell or procure the whisky, it is not error for the court to fall to charge on the law of agency. Holley v. State \[Tex. Cr. App.\] 81 S. W. 857.

1. Word "plaintiff" in requested charge held a mere clerical error, and court should have substituted "defendant." Haney v. Mann \[Tex. Cr. App.\] 81 S. W. 66.

1. Need not define the term "malt lqq- nor." State v. O'Connell \[Me.\] 58 A. 69. The meaning of the word "salz" is to not well known to require explanation. State v. Green \[Kan.\] 77 P. 95. The offense being a midsemeanor, the court need not define in- torelating liquor unless requested. Murry v. State \[Tex. Cr. App.\] 79 S. W. 568.

1. Murry v. State \[Tex, Cr. App.\] 79 S. W. 568.

1. As to whether liquor was served with a meal. Cullinan v. Quinn, 95 App. Div. 492,

88 N. Y. S. 968. The evidence as to the in-toxicating quality of the liquor being conflicting, the issue should be submitted to the jury. Hendrick v. State \[Tex. Cr. App.\] 83 S. W. 711. Where state's evidence establish- es defendant's guilt and defendant's evidence establishes his innocence. James v. State \[Tex. Cr. App.\] 78 S. W. 951. As to what are questions of fact, see particular sections.

21. Instruction examined and held above criticism. State v. Green \[Kan.\] 77 P. 95; Langan v. People \[Coi.\] 76 P. 1048.

01. Rippey v. State \[Tex. Cr. App.\] 81 S. W. 531.

01. A fine of $100 on each count * 4Cur. Law. 2017

## 7 Summary proceedings. Searches, seizures and forfeitures

An affirmative for a search warrant is insufficient if based on information and belief and does not state or show the facts required or is not otherwise corroborated.20 An officer being authorized to seize intoxicating liquors before obtaining a warrant, the latter must be obtained within a reasonable time after seizure, and must be valid, at least upon its face.217

Statutory provisions largely govern.28

8. _Abatement of traffic and injunction.29--A_ court of equity may in some cases enjoin the illegal sale of intoxicating liquors as a public nuisance,10 upon information filed by the proper official,21 or in New York by a taxpayer, the petition not being based on information and belief.28 A place being habitually used for illegal sales, it becomes a public nuisance33 which may be abated or the liquor destroyed in a suit against the owner or keeper.34 To prove the nuisance, proof of actual sales is unnecessary.35 It is the keeping of the place where the liquor is sold or kept for sale that constitutes the nuisance.38 "The place" as here used means the particular place, room, or apartment wherein the liquor was kept for sale or sold in violation of law,37 and it must be particularly identified.38 To be the keeper of a nuisance so as to subject the place to condemnation as such, the person must be an occupant under some claim of right, and not a mere transient and naked trespasser therein;39 and if possession is obtained for a lawful purpose, the place will not be adjudged a nuisance as against the owner, unless, after knowledge or notice of its unlawful use, he permits the occupancy and use to continue.40

One having an easement in land intending to illegally erect a saloon thereon the owner of the fee may remove the material placed on the land.41

The condemnation and summary42 destruction of liquor illegally kept for sale

- 83One or more unlawful sales do not as a matter of law make the place a common nuisance. State v. McIntosh, 98 Me. 397, 57 A. 83. 84. Before intoxicating liquors can be rightfully destroyed under Rev. Codes 1899, 7606, the nuisance must be shown to have been maintained by some person as a defendant and owner or keeper in a pending action. State v. McMaster (N. D.) 99 N. W. 1077. 83; State v. Nelson \[N. D.\] 99 N. W. 1077. And only after a hearing or opportunity to be heard. State v. Nelson \[N. D.\] 99 N. W. 1077. Rev. Codes 1899, 8 7605, does not authorize a proceeding In rem against such liability. States v. McMaster \[N. D.\] 99 N. W. 58. 85. Where evidence showed delivery of liquor at the place and the reputation of the premises being that of a place where intoxicating liquors were diagnosed contrary to law. State v. Dominisse \[Iowa\] 99 N. W. 561. 86. It is not the selling or keeping for sale, or the resorting for the purpose of drinking, that constitutes the nuisance un-der Rev. Codes 1899, 8 7605. State v. Nelson \[N. D.\] 99 N. W. 1077. Room in hotel. State v. Nelson \[N. D.\] 99 N. W. 1077. 88. State v. Nelson \[N. D.\] 99 N. W. 1077. Boarder in hotel selling Intoxicating liquor in a room therein, held hotel could not be adjudged a common nuisance and closed as such. Id. 40. State v. Nelson \[N. D.\] 99 N. W. 1077. 41. Whitmore v. Pleasant Valley Coal Co., 27 Utah 284, 75 P. 748. 42. Acts 1899, p. 11, providing for the 18 a civil proceeding,"\* and is not unconstitutional if it denies the right to a jury trial,"44 nor does it, in such case, deprive one of property without due process of law."45

A decree must be obeyed though irregular46 and not providing for all possible contingencies.47

The finding of intoxicating liquor on the premises occupied by defendant is prima facie evidence of the existence of a nuisance only when the liquor was found by an officer empowered to search for the same under a warrant issued in connection with the temporary injunctional order.47 A cause of action against one, selling liquors, for keeping a nuisance does not \*urvive.48 Repeals are stated in the notes.40

Footnote 47: The term "the

## 4 Cur. Law.

INTOXICATING LIQUORS SS 9.

is deprived of support,\[42\] the expense of caring for the intoxated man,\[65\] and in some states all torts committed while intoxated,\[44\] and all expenses incurred in all criminal and civil prosecutions growing out of and justly attributable to the traffic in such liquor.\[66\]

The burden is on plaintiff to show a sale of intoxicating liquor.\[66\] This may be done by circumstantial evidence, but the weight thereof is for the jury.\[67\] The plaintiff is, however, only required to establish his case by a preponderance of evidence.\[68\] General rules as to examination of a witness apply.\[69\] That the husband failed to support his family is no defense.\[76\]

Proof of damages must be reasonably definite.\[71\] Instruction that jury must be satisfied that death resulted from intoxication must be specially requested.\[72\] In making up the verdict, the jury may consider the deceased's age, habits of life,

D.J 101 N. W. 1081. Evidence held to show

a wife purchases liquor for her husband

that sale of liquor caused suicide of plain-

under compulsion, or to keep him at home,

iff's husband. Id.

she does not thereby defeat her right

61. Where intoxication causes a man to

of action. Ward v. Thompson, 48 Iowa,

commit a crime, the dram-shop keeper who

$58. But see Beem v. Chestnut, 120 Ind.

furnishes the liquor is liable to the man's

390. 22 N. E. 83, where it was held that a

dependent children, who by reason of flight

wife, in her complaint, need not show her

due to the crime are deprived of their sup-

port. Loftus v. Hamilton, 105 III. App. 72, 75.

the sale of the liquor constituted a violation

62. Loss of support is an element of dam-

age where the death of plaintiff's husband

of personal security, and the doctrine of

was caused by intoxication. The husband's

business and earning power may be shown.

--From note to Mastad v. Swedish Brethren

Garrigan v. Kennedy (S. D.) 101 N. W. 1081.

An illegitimate child may recover for death

63. Hurd's Rev. St. 1903, p. 779, par. 8,

of father who was chargeable with such

child's support. Goulding v. Phillips \[Iowa\]

100 N. W. 516. See Zur. L. 574, n. 77-79.

Evidence that plaintiff had a child and that

she was dependent on her husband for sup-

port is competent. Garrigan v. Kennedy (S. D.) 101 N. W. 1081.

NOTE. Labability under civil damage acts.

Under the civil damage acts, giving to any

one injured in his person, property, or means

of support, a right of action against the

person causing the intoxication, an action

lies for direct injuries done by the intoxication, as well as for damages arising

from the intoxication. King v. Haley, 86

Ill. 106, 29 Am. Rep. 14; Thomas v. Dansby,

74 Miben. 338, 41 N. W. 1088. Assault and

battery, English v. Beard, 51 Ind. 489;

Bodge v. Hughes, 53 N. H. 614; Bacon v. Jacobs,

65 Hum, 51, 17 N. Y. S. 322. And, apart

from statute, he is liable where the person

assulted is one of his patrons or customers.

Mastad v. Swedish Brethren, 83 Miben. 40, 85

Am. St. Rep. 446, 85 N. W. 913. Homelide.

Munz v. People, 90 III. App. 647; Brockway

v. Paterson, 72 Mich. 122, 40 N. W. 192.

The authorities are not harmonious on the

question whether a liquor seller is liable to

a wife where he has sold liquor to her husband, causing his intoxication. and he, while

invickated, commits a crime for which he is

convicted and imprisoned. The following

cases hold she can recover: Honsire v. Halfman, 156 Ind. 470, 60 N. E. 154; Beers v. Walker, 43 Hum (N. Y.) 254. The following

that she cannot: Bradford v. Boley, 167 Pa.

506, 31 A. 751; Denison v. Van Wormer, 107

Mich. 471, 65 N. W. 274.

A person complaining of the wrongful act

of a liquor seller in causing the intoxication of another, from which damages or injury

sults to him, must not be an active or willing agent in bringing about the intoxication. Hays v. Waite, 86 Ill. App. 387; Enegleben v. Hilger, 43 Iowa, 562. Though if

the letter, 11 N. W. 1081.

a wife purchases liquor for her husband

that sale of liquor caused suicide of plain-

under compulsion, or to keep him at home,

iff's husband. Id.

she does not thereby defeat her right

61. Where intoxication causes a man to

of action. Ward v. Thompson, 48 Iowa,

commit a crime, the dram-and amount he was earning and furnishing his family for support at and before his death.\[73\] Exemplary damages should be given only to compensate injury to feelings caused by the vanton or reckless act of the defendant.\[74\]

SS 10. _Property rights in and contracts relating to intoxicants.\[75\]_--In North Dakota intoxicating liquor is recognized as property that has a legitimate use.\[76\]

**INTOKICATION:** INventions; INVESTments; INRIGATION; ISLATDS; ISSUE; ISSUE; ISSUE; JOETJ; JEORIAS; JEORIAS; JOINED OF CAUSS, see latest topical index.

JOINT ADVENTURES.

A joint adventure involves joint interest.\[77\] Such a contract does not constitute a partnership unless the parties so intend or unless they hold themselves out to the public as partners.\[78\] Parties to a joint adventure may be entitled to an accounting\[79\] or to partition.\[80\]

JOINT Executors and Trustees; Joint LIabilities on Agreements, see latest topical index.

JOINT STOCK COMPANIES.

Such associations differ from partnerships only in that the capital stock is divided into transferable shares,\[81\] and in some states they are known as partnership associations. Provisions of statute relating to corporations are generally inapplicable.\[82\]

JOINT TENACT, see latest topical Index.

**JUDGES.4**

**SS 1. The Office; Appointment or Election;** (283). Immunites and Exemptions (284). Qualifications and Tenure (280). Disability to Practice (285). **SS 2. Special, Substitute and Assistant** \*\*SS 4. Disqualification In Particular Cases (285). Procedure, and Trial of Fact of Disqualification (285). **SS 3. Powers, Dutles and LIabilities (283).**

Powers During Vacation or at Chambers **SS 5. Removal (286).**

**SS 1.**_The office; appointment or election; qualifications and tenure.\[84\]_

Within constitutional bounds the legislature may create the office.\[88\] The term and time of election fixed by the constitution cannot be altered,\[88\] and a legislature.

**73. Knott v. Peterson \[Iowa\] 101 N. W.** \*\*80. See Partition, 2 Curr. L. 1097. Where one party to a joint adventure in land erects 74. Considering Comp. Laws 1897, SS 5398. buildings thereon so that sale of the land \[is impossible, the other party is entitled in an instruction referring to actual and exemplary damages as follows: "Of course share of the profits. Fox v. Mahony, 91 you will consider them separately in the jury room," held not erroneous as making it \[81\]. Shumaker, Partn. p. 447; see Partn. mandatory on them to proceed in that mannership, 2 Curr. L. 1106. **82. Such associations are not within a 75. See 2 Curr. L. 575.**

**76. Laws of N. D. ch. 63. Possession is not prima facte unlawful. State v. McMaster \[N. D.\] 99 N. W. 68.**

**77. A license to manufacture a patented article for a royalty does not constitute a joint adventure. Henderson v. Dougherty, 95 App. Div. 346, 88 N. Y. S. 665. Evidence is admissible to show that a clause in a note limiting liability of three makers to one-third each was intended to avoid a liability as partners. Wheaton v. Bartlett, 105 Ill. App. 226.**

**78. Shumaker, Partn. p. 19; see, also, Partnership, 2 Curr. L. 1106.**

**79. See Account, Action For, 3 Curr. L. 24. It is no defense that part of the profits were earned by an illegal transaction, complainant being innocent. Van Tine v. Hilands, 131 F. 124.**

**79. The Office; Appointment or Election;** (283). Immunites and Exemptions (284). Qualifications and Tenure (285). Disability to Practice (285).\*\*

**80. See Partition, 2 Curr. L. 1097. Where one party to a joint adventure in land erects 74. Considering Comp. Laws 1897, SS 5398. buildings thereon so that sale of the land \[is impossible, the other party is entitled in guilty to have the land charged with his share of the profits. Fox v. Mahony, 91 \[Appl. Div. 284, 88 N. Y. S. 679.**

**81. Shumaker, Partn. p. 447; see Partn. mandatory on them to proceed in that mannership, 2 Curr. L. 1106.**

**82. Such associations are not within a state providing for cumulative voting in corporate elections. Attorney General v. McVelhe \[Michel.\] 101 N. W. 552.**

**83. This title relates solely to the law representing judges as distinguished from courts, jurisdiction, and procedure.**

**See Courts, 3 Curr. L. 970; Jurisdiction, 2 \[Curr. L. 604; and titles relating to procedure \[generally. It is analogous to the title Off-cers and Public Employes, 2 Curr. L. 1063.**

**84. See 2 Curr. L. 577.**

\*\*85. Act March 25, 1901, providing for an additional judge for the circuit court of 4 Cur. Law. JUDGES $ 1. 281

lative change in the name or number of a judicial district does not affect the title of the judge to his office. \[87\] An election cannot be held on a date other than that fixed by law. \[88\] The term is computed according to the meaning of the statute. \[88\] If it run till qualification of successor, the election of a successor without qualifying does not affect the incumbency. \[90\] The power to fill vacancies cannot be exercised before the occasion \[91\] nor after the time \[92\] specified by statute. Such bond as required by law must be given, \[93\] though one tendered was refused. \[94\] Its approval or rejection may be compelled. \[95\] Failure to take the required oath will not affect the validity of official acts, \[98\] nor does illegality of the mode of compensation, at least not when first raised on appeal. \[97\] In criminal cases the want of constitutional election and qualification cannot be waived. \[98\]

_Salary. \[99\]_--If not fixed by the constitution, the amount of the salary is subject to statutory regulation. \[1\] A constitutional provision that compensation shall not be changed during continuance in office refers to the term and not to the individual. \[2\] A de jure judge may be precluded from recovering the salary of his office where such salary has been paid to a de facto officer who has performed the duties of the office. \[9\] A court commissioner is not entitled to his compensation as such unless he complies with the statute providing for it. \[9\] No

also, Judges, 2 Curr. L. 577, n. 38. The adopt- tion of theennial election amendment to sloned to try a particular case are valid as the constitution in the year 1902 did not reveal biennell election law of 1901, disp other compensation than that provided can be allowed.\* A fee compensated judge may have fees only in the cases provided.\*

SS 2. _Special, substitute and assistant judges.\* Appointment and calling_ is governed by the statutes. The validity of a statute providing for the election of a special judge cannot be raised as an objection to a special judge lawfully presiding.\* A statute providing for a change of judges on filing an affl-davit of prejudice does not conflict with a constitutional provision authorizing judges to sit for each other on invitation.\* The power to call in a judge does not exist in cases where the statutes provide for transfer of the cause.\[10\] The right to elect a special judge by consent in civil suits does not apply to criminal proceedings.\[11\] In Texas a special judge may be chosen for a special term just as for a general term.\[12\] The clerk alone in Tennessee calls the election, de-clares the result and administers the oath.\[13\] The selection of a special judge must be authenticated on the record\[14\] by the proper officer.\[15\] The order for it reciting the occasion for calling a special judge, the particulars of the election or appointment, the eligibility and qualifications of the person elected, and his oath should be entered as part of the caption of the proceedings of the term,\[15\] unless the appointment be for a particular case, when it should follow the style of that case on the minutes.\[17\] The special judge even if not authorized to do this should see that it is timely done.\[18\] His authority cannot be presumed in criminal cases.\[19\]

_Powers and duration thereof.\[20\]_-A special judge has for the purpose the jurisdiction and powers of the regular judge.\[21\] It will be presumed that his judicial acts are performed under his special authority.\[23\] Judicial acts apperper-

5. Ky. St. 1903, SS 1740. Fidelity Nat. 249: Missouri, K. & T. R. Co. v. O'Connor \[Tex. Clv. App.\] 78 S. W. 374; St. Louis S. W. R. Co. v. Swinney \[Tex. Clv. App.\] 78 S. W. 374; Missouri, K. & T. R. Co. v. Stinson \[Tex. Clv. App.\] 78 S. W. 386. Girls Industrial Home only in cases where no prosecution and conviction is required, his fees being the same as that fixed for clerks of commons plans in Ifke cases. Millard v. Conradi, 5 Ohio C. C. (N. S.) 145. In the matter of inqueues of lunacy, a probate judge is entitled to only such fees as are provided for in Rev. St. $ 719. Section 547 is not applicable. Id. 7. See 2 Curr. L. 378. 8. The validity of a statute under which the attorneys may select a special judge on the disqualification of the regular judge cannot be considered where the agreement of the attorneys was abrogated and the special judge agreed on was commissioned by the governor. Powers V. State, 83 Miss. 691, 36 So. 6. 9. State v. Clancy \[Mont.\] 77 P. 512. 10. Constructing Code Clv. Proc. $ 342 and SSS 52, 53, providing for the transfer of causes in case of disability of the county judge. In re Munson, 95 App. Div. 38, 88 N. Y. S. 509. Under Code Clv. Proc. $ 62, a special proceeding may be continued before a justice of the supreme court residing in another county on disqualification of the justice residing in the county in which it originated. In re Town of Hadley, 44 Misc. 276, $ 8 N. Y. S. 910. 11. Code, $ 3921. Low v. State \[Tenn.\] 78 S. W. 110. 12. State studies to both. Missouri, K. & T. R. Co. v. Huf \[Tex. Clv. App.\] 78 S. W. 374; St. Louis S. W. R. Co. v. Swinney \[Tex. Clv. App.\] 78 S. W. 374; St. Louis S. W. R. Co. v. Swinney \[Tex. Clv. App.\] 78 S. W. 386. 387; Missouri, K. & T. R. Co. v. Stinson \[Tex. Clv. App.\] 78 S. W. 386. 388; St. W. R. Co. v. Swinney \[Tex. Clv.

4 Cur. Law. JUDGES $ 3. 283

taining to the office are properly performed by virtue of his special authority, notwithstanding his ordinary powers relative thereto as a different officer.\[23\] If appointed to hear, try and determine a cause, he retains jurisdiction to the end,\[24\] and may file a decree after the expiration of his commission.\[25\] One appointed ex-officio to serve until appointment is revoked continues through and into a new term of his ordinary office to which he is re-elected.\[26\] A judge chosen in Tennessee "for the occasion" has no authority after the term.\[27\]

SS 3. _Powers, duties and liabilities.\[28\]--A_ single judge may when authorized exercise court powers.\[29\] If judicial action be needed, a judge cannot act on that which was not heard before him.\[30\] A judge should not sit to review the mere exercise of judgment by his predecessor,\[31\] or to change a final judgment by a co-ordinate judge,\[32\] unless it be clearly wrong because of mistake or fraud.\[33\] but administrative orders may be altered or modified,\[34\] and statutory authority to sign bills of exception is authority to pass on a motion for a new trial on its merits.\[35\] The judicial powers of court commissioners authorized by law to be appointed are such as the statutes by fair construction include.\[36\] A judge may be compelled to consider a matter within his jurisdiction.\[37\] Judges have only such nonjudicial powers as are specifically conferred by law.\[38\] Ministerial acts may be performed outside the district.\[39\]

_Powers during vacation or at chambers.\[40\]--The judicial power of a judge during vacation or at chambers is a matter largely of statutory regulation.\[41\]_

23. The judicial acts of a justice of the piece acting as assistant justice of the district court are properly signed as assistant justice. notwithstanding he may be authorized to issue warrants returnable to the district court, in which case he shall sign as justice authorized to issue warrants. Out the exercise of judgment, or through State v. Chappell \[R. I\] 58 A: 1009.

01. May entertain a motion to vacate findings of fact, conclusions of law, and a decree entered by him in such action. Fisher * v. Puget Sound Brick, Tile & Terra Cotta Co., 34 Wash, 578, 76 P. 107.

01. It will be regarded as filed on the date * it was heard. Roberts v. Wessinger \[S. C\] 48 S. E. 248.

01. Under a statute providing that the assistant justice may serve until his authority is revoked, his term does not lapse because he begins a new term as justice of the peace. State v. Chappel \[R. I\] 58 A. 1009.

01. Low v. State \[Tenn.\] 78 S. W. 110.

01. See 2 Curr. L. 579.

01. In Massachusetts a single Justice of the ampreme court has power to determine a motion to dismiss a creditor's appeal from a broken device allowing a guardian's final account. Leyland v. Leyland \[Mass.\] 71 N. E. 794. Where one judge constitutes a quorum in the trial of certain cases, incidental questions arising in connection with such trial are subject to final decision by him.

Though under Pub. Laws 1897, 4, 51, 3, he may reserve it for hearing before three justices of the appellate divison. Banigan v. Banigan \[R. I\] 59 A. 313.

30. A judge who hears neither the evl-dence nor argument of a cause cannot enter judgment therein. Evidence heard by one judge, argument by another and judgment entered by a third. In re Sullivan \[Cal.\] 77

P. 153. The attorney of an incompetent can- not consent to the entry of such judgment.

31. Parties aggrieved should be left to terlocutory and provisional orders may usually be made,\[43\] but not final judgments,\[43\] or a change of a judgment already entered,\[44\] or a motion for a new trial dismissed.\[45\] He cannot make a verbal order for the entry of an appeal.\[46\] In an equity cause, before filing the decree, the judge has power to grant a new trial.\[47\] A writ of prohibition does not lie to a judge at chambers,\[48\] but a justice of the supreme court may issue it in vacation returnable at term.\[49\] Alternative mandamus may be returnable at chambers,\[50\] but the writ itself can only be issued after judgment of a court.\[41\] If a summons is improperly made .returnable at chambers, the action should not be dismissed. It should be transferred to the trial docket,\[82\] unless the complaint can be so amended as to bring it within the jurisdiction of the judge at chambers.\[83\]

_Immunities and exemptions.\[54\]--Neither the judge of a superior court\[55\] nor the judge of an inferior court\[56\] is liable for judicial acts within his jurisdiction.\[87\] The judge of a superior court is not liable for erroneously deciding a question as to his jurisdiction,\[88\] but the judicial office is no protection against liability for malicious acts beyond his jurisdiction,\[89\] nor for erroneous ministerial acts.\[60\]_

**42. An order of reference to take test-mony may be made at chambers. Pratt v. Timmerman \[S. C.\] 48 S. E. 255.**

**43. Under Millie's Ann. Code, SS 408, limiting the power at chambers to a hearing of motions and demurmers and making interlocutory orders and rules preparatory to disposition of causes on the merits, a judge cannot In vacation at chambers render a final judgment. People v. Hebel \[Colo. App.\] 78 P. 550.**

**44. Order directing a convicted defendant to be committed to a jall other than the one designated in the judgment is unauthorized. In re Rex \[Kan.\] 78 P. 404:**

**45. Miller v. Thigen \[Ga.\] 49 S. E. 286.**

Order the entry, nune pro tune of a judgment or overrule a motion for a new trial, even though there is statutory authority to amend a judgment or decree. Accousi V. G. A. Stowers Furniture Co. \[Tex. Civ. App.\] 83 S. W. 1104.\*\*

**46. At this private office after the expiration of the term and without the clerk or the clerk's notes being before him. Hays v. Philadelphia, W. & B. R. Co. \[Md.\] 58 A. 439.**

**47. After adjourment but before decree rendered, a judge at chambers in another county can refer the case to the referee, permit other attorneys to appear on behalf of the parties interested, though the result of the order is in effect to grant a new trial. First Nat, Bank v. Lee \[S. C.\] 46 S. E. 771.**

**48. Sand. & H. Dig. SS 4892, defining it as one addressed to an inferior court. Reese v. Steele \[Lark.\] 83 S. W. 335.**

**49. In Missouri, a Justice of the supreme court has power to issue a preliminary rule in prohibition returnable to and/or the court in term time. Inherent powers of the supreme court and direct provisions of Rev. St. 1899, c. 55 and Const. art. 6, SS 3. State v. Dearing \[Mo.\] 84 S. W. 21.**

**40. In Missouri, a Justice of the supreme court has power to issue a preliminary rule in prohibition returnable to and/or the court in term time. Inherent powers of the supreme court and direct provisions of Rev. St. 1899, c. 55 and Const. art. 6, SS 3. State v. Dearing \[Mo.\] 84 S. W. 21.**

**42. An order of reference to take test-mony may be made at chambers. Pratt v. Timmerman \[S. C.\] 48 S. E. 255.**

**50. Martin v. Clark, 135 N. C. 178, 47 S. E. 397.**

**51. Under Sand. & H. Dig. SS 4891, defining it as an order of a court of competent and original jurisdiction. Reese v. Steele \[Lark.\] 83 S. W. 335.**

**52. Martin v. Clark, 135 N. C. 178, 47 S. E. 397.**

**53. In North Carolina, where a summons la made returnable at chambers and the comma- piani states a case which should be heard at term, it may be amended so as to bring it within the jurisdiction of the judge at chambers \[Code, SS 623, 256 and SS 256, as amended by Laws 1887, p. 518, c. 276\]. Ewbank v. Turener, 124 N. C. 77, 45 S. E. 508.**

**54. See 2 Curr. L. 580.**

**55. O'Connell v. Mason \[C. C.\] 132 F.**

**56.**

**57. Allocation that acts complained of were not judicial acts and were done without authority does not state a cause of action unless particular acts are set out. Id.**

**56. An ordinary (probate judge) Is not personally liable for erroneous judicial acts. State v. Henderson \[Ga.\] 48 S. E. 34.** 285

_Disability to practice."--Judges of inferior courts may practice in courts other than their own.\[42\]_

SS 4. _Disqualification in particular cases.\[63\]--Interest and kinship are the sole common-law disqualifications.\[64\]_ The interest must be such that the result would necessarily affect him to his personal pecuniary loss or gain.\[65\] Common-law disqualifications give way to necessity,\[66\] and have no application to the members of a quasi judicial tribunal acting judicially in dealing with administrative affairs.\[67\] A statute disqualifying for relationship applies only to parties in interest,\[66\] and has been held inapplicable unless the relationship be sustained to a party to the record.\[68\] If, however, the relationship exists, it is immaterial whether the litigant is suing in his own right or in a representative capacity.\[69\] Such disqualification may be waived.\[70\]\_

_Disqualification because of having been of counsel_ applies only to actions where the same issues are involved.\[71\] A judge who is of counsel in an action relative to the same subject-matter is disqualified.\[72\]\_

In an action to hold a probate judge on his official bond for damages for taking a guard-before whom he was tried was the employe isn's bond executed under an alleged in-valid power of attorney, evidence held to of not guilty waived the objection, based on the alleged disqualification of the trial judge. Best v. Robinson (KY-1) 82 W. W. 302. Pro-bete judge and surieties on his official bond are liable for his neglect of duty in taking an inadequate guardins's bond. Williams v. Weeks (S. C.) 48 S. E. Glips. Where a pro-bete judge takes a worthless guardian's bond, the burden is on him to show the solv-ency of the varieties at the time it was taken. (Tenn.) 154; People v. Connor, 142 N. Y. 130.

At common law, the right to object to a judge on the ground of interest was considered a personal privilege, in favor of the party likely to be prejudiced. Such a judge-ment was therefore merely vodable. Dimes Oregon Short Line R. Co. (Utah) 78 P. 866.

759; Findley v. Smith, 42 W. Va. 299. But

64. State v. Houser \[Wins.\] 100 N. W. 944.

01. A judge is not disqualified to determine the validity of a statute providing for a local assessment by reason of being a tax-payer in the locality. City of Oak Cliff v. State \[Tex.\] 79 S. W. 1068. "Interest" means direct pecuniary interest. State v. Houser \[VWs.\] 100 N. W. 964. The county judge being incompetent because of interest, to hear and determine election cases, he properly certified them to the circuit court. Johnson v. Brice \[Tenn.\] 83 S. W. 791.

01. Where there is no other tribunal to try the case in hand. State v. Houser \[VWs.\] 100 N. W. 964.

01. Political state central committee. State v. Houser \[VWs.\] 100 N. W. 964.

01. Not where counsel who was a pro-er-in-law and had the case on a contingent basis but prior to the trial the contingent fee contract was abrogated and counsel wasived any Iien he might have on the Judg-ment. Knielecbrocker v. Worthing \[Mich.\] 101 N. W. 540. The husbands of two sisters are "brothers-in-law" within the meaning of a statute providing for the recsasion of judges. State v. Foster, 112 La. 533, 36 So. 554.

01. Not wifere the father of the judge was attorney and was to be compensated by a percentage of the recovery. Hundley v. State \[Fla.\] 36 So. 362.

01. State v. Foster, 112 La. 533, 36 So. 554.

01. Defendant appealed from a conviction to the state of the judge.

01. Does not apply to an action to en-force a judgment rendered in a case in which he was counsel. Keeffe v. Third Nat. Bank, 177 N. Y. 305, 69 N. E. 593. A judge is not disqualified to determine an issue whether the maker of a note promised after _Bias and prejudice!_\* is not ground for disqualification!\* unless so provided by statute.

_Procedure, and trial of fact of disqualification._--A judge is not required to withdraw from the hearing of a case upon the mere suggestion that he is disqualified to sit.\*\* If sitting alone he must decide the sufficiency of the proofs,\*\* but his determination is not a matter of discretion.\*\* A motion to recuse for affinity is properly referred by him to a judge ad hoc.\*\* But a motion to recuse the judge ad hoc so appointed should be decided by him.\*\*

Prejudice cannot be charged against the judge of any court other than the one to whom the application for change of venue is addressed.\*\* Disqualification is waived by going to trial after a change of venue has been obtained.\*\* The Montana statute providing for disqualification by merely filing an affidavit of prejudice is not in violation of the state constitution.\*\* A speedy trial is not denied though two-thirds of the judges of the state may be successively disqualified.\*\* Being applicable to civil cases only, it does not authorize a party to disqualify a judge to punish him for contempt.\*\* It does not authorize the affidavit to be filed after trial begun.\*\* The procedure prescribed must be followed.\*\*

**SS 5.**_Removal._**--Error in judgment,**${}^{ ext{ extregistered}}$ or an erroneous application of le 4 Cur. Law. JUDGMENTS SS 1.

gal principles is not ground for removal." It must be shown that his judicial acts were corrupt," or that there was a disregard of legal rules amounting to legal misconduct." A judge may be removed for willfully making a wrong decision" or for manifesting favoritism toward one party or his attorney to the prejudice of another," for a reckless exercise of judicial functions, without regard to the rights of litigants," though such favoritism was not the result of bribery," or for removal from the district in which he is elected where a statute provides that he shall be a resident of such district."

JUDGMENT Notes, see latest topical index.

JUDGMENTS.

1. Definition and Nature (287). 1 2. Kinds of Judgment (288). 1 2. Kinds of Judgment (289). Power of Court During and After Term (299). Parties Applicant tion, or Confession (288). 1 3. Grounds for Enjoining Enforcement B. Default and Office Judgments (289). 3 4. The Art Particular Stages of the Action and Chamber of Procedure (308). Burden of . (288). 4. The Fnal and Introductory Judgments (310). Extent and Effect of Rellef (210). E. Persson or in Rem (289). 5 8. Operation and Effect in General (311). 6 8. Requires (290). 7 8. Colateral Attack. What Is Collateral (312). 8 10. Loen (314). 9 11. Snspension, Dormaney and Revvival (316). 1 5. Rendition, Entry and Decketing; Constants of Judgment Roll (296). 1 12. Payment, Discharge and Satisfne-Judgment Non Obstante; Writ of Error Co- 5 14. Executions, Other Final Process and Creditors' Suts (320). 1 15. Actions on Judgment; Merger (329).

This topic excludes all matters relating to foreign judgments,1 the consiveness of judgments,2 and the mode of enforcing the judgment."

SS 1. _Definition and nature._--A judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of proceedings instituted therein.4 A judgment is a debt," and, when against a

90. In re Baker, 94 App. Div. 278, 87 N. 95. In re Bolte, 97 App. Div. 561, 90 N. Y. X. 8 1022. 91. In re Tighe, 95 App. Div. 28, 89 N. Y. 10 10.1 11. In re Tighe, 95 App. Div. 28, 89 N. Y. 10 11. A petition for removal on the ground that he has failed to perform the duties of 96. In re Bolte, 97 App. Div. 851, 90 N. Y. 11. This office must show that the did not exercise his best judgment. In re Baker, 94 App. Div. 278, 87 N. Y. 1022. The fact that more persons were discharged than were committed for a particular offense does not show that he was hostile to the enforcement of laws aimed at such offense. In re Tighe, 96 App. Div. 28, 89 N. Y. 8. 719. It must be shown that he did not determine the questions submitted as he thought the administration of justice required. Id. 92. In re Tighe, 95 App. Div. 28, 89 N. Y. 8. 719. 92. Under Const. art. 6, 87 2, 17, Laws 1580, p. 621, c. 554, Code Civ. Proc. 220, and LAw 1501, p. 589, c. 466. The appellate division may remove. In re Bolte, 97 App. Div. 651, 90 N. Y. 8. 499. Exercising jurisdiction where it is shown that process had not been served. Id. 94. Refusing to allow objections and exceptions to be noted; omitting evidence, exceptions, and objections from returns on appeal. In re Bolte, 97 App. Div. 551, 90 N. Y. 8. 499. 1 7. Opening, Amending, Vacnting, and other Rellef (290). Power of Court During and After Term (299). Parties Applicant tion, or Confession (288). 1 301. Grounds for Enjoining Enforcement B. Default and Office Judgments (289). 3 4. The Art Particular Stages of the Action and Chamber of Procedure (308). Burden of Proof and Evidence (309). Issues to Jury (310). Extent and Effect of Rellef (210). 2 289. 1 8. Operation and Effect in General (311). 8 3. Requires (290). 3 4. In General (290). 5 9. Collateral Attack. What Is Collateral (311). Grounds (312). 1 10. Loen (314). 11. Snspension, Dormaney and Revvival (316). 1 5. Requires, Entry and Decketing; Constants of Judgment Roll (296). 1 12. Payment, Discharge and Satisfne-Judgment Non Obstante; Writ of municipality,' it has only the effect of an audited claim or demand, giving no new right in respect to the means of payment.6

Footnote 6: https://www.math.uc.edu/~hav/

SS 2. \_Kinds of judgment. A. Judgments on offer, consent, stipulation, or confession.7--An offer of judgment may be made in the appellate court,' in New York it need not be accompanied by an afflavit;' but in all cases must be for the full amount due,10 and being unaccepted is not an admission of plaintiff's cause of action.11 Under the New Jersey statute requiring afflavits for judgment on warrant of attorney to state the true consideration of the bond, and that the debt is justly due, such debt need not antedate the delivery of the bond,12 and being unpaid it is immaterial whether or not it constitutes an ac-crued right of action.13 That the time of payment has been extended is immaterial in the absence of a plea to that effect.14 It is essential, however, that the consideration be stated with substantial truth,15 and it is immaterial that the afflavit is inartificially drawn and not technically precise.16 Judgment should be entered for the sum mentioned in the bond and warrant.17 Authority to confess a judgment without process must be clear and explicit, and must be strictly construed;18 it generally authorizes the entry of but one judgment,19 and the power being inadequate the judgment is a nullity.20 In the absence of evidence to the contrary, an attorney is presumed to have such power.21 To be of any validity and to warrant a judgment, the waiver of citation and the confession of judgment must be made after the maturity of the obligation declared upon.22 A judgment by confession must be for a fixed and definite sum, and in confession of a fact that can be read from the record.23 Its validity is not affected by the fact that a jury trial was not formally waived, nor because findings were not made by the court.24 An officer of a corporation may confess judgment against it though he be one upon whom valid service could not be had,26 and though he be personally interested in having the judgment so rendered.26

Footnote 4 Cur. Law. Judgments $ 25. 289

(SS 2) _B. Default27 and office judgments.28--Plaintiff agreeing to a continuance and allowing such agreement and continuance to be entered of record, the office judgment cannot become final until it is entered up as the judgment.29 Before such entry, the defendant may have the judgment set aside by filing his counter affidavit and pleading to issue.30_

(SS 2) _C. At particular stages of the action.--Judgment may be entered on the pleadings31 and a demurrer being overruled, a decision should be made directing the entry of an interlocutory judgment.32_

(SS 2) _D. Final33 and interlocutory judgments.--A judgment to be final must finally ascertain the amount34 and distribution35 of the recovery or fund in controversy, and must dispose of the entire subject-matter of the litigation and the rights of the parties therein.36 A voluntary nonsuit,37 an order overruling a demurrer,38 and, in the absence of an accompanying decree of dismissal, an order sustaining a demurrer,39 are not final judgments, though a default judgment may be.40_

(SS 2) \_E. Personam or in rem.--A judgment in rem is an adjudication upon the status of some person or thing,41 while a judgment in personam is one against the person.42 Thus judgments in actions to set aside deceds43 for the judgment was a legate in the estate. Manholder's liability, a decree determining amount of corroboration's debts, and creditor's rights to an assessment is final. Bennett v. also as to opening defaults, see post, SS 7. 28. See 2 Curr. L, 583, a 47-49: also see Default, S Curr. L, 1069, 1071, n 51-53: Mode of procedure In West Virginia to take office judgment and how the same becomes final or is opened, see 1 Curr. L, 914. 29, 30. VWm. James' Sons & Co. v. Gott \[VW. Va.\] 47 S. E, 649. 31. Courts of record have inherent power to so do. Stratton's Independence v. Dines, 126 F. 968. 32. Brown v. Leary, 91 N. Y. S. 463. 33. See article Appeal and Review, 3 Curr. L, 167, as to final judgments for the purposes of appeal. 34 Judgments are Interlocutory where a commissioner is necessary to assess damages (Leonard v. Sibley \[Yv. L\] 56 A. 1015), or where a final accounting is necessary (Osborn v. Cardexa \[N. Y\] 72 N. E. 625). 35. Judgments are Interlocutory where they order that the fund in court be appropriated after the determination of certain issues between two of the parties and that the cause be continued until such determination.36 A. Opison Hardware Co. v. Duff \[Tex. Civ. App.\] 83 S. V, 907, or where the balance of the fund realized by sale is to be held subject to the further order of the court (American Trading & Storage Co. v. Gottstein, 123 Iowa, 267, 98 N. W. 770). 36. Must contain a statement that "It is considered by the court that the plaintiff take nothing by his writ and that the defendants go hence without day," or words of similar Import. Wenon v. Fossick \[Ill.\] 72 N. E. 732. A decree finding that the allegations of a bill are not true, and denying complainant the relief asked, is a final disposition of the bill, though it does not explicitly dismiss it. Kozacek v. Kozacek, 105 III, App. 180. A judgment decentering debts against the estate of a decent and subjecting its lands to their payment is a final degree. Trail v. Trail \[VW. Va.\] 49 S. E, 431. In an equitable proceeding to enforce stock- 4 Curr. Law--19. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 43. 45. 47. 48. 49. 42. 44. 46. 48. 49. 43. 44. 47. 49. 45. 48. 49. 40. 41. 44. 49. 42. 45. 46. 47. 48. 49. 40. 41. 44. 48. 49. 42. 45. 49. 43. 44. 45. 46. 47. 48. 49. 45. 48. 49. 46. 49. 47. 48. 49. 49. 48. 49. 49. 49. 40. 41. 41. 42. 43. 44. 49. 41. 42. 44. 45. 46. 47. 48. 49. 49. 41. 42. 45. 46. 48. 49. 49. 40. 41. 42. 43. 44. 47. 49. 41. 43. 44. 48. 49. 42. 45. 46. 47.

specific performance of a contract to convey realty**44 **are judgments in personam. Probate decrees are generally treated as judgments in rem**.45 **Personal service of notice on defendant is essential to a judgment in personam**,46 **while a judgment in rem may be based upon constructive service**.47 **SS 3.** \_Requisites. A. In general.48--In order to have a valid judgment, the court must have jurisdiction of the parties and subject-matter**,49 **but an inex-cusable departure from established procedure is not jurisdictional unless it seriously interferes with the efficiency of judicial instrumentalities to administer justice**.50 **The petition must contain a prayer for relief**,51 **though the fact that it does not state a cause of action does not render the judgment void**.52 **The judgment must be based on a legal service of valid process**,53 **but irregular or defective process only renders the judgment voidable**.54 **A decision substantially and in form like statutory requirements, if any**,55 **and, in jury cases, a valid verdict**,56 **are prerequisite, but judgment need not await the recording of verdict unless so provided**.57 **For mere irregularities in** 44 **Silver Camp Min, Co. v. Dickert \[80 S. W. 872. Personal service on one of** **\[Mont.\] 78 P. 967.** **45. A decree assigning the residue of the** **against all, under Comp. Laws, $ 40. Elrich** **\[Minn.\] 101 N. W. 68. The proceeding** **St. 1895, art. 1347, service on a partner will to call in, audit and allow claims against a** **authorize a judgment against the partner**.\*\* **ship. State v. Cloudt \[Tex., City., App.\] 84 S. MacGowan v. Jones, 142 Cal. 593, 76 P. 503.** **46. Korman v. Grand Lodge of the U. S.,** \*\*47 \*\*Misc. 564, 90 N. K. 130: Greenaway v. Horton \[Tex., City., App.\] 144 **Misc. 564, 90 N. K. 130: Greenaway v.** \*\*51 **S W. 1044), or failure of sheriff in** **Ellver Camp Min. Co. v. Dickert \[Mont.\] 78 P. 967. Where defendant was a nonresident. Goodwin v. Clayter \[N. C.\] 49 S. E. 173.** **47. Korman v. Grand Lodge of the U. S.,** **48 **Misc. 564, 90 N. Y. S. 120.** **48. See 2 Curr. L. 583.** **49. Where court had no jurisdiction because of amount. Western Union Tel. Co. v. Campbell \[Tex., City., App.\] 81 S. W. 680. An appeal being invalid, the judgment cannot be said to be that of the appellate court. State v. Sommerville, 112 La. 1991, 86 So. 844. Appellate court having no jurisdiction of an appeal, the judgment of the appellate court is vod. Willbourn v. Hurt, 139 Ala. 657, 36 So. 768.** **See article Jurisdiction, 2 Curr. L. 604.** **50. Harrigan v. Gilchrist \[VWs.\] 99 N. W. 809. Deffendant was found guilty of fraud in circuit court. Through error the question was again before the jury under the instrument**.** **debtors' act. He was again found guilty by the county court and remanded to the** **aberiff's custody. The proceedings in the latter court did no harm and may be regarded as superfluous. Penoyer v. People, 105 Ill. App. 481.** **51. Civ. Code, $ 90. Bowman v. Ray, 25 Ky. L. R. 2131, 80 S. W. 516. See article Plending, 2 Curr. L. 1178.** **52. Kubesh v. Hanson \[Minn.\] 101 N. W. 73.** **53. Rule applies to judgment on cross bill. Schwartzalos v. Wagner \[Tex. Civ. App.\] 81 S. W. 70. Personal judgment on citation by publication is vod. Greenway v. De Young \[Tex., City., App.\] 79 S. W. 603. Where defendant was a nonresident. Goodwin v. Claytor \[N. C.\] 49 S. E. 173. Citation and service of answer are necessary before the court can render judgment on a counter-claim. Field v. O'Connor \[Tex., City., App.\] 81 S. W. 74.** **54. Failure of the relation to show the date of service therein as required by Rev. St. 1895.** **55.** **56.** **57.** **58.** **59.** **59.** **51.** **59.** **51.** **59.** **51.** **59.** **52.** **53.** **54.** **55.** **56.** **57.** **58.** **59.** **59.** **51.** **59.** **51.** **59.** **52.** \*\*53.

these particulars, the judgment is only voidable.58 The requisite decision not being found in the judgment roll it will be assumed that none was filed.58 A judgment not being based upon a decision it should be vacated, a decision made and proper judgment -entered,40 but even in the absence of a motion to vacate, the judgment will be reversed on appeal and the case remitted for decision.61

Signing62 and entry63 are essential, though an unsigned judgment has been held to be valid when entered on the signed minutes of the court.64 There being a clear intention to sign the judgment, it is immaterial that the signatures appear on the right or left hand side of the page on which it is entered,65 and being signed by both the judge and attorney for the prevailing party, it is immaterial whether or not it is one requiring the signature of the judge or that of the attorney.66 Irregularities, in that the clerk failed to mark answers as filed,67 or failed to enter a decree pro confesso in tax proceedings,68 do not generally affect the validity of the final judgment entered in the cause.

(SS 3) \_B. Parties.69--\_There must be parties in court standing as litigants70 and competent to sue or defend.71 A necessary party being omitted, the court may -withhold its judgment,72 but being rendered it is voidable only.78 An erroneous entry of joint judgment against a defendant, not brought into the jurisdiction of the court, renders it erroneous74 as to all defendants. Jurisdiction having been acquired over a party, a judgment rendered against him after his death is not void, though his heirs and representatives be not cited.78

Footnote 84: The author is grateful to the anonymous
(SS 3) \_C. Conformity to process, pleading, proof, verdict or findings,76--The judgment must be against the identical party named in the process,77 and must conform to the pleadings; thus it must not decide matters not in issue,78 nor grant relief not prayed for or exceeding what was sought;79 but included and

either natural or artificial, is absolutely

apearance of attorney and the filling of vold, irrespective of whether jurisdiction has

certain afflavits and such other relief as the

been acquired or not, has some support.

CLife Ass' v. Fassett, 102 III. 315. 4 Column-

Weinstein, 91 N. Y. S. 76. A prayer for a

bla L. R. 518.

76. See 2 Curr. L. 584.

01. Default judgment. Korman v. Grand

Lodge of the United States, 44 Misc. 564, 90

N. Y. S. 120. Citation issued for and served

upon G. W. S. will not support a default

judgment against J. W. S. Shock v. Laufer

\[Tex. Civ. App.\] 84 S. W. 277. Where a railroad company was served with process in its

true corporate name, but omitting the word

"company," and a default judgment was

taken against it by its true name, held judgment

ment could not be attacked on ground of

misnomer. Brassfield v. Quincy O. & K. C. R. Co. (Mo. App.) 83 S. W. 102.

78. .Where complaint did not allege that

the land could not be sold in parecla, it is

error to render a judgment providing that

the land should be sold as a whole, and that

It was not susceptible of division. Rich

recek v. Russell \[Ind. App.\] 72 N. E. 617.

Complaint admitting defendants rights in a

Dighway to a limited extent, and the answer

claiming rights by prescription, decrete that

defendants' rights were extingushed by

abandonment, held a fatal variance. Sowles

v. Clawson \[Utah\] 76 P. 1067. A judgment

on a written contract cannot be founded on

a finding that it was obtained by fraud,

where the defendant did not pleal that fact,

though no objection is taken to evidence in

support theproof. New Ide Pattern Co. v.

Wheelan, 75 Conn. 455, 53 A. 953. Complaint

being insufficient as to surgies on bond, a judgment against them is erroneous.

Felochen v. Stingley, 142 Cal. 630, 76 F. 504.

70. Defendant admitted the allegations of

the complaint and its prayer cannot have

unsought relief. Cauthen v. Cauthen \[S. C.\]

held error to grant judgment for $1,200 and

49 S. E. 321. In repelvin, absence of plea

requiring return of chattl, a final judgment

cannot award possession. Constructing Laws

1902, p. 1528, c. 588. Levy v. Hohweiser, 91

N. Y. S. 562. A judgment based entirely

upon a cause of action found in a complaint,

but on account of which no relief is asked,

is more favorable than that demanded in

the complaint. Hasbrouck v. New Paltz, H.

& P. Traction Co., 90 N. Y. S. 877. Complaint

being for false representations and deceit.

held error to render judgment as for breach of warranty. Moore v. Gladings \[Conn.\] 59 A. 36. A judgment decreeing one-half of

applicable's recovery to his attorney, held erroneous, the applicable being a minor, the attorney not being a party and the pleading

not warranting such a finding. White v.

Simonton \[Tex. Civ. App.\] 79 S. W. 621.

Defendant setting up a counterexample for the

difference between the value of a chattel and

the unpaid purchase price, he is not entitled

to recover the full value of the chattel. McComrick Harvesting Mach. Co. v. Hill, 102

Mo. App. 544, 79 S. W. 745. Held error to

vaxete an order of cancellation under an order of

order to show cause why the order should not

be "reargued and resetted," so as to show

the "reargued and resetted," so as to show
partial relief may be given." The judgment being in excess of the amount claimed, it is merely erroneous" and may be modified on review," or the filing of a remitititur is proper," or the grant of the excessive relief being clearly a clerical error, it may be corrected on motion." A judgment being excessive, it will be presumed on collateral attack that the pleadings were amended so as to include the relief granted;" but on direct attack the opposite rule prevails." De-fendant admitting plaintiff's right to recover, it is immaterial that the ground of the admission is not pleaded as a ground for relief," and facts of which the court will take judicial notice need not be alleged in order to recover thereon." The judgment must also conform to the proof" and the verdict," and failing in this regard, one may object thereto, though it is more favorable to him than the findings warrant," but the fact that the verdict in his favor is excessive does not entitle him to so object." Judgment on the merits cannot follow a termination of trial for failure of proof." In Montana, actions being consolidated, a single judgment should be rendered."

Judgment awarding interest from a time prior to that from which interest is played is excessive. Carter Brick Co. v. Clement \[Tex. Civ. App.\] 84 S. W. 434.

80. That plaintiff are sung for the entire fee does not prevent their recovering an und 294 JUDGMENTS SS 4. 4 Cur. Law.

SS 4. _Form and interpretation._"As far as practical, the judgment should be in statutory form," and, in the absence of such statutory provisions, the form of an equitable judgment is governed by the established principles of equity jurisprudence." In some states the judgment may be entered in the name of the plaintiff, though he has assigned his interest in the action." It must show against which party it is rendered," and such party must be described so that he can be identified.1 In the absence of proof that a person has ever received or executed conveyances of land by using the initial letter or letters of his name, the judgment must set forth the first or Christian name of both plaintiff and defendant.2 It must expressly grant the relief awarded," and hence should not be a mere recital of an account.4 A memorandum filed by a trial judge, stating the grounds of his decision, is no part of the judgment.5 A judgment contradictory in its terms is erroneous.6 The verdict awarding interest, the judge should com-pute and include it in the judgment.7 The signature of the judge is essential.8

\_The judgment should be construed_2 with reference to the whole record,"

Footnote 294: _Form and interpretation._"As far as practical, the judgment should be in statutory form," and, in the absence of such statutory provisions, the form of an equitable judgment is governed by the established principles of equity jurisprudence." In some states the judgment may be entered in the name of the plaintiff, though he has assigned his interest in the action." It must show against which party it is rendered," and such party must be described so that he can be identified.1 In the absence of proof that a person has ever received or executed conveyances of land by using the initial letter or letters of his name, the judgment must set forth the first or Christian name of both plaintiff and defendant.2 It must expressly grant the relief awarded," and hence should not be a mere recital of an account.4 A memorandum filed by a trial judge, stating the grounds of his decision, is no part of the judgment.5 A judgment contradictory in its terms is erroneous.

4 Cur. Law. JUDGMENTS SS 4. 295

the language used \[11\] and customary procedure, \[12\] and, if reasonably possible, so as to guard the rights of all the parties, \[13\] and to sustain its validity. \[14\] In so doing the judgment of a domestic court of general jurisdiction \[15\] is presumptively valid. \[16\] All matters in issue essential to the recovery are presumed to have been passed on, \[17\] and in the absence of evidence to the contrary, the necessary proof is presumed. \[18\] These presumptions are only prima facie. \[19\] Recitals are presumed to be correct, \[20\] even though they show the nonexistence of jurisdictional facts, \[21\] but they may be impeached, \[22\] though being matters of record, their validity or

petition shall become due," was not void for \[legally organized county was done. McCaleb uncertainty. Hill v. Lyles \[Tex. Clv. App.\] v. Reactor \[Tex. Clv. App.\] 78 S. W. 556. 81 S. W. 559. 81 X. 8. %. 559. 81 X.

effect cannot be overcome by evidence of any lower degree.\[28\] A judgment is not void upon its face unless its invalidity is apparent from an inspection of the judgment roll,\[24\] and the question of such invalidity is purely one of law.\[25\] Explanatory paroi evidence is sometimes admissible,\[28\] but it should be consistent with the record.\[27\] As to the character of the judgment, the record controls over the bill of exceptions.\[28\]

SS 5. \_Rendition, entry and dockeling; contents of judgment roll.\[29\]--The prevailing party must see that judgment is entered,\[30\] the judgment debtor being justified in assuming that an ordinary judgment will be entered.\[31\] Judgment should be entered for the amount of the verdict plus interest where the judgment debtor delays its rendition.\[32\] A defendant who has not appeared is not

Where citation issued for and was served upon G. W. S., a reetal that J. W. S. had been duly.\_cited will not render a judgment against the latter valid. Shook v. Laufer \[Tex. Civ. App.\] 84 S. W. 277. Recital that one was regularly served is not rebutted wbere the judgment roll merely contains the original summons, the return of the Sheriff that he was unable to find defendant, the affidavit of publication, and does not show that an allas summons was not issued prior to the publication. People v. Davis, 143 Cal. 673, 77 P. 651. See 2 Curr. L. 584, n. 73.

23. Parsons v. Weis \[Cal.\] 77 P. 1007.

01. People v. Davis, 143 Cal. 673, 77 P. 651: Parsons v. Weis \[Cal.\] 77 P. 1007.

01. Does not depend upon any determination of the court as to what the judgment roll shows. People v. Davis, 143 Cal. 673, 77 P. 651.

01. Paroi evidence is admissible to show that a judgment for a third party was in fact rendered by virtue of defendant's flight, under an agreement between such third party and defendant. Jones v. Robb \[Tex. Civ. App.\] 80 S. W. 395.

01. Paroi testinony that a judgment for an Intervenor was taken under defendant's right by virtue of an agreement is not inconsistent with a reetal that the claim of plaintiff was without right or foundation. Jones v. Robb \[Tex. Civ. App.\] 80 S. W. 395.

Parol evidence held inadmissible to show that certain notice had been lost from files when the record of the court shows due notice as required by statute had been given. Gage v. People, 207 Ill. 377, 69 N. E. 840.

28. Vickers v. Chisholm \[Colo. App.\] 79 P. 302.

01. See 2 Curr. L. 585, & 6.

01. Nonsult. Grantle Bldg. Corp. v. Greene \[R. I.\] 57 A. 649.

01. Phillip v. Norton \[S. D.\] 101 N. W. 727. May show that the judgment was not authorized by the summons and complaint in a suit to restrain its enforcement. Id.

01. Oliver v. Love, 104 Mo. App. 73, 78 S.

V. 335.

NOTE. Is interest allowable after verdict and before rendition of judgment? Interest to verdict is always given on an interest-bearing demand, even if the trial is delayed on the court's motion, and there is as good reason for giving interest after verdict, if the court delays judgment. The point has received the attention of the courts and while the decisions are not uniform, the weight of authority is to allow interest in the circumstances stated. Discussions of the question will be found in Griffith v. Railway * Cur. Law. JUDGMENTS SS 5. 297

- entitled to notice of the application for judgment." In computing the time with-in which a notice for judgment must be returned, the first day is included and the last day excluded." The judgment must generally be rendered in term,"6 though it is held that the court trying the case without a jury may take it under advisement until the next term, judgment being then rendered in open court." In the absence of statutory provisions, it cannot be rendered at chambers." The time within which a default judgment may be entered often depends on the character of the action; as one ex contractu or ex delicto." In some states the appellate court on reversing the judgment of the trial court may enter final judgment,"9 and it directing that the judgment be amended in a designated way, a formal order making the judgment of the appellate court the judgment of the trial court is an indispensable prerequisite to the amendment." A judgment being entered at the same term but subsequent to a less formal order, it supersedes the latter though no reference is made to it." In the absence of a motion for a new trial, judgment may be entered the day after the findings of fact are filed;" but in the absence of a memorandum in the judge's docket or other record evidence, it cannot be entered after the adjournment of the term." The prevailing party or his attorney"4 or the judge"4 may have the judgment entered. Nunc pro tune judgments may be entered to supply matters of evidence and to rectify clerical misprisions, but not to enable the court to correct judicial errors." An order vacating a judgment cannot be considered a nunc pro tune entry of judgment in the absence of a statement as to what the judgment should have been." Until judgment be pronounced or made known, the clerk cannot enter it; e. g., a decree dismissing a bill after the court has sustained a demurrer there.
- equity of the matter, it would seem that the adjudications referred to are a sufficient sanction for ruling that Interest should be modified to the verdict to the date of final judgment. This rule will accord exactly with the ancient practice to render judgment as of an earlier date when the delay in giv-ing the judgment was caused by the court. Mitchell v. Overman, 103 U. S. loc. cit. 64, 26 Law. Ed. 369-From Oliver v. Lowe, 104 Mo. App. 73, 78 S. W. 335.
- 33. John Meunier Gun Co. V. Lehigh Valley Transp. Co. (W!is) 101 N. W. 388.
- 34. Notice served on the 21st and returned on the 26th of the same month in not returned within five days after service. Swift & Co. v. Wood \[Va.\] 49 S. E. 643. Sunday is to be included unless the last day falls on Sunday. Id.
- 35. Judgment rendered in vacation upon a verdict previously rendered at a regular term is void. Thomas County Com'rs w. Hopkins, 119 Ga. 909, 47 S. E. 319.
- 36. Barnes v. Benham, 13 Okl. 682, 75 P.
- 37. See Mau v. Stoner \[WYo.\] 76 P. 884.
- 38. Action to enforce a stockholder's liability as an action to enforce a contract with-in Act 188, e. 307, c. 184, 1 170, providing that in such an action default judgment may be entered at any time after 16 days after return day. Coulburn Bros. v. Boutton \[Md.\] 59 A. 711. As to whether or not entry of default judgment while defendants motion for relief is pending is sufficient to have it set aside, quaere. See Braseth v. Botti-neau County \[N. D.\] 100 N. W. 1082 and cases cited. See, also, Defaults, 1 Curr. L. 913; 3 Curr. L. 1069.
- 39. Under Code, # 957. Such judgment
- rendered on reversal of order of corporation
- 40.0 to.\[48\] Delay in entering judgment is merely an irregularity," and it being the duty of the court to enter it, it will be presumed to have been entered.\[50\] Appearance of an unauthorized attorney is a sufficient excuse to delay entry.\[51\] The entry must be complete,\[52\] but omission from the journal entry of a judgment of the date of its rendition does not render it void.\[53\] Failure of the clerk to mark the papers composing the judgment roll as filed does not prevent the filing from being effectual.\[54\] The party offering the papers in evidence must prove that they were properly filed.\[55\] Writing judgments on separate sheets and placing them in chronological order in an enclosed box in the form of a book is as effective as though entered in a bound volume.\[56\] Use of the word "Same" immediately below the name of a judgment debtor on the index constitutes a sufficient index of the judgment next listed against him.\[57\] Neither the order of publication of summons\[58\] nor a certificate of the secretary of state as to service on him for a foreign corporation, judgment being taken by default,\[59\] are parts of the judgment roll.\[50\]

\*\*SS 6. _Arrest of judgment; new trial;\[51\] judgment non obstante;\[52\] writ of error coram nobis.\[53\]_--A motion for judgment non obstante must be made shortly after the verdict is filed.\[54\] The grounds for the motion must appear on the face of the record.\[58\] The motion will be denied unless special findings are so inconsistent with the general verdict that both cannot stand together,\[56\] as where the special findings show the absence of a material fact,\[57\] and being granted for in-

48. Livingston County B. & L. Asa'n v.ments in a judgment book. Lynch v. Burt Kesch \[Ill.\] 72 N. E. 763. An approval by the clerk of the court of an appeal bond, containing a recital that the bill was dismissed does not make it true that there was such dismissal. Id. Clerk may not enter an undeclared default which lies only in insuffClency of a responsive pladding. Knight v. Dunn \[FIn.\] 36 So. 62; Gulf Lumber Co. v. Dunn \[FIn.\] 36 So. 63.

01. Under Laws 1902, p. 1669, a. 680, declaring that the judgment must be entered immediately after the verdict. Lyons v. Gavvin, 43 Misc. 659, 88 N. Y. 253. Where default judgment was not entered on return day. Tomlin v. Woods \[Iowa\] 101 N. W. 125.

01. It being fairly inferable that the court ordered it, and that through error of the clerk it was not recorded. Fitzgerald v. Gore, 105 Ill. App. 242.

01. Tomlin v. Woods \[Iowa\] 101 N. W. 125.

01. Where, in the mInitues of the clerk, there was the following: "H. J. Boatman v. P. D. Jewitt Judgment for plaintiff for $714 against property attached described as follows" (describing the land). On the court records of the same day the title of the cause was entered, followed by a blank space in which a judgment might have been written but was not, held such record showed no judgment. Jewett v. Boardman, 181 Mo. 647, 81 S. W. 186.

01. It is not void by reason of Gen. St. 1901. 6142. Phillips v. Phillips \[Kan.\] 76 P. 842.

01. Hart v. Jos. Schlitz Brew. Co. \[VWs.\] 95 N. W. 626.

01. Turner Tp. v. Williams \[S. D.\] 97 N. W. 842.

01. Under Rev. Codes N. D. 1839, # 5479, #487, #488, requiring clerk to enter judgf.\[57\]

01. Livingston County B. & L. Asa'n v.ments in a judgment book. Lynch v. Burt Kesch \[Ill.\] 72 N. E. 763. An approval by \[C. C. A.\] 122 F. 417.

01. Constraining Code 1887, # 3561, requiring containing a recital that the bill was disfused to each defendant. Fulterson's Adm'x v. was such dismissal. Id. Clerk may not enter an undeclared default which lies only in insuffClency of a responsive pladding.

01. Its absence from the record does not show a failure to obtain jurisdiction. McKnight v. Dunn \[FIn.\] 36 So. 62; Gulf Lumber Co. v. Dunn \[FIn.\] 36 So. 63.

01. Under Laws 1902, p. 1669, a. 680, declaring that the judgment must be entered immediately after the verdict. Lyons v. Gavvin, 43 Misc. 659, 88 N. Y. 253. Where default judgment was not entered on return day. Tomlin v. Woods \[Iowa\] 101 N. W. 125.

01. It being fairly inferable that the court ordered it, and that through error of the clerk it was not recorded. Fitzgerald v. Gore, 105 Ill. App. 242.

01. Tomlin v. Woods \[Iowa\] 101 N. W. 125.

01. Where, in the mInitues of the clerk, there was the following: "H. J. Boatman v. P. D. Jewitt Judgment for plaintiff for $714 against property attached described as follows" * 4Cur. Law. JUDGMENTS SS 7.

sufficiency of the evidence it must be shown that there is not a reasonable probability that the defects in the proof may be remedied on another trial." A finding of fact being specifically submitted to the jury, it is error to render such a judgment." The circumstances warranting the direction of a verdict a judgment non obstante may be entered, an improper verdict being returned," though this is not always ground for such a judgment." An unfavorable verdict being obtained as against one co-defendant it does not afford a ground for a judgment non obstante as against the other." Though a motion for a judgment non obstante be made, the case cannot on reversal be finally disposed of without a new trial." One not being entitled to judgment on answers to special interrogatories, refusal of the court to require an answer to be rendered more specific is harmless."

SS 7. Opening, amending, vacating, and other relief."_There must be a valid subsisting judgment._ This includes an interlocutory decree." The judgment must not be such as it is against public policy to have re-opened." One may become estopped, or may waive his right, to say that it still subsists."

_Power of court during and after term."_--A court has the inherent," exclusive" and discretionary" power to vacate" or modify" its judgments, final or

Cineinnati, R. & M. R. Co. v. Miller \[Ind. by v. Graham, 123 Iowa, 202, 98 N. W. 724. App.\]. 72 N. E. 827. See 2 Curr. L. 856, n. 94.

68. Meehan V. Great Northern R. Co. \[N. S14. Judgment being valid on its face, the D.\] 101 N. W. 183. \[In the absence of such court rendering it is the only one that can a showing a new trial will be granted.\]

annul it. State v. Sommerville, 112 La. 1091,

69. Proper procedure it to grant a new trial. Confer v. Pennsylvania R. Co., 209 Pa.

01. So. 864. Sult to set aside for irregular-trial. Confer v. Pennsylvania R. Co., 209 Pa.

01. S. A. 811.

01. Casety v. Jamison \[Wash.\] 77 P. S00.

01. Meehan v. Great Northern R. Co. \[N. D.\] 101 N. W. 183.

01. Davis v. Pullman Co. \[Tex. Civ. App.\]

01. Standard Mfg. Co. v. Slot \[Wis.\] 98 N. W. 73.

01. Lake Erle & W. R. Co. v. McFaill \[Ind.\]

01. N. E. 552.

01. See 2 Curr. L. 556.

Judgment entered without any decision below the judgment sought to be vacated had been ing rendered cannot be amended. Electric

Boot Co. v. Hovey, 98 App. Div. 410, 89 N. Y. S. 210.

76. Palmer v. Terwilliger, 95 App. Div. 35,

88 N. Y. S. 526.

77. Divorce decree. Rev. St. $ 5355, does not apply to such judgment. Solomon v. Amendments of records will not be made in Solomon, 4 Ohio C. C. (N. S.) 321. But see

McDonald v. McDonald, 34 Wash. 293, 75 P.

785, and Scribner v. Seribner \[Minn.\] 101 N.

79. M. 163. Where divorce decrees are considered from the standpoint that they may be re-co. v. Feuerlicht, 90 N. Y. S. 467. Under

opened.
78\. Allowing statements of defenses and not a ground for appeal till presented and pleas to be filed nunc pro tune, and the accted upon by the circuit court. Lyon's tions of the parties in treating the judge.

Ky. L. R. 1668, 78 S. W. 454. Under Civ. denying that it had been set aside. Rocky

Ky. L. R. 1668, 78 S. W. 454. Under Civ.

70. See 2 Curr. L. 556.

01. People v. Ward, 141 Cal. 628, 75 P.

01. Such power is not affected by Code

01. Proc. $ 724, 1282, 1122, 1122, 1126, 1127, 1128, 1129, 1130, 114, 1151, 116, 117, 118, 1190, 1191, 120, 1217, 1228, 1231, 124, 125, 126, 127, 128, 129, 120, 121, 122, 123, 124, 126, 127, 128, 129, 121, 120, 123, 125, 126, 127, 128, 129, 131, 132, 133, 134, 135, 136, 137, interlocutory," during the term of rendition. After such term, or in some states after the expiration of the time for appeal," it has only such power as rests on the common-law modes of review, or on equitable and statutory grounds." Clerical mistakes," but not omissions," or judicial mistakes," may be corrected nunc pro tune91 at a subsequent term, and this power extends to criminal as well as civil cases." The rule is different when applied to probate proceedings the court there having the power to annul the decree at any time prior to the final settlement of the estate."

The taking of an appeal does not lessen the court's power to correct the judgment in a manner not affecting a substantial right," though it terminates the power of the court to vacate the same."

A wholly void judgment may be vacated at any time," and by the court upon its own motion."

As a general proposition, the above rules as to amendments apply to the restoration of lost or destroyed papers."

and the plaintiff during the same term

movesed to reinstate, offering to amend, held

to amend. Gagnon v. U. S., 38 Ct. Cl. 10: apellate court would not interfere with the

Jett v. Parmera' Bank, 25 Ky., L. R. 817, 76

refusal to permit reinstatement. Id.

83. Mahler v. Animarlum Co. \[C. C. A.\]

01. W. 856.

01. M. 105.

01. A. 115.

01. See 2 Curr. L. 586, in 94.

01. A. 115.

01. Flitzgerald v. Gore, 105 Ill. App. 243.

01. C. 115.

01.

4 Cur. Law. JUDGMENTS SS 7. 301

A judge pro tempore hearing and determining an action has authority to hear and determine a motion to vacate the decree rendered."99 A bill of review may be entertained by a court of general equity jurisdiction to vacate and set aside decres rendered by its predecessor.1

The motion being made at the term of rendition, it may be considered at a subsequent term without any order of continuance.2 Also, a change of venue being granted the court to which the cause is transferred may amend the record after the term of rendition." In all cases in order to amend at a subsequent term notice must be given the adverse party." The motion need not be filed before the notice is served, nor at any specified time preceding the date named in the notice for making the motion," and the record being silent the presumption is that notice was given." Nothing appearing to the contrary it will be presumed that a decree was vacated at term."

_Parties applicant._"--Creditors," sureties,"10 successors in interest,11 and generally all persons injured thereby,12 may petition to have a judgment vacated, modified, or its enforcement enjoined. An injury suffered is, however, an essential element in all cases.13 A partnership cannot move to vacate a judgment running against the individuals composing the partnership.14

_A judgment will be corrected or amended on the ground of mistake_ when clearly shown.15 The amendment must be based on the records of the court,16 though explanatory parol evidence is admissible to show actual ruling.17 The amendment is not allowable if it destroy the conformity between the judgment and the pleading and process.18

\_A judgment will be opened or vacated_18 on the grounds of fraud,29 surprise,21

99. Fisher v. Puget Sound Brick, Tile &:

purchaser pending a suit to foreclose an al-Terra Cotta Co., 34 Wash. 678, 76 P. 107. 14. Ball v. Ciohtler, 34 Wash. 299, 75 P. 1099. The superior court has jurisdiction to Vacate judgments or orders of the territorial W. 413. See 2 Curr. L. 591, n. 85.

probate courts in the cases specified in Ballinger's Ann. Condes & R. 5 is 5153. Id.

2. Motion to set aside a default judgment. Rev. St. 1899, 8 1611. Harkness v. Jarvis \[Mo.\] 83 S. W. 468. One not a party to the 2. Indianapolis & G. Rapid Transit Co. v. Andits \[Ind. App.\] 72 N. E. 145.

1. Equity. Simpson v. John H. Talbot & Co. \[Ark.\] 79 S. W. 761; Fitzgerald v. Gore, 14. Charles P. Kellogg & Co. v. Spargur \[Nebl.\] 105 N.P. 424. See 2 Curr. L. 586, n. 8.

1. Indianapolis & G. Rapid Transit Co. v. Andits \[Ind. App.\] 72 N. E. 145.

1. Simpson v. John H. Talbot & Co. \[Ark.\] 73 B. V. 761.

1. Mahler v. Animarium Co. \[C. C. A.\] 129

1. See 2 Curr. L. 591, & 7 D.

1. Where judgment by confession amounts to a preference. Nnum v. Herron, 128 F. 343. See 2 Curr. L. 887, n. 20-23.

52 W. Va. 498, 44 S. E. 257. If not docketed, the creditor is not limited to four months, V. Farmers' Bank, L. R. 817, 76 S. W. Quare, does docketing change this? Id.

10. Surety on note secured by a mortgage held entitled to sue to cancel the foreclosure dacre in the hands of an assignee of a bona fide holder of the note and mortgage and to enjoin its enforcement as a cloud on plain.

01. Service being made by publication either a party or his transferee may petition to open the judgment. Brown v. Massey \[Okl.\] 76 P. 226. See 2 Curr. L. 651, n. 84.

01. A stranfer may sue. Crippen v. X. Y. Irrigating Ditch Co. \[Coo.\] 76 P. 794. A accident,"2" mistake of fact,"2" payment,"24 excusable neglect,"25 or generally for any error which it would be inequitable to conclude the applicant from asserting."25

01. Decree of divorce may be vacated -- permitting the filling of a reply. Snelling's where, in case of service by publication -- Adm'r v. Lewis, 25 Ky. L. R. 1856, 78 S. W. plaintiff fraudulently gave a wrong address --124. Illness of attorney held no ground for as residence of defendant. In this case application was denied on the ground of defendant's lacs. McDonald v. McDonald, 34

-- Wrach, 293, 76 P. 865. Where administrator discontinued his appeal subsequent to an application by the next of kin for leave to intervene but prior to the granting of such application, held that, irrespective of fraud, the judgment would be vacated on motion of next of kin unless the attorneys consent to the appeal. Riley v. Ryan, 91 N. Y. S. 852. That material witness was not sworn to warrant opening of judgment. Glover v. shututes a mere error. Mutual Reserve Fund Life Ass'n v. Scott \[N. C.\] 48 S. E. 581.

21. Where cause was transferred from general to equity calendar without notice to defendant's attorney, held default would be opened. Rosenberg v. Hassett, 86 N. Y. S. 865. Where case was phaled on "absence docket" by agreement and was taken therefrom and placed on trial calendar without notice to defendant. Roberts v. Kuhr, 119

-- Ga. 704, 46 S. E. 856. A judgment rendered against a party contrary to an understand- --14. Code $ 602 at seq. inapplicable ing or agreement with his adversary is taken against him by surprise. Durham v. Commercial Nat. Bank \[Or.\] 71 P. 902.

-- Asprecent to postpone. Rabinowitz v. Hall-nowitz, 91 N. Y. S. 11. Judgment on report of referee entered contrary to stipulations, --14.

-- todo: -- A. R. 1856, 78 S. W. 865. Where case was phaled on --"absence docket" by agreement and was taken therefrom and placed on trial calendar without notice to defendant. Roberts v. Kuhr, 119

-- todo: -- A. R. 1856, 78 S. W. 865. Where case was phaled on --"absence docket" by agreement and was taken therefrom and placed on trial calendar without notice to defendant.

4 Cur. Law. JUDGMENTS SS 7. Matter properly for appeal or error which might have been thereby challenged," waived irregularities," a mere conflict of evidence," inexcusable delay or neglect," or negligence," or unwise procedure" on part of one's attorney, are insufficient to warrant the opening or vacating of the judgment. Where, owing to the acquisition of new rights, a decree operates as an injustice on one of the parties, it will frequently be vacated." A consent decree is no more sacred than the ordinary judgment."

The petitioner must show that he had a meritorious defense."

As a condition to opening and vacating a default judgment, the defendant should be required to pay all costs of the action to the date of granting the order."

The opening or vacating of the judgment is a matter resting in the sound discretion of the court," and an appellate court will only interfere when a clear abuse of such discretion is shown."

Disrection being exercised in setting aside

E1 Pase & S. W. R. Co. v. Kelly \[Tex. Civ. App.\] 83 S. W. 855. \[N. C.\] 48 S. E. 681. \[N. C.\] 48 S. E. 681. \[N. C.\] 48 S. E. 681. \[N. C.\] 48 S. E. 681. \[N. C.\] 48 S. E. 682. \[N. C.\] 48 S. E. 682. \[N. C.\] 48 S. E. 683. \[N. C.\] 48 S. E. 684. \[N. C.\] 48 S. E. 685. \[N. C.\] 48 S. E. 686. \[N. C.\] 48 S. E. 687. \[N. C.\] 48 S. E. 688. \[N. C.\] 48 S.

a judgment, it is less apt to be interfered with on appeal than if the motion had been denied.\[49\]

_Equity has jurisdiction to set aside a judgment at law\[40\]_ for willful fraud in the very act of procurement,\[41\] or when through lack of process one has been denied an opportunity to be heard,\[42\] though mere irregularity or defect in the service of the process is insufficient.\[43\] The fraud must be clearly shown.\[44\] As to whether perjury constitutes such fraud there is a conflict.\[45\] As to whether a bill in equity will lie to set aside a default judgment based on a false return, there is a conflict,\[48\] and

reasoning upon the same. Woodward v. | NOTE. Will equity set aside a default Carson, 208 Pa. 144, 67 A. 342. | Judgment at law because based on a false 39. | Markness v. Jarvis \[Mo.\] 81 S. W. 446. | The answers to this question have been various and the courts are almost False statements as to ownership of land help willful. Parsons v. Wels \[Ca1.\] 77 P. | Towing courts hold that a court of equity will relieve against a judgment at law upon 1007. | Penz v. Bollinger, 180 Mo. 252, 79 S. | A showing that a return is false. | Markness v. Judd \[Mo.\] 83 S. W. 451; | Markness v. Irish-American Bank, 119 Ga. 887. | Markness v. Jaffery v. Fitch, 46 Conn. 601. | Markness v. Jaffery v. Dewey, 27 Iowa, 381; | Markness v. Jaffery v. Fitch, 46 | Markness v. Jaffery v. Fitch, 47 | Markness v. Jaffery v. Fitch, 48 | Markness v. Jaffery v. Fitch, 49 | Markness v. Jaffery v. Fitch, 48 | Markness v. Jaffery v. Fitch, 47 | Markness v. Jaffery v. Fitch, 49 | Markness v. Jaffery v. Fitch, 48 | Markness v. Jaffery v. Fitch, 48 | Markness v. Jaffery v. Fitch, 49 | Markness v. Jaffery v. Fitch, 48 | Markness v. Jaffery v. Fitch, 49 | Markness v. Jaffery v. Fitch, 48 | Markness v. Jaffery v. Fitch, 49 | Markness v.

in states where such a bill is held to lie, the courts have refused to grant relief where there is only the oath of one party against the oath and return of the officer.47 Equity will not exercise this power except to prevent a great injustice,48 and even then only when the petitioner is without fault49 or an adequate remedy at law,56 and alleges51 and shows52 that he has a meritorious defense, though it is not neces-

Shlpman, 34 Neb. 673, 52 N. W. 576, 23 Am. Harshman, 133 U. S. 152, 33 Law. Ed. 586 St. Rep. 660. And see Johnson v. Jones, 2 and the English cases (see Baker v. Morgan, Neb. 116. 2 Dow. 526; also 19 Vin. Abr, 196, 199, 201)

Pennsylvania: Miller v. Gorman, 88 Pa. must be added.

The sum of the whole matter is this:

From this it appears that in eight states

That in those states that hold that equity

the rule is that equity will grant relief

will interfere upon a showing that the re-

against a judgment at law upon the sole

turn is false, or that it is false and that the

ground that the sheriff's return is false,

defendant therein bad a meritorious de-

without any showing of a meritorious de-

fense, while in seven states it is held to be

that the return of the sheriff is only prima

necessary to show a meritorious defense in

facle evidence, and hence may be attacked

addition to the falsity of the return. To

by motion before judgment in the original

these must be added Story's Equity Jurisprudence,

since, or in equity after judgment. Whereas

Hence states wherein relief in equity is

High on Injunctions, Freeman on Judgments

granted only where fraud in the very con-

(4th Ed.) vol. 2, $ 495; Black on Judgments

(2d Ed.) vol. 1, $ 377; 16 Am. & Eng. Enc.

ish rule that the return of the sheriff is

Law (2d Ed.). p. 388.

On the other hand, it is held in the follow-

before judgment in the original case and

enforcement of a Judgment, regular on its

face, unless it was prooured by fraud, and

the opinion of Marshall, J., in Smoot v. Judd

the plaintiff in the action participated in the

(Mo.) 83 S. W. 481.

fraud.

General: Stites v. Knapp, Ga. Dec. pt. 11,

analyzed and accepted by the court in the

p. 36.

Hintons: "Hunter v. Stoneburner, 92 Ill. 75. 11. 75. 11. 76, 30 N. Indiana: "Cully v. Shlrrk, 131 Ind. 76, 30 N. E. 832, 31 Am. St. Rep. 414.

(The above point was raised in this case

Kansas: "Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1055, 64 Am. St. Rep. 608. In

this case the court said: "Counsel for de-

fendants in error cite Bond v. Wilson, 8 Ca. 282, 12 Am. Rep. 466; Starkwacher v. Morgan, 15 Kan. 274; Chambers v. Bridge

Mfg. Co., 16 Kan. 770; McNell v. Edie, 24

Ican: 108; and Jones v. Marshall (Khn. App.)

48 P. 540--as supporting the proposition that

a shelf's return may be disputed even in

regard to personal service. In the cases

heraforce decided by this court the right to

controvert the sheriff's return has been

pressly limited to matters not coming with-

in his personal knowledge, and the opinions

in all cases, including, also, Mastin v. Gray,

19 Kan. 458, 27 Am. Rep. 149, recognize this

distinction."

Kentucky: "Taylor v. Lewis, 2 J. J. Marsh

100, 19 Am. Dec. 135; "Thomas v. Ireland, 88

Ky. 581, 11 S. W. 653, 21 Am. St. Rep. 356.

This rule has now been changed by statute,

see Bramlet v. McCwey, 91 Ky. 151, 15 S. W. 437.

49.

Maryland: "Gardiner v. Jenkins, 14 M. 58.

Missouri: McClanahan v. West, 100 Mo. 309, 13 S. W. 674; Smoot v. Judd, 83 S. W. 431 overruling Smoot v. Judd, 161 Mo. 673, 61 S. W. 854, 84 Am. St. Rep. 738.

New Hampshire: Bolles v. Bowen, 45 N. H. 124.

Virginia: "Preston v. Kindrick, 94 Va. 760,

27 S. E. 588, 64 Am. St. Rep. 777.

West Virginia: "Stewart v.

sary to prove that this defense is not barred by limitations." A judgment will not be set aside for matters which might have been urged on the trial of the action."4 In order to have the judgment set aside on the ground that petitioner was fraudulently deprived of his right to be heard on appeal, it must appear that there was a genuine controversy in the law action,"4 determined adversely to the petitioner without fault on his part;"5 but the facts set out showing the nature of the rulings complained of it is not necessary to allege error," although it should allege that a new trial has been duly filed and overruled, though failing in this the defect may be supplied by evidence."8 In the absence of some special equitable grounds,"8 a suit in equity to set aside the judgment will not lie after a motion to vacate it has been overruled,"9 unless such motion to vacate was defeated by fraud,"1 in which case the right is not lost by failure to appeal,"2 though it may be defeated by laches."6 Failure of proof"4 that petitioner has failed to receive adequate compensation at law,"5 or the neglect or carelessness of one's attorney,"6 are not grounds for setting aside the judgment. The purpose of the Louisiana action for nullity is to furnish relief against fraud which makes no appearance in the record and for which an appeal will afford no remedy."7

\_Grounds for enjoining enforcement.\_69--Equity has jurisdiction to enjoin the enforcement of a judgment at law whenever an equitable ground of relief,"9 such as fraud in procuring the judgment,"10 is shown. The enforcement of the judg-

47 S. E. 920; Parsons v. Wells \[Cal.\] 77 P. purely equitable grounds. Hofmann v. Burris, 210 III. 587, 71 N. E. 584. not sufficient evidence outside of alleged perjured testing to sustain the verdict. 696; Hofmann v. Burris, 210 III. 587, 71 N. E. 584. Wabash R. Co. v. Mirrieles \[Mo.\] 81 S. W. 684. Where motion for new trial was overruled because not filed within the statutory held a valid defense to divorce suit. Woynack v. Woynack \[Ark.\] 83 S, W. 937. Where the bill alleged facts where demurror was sustained, held petition failed to state a cause of action, hence there was no reason for setting aside judgment. Glover v. Dimmock, 119 Ga. 69, 46 S. E. 524. 53. People v. Perris Irr. Dist., 142 Cal. 601, 76 P. 381. 54. The claim that the judgment was not authorized by the evidence cannot be considered in the absence of showing a sufficient reason why it was not urged on the trial of the action. Bankers' Union v. Nabors \[Tex. Civ. App.\] 81 S. W. 91. Suit cannot be re-sorted to as a substitute for a demurure to a defective pleading. Kubesh v. Hanson \[Minn.\] 101 N. W. 73. 55. Zweibel v. Caldwell \[Neb.\] 102 N. W. 84. It must appear that the pleadings in the law action presented an issue involving the substantial rights of the parties and that the evidence was such as to present a fair question for the determination of a jury. Id. 56. Zweibel v. Caldwell \[Neb.\] 102 N. W. 84. 57. Zweibel v. Caldwell \[Neb.\] 102 N. W. 84. If the petition is defective in that regard and evidence is given showing the substantial issue and the nature of the ruling complained of, the party offering such evidence cannot be heard to object to such defect in the petition. Id. 58. Where assignments were errors of law. Parker v. Parker \[Neb.\] 102 N. W. 85. 59. That the cause of action has been satisfied, or, if not satisfied, it was brought in the name of the wrong plaintiff, are not

59. That the cause of action has been satisfied, or, if not satisfied, it was brought in the name of the wrong plaintiff, are not

01. Stewart v. Snow \[Ind. T.\] 82 S. W. 686; Hofmann v. Burris, 210 III. 587, 71 N. E. 584. 60. Stewart v. Snow \[Ind. T.\] 82 S. W. 686; Hofmann v. Burris, 210 III. 587, 71 N. E. 684. Where motion for new trial was overruled because not filed within the statutory period. Wabash R. Co. v. Mirrieles \[Mo.\] 81 S. W. 437. Where the bill alleged facts showing that a court of law had already denied a similar application, such facts may be considered in determining the equity court's jurisdiction, though former adjudlea- tion is not alleged in the answer. Hofmann v. Burris, 210 III. 587, 71 N. E. 584. 61, 62. Whitney v. Hazzard \[S. D.\] 101 N. W. 84. 63. Mortgaard being a corporation, stock-holders residing in a different state beld not barred by laches. where they did not commence the suit until 3 years after the entry of the decree, nor evidence of the fraud for 2 years more, they being residents of a distant state. Whitney v. Hazzard \[S. D.\] 101 N. W. 746. 64. Farmers' & Shippers' Leaf Tobacco Warehouse Co. v. Pridemore \[W. Va.\] 47 S. E. 258. 65. Where only nominal damages were awarded. Smoot v. Judd \[Mo.\] 83 S. W. 481 ment will be enjoined in any case where an action for nullity of the judgment will lie,71 or where the judgment debtor has an equitable defense which was not available at law,72 or where the law court failed to obtain jurisdiction over the defendant,73 and in the latter case the petitioner need not allege merits.74 In all cases danger of damage must be shown.78 The suit must be against the owner of the judgment.78 The defendant having an adequate remedy at law, he will not be given affirmative relief on a cross bill.71

\_Time for application.78--The judgment not being void upon its face,79 all of the above remedies must be promptly pursued,80 and within the statutory time, if one be fixed,81 and in construing this time, a motion to set aside is sometimes, though not always, considered a motion for a new trial.82 Limitations against ac-

torney for confessing judgment contained in a bond procured by the obligee's fraud.

out her knowledge or consent authorized Norwood v. Richardson (Del. Ch.) 57 A. 244.

The collection of the judgment cannot be

makes no difference. Aldrich v. Crump, 128

enjoined on the ground that the execution

F. 854. Entering into arrangement for the

of the contract on which the action was

postponent of execution, held could not

brought was procured by fraud. Loughren

four months after entry of decree and after

v. B. F. Bonniwell & Co. \[Iowa\] 101 N. W.

issue of execution and advertisement for

287.

001. Though a suspensive appeal therefrom

mical insufficiency. Coast Land Co. v. Oregon

has been dismissed, and a devolutive appeal

Pac. Colonization Co., 44 Or. 483, 78 P. 884.

has been subsequently taken and perfected

See 2 Curr. L. 587, in 12, 13.

and is still pending. State v. Sommerville,

113 La. 801, 26 So. 864.

72. McMahan v. Wheelan, 44 Or. 402, 75 P.

01. Process served on a foreign corpora-

tion being insufficient and it being given no

no notice of demand, a judgment against it for

a debt it did not owe will be set aside.

Mullins v. Central Coal & Coke Co. \[Ark.\]

84 S. W. 477.

74. Crippen v. X. Y. Irrigating Ditch Co. \[Colo.\] 76 P. 794.

01. "The enforcement of a judgment will

not be restrained pending establishment of

set-off or counterclaim, the complainant being fully secured (Montgomery Water Power

Go. v. Chapman, 128 F. 197), and the fact

that an afflavatic alleges that it is proposed

to apply for a certain increase of the ad

dammum in the second action is no ground

for the injunction (Id.).

76. In an action to restrain enforcement,

an allegation in the complaint "hat plaintiff

by publication over parting described as

is informed and believes that the defendant

- now claims to own said judgment"

is a sufficient allegation of ownership in the

absence of a motion to make more certain.

Phillips v. Norton \[S. D.\] 101 N. W. 727.

77. Defendant cannot by cross bill

cover a sum paid for attorney's fees in con-

nection with the assignment to him of one

of the judgments, it not being included in

any judgment and being recoverable at law.

Miller v. De Yoe \[N. J. Eq.\] 58 A. 179.

78. See 2 Curr. L. 587, in 12-15.

01. Void judgment may be vacated at any

time. See ante, $ 7, Power of court during

and after term.

80. Opening and vacating: Pettitioner being sui juris at time of death of testator

and having knowledge thereof, held six

years' delay would bar opening produce

cree. In re Meyers' Estate \[N. J. Eq.\] 59

A. 259. Where plaintiff knew nothing of

sult, though service was made on an adult

member of her family, until 11 years after

judgment was entered by default, held no

19.

tions to annuli for fraud generally date from the discovery of the fraud," and the burden of proof is on the plaintiff to show when the discovery was made." A mere general statement that it was made within the prescribed period is insufficient." An order purporting to vacate the decree, being made after the expiration of such time, is void," the only remedy which the aggrierved party has being a new suit in equity." Amendments may in some cases be made in the appellate court." A default judgment cannot be opened at any subsequent term at which the case is called for trial."

_Modes and manner of procedure._"-Motion lies to set aside a judgment rendered without jurisdiction," and in some states is the exclusive remedy where mistake, surprise or excusable neglect are the grounds upon which relief is prayed." In Georgia a motion to set aside must be predicated upon some defect apparent upon the face of the record." Where it is sought to vacate a judgment after term on the ground of fraud, the remedy is by petition or action or suit rather than by motion," the suit being either a bill of review or a bill to impeach for fraud;" but it will only lie in the case of an emergency which will prevent the questions from being effectively determined on appeal." A bill of review will ordinarily not lie against a consent decree."

A judgment may be attacked for fraud by answer and cross complaint."

_The petition or bill_" should allege the former judgment and wherein it is impeachable;" if fraud, it must be directly alleged."

- 83. Succession of Dauphin, 112 La. 103, 36 So. 287. Compare Limitation of Actions, 2 Grain Co. \[Neb.\] 99 N. W. 660. By an original bill in a new suit. Law v. Law \[V. Va.\]
- 84. If the evidence leave this date in doubt, the prescription will be maintained, repeatedly where the information of the alleged fraud was communicated by letter, and the letter is not produced or accounted for.
- 85. Particularly where from the circumstances of the case, the probability is strong that it was made sooner. Succession of Dauphin, 112 La. 103, 36 So. 287.
- 86. People v. Davis, 148 Cal. 673, 77 P.
- 651. Is subject to direct or collateral attack. Id.
- 87. People v. Davis, 148 Cal. 673, 77 P.
- 88. Under Rev. St. 1899, 85 672, 673, where word "company" was omitted from name of corporate defendant in the summons and petittitom, held word could be added in appellate court. Brassfield v. Quiney O. & K. C. R. Co. \[Mo. App.\]. 83 S. W. 1082.
- 89. Civ. Code 1895, 5 5072 does not authorize such a proceeding. Cauley v. Wadley Lumber Co., 119 Ga. 648, 46 S. E. 852. The defendant being permitted to file an answer at such subsequent term, all the subsequent proceedings are nugatory. Id.
- 90. See 2 Curr. L 692.
- 91. Ex parte Haynes \[Ala.\] 87 So. 286.
- 92. Not by an independent action. Code, $ 274. Mutual Reserve Fund Life Ass1 v. Scott \[N. C.\] 48 S. E. 581.
- 93. Sweat v. Latimer, 119 Ga. 615, 46 S. E. 835.'Ayer v. James \[Ga.\] 48 S. E. 154; Drake v. Brown Mfg. Co. \[Ga.\] 49 S. E. 590. The record showing that the warrant has never been served with proper process, the judgment should be set aside. Id. \[A motion to set aside in this state is similar to a motion in arrest, hence the above rule.\] 4 Cur. Law. JUDGMENTS SS 7.

The facts constituting the proposed defense must be distinctly averred.' A bill of review must state the error with particularity.4

_A motion to vacate5_ should be accompanied by an affidavit of merits," except where the judgment is alleged to have been rendered without jurisdiction;7 good practice also requires a verified answer, though this latter is not indispensable." The statements in the affidavit are admitted unless denied by counter-affidavit." The affidavits must negative contingencies10 and must allege facts,11 and their existence must be sworn to if they are within the personal knowledge of the affiant.12 If they are not within his personal knowledge, the name and residence of the witness by whom he expects to prove them must be stated, and, if practicable, the affidavit of the witness, setting out the very facts he will testify to, must accompany the motion.18 It must also reasonably appear that proof of such facts will be made upon another trial, and that they reasonably constitute a defense to every theory of the case made by plaintiff's pleadings upon which the judgment could have been rendered.14 Amendments to the motion are allowed when necessary to further justice.15 An objection which goes to the merits18 affords no ground for the refusal of the court to consider and act upon the motion to vacate.17 A refusal to entertain the motion to vacate being based solely on want of jurisdiction as a matter of law, mandamus may issue;18 but this right may be lost by laches.19

_Burden of proof and evidence.20_--Unless a defect appears of record, the burden is on the movant or petitioner to affirmatively show its existence,21 but the

B. Jewell v. Martin \[Ga.\] 48 S. E. 925. --ed in the pettition, and that plaintiff's In-Petition stating that declaration had been just were not of such a serious permanent character as to justify a judgment, held instance of the same, held petition insufficient. --Paso & S. W. R. Co. v. Kelly \[Tex. Civ. App.\] 83 S. W. 855. -- See 2 Curr. L. 593, n. N. E. 396. --5. --5.

record affording satisfactory evidence of the mistake it may be corrected without extraneous proof. \[22\] The motion to vacate being based upon the record, all papers not a part thereof are presumed to have been sufficient. \[28\]

\_Issues to jury.--\_On a rule to vacate if there is any matter of substantial doubt, the court should send it to the jury. \[14\]

_Removal of application_ is proper when not denied on the merits and not involving the same points decided in the former dismissal. \[25\] The order denying the motion may sometimes contain permission to renew the application. \[26\]

\_Extent and effect of relief. \[27\]--\_The court may reopen the whole matter, \[28\] and will generally grant relief co-extensive with the necessities of the situation. \[29\] The judgment should be opened rather than vacated, though in guardianship proceedings this not reversible error. \[30\] The judgment being opened without conditions, the plaintiff is put to the proof of his cause of action precisely as if no judgment had been entered. \[31\] The correction of a clerical mistake does not make a new judgment. \[82\] A decree being set aside, it is void. \[83\] The suit to enjoin the enforcement of a judgment, being in effect one for a new trial, a court of equity may finally dispose of the merits of the cause, or it can enjoin the enforcement until defendant consents to a new trial in the law action, \[34\] but it cannot order such new trial. \[83\] A void order does not affect the proceedings. \[84\]

\_Appeal or review.--\_Judgments vacating \[27\] another judgment are generally valid on face. Briseno v. International & it. Crippen v. X. Trrigating Ditch Co. G. N. R. Co. \[Tex. Civ. App.\] 81 S. W. 679. \[Colo.\] 76 P. 794. Must affirmatively show defective service. Jones v. Bibb Eric Co., 120 Ga. 321, 48 S. E. missed all proceedings in the matter of guardinship, instead of merely vacating the agreement with opposing counsel held unavatalling, the petition nowhere stating that the expected notice was not in fact given. \[This proceeding is different from an ordinarily civl action.\] \[This proceeding is different from an ordinarily civl action.

- 4 Our. Law. JUDGMENTS SS 9.
- 811
- 812
- 813
- 814
- 815
- 816
- 817
- 818
- 819
- 818
- 819
- 817
- 818
- 819
  _Grounds._"--The right to collaterally attack a judgment is one of general law, and state and federal decisions are not binding as to each other."6 It may be made by strangers to the judgment,"6 and in this connection the question of privity is important."6 One contesting the jurisdiction of the court61 or submitting thereto"2 cannot collaterally attack the judgment rendered for want of jurisdiction. The judgment may be collaterally attacked for want of jurisdiction63 affirmatively64 appearing on the face of the record."6 Hence, in the absence of a special statutory procedure,"6 all jurisdictional facts as to which the record is silent will be presumed,"8 as will the fact that the proper method for the service of process

apparent validity, that the plaintiff requires to be relieved from it." Elichhoff v. Elichhoff, 107 Cal. 42, 48, 40 P. 24, 48 Am. SL Rep. 110.

56. An execution being Invalid, a suit to set aside the dead given on execution sales is not a collateral attack on the judgment. (Cox v. Spurgin, 210 Ill, 398, 71 N. E. 456. A suit to quiet title as against those claim-ing under a will's not a collateral attack on the judgment admitting the will to produce. Best v. GrAlapp \[Neb.\] 98 N. W. 837. Where the court in confirming a sale can only pass on the regularity thereof, on which the property is exempt is not a collateral attack on the judgment of confirmation. Lewis v. Maureman, 35 Wash. 156, 76 P. 737.

01. See 2 Curr. L, 694.

01. Attack for want of jurisdiction. Phoenix Bridge Co. v. Castleberry \[C. C. A.\] 131 F. 176.

01. Surrogate's decree granting letters of administration on the estate of a nonresident may be attacked collaterally, in an action to recover for the intestine's wrongful death, on the ground of legal fraud in obtaining the letters. Zlemer v. Crudible Steel Co., 90 N. Y. S. 962. A total stranger not being bound may always attack it. See Forner Adjudication, 3 Curr. L, 1476.

01. Purchaser of land is in privity with judgment concerning such land rendered against his vendor. Scudder v. Cox \[Tex. CIV. App.\] 80 S. W. 872. Persons claiming under grantee who was privy to a decree in an action to rescind deed of grantor held to stand In same position as the grantee under whom they claim in respect to a collateral attack on such decree. Wilkins v. McCorkle \[Tenn.\] 80 S. W. 834.

01. A decree of divorce obtained on a cross bill, a motion to dismiss which for want of jurisdiction was denied, is not open to collateral attack by plaintiff's heirs. Aldrich v. Steen \[Neb.\] 98 N. W. 445.

01. Where corporation was used by wrong name but did not challenge the court's jurisdiction. Richardson & Boynton Co. v. Utah Stove & Harvard Co. \[Utah\] 77 P. L.

01. Sladwin v. Rice, 44 Misc. 64, 89 N. Y. S. 738; Cizek v. Cizek \[Neb.\] 99 N. W. 28, rvy. 96 N. W. 657. Court having jurisdiction, the attack cannot be sustained. Halines v. Hall, 209 Pa. 104, 68 A. 125. Children of beneficiaries of trust held incapable of attacking, in an action of electment, the appointment of a substituted trustee. Id. in view of Rev. St. 1895, art. 2674 and art. 274, giving the county court jurisdiction to appoint, of its own motion, guardians for persons of unsound mind, a judgment appointing such a guardian cannot be collaterally attacked. Flynn v. Hancock \[Tex. Civ. App.\] 80 S. W. 245. Judgment on defective verdict (primitive damages without actual) is voidable. Brennan v. Paui \[Mo. App.\] 83 S. W. 283.

01. Parsons v. Weis \[Cai.\] 71 P. 1007. In the absence of anything in the record to Im-peach the right of the court to determine the question involved, there is a conclusive presumption that it had such right. Wil-the attack cannot be sustained. Halines v.

01. Johnson v. Hunter, 127 F. 219; McBratt v. Mhedes, 143 Cal. 275, 76 P. 1036; Jones v. Smith, 120 Ga. 642, 48 S. E. 124; Jewett v. Boardman, 181 30. G47, 81 S. W.

186; Smoot v. Jadf \[Mo.\] 83 S. W. 481; Ald-rich v. Steen \[Neb.\] 100 N. N. W. 311; State v. Cloudt \[Tex. Civ. App.\] 84 S. W. 415. Tax judgment, vold citation appearing in record. Shecock v. Wolfram \[Tex. Civ. App.\] 80 S. W. 642. A decree against a receiver of another court cannot be collaterally attacked because the record fails to affirmatively show that permission to sue was obtained. Ridge or, Walker \[C. C. A.\] 132 F. 599. Order of probate court appending a guardian based on a petition which did not state any statutory ground. Pub. St. 1882, tit. 25, 1 4 Cur. Law. JUDGMENTS SS 9. 313

was selected," and the exercise of jurisdiction warrants the presumption that all necessary facts were proved." Reictals," findings of fact," and the record" are presumed to be true. This presumption does not favor inferior or special tribuinals."

A judgment may be collaterally attacked for fraud only when such fraud enters into the procurement thereof."

An erroneous judgment" or one voidable for mere irregularities of procedure" cannot be collaterally attacked. Nor will illegalities which might have been

crees. Alexander v. Barton \[Tex. Civ. App.\] TX. See 2 Curr. L. 596, n. 68-69. Com-71 S. W. 71; Clark v. Rossier \[Idaho\] 78 P. 2 pure Justices of the Peace, 2 Curr. L. 651, 4 358. The court of ordinary. Jones v. Smith, Curr. L. .

set up in the action form the basis for such an attack by a party thereto." In some states an adjudication of title is not conclusive as against one against whom plaintiff claiming title under such decree sues respecting title."

The same general rules apply to foreign judgments,"'s probate decreres," the determination of official boards," and discharges in bankruptcy."

SS 10. _Lien._"--The judgment does not create a lien on choses in action," leasehold interests," property in custodia legis," or property to which the debtor has simply the bare legal title," or, being a judgment at law, on that in which he has a mere equitable interest." It is a lien on a debtor's interest in land conveyed by security deed." A judgment may specify the fund out of which it is to be paid; if not so specified the judgment is a general one."

Wireby the plaintiff acquired the title upon to collateral attack by mortgagee or pur-

which he sues. Thibodeaux v. Thibodeaux, chaser who were parties to the suit. Smith

112 La. 906, 36 So. 800. Under Burns' Ann. v. Sparks, 162 Ind. 270, 70 N. E. 253. See 2

St. 1901, 1 1067; defendant in ejecent may attack the judgment under which plaintiff

76. Smith v. Hardesty \[Ky.\] $3 S, W. 646. claims title by showing that it was rendered

Tax sale. Beasley v. Zequltable Securities

Co. \[Ark.\] $4 S. W. 224; Arbuckle v. Mat-

thews \[Ark.\] $3 S. W. 326, Irregularity in notice. Loughren v. B. F. Bonniwell & Co.

\[Iowa\] 101 N. W. 287. Irregularity in minute

entry. Lindquist v. Maurepas Land & Lum-

ber Co., 112 La. 1030, 36 So. 843. Error in return day in the summons. Jones v. Dan-

forth \[Neb.\] $9 N. W. 495. Omission from return of service of an attachment as to

whether copy of an order was left with oc-

equant. Stillman v. Hamer \[Kan.\] $ P. 836. Irregularity in verdict. Brennan v. Paul \[Mo. App.\] $3 S, W. 283. Absence of

cault to bill held insuncfficient to show that

court had no jurisdiction of the person of

defendant. Wilkins v. McCorkle \[Tenn.\] $0 S. W. 834. Judgment against minor not

served but represented by guardian at litem

is not void. Penn v. Case \[Tex. Civ. App.\]

$1 S. W. 349. Judgment removing minor's disabilities, register failed to publish notice

of the filing of the petition. Boykin v. Col-

112 \[Ala.\] $7 No. 248. Where court allowed

the commissioner making the sale greater

fees than were allowed by law. Johnson v. Hunter, 127 F. 219. That administrator was

dismissled before final judgment, appeal being dismissed by consent of counsel. Vlicka-

burg. $& P. R. Co. v. Tibbs, 112 La. 51, 36 So. 223. After judgment validating an issue

of municipal bonds, an injunction will not

lie to restrain the sale on the ground that

the notice of the election was not published

as required by statute. Rountree v. Rentre v. Rentre 119 Ga. 885, 47 S. E. 328. Judgment rendered

against a party after his death held not

subject to collateral attack, though his helrs

and representatives were not cited. Campbell v. Upson \[Tex. Civ. App.\] $1 S. W. 358. A judgment rendered for more than is ask-

ed in the pleading is merely irregular. Id. See 2 Curr. L. 554, E. 53.

77. Judgment debtor cannot attack the

levy of execution on the ground that his

debt was infected with usury. Wilkinson v. Holton, 119 Ga. 557, 46 S. E. 620. Judgment

debtor cannot resist execution by an afflavit

of illegality setting up that the judgment is

vold as against the securities named as co-

defendants therein. Levadas v. Beach, 119 Ga. 613, 45 S. E. 864.

78. The defendant in a partition suit may

require into the validity of the proceedings

whereby the plaintiff acquired the title upon

which he sues. Thibodeaux v. Thibodeaux,

chaser who were parties to the suit. Smith

112 La. 906, 36 So. 800. Under Burns' Ann. v. Sparks, 162 Ind. 270, 70 N. E. 253. See 2

St. 1901, 1 1067; defendant in ejecent may

attack the judgment under which plaintiff

76. Smith v. Hardesty \[Ky.\] $3 S, W. 646. claims title by showing that it was rendered

on matters not in issue. Richoreek v. Rus-

Co. \[Ark.\] $4 S. W. 224; Arbuckle v. Mat-

sel \[Mo. App.\] 4 Cur. Law. JUDGMENTS SS 10.

Judgment liens before levy are general and indefinite, vesting no estate," and in some states are given priority in the order in which executions are issued," and hence are inferior to specific liens acquired before that time." In others, as against the judgment debtor, the judgment is a lien on all really then owned or subsequently acquired from the date of its rendition;" but as against a bona fide purchaser for value, it is a lien only from the date on which it is dokected." The lien of a recorded judgment extends only to such property within the county where recorded as is subject to levy and sale under execution." A decree directing a party to pay a specific fund into court for distribution is not a lien upon the real estate of such party unless it is provided by the decree that the claimants recover of the party holding the fund, and that in default of payment execution may issue." In Ohio a judgment creditor failing to issue and levy execution within one year from rendition, his lien is lost as against the lien of a subsequent judgment." Opening a default judgment on condition that it shall stand as security restrains the issuance of execution within the meaning of the Illinois statutes." In Tennessee the judgment debtor paying off a mortgage on his property, the title reinvests in him and immediately passes under the judgment lien, though the judgment be then over a year old.1 In Alabama the certificate of judgment must state the name of the owner of the judgment.2 In Oregon, in order to become a lien on really, the judgment lien docket must state the time when the judgment was dokected.3

Footnote successful attempt to defeat the lien,8 but is inferior to the rights of prior bona fide purchasers,6 and prior equitable liens of which the judgment creditor has notice.7 The general lien of a judgment is inferior to a prior unrecorded ded,8 but the contrary is true after the judgment has become a specific lien on the property.9 A judgment obtained against a husband for a community debt is a lien on community property awarded the wife in a subsequent suit for a divorce.10 Only those dealing with property on which the judgment is a lien are deemed to have constructive notice of the judgment.11

Footnote 23: Atlantic Trust Co. v. Dana \[C. A.\] 128 F. 295.

4 Cur. Law. JUDGMENTS SS 11. 317

and it is immaterial whether the dormancy be caused by the death of the judgment debtor or by want of an execution.\[26\] The judgment can only be revived by a judicial order,\[27\] but the proceedings to revive may be in a division of the court other than the one by which the judgment was rendered.\[28\] A proceeding to revive cannot be brought in the name of a deceased judgment creditor,\[29\] nor at common law in the name of an assignee of the judgment,\[30\] and in construring statutes on this subject, the proceeding to revive is not an action.\[31\] The judgment may be revived on motion,\[32\] and, when necessary in an equity case, may be had on cross petition.\[33\] A decree ordering the sale of land and application of proceeds to existing judgment revives such judgment.\[34\] Statutes generally prescribe the time within which the proceeding to revive must be instituted\[35\] and the method of such procedure.\[36\] The proper form of the judgment in re-vivor is to award execution for the amount of the original judgment, with interest from its rendition and costs.\[37\] A judgment of revivor is an adjudication between the parties and their privies that the judgment was dormant and not barred by limitations at the time the proceeding was instituted, and they will not be allowed to subsequently deny such facts.\[38\] The right to prosecute revior proceedings and the right to maintain an action upon a dormant judgment are cumulative remedies.\[39\]

In order to validate a judgment, the rights must be acquired in the same capacity as the judgment.\[40\] Judgment taken against husband alone cannot be revived against husband and wife.\[41\]

25. Manley v. Mayer \[Kan.\] 75 P. 550. 34. Anderson v. Baughman \[S. C.\] 48 S. E. Gives it original force as a lien on the judge.\[38\] 38. 35. In Missouri a scire facias may Issue 203 III. 246, 70 N. E. 683. In Kansas the revivals of a judgment which has not become revived in a judgment at any time within 10 dormant under Gen. St. 1901, SS 4895, is not a condition precedent to an action thereon 36. 64, 80 S. W. 836. 38. 38.

## 12 Assignments

A judgment may be assigned\*\* by an agent under oral authority,44 and the certificate of judgment need not be transferred in order to transfer the judgment.45 So far as the judgment debtor is concerned, the assignee is the real party in interest.46 He takes all of the assignor's title, regardless of whether any consideration passes or not,47 and the assignor has nothing which he can subsequently assign, unless there be left in him some equitable interest by reason of a trust existing in his favor:48 hence the assignee need not record his assignment in order to be protected.49 In an action by an assignee, the complaint alleging the assignment, it is not necessary to allege that the plaintiff was the owner at the time the action was commenced.50

## 13 Payment, discharge and satisfaction; interest

A judgment is presumed not to have been paid,\*\* though lapse of time may create a contrary presumption, which presumption is rebutted by a decree ordering the sale of land and the application of the proceeds to the judgment.\*\*

In some states judgments forts are allowed priority of payment.54 Judgments against a corporation for injuries to third persons are not to be classed

- 42. See 2 Curr. L. 599.
- 43. Under City. Code, $ 1044, providing that property of any kind, except a possibility not coupled with an interest, may be transferred. Curtin v. Kowalsky \[Cal.\] 78 P. 962.
- Contract whereby the original judgment creditor transferred to plaintiff all judgments standing of record in his name, together with fact that judgment used on was entered prior to the date of the assignment, held sufficient. Id. See 2 Curr. L. 599.
- 26. 27. Evidence held sufficient to show that the assignee held the judgments absolutely for himself. Miller v. De Yoe \[N. J. Eq. 58 A. 179.
- 44. Though written assignment of judgments to the principal is lost. Snyder v. Manc \[VWs.\] 102 N. W. 354.
- 45. Travis v. Rhodes \[Ala.\] 37 So. 804.
- 46. Is entitled tosue, notwithstanding the existence of a trust between him and the assignor. Curtin v. Kowalsky \[Cal.\] 78 P. 962.
- 47. Curtin v. Kowalsky \[Cal.\] 78 P. 962.
- 48. Curtin v. Kowalsky \[Cal.\] 78 P. 962.
- 49. In an action on an assigned judgment, the question whether any equitable interest was left in the assignor cannot be litigated under a denial of the fact of the assignment. Id.
- 49. Subsequent assignees take nothing as against him. Curtin v. Kowalsky \[Cal.\] 78 P. 962.
- 50. Curtin v. Kowalsky \[Cal.\] 78 P. 962.
- 51. See 2 Curr. L. 600.
- 52. As to amount for which judgment should be entered, including interest, see ante, $ 5, Rendition, entry, and docketing.
- 53. The burden under the pleadings, resting on plaintiff to prove such fact, is met by proving the rendition of the judgment. Campbell & Zell Co. v. American Surely Co., 129 F. 491.
- NOTE. Rule as to presumption of payment: As a general rule, the unexplained lapse of twenty years from the time that a judgment is rendered raises a legal presumption that it has been paid. Campbell V. Carey, & Harr. \[DeL.\] 427; Burton v. Canas operating expenses,\[58\] nor are they entitled to priority of payment over the mortgage debts of the corporation from the earnings of a receivers initiated subsequent to the date of the injuries.\[54\]

A court will protect one interested in a judgment to be obtained and who has control of same by counsel against any unjust discharge by the plaintiff of record.\[57\]

The judgment debtor may take advantage of a satisfaction by a guard-antor,\[58\] and a judgment on a note deposited as collateral is satisfied by a satisfaction of the principal judgment.\[59\] An unperfected bid at the execution sale is not a satisfaction of the judgment.\[60\] Release of the principal on the obligation on which the judgment is rendered does not release his surety, both being ostensibly principals and the creditor having no notice of the actual relationship existing between them.\[61\] A judgment debtor furnishing money to a third person to buy up the judgment, and he buying it at less than its face value, the creditor not knowing the facts, it only amounts to a part payment of the judgment.\[62\] Satisfaction of judgment extinguishes it.\[63\] One is not entitled to have satisfaction entered until he pays his costs.\[64\] A court of law is powerless to cause the satisfaction of a judgment to be entered, after the term at which it was rendered, for matters which existed at the time the judgment was rendered, and which might have been pleaded and proven in bar of the action.\[65\] In Alabama an assignee is subject to the statutory penalty for failure to credit partial payments on the record.\[66\] Where, after transfer, suit may be continued in the name of the original plaintiff, the assignee may assign the receipt and satisfaction in the name of such plaintiff.\[67\]

Where payment has been coerced on a judgment which is afterwards reversed, the party paying has an absolute right to restitution,\[68\] with interest from the time that the reversal occurred,\[69\] and the assignee of the judgment creditor is in no better position than the latter would have been.\[70\] This right may be enforced by an independent action,\[71\] and the judgment debtor is not required to submit to seizure or distress of his property in order to preserve this right.\[72\] Receiving the money from an attorney ratifies his conduct.\[73\]

55. Atlantic Trust Co. v. Dana \[C. C. A.\] contract vodd, held not to give judgment creditor right to reassert judgment. Ger- man Bank v. Iowa Iron Works, 123 Iowa, 128 F. 209; Hampton v. Norfolk & W. R. Co. 516, 93 N. W. 174.

\[C. C. A.\] 127 F. 662.

67. Sowies v. First Nat. Bank, 133 F. 846.

01. German Bank v. Iowa Iron Works, 123 F. 838.

01. McDonald v. Holdom, 208 Ill. 128, 70 N. E. 21.

satisfaction is wholly vodd. Lynch v. Burt \[C. C. A.\] 132 F. 417.

69. Does not prevent the judgment creditor from maintaining a bill to subject the land to the judgment. Scott v. Autlman Co.. 211 Ill. 612, 71 N. E. 1112.

01. Tarriver v. Bassford \[Cal.\] 78 P. 1038.

01. Dickerson v. Campbell \[Fla.\] 35 So. 986. A plea to a scire facias to revive a judgment, alleging the above facts, is not good as a plea in bar, but tends, at most, to plead a payment pro tanto. Id.

01. The payee of a note wrongfully allowing it to go to judgment against him and the maker becomes the principal judgment debtor and his payment of the judgment extinguishes it, though he took a formal assignment. Snyder v. Malone \[VWs.\] 192 N. W. 354. Reservation, In contract for satisfaction of judgment, or right to declare Courts have the power,"14 in their discretion" to set off mutual judgments between the parties or their privies. The assignment of a demand before judgment ordinarily prevents the accruing of the right as against the assignor," though the rule has been changed by statutes in some states." One not having assigned his judgment" may plead it as a counterclaim," the remedy for denial of such right being in equity."60

Judgments bear simple"1 interest"2 from the date of final rendition."83

SS 14. _Executions, other final process and creditors' suits_ are treated elsewhere."44 Besides these remedies the court may grant equitable relief."85

SS 15. \_Actions on judgment; merger."88--An action or proceeding on the judgment"87 is the only way of enforcing property rights which have been merged in the judgment."88 An action at law lies upon a decree in equity from another state for the payment of money."89 The right to sue on a judgment and have execution"90 and the right of revior"91 are cumulative. A judgment is not final so as to support an action thereon while subject to review."82

Footnote 89: Action upon a judgment is not barred until 5 years from the time at which it became final. Harler v. Bassford \[Cal.\] 78 P. 1038.

Judgment on the judgment being vacated, no question of merger arises."84

Footnote 89: Abbott v. Abbott \[Kan.\] 78 P. 1038.

VOL IV. No. 2. CURRENT LAW, APRIL, 1905. 821

Copyright 1991, by Keeto-Davidson Co.

JUDICAL NOTICE, see latest topical Index.

JUDICAL SALES.

$ 1. Occasion For and Nature of Judicial
$ 7. Completion of Sale; Deceds (323). Sales (321). Sales (321). $ 8. Title and Rights Under Sales and $ 2. The Order, Writ or Deerece (321). Under Deced (323). $ 3. Levy, Seixure or the Like (321). A Defects and Collateral Attack (323). $ 4. Notice and Advertisement of Sale
$ 2. As Against Outstanding Claims (324). C. Rights Under Sale and In Proceeds (321). $ 5. Sale and Conduct of It (321). $ 6. Confirmation and Setting Aside Sales (321).

SS 1. \_Occasion for and nature of judicial sales.\_98--The judicial sales here discussed do not embrace those pursuant to foreclosure decrees96 or execution,97 or in proceedings to sell a decedent's lands98 and the like.99 A sale is improper if not prayed and not necessary.10

SS 2. \_The order, writ or decree.\_10

SS 3. \_Levy, seizure or the like_10 is essential before sale can take effect.40

SS 4. \_Notice and advertisement of sale_10 in a socialist newspaper otherwise legal is valid.40

SS 5. \_Sale and conduct of it.\_10--The qualified officers of a new county erected after order of sale may execute the order.8 The court may enjoin any interference by slandering title and the like.99

Footnote 10: The author is grateful to the 322 . JUDICIAL SALES SS 6. 4Cur. Law.

To set aside a sale is discretionary,\[22\] and a bond may be exacted as a condition of so doing.\[28\] A mere offer of an increased price does not suffice in Maryland or the District of Columbia.\[24\] It may be done where a sale was unnecessarily en masse, and where there was a gross inadequacy of price.\[28\] Inadequacy must be so great that to confirm the sale would be great injustice.\[28\] The rights of lien-ors must be considered where the sale is one free of their liens which attach instead to the purchase money.\[27\] Application should be prompt.\[28\] The champertous nature of applicant's employment of his attorney is no defense,\[29\] nor are remaindermen whose land was sold on proceedings against the particular tenant concluded.\[30\] There must be a showing of facts to assail a sale en masse\[21\] or to contradict a report showing due advertisement\[32\] or to impeach an appraisal.\[33\] Applicants for a resale on the ground of inadequacy should show the probability of an increased price.\[34\] The motion should be based on facts and not mere conclusions of law.\[35\] A cross bill against such proceedings to remove a cloud on title created by applicants may be stayed until after decree on the original bill.\[36\] The annulment of a sale is conclusive on the parties and their privis.\[37\] _If a sale is reversed_ or set aside, there should ordinarily be restitution,\[38\] but no reconveyance is necessary.\[39\] There should be an accounting of mesne profits.\[40\] The buyer is entitled to refund of the price paid with interest and the enhancement of value due to permanent improvements made in good faith,\[41\] and should be charged the fair rental value.\[42\] Failure to supersede judgment pending appeal from order of confirmation does not show bad faith.\[43\] He is not chargeable with costs of the main action paid out of the purchase money.\[44\] _Costs_ may be adjusted as in other equitable cases.\[45\] _Proceedings on resale_ need not be on notice to a purchaser at first sale who has appeared to contest enforcement of the first sale and to except to the second.\[46\]

22. Sustained where $2,250 and deposit\[\] not show aflant's knowledge of values, was made before confirmation of sale for Wigginton v. Nehan, 25 Ky. L. R. 617, 76 S. 81,360. Auerbach v. Wolf, 22 App. D. C. 583. 28. Bond was required and made to cover 34. Porch v. Agnew Co. \[N. J. Eq.\] 57 A. 726. 726.

4 Cur. Law. JUDICIAL SALES SS 8A.

Service of a rule to complete the first purchase47 and the taking of appeal from the second confirmation48 also bring him in court for all purposes of sale. A second appraisement on a resale for purchaser's default is not required.49 It may be proper for the purchaser at a former invalid sale to buy and be credited according to his equity.50 A refusal to permit a defaulting purchaser to bid at resale is harmless to him unless he intended to bid and was prevented.51 A defaulting first purchaser cannot redeem from a second sale82 and has no interest to entitle him to resist confirmation of a resale because of inadequacy of the bid.83 A motion by a defaulting purchaser to set aside a resale must show an equity in his favor for such relief and diligence in asserting it.54

(SS 8) _B. As against outstanding claims._\[75\]--The rule of caveat emptor applies to all judicial sales,\[76\] but a greater estate than defendant has and than is in court cannot be sold.\[77\] No right can antedate the attaching of the lion.\[78\] When a sale is made in bankruptcy free of liens, statutory liens for taxes are cut off,\[79\] and as to those the lion whereof accrued subsequently, the proceeds are not liable.\[80\] (SS 8) _C. Rights under sale and in proceeds._\[81\]--A formal purchase may be enforced as a mortgage to the purchaser if it be such in fact\[82\] or as a trust.\[83\] If the buyer became such under a fair agreement to reconvey and at a price below value, he may be compelled to perform.\[84\] In Kentucky, redemption may be made if the price is less than two-thirds the appraisal.\[85\] When the terms of redemption are in the statute, they must be fully met.\[86\] _Liability for proceeds._--The bond required of special commissioners in some cases must be construed if possible so as to serve the objects of the statute.\[87\] **JURISDICTION**.

\*\*SS 1. Definitions and Distinations (324). $\\lx@sectionsign$ 10. Appellate Jurisdiction (340). Further Appeal (343). $\\lx@sectionsign$ 2. Elements and Constitments in General (325). $\\lx@sectionsign$ 3. Legislative Power Respecting Jurisdiction (343). $\\lx@sectionsign$ 4. Gernerally (343). $\\lx@sectionsign$ 4. Territorial Limitations (328). $\\lx@sectionsign$ 5. Limitations Resting In Situ of Subject-Matter or Status of Litigants (325). $\\lx@sectionsign$ 6. Limitations Resting In Account or Value In Controversy (331). $\\lx@sectionsign$ 7. Limitations Resting In Character of Subject-Matter or Object of Action (334). $\\lx@sectionsign$ 8. Limitations Resting In Character or Competiety of Parties Litigants (335). $\\lx@sectionsign$ 9. Original Jurisdiction (335). $\\lx@sectionsign$ 10. Executive, Concurrent and Conflicting (335). $\\lx@sectionsign$ 11. Acquisition and Divestlure (355). $\\lx@sectionsign$ 12. Ancillary or Assistant (337). $\\lx@sectionsign$ 13. Projection to Jurisdiction and Prec-C. Interior and Limited (338). $\\lx@sectionsign$ 14. Projection to Jurisdiction and Prec-D. Original Jurisdiction of Courts of Last Resort (339).

\*\*SS 1. _Definitions and distinctions._\[88\]--Jurisdiction is the power and authority constitutionally conferred upon a court or judge to pronounce the sentence of the

egin{tabular}{l|l} debts either not a charge on separate estate & derson v. Kibble, 211 $\\lx@sectionsign$ 56, 71 N. E. 1091. \\ or not made after her disability was re- & 78. Summerville v. Stockton Milling Co., 142 $\\lx@sectionsign$ 62, 76 P. 243. \\ $\\lx@sectionsign$ 46 S. E. 603. It is a cloud on title. Id. The \\ purchaser's transferee is bound to take no- & 81. See 2 Curr. L. 603. \\ tice and cannot be a bona fde purchaser. & 82. Liskey v. Snyder \[W. Va.\] 49 S. E. 515. \\ fd. Judment entered by attorneys who & See also Mortgages, 2 Curr. L. 905. \\ were the only representatives of infants, and & 83. An attorney who buys in is presumed to do so for his client despite the absence of implied authority to do so. Phillips v. Phill- 19$\\lx@sectionsign$ 4Am'r \[KY.\] 80 S. W. 826. \\ dron v. Harvey, 54 W. Va. 608, 46 $\\lx@sectionsign$ 8. E. 603. 74. Waldron v. Harvey, 54 W. Va. 608, 46 $\\lx@sectionsign$ 8. E. 603. 75. See 2 Curr. L. 603. 76. Valkau v. Manitowe Seating Co., 105 $\\lx@sectionsign$ 11. App. 130. See Weir v. Cordz-Fisher Lumber Co. \[Mo.\] 85 S. W. 341. Purchaser under foreclosure proceedings did not get good title because of defects in publication of notice of sale and a mortgage on the property. Brickell v. Miles, 2 Ohio N. P. (N. S) 153. 77. Sale of fee when there was but an easement and fee was not in court. Wood v. Grayson, 22 App. D. C. 432. Compare Hen- \\ \\end{tabular} .

**SS 1.** \*\*Definitions and Distinations (324). $\\lx@sectionsign$ 10. App law or to award the remedies provided by law on a state of facts proven or admitted, referred to the tribunal for decision, and authorized by law to be the subject of investigation or action by that tribunal in favor of or against persons who present themselves or who are brought before the court in some manner sanctioned by law as proper and sufficient." This title deals with the powers of courts to entertain causes of particular kinds brought before them in particular manners on particular grounds, but does not include a discussion of their powers to grant particular kinds of relief or the relief peculiar to certain courts."

_Counts of common-law jurisdiction_ within the meaning of the naturalization act are those which have the power to punish offenses, to enforce rights, or to redress wrongs recognized by the common law, or courts which are governed by the principles, rules and usages of the common law in the determination of some of the causes of which they have jurisdiction, the term being used to distinguish courts which have some common-law jurisdiction from those which have no jurisdiction save in equity, in admiralty, or in matters not involving offenses or rights under the common law."

**SS 2.**_Elements and constituents in general."_--Jurisdiction does not depend upon the character of the decision or judgment, for when suit is brought in a court of competent jurisdiction by a competent party by legal process, jurisdiction exists and no subsequent error of law will affect it."

The want of necessary parties does not deprive the court of jurisdiction," and where a court has jurisdiction of the subject-matter, the form of application to invoke the same is not material."

Primarily, every court has the power, and it is its duty, to decide as to its

**SS9.**_Ingram v. Fuson \[Ky.\] $2 S. W. 606._ _"Jurisdiction" as used in the law is the right to hear and determine a matter and carries with it the idea of exercising judidism or usual judicial functions. Stin v. Morgrison \[Idaho\] $7 P. 246._ _Jurisdiction._ _Ing the pettition on which judgment is_ _J_"--G"--ment is unqualified. Is the sovereign authority to make, decide on, and execute laws; "In its _ty_".\_ $C$.\_ $N$.\_ $N$.

## 2 4 Cur. Law.

own jurisdiction, including the existence of facts which must exist as a foundation for its jurisdiction," and where a tribunal is clothed with jurisdiction of the class of cases to which the controversy belongs, and its right to adjudicate the controversy depends on certain facts which it must ascertain, and it makes an express finding on them, the parties are precluded from reopening it afterward except on appeal or writ of error." Not because jurisdiction of the subject-mattcr can be waived or conferred by consent or estoppel, as it cannot," but because it is conferred by law," and the facts on which it may be exercised have been found to exist in the particular controversy.1 If the decision that they exist is erroneous, the remedy is the same as when other erroneous decisions occur, review by an appellate court to which the cause may be carried and the decision reversed.2

Process and service, personal," by publication,4 or otherwise, are necessary," though process and service may be waived, whence an appearance in person or by

The supreme court of Louisiana has evidence being preserved In the record in jurisdiction to determine questions of fact a way that enables the appellate court to affecting its own jurisdiction in any case pass on it. Hadley v. Bernero, 103 Mo. before it. Dannenmann v. Charlton \[L4.\] 36 App. 549, 78 S. W. 64. So. 965. An appellate court may deter- mime matters affecting its jurisdiction which was necessary to a decre in personam (Hilderth arise pending appeal and are set up by v. Thibodeau \[Mass.\] 71 N. E. 111; Korman supplemental petition. Boyd v. Agricultural v. Grand Lodge of U, S., 44 Misc. 564, 90 Ins. Co. \[Colo. App.\] 76 P. 986. Where the N. Y. S. 120; Greenway v. De Young \[Tex. finding of jurisdictional facts is based on a conflict of testimony, the lower court will be sustained because it weighs (estimony) law is necessary to a judgment in rem and the apellate courts do not (Hadley v. Bernero, 103 Mo. App. 549, 78 S. W. 64), but if the fact was found against all the "something", the error in exercising jurisdiction can be corrected by a reversal of the judgment (Id.).

If the defect of jurisdiction of a court springs from Inexcusable departure from established principles governing the claries of judicial power, its judgment is erroneous and may and ought to be set aside on appeal. Harrigan v. Gilchrist \[Wis.\] 99 of the motion must be served and return N. W. 909.

Jurisdiction of the subject-matter can never be conferred by consent. Board of Com'rs v. Denver Union Water Co. \[Colo.\]

76 P. 160; Illinois Cent. R. Co. v. Jones' Adm'r \[Ey.\] 80 S. W. 484; Mider v. Lese, by substituting another of similar name.

91 N. Y. S. 148; Board of Chosen Freehold. Jerry V. Chiesago & A. R. Co., 105 Mo. App. ervs v. Central R. Co. \[N. J. Eq.\] 59 A. 303; Hobbs v. German-American Doctors \[Ok.\]

1259.

78 P. 856; Harrigan v. Gilchrist \[Wis.\] 99 A. Publication based on afflawt showing no diligence in attempting personal service decree assented to the judgment transfer- from. Shmensen v. Slimensen \[N. D.\] 100.

104 Mo. App. 862, 80 S. W. 386.

90. Jurisdiction of the subject-matter of a bankrupt proceeding is conferred by law. In re Greett, 130 F. 831.

01. Halley v. Bernero, 103 Mo. App. 549, 78 S. W. 64; Young v. Hiner \[Ark.\] 79 S. W. 1062.

01. State v. Evans \[Mo.\] 83 S. W. 447. The 4 Cur. Law. JURISDICTION SS 2.

n attorney for any purpose other than to object to the jurisdiction of the person waives the point and confers jurisdiction over the person of defendant.\* Issuance and service of process cannot be waived before commencement of proceedings,\* but acceptance of service of a petition before it was filed will not invalidate the judgment founded thereon.\* Pleading to the merits does not waive the objection that the court has no jurisdiction over the subject-matter.\*

Jurisdiction cannot be acquired over plaintiff by a cross action if he is not served with process and does not appear,\* but where he appears by counsel at the trial, citation to him is unnecessary.\[11\]

In several states the supreme court is required to give opinions on questions of public law at the request of the governor, legislature and other state officers, but the court in Massachusetts answers such questions only to the extent the opinion is desired as an aid in the performance of judicial duties in regard to a matter then pending.\[12\]

An appellate court has not only power to determine its own jurisdiction but may also inquire into the jurisdiction of the court from which the appeal is taken,\[13\]

jurisdiction of the court is not thereby oust- \[overruled he answers, setting up the special ed. McAnaney v. Quigley, 105 Ill. App. 611.

Miner beneficiaries under a will cannot be \[Chicago & A. R. Co., 105 Mo. App. 446, 79\]

divested of title without service on their \[S. W. 1155. The inclusion of a plea to the guardian, or the appointment of a guardian \[merrits with a plea to the jurisdiction waives \[merrits with a plea to the latter is \[merrits with a plea to the latter is \[merrits with a plea to the latter is \[merrits with a plea to the latter is \[merrits with a plea to the latter is \[merrits with a plea to the other than to \[merrits with a plea to the latter is \[merrits with a plea to the other than to 328 JURISDICTION SS 3. 4 Cur. Law.

because if the court in which a. ease originates has no jurisdiction of the subject-matter, none can be obtained by appeal;14 but where the court of first instance has jurisdiction of the general subject-matter, and a proper proceeding is had to invoke it, no subsequent error of law can be jurisdictional nor affect the right of a court to which an appeal de novo lies to decide the case according to the right of the matter.15

SS 3. \_Legislative power respecting jurisdiction.16--Legislatures can neither limit nor enlarge the jurisdiction of constitutional courts unless expressly authorized by the constitution to which both owe their existence,17 and state legislation can neither directly enlarge nor contract the jurisdiction of the Federal courts;18 but congress may lawfully empower courts of the states to admit qualified aliens to citizenship, and the courts of the states may exercise such powers without legislative authority or permission from the state which created them.19 A state constitution directing the election of justices of the peace, repeals statutes that vest other persons with similar judicial powers.20

SS 4. \_Territorial limitations.21--The orders of a court have no extraterritorial force or effect,22 and a justice of the peace in Kansas outside a city in which a city. court has been established has no jurisdiction over a corporation having its general office in the city.

4 Cur. Law. JURISDICTION SS 5. 389

Jurisdiction over persons and property by the courts of any state or district is confined to the persons and property within the territorial bounds of the state or district,\[28\] though jurisdiction over the owner may bring in his personal property having its actual existence elsewhere,\[29\] and actual presence of personal property may bring in its owner to the extent that the judgment will bind him in so far as the property is concerned.\[30\] Jurisdiction over one of several co-parties will suffice to confer it on others,\[31\] but jurisdiction cannot rest solely on the residence of a nominal party,\[32\] and where the petition states no cause of action against defendants residing within the county, no jurisdiction is acquired by service out of the county, over those who reside out of the county.\[33\] A British subject can maintain an action for libel against the proprietors of a newspaper in the city of New York,\[34\] and the county court of Kings county has jurisdiction of an action in a municipal court of the city of New York in the borough of Brooklyn against a nonresident of Kings county, removed by defendant to the county court, where the municipal court had jurisdiction.\[35\] There is no objection to a stipulation agreeing that trial may be held at another of the two places in the county at which the court is usually held.\[36\] The court to which a cause was transferred on change of venue has jurisdiction of defendant's person after the term at which judgment was rendered to amend the record to make it speak the truth, notice of the motion having been given.\[37\]

There is no doubt that courts have jurisdiction of transitory actions between nonresidents arising without their territorial jurisdictions,\[38\] but such jurisdiction is declined in New York in the absence of special reasons for entertaining it,\[39\] it not being one of the privileges of a citizen of the United States to bring an action in any state against any person upon whom service can be had, regardless of

28. See 2 Curr. L. 615, n. 65. Jurisdiction

assignment for benefit of creditors made in cannot be obtained of a partnership, its

another state, though assets exist in New

property beyond the limits of the state, nor

Jersey and the assignment is recorded there.

the nonresident members thereof, by service

In re Browning \[N. J. Perorog.\] 57 A. 869,

on a resident member and attachment of his

21. In Oklahoma an action against two

individual property within the state, the

joint obligors in properly brought in any

partnership doing no business within the

county where one of them may be sum-

state. People's Nat. Bank v. Hail \[V.U.\] 56 A.

moned, and in such case summons may

1013. The slitus of a patent for an invention

properly be issued to and served upon the

follows the person of its record owner, and,

other in any county of the territory. First

no jurisdiction to adjudicate his ownership

Nat. Bank v. Hessler \[OK1\] 77 p. 36.

can be obtained in the absence of personal

32. Trues proceeding to sell lands in

service within the state on such record

another county on trust dead. Meeks v.

owner. Hildreth v. Thibladeau \[Mass.\] 71

Roa, 117 p. 86, 45 s. E. 252. See 2 Curr. N. E. 111. The city court of New Haven

L. 615, n. 72.

has no jurisdiction of a cause where both

23. Haseltine v. Messmore \[Mo.\] 82 S.

parties are nonresidents of the city and no

W. 115.

property within the city limits is attached.

Slade v. Zeltfuss \[Conn.\] 59 A. 406. The

53. Knows v. Bloom, 44 Misc. 81, 89 N.

situs of a debt is ordinarily at the domileile

of the debtor. High v. Padrosa, 119 Ga. 484,

46 S. E. 859.

29. See 2 Curr. L. 615, n. 71.

01. See 2 Curr. L. 615, n. 74. A promising-

sory note is "personal property" within the

statute authorizing the Federal court to

bring in nonresidents by publication in any

P. 131; Lee v. Baird, 133 Ala. 525, 36 So. 720;

sult to enforce any legal or equitable lien

upon or claim to real or personal property

615, n. 75. A foreign corporation doing busi-

(Act Mech. 3, 1875, n. 137, 8 , 18 Stat. 472

(U. S. Comp. St. 1901, p. 513)). Manning v.

Jury to a nonresident outside the state.

Berdan, 182 F. 382, Shares of stock in a

8. Louis & S. F. R. Co. v. Smith \[Tex. Civ.

foreign corporation not alleged to be held

39. That plaintiff had been to large ex-

by any resident of the state are not "per-

sonal property within the district."

Kane v. Burke, 132 F. 688. The New Jersey

see orthans' court has no jurisdiction of an

339, F. N. Y. S. 884.

residence or of the nature of the cause of action, or where it arose."A common-law action cannot be maintained in a circuit court of the United States for a tort committed in a foreign country where the right of recovery given by the foreign country is so dissimilar to that given by the law of the state in which the action is brought as to be incapable of enforcement in such state."Where an intestine was domiciled in Vermont at the time he was killed in New Hampshire, the cause of action for his alleged wrongful death accrued to him in Vermont, not in New Hampshire."

Jurisdiction is not conferred by service within the state on a nonresident corporation garnishee, all the parties being nonresident and none of them present in the state,"nor by attachment of the car of a nonresident railroad corporation doing no business within the state, the car being merely sent into the state laden."

Nonresidence of both parties to a local cause of action is a common statutory ground of jurisdiction."A domestic corporation may be sued in the county of its domicile or in that where the cause of action arose," and foreign corporations can be sued in any county where they do business."47

Actions concerning real estate are generally triple where the land lies," but if the suit is purely personal, the action is transitory, though real estate is involved."

Suits in the Federal court must be brought in the district of the residence

40. Collard v. Beach, 93 App. Div. 839,

sued in Missouri in any county or township

87 N. Y. S. 884.

41. Slater v. Mexican Nat. R. Co., 194 U.

83 S. W. 479. A foreign corporation having

83. 120, 48 Law. Ed. 90.

offices in two districts In New York may be

42. Stockwell v. Boston & M. R. Co., 131

sued in either without regard to the relative importance of the two offices. Goldzier

43. Northwestern Life & Sav. Co. v. Glippe

(Minn.) 95 N. W. 364. See 2 Curr. L. 616, n.

214. Where the principal place of business

81-84. Stautes authorizing attachment and

ganishment of property and credits of non-

residents must be strictly pursued. Adams

v. Osborne \[Michel.\] 101 N. W. 220.

44. Conners v. Quincy, etc., R. Co. \[Minn.\]

93 N. W. 365.

45. See 2 Curr. L. 616, n. 85. Where the

breach of a contract between a nonresident

end a foreign corporation occurred in the

state of New York, its courts have jurisdiction irrespective of where the contract was

made. Rosenblatt v. Jersey Noviety Co., 45

Misc. 59, 90 N. Y. S. 816. In an action

brought by a nonresident against a foreign

corporation In New York, the question

whether the cause of action arose within

the state so as to give the court jurisdic

tion is determined solely by the pleadings.

46. Sult may be brought against a pri-

vate domestic corporation in any county

where a fraud was committed in its behalf

by its agent, though it has no local agency

in that county. Trinity Valley Trust Co. v. Stockwell \[Tex. Civ. App.\] 81 S. W. 793. A domestic corporation may be sued before

a justice of the peace either in the county

of its principal office or in the county where

the cause of action arose if service can be

made in that county on an officer or director,

whether he resides in that county or not. Joseph Spelled Grocery Co. v. Wynder \[W. Va.\] 49 S. E. 534. A corporation is an In-

habitant of the state and district where its

principal office is. Wolff & Co. v. Choctaw,

O. & R. Co., 133 F. 601.

47. A foreign insurance company may be

01. A foreign insurance company may be

01. Collard v. Beach, 93 App. Div. 839,

sued in Missouri in any county or township

87 N. Y. S. 884.

41. Slater v. Mexican Nat. R. Co., 194 U.

83 S. W. 479. A foreign corporation having

83. 120, 48 Law. Ed. 90.

offices in two districts In New York may be

42. Stockwell v. Boston & M. R. Co., 131

sued in either without regard to the relative importance of the two offices. Goldzier

v. Central R. Co., 43 Misc. 667, 88 N. Y. S.

(Minn.) 95 N. W. 364. See 2 Curr. L. 616, n.

214. Where the principal place of business

81-84. Stautes authorizing attachment and

of a foreign corporation is within the state,

garnishment of property and credits of non-

the court may at the instance of a stock-

residents must be strictly pursued. Adams

v. Osborne \[Michel.\] 101 N. W. 220.

44. Conners v. Quincy, etc., R. Co. \[Minn.\]

93 N. W. 365.

45. See 2 Curr. L. 616, n. 85. Where the

breach of a contract between a nonresident

and a foreign corporation occurred in the

state of New York, its courts have jurisdiction irrespective of where the contract was

made 4 Cur. Law. JURISDICTION SS 6. 331

either of the plaintiff or defendant; \[50\] but defendant's right to be sued in the district where he resides may be waived. \[51\]

Courts of equity have power to act in personam upon persons within their jurisdictions by restraining them from doing wrongful or oppressive acts, though the res of the controversy, be it real or personal property, is beyond their jurisdiction. \[52\]

The residence of one of the parties in the county in which suit is brought is necessary to jurisdiction of divorce proceedings. \[53\]

The administration of an estate begun in the probate court of the county in which the decedent was resident at the time of his death cannot be removed into the chancry court of another county. \[54\]

The supreme court of New York will not entertain a summary petition to obtain custody of a minor for the purpose of gain, regardless of his own interests, where the parties are all residents of another state and a decision involves the construction of laws of that state. \[55\] A suit against a guardian for specific performance of a contract to locate land is properly brought in the county in which he was appointed, though not in the county in which the land lies nor in which the parties reside. \[56\]

**SS 6.**\_Limitations resting in amount or value in controversy. \[57\]--To give the circuit court of the United States jurisdiction of a case on account of the existence of a Federal question or diversity of citizenship, the matter in dispute must exceed $2,000, exclusive of interest and costs. \[58\] Similar provisions are to be found in the constitutions and statutes of the states defining the jurisdiction of their several courts. \[59\] The amount is not controlling if other jurisdictional facts or

50. Manning v. Berdan, 132 F. 382. See \[rs-Damon Lumber Co. v. Craddock \[Ark.\] 80 2 Curr. L. 617, n. 97. 85. 70. 85. 81. 70. 85. 81. 70. 85. 81. 81.

-

333 JURISDICTION SS 6. 4 Cur. Law.

conditions concur to confer or divest jurisdiction, \[60\] e. g. judgment on a cross complaint can be rendered for an amount less than the jurisdiction, where demanded in reference to a matter properly within the jurisdiction on another ground, \[61\] or where the original bill stated a case within the jurisdiction, though it has been voluntarily dismissed. \[62\] A cross action should be dismissed where it sets up a claim exceeding the jurisdiction of the court, \[63\] notwithstanding a credit of the amount claimed by plaintiff and admitted by defendant would reduce the claim below the jurisdictional amount; \[64\] but where the jury allow nothing on the plea in reconvention, the error in assuming jurisdiction of it is harmless. \[65\] Jurisdiction of ancillary bills is not limited by the amount involved. \[66\] If equity is involved; a justice of the peace has no jurisdiction, whatever the amount. \[67\] Where the amount is controlling, the amount plaintiff in good faith claims, \[68\] irrespective of the amount of recovery, and irrespective of amendments, \[68\] set-offs and counter-claims, furnishes the test of jurisdiction; but the amount demanded is not controlling if other averments show it to be overstated. \[69\] Where the jurisdiction depends upon a particular sum, suits in which the damages cannot be calculated in money are not within it. \[71\]

The value of the right affected, not merely the damage to it, is considered by the Federal courts; \[72\] but a bill to enjoin a tax of less than the jurisdictional

no jurisdiction in an action on a note for \[67\]. Flidelity & Depesit Co. v. Jordan, 134 $276 on which the balance due was less N. C. 236, 46 S. E. 496.

than $200. Harvey, Blair & Co., Johnson, $68. In tort actions, the amount in conti-133 N. C. 252, 45 S. E. 644. An action trovers as conferring jurisdiction on courts against a surety on an attachment bond in the penal sum of $200 at within the averments of the complaint. Elisele v. Od-lurisdiction of the superior court. Pitts-burs, etc., R. Co. v. Wakefield Hardware trovers is within the jurisdiction of the Co., 135 N. C. 13, 47 S. E. 234.

Ohio: The common plea court has no jurisdiction over aulfa for fifty cents. Hoban-Brandefer V. Aultman & T. Machinery Co. ing v. Enquier Co., 2 Ohio N. P. (N. S), 265.

Texas: County court, not more than for $100 with no averment that damage was $1,000. Standerfer, Aultman & T. Machin-ery Co. (Tex. Cyr. App.) 78 S. W. 652; Philips Mount \[Ga.\] 49 S. E. 778.

v. Sanders \[Tex. Cyr. App.\] 80 S. W. 567.

69. A sham amendment increasing the Nor less than $200. Philips v. Sanders \[Tex. Cyr. App.\] 80 S. W. 567.

the court of appeals jurisdiction. Smith v. Chesapeapek & O. R. Co. \[Ky.\] 82 S. W. 419.

court of last resort in civil actions for an event of his demand amount not exceeding $200. State v. Super Court, 35 Wash. 200, 77 T. 33.

West Virginia: Circuit courts have juris-diction only where $50 or more $1 involved.

ley, 265 Ky., L. R. 1677, 78 S. W. 416.

Joseph Speidel Grocery Co. v. Warder \[W. Va.\] 49 S. E. 534.

60. Where other rights besides the money $71. The "matter in dispute" as respects judgment rendered are involved, the amount of the judgment is not controlling. Illinois

Centa. R. Co. v. Ross \[Ky.\] 83 S. W. 656.

The statutory limit as to amount in justice" courts does not apply to forcible detanter the value essential to jurisdiction. United action, nor can a cross demand of any kind be set up therein. Mark V. Schumann Piano 1025.

Co., 105 Ill. App. 490.

61. Sullivan v. California Realty Co., 142 Cal. 201, 75 P. 767.

01. Kirby V. American Soda Fountain Co., 142 14 U. S. 141, 48 Law. Ed. 911.

01. Sullivan & Co. v. Owens \[Tex. Cyr. App.\] 78 S. W. 373. Williamson v. Bodan Lumber Co. \[Tex. Cyr. App.\] 82 S. W. 340.

64, 45. Rylie v. Elam \[Tex. Cyr. App.\] 79 to sustain Federal jurisdiction is not the value of defendants claim, but the value of the whole property described in plaintiff's Schmidt, 126 F. 988.

66. Rochester German Ins. Co. v. Schmidt, 126 F. 988.

4 Cur. Law. JURISDICTION SS 6.

amount will not lie, though it is a lien on property much greater in value than the amount necessary to give the court jurisdiction.73 Cases involving the question whether the value of the property or fund involved or the claims asserted thereto control are discussed below.74

Interest, when demanded, is reckoned as a part of the amount involved in New York,75 but in Illinois accumulations of interest since suit was begun are not considered,76 and generally where the cause was within the jurisdiction of the court at the time it was begun, the fact that by reason of delay the interest and damages have increased the sum recoverable beyond the jurisdictional limit will not oust jurisdiction.77 If a court has jurisdiction to give a judgment for a certain amount "with legal interest," it may give a judgment for that amount, and any interest due thereon according to the law as it stood when the contract was made.78

Whether there is evidence in the case legally sufficient to entitle plaintiff to recover for a certain item is a question of fact for the court, sitting as a jury, to pass on although the amount of the item is below the jurisdiction of the court.79

Several distinct demands cannot be joined to make up the amount necessary to give the court jurisdiction,80 neither can a single demand be split up to confer jurisdiction on an inferior court,81 but in a suit properly brought against several, the total amount claimed tests jurisdiction, though less than the jurisdictional amount is claimed against each.82 Taxes claimed by the state cannot be added to those claimed by local municipalities for the purpose of obtaining the necessary jurisdictional amount, the state not being sualbe.83 The jurisdictional amount must be alleged to be involved either directly or by necessary inference;84 but the amount of damages alleged, and not the judgment prayed, determines jurisdiction,85 and an averment of exemplary damages in a case where they may be recovered will be looked to to make up the jurisdictional amount.86

73. Purnell v. Page, 128 F. 496.

01. An action of replenvin against one who claims a special lien involves only the amount of the lien (Blank v. Powell, 88 Kan. 556, 75 P. 486); but in an action en declaration de simulation pure and simple, the question of jurisdiction is determined by the value of the property which is the subject of the alleged simulated transfer, and not by the amount claimed by the party attacking such transfer (Cusachs v. Dugue \[La.J 36 So. 960\]). Where a case properly in court is settled for a sum greater than the minimum jurisdiction of the court, the court has jurisdiction of the claim of an intervenor claiming part of the sum, though his claim is less than the jurisdictional amount. Missouri, etc., R. Co. v. Bacon \[Tex. Civ. App.\] 80 S. V. 572. The amount of commissions of the administrator is the amount involved in an application to revoke letters of administration, not the amount of assets of the estate, or of petitioner's legacy.

State v. Quintote, 180 Mo. 116, 79 S. W. 166.

A judgment denying an injunction to abate a dam as a nuisance is not within the jurisdiction of the supreme court, as it is the value of plaintiff's right and not the cost of defendants' dam that determines the amount involved. Scheurich v. Southwest Mo. Light Co. \[Mo.\] 81 S. W. 1226. Where the suit is to set aside a deed, or it that be denied to redeem therform, the amount in controversy Is the value of the land, not the amount required to redeem. Greenfield v. U. S. Morte. Co., 133 F. 784.

75. Sult In municipal court for $500 and interest. Pierson v. Hughes, 88 N. Y. S.

1069; Hamburger v. Hellman, 90 N. Y. S.

1061; Richardson & B. Co. v. Schiff, 93 App.

107; 368, 87 N. Y. S. 672.

76. Murphy v. Murphy, 207 Ill. 250, 69 N.

2, 968.

JURISDICTION SS 7. 4Cur. Law.

SS 7. Limitations resting in character of subject-matter or object of action. \[87\] --Justices of the peace, \[88\] county, \[89\] municipal, \[90\] and other inferior courts, are generally denied jurisdiction of actions involving title to land, though where the question arises only collaterally, jurisdiction is not ousted. \[91\] Neither have such courts any equitable jurisdiction. \[92\] Several cases discussing the jurisdiction of particular courts over certain matters are mentioned in the note. \[93\] A statute conferring jurisdiction to examine title to lands and decree sale and partition does not empower it to try title between adverse claimants. \[94\] A bankruptcy court has jurisdiction in the first instance to determine whether an asserted adverse claim to property claimed by the bankrupt's trustee is colorable or actual. \[95\] Courts in general have no jurisdiction of questions merely political, and such questions are usually left to the decision of the party or other tribunal appointed for that purpose; \[96\] but where an act is one expressly enjoined by law upon a public officer, it may be controlled, though the decision of a political question is necessary to the result. \[97\] Jurisdiction in matters relating to divorce and alimony is given by the statute, and every power exercised by the court with reference thereto must look for its source in the statute or it, does not exist. \[98\]

S6. McCutcheon v. Malin \[Tex. Civ. App.\] \[ cannot grant affirmative equitable relief. Pound v. Williams, 119 Ga. 904, 47 S. E. 218. 83 S. W. 849. 87. See 2 Curr. L. 620. 93. The circuit courts have jurisdiction at law in proceedings for the condemation of crossings by one railroad company over the real estate and line of another. Grafton & B. R. Co. v. Buckhannon & N. R. Co. \[W. Va.\] 49 S. E. 532. Under Rev. Laws, c. 158, 1 L the supremme court of Massachusetts has full equity jurisdiction. Gargano v. Pope, 184 Mass. 571, 69 N. E. 243. A state court of general jurisdiction having original compliance of cases at law and in equity has jurisdiction of the subject-matter of a suit to cancel a mortgage question whether a turnplike company has abandoned its road. Bardstown & L. Turnplike Co. v. Nelson County, 25 Ky. L. R. 1900, 78 S. W. 851. 90. Action to recover $300 advance payment on a contract to purchase land for failure of conditions is not founded "on a contract for real estate" so as to oust city court's jurisdiction. Fry v. Dunn \[Kan.\] 78 P. 814. 91. An action to recover money paid for land and to cancel a note and mortgage for part of the price on the ground of fraud inducing the purchase does not involve title. Hollis v. Finks \[Tex. Civ. App.\] 78 S. W. 556. The title to real estate may be involved in an action of trespas quare elau-sum freight, but if brought before a justice of the peace, his judgment would not adjducate the question of ownership of the free-hold. It would be a fact in controversy but not in issue. Weidner v. Lund, 105 Ell. 92. Surrogate's courts in New York. In re Bunting's Basate, 90 N. Y. S. 86. Mu-nipal court of New York has no jurisdiction to set aside an assignment of money for fraud. Midler v. Lese, 91 N. Y. S. 148. The county court has jurisdiction to cancel an Indebtedness evidenced by note secured by a vendor's line the amount of which is within its jurisdiction. Hollis v. Finks \[Tex. Civ. App.\] 78 S. W. 555. A city court 4 Cur. Law. JURISDICTION SS 9A.

The jurisdiction of the bankruptcy court over assets of bankrupts is necessarily exclusive and supreme, except as to such portions thereof as may have been seized in some suit in a state court more than four months before the adjudication in bankruptcy," though proceedings in bankruptcy do not have the effect to abate a suit in the state court to subject certain property of the bankrupt to a specific lien.1 The state courts have jurisdiction concurrent with the Federal courts of actions to recover property transferred to a creditor by a bankrupt," and a state court has jurisdiction of an action of trover brought against a trustee in bankruptcy to recover the value of property alleged to have been converted by him as part of the assets of the estate." Statutory rights of action not penal will be enforced in the courts of another state," and in determining whether a statute is penal, the decisions of the state where it exists are not binding."

SS 8. _Limitations resting in character or capacity of parties litigant."_--Generally speaking, executors and trustees can be sued as such only in the courts of the state appointing them;" but an executor who carries away the property of the estate may be followed by the beneficiaries and sued to improve the trust on the property in the state to which he carries it." No state court can issue an attachment, injunction or execution against a national bank before final judgment."

SS 9. _Original jurisdiction. A. Exclusive, concurrent and conflicting._"--Concurrent jurisdiction on rivers means the jurisdiction of two powers over one and the same place."

In states which have probate courts, their jurisdiction over administration proceedings and other proceedings committed to them is generally exclusive." The district courts of Oklahoma possess common-law jurisdiction and may proceed according to its rules wherever the statutory directions are silent or inadequate," and the constitutional jurisdiction of the circuit courts of Wisconsin is substantially coextensive with that of the English courts of King's Bench, Common Pleas and Chancey combined."

Cases in which there are two or more courts to which resort may be had for relief are numerous," e. g. between equity and courts of probate," it being a familiar rule that when there exist two tribunals possessing concurrent and complete jurisdiction of the subject-matter, the jurisdiction becomes exclusive in the

99. Bloch v. Bloch, 42 Misc. 278, 86 N. Y. 8. 1047.

01. Des Moines Sav. Bank v. Morgan Jewelry Co., 123 Iowa, 432, 99 N. W. 121.

01. Bankruptcy. act of 1898, $ 60b. Stern v. Mayer, 99 App. Div. 427, 91 N. Y. S. 292.

01. In re Splitter \[C. C. A.\] 130 F. 879.

01. Whilton v. Nashville, etc., R. Co. \[Tenn.\] 84 S. W. 618.

01. Cause of action for death by wrongful act is not penal. Whilton v. Nashville, etc., R. Co. \[Tenn.\] 84 S. W. 618.

01. See 2 Curr. L. 621.

01. Falko v. Terry \[CoLi.\] 75 P. 425. Mere residence of the trustee in another jurisdiction will not confer jurisdiction. Schwartz v. Gerhardt, 44 Or. 425, 75 P. 698.

01. Falko v. Terry \[CoLi.\] 75 P. 425.

01. Schwartz v. Gerhardt, 44 Or. 425, 75 P. 698.

01. Rev. St. U. S. $ 5242. Meyer v. First Nat. Bank \[Idah\] 77 E. 334.

01. See 2 Curr. L. 622.

01. Wedding v. Meyler, 192 U. S. 573, 48 Law. Ed. 570.

01. The court of common pleas has no jurisdiction to fix the costs and expenses in the state court to be specified."

01. Bloch v. Bloch, 42 Misc. 278, 86 N. Y. 8. 1047.

01. Des Moines Sav. Bank v. Morgan Jewelry Co., 123 Iowa, 432, 99 N. W. 121.

01. Bankruptcy. act of 1898, $ 60b. Stern v. Mayer, 99 App. Div. 427, 91 N. Y. S. 292.

01. In re Splitter \[C. C. A.\] 130 F. 879.

01. Whilton v. Nashville, etc., R. Co. \[Tenn.\] 84 S. W. 618.

01. Cause of action for death by wrongful act in panel. Whilton v. Nashville, etc., R. Co. \[Tenn.\] 84 S. W. 618.

01. See 2 Curr. L. 621.

01. Falko v. Terry \[CoLi.\] 75 P. 425. Mere residence of the trustee in another jurisdiction. Schwartz v. Gerhardt, 44 Or. 425, 75 P. 698.

01. Falko v. Terry \[CoLi.\] 75 P. 425.

01. Schwartz v. Gerhardt, 44 Or. 425, 75 P. 698.

01. Rev. St. U. S. $ 5242. Meyer v. First Nat. Bank \[Idah\] 77 E. 334.

01. See 2 Curr. L. 622.

01. Wedding v. Meyler, 19 one before which proceedings are first instituted,\[17\] and that such court will be permitted to pursue its jurisdiction to the end and will not permit its jurisdiction to be impaired by resort to some other tribunal.\[18\] The rule, however, does not apply to actions to enforce an independent claim or right, though between the same parties and about the same subject-matter,\[19\] and after dismissal in one court, resort may be had to another, though the time for appeal has not expired.\[20\] Scire facias to revive a judgment may be heard in a division of the same court different from the one that rendered the judgment.\[21\] The statute giving the county court of Kentucky jurisdiction to open private ways by condemnation does not impair the jurisdiction of the circuit court to enjoin obstructions.\[22\]

It is a settled rule that when both state and Federal courts have jurisdiction of a matter, the tribunal whose jurisdiction first attaches holds it to the exclusion of the other, until its duty is fully performed, and the jurisdiction involved is exhausted.\[23\] While the rule is not limited to cases where the property has been actually seized under judicial process before a second suit is instituted in another court,\[24\] it is limited to actions which deal either actually or potentially with specific property or objects, and does not apply to actions strictly in personam.\[25\]

17. See 2 Curr. L. 622, n. 75. Probate \[be dismissed. Thiel Detective Service Co. court first issuing letters has jurisdiction in \] v. McCClure, 130 F. 55., That plaintiff had a South Carolina, though petition was first right because of diversity of citizenship to filed in another court. Phoenix Bridge Co. maintain suit in the Federal court against a v. Castleberry \[C. C. A.\] 131 F. 175. New Jersey court will not take jurisdiction of its assets distributed by that court where an assignment for creditors executed in \] prior proceedings for that purpose are pend-Pennsylvan, though assets exist in New Jersey. In re Browning \[N. J. Pierce-J.\] 57 summed that his claim if established in the 869. The circuit court may not take by Federal court will be given due faith and verit of replevin goods in the hands of an assignee appointed by the county court. Co. v. Knott \[C. C. A.\] 120 F. 820. After 18. Receivers cannot be sued in the same or some other court without permission. court as to property in the trustee's hands, Ridge v. Manker \[C. C. A.\] 132 F. 593. Though any value privilege. Id. Two courts cannot take jurisdiction of the same person and the same subject-matter at the same time. Applied to "made to order" prosecutions of violators of the liquor laws. Kappes v. State, 5 Ohio C. C. (N.-S.) 183. 19. Reema v. Dieimann, 111 La. 96, 35 So. 473. The settlement of accounts of trustees in the orthans' court does not make all receiver under its insolvent corporation act their subsequent accountings subject to its exclusive jurisdiction. Evans v. Evans \[N. J. Eq.\] 57 A. 872. A star of proceedings in an action will not be granted on the ground that another prior action is pending. even where the prior action is between the same parties and is in reference to the same subject-matter, where it appears that whatever be the result of the prior action, a trial of the second one will be necessary. Jenkins v. Baker, 91 App. Dtv. 400, 86 N. Y. S. 958. 20. McCarthy v. Patterson \[Mass.\] 71 N. E. 112. 21. Goddard v. Delaney, 181 Mo, 564, 80 S. W. 886. 22. Damron v. Damron \[Ky.\] 84 S. W. 147. 23. Guaranty Trust Co. v. North Chicago St. R. Co. \[C. C. A.\] 130 F. 801. Louisville Trust Co. v. Knott \[C. C. A.\] 130 F. 820. 24. Receiver in state court had not actually seized the property. Louisville Trust Co. v. Knott \[C. C. A.\] 130 F. 820. See 2 Curr. L. 623. 25. Guaranty Trust Co. v. North Chicago St. R. Co. \[C. C. A.\] 130 F. 820. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 52. 59. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 69. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 71. 74. 78. 79. 81. 75. 79. 82. 83. 84. 85. 86. 87. 88. 89. 90. 80. 81. 82. 84. 86. 88. 89. 91. 83. 85. 89. 92. 93. 94. 95. 96. 9 4 Cur. Law. JURISDICTION SS 9B. 337

Neither does it apply to actions brought to enforce an entirely distinct claim or right.24 A state court and a Federal court sitting in the same state are foreign to each other within the rules governing collateral attack on judgments.27 The courts of Massachusetts will not entertain a suit against the purchaser of a railroad from receivers appointed by the Federal court for an injury occurring before the sale.28

When a court once gets jurisdiction of a case, it retains it and proceeds to pass upon and determine all matters incident thereto,29 especially if it be a court of equity, as it is well settled that once a court of equity has obtained jurisdiction upon any equitable ground, it will retain it to do complete justice between the parties, though in so doing it will become necessary to establish purely legal rights or grant legal remedies.30

A state court cannot enjoin proceedings in a Federal court,31 and as a general rule no court can set aside, modify, control, or. enjoin the decree of another of concurrent jurisdiction, though it may restrain the enforcement of the decree by acting in personam on the parties,32 and courts of equity may enjoin proceedings at law in proper cases.33

(SS 9) B. Ancillary or assistant.34-Ancillary bills are ordinarily maintained in the same court where the original bill is filed, with a view to protecting the rights adjudicated by the court in reference to the subject-matter of the litigation, and in aid of the jurisdiction of the court, with a purpose of carrying out its decree, and rendering effectual rights to be secured or already adjudicated.35 Jurisdiction

St. R. Co. \[C. C. A.\] 130 P. 801: Louisville

Trust Co. V. Knott \[C. C. A.\] 130 P. 820:

perior court in one county may enjoin In an Crosby V. Spear, 98 Me. 542, 57 A. 881; Bar-

independent action the use of a judgment her Asphalt Pav. Co. v. Morris \[C. C. A.\] 132 P. 945; Patterson v. Barber Asphalt Pav. Co. \[C. A.\] 132 P. 945; Patterson v. Barber Asphalt Pav. Co. \[G37\]. Courts of equity will relieve a party

26. See 2 Curr. L. 623, n. 80. But to en-

from an unjust judgment against him by join fraudulent lease by street railroad com-

another tribunal, through fraud, or where, pany is not barred by prior proceedings in

for want of service of process, he has had

Federal court by creditors and appointment

no opportunity to defend. Parsons v. Weis,

of receiver. Guaranty Trust Co. v. North \[144 Cal. 417, 77 P. 1097.

Chicago St. R. Co. \[C. C. A.\] 130 P. 801. A

33. The circuit court cannot enjoin the

receiver will not be appointed by a state

proceedings of the probate court in matters

count for an insolvent corporation where

becelversity proceedings are already begun

Stone v. Simmons \[V. Va.\] 48 S. B. 841.

in the Federal court. Gallagher v. Asphalt

The district court in Texas cannot enjoin

Co. \[N. Y.\] 26. 58 A. 403; rvs. 55 A. 259.

27. Phoenix Bridge Co. v. Castleberry \[C. C.\] 131 P. 175.

01. Tobin V. Central Vermont R. Co., 185 Mass. 337, 70 N. E. 431.

01. Where the Federal court takes jurisdiction because of a Federal question, re-

less equity can give a more perfect remedy

gardless of citizenship, it will retain juris-

diction over all questions in the case, in-

clinding those not Federal, regardless of the

clifzenship of the parties. Greenwich Ins.

Co. v. Carroll, 125 F. 121.

30. Raequette Falls Land Co. v. Buyce,

43 Misc. 402, 89 N. Y. S. 359. Where equity

has jurisdiction to restrain a grade crossing

on the ground that the railroad had convinced

an intention to refuse to safeguard it according to law, it will retain the cause to

define the mode and manner of crossing.

Board of Chosen Freeholders v. Central R.

Co. \[N. Y.\] 59 A. 803.

31. Cannot enjoin contempt proceedings

in Federal court in another state, though it

has jurisdiction over all the parties in other

proceedings in the Federal court. Johnston

Min. Co. v. Morse, 44 Misc. 504, 90 N. Y. S. 107.

4 Curr. Law-22.

4.

tion of ancillary bills does not depend on diversity of citizenship \[34\] or the amount involved, \[97\] but an ancillary bill cannot be maintained against a corporation on the theory that its rights were foreclosed by a decree to which it was not. a party and could not have been made a party without oasting the jurisdiction of the original bill. \[38\] The supreme court of Ohio, though without original jurisdiction to grant injunctions will grant one in aid of its original jurisdiction in quo warranto. \[39\]

(SS 9) _C. Inferior and limited._ \[40\]--Statutes conferring jurisdiction upon inferior courts are strictly construed and will not by construction be aided or extended by inference or implication beyond their express terms. \[41\] Jurisdiction equal to a circuit court carries equal equity powers. \[42\] Cases applying the statutes are collected in the note. \[43\] All facts necessary to give such courts jurisdiction must affirmatively appear of record and no presumptions are indulged in their favor. \[44\] The probate courts, \[45\] and those county courts which exist in some states between the magistrate's and justice's courts and the courts of general jurisdiction often possess a civil jurisdiction subject to specified limits, usually excluding trial of title to land. \[46\] Where the probate courts are given superior jurisdiction state court and to adjudicate the liability of (della, 95 App. Div. 176, 88 N. Y. S. 807. Has all in the Federal case is ancillary, not orig- jurisdiction of actions on judgments only inal. Rochester German Ins. Co. v. Schmidt, when rendered by courts not of record. 126 F. 998. A bill to enjoin a pending action at law in the same court is not ancillary DIv. 568, 91 N. Y. S. 140. City courts in thereto where a necessary party defendant to the bill is neither a party to the original DIv. Hope, 210 Ill. 50, 70 N. E. 1082. The city court of Moultrie has no authority to hear full is filed. Manning v. Berdan, 132 F. 382. \[36\]. Julian V. Central Trust Co., 183 U. S. affavit to a warrant issued against a ten- and holding over, the superior courts hav-Co. v. Schmidt, 126 F. 998; Hampton Roads R. & Elec. Co. v. Newport, News & O. P. R. & Elec. Co., 131 F. 534. Leigh v. Kewane Mfg. Co., 127 F. 990. Suit in equity to enforce attachment lien is ancillary to suit in which attachment was procured. Hatcher v. Hendrie & B. Mfg. & Supply Co. \[C. C. C. A.\] 133 F. 267. \[37\]. Rochester German Ins. Co. v. Schmidt, 126 F. 998. \[38\]. Alabama & G. Mfg. Co. v. Rivordale Cotton Mills \[C. C. A.\] 127 F. 497. \[39\]. State v. Board of Deputy State Snp'rs, 70 Ohio St. 341, 71 N. E. 117. \[40\]. See 2 Curr, L. 625. \[41\]. The municipal court of New York is purely a creature of statute and has no jurisdiction not specially conferred thereby. Leavitt v. Katzoff, 43 Misc. 26, 86 N. Y. S. 495. Likewise the city court. Frees v. Dlyth, 99 App. Div. 541, 91 N. Y. S. 103. \[42\]. Cape Girardeau common pleas. Rodney v. Gibbs \[Mo.\] 82 S. V. 187. Jurisdiction In all civil cases concurrent with a court of equity powers includes partition suits. Romy v. State, 32 Ind. App. 146, 67 N. E. 998. \[43\]. The municipal court of New York has no jurisdiction of an action arising on a chatter mortgage, except to foreclose the lien \[action for conversion based on default. Dorfman v. Weller, 88 N. Y. S. 669\] but is not deprived where the mortgage is only coulaterally material. Goodman v. Baumann, 43 Misc. 83, 86 N. Y. S. 287. Relevlu la not maintainable after condition broken, but on general appearance amendment is allowable changing replevin to action to foreclose. Horowitz v. Decker, 88 N. Y. S. 217. Actions for false imprisonment cannot be maintained. Bellezzire v. Camar-Jurisdiction 89C. \[44\]. The municipal court of New York has no jurisdiction of an action arising on a chatter mortgage, except to foreclose the lien \[action for conversion based on default. Dorfman v. Weller, 88 N. Y. S. 669\] but is not deprived where the mortgage is only coulaterally material. Goodman v. Baumann, 43 Misc. 83, 86 N. Y. S. 287. Replevin la not maintainable after condition broken, but on general appearance amendment is allowable changing replevin to action to foreclose. Horowitz v. Decker, 88 N. Y. S. 217. Actions for false imprisonment cannot be maintained. Bellezzire v. Camar-Jurisdiction 89C. \[45\]. The municipal court of New York has no jurisdiction of an action arising on a chatter mortgage, except to foreclose the lien \[action for conversion based on default. Dorfman v. Weller, 88 N. Y. S. 669\] but is not deprived where the mortgage is only coulaterally material. Goodman v. Baumann, 43 Misc. 83, 86 over matters within their cognizance, they exercise equitable powers so far as to make their jurisdiction efficient,47 but they are generally denied the power to adjudicate the title to property though necessary to the exercise of their probate jurisdiction.48 In other states, the probate courts possess only such powers as are expressly conferred by statute or constitution,49 among which equity powers are not enumerated.50

(SS 9) \_D. Original jurisdiction of courts of last resort.51--\_The supreme court of the United States has original jurisdiction of all controversies between states or between a state and a foreign state.62 Courts of last resort, and some intermediate appellate courts are invested with jurisdiction to issue the several original writs known to the common law,53 including habeas corpus,54 quo warranto,58 mandamus,54 ceritorari,57 prohibition,58 and other remedial writs and to hear and determine the same; but in Nebraska it is within the discretion of the supreme court to issue or refuse the writ of mandamus even when a prima facie right is shown,59 and the writ will not generally be issued except in aid of the court's jurisdiction otherwise acquired.50 The supreme court of Ohio is without

notary public, including full authority to or obtain possession of property regardless commit a witness for refusing to be sworn of the right of the executor to administer or give testimony in a proper case. Olmsted the estate. Burgess v, Sullivant, 2 Ohio N. v. Edson \[Neb.\] 88 N. W. 415. In Florida the county judge has jurisdiction to enter-

sumes unlawful jurisdiction its proceedings tam the complaint and inaugurate the pro-

are void. Real estate not a firm asset con-

ceedings in a bastary case and refer the same to the survivor. Jones v. De Cammp. same to the circuit court for trial. Edwards \[Fla.\] 37 So. 568.

49. Probate courts possess no powers

01. The probate court is a judicial tri-

bunal. In re Gassaway \[Kan.\] 79 P. 113.

vhere the facts are not in dispute, the 74 P. 82. The surrogate in New York can

county court of the county in which the estate of an estate of the husband is settled has juris-

executor or administrator arising from his

diction to assign downer. Only an issue of administration of the prior estate (In re

fact which the court is unable to try will

full, 97 App. Div. 258; 89 N. Y. S. 839), but

oust It. Tyson v. Tyson \[Neb.\] 98 N. W.

can construe a will only when necessary to

1076. The county court in Oregon having

the jurisdiction pertaining to probate courts

statute (In re Burdick's Ekstate, 90 N. Y. S.

has jurisdiction to hear and determine

161).

claims against an estate which have been

50. The surrogate has no authority to de-

presented to and rejected by the administra-

termine whether a transfer by the testator

tor. In re Morgan's Ekstate \[Or.\] 78 P. 1029.

was void as a fraud on creditors. In re

The rights of parties arising from a post-

suptal contract cannot be decided in pro-

51. See 2 Curr. L. 626.

bate court. McWhorter v. O'Neal \[Ga.\] 49 52. South Dakota v. North Dakota, 192 S. B. 592.

48. A probate court cannot try title to

01. The St. Louis court of appeals has

real estate. Best v. Graalpp \[Neb.\] 99 N.

original jurisdiction to issue writs of habeas

v. 837. The probate court has no jurisdic-

corpus, quo warranto, mandamus, ceritorari,

tion to try title to property as between the

personal representative and a stranger. In

tercoming the same. Levin v. United States

re Overton's Ekstate \[Ind. T.\] 82 S. W. 765.

\[C. C. A.\] 128 F. 826.

Carm v. Old Reliable Gold Min. Co. \[N. M.\]

54. See Habeas Corpus, 3 Curr. L. 1576.

78 P. 63. In proceedings for the settlement

55. See Quo Warranto, 2 Curr. L. 1377.

of an administrator's account, the surro-

56. See, also, Mandamus, 2 Curr. L. 771.

gate cannot pass on the issue of title to

Where the district court has concurrent

property arising between third parties and

justification application should be first made

the administrative individually. In re Finn's

there. State v. Moores \[Neb.\] 99 N. W. 842.

Estate, 44 Misc. 622, 90 N. Y. S. 159. The

probate court in a proceeding merely to set

tion of fact which the supreme court can-

aside a homestead to 'the surviving wife

not try, the petition will be dismissed.

has no jurisdiction to adjudicate the ques-

Shepard v. Terrell \[Tex.\] 78 S. W. 23;

tion in whom the remainder vests. In re

Angle v. Terrell \[Tex.\] 80 S. W. 231.

Firth's Ekstate \[Cal.\] 78 P. 643. Probate

57. See Ceritorari, 3 Curr. L. 667.

court cannot entertain suit by widow against

58. Leach v. M original jurisdiction to grant injunctions but will grant one in aid of its original jurisdiction in quo warranto.\[61\] The supreme court of Nebraska has not original jurisdiction to cancel and annul a levy of taxes by a city against insurance companies on the ground that it involves the revenue, that term in the constitution referring only to state revenue.\[62\] A controversy between two bodies, each claiming to be the regular organization of a political party within the state, and entitled to have its nominees for state offices certified as the nominees of the party sufficiently concerns the prerogatives of the state and affects the liberties of the people to be within the original jurisdiction of the supreme court of Wisconsin.\[63\] The supreme court of North Carolina has original jurisdiction to hear claims against the state and report to the legislature thereon,\[64\] but the grant does not include cases involving no question of law and the facts of which the legislature has already passed upon.\[65\]

The highest courts of the several states, and lesser courts which are of last resort as to inferior jurisdictions, have general supervision and control of proceedings in lower courts; and in the exercise of that supervision have jurisdiction to issue the several original writs known to the common law,\[66\] among them being prohibition,\[67\] mandamus,\[68\] and certiorari,\[69\] whenever necessary to restrain or compel action by the inferior tribunals within their jurisdictional bounds. The original jurisdiction of the appellate courts either by prohibition,\[70\] or supervisory control will not be exercised unless an injury is apparent for which an appeal will not furnish an adequate remedy.\[71\] Where a suit in district court is appealable to the court of appeals, an application for a writ of prohibition with respect to any order or proceeding therein which would be carried up for review by such appeal should be made to the appellate, not to the supreme court.\[72\]

SS 10. \_Appellate jurisdiction.\[73\]--\_The right of appeal is strictly statutory, existing only where expressly conferred,\[74\] and generally speaking, appellate courts

**61. State v. Board of Deputy State Sup'rs,**

**70 Ohio St. 341. 71 N. E. 717.**

**62. Aachen & M. Fire Ins. Co. v. Omaha \[Neb.\] 100 N. W. 137.**

**63. State v. Houser \[Vrs.\] 100 N. W. 964.**

**64, 65. A claim of the clerk of a court for fees in suits instituted by the state is not such a claim \[Const. art. & SS 9\]. Miller v. State, 134 N. C. 270, 46 S. E. 514.**

**66. The superintending control of the supreme court of Wyoming cannot be exercised by motion to dissolve an injunction issued by the lower court. Smith v. Healy \[Vv.\] 75 P. 430.**

**67. Joseph Spedel Grocery Co. v. Warder \[V. Va.\] 49 S. E. 534; State v. Evens \[Mo.\] 83 S. W. 447. Where the court has jurisdiction of the subject-matter prohibition will not lie to prevent the erroneous exercise of it. State v. Kennan, 85 Wash. 52, 76 P. 516; Schubach v. McDonald, 179 Mo. 163, 78 S. W. 1020; State v. Superlor Court of King County \[Vwash.\] 79 P. 28.**

**68. Hill v. Morgan \[Idaho\] 76 P. 323; Shirley v. Connor \[Tex.\] 80 S. W. 984; Id., 81 S. W. 284.**

**69. Right to proceeds of life Insurance policy does not present such a special case of great public importance as to require review by supreme court of decision of court of appeals. People v. Court of Appeals of Colo. \[Colo. App.\] 75 P. 407.**

**70. Leach v. Misters \[Vyyo.\] 79 P. 28.**

**71. State v. Second Judicial Dist. Court \[Mont.\] 76 P. 1005.**

**72. State v. Machen \[La.\] 87 So. 175.**

**73. See 2 Curr. L. 527.**

\*\*74. The power of the appellate term to entertain appeals is purely statutory. Lea-

**63. State v. Houser \[Vrs.\] 100 N. W. 964.**

**64, 65. A claim of the clerk of a court for**

**75. State v. Machen \[La.\] 87 So. 175.**

**76. See 2 Curr. L. 527.**

\*\*77. The power of the appellate term to entertain appeals is purely statutory. Lea-

**67. State v. Houser \[Vrs.\] 100 N. W. 964.**

**68. State v. Houser \[Vrs.\] 100 N. W. 964.**

**69. State v. Houser \[Vrs.\] 100 N. W. 964.**

**64, 65. A claim of the clerk of a court for**

**78. State v. Houser \[Vrs.\] 100 N. W. 964.**

**65. State v. Houser \[Vrs.\] 100 N. W. 964.**

**66. State v. Houser \[Vrs.\] 100 N. W. 964.**

\*\*67. Note being provided by stat 4 Cur. Law. JURISDICTION SS 10.

derive their jurisdiction over any case from the law and parties cannot confer it by consent,\[76\] and if the lower court had no jurisdiction the appellate court can have none.\[76\] A court of general jurisdiction obtains by appeal from an inferior court only such jurisdiction as was possessed by the court of first instance, and though the trial be de novo can inquire into only such questions as were within the jurisdiction below.\[77\] The law which gives a court jurisdiction to review proceedings in error because a constitutional question is involved does not give it jurisdiction to review other questions occurring in the trial.\[78\] The right of appeal is generally limited to cases involving a certain amount,\[79\] or presenting certain questions, such as the constitutionality of a statute or ordinance,\[80\] or the title to real estate or question of freehold.\[81\] In Wyoming, important constitutional questions may be certified to the supreme court for decision pending judgment below.\[82\] In Louisiana the supreme court has authority to review conclusions of fact reached by the court of appeal but only does so in exceptional cases.\[88\] On appeal from the county court in an action to compel the listing for taxation of omitted property the circuit court of Kentucky has no original jurisdiction to assess or value omitted property.\[84\]

_Jurisdiction as between courts of intermediate and last resort depends on statutory limitations resting in amount or value,\[88\] franchise,\[88\] freehold,\[87\] revenue,\[88\]_

the court's jurisdiction. New York Min. Co. \[Md.\] $A. 217. Neither the supreme court nor the court of appeals whether the court of appeals has jurisdiction to review the decision of the district court in review of L. R. 2042, 79 S. W. 768.

a tax assessment. Pilgrim Consol. Min. Co. \[Louisiana: $2,000. Bacas v. Adler, 112 v. Teller County Com'ras \[Colo.\]. 78 P. La. 896, 36 S. 739; Netter v. Reggio \[La.\] 37 617. Prior to the seat of congress June 30, So. 620.

1902, the decision of the supreme court of Washington: Cases involving more than the District of Columbia on appeal from a $200, State v. Superport Court of Lincoln justice of the peace was final. Key v. County, 35 Vwash. 201, 77 P. 33.

Roberts, 20 App. D. C. 391; Groff v. Miller, 80. Clear Creek Leasing, Min. & Mill. Co. 20 App. D. C. 358.

v. Comstock Gold-Silver Min. & Mill. Co. \[Colo.\] 75. See 2 Curr. L. 627, n. 23.

\[76\]. Chicago, etc., R. Co, v. Salem, 162 Texas has jurisdiction of an action involving Ind. 428, 70 N. E. 630; Baily v. Berkhor, 123 the validity of a statute though It might have been brought in the county court. 13 Olk, 747, 76 P. 181; Times Pub. Co. v. Hill \[Tex.\] 84 S. \[Tex.\] 87. Civ. Appl. 81 S. W. 806; Board of V. 646.

\[Corn's v. Denver Union Water Co. \[Colo.\] 81. Clear Creek Leasing, Min. & Mill. Co. 76 P. 1060; Parkeri Grain Co., Chicago, etc., v. Comstock Gold-Silver Min. & Mill. Co. \[Colo.\] 78 P. 406.

\[Colo.\] 77. Title to land cannot be tried on approved more recipients that on plaintiff's motion legal from ordinary. Minherin v. Kennedy, 120 Ga, 1080, 48 S. E. 437.

\[78\]. Coghlan v. Williams \[Kan.\] 76 P. 394.

\[79\]. Colorado Supreme court, $2,500.

Clear Creek Leasing, Min. & Mill. Co. \[Colo.\] 78 P. 682.

\[79\]. Chicago, chicago constitutional,89 or public questions, and cases in which the state or a political subdivision thereof is a party.90 In Illinois an order adjudging a party in content for refusal to obey an order passed for the benefit of his adversary is appealable direct to the supreme court.91 In Maryland, where a petition in the orphans' court improperly combines matters of which that court has jurisdiction with others of which it has none, and the order of the court determines both, the appeal lies not to the circuit court but to the court of appeals.92 The supreme court of Colorado has no cognizance of a case unless there is present some one or more of the elements which the court of appeals act requires shall be present in order to invoke its appellate jurisdiction.93 In actions founded on fraud and deceit, the district court of Oklahoma has jurisdiction on appeal from the probate court where the amount sought to be recovered is $1,000 or less.94 Cases appealed to

86. Where territory has been transferred from one township to another, the right of officers to exercise their offices raises a question of franchise. People v. Vermilion county, 210 Ill. 299, 71 N. E. 848. Controversy as to powers granted a corporation by its charter is not a question of franchise. Rostad v. Chicago Suburban Water & Light Co., 211 Ill. 248, 71 N. E. 978. Right under city ordinance to maintain passageway con-nection elevated railway with store building limited to fifty years does not involve franchise. City of Chicago V. Rothschild & Co., 212 Ill. 590, 72 N. E. 695.

01. Appeals where a freehold is involved must be taken directly to the supreme court and not to the Illinois appellate court. The final determination of a suit resulting in the gain or loss of an estate, involves a freehold. Kellogg Newspaper Co. v. Corn Beit Board of School Inspectors of Peoria, 20S Nat. Bidg. & Loan Ass'n, 105 Ill. App. 62.

Decree in suit to set aside conveyance of man and involves freold. Hursen v. Hursen, on 209 Ill. 466, 70 N. E. 904. Plea of liberum te 4 Cur. Law. JURISDICTION SS 11A. 343

the wrong court may be on motion or suo moth certified to the other court.\* The existence of such a controversy as will confer jurisdiction on the highest court must appear on the record to have been properly raised and decided below,\* but where a constitutional question is raised in a case, it remains so as to give the supreme court jurisdiction, though the court pending the appeal decides that particular question in another case.\* Where plaintiff's claim brings the case within the jurisdiction of the supreme court, to which the appeals, a cross appeal to the court of appeals by defendant is properly certified up to the supreme court though itself within the jurisdiction of the appellate court.\* In Louisiana an appeal from a judgment rendered on a reconventional demand must be to the court having jurisdiction of the original demand.\*

\_Further appeal.--\_Similar matters, e. g., the amount,1 or a conflict of opinion, or doubt,2 or importance,3 may be ground for jurisdiction of a further appeal. A constitutional question to be ground of further appeal must have been decided adversely to appellant.4 On application for further appeal in Indiana, the supreme court looks only to the opinion of the appellate court and not to the record.\*

SS 11. \_Federal jurisdiction. A. Generally.\_6--The supreme court has jurisdiction of all controversies between states,7 and that court alone possesses jurisdiction derived immediately from the constitution, and of which the legislative power cannot deprive it, the jurisdiction of the circuit courts depending upon some act of congress.\* The jurisdiction of the Federal courts is limited in the sense that they have none except that conferred by the constitution and laws of the United States, and a cause is presumed to be without their jurisdiction unless the contrary affirmatively appears,9 the question of jurisdiction being self assertive in every 344 JURISDICTION SS 11A. 4 Cur. Law.

case and arising though litigants are silent.\[10\] The general rule, however, is that when the jurisdiction of a circuit court of the United States has once attached, it will not be ousted by subsequent change in conditions.\[11\] Consent of parties can never confer jurisdiction on a Federal court,\[12\] except in the case of persons sued by a trustee in bankruptcy to recover a fund for the estate.\[18\] Federal courts only grant the writ of mandamus in aid of an existing jurisdiction.\[14\] When a foreign state submits itself to our courts, it must be taken to do so on the same terms as other litigants.\[18\] A Federal court of equity sitting within a state is without authority to compel a corporation of that state to permit another corporation of another state, which has not complied with the state laws authorizing it to do business therein, to make a use of its property which would amount to doing business within the state.\[16\]

The Federal courts have no jurisdiction of suits against a state,\[17\] and a state statute providing the procedure in and naming officials who are necessary parties to actions to set aside tax sales, the language of which clearly indicates that suit in the state courts is intended, will not be construed as permitting such actions in the Federal court;\[18\] but a municipal corporation is not an agency of the state entitled to immunity,\[19\] and a suit against it, involving contract rights merely, may be entertained.\[20\] A suit against the attorney general of a state to enjoin a proceeding by him on behalf of the state is a suit against the state;\[11\] but a state railroad commission may be restrained from putting in force an order which would cause irreparable damage, the ordinary grounds of Federal jurisdiction being present.\[22\]

The Federal courts are prohibited by statute from staying proceedings of a state court or its officers,\[28\] except in bankruptcy cases;\[24\] but a bill to enjoin as

truder. Price v. Cherokee Nation \[Ind. T.\] the trustee cannot object to the jurisdiction.

S2 S. W. 893. A Federal court can have

In re McBride & Co., 122 F. 285.

Jurisdiction of an action for death of a

14. Wissner v. Louisville Water Co., 130 servant only on the ground of diversity of

F. 246; Barber Asphal Pau, Co. v. Morris,

etilemenship. Stockwell v. Boston & M. R.

122 F. 945; In re Coleman, 131 F. 151; Myystic Co., 151 F. 152. A claim for future All-

Milli, Co. v. Chicago, etc., R. Co., 132 F.

mony under a judgment of a state court is

289.

an action of a civil nature within the juris

15. Ex parte Republic of Colombia, 195

diction of the Federal courts, other juris

dditional requisites being present. Israel v.

16. Evansville & H. Traction Co. v. Hen-

Israel, 130 F. 237. The question whether a

Federal court acquired jurisdiction over a

foreign corporation defendant by the servant

16. Unclear v. Dix, 194 U. S. 590,

be determined by the Federal law unaffected.

ed by a state statute. New Haven Pily & Board Co. v. Downington Mfg. Co., 130 F.

605.

001. Yocum v. Parker \[C. C. A.\] 120 F.

001. That plaintiff was an assigne whose

assignment could not have maintained suit is

a jurisdictional fact which cannot be

waived. Utah-Nevada Co., W. De Lamar \[C. C. A.\] 133 F. 113.

11. Kirby v. American Soda Fountain Co.,

194 U. S. 141, 48 Law. Ed. 911; Blooming-

dale v. Watson \[C. C. A.\] 128 F. 288.

12. State v. Northern Securities Co., 194

U. S. 48, 48 Law. Ed. 870; Thomas v. Trustees

of Ohio State University, 195 U. S. 207, 49 Law. Ed. 870; Tonoma v. Parker \[C. C. A.\] 130 F. 110.

F. 710.

13. Federal court there has no jurisdiction

tion except on consent of defendants. Greg-

ory v. Atkinson, 127 F. 183; Ryttenberg v.

Schefer, 131 F. 812. And where the claim-

ant of property in the hands of a trustee

eubmits his claim to the bankruptcy court,

133.
001.
001.
001.
001.
001.
001.
001.
001.

4 Cur. Law. JURISDICTION SS 11A.

illegal the enforcement of an ordinance violative of contract rights, and which refers to no pending suit, is not objectionable,\[26\] and the statute does not extend to ancillary suits necessary to protect the jurisdiction of the court previously obtained.\[26\] The fact that a bill filed in the state court incidentally prays for relief which, if granted, might interfere with the constructive possession of property by receivers of a Federal court, does not authorize the latter court to enjoin where the principal relief sought therein does not trench on the prior jurisdiction.\[27\] Where several suits, some of which are removable and some not, are brought against insurers liable only pro rata, they may be enjoined by bill in the Federal court to have the liability of the several insurers determined and adjusted by that court as a court of equity.\[28\]

Federal courts have no original jurisdiction in respect to the administration and general settlement of the estates of deceased persons,\[29\] nor can they determine the right to the custody of an infant not imprisoned,\[30\] and a creditor establishing the validity of his claim by suit in the Federal court must, to secure payment, ordinarily seek relief by a marshaling of assets in the state court having jurisdiction of the settlement of estates.\[31\]

While state legislation cannot directly enlarge or contract the jurisdiction of the Federal courts,\[32\] it can create rights that are justiciable in such courts which, without such legislation, were not cognizable therein,\[33\] though the procedure for enforcing such rights will be that applicable to similar rights in the Federal courts, and not that provided by the state law;\[34\] but the rule that a Federal court may enforce a remedy either equitable or legal, given by a state statute, presupposes that the cause is one of which the Federal court has jurisdiction.\[35\]

The district court has jurisdiction of an action by the United States to recover money fraudulently obtained by defendant in payment of a false claim for a pension.\[36\]

_The court of claims_ was established to relieve congress of the necessity of adjudicating private claims against the government through its committees. Gennant dismissed his action and brought a new clue, 130 F. 55. A Federal court has jurisone in the state court, claiming a sum less than the Federal court's jurisdiction, does not make a case for injunction. Texas Cotton Products Co., v. Starnes, 188 F. 183. Federal courts enjoining proceedings in state courts, see notes to Garner v. Second Nat. Bank, 16 C. C. A., 90: Central Trust Co. v. Grantham, 27 C. C. A., 675.

**24.** In re Mertens, 131 F. 507.

**25.** Falutka Waterworks Co. v. Palatka, 137 F. 161.

**26.** Massile v. Buck \[C. C. A.\] 138 F. 37; Guararathy Trust Co. v. North Chicago St. R. Co. \[C. C. A.\] 130 F. 801. Where the Federal court acts in ald of its own jurisdiction and to render its decree effectual, it may, notwithstanding the statute, restrain all proceedings in a state court which have the effect of defeating or Implanting its jurisduction \[Rev. St. 780\], Julian v. Central Trust Co., 133 U. S., 93, 48 Law. Ed. 629.

27. Guararathy Trust Co. v. North Chicago St. R. Co. \[C. C. A.\] 130 F. 801.

**28.** Rochester German Ins. Co. v. Schmidt, 126 F. 988.

**29.** Thiel Detective Service Co. v. McClure, 130 F. 55. See 2 Curr. L. 607, n. 55.

**30.** Clifford v. Williams, 131 F. 100. See

\*\*2 Curr. L. 607, n. 56.

**31.** Thiel Detective Service Co. v. McC-M-111.

**40.**

**41.**

**42.**

**43.**

**44.**

**45.**

**46.**

**47.**

**48.**
eral authority, however, was never granted to pass on collision cases, as they sound in tort, and special legislation is necessary in every such case.\[37\] If the military occupation of real property began while it was within hostile territory, the court is prohibited from exercising jurisdiction.\[38\]

The courts of the _District of Columbia_ are courts of the United States and have judicial power as permanent and lasting as others, and possess those subjects of jurisdiction constitutionally given to them.\[39\]

(SS 11) \_B. As affected by diversity of citizenship.\[40\]--\_The circuit courts of the United States have original jurisdiction of suits of a civil nature at law and in equity, where the matter in dispute exceeds $2,000 and an alien is a party,\[41\] or the controversy is between a citizen of the state where suit is brought and a citizen of another state,\[42\] and where necessary to give effect to its decrees and judgments, the jurisdiction of the national court may be invoked by supplemental or ancillary bill, irrespective of the citizenship of the parties.\[43\] A state is not a citizen within the meaning of the constitution or the acts of congress.\[44\]

It is the court's\[6\] duty to see that this jurisdiction is not invoked conclusively,\[45\] but whether a suit coming fairly within equity rule 94 was collusively 'brought cannot be determined on demurrer.\[46\] That plaintiff removed from one state to another for the purpose of acquiring the right to sue in a Federal court in the state of his late residence will not defeat the jurisdiction, the removal being actual and with the bona fide intention of acquiring citizenship,\[47\] nor will an assignment of the cause of action with like motive.\[48\]

Regard is always had to the real rather than the nominal party,\[49\] and the citizenship of a merely formal party will not control,\[50\] neither will the court require the joinder of an unnecessary party where the effect would be to oust the jurisdiction.\[51\] but where it appears that indispensable parties have been omitted, they must be brought in, and if bringing them in deprives the court of jurisdiction, the plaintiff must abide the consequences.\[51\] The jurisdiction is determined by actual as distinguished from constructive citizenship,\[53\] and citizenship, not the place of residence, is the test.\[54\] Jurisdiction based on diversity of citizenship

- \*\*37. Watts v. U. S., 129 F. 223. 38. Berkeley County Ct. v. U. S., 38 Ct. 176. Where the cause of action grew only indirectly from the assignment and never existed in the assignor, his residence is immaterial, Id. 49. See 2 Curr. L. 608. 49. See 2 Curr. L. 608. 73. 50. Groel V. United Elec. Co., 133 F. 253. 42. Rochester German Ins. Co. v. Schmidt, 126 F. 99. See 2 Curr. L. 608. 69. 43. Julian V. Central Trust Co., 193 U. S. 53. 48 Law. Ed. 629; Rochester German Ins. Co. v. Schmidt, 126 F. 998; Leigh V. Kewane Mfg. Co., 127 F. 990; Hatcher v. Hendrie & B. Mifg. & Supply Co., 1 C. C. A 133 F. 267; Hampton Roads R. & Elec. Co. v. Newport News & O. P. R. & Elec. Co., 131 F. 534. 44. Minnesota V. Northern Securities Co., 194 U. S. 48, 48 Law. Ed. 870. 45, 46. Mills v. Chicago, 127 F. 731. 47. Wiemer v. Louisville Water Co., 130 F. 244. 48. Where a transfer of a mining claim is real and not simulated, it is immaterial that the motive was to give Federal jurisdiction on account of diverse citizenship. Willitt v. Baker, 133 F. 947 Where suit is by the assignor of a claim. Federal jurisdiction depends on the residence of the assymor at the time suit is begun, not at the time of the assignment. Noyes v. Crawford, 133 F. 76. Where the cause of action grew only indirectly from the assignment and never existed in the assignor, his residence is immaterial, Id. 49. See 2 Curr. L. 608. 73. 49. See 2 Curr. L. 608. 73. 50. Groel V. United Elec. Co., 133 F. 253. 42. Prochester German Ins. Co., 125 F. 970. 51. Interested party but not one necessary to adjidication need not be joined in such case. Ex parte Haggerty, 124 F. 441. See 2 Curr. L. 608. 73. 52. City of Syzour v. Farmers' Loan & Trust Co., 128 F. 907. See 2 Curr. L. 608. 74. Where it is alleged that a domestic corporation is under the dominance of a foreign corporation holding a majority of its stock, it is an indispensable party to a bill asserting that the foreign corporation was a trustee for minority stockholders, and a Federal court is ousted of jurisdiction of suit by a stockholder domilied in the same state as the domestic corporation. Redfield v. Baltimore & O. R. Co., 124 F. 929. 53. A state statute providing that a non-resident cannot be appointed administrator does not make one so appointed a citizen. McDuffle v. Montgomery, 128 F. 105. 54. Temporary residence does not change citizenship. Eisale v. Oddie, 128 F. 941.

4 Cur. Law. JURISDICTION SS 11B. 3+

having been once obtained is not divested by the appearance of a party as to whom the suit could not have originally been maintained.\[55\]

Jurisdiction is not conferred where citizens of the state where suit is brought are to be found on both sides of the controversy,\[58\] and the arraignment of the parties in the bill for the purpose of showing jurisdiction is not controlling on the court, it being the court's duty, for jurisdictional purposes, to ascertain the necessary parties to the suit and align them upon the one side or the other according to their true interests and attitude, irrespective of their designations in the bill.\[57\] In a suit in equity instituted by a stockholder in his own name, but upon a right of action existing in his corporation, the stockholder's corporation will be aligned with the defendants whenever the officers or persons controlling the corporation are shown to be opposed to the object sought by complainant; but when such opposition does not appear, the stockholder's corporation will be aligned with the complainant in the suit.\[58\] The only new thing required in a stockholder's bill by equity rule 94 is that its allegations shall be verified by oath.\[59\]

Suit cannot be maintained in a Federal court by an assignee based on diversity of citizenship, unless the assignor might have maintained it;\[60\] but the right to maintain suit where the original parties were citizens of different states is not lost by assignment to one who is also a citizen of a different state from defendant, though the effect of the assignment is to change venue of the action.\[61\] Where the alleged assignor was in legal effect the maker, the assignee may sue, though the assignor and the person actually making the note were citizens of the same state.\[62\]

For the purpose of suing and being sued in the Federal courts, the members of a local "corporation" are conclusively presumed to be citizens of the state by whose laws it was created and in which alone the corporate body has a legal ex 348 JURISDICTION SS 11C. 4 Cur. Law.

istence;\*\* this doctrine, however, goes to the very verge of judicial power, and will not be so extended as to raise an indisputable presumption that the stockholders are also citizens of any other state which authorizes it to do business within its borders, and authorize suit in the Federal court against it by a citizen of the state which incorporated it;\*\* neither will it be presumed in a suit to which the corporation is not a party that its president is a citizen of the state in which it was organized.\*\* It is beyond the power of one state to so combine a corporation created by it with one of another state as to make it a citizen of the other state for jurisdictional purposes, and so likewise is it beyond the power of the corporations themselves to accomplish the same result by their manner of conducting their business.\*\* In a suit by a stockholder of a public service corporation against the corporation and the city to restrain the enforcement of an invalid ordinance regulating tolls, the fact that the corporation is organized under the laws of the state in which the city is situated does not deprive the court of jurisdiction.\*\*

Diversity of citizenship will not of itself confer jurisdiction of habeas corpus proceedings.\*\*

(SS 11) \_C. As affected by existence of a Federal question.**--The Federal courts have jurisdiction in cases where the United States are a party,** trade-mark cases,\*\*11 \*\*suits by Indians to recover lands allotted by any Federal law or treaty,\*\*12 \*\*and suits at common law or in equity arising under the constitution or laws of the United States.\*\*13 \*\*A case arises under the constitution or laws of the United States whenever, upon the whole record, there is a controversy involving the construction of either.\*\*14 \*\*A case does not necessarily arise under the constitution or laws of the United States every time a writ of error would lie to the judgment of the state court,\*\*15 **neither does it so arise unless it really and substantially involves a dispute or controversy as to the effect or construction of the constitution or some law or treaty of** 63. Thomas v. Trustees of Ohio State University, 195 U. S. 507, 49 Law. Ed. ---. To take advantage of this rule the corpora, then must have been legally incorporated, that is not the only thing that is not covered that it will be destroyed by defendants' unlawful use. poses It is a corporation de facto is in-sufficient. Grisera, Cooper & Co. v. Erie Preserving Co., Wills Co. \[C. C. A.\] 128 F. 569. 72. Parr v. U. S., 132 F. 1004; Patawa v. 64. Alabama & G. Mfg. Co. v. Riverdale Cotton Mills \[C. C. A.\] 127 F. 497. 73. Impairment of contract by city with 2 water company. Columbia Ave. Sav. Fund. Safe Deposist, Title & Trust Co. v. Dawson, 130 F. 152; Mercantile Trust & Deposist Co. v. Columbus Waterworks Co., 130 F. 180. If it appears from the bill that in any aspect which the case may assume a right unger the constitution or laws of the United States may be involved, and that the claim is not merely colorable, jurisdiction is conferred. St. Louis, etc., R. Co. v. Davis, 132 \*\*F. 629. State officers cannot be enjoined from committing an act which it is alleged will be contrary to the fifth amendment, since that amendment limits the powers of congress only. Id. The state courts have no jurisdiction of actions for violation of the interstate commerce act. Gulf, etc., R. Co. v. Moore \[Tex.\] 83 S. W. 362. 74. Anthony v. Burrow, 129 F. 783. A suit to settle adverse claims to mining ground is not necessarily of Federal cogress. \[nisance if no diversity of citizenship exists.\] Willitt v. Baker, 133 F. 837. 75. Bradley v. Lightenap, 195 U. S. 25, 49 Law. Ed. ---.

4 Cur. Law. JURISDICTION SS 11C. 349

the United States, upon the determination of which the result depends, and which appears on the record by plaintiff's own statement of his case in legal and logical form, such as is required in good pleading;" and if it does not appear at the outset that the suit is one of which the circuit court at the time its jurisdiction is invoked could properly take cognizance, the suit must be dismissed.${}^{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext{ ext 350 JURISDICTION SS 11D. 4 Cur. Law.

The power of the Federal courts to intervene by habeas corpus in a case where a disregard of Federal law is charged is beyond doubt,\[8\] but except in instances of peculiar urgency, or where there is no jurisdiction in the state court to try the prisoner, the court should not discharge the prisoner in advance of his trial in the state court,\[8\] and even after final determination of the case in the state court should generally leave him to his remedy by writ of error from the supreme court of the United States.\[9\] The writ will not be granted to determine the right to custody of a child not imprisoned.\[8\]

The full faith and credit clause of the constitution\[9\] and the statute based thereon\[9\] establish a rule of evidence rather than of jurisdiction,\[10\] and under these provisions a judgment of a state court can only be made effective elsewhere within the United States through the instrumentality of a court having local jurisdiction.\[11\] Hence where an action is brought in a Federal court on a judgment of a state court, the Federal court will look to the original cause of action to determine whether it is otherwise an action of Federal cognizance.\[9\] Until equal faith and credit has been refused by a court, there can be no ground for complaining of any violation of the constitution, and no cause of action which will entitle a petitioner to invoke the jurisdiction of a national court for the preservation of a constitutional right.\[9\]

(SS 11) \_D. Avernents and objections as to jurisdiction.\[9\]--\_The facts essential to give a Federal court jurisdiction, either on the ground of diversity of citizenship\[9\] or of the existence of a Federal question,\[9\] must be distinctly alleged and not left to argument or mere inference,\[9\] and jurisdiction cannot be invoked by anticipating a defense.\[9\] The mere allegation of the existence of a Federal question is not sufficient if it plainly appears that such averment is not real and substantial but is without color of merit,\[1\] and, whether presented on motion to dismiss

**85.** May intervene to inquire Into the de-tention of a person held by a state court where it is alleged that he is held for an act done or omitted in pursuance of the authority of the United States (United States v. Lewis, 129 F. 832), or a Federal right has been denied (Ex parte Powers, 129 F. 985).

(SS 68.) Ex parte Powers, 129 F. 885. Where the evidence conflicts and a military officer and soldier are charged with murder not on a reservation, the court will not interfere. United States v. Lewis, 129 F. 823.

(SS 7.) United States v. Lewis, 129 F. 823. See 2 Curr. L. 610, n. 98. Habeas corpus can-not be made to perform the office of a writ of error to the state court. Ex parte Powers, 129 F. 985. Federal court will not discharge on hahens corpus a prisoner confined under criminal process of a state court where appeal and stay or bali is provided for. In re Reeves, 123 F. 343. See 2 Curr. L. 610, n. 88.

(SS 88.) Clifford v. Williams, 131 F. 100.

(SS 88.) Art. 4, $ 1.

(90.) Rev. St. 95. 905.

(91.) Israel v. Israel, 130 F. 237; Clifford v. Williams, 131 F. 100; Wisconsin V. Pelican Ins. Co., 127 U. S. 24, 52 2 Law. Ed. 239.

(92.) Clifford v. Williams, 131 F. 100.

(93.) Israel v. Israel, 130 F. 237.

(94.) Clifford v. Williams, 131 F. 100.

(95.) See 2 Curr. L. 610.

(96.) Sun Print. & Pub. Ass'n v. Edwards.

(97.) 194 U. S. 371. 48 Law. Ed. 1027. Defect in averment cannot be waived or healed by consent. Thomas v. Trustes of Ohio State University, 195 U. S. 207, 49 Law Ed. --;

(98.) Toveum v. Parker \[C. C. A.\] 130 F. 770. An averment of residence is not an averment of citizenship. Yeoum v. Parker, 130 F. 770;

(99.) Stockwell v. Boston & M. R. Co., 131 F. 152.

(99.) An allegation that plaintiff is a citizen of the British Empire is not a sufficient averment of allegance. Von Voight v. Michigan

(99.) C. R. Co., 130 F. 398.

(99.) Sloan v. U. S., 193 U. S. 614, 48 Law.

(99.) Ed. 814: Minnesota v. Northern Securities on a reservation, the court will not interfere. United States v. Lewis, 129 F. 823.

(99.) T. C. R. 870. Bankers'

(99.) C. R. 871. 48 Law. Ed. 484; Under-

(99.) David R. Co. v. New York, 193 U. S. 416, 48 Law. Ed. 733.

(98.) Thomas v. Trustes of Ohio State University * 4 Cur. Law. Jurisdiction SS 12B.

- 2 Pacific Elee. R. Co. v. Los Angeles, 194 Giles v. Teasley, 193 U. S. 146, 48 Law. Ed. U. S. 112, 48 Law. Ed. 655; Thomas v. Trustees of Ohio State University, 195 U. S. 207, 49 Law. Ed. ---.
- 3 Evidence preserved in bill of exceptionals looked to. Sun Print. & Pub. Ass'n 14. Louisville Trust Co. v. Knott, 191 U. v. Edwards, 194 U. S. 377, 48 Law. Ed. 1027.
- 4 Robinson v. Suburban Brick Co. \[C. C. A.\] 137 F. 804.
- 5 Yeoum v. Parker \[C. C. A.\] 130 F. 770.
- 6 Stockwell v. Boston & M. R. Co., 131 F. 16; Von Voight v. Michigan Cent. R. Co., 130 F. 398.
- 7 Eisele, v. Oddie, 128 F. 941; Welmer v. Louisville Water Co., 130 F. 244.
- 8 Wiemer v. Louisville Water Co., 130 had, or claimed to have a contract with a F. 244. In ejedentent the burden of proof to sustain a plea in abatement to the jurisdiccle- attempted, and so long as the controversy is upon defendant. Butters v. Carney, 127 F. 622.
- 9 On a plea in abatement in ejedentent on the ground that the amount 1m controversy is insufficient to cohrer jurisdiction on the court, defendant's contention that the dispute concerns only his particular interest is unsustainable. Butters v. Carney, 127 F.
- 10 See 2 Curr. L. 611.
- 11 See, also, Appeal and Review, 3 Curr. L. 167.
- 12 Utah-Nevada Co. v. De Lamar \[C. C. A.\] 132 F. 113.
- 13 South Dakota v. North Carolina, 192 U. S. 286, 48 Law. Ed. 448; United States v. Texas, 144 U. S. 621, 43, 36 Law. Ed. 285; Continental Nat. Bank v. Buford, 191 U. S. 119, 48 Law. Ed. 119; Defance Water Co. v. Defance, 191 U. S. 184, 48 Law. Ed. 140; 353 JURISDICTION SS 12B. 4 Cur. Law.

a direct appeal may be taken in a proceeding brought by the interstate commerce commission, under the direction of the attorney general, to obtain orders requiring the testimony of witnesses and the production of books and documents.\[18\] If a case does not really involve the construction or application of a treaty,\[19\] or the constitution in the sense in which that phrase is employed in the judiciary act of 1891,\[28\] or where the constitutional rights set up below are so attenuated and unsubstantial as to be absolutely devoid of merit, there is no jurisdiction;\[21\] and matters of defense that are not and cannot be resorted to by plaintiff to obtain jurisdiction will not confer it.\[22\] The question of jurisdiction which may under the statute be certified direct to the supreme court must be one involving the jurisdiction of the circuit court as a Federal court, and not in respect of its general authority as a judicial tribunal.\[23\] If the record does not affirmatively show jurisdiction in the circuit court, the supreme court on its own motion will so declare, and make such order as will prevent that court from exercising an authority not conferred upon it by statute;\[24\] and where the contention as to want of jurisdiction below is well founded, the supreme court does not merely dismiss the appeal from a decree dismissing the bill on the merits but reverses the decree below at appellant's costs, with instructions to the circuit court to dismiss the bill for want of jurisdiction.\[28\] Whether the case should go to the circuit court of appeals or directly to the supreme court is determined from the record, there being no authority for the trial judge making a certificate that the application and construction of the constitution were involved in the action.\[20\]

Writs of error do not lie from the supreme court of the United States to the supreme court of Oklahoma in capital cases,\[27\] notwithstanding error lies to review a criminal case not capital in the circuit court of appeals.\[28\]

A rule of practice promulgated by the commissioner of patents is an "authority under the United States" giving the supreme court jurisdiction to review a case involving it in the court of appeals of the District of Columbia.\[29\]

The supreme court may review on writ of error a final judgment of a district court of Porto Rico, in a case in which "an act of congress brought in question and the right claimed thereunder is denied,\[29\] or where the amount in dispute court. Vivuesney v. Allen \[C. C. A.\] 121 F. laws on the facts. Bankers' Mut. Casualty Co. v. Minnesotapolite, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

21. The question whether a corporation is principally engaged in manufacturing and mercantile pursuing so as to be declared an involuntary bankrupt is within the jurisdiction of the district court, so that an appeal properly lies to the circuit court of appeals, public, etc., R. Co., 192 U. S. 371, 48 Law. Ed. rather than to the supreme court, Column-384.

01. Bankers' Mut. Casualty Co. v. Minneapolisl Iles to the supreme court of Appeals, public, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. Bankers' Mut. Casualty Co. v. Minnesotapolite, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. The question whether a corporation is principally engaged in manufacturing and mercantile pursuing so as to be declared an involuntary bankrupt is within the jurisdiction of the district court, so that an appeal properly lies to the circuit court of appeals, public, etc., R. Co., 192 U. S. 371, 48 Law. Ed. rather than to the supreme court, Column-384.

01. Bankers' Mut. Casualty Co. v. Minnesotapolite, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. The question whether a corporation is principally engaged in manufacturing and mercantile pursuing so as to be declared an involuntary bankrupt is within the jurisdiction of the district court, so that an appeal properly lies to the circuit court of appeals, public, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. Bankers' Mut. Casualty Co. v. Minnesotapolite, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. Bankers' Mut. Casualty Co. v. Minnesotapolite, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. Bankers' Mut. Casualty Co. v. Minnesotapolite, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. Bankers' Mut. Casualty Co. v. Minnesotapolite, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. The question whether a corporation is principally engaged in manufacturing and mercantile pursuing so as to be declared an involuntary bankrupt is within the jurisdiction of the district court, so that an appeal properly lies to the circuit court of appeals, public, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. Bankers' Mut. Casualty Co. v. Minnesotapolite, etc., R. Co., 192 U. S. 371, 48 Law. Ed. 484.

01. Bankers' Mut. Casualty Co. v. Minnesotapolite, etc., R. Co., 192 U. S.

4 Cur. Law. JURISDICTION SS 12C. 353

exceeds $5,000 and a final judgment in a like case in the supreme court of one of the territories of the United States could be reviewed by the court.\[81\] Review in such cases is not restricted to those cases in which the constitution or a treaty of the United States or an act of congress is brought in question and the right claimed under it denied.\[82\] Unless a case decided in the district court of Porto Rico can be reviewed by the snpreme court, the judgment is final for no such case can be carried to the circuit court of appeals.\[83\]

Where the circuit court of appeals is unable by reason of conflicting authority to determine the proper construction of a state constitution, and there is no decision of the highest court of the state in point, the question will be certified to the supreme court.\[84\]

Where the jurisdiction of the Federal court is invoked on the ground of diverse citizenship alone, the judgment of the circuit court of appeals is final and no appeal lies to the supreme court,\[85\] notwithstanding the fact that the suit involves defendant's relations with the government as a carrier of the mails.\[86\] The circuit court of appeals has jurisdiction to review a judgment of a district or circuit court finding a person guilty of contempt for violation of its order and imposing a fine for the contempt.\[87\] An appeal to the circuit court of appeals does not bring before it the question of jurisdiction of the circuit or district court, that question being reviewable only by the supreme court,\[88\] but where a case involved constitutional questions and could have been taken direct to the supreme court, but was appealed to the circuit court of appeals, that court in the absence of objection considered the constitutional as well as the other questions in the case.\[89\]

(SS 12) _C. Control over state courts.\[40\]_--The right of the supreme court of the United States to review the decisions of the highest court of a state is circumscribed by the rules established by law and in every case the question of jurisdiction must be answered whether propounded by counsel or not.\[41\]

When the jurisdiction depends upon a right, privilege, or immunity under the constitution, laws, or treaties of the United States, the right on which the party relies must have been called to the attention of the court in some proper way and the decision of the court must have been against the right claimed;\[82\] or at all events it must appear from the record by clear and necessary intend that the Federal question was directly involved so that the state court could not have given judgment without deciding it.\[48\] Where the state court decides the case for reasons independent of the Federal right claimed,\[44\] or upon a ground broad enough to sustain it without deciding the Federal question raised, the supreme court has no jurisdiction;\[45\] but where a decision by the state court of the Federal question appears to have been the foundation of the judgment, a writ of error lies,\[46\] and the supreme court will not decline jurisdiction of a case which would never have been brought but for the passage of unconstitutional laws because the state court put forward an untenable construction of a corporate charter more than the unconstitutional statutes in its judgment.\[47\]_That a Federal question was 'so raised and decided must affirmatively appear from the record.\[48\]_

Great weight is attached to the decision of the state court regarding questions of taxation or exemption therefrom under the constitution or laws of its own state,\[49\] and the highest court of a state may administer the common law, and interpret its own statutes and constitution according to its understanding thereof without raising any question of Federal law reviewable in the supreme court.\[40\]\_

A denial in Kentucky of the validity of an Indiana judgment because the place of service of process is claimed to be on the Kentucky side of the boundary presents a Federal question.\[51\] Contrary to the rule governing appeals between Federal courts, the power of the supreme court to review a decision of a state court may arise from a Federal right first set up and claimed by defendant in his defense," and where the claim is first made on motion for rehearing in the highest court of the state, it is sufficiently raised; the state court entertaining the motion and deciding against the right claimed."

The writ runs to the court in which the record remains."

The supreme court cannot review the conclusions of the highest court of a state upon questions of fact."

SS 13. _Acquisition and divestiture._"--Jurisdiction, especially of inferior courts, may be lost by delay or interruption of the proceedings." but generally a judgment of a court of general jurisdiction rendered after the time limited by statute is merely erroneous, not void for want of jurisdiction." Where a new district is created out of a part of the territory of an old one, jurisdiction over pending causes remains with the old court or not as the statute provides." The Act of Congress of 1900, reorganizing the judicial system of Alaska, saved to litigants the right to prosecute pending suits to final judgment under either the old or the new law." The mere filing of an application for change of venue does not oust jurisdiction," and a void order attempting to transfer jurisdiction is of no force and the exercise of jurisdiction may be resumed without the issuance or service of new process." A stay of proceedings for failure to pay costs does not deprive the court of jurisdiction," and an order consolidating actions may properly reserve jurisdiction over the question of costs and expenses in the suits superseded." A voluntary settlement before judgment does not oust jurisdiction;"

SS2. Bankers' Mut. Casualty Co. v. Min-neapolis, etc., R. Co., 192 U. S. 371, 48 Law.

SS3. See 2 Curr. L. 631, n. 68. Where new counties with new courts are organized out of territory of existing counties, the old courts have jurisdiction over actions real oral right, and asking an instruction based on rights thereunder, is in time. National organized and their officers elected and qual-Mut. Bldg. & Loan Assiv v. Brahan, 193 U.

SS4. Where a new county or jurisdiction is established after the commission of a crime, Ed. 623.

SS4. Judgment entered in circuit court of Kentucky on mandate from court of ap-

terntropy in which the offense was commit-

peals. Wedding v. Meyler, 192 U. S. 573, 48 Law. Ed. 570. Court of civil appeals of organized territory was attached for judicial

Texas. Olsen v. Smith, 195 U. S. 332, 49

Law. Ed.

356 JURISDICTION SS 14. 4 Cur. Law.

but cases properly dismissed in the municipal court for nonappearance cannot be reinstated except on defendant's express consent or his voluntary appearance without objection after notice.64 In order to transfer an action brought before a justice of the peace to the circuit court on the ground that the title to real estate is in question, the statutory directions must be strictly observed.67 The city court of New York does not lose jurisdiction by the entry of an order of interpleader under the banking law where the object of the suit is to recover money on deposit.68 The Pennsylvania statute of 1901, transferring jurisdiction of railway crossings over highways to the common pleas, nullified pending proceedings in the quarter sessions.69 Cases involving questions of citizenship of the Choctaw tribe of Indians must be transferred to the citizenship court established by congress to decide such questions.70

4 Cur. Law. JURISDICTION SS 14. 357

only a question of practice." Where the service papers do not affirmatively show jurisdiction and it is questioned, the burden is on plaintiff to show it." The judgment on demurrer to plea to the jurisdiction, if in favor of plaintiff, is respondeat ouster."

After a court which has general jurisdiction over a certain class of cases proceeds without objection to the hearing and determination of a cause belonging to that class, it is too late on appeal to raise objections to the irregular exercise of jurisdiction." But whether the court had jurisdiction of the subject-matter," and questions of jurisdiction arising on the face of the record, may be raised at any time." The trial of an action at a place where the court had no power to sit is jurisdictional and is not waived by failure to raise the question in the trial court." A plea to the jurisdiction as to the person as well as to the subject-matter may be united with a plea to the merits without waiving the question of the jurisdiction." Knowledge of persons not served that the court is about to proceed against them without jurisdiction is not a waiver."

A court of general jurisdiction will be presumed to have acted within its jurisdiction," and in the absence of anything in the record showing the lack of it, will be presumed to have had jurisdiction over parties against whom judgment was rendered." As to courts of special and limited jurisdiction, no presumptions are indulged," but once it appears jurisdiction has attached, the usual presumptions are indulged in favor of its continuance." Presumptions will be indulged in favor of the jurisdiction of probate as well as other superior courts, in matters within probate jurisdiction." Presumptions indulged to sustain a record against collateral attack can only be made to supply the record in matters regarding which it is silent, and cannot be permitted to contradict the record in matters in which it speaks for itself."

85. Harrigan v. Glichrist \[Vis.\] 99 N. W. W. \[W.\] 909. 84; Smoot v. Judd \[Mo.\] 83 S. W. 481. 86. Dalton v. Mills, 91 N. Y. S. 733. 87. 87. 87. 88. Blreth v. King \[N. J. Law\] 69 A. 11. 88. Chance of venue to wrong court. Rodney v. Gibbs \[Mo.\] 82 S. W. 187. 88. 89. 88. Midler v. Lese, 91 N. Y. S. 148. May be first raised on appeal (Kalyton v. Kalyton v. Kalyton \[Or.\] 78 P. 332), though waived below (Yildity & Deposit Co. v. Jordan, 134 N. 83, 46 S. E. 496. 89. 89. 90. Defect In proof of service of process. Skinner v. Jordan, 91 N. Y. S. 322. Where it appears from the record that the trial court had no jurisdiction, the objection can be raised for the first time on appeal. Furst Bros. v. Banks, 101 Va. 208, 48 S. E 360. Where the misjolior of defendants residing within and without the county appears on the face of the petition, the question of jurisdiction over the nonrefendent defendants may be raised after judgment. Haseltine v. Messmore \[Mo.\] 82 S. W. 115. 90. Armstrong v. Loveland, 90 N. Y. S. 711. 92. Meyer v. Phenix Ins. Co. \[Mo.\] 83 S. W. 479; High v. Padrosa, 119 Ga. 648, 46 S. E. 858. 98. Floto v. Floto, 213 III. 488, 72 N. E. 1092. 94. Logan v. Robertson \[Tex. Civ. App.\] 83 S. W. 395. Superior court. Parsons v. Weis, 144 Cal. 410, 77 P. 1007; Grannis v. Superfer Court of San Francisco, 143 Cal. 630, 77 P. 647. Nothing shall be intended to be out of the jurisdiction of a superior court but which specially appears to be so. Hadley v. Bernero, 103 Mo. App. 549, 78 S.

**JURY.**

**SS 1. Necessity or Occasion for Jury Trial**

**\[366\].** **The Disqualification (366).**

**\[366\].**
proceedings;10 and a statute abolishing school districts and transferring their property to towns is not invalid for failure to provide jury trial as to the value of the property.11 Summary proceedings,12 prosecutions under municipal ordinances,13 and statutory actions,14 are not included. A suit may be one at law notwithstanding-ing a prayer for equitable relief,15 and whenever a court of law is competent to

72 P. 770. Proceedings to contest claim against a decedent's estate in the district court sitting in probate. Estely v. Rua \[C. C. A.\] 122 F. 609. Matter resting in the discretion of the probate court. Removal of administrator. Stevens v. Larwill \[Mo. App.\] 84 S. W. 113.

9. Harrigan v. Gilehrist \[Ws.\] 99 N. V. V.

909: Lincoln Trust Co. v. Nathan, 175 Mo. 32,

74 S. W. 1007: Gallo v. Haas, 67 Kan. 255,

75 P. 770; Estely v. Rua \[C. C. A.\] 122 F. 609; Shields v. Johnson \[Idaho\] 79 P. 391; Parmelee v. Price, 298 III, 54, 70 N. E. 755; Woodrup v. Douglas County \[Neb.\] 88 N.

1031. A criminal prosecution before a Jusportate stock for fraud, for injunction, restraint on disposal, etc., 18 s equilitable. Mor-

0001. V. Fana-

0001. Bray v. State, 140 Ala. 172, 37 So.

0001. Summary proceedings before municipal

0001. Summary proceedings before municipal

0001. Summary proceedings before municipal

0001. A complaint whose essential requirement is an accounting between alleged partners is of equitable cogninance. Shipley v. Beduc \[Mln.\] 101 N. W. 952. In an action .for redemption and accounting, defendant was not entitled to have a jury to estimate damages. Hagan v. Continental

0001. Summary proceedings before municipal

0001. Summary proceedings before municipal

0001.

take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because defendant has a constitutional right to a trial by jury.\[16\] But when the court orders two causes one an equity cause the other a law cause to be consolidated, and there is no objection, the court properly tricts the issues of law and fact together.\[17\] That issues of fact in an equity case were tried by a jury as in a case at law is not prejudicial where the right result was reached, as it is unimportant that the court had the assistance of a jury.\[18\]

There is no constitutional right in Maine to a jury trial to assess damages for property taken by eminent domain.\[18\] There is, however, in Illinois.\[20\] But where such proceedings are taken and no objection to the denial of trial by jury is made, the right is waived.\[41\] Statutes providing that insurance companies shall be es-topped to deny that property was of the value for which it was insured are not violative of the right.\[22\] Statutes providing for special findings at the request of the parties\[23\] authorizing direction of verdict where there is no conflict in the evidence, and that introduced demands a particular verdict,\[24\] and providing for a new trial for insufficiency of evidence or excessive damages do not interfere, such power having always been exercised by common-law courts irrespective of statue.\[25\] A statute providing that if special interrogatories are requested by a party he must submit them to his adversary before argument does not violate the ancient mode of trial by jury.\[26\] Where a jury trial is a matter of constitutional right, it is a sufficient compliance with this guaranty that the statute provides a jury trial on appeal;\[27\] and a person who owns property sufficient to secure costs is not deprived of the right of a trial by jury, because required to give security.\[28\] A statute providing for a change of venue in criminal cases by the state, on application of its attorney,\[29\] and that a crime committed in two counties may be prosecuted in either, is not unconstitutional as violating the right of trial by a jury of the vieinage,\[30\] nor is the right violated by drawing a jury from an adjoining county when the court deem it impossible to get an impartial jury from the county where the case is to be tried.\[31\] When one party properly demands a jury within the cifically unless his complaint sets out suffi- \[Jamesburg Drainage Dist., 204 Ill., 106, 68 cient allegations to render the case ex- \[Journal of Equitable cognizance, the right to jury trial remains. Muncule Pup Co. v. Martin \[Ind.\] 72 N. E., 882., 883., 10. Jones v. Mutual Fidelity Co., 123 F. \[Fla.\] 87 So. 62., 506, citing Hipp v. Babin, 13 How. \[U.S.\] 23. Request is also mandatory when made 271, 15 Law. Ed. 679; Insurance Co. V. Bailey, 13 Wall. (U. S.) 616, 20 Law. Ed. 691; Grand Chute v. Winegar, 15 Wall. (U. S.) 873., 21 Law. Ed. 174; Buzard v. Houston, 111 U. S., 347, 30 Law. Ed. 451; Whitehead v. Shat- \[tuck, 138 U. S. 151, 34 Law. Ed. 873., 17. Chandler v. Franklin, 65 S. C. 544, 44 S. E. T. 70. 18. Humphrey Hardware Co. v. Herrick \[Neb.\] 99 N. V., 238. 10. Ingram v. Maine Water Co., 98 Me. 566, 57 A. 883. The mill act of Maine making the finding of the commissioners conclusive as to the damage for flowing unless impacached is not invalid as depriving the trial of its character as a common-law jury trial, the parties not being entitled to such a trial. Id 20. A statute providing for the assessment of damages for land taken for a drainage ditch by commissioners instead of a jury is to that extent invalid. Juvinsil v.

4 Cur. Law. JURY SS 1B.

required time and later waives the right, the other party still has a right to demand

a jury by tendering the jury fees.\[32\]

_Cases of content of court were never triable by jury.\[33\]_

_Character of jury guaranteed.\[24\]_--Unless otherwise provided by constitutional

enactment, the jury guaranteed means a jury of twelve,\[35\] whose verdict must be

unanimous.\[46\] Unanimity, however, has been dispensed with in some states.\[37\]

And in Kansas in a prosecution for a misdemeanor, defendant, with consent of the

prosecuting attorney and the court, may waive trial by a full jury and consent to

be tried by a jury of eleven persons.\[38\]

_Mandamus to compel a jury trial.\[39\]_

(SS 1) _B. In cases not covered by constitution.\[40\]_--In many states, provision

is made for the submission of issues of fact in equity cases to a jury. In such cases it is generally a matter of discretion whether a jury shall be called,\[41\] and

when called their verdict is merely advisory, the court being free to accept or reject it.\[42\] The statutes of several states provide that all actions to recover money

or specific personality shall be tried by a jury unless the same is waived or the

issues referred.\[43\] In Michigan disputed questions of fact on appeal from decisions of the probate court must, if either party so asks, be tried by a jury,\[44\] and

in Illinois a defaulted defendant is entitled on asking it to have his damages

assessed by a jury; the statute being imperative and not open to construction.\[45\]

The right to a jury trial on issues raised before an auditor in the distribution

of a fund is based entirely on the statute.\[46\] Where the statutory right is based

on the existence of certain facts, they must appear from the record to entitle to it;\[47\] but where claims are set up that entitle to a jury trial it is error for the

court to pass upon the facts, even in equity cases, unless jury is waived.\[48\]

\*\*32. Sherwood v. New York Tel. Co., 91 N.\*\*tenance. Kosacek v. Kosacek, 105 Ill. App.

Y. S. 387.

**33. See 2 Curr. L. 635.** Drady v. District

Court \[Iowa\] 102 N. W. 115.

ple's Bank, 101 Mo. App. 605, 74 S. W. 117:

**34. See 2 Curr. L. 635.** Lincoln Trust Co. v. Nathan, 175 Mo. 32, 74

**35. Right to trial. by an impartial jury** means a jury of twelve impartial men. State

v. Mott, 29 Mont. 292, 74 P. 728. A trial jury

at common law and under most American

constitutions is a jury of twelve men in the

presence, and under the superintendence of

a judge empowered to instruct them on the

law and advise them as to the facts, and,

except on acquitail of a criminal charge, to

set aside their verdict when contrary to the

law and evidence. Archer v. Board of Levee

Inspections, 128 F. 125.

\*\*36. An erroneous instruction that a less

number may return a good verdict is

internal when the verdict is unanimous.

Adams Exp. Co. v. Aldridge \[Colo. App.\] 77 P.

P. 6; Fitzhugh v. Nicholas \[Colo. App.\] 77 P.

1092.

\*\*37. The amendment in Missouri dispens-

ing with unanimity was legally adopted

\[Act &, $2\] (Gabbert v. Chicago, etc., R. Co.,

171 M. 84, 70 S. W. 891; Smith v. Sovereign

Camp of Woodmen, 179 Mo. 119, 77 S. W. 862; McClure v. Feldmann \[Moh.\] 84 S. W. 16; Shaw v. Goldman \[Moh.\] 81 S. W. 1223), and

applied to pending suits (Roenfeldt v. St. Louis & S. R. Co., 180 Mo. 554, 79 S. W. 706).

**38. State v Wells \[Kan.\] 77 P. 647.**

**39. See 2 Curr. L. 635, n. 22.**

**40. See 2 Curr. L. 635.**

**41.** Wynter v. Armfield, 90 N. Y. S. 699.\*\*

**42.** Applies in suit for separate main-

**36.** (SS 1) \_C. Loss or waiver of right.\_49--The right may be waived, in civil cases,50 and a statute providing that unless a jury is demanded in accordance with its provisions it shall be deemed waived does not impair the right.51 but defendant in a criminal case cannot consent to a trial by the court,52 and where persons sui juris are, without any action on their part, secure in the right of a jury trial, an act that makes the right of one under 14 years of age depend upon his demand for it, violates the constitutional guaranty.58 Persons accused of petty offenses may, however, waive jury trial,54 and one who waives trial by jury and consents to be tried by the judge will not be heard after trial and conviction to say that the method of selecting a jury is unconstitutional, nor that he has been deprived of his liberty "without due process of law."55 When a party has been granted a jury trial upon his own request, he cannot complain that damages were assessed by this jury, instead of by the jury provided for in condemnation proceedings.54 Although jury has been waived by failure to comply with the statute, the court may, in its discretion, grant a jury trial.57

Footnote 54: Plantiff was chrred with violation of the statute which provides that any person receiving pleomargarine for sale shall 4 Cur. Law. JURY SS 2. 363

Federal court, but a stipulation clearly contemplating a finding of the facts by the court is sufficient.64

\_Viaver by nonassertion of right.\_68--Failure to seasonally demand a jury may work a waiver of the right.60 So may a voluntary submission of issues of fact to the court,67 or failure to appear.68

\_Effect of failure to pay cost of jury.\_69--In the absence of a statute so providing, refusal by a party to pay in advance the cost of a venire does not constitute a waiver,60 but a statute providing for a reasonable jury fee is valid, and a party failing to advance it as the statute provides will be held to have waived his right.71

\_Estoppel.\_72, 73--A plaintiff who invokes the privilege of the statute relieving him from giving security for costs on filing a plea of poverty is bound by its other !provision subjecting the case to dismissal if the plea be found to be untrue and cannot insist on his right to trial by jury.74

\_Renewal of demand; subsequent trials.\_75

\_SS 2. Eligibility to and exemption from jury service.\_76--At common law one convicted of a felony is disqualified from serving as a juror,77 and in some statcs jurors are disqualified if they have not paid their poll tax,78 are unable to read and write, or if they have served at a preceding term, within the year;79 but a new trial cannot be granted because a juror incompetent proper defectum assisted

64. Anglo-American Land, Mortig. & Ag. Co. v. Lombard \[C. C. A.\] 132 F. 721. 65. See 2 Curr. L. 637; see, also, Saving Questions for Review, 2 Curr. L. 1590. 66. Horton v. Simon \[Neb\]. 97 N. W. 604. Before the trial written demand for a jury was filed. When the case was about to be called it was transferred to a judge who was hearing equity cases. No objection having been raised, higher court would not review. Zilke v. Woodley \[Vwash\]. 78 P. 299. Where the practice permits a plaintiff to amend his pleadings so as to change the tissue from a fictitious one to one of contract or tort, defendant may demand a jury for the second trial \[Code Civ. Proc. $ 2990\]. Reese v. Baum, 83 App. Div. S50, 82 N. Y. S. 157; Miller v. Georgia R. Bank, 120 Ga. 17, 47 S. E. 525. In New York under Code Civ. Proc. $ 2990, jury shall be demanded at the time of joining issue. Issue is not joined until the answer is filed. Levy v. Roossin, 93 App. Div. 387, 87 N. Y. S. 107. Where under a mechanics! line, the owner of property was served with the answer of a co-defandant, which gave no notice that a judgment would be demanded, failure of the owner to ask for a jury did not constitute waiver. Deane Steam Pump Vo. v. Clark, 84 App. Div. 450, 82 N. Y. S. 902. In Illinois, under the drainage act, unless a property owner files an objection setting forth specifically the default of the right to a trial by jury, the right is waived and the judgment of confirmation is conclusive. Javinull y. Jamesburg Drain-age Dist., 204 Ill. 106, 68 N. E. 440. Right to trial by jury as to satisfactory proof moving a court to order a partition instead of a sale Is waived by failure to make request until after the clerk had decided that decree can be made without injury to the party. Libemaire Steam Nav. Co. v. Worrell, 133 N. C. 93, 45 S. E. 466. 67. Permitting the court to dispense with the jury and pass upon all the issues. Bernheim v. Bloch, 91 N. Y. S. 40.

364 JURY SS 3. 4 Cur. Law. in making the verdict where no challenge was interposed," or his examination on voir dire did not extend to the matter in question," and in such case on appeal it will be presumed that the proceedings were regular, and that the jurors were good and lawful men." A juror may be excused on account of illness."

SS 3. _Disqualification pertaining to the particular cause. Constitutional right to unbiased and unprejudiced jurors."_--The constitution of the United States and of the several states guarantees right to trial by an impartial jury;" but a verdict will not be set aside on the ground of bias of a juror, in the absence of a positive showing," and objections on that ground are waived if the juror is not examined with regard to-them before trial, notwithstanding the fact of incompetency was not known until after trial."

_Conscientious scruples against capital punishment_" are ground for challenge in some states where that punishment is inflicted."

_Prejudice against class of litigants or actions._"--A party should be permitted to ask jurors if they have any prejudice against the class of litigants to which he belongs." but the existence of a special desire on the part of a juror to have a particular law enforced does not disqualify him to sit as a juror, where a person, is to be tried for violation of that law," and a juror not otherwise disqualified will not be, in a perjury case, because he had some feeling in the related case."

Prejudice against insanity as a defense, does not disqualify jurors, if they testify that they will follow the instructions of the court as to the law," nor if the prejudice does not extend to cases where proof of real insanity is made." The test-mony of a juror on examination that it would take less testimony to prove malice in the killing of a woman than if the person killed were a man is not ground for a challenge for cause where the accused is being tried for the murder of a woman."

_Knowledge of issues involved."_--A juror who has intimate knowledge of the material issues involved may be properly excluded," but a juror is not disqualification

80. Jordan v. State, 119 Ga. 442, 46 S. E. 678. 87. State v. Carpenter \[Iowa\] 98 N. W. 775. 88.

field because he sat upon a panel that convicted another defendant of a like but different crime upon the same prosecutri;" though where several defendants are charged with an offense arising out of the same conspiracy and the same evidence is relied upon to sustain a conviction of each, jurors who sat in the trial of one previously indicted are subject to challenge for cause.1 Where a jury found against the defendant in a special issue, it is not disqualified thereby to hear the main issue if the trial is one continuous proceeding.2 After the trial of an accused for murder it is not sufficient ground for reversal to show that a juror had given some thought or made some individual investigation affecting the provable guilt or innocence of the accused.8

\_Opinion on issues involved.4--A juror must not have formed an opinion as to the guilt of the defendant5 that will affect his verdict,6 and generally an un-qualified opinion is ground for challenge for cause,7 if upon a material issue.8 The courts, however, distinguish between an opinion which it will require evidence to remove and a mere impression;9 the trend of recent decisions being to limit rather than extend the rule disqualifying jurors for opinion.10 And in several states, by express provision of the code, a qualified opinion based on rumor and newspaper accounts that can be removed by evidence11 or that can be laid

Footnote 10: McCue v. Com. \[Va.\] 49 S. E. 623. Juror having read newspaper accounts but not having formed any opinion is a competent juror. State v. Lewis, 181 Mo. 235, 79 S. V. 671; Taylor v. State \[Ark.\] 82 S. W. 496. It is not error to deny a challenge to a juror for bias where the juror's opinion was based on mere hearsary testimony, and he considersed himself competent to act as juror. State v. Armstrong, 43 Or. 207, 73 P. 1022. Especially when the defendants' preemportions were not exhausted. State v. Hayes \[S. C.\] 48 S. E. 251; People v. Nunley, 142 Cal. 441, 76 P. 45. In California although the witness testified on vlor dire that it would require evidence to prove the accused innocent of the chance of murder, it was held not good for challenge for cause, the juror knowing later testified that he would not favor conviction of the defendant unless his guilt be established. People v. Cohoa, 142 Cal. 268, 75 P. 847. When a juror's opinion or impressions are founded upon rumor or newspaper reports which he feels conscious he can dismiss and try the prisoner on the evidence, it is no error to overrule a challenge for cause. Capital case. Lindsay v. Ohio, 4 Ohio C. C, (N. B.) 409. For the court to decline to ask a juror if it would require evidence to remove his option is not error. State v. Hayes \[S. C.\] 48 S. E. 251.

Footnote 11: Pen, Code, SS 1076. People v. Sowell \[Cal.\] 78 P. 717. Code-Miss. 1892, SS 2358, provides in substance that a juror shall not be disqualified by reason of the fact that he has an opinion or impression as to the guilt or innocence of the accused, If it shall appear to the court that he is not biased and will be governed by the evidence. Impression gained from newspapers that can be removed by testimony do not disqualify. Gam aside, does not disability.\[13\] Erroneous opinions as to the law governing the case do not disqualify a juror,\[13\] and the fact that a juror has certain notions as to his duty in fixing punishment does not affect his competency to sit.\[14\]

\_Interest.\[18\]--\_Where defendant is indemnified by an accident insurance company it is not error to permit a juror upon his voir dire to be asked if he is a stockholder or in any way interested in such company.\[16\]

\_Relationship or acquaintance.\[17\]--\_There are certain degrees of consanguinity and affinity within which bias will be presumed, from the fact of such relationship,\[18\] and very intimate friendship may be ground for challenge for cause.\[19\] but courts will not usually indulge in arbitrary or technical rules which may have the effect of excluding competent men from the jury.\[20\] An objection on the ground of relationship is waived if known and not taken before verdict.\[21\]

\_Proof of disqualification.\[22\]--\_Grounds of disqualification must clearly appear,\[3\] and where the evidence conflicts the findings of the trier are conclusive.\[24\] When the veracity of a juror is attacked upon the ground that he swore falsely upon his voir dire, it is not error for the judge to consider affidavits sustaining his character.\[26\] The fact that a juror asks questions of a witness tending to show which way he leaned is not ground for discharging the jury.\[26\]

Discretion of court to excuse juror.\[27\]--\_The judgment of the trial court must govern very largely in the matter of the selection of a jury,\[28\] and a court of review will not interfere unless there is a clear violation of law or abuse of

mons v. State \[Miles.\] $7 So. 609. A statute & O. R. Co. \[Va.\] 49 S. E. 487. A juror is providing that a juror shall not be disqualified by reason of having been a filed for an opinion formed or expressed based on public rumor and articles in public juror. Brown v. McNair \[Ind. T.\] $2 nals, provided he can act impartially is not unconsultutional. State v. Mott, 29 Mont. 292, 74 P. 728. 12n. Conde $2051. State v. Howard \[Mont.\] 77 P. 60. 13. Johnson v. Park City, 27 Utah, 420, 76 P. 216. 14. State v. Snyder \[Mo.\] $2 S. W. 12. 15. See 2 Curr. L. 641. 16. It is no answer to this to say that the indemnity company is not named as a party to the action. Bias is not determined by this fact. Spoonick v. Backus-Brooks Co., $9 Minn. 354, 94 N. W. 1979. 17. See 2 Curr. L. 641. 18. Chesapeake & O. R. Co. v. Smith \[Va.\] 49 S. E. 487. A juror is not disqualified by reason of the fact that his wife is a second cousin of the wife of one of the parties to the suit. Baldwin v. State, 120 Ga. 188, 47 S. E. 558. Court may discharge a juror on account of kinship even after he has been accepted and sworn. Dorman v. State \[Fla.\] 37 So. 561. 1B. Plaintiff had been juror's attorney in Important litigation, and juror testified on voir dire that he had such high regard for plaintiff that he named a child for him. Texas Cent. R. Co. v. Blanton \[Tex. Civ. Apl.\] $1 S, W. 537. Juror swore on voir dire that the fact that defendant was an intimate friend of juror's brother would have effect upon his judgment in rendering a verdict. Held that challenge for cause was properly sustained. State v. Faulkner \[Mo.\] $4 S. W. 967. 20. Plaintiff was the family physician of certain jurors. Held, it was not error to refuse challenges on this ground. Chesapeake discretion.29 The action of the court in excusing a talesman will not be reviewed when it does not appear that the juror drawn in his place was biased or acted corruptly.30 The court may excuse a juror upon his own motion,31 and he may in his discretion excuse a juror after he has been sworn if he believes him to be disqualified.32

Footnote 32: The court may be disqualified, but it is not a court.

SS 5. \_The jury list and drawing the panel.33--\_Failure to conform to the statutory requirements in selecting the names for the jury list or drawing the panel is ground for challenge to the array,34 though generally the provisions of the statutes are held to be directory merely,35 and statutes prescribing who shall constitute the panel are not to be construed to deprive the judges of discretion to excuse jurors or invalidate the panel if some of its members are lost through death, sickness, or other sufficient cause.36 The conclusion of county commissioners in making up a list of properly qualified jurors is not open to question or review in the absence of evidence of bad faith.37 Statutes creating jury commissions to select names from which jurors shall be drawn are upheld.38 The participation of a commissioner before receiving his commission is not fatal,39 and the participation of the sheriff is a ministerial function which may be performed by a deputy.40 The records of the jury commissioners are not open for public inspection and a general request by the attorney for one accused of crime to be allowed to examine the list of names is properly denied.41 The including of one or more unqualified persons in the list is not fatal, the defendant having the right to examine all jurors drawn as to their qualifications.42 In the criminal prosecution of a negro, the fact that

Footnote 33: State v. Daniels, 134 N. C. 641, 46 S. E. 743; Sharp v. U. S., 134 Cl. 522, 76 P. 177. The fact that the jury was drawn by the jury commissioners for another term of court was not error, the term having been changed by the legislature. Carter, State \[Tex. Cr. App.\] 76 S. W. 437. Names drawn from the wheel, of persons who do not perform the service, are properly returned, and should then be relisted; but failure to relist them required by Ky. St. 1903, 8 2243. Covington & C. Bridge Co. v. Smith, 25 Ky. L. R. 2292, 80 S. W. 440; South Covington & C. St. R. Co. v. Schilling \[Ky.\] 80 S. W. 510. Where the court intentionally fails to appoint jury commissioners as required by statute, it is ground for a motion to quash the venue, and this notwithstanding Code Cr. Proc. arts. 651, 696 of Texas Code giving causes for challenge to the array does not include the failure to appoint jury commissioners \[Styles' Rev. St. arts. 155-1731. White v. State \[Tex. Cr. App.\] 78 S. W. 1066; Ray v. State \[Tex. Cr. App.\] 79 S. W. 535. Names of jurors who have been assigned to other branches of the court need not be placed in the box from which defendant's jury is drawn. Wikstrand v. People, 213 Ill. 72, 73 N. E. 748. Time to draw in Louisiana. State v. Aspara \[La.\] 37 S0. 883. When the statute provides that the duty of drawing the jury is to be performed by the county clerk 368 JURY SS 6. 4 Cur. Law. no negroes were drawn on the panel is not sufficient to show discrimination,\[43\] and where there is strong testimony tending to show that there are no negroes in the county qualified to sit as jurors objections founded on race discrimination in the selection of juries are without merit.\[44\] Drawings need not be secret, and are not invalidated because of the presence of persons having no duty in regard thereto.\[45\] Certiorari does not lie under Sec. 1068 of Cal. Code of Civil Procedure to review the action of a police judge in ordering the sheriff to summon a jury for the trial of a misdemeanor.\[46\]

SS 6. \_The venue and like process.\[47\]--\_The method of summoning jurors is regulated by statute in the several states,\[48\] many of the provisions thereof being regarded as directory merely,\[49\] though a substantial compliance is always required,\[50\] and some provisions are mandatory.\[51\] A special venire may be ordered before the regular panel is exhausted,\[52\] and notwithstanding the presence of additional names in the jury box of the county.\[53\] A party relying upon a statute in support of his motion for a special venire must file his motion within the time limited by statute.\[54\]

SS 7. \_Empaneling trial jury.\[55\]--\_A person on trial for a crime has a right to insist that the legal number of properly drawn jurors be tendered him,\[56\] but he

43. Carter v. State \[Tex. Cr. App.\] 76 S. 437: State v. Daniels, 134 N. C. 641, 46 S. 44. Fugett v. State \[Tex. Cr. App.\] 77 S. 44. Fugett v. State \[Tex. Cr. App.\] 77 S. 44. Fugett v. State \[Tex. Cr. App.\] 77 S. 44. Fugett v. Agent \[La.\] 37 So. 883. 44. Fugett v. Police Court of San Fran-

01. State v. Aspara \[La.\] 37 So. 883. 46. Wiltmann v. Police Court of San Fran-

01. Wiltmann v. Police Court of San Fran-

01. See 2 Cur. L. 643. 48. Mo. Rev. St. 1899, $ 2616. State v. Faulkner, 175 Mo. 546, 75 S. W. 116. In Minne-

son the discretion given the district court

52. Elias v. Territory \[Arin\] 76 P. EURS. 53. Under the Cal. Code of Civil Pro-

extends as well to the April term 1904 as to

subsequent years \[Laws 1903, 4, 6, p. 54\].rors having been drawn or not enough being

Marr v. Sherry \[Minn\]. 102 N. V. 220. 421, $ 1.07.

49. State v. Lohmann, 182 Mo. 424, $ 1.07. 1118. Mo. Rev. St. 1899, $ 2616, provides that

as list of the special venire served on the counsel for the parties before the jury is

\*worn. Held to be sufficient if a proper list
\*worn, Held to be sufficient if a proper list
is not prejudiced because some drawn in excess of the regular number are excused." The names of all the jurors in the regular panel need not be in the box when drawing is commenced," and a party may not complain because not allowed the entire panel from which to select a jury, where some of the jurors are serving in another case." In Illinois jurors drawn for the various branches of a criminal court are drawn for but one court and may serve in any branch," but in California it is reversible error to call in and empanel in one department jurors drawn for another." The fact that a juror was erroneously discharged is not ground for reversal, if no prejudice is shown." The jury in quo warranto proceedings in Georgia may be selected in the manner usual to other civil cases." It is not necessary to a legal conviction of a felony that the order empaneling the jury recite that they are good and lawful men."

SS 8. _Arraying and challenging. A. Challenge to the array._"--A challenge to the array is a proper objection to the mode of summoning jurors," but not to the qualifications of individual jurors," nor to irregularities in preparing the jury list." After the jury has been sworn, challenge to the array comes too late." (SS 8) _B. Challenge for cause. Right to a list of jurors._"--There are statutes in some states providing that parties shall be served with a list of jurors a certain length of time before trial."

_The challenge._"--The right to challenge a juror for cause may be waived," as by failure to object or challenge the juror before verdict," or failure to extend the examination on his voir dire to the matter in question;" and there is no ground for reversal in the absence of a positive showing that the disqualification of the juror was not known to the defendant nor his counsel at the time the jury was empaneled," but discovery of disqualifications is ground for a new trial, when the juror fails to disclose material facts in answer to questions sufficient to elicit the same." A challenge for cause must be supported by sufficient grounds."

SS7. Two panels were properly drawn. Two_jurors in a panel is not ground for challenge to the array; the objection were excused. Chelsey v. State \[Ga\_.\] 49 S. **E. 268**.

SS8. When the case was called for trial some of the jurors on the regular panel had been drawn to serve on a jury in another department of the court, the names of the jurors remaining in the box being lawful. The table that it was proper for the judge to order the names of the jurors, excused from the jury prevulway drawn, to be restored to the box and drawn to complete the second jury. State v. Houghton \[Or\_.\] 75 P. 887.

SS0. Rev. St. 1838, 1 1 1 3 1 3 6 Overruling a challenge for cause is harmless where the party challenging had not exercised all his peremptories when the panel was complete. \[79\]

(SS 8) \_C. Peremptory challenges and standing jurors aside. Peremptory challenges. \[80\]--The object of peremptory challenges is to insure a fair trial, not to permit the accused to choose his own jury. \[81\]\_Number allowed. \[82\]--The statutes of the several states and the United States provide what number of peremptory challenges are allowable in their several courts, the number varying in different cases. \[83\] In civil cases, persons jointly interested constitute one party and generally are allowed only one party's peremptory challenges. \[84\] The like is true of persons jointly indicted for misdemeanor. \[85\] The rule, however, is different in felony, \[86\] and where several separate indictments are tried together, the accused is entitled to the full number of peremptory challenges for each indictment; but a greater or less number of counts contained in the same indictment does not affect the right to challenge. \[87\]\_Time for challenge. \[88\]--Generally, peremptory challenges will be entertained any time before jury is accepted and sworn, \[89\] but must be interposed before it is sworn. \[88\]\_Where a juror informs the court that he has conscientious scruples about capital punishment there is no error in allowing the state to peremptorily challenge him after he has been accepted and taken on the jury. \[81\]\_Jurors out of court room. \[92\]_Order of challenges. \[93\]--The order of challenging is frequently regulated by statute, \[94\] but state statutes providing the order in which jurors shall be challenged are not binding upon Federal courts sitting in that state. \[95\]_(SS 8) \_D. Examination of jurors and trial of challenges. Challenge should precede the examination. The scope of the examination. \[96\]--The trial court exercises a broad discretion in the matter of ascertaining the fitness of persons for jury service, \[97\] though the counsel for each party must confine their examination within reasonable limits by pertinent questions subject to the court's reasonable control. \[88\] **S9. State v. Crea \[Idaho\] 78 P. 1013.**

102 N. W. 227.\*\*

80 See 2 Curr. L. 645.\*\*

81 In Rhode Island where the statute provides for peremptory challenges in proportion to the whole number of jurors drawn, this does not include jurors challenged for cause. Stevens v. Union R. Co. \[R. I.\] 58 A. 492.\*\*

82 See 2 Curr. L. 645.\*\*

83 In Ohio a defendant in a criminal case for other than a capital offense is entitled to but two peremptory challenges. Rev. St. 5 5171, as amended Apr. 29, 1902, does not apply to criminal cases. Stevenson v. State, 70 Ohio St. 11, 70 N. E. 610.\*\*

84 When land involved in condemnation, proceedings consists of but one tract owned by several persons, they are entitled to only three peremptory challenges, under a statute providing that each party interested shall be entitled to three peremptories. Illinois, etc. R. Co. v. Freeman, 210 Ill. 270, 71 N. R. 44.\*\*

85 Cochran v. U. S. \[Okl\] 76 P. 672.\*\*

86 Each of two or more defendants in a criminal charge is entitled to the full number of peremptory challenges \[provided under Mills' Ann. St. Col. $ 2696\]. Carpenter v. People, 31 Colo. 284, 72 P. 1072.\*\*

87 Betts v. U. S. \[C. A.\] 132 F. 238.\*\*

88 See 2 Curr. L. 646.\*\*

89 State v. Crea \[Idaho\] 78 P. 1013.\*\*

90 Where defendant offered to substanidate his objection by evidence, but was not then able to produce it, the evidence cannot be heard after the jury is sworn (State v. Lyons, 70 N. J. Law, 635, 58 A. 398; People v. Borstorm, 178 N. Y. 254, 70 N. E. 780), and after the clerk has commenced to administer the oath they come to late (State v. Lyons, 70 N. J. Law, 635, 58 A. 398).\*\*

91 Brewer v. State \[Ark.\] 78 S. W. 773.\*\*

92 We see 2 Curr. L. 646.\*\*

94 N. Y. Code Cr. Proc, $ 385. Radford v. U. S. \[C. C. A.\] 125 F. 49.\*\*

95 Although it may properly be follow-ed, it is too late for defendant to object to order of challenging after he has exhausted his own challenges \[Code Cr. Proc, N. Y. $ 385\]. Radford v. U. S. \[C. C. A.\] 125 F. 49.\*\*

96 See 2 Curr. L. 647.\*\*

97 South Covioration & C. St. R. Co. v. Weber \[Ky.\] 82 S. W. 986.\*\*

98 A party should to enable him to exercise his peremptories be permitted to ask if any business relations exist between the juror and the opposite party to the action. But its refusal * Cur. Law. JURY SS 9.

A juror cannot upon his voir dire be questioned about his verdict in a prior case,"90 nor as to his conception of a reasonable doubt,1 nor as to whether he would believe a certain witness on oath.2 They may be asked if they are stockholders in a company which indemnifies defendant,3 Prosecutor may waive his right to examine jurors on their general qualifications,4 and the question cannot be raised after verdict found.5 A juror is not guilty of misconduct by making an answer claimed to be untrue, where he did not intend to lie, but the question of counsel was leading.6 It is not-error for the court to receive affidavits of the character of a juror who had sworn falsely on his voir dire, and whose credit and veracity was attacked.7

Footnote 10: Parrish v. State, 139 Ala. 16, 36 So. 10112.

\_Further examination after jurors are passed discretionary with court.8--\_The court may permit a juror to be examined again and challenged for cause after he has been passed, where the court and parties have been misled by his answers and it is found that he is disqualified,9 but permission to re-examine is not of right.10 Where a jury has found against the defendant in a special issue, defendant is not entitled to re-examine the jury as to its qualifications to sit and try the remaining issues.11

Footnote 10: Parrish v. State, 139 Ala. 16, 36 So. 10112.

\_Tribunal for trial of challenges.12--\_When the disqualification of a grand juror is raised by plea in abatement, a jury may be called to determine upon the truth of the alleged disqualifications.13

Footnote 10: Parrish v. State, 139 Ala. 16, 36 So. 10112.

\_Review on appeal of findings of trial court.14--\_The statutes in some states provide that the decisions of the trial court upon challenge to the panel and for cause upon motion to set aside an indictment or upon motion for new trial shall not be subject to review,15 and generally the appeal court will not review lower court's holding in refusing a challenge where the persons challenged did not serve on the jury,16 or an exception has not been taken,17 or the parties do not allege that their cause was prejudiced by the ruling.18

Footnote 10: Parrish v. State, 139 Ala. 16, 36 So. 10112.

\_When improperly overruling challenge is ground for setting aside verdict.10--\_Refusal to sustain a challenge is not ground for reversal where a jury is secured before defendant exhausts his peremptories.10

Footnote 10: Parrish v. State, 139 Ala. 16, 36 So. 10112.

Footnote 11: Parrish v. State, 139 Ala. 16, 36 So. 10112.

Footnote 12: Parrish v. State, 139 Ala. 16, 36 So. 10112.

Footnote 13: Parrish v. State, 139 Ala. 16, 36 So. 10112.

Footnote 14: Parrish v. State, 139 Ala. 16, 36 So. 10112.

Footnote 15: Parrish v.

the regular panel are drawn from the petit jury box for a particular case, they become, as to that case, a part of the regular panel, and talesmen are not authorized until they are exhausted.\[23\] In Louisiana although jurors are ordered by the court to be drawn from the parish at large and not from the bystanders, they are nevertheless talesmen,\[24\] and their names are not to be placed in the box with the regular panel.\[28\]

\_Method of selecting talesmen.\[29\]--\_Where the statute authorizes it, there is no abuse of discretion in refusing a second drawn jury and ordering the sheriff to summon talesmen though the trial is for the murder of another sheriff.\[27\] The fact that officers who selected talesmen were not sworn, will not be considered on review, where no exception has been saved.\[28\] In Indiana the manner of filling vacancies occurring in the regular panel of a petit jury is within the discretion of the court.\[29\]

SS 10. \_Special and struck juries and juries of less than twelve.\[30\]--\_Where the statutes provide for special juries, the demand therefor must be seasonally made,\[31\] and in West Virginia the motion is addressed to the sound discretion of the court.\[32\] In several states the statutes provide for special venties in capital cases,\[33\] but the right to a special ventie is waived by consent to have the jury drawn from the regular panel.\[34\]

SS 11. \_Swearing.\[35\]--\_Where one or more jurors have, by mistake, been sworn with the others, if before proceeding farther with the case they are discharged and others who have been agreed upon are sworn in their places, there is a good jury.\[36\] It is not necessary that the oath prescribed for jurors in civil cases should have been administered to a jury empaneled to try criminal cases,\[37\] nor is it necessary that the form of oath be entered on record.\[38\] It is sufficient if the record shows that the jury was duly sworn.\[39\]

SS 12. _Compensation, sustenance, and comfort of jurors.\[40\]_

JUSTICES OF THE PEACE.

SS 1. **The Office (373).**

SS 2. **Compensation, Duties and Liabilities**

SS 3. **Civil Jurisdiction (374).**

SS 4. **Precature in Justices' Courts (376).**

drawn after the term begins, it appearing that those drawn at the regular drawing and a previous additional drawing will be insufficient \[Gen. St. 1901, SS 3815\]. State v. Davis, 67 Kan. 545, 73 P. 87. Whether summoned from the body of the county or drawn from the talesman's box 1s discretionary with the court \[Code, 349\]. State v. John \[Iowa\] 100 N. W. 193. Jurors drawn from the wheel are talesmen within the meaning of Rev. St. St. 6425, providing for the filling of vacancies. Hosbrook, V. Loveland & C. T. Co., 5 Ohio C. C. (N. S.) 208.\*\*

SS 23. **State v. John \[Iowa\] 100 N. W. 193.**

SS 24,25. **State v. Bordehn \[La.\] 37 S. 603.**

SS 26. **See 2 Curr. L. 650.**

SS 27. **People v. Suesser, 142 Cal. 344, 75 P. 1093.**

SS 28. **Chism v. State \[Tex, Cr. App.\] 78 S. W. 949.**

SS 29. **Michigan City v. Phillips \[Ind.\] 71 N. E. 205.**

SS 30. **See 2 Curr. L. 650.**

SS 31. **A case once placed on the calendar to be tried by a general jury cannot be tried by special jury except by consent. Rauche v. Blumenthal, 4 Pen. (Del.) 621, 57 A. 388.**

SS 32. **The State v. Blumenthal, 4 Pen. (Del.) 621, 57 A. 388.**

SS 33. **The State v. Blumenthal, 4 Pen. (Del.) 621, 57 A. 388.**

SS 34. **The State v. Blumenthal, 4 Pen. (Del.) 621, 57 A. 388.**

SS 35. **The State v. Blumenthal, 4 Pen. (Del.) 621, 57 A. 388.**

SS 36. **The State v. Blumenthal, 4 Pen. (Del.) 621, 57 A. 388.**

SS 37. **The State v. Blumenthal, 4 Pen. (Del.) 621, 57 A. 388.**

SS 38. \*\*The State v. Blumenthal, 4 Pen.

- 4 Cur. Law. JUSTICES OF THE PEACE SS 3. 373

- 1. _The office._**1--A justice is commonly a civil magistrate, but has duties imposed upon him in connection with the administration of the criminal law.**2** It is within the power of the legislature to abolish his office**3\*\* unless its existence is constitutional.**4** When a justice's district is abolished, his office necessarily ceases to exist;**5** but a county court made up of justices is not abolished by extinguishing the office of a part of the justices composing it.**6** In some states he is required to be commissioned by the governor.**7** The legislature can provide for the appointment of no more justices than is allowed by the constitution.**8** A state constitution directing the election of justices of the peace repeals statutes that vest other persons with similar judicial powers.**9** In a justice's court an attorney is one of fact and not of law.**10** In Connecticut his court is a court of record.**11**

- 2. \_Compensation, duties and liabilities.\_12--Though compensated by salary for entertaining a certain class of cases, he is entitled to the fees provided by law when he hears a cause not exclusively within his jurisdiction.**13** Changing the method of ascertaining his compensation from fees to salary is not a violation of a constitutional provision prohibiting an increase after election, it not being shown that compensation was thereby increased;**14** but providing that he shall receive not to exceed a certain amount in fees violates a provision that compensation of public officers shall be regulated in proportion to their duties.**18** In Oregon he is entitled to fees for services performed by him as a committing magistrate,**19** and an action at law may be maintained to recover them.**17**

- 2. **In disposing of any cause properly before him, he acts as a judicial officer**18\*\* and is not personally liable for erroneous judicial acts,**19** and if in exercising a jurisdiction which does not belong to him, he issues an illegal order, it is not to be treated as so absolutely void as to afford him no protection for what may be done under it;**20** but where he acts wholly without jurisdiction, he is a trespasser.**21**

- 1. **See 2 Curr. L. 651.**

- 2. **See** **Indicment and Prosecution, 2 Curr. L. 807. Ormond v. Baul, 120 Ga. 916, See 2 Curr. L. 655.**

- 3. **The legislature has power to redistrict a county and abolish the office of Justice in districts extinguished. State v. Akin (Tenn.) 79 S. W. 805. Legislation abolishing the district of a justice abolishes his office. State v. Sawyer, 139 Ala. 138, 36 So. 545.**

- 4. **Under a constitutional provision that there shall be a justice's court in every township, a statute abolishing townships and creating another from the territory is not void on the ground that it attempts to abolish justices' courts. Proulv. V. Graves, 143 Cal. 243, 76 P. 1025.**

- 5. **Acts 1903, abolishing civil districts in certain counties.** **Granger County v. State (Tenn.) 80 S. W. 750.**

- 6. **State v. Akin (Tenn.) 79 S. W. 805.**

- 7. **Abrams v. State \[Ga.\] 48 S. E. 965.**

- 8. **Granger County v. State \[Tenn.\] 80 S. V. 750.**

- 9. **Section 21, art. 6, of Constitution of 1870, repeals section of city charter giving the president of the city council exclusive jurisdiction in cases of violation of city ordinances and concurrent jurisdiction with justices in other cases. City of Windsor v. Cleveland, etc.; R. Co., 105 Ill. App. 46.**

- 10. **Cutting v. Jessmer, 91 N. Y. S. 658.**

- 11. **McVeigh v. Ripley \[Conn.\] 58 A. 701.**

- 12. **See 2 Curr. L. 652.**

- 13. **City Justice. Timmony v. Salt Lake City \[Utah\] 78 P. 799.**

- 14. **McCauley v. Culbert, 144 Cal. 276, 77 P. 923.**

- 15. **State classifying townships according to population and fixing the amount. Tucker V. Barnum, 144 Cal. 266, 77 P. 919.**

- 16. **Examination of a charge of criminal**

- 17. **Wallows County v. Oakes \[Or.\] 78 P. 892.**

- 18. **He holds a court of record. McVeigh v. Ripley \[Conn.\] 58 A. 701.**

- 19. \*\*Paying over money paid Into court before expiration of time for appeal.

He is not liable on his official bond for an act done in a different capacity,"21 but sureties on his bond are liable for wrongful acts committed under color of office.22

Footnote 22: The word $\\mathcal{L}$ is the word $\\mathcal{L}$.

SS 3. \_Civil jurisdiction.24--\_Jurisdiction of a justice is statutory.25 Its exercise is usually confined to his district,26 but may embrace extra-limitary causes of action or parties,27 if either the subject-matter or the parties be within the jurisdiction.28 Special jurisdiction is limited to the terms of the act.29 He has no equity jurisdiction.30 In Missouri he has no jurisdiction of a motion to quash an execution.31 Where a justice is provided for a new district, the whole jurisdiction pertaining to his office attaches.32 If he assumes jurisdiction in cases not authorized, his acts are void;33 but the bringing of an action in an improper court is not a jurisdictional defect where the court has general jurisdiction of the subject-matter.34

Footnote 22: The word $\\mathcal{L}$ is the word $\\mathcal{L}$.

with this charge but a fine was imposed for theft and defendant committed until theft one should be paid. Held, the justice was created, in such adjoining town confers not liable for false imprisonment. McVelgh \[28\]. Has jurisdiction of an action against a domestic corporation either in the county v. Clarke \[Wis.\] 98 N. W. 952.

23. Justices who ex officio constitute the fiscal court, in levrying taxes, act in a legislative capacity. Not liable on their official bond for levrying an unconstitutional del Grocery Co. v. Warder \[W. Va.\] 49 S. E.

01. Commonwealth v. Kennedy \[Ky.\] 82 S. W. 237.

01. Falsely certifying that the wife of the mortgagor acknowledged the mortgage before him \[Code 1896, $ 3087\]. Crosthwal v. Pitts, 139 Ala. 412, 36 So. 83.

01. See 2 Curr. L652.

01. In Georgia by the constitution. Ormond v. Ball, 120 Ga. 916, 48 S. E. 283.

01. NOTE. Place at which he may act generally his official acts must be done within the territorial limits of his district. He cannot, in Kansas, hold court outside his township. Phillips v. Thralla, 26 Kan. 780.

01. Sec, also, School Dist. No. 50 v. Roach, 41 Stan. 851. In Texas his acts are void where he holds court outside his district by consent of the parties. Foster v. McAdams, 9 Ville Bros. v. Varner \[Ga.\] 49 S. E. 713.

01. Rev. Stat. 1899, $ 337, prescribing his other states. Learned v. Riley, 14 Allen \[Mass.\] 109; Hughes v. Melville, 60 III. App. 419.

01. In People v. Keeler, 25 Barb. \[N. Y.\] 426, it was said that he cannot try civil causes outside his town, though his jurisdiction is coextensive with the county in which he resides. If rendered within his district, a judgment may be written out and signed in another place. Rylas v. McArthur, 92 Ga.

01. Carr v. Pennsylvania R. Co. \[Mo.\] 43.

01. In New York, justices of towns provided by general legislation have no jurisdiction of a cause unless one of the parties he a resident of such town. People v. Mill, 97 App. Div. 35, 89 N. Y. S, 601. Charter of the city of Hornellsville, providing that justifies of said city should have the jurisdiction of justices of the several towns of the state, and where either of the parties resided in any town in Stuben county adding in the town of Hornellsville, is constitutional. Lantz v. Galplin, 44 Misc. 356, 89 N. Y. S. 1096. Such a court is not an inferior local court within the meaning of Const. Art, 6, 18. Id. Service of summons on a 4 Cur. Law. JUSTICES OF THE PEACE SS 3.

Jurisdiction may be gained by process against persons\[85\] or property,\[38\] or by appearance.\[37\] Once gained, it continues until legal disposition of the case.\[88\] Any postponement or continuance outside the terms of statutory authority divests it.\[39\] He loses jurisdiction by absence on the trial day,\[40\] unless the parties appear and stipulate for a continuance,\[41\] but not by nonappearance of the parties,\[42\] and where jurisdiction of the person is lost by defective proceedings or irregularities, it may be restored by appearance or waiver.\[43\] Jurisdiction lost because of unlawful adjournment is not restored by a party's subsequent participation in the trial.\[44\]

\_Residence determining jurisdiction.\[45\]--\_Under some statutes residence of either party suffices,\[46\] and one may sue though not a resident.\[47\] Generally a party has a right to be sued in the county of his residence.\[48\]

_The amount in controversy\[48\]_ is measured by the amount of the demand of the pleading or action\[49\] or of a set-off\[50\] or plea of reconvention,\[51\] and the amount thereof is not lessened by credits admitted.\[52\] In Texas it is held that jurisdiction is determined by the amount alleged and not the amount prayed for,\[53\] hence by praying less than is due, jurisdiction cannot be given.\[54\] If on every construction of the demand the amount with the interest claimed exceeds the jurisdiction.\[\] tional amount, the justice of the peace is ousted."5 A single cause of action cannot be split so as to make the amount within the jurisdiction,"6 but where items of a claim have been incurred under different contracts and the aggregate exceeds the statutory amount, an action may be maintained on each item separately."7 In the absence of statute, jurisdiction cannot be ousted by filing a counterclaim for an amount beyond his jurisdiction."8 The statutory limit as to amount in justice courts does not apply to forcible detainer actions, nor can a cross demand of any kind be set up therein."9

\_Title to reality_6 is involved in action for damages for breach of a personal covenant, where such breach consists of an eviction by one having a paramount title,"1 but not in repelvin for a deed."2 An action to recover the purchase price paid, after the contract is at an end, is not an action founded "on a contract for real estate."8 Where allegations of title64 can be put in issue only in a specified way, the failure to do so leaves them admitted and the jurisdiction unaffected."9

\_Objections to the jurisdiction_64 are waived by pleading and submitting to a trial on the merits of the case."7 A special appeal on the ground of want of jurisdiction is waived by pleading to the merits and going to trial in the circuit court.64 An objection that an action was commenced in the wrong county may raise not only a question of law but one of fact, and entitle defendant to a judgment of nonsuit, though he does not defend on the merits."9 Where jurisdiction is asserted by one party and denied by the other, the evidence should be heard."9 The facts involved may be decided by the justice on plea to his jurisdiction by reason of nonresidence."11

Footnote 64: The author is grateful to the anonymous referee for the support of this work.

Footnote 65: The author is grateful to the anonymous referee for the support of this work.

Footnote 66: The author is grateful to the anonymous referee for the support of this work.

Footnote 67: The author is grateful to the anonymous referee for the support of this work.

Footnote 68: The author is grateful to the anonymous referee for the support of this work.

Footnote 69: The author is grateful to the anonymous referee for the support of this work.

Footnote 70: The author is grateful to the anonymous referee for the support of this work.

4 Cur. Law. JUSTICES OF THE PEACE SS 4. 377

Change of venue15 must be taken to the place prescribed by law.76 On refusing to pay costs of transcript made prerequisite for change of venue, the original justice should proceed to trial.77 In such case oral notice to attorney that the trial will proceed suffices.78

Transfer of causes.--In New York a justice has no power to transfer an action from himself to another justice unless his term of office is about to expire,79 and in no event can he transfer a cause without notice to the defendant.80 Notice of date of trial of a transferred cause should be served on the parties, not on their attorneys.81 In Nebraska the sickness or necessary absence which authorizes the calling in of another justice is such as occurs at the time appointed for trial.82 After a transfer, parties are not charged with notice of what the justice does in the case.83

Contempt.84--In Massachusetts a justice cannot commit for contempt a witness who refuses to answer an interrogatory put to him.85

Attachment and garnishment86 have in their general features been treated of in other topics.87 Public notice of the goods and chattels attached must be posted as required by law.88 An affidavit of attachment cannot be amended so as to state a cause of action different from that stated in the original affidavit.89 Where an attachment is properly issued and property taken thereunder, the lien is not lost by failure of the justice to make proper docket entries of the issuance of such order of attachment.90 A f. fa. issued on a judgment is sufficient evidence of the judgment against the principal debtor.91 A judgment rendered against a garnishee before judgment rendered the principal defendant is void.92

Process and appearance.89--Process must be served as required by law,94 and if the manner of serving is mandatory, it must be strictly pursued.85 New notice is necessary after continuance beyond the statute.86 Ministerial duties relative

requires only substantial compliance, and

85. Stattutes construed. Lawson v. Row-an entry within two or three days is sufficent, Hall v. Tuttle, 6 RHII (N. Y.), 38, 40

1860, c. 120, $ 50, giving justices power to Am. Dec. 382; Conwell V. Knyckendall, 29

1901, chollical proceedings, if applicable to taking Currey \[Or.\] 87 Am. St. Rep. 672.

75. See 2 Curr. L. 655.

01. Gen. Laws 1897, c. 151, p. 285, providing that a change of venue may be taken to a justice of the same village or to a justice of the town adjoining the village, does not mean to a justice of a town adjoining the twoin which the village is located. V8-dena Cracker Co. v. Gaylord \[Min.J. 101 N. W. 72. The town within which the village is located is an adjoining town. Id.

01. Rev. St. 1887, $ 4643, subd. 1. Presley v. Dean \[Idahol\] 79 P. 71.

01. Presley v. Dean \[Idahol\] 79 P. 71.

01. The mere appointment to the office of city recorder does not cause his term to expire. De Zur v. Provost, 90 N. Y. S. 1016.

Nor is his resignation an expiration of his term. Id.

80. Though no statutory provision is made therefor. De Zur v. Provost, 90 N. Y. S. 1016.

01. Notice required by Rev. St. 1899, $ 3974.

01. Cullen v. Callison \[Mo. App.\] 80 S.

01. Has no application to a proceeding to revive a dormant judgment. Resley Institute v. Riggs \[Neb.\] 93 N. W. 833.

01. Schiele v. Thede \[Iowa\] 102 N. W. 133.

01. See 2 Curr. L. 655.

01. Stattutes construed. Lawson v. Row-an entry within two or three days is sufficent, Hall v. Tuttle, 6 RHII (N. Y.), 38, 40

1860, c. 120, $ 50, giving justices power to Am. Dec. 382; Conwell V. Knyckendall, 29

1901, chollical proceedings, if applicable to taking Currey \[Or.\] 87 Am. St. Rep. 672.

75. See 2 Curr. L. 655.

01. See 2. Curr. L. 656.

01. See Attachment, 3 Curr. L. 353; Garishment, 3 Curr. L. 1560.

01. Where the record does not show this, the judgment is void. Burton v. Frame \[Del. Super\]. 58 A.

01. Westover & Co. v. Van Dorn Iron Works Co. \[Neb.\] 98 N. W. 598.

01. First Nat. Bank v. Hesser \[Okt.\] 77 P.

01. Travis v. Chambers \[Ga.\] 48 S. E.

01.

01. Burton v. Frame \[Del. Super.\] 58 A.

01.

01. See 2 Curr. L. 655. Also the general topics Appearance, $ Curr. L. 300; Process, 2 Curr. L. 1259.

01. Wood v. Callaway, 119 Ga. 801, 47 S.

01. Copy of complaint to process may be delegated."7A facsimile signature is a sufficient subscription."88In Michigan, service of process on one joint debtor is sufficient to give jurisdiction of all."99There must be a legal return of service.1 The return may be amended after the action has begun,2 but not after judgment without notice to the parties.3Under a statute providing that where an action is brought upon a contract against two or more persons, one of whom shall not be found in the county where suit was brought, the justice may at any time within four days from the return day of a writ by which the action was commenced issue one or more alias writs of summons, the return day of the writ should be counted as one of the four,4 and it is not necessary in order that the alias writs should issue that the officer's return should state that he had used due diligence to obtain personal service and that being unable to find defendant, he left a copy of the summons at his last place of abode.5

Footnote 10: http://www.stsci.edu/~f/f 4 Gur. Law. JUSTICES OF THE PEACE SS 4. 379

however, be set forth with some degree of certainty.\[15\] An informal or defective statement will be held sufficient after judgment.\[16\] No prayer for relief not specifically asked for will be read into a pleading,\[17\] but in the absence of a reply, a general denial to a counterclaim will be presumed.\[18\] A defendant is not required to file a written pleading;\[19\] without it he is entitled to show all facts tending to negative the plaintiff's right to recover,\[20\] and on appeal, a general denial is not a departure from the issues presented,\[21\] but if an answer is filed it will limit the issues as under the ordinary rules of pleading.\[22\] A plea of guilty can properly be put in only when the offense charged is one within his final jurisdiction.\[23\] Suit on an unverified account may be met by an unverified plea.\[24\] In Georgia, to admit disproof of a sworn open account sued on, the answer must be verified.\[25\] A statute providing that in certain actions against a corporation the plaintiff may take judgment by default unless the defendant serves with his pleading a copy of the order of the judge directing that the issues be tried does not apply to an action before a justice.\[20\] Under a statute providing that where title comes in question the defendant shall give bond, pay a fee for certifying the cause, etc., the justice does not lose jurisdiction unless the bond is approved and amount sufficient to pay the costs deposited.\[27\]

_Evidence.\[28\]--Where suit on an unverified account has been personally served and the same is met by no defense, silence is to be treated as an admission of the correctness of the account.\[29\] A verified account attached to the summons performs the office of evidence.\[30\]_

_Trial by jury\[30\]_ as a matter of right or propriety is fully treated in another place.\[31\] Under the Georgia practice of appealing to a jury, an appeal from a judgment against a municipal corporation must be entered in the name of the corporation.\[22\] A plea cannot be filed on an appeal to the jury when it appears

half per cent on selling price, $4.300, $107.-50" is sufficient. Smith v. Truit \[Mo. App.\] 80 S. W. 686.

**15.** Civ. Code 1895, $ 4116. Macon & B. R. Co. v. Walton \[Ga.\] 48 S. E. 940. When action is brought on an account, a copy thereof must be attached to the summons. Thom. as v. Forsyth Chair Co., 119 68. 693, 46 S. E. 869. Complaint to enforce a mechanales' line which does not allege an indebtedness in insufficient to sustain a judgment by default. Smith v. Frank Gardner Hardware Co., 83 Miss. 654, 86 S. 9.

**16.** Action for damages by trespassing cattle. Young v. Prentice, 105 Mo. App. 563, 80 S. W. 16. Complaint held sufficient when attacked for the first time after judgment. Kubesh v. Hanson \[Minn.\] 101 N. W. 73.

**17.** Where no written plealings are filed, the amount in controversy is the amount fixed by the stated demand. Western Union Tel. Co. v. Garner \[Tex. Civ. App.\] 83 S. W. 433. No charge for Interest would be read into the account so as to confer jurisdiction on the appellate court. Id.

**18.** Schergen v. Baerweldt Const. Co. \[Mo. App.\] 83 S. W. 281.

**19.** 20, 21. Mullins v. South Omaha Street Fair Assn \[Neb.\] 99 N. W. 521.

**22.** Ultra vires not being specially plead-ed could not be avilled of. Royal Fraternal Union v. Crosler \[Kan.\] 78 P. 162.

**23.** MeVeigh v. Ripley \[Conn.\] 58 A. 701.

**24.** Under a practice requiring a verified copy of an account sued upon to be served with the summons. Peeples v. Sethness, 119 Ga., 777, 4 S. E. 170.

**25.** Civ. Code 1895, $ 413. Stafford v. Wilson \[Ga.\] 49 S. E. 800.

**26.** Center v. Hooseick River Pulp Co., 43 Misc. 247, 88 N. Y. B. 548.

**27.** Comp. Laws, $ 782-784. Hinhenman v. Spaulding \[Mich.\] 100 N. W. 901. Complaint under Comp. Laws 1897, $ 11204, to recover treble damages for cutting down and carry-ing away trees, alleging that defendant cut down trees on the land of said plaintiff, is not an allegation of title to the land within $ 786, providing that a claim of title made by plaintiff shall be deemed admitted by default unless he files a bond, pays fees and costs, etc. Reynolds v. Maynard \[Mich.\] 100 N. W. 174. If the complaint alleges title and the defendant fails to file a bond, pay fees and costs, he must be deemed to admit title in plaintiff. Id.

**28.** See generally. Evidence, 3 Curr. L. 1334; Witnesses, 2 Curr. L. 2163, and the topics relating to that which evidence is offered to provo.

**29.** Plain that no defense was made at or before the first term of the case.\[33\] Omission of the juror's name from the list is ground for challenge in Georgia,\[34\] but advantage cannot be taken of it after verdict, even if the party was ignorant of the omission.\[35\]

\_Verdict and judgment.\[88\]-A general verdict rendered in a case where the evidence fails to support one of the causes of action alleged is bad.\[37\] Ordinarily, the judgment must be entered within the time provided by statute.\[88\] The period does not commence to run until after final submission of the cause.\[39\] The entry being a purely ministerial act,\[40\] failure to do so does not render the judgment void,\[41\] especially when by consent of the parties the case is taken under advisement for a time,\[42\] unless the statute makes entry part of rendition. This requirement may be waived by the parties.\[43\] A statute under which an attorney may enter judgment on a verdict does not deprive the justice of power to do so.\[44\] Judgment entered without notice before return day is erroneous, though it was not permissible to set a day so late.\[45\] Where there is a duty to enter judgment, mandamus will lie to compel him to do so.\[46\] A judgment founded on a complaint not stating a cause of action is a nullity.\[47\] A judgment cannot be rendered for plaintiff for the sum demanded and in favor of the defendant for costs.\[48\] Questions as to the description or misjoinder of the parties\[49\] and the fact of personal service are concluded by the judgment.\[50\] A judgment is not rendered subject to collateral attack by reason of a nonprejudicial defect in the original notice,\[81\] nor by the fact that it was prematurely entered.\[52\] The statutory requirements necessary to revive a judgment must be complied with in order to give the justice jurisdiction.\[88\] Suit to set aside a judgment must be brought within the prescribed period.\[54\]

33. Morgan v. Cohutta, 120 Ga. 423, 47 S.

ance with the statute because of nonappearance of plaintiff, mandamus will issue to compel him to do so on his subsequent refusal. Barlow v. Riker \[Mich.\] 101 N. W.

36. See 2 Curr. L. 659. See, also, Judg-

01. Under Comp. Laws, $ 836, it is his

ments, 4 Curr. L. 287.

37. New trial will be granted as to all causes alleged. Jones v. Atlantic Coast Line

01. Nenno v. Chicago, etc., R. Co., 105

R. Co. \[S. C.\] 49 S. E. 568.

38. Otherwise there is no jurisdiction. Young v. Joseph Bros. & Davidson \[Neb.\] 59

N. W. 522.

39. Keeley Institute v. Riggs \[Neb.\] 99 N. W. 833.

01. Cincinnati, etc., Packet Co. v. Bellville \[W. Va.\] 47 S. E. 301.

01. Statute required the judgment to be entered within 24 hours. It was not entered for three days. Cincinnati, etc., Packet Co. v. Bellville \[W. Va.\] 47 S. E. 301. Substantial compliance with the statute is all that is required. Id.

01. Under a statute requiring the judgment to be filed within 4 days, a justice

does not lose jurisdiction to enter judgment. Westover & Co. v. Van Dorn Iron Works Co. \[Neb.\] 97 N. W. 598.

43. Record contained a statement that the case was deemed submitted as of a date later than that of trial. No objection was made. Bastable v. Cuba Supply Co., 43 Misc.

89, 86 N. Y. S. 791.

44. Civ. Code, $ 5339. Levadas v. Beach,

119 Ga. 613, 46 S. E. 864.

45. Odom v. Carmona \[Tex. Civ. App.\] 83

S. W. 1100.

46. Where & justice orally announced his determination to enter judgment in accord-

01. Nune v. Justice orally announced his determination to enter judgment in accord-

01. Nune v. Cohutta, 120 Ga. 423, 47 S.

ance with the statute because of nonappearance of plaintiff, mandamus will issue to compel him to do so on his subsequent refusal. Barlow v. Riker \[Mich.\] 101 N. W.

820. Under Comp. Laws, $ 836, it is his

duty to enter judgment of nonsuit where the

parties fail to appear. Id.

47. Nenno v. Chicago, etc., R. Co., 105

Mo. App. 540, $ 8. W. 24.

48. Burton v. Frame \[Del. Super.\] 58 A.

01.

01. Peeples v. Sethness Co., 119 Ga. 777,

47 S. E. 110.

50. Where service was by leaving a copy at the anode of defendant who did not appear, a judgment for plaintiff is conclusive against an afflawit of illegality based on the ground that no evidence was introduced and want of personal service. Brown v. Webb \[Ga.\] 48 S. E. 917. See, also, Former

A Adjudication, 3 Curr. L. 1476.

51. Failure to sign an original notice as prescribed by statute. Loughgren v. Bonni-

well & Co. \[Iowa\] 1 4 Cur. Law. JUSTICES OF THE PEACE SS 5. 381

In Mississippi judgment may be enrolled in any county in the state.\[88\]

_A default judgment_\[55a\] must be based on the relief demanded by the pleadings.\[88\]

If not, the defect may be shown in a suit to restrain its enforcement.\[97\] A judgment entered for nonappearance is not a judgment by default where the defendant has filed an answer putting in issue the material allegations of the complaint.\[88\]

\_Judgment by confession.--\_Where defendant, in obedience to process, appears and orally admits his liability, the judgment entered is a judgment by confession.\[99\] In Missouri, confession of judgment need not be in writing if defendant appear.\[90\]

_Execution_\[61\] must be issued within the time limited by statute after judgment entered,\[82\] and be executed as provided by law.\[93\] An execution may be issued from the district court, though the amount is not within such court's jurisdiction.\[94\] Under the Tennessee law a levy from a justice is not a lien on land as to third persons after ten days, unless the execution and papers are filed and docked in the circuit court.\[68\] In Georgia, in order to arrest the running of the dormancy statute, entries on the execution must be recorded on the execution docket of the superior court of the county of the defendant's residence.\[95\]

\_Costs.\[97\]--\_A general statute limiting costs is not applicable to a special proceeding in which the justice is given jurisdiction.\[98\] Failure to give security for costs is not ground for reversal where such failure was the result of conduct of the other party.\[99\] A statute preventing a reversal for improper allowance of fees does not cover a case expressly governed by another statute for costs generally, where the question does not come up on particular allowances which the justice had power to consider.\[99\]

SS 5. \_Appeal and error.\[93\]--\_The right of appeal may be exercised only in obedience to statutory regulations.\[92\]

SS 5. On filling an abstract with the clerk\[\] ministerial. Joseph Spidel Grocery Co. v. of court \[Code 1892, 1 2413\]. Wise V. Keer\[W. Va.\] 49 S. E. 634. Thread Co. \[Miss.\] 36 So. 244. 65. More deposit of the execution with the circuit clerk is not enough. Thompson\[66\]

SS 6. A claim on an account for services rendered well out authorise the entry of a default judgment for labcrovers' wages. Phill- lips v. Norton (B. D.) 101 N. W. 727. 67. See 2 Curr. L. 660. 68. Actuachment La Goo v. Seaman\[Mich.\] 98 N. W. 383. 69. Where offer to give security was made, he made no response. Hirsh v. Flash- lur (Mich.) 101 N. W. 48. Statute providing that if a party refuses to accept an offer to allow judgment he shall be inable for costs unless the recovery should be more favorable to him than the offer. Lawson v. Speer, 91

SS 6. A. 65.

There must be an appealable judgment." Appeal lies from final judgments"4 and orders,"5 and is sometimes restricted in particular cases."6 By trying the merits an appeal reaching jurisdiction is waived."7 Appeal lies from the over-ruling of plea to the jurisdiction."8

Only parties affected by the judgment appealed from are necessary." One co-defendant may appeal without joining the others."6 The afflavit of appeal must be filed as required by law."8

_Bonds._"--In some states an appeal bond is necessary to give the appellate court jurisdiction."8 In others, jurisdiction may not be ousted, but may be rendered ineffectual by want of a sufficient bond."4 The bond must correctly describe the judgment appealed from"8 and undertake to do what is prescribed by the statute,"8 and where the case is heard by a substitute justice, should be perfected before the one originally having jurisdiction."7 The appellant should, in good practice, sign the appeal bond;"8 but where the bond is given at his instance and signed by the surety, the appeal should not be dismissed because of his failure to sign."9 Unless so provided it need not be approved by the justice,"9 in which case he may require some evidence of the solvency of the sureties before granting the appeal."1 A party is entitled to a reasonable time to provide bondsmen."9 When excepted to, the sureties must justify within the time allowed by law."9

73. Query whether quashal of landlord?' |taken as in criminal prosecutions. Fortune attachment for rent before judgment is final and appealable. Robertson v. Southerland, |S2. See 2. Curr. L. 662. 22 App. D. C. 595. 3. A bond running to the wrong obligee cannot be amended after time for filing the a motion to quash an execution. Carr v. |bond has expired. Sutton v. Bower |Towal Pennsylvania R. Co. |Mo. App.J. 83. S. W. 981. 984. 104. 11. 12. 13. 14. 15. 16. 17. 18. 19. 19. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 21. 23. 24. 26. 28. 29. 22. 23. 24. 27. 28. 29. 23. 25. 26. 29. 24. 27. 28. 29. 25. 29. 26. 27. 28. 29. 29. 28. 29. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 51. 53. 59. 52. 54. 56. 58. 59. 52. 59. 53. 54. 57. 59. 54. 58. 59. 50. 51. 54. 59. 52. 55. 56. 59. 57. 58. 59. 59. 50. 51. 52. 51. 53. 54. 59. 51. 55. 57. 59. 52. 58. 59. 51. 59. 52. 53. 54. 59. 51. 55. 59. 52. 56. 59. 53. 57. 59. 54. 58. 59. 51. 59. 52. 51. 53. 54. 59. 55. 56. 57. 59. 58. 59. 59. 51. 59. 52. 51. 53. 54. 59. 51. 55. 59. 52. 53. 55. 56. 57. 59. 58. 59. 59. 50. 51. 59. 52. 53. 54. 59. 51. 55. 59. 52. 54. 59. 53. 55. 56. 57. 59. 58. 59. 59. 51. 59. 52. 51. 53. 54. 59. 55. 57. 59. 58. 59. 59. 59. 51. 59. 52. 51. 53. 54. 59. 55. 59. 51. 55. 59. 52. 51. 55. 59. 53. 55. 56. 57. 59. 58. 59. 59. 59. 51. 59. 52. 51. 53. 54. 59. 55. 59. 51. 55. 59. 52. 51. 55.

4 Cur. Law. JUSTICES OF THE PEACE SS 5.

Where the interests of co-defendants are not adverse, one may appeal without making the others parties to the bond." A bond is not rendered invalid by a clerical error."

\_Appellate process and appearance.--\_Unless required by statute, new process is not necessary;" but notice of appeal required by statute must be given." An appeal constitutes a general appearance, and want of service of process," notice of appeal," and irregularities in taking an appeal, are thereby waived;" but an appeal does not constitute a waiver of an, objection to the jurisdiction of the person," nor does the fact that after the justice overruled the objection he filed a motion for security of costs." Process may be amended where substantial justice will be thereby promoted."

_The transcript_" must be filed within the time prescribed." A rule of court requiring the transcript to be filed within a certain time after the appeal is perfected is not jurisdictional." An offer to confess judgment need not be included in the transcript." A motion to compel a justice to correct his record must show that it is erroneous." In Montana a defective transcript may be corrected by the appellate court."

_The record must show_" jurisdictional facts, e. g., that an order granting an appeal was issued;" the timely performance of jurisdictional acts;" the giv ing of bond or excuse for not doing so;13 and that the case is appealable;14 but it will be presumed that notice of appeal has been served.14 If review is by error, the record or bill of exceptions must show the errors.15 No presumptions are indulged in favor of jurisdiction,16 therefore every fact essential to the jurisdiction must affirmatively appear.17 But where jurisdiction has once attached, the usual presumptions are entertained as to all subsequent proceedings.18 A loss of jurisdiction by lapse of time will not be presumed against a record sufficient on its face.19 In Texas, however, it is held that since justices' courts are created by the constitution and exercise certain exclusive jurisdiction, it is not necessary that every fact essential to jurisdiction should affirmatively appear from the record.20

Footnote 18: Error for the district court to dismiss because the record failed to disclose that a continuance for more than 90 days was with the consent of the parties. Rhyner V. Manchester Assur. Co. \[Okl.\] 78 P. 558. Where the transcript shows that proceedings were regular, every presumption is in favor of the judgment. Squires v. Martin, 6

\_Transfer of jurisdiction by appeal.21--\_The district court takes merely appeal-late jurisdiction by sending up the case22 and takes none if the justice had none.23

- Cur. Law. JUSTICES OF THE PEACE SS 5. 385
- the objection of the opposite party." A judgment of affirmance entered at the instance of the appellee is equivalent to a dismissal."
- _Pleadings on appeal."_--The rules of pleading in the justice's court govern on appeal." It will not be presumed that there were oral pleadings sufficient to authorize the recovery of a sum greater than demanded by the written pleadings." The case may be tried on such pleadings as will secure substantial justice, whether such pleadings were made up in court or before the justice." The main issues and object of action are the same," hence pleadings may not be amended so as to state a new defense," and a counterclaim not filed before the justice cannot be availed of." General denial on appeal is not departure." Motion may be made to dismiss because the complaint does not state a cause of action."
- _The case is usually tried de novo when'appealed,"_ and certain actions treated as if originating in the appellate court." The practice in the district court is applicable to actions appealed."

In order to be available, error must have been objected to in the justice's court." An objection to the admission of evidence cannot be raised for the first time on appeal."

The appellate court may inquire into the jurisdiction of justice's court," though the appeal is erroneously taken to such court." Where it is determined

- Hart v. Minneapolis, etc., R. Co. \[W1s.\]
- \[mg that on appeal the cause must be tried
- 99 N. W. 1019.
- \[mg that on appeal the cause must be tried
- 99 N. W. 1019.
- \[mg that on appeal the cause must be tried
- 99 N. W. 1019.
- \[mg that on appeal the cause must be tried
- 99 N. W. 1019.
- \[mg\] \**30.*
- Statute providing that if the appel-
- 99 N. W. 1019.
- \[mg that on appeal the cause must be tried
- 99 N. W. 1019.

386 JUSTICES OF THE PEACE SS 6. 4 Cur. Law.

that the magistrate has no jurisdiction, the cause should be dismissed." In Nebraska, if the judgment of the justice is reversed, the case should be set down for trial." The case should be remanded and not finally decided where evidence was erroneously received under an unsworn answer which however might have been amended in this respect."

_Judgment_"" rendered as provided by statute is proper." Where the appellant dismisses his appeal, the judgment entered should correspond to the judgment of the justice." On dismissal, judgment may be entered against appellant for costs." It is improper to refuse a new trial on appeal from a default which is excusable and where there is a good defense, even though the affdavit is denied and not corroborated."

_Further appeal or error._"The judgment on appeal from a default is itself appealable, being final and affecting a substantial right." Where the court of first appeal wrongly refuses to entertain it on the ground of nonappealability, the remedy is mandamus and not further appeal." When the cause goes further up, the record must show the steps necessary to transfer jurisdiction to the court of first appeal." The jurisdiction of the circuit court must be determined from the record." The supreme court will not interfere with the first grant of a new trial where it does not appear that the law and facts required a judgment in favor of the plaintiff." Objections to appeal proceedings cannot be raised for the first time in the supreme court."

SS 6. _Certiorari._"-Appeal is the more appropriate remedy to review errors," and if appeal lies, certiorari will not;" but certiorari is independent of appeal and it is not obligatory upon an applicant in resorting to the former to assign reason or excuse for not adopting the latter."

The justice is the proper respondent, the adverse party an improper one." Refusal to join will not defeat a co-party's right to certiorari," and if the case is no longer pending as to one, he cannot join."

_The petition_ should be sustained where it brings up only questions of law," where it affirmatively appears that petitioner was not accorded a fair trial;" where

47. Should not remand it for that purpose. Riley v. Mutual Life Ins. Co. (S. C.) his proceeding, unless made a part thereof 47 S. E. 708.

01. Code Civ. Proc. $ 601. Westover &

burn v. Washburn Waterworks Co. (Wis.) Co., V. Van Dorn Ironworks Co. (Neb.) 97 N. N.

88. N. V539.

01. Bell v. Felt, 119 Ga, 488. 45 S. E, 642.

01. Stafford v. Wilson \[Ga.\] 49 S. E. 800.

01. The sufficiency of an affdavit of ap-49n. See 52 Curr. L. 656, n. G., ed.

peal. Gerhardt Reality Co. v. Weiter \[Mo.\] 50. Rey. St., 1899. 4081, providing that if

jv.dagment be against implant it shall be

60. See 2 Curr. L. 666.

rendered against him and his securities. A. Computing Scale Co. v. Tripp \[MLch.\] judgment entered against appellant for $200 and

and against the securities for $75, the

smount of the bond, is proper. Gwinnup v.

Silbert \[Mo.\] 80 S. W. 588.

81. For a like amount. Jacobs v. Johnson \[Mrs.\] 86 No. 544.

01. Hager v. Knapp \[Or.\] 78 P. 671.

01. Ktilts v. Neahr, 91 N. X. S., 945.

01. See generally Appeal and Review, 3

Cmr. L. 167.

84. Ktilts v. Neahr, 91 N. Y. S. 945.

01. Robertson v. Southerland, 22 App. D. C.

01. Quast show bond or affdavit in lieu of

tt. Penn Fire Ins. Co. v. Pounders \[Tex. Civ.\]. 84 S. W. 668.

87. On appeal from the circuit in an action appealed from the justice's court and

trted de novo, whether the circuit court was without jurisdiction of the subject-matter

because the justice did not obtain it is to be solved from the record. This does not in-

88. This is a contradiction with the fact that the judge is not a good defense.

4 Cur. Law. JUSTICES OF THE PEACE SS 6. 387

the verdict is wholly without evidence to support it,69 or is for an amount greater than was claimed;70 but may be denied in so far as it brings under review the verdict of the jury, where a finding in favor of the claimant was not demanded by the evidence adduced in the magistrate's court.71 Certiorari to correct a transcript will be denied where it appears that because of negligence of the petitioner it is too imperfect to show the grounds of error on which he relies.71 It must be in the name of a party to the proceeding in the justice's court.73 In Georgia the petition must be accompanied by a certificate of the magistrate that all costs have been paid;74 but absence of such certificate is not ground for dismissal of the appeal.75 Projection that the petition is not verified should be made before it has been sanctioned or the answer of the justice filed.76

Footnote 80: Statement that juror was accepted was referred to other than the one strikeken from list. Faulkner v. Smead \[Ga.\] 49 S. E. 747.

81. Faulkner v. Smead \[Ga.\] 49 S. E. 747.

01. The appellate court cannot act upon an agreement that the petition and answer which are not in conflict shall be taken as true, as this involves the comparison of two different statements and tends to create confusion. Central of Georgia R. Co. v. Potter, 120 Ga. 43, 47 S. E. 924. Evidence held to warrant refusal to sustain certiforal, Id.

01. County court should not hear evidence attacking the facts stated therein.

01. No showing to the contrary in the justices' return. Brown v. Knop \[Michel.\] 100 N. W. 466.

01. See 2 Curr, L. 667, m. 84, et seq.

01. Failure to dismiss plaintiff's cause of action because he had not served a copy of the account saved on with the summons as required by statue. Thomas & Blake v. Forsyth Chair Co., 119 Ga. 693, 46 S. E. 869.

01. A writ of review brings only such questions as appear on the judgment roll. State v. Justice Court of Tp. No. 1 \[Mont.\]

01. P. 498.

01. Improper argument of counsel. South-ern R. Co. v. Rollins \[Ga.\] 49 S. E. 290.

01. Bush. Bradford v. Brown 29 App. D. C.

01. The attachment bond should be made to such defendant and not to his co-defendants. Id.

property."50 Error in overruling plea to jurisdiction by reason of nonresidence cannot be reached by certiorari"00 nor can the right of the justice to his office."51

\_Judgment."52--Final judgment should be entered by the reviewing court where it appears that the justice was without jurisdiction;"53 but otherwise where the final determination of the case does not depend upon a question of law and there are issues of fact involved."54 This is true though a former certiorari in the same case complaining of the same defect may have been sustained."55 If discretion is not abused the judgment of remand for new trial will stand."56

\_Liability on bond.--\_Where a certiorari has been sustained and the case sent back for another hearing, the certiorari bond becomes functus efficiio."57

SS 7. \_Criminal jurisdiction and procedure.--\_The power of a justice of the peace to issue warrants and as a committing magistrate and the procedure looking thereto"8 and his jurisdiction of prosecutions for crime"99 and the procedure therein"100 are fully treated elsewhere. Under the Wisconsin constitution the legislature has power to deprive justices of all jurisdiction of criminal cases."51

**KIDNAPPING.**

**A wife who has been abandoned cannot be said to kidnap a child of whom she is solely in custody."5 The crime of taking, decoying or enticing a child from its parents as defined in Nebraska may be founded on any representation inducing the child to leave its father," coupled with intent to detain or conceal the child maliciously, forcibly, or fraudulently."5 The child's consent is no defense."5 Six years, the maximum being twenty, is not excessive punishment for an aggravated and immoral case."6 The child may testify that it left because of the arts and inducements of accused."5**

90, 91. Anderson v. Morton, 21 App. D. C. In "the forcible abduction or stealing away of a man, woman or child from their own country and sending them into another."5

93. Should not remand the case. Forbes Piano Co. v. Owens, 120 Ga. 449, 47 S. E. note 4 Am. St. Rep. 447. There must be actual or constructive force, actual or constructive force, actual or constructive nonconsent, and a taking into an-other country. I Clark & M. Crimes, 456: evidence to support it. Patterson v. Central note 4 Am. St. Rep. 444. A New Hampshire See, also, Bryan v. Central of Georgia R. Co., 117 Ga. 827, 45 S. E. 72.

01. Patterson v. Central of Georgia R. Co., 117 Ga. 827, 45 S. R. 250.

01. New trial after two verdicts is not necessarily an abuse of discretion where the case is close and errors harmed the losing party. Faulkner v. Snead \[Ga.\] 49 S. E. 747.

01. The security is discharged and may become security on a subsequent bond in the same case. Western & A. R. Co. v. Carter, 120 Ga. 460, 47 S. E. 930.

01. See Arrest and Binding Over, 3 Curr. L. 312.

01. Indictment and Prosecution, $ 2, 2 Curr. L. 308.

01. Indictment and Prosecution, $ 18, 2 Curr. L. 391.

01. Laws 1895, D. 7, creating the police court of Milwaukee, Is valid. Heller v. Clarke \[Vrls.\] 98 N. N. W. 952.

01. See 2 Curr. L. 608.

01. She removed it from the state. Biggs v. State \[Vyyo.\] 77 P. 901.

Note: The common law crime consisted
LABELS; LALORU Nations; LACHEs; LAKES and FONRS, see latest topical index.

LANDLORD AND TENANT.

E. Injuries from Defects and Dangerous

E. L'ontaine (389). E. L'ontaine (390). E. L'ontaine (391). E. L'ontaine (392). E. L'ontaine (393). E. L'ontaine (394). E. L'ontaine (395). E. L'ontaine (396). E. L'ontaine (397). E. L'ontaine (398). E. L'ontaine (399). E. L'ontaine (390). E. L'ontaine (391). E. L'ontaine (392). E. L'ontaine (393). E. L'ontaine (394). E. L'ontaine (395). E. L'ontaine (396). E. L'ontaine (397). E. L'ontaine (398). E. L'ontaine (399). E. L'ontaine (390). E. L'ontaine (390). E. L'ontaine (391). E. L'ontaine (392). E. L'ontaine (393). E. L'ontaine (394). E. L'ontaine (395). E. L'ontaine (396). E. L'ontaine (397). E. L'ontaine (398). E. L'ontaine (399). E. L'ontaine (390). E. L'ontaine (390). E. L'ontaine (390). E. L'ontaine (390). E. L'ontaine (391). E. L'ontaine (392). E. L'ontaine (393). E. L'ontaine (394). E. L'ontaine (395). E. L'ontaine (396). E. L'ontaine (397). E. L'ontaine (398). E. L'ontaine (399). E. L'ontaine (399). E. L'ontaine (390). E. L'ontaine (390). E. L'ontaine (390). E. L'ontaine (390). E. L'ontaine (390). E. L'ontaine (391). E. L'ontaine (392). E. L'ontaine (393). E. L'ontaine (394). E. L'ontaine (395). E. L'ontaine (396). E. L'ontaine (397). E. L'ontaine (398). E. L'ontaine (399). E. L'ontaine (399). E.

the lands of his intestate after final settlement and payment of the debt of the estate,\[25\] nor may a guardian let his ward's property for a longer term than the guardianship.\[28\] A surety of the lessee has no interest in the leasehold,\[27\] and is entitled to have his obligation strictly construed.\[28\]

_Establishment of the relation.\[29\]_--Any agreement showing a meeting of minds and including the necessary elements will establish the relation of landlord and tenant.\[30\] An agreement to give a lease is not a lease unless followed by occupation.\[31\] More possession of the property of another does not necessarily imply the relation,\[32\] though slight facts tending to show a lessee's dealing with the property may establish an acceptance by the tenant.\[38\] One cannot claim as tenant while he holds adversely,\[34\] and material alterations in a lease, unknown and un-accepted by one party thereto are not binding upon him.\[35\] Tenancies for years or for life may both be created by will.\[36\]

_Actionable use and occupation.\[37\]_--The relation of landlord and tenant may be implied as a matter of law,\[38\] and if the plaintiff makes out his title as he would in ejectment,\[39\] he may recover in assumpsit.\[40\]

_The statute of frauds.\[41\]_--An oral agreement to lease for two and a half years\[42\] or for the extension of a lease,\[43\] or permission to make alterations in a building, in effect giving ingress and egress for five years, is void under the statute of frauds,\[44\] as is a lease for more than a year, unsigned by the lessor.\[45\] But because of part performance by the lessee, equity may enforce against the lessor a lease invalid under the statute.\[46\]\_

_Breach of agreement to make lease.\[47\]_--The principle of estoppel will be con-

\[34\]

\_Snyder v. Harding, 34 Wash. 286, 75 P. 812. 835. Ver Steeg v. Becker-Moore Paint Co. \[Mo. App.\] 80 S. W. 346. 36. Foss v. Stanton, 76 Vt. 365, 57 A. 942. 37. See 2 Curr. L. 670. 38. Story v. McGermick \[Kan.\] 78 P. 819. 83. A trustee in bankruptcy of a farm tenant, occupying the farm buildings until the crops are sold, is liable to the landlord for his use and occupation thereof. In re Luckenbill, 127 F. 884. 39, 40. Illinois Cent. R. Co. v. Ross \[Ky.\] 83 S. W. 635. 41. See 2 Curr. L. 670. 42. Dechenbach v. Rima \[Or.\] 78 P. 666. 43. Landt v. Schneider \[Mont.\] 77 P. 307. 44. Peer v. Wadsworth \[N. J. Eq.\] 58 A. 379. 45. Entry into possession held to create a tenancy from year to year. Jewett v. Greis-

heimer, 91 N. Y. S. 654. 46. Dechenbach v. Rima \[Or.\] 78 P. 666. 47. The acceptance of a lease by occupying the demised premises will take the lease out of the statute of frauds, though such lease be not signed by the party sought to be charged. Nolan v. Cincinnati Cooperage Co. \[Ky.\] 82 S. W. 627. The surrender of a lease, being a part of the consideration for purchase, constitutes part performance. Yule v. Felli, 123 Iowa, 662, 95 N. W. 559. Merely taking possession and making the payments of current rent does not constitute part performance under the statute of frauds. Otherwise of payment of rent for the entire term or of making valuable improvements. Humphrey

Hardware Co. v. Herrick \[Neb.\] 99 N. W. 233. 47. See 2 Curr. L. 671.

4 Cur. Law. LANDLORD AND TENANT SS 3. 391

sidered in the construction of an agreement to make a lease,\[48\] and one may sue for specific performance, without a formal tender of the lease.\[49\] Under an agreement for a lease, to be submitted to attorneys for approval; there must be some reasonable ground for a refusal to sanction the lease as drawn.\[56\]

\_Construction of leases and proof of the terms of tenancy.\[51\]--A lease must describe the land\[52\] and the term,\[83\] state when the rents are payable,\[54\] and be signed by the parties.\[55\] A seal imports a consideration as in other instruments.\[56\] A lease will be construed as a whole,\[57\] and though words of present demise will be held to give a lease, if no inconsistent purpose appears,\[58\] the courts will in general adopt the construction which the parties have placed upon it,\[59\] though under seal.\[59\]

Express covenants abrogate the operation of implied covenants,\[51\] and it is only where covenants are dependent that the performance by each party of his own covenant is a condition precedent to his right to recover on the covenant of the other party.\[62\]

Covenants by the tenant to pay taxes and water charges,\[93\] to repair,\[54\] and not to use the premises for the sale of intoxicating liquors, run with the land.\[55\]

A written lease is presumed to express the whole agreement of the parties thereto up to its execution,\[56\] and the usual rules on parol testimony to vary a written instrument apply;\[67\] but an independent oral contract collateral to a lease, for making repairs prior to the beginning of the term, is not merged in the lease.\[58\]

Interpretations of some specific lease provisions are given in the notes.\[69\] The

4S. American Security & Trust Co. v. Wal-

covenant to repair and the tenant's covenant ker. 23 App. D. C. 583.

4S, 50. Pittsburgh Amusement Co. v. Ferguson 91 N. Y. S. 687.

6S. Lehmaier v. Jones, 91 N. Y. S. 687.

6S. Kunts v. Makrincholz, 88 N. Y. S. 687.

6S. Granette Bldg. Corp. V. Greene \[R. L.\]

6S. A. 649.

6S. A. 650. V. Slebrecht, 88 N. Y. S. 1024;

6S. A. 670. V. Slebrecht, 88 N. Y. S. 1024;

6S. A. 687. V. Slebrecht, 88 N. Y. S. 1062;

6S. A. 687. V. Slebrecht, 88 N.

renting of a building, without an explicit restriction carries with it the subjacent land.76 Provisions for purchase at the option of the lessee are treated elsewhere.71 The landlord and the co-tenants are necessary parties to a bill to settle the lease-hold right of two sets of lesseees.72 A court of equity having cogninance of a case involving the possession of leased premises, with all interested parties in court, will place in possession the one equitably entitled thereto.73

SS 3. _The different kinds of tenancies and their incidents.74_ _Estate for years._ --One in possession under an agreement that if he pay the taxes and the insurance, he may do as he likes with the property except sell it, is a tenant for life, not a tenant at will.75 In California an estate for years is a chattel real and is not reached by a judgment rendered subsequent to the creation of the estate.76

\_Periodical tenancies:76a--One taking possession and paying rent under an oral lease for a term of years becomes a tenant from year to year, in the absence of a limitation upon the term.77 A verbal lease of city property for a term of eleven months constitutes a tenancy from month to month,78 and such a tenancy may be created by a holding over of city property,79 or by the continuance in possession by a purchaser who is in default under an instalment contract.80 The statute by which tenancies in New York City are deemed to continue until May 1st next after possession commences has no application to a tenancy from month to month.81 In a month to month tenancy, taking of possession upon the 6th and payment of rent to the 1st of next month constitutes a tenancy from the first of one month to the first of the next month.82

\_Tenancy at will.83--A tenancy at the will of the lessee is also at the will of the leaser;84 but is determined by the termination of the lessor's estate.85 Entry under a parol lease for five years constitutes a tenancy at will,86 and one holding over after the expiration of his term is a tenant at will with all the rights which had been annexed to the premises.87 A tenancy at will is not converted into a 4 Cur. Law. LANDLORD AND TENANT SS 4C. 393

tenancy from year to year by the mere payment of rent, or its duration for more than one year.\[88\]

\_Tenancy at surface.\[89\]--Under some statutes all holding over or occupations of premises without express contract or lease constitute tenancies by surface.\[90\] A lessee of the entire estate, from one tenant in common, holds as a tenant by surface as to the other tenants in common.\[91\] Continuance in possession after adverse judgment in an action of trespass to try title does not constitute a tenancy at surface.\[92\]

SS 4. _Rights and interests remaining in the landlord. A. Reversion.\[93\]--A_ lessor may assign the rent to become due without granting the reversion or may grant the reversion and reserve the rent,\[94\] but a grant of the reversion carries with it the right to rent thereafter accruing;\[85\] though a mortgagee does not succeed to the landlord's rights in a lease until he acquires the fee of the property.\[95\] Upon the severance, by conveyance, of the reversion of lands under lease, the rent will be apportioned among the reversion owners.\[97\] A purchaser of property "subject to existing tenancies" is presumed to know the nature, terms, and extent of such tenancies,\[98\] but he may not oust the tenant because of such purchase.\[99\] One whose deed contained a reservation of a portion of the property to the use of a third party for a specified time cannot claim rent therefor,\[1\] but he may maintain an action against the tenant for damage accruing after the transfer of the reversion, without an assignment of the cause of action from the vendor.\[2\] Neither a right of entry nor a right of action for a prior breach can be transferred.\[8\]

(SS 4) \_B. Right of re-entry and control.\[4\]--The term "re-enter" means such re-entry as an action of ejectment and not the statutory proceedings for possession,\[5\] though it is not restricted to the common-law action of ejectment.\[5\] A covenant giving the landlord the right to "resume possession" is enforceable though the lease had been terminated by summary proceedings.\[5\] A right of re-entry for condition broken is good against a purchaser of the leasehold interest upon execution.\[5\] Re-entry by a landlord after abandonnent is not a bar to a recovery of rent due theretofore.\[5\]

(SS 4) \_C. Estoppel of tenant to deny title.\[10\]--During the continuance of a tenancy, the lessee is estopped from controverting the lesoser's title,\[11\] as of the date of his lease,\[12\] though he acquire an adverse and better title,\[13\] but possession under an alleged lease cannot form the basis of title by adverse possession.\[14\] One claiming under an alleged purchase may show that the relation of landlord and tenant did not exist.\[15\] The acceptance of a void lease raises a mere presumption of the recognition of the lesoser's title.\[16\]

SS 5. _Mutual rights and liabilities in demised premises. A. Occupation and enjoyment.\[17\]_--In the absence of statute, express agreement or fraudulent concealment by the landlord, he is not answerable to the tenant for the condition of the premises demised,\[18\] since a rule similar to that of caveat emptor applies,\[19\] and there is no implied warranty that the property is suitable for the purpose intended,\[20\] except in the letting of a furnished house for a summer.\[21\] A landlord is not required to place his tenant in possession, yet he should give a legal right of entry unencumbered by any act of his own,\[22\] and there is an implied obligation that leased premises shall be completed and ready for occupancy at the commencement of the term,\[23\] For failure to deliver possession the tenant may recover rent paid in advance,\[24\] or damages limited to the excess of the rental value over the rent reserved.\[25\] A covenant of quiet enjoyment relates to unlawful interference with the demised premises by the lessor,\[26\] and a covenant against molestation of "any other persons" refers only to others deriving their right through the lessor or by a paramount title.\[27\] To constitute a breach of covenant for possession and enjoyment, there must be an actual,\[28\] or constructive eviction resulting in surrender.\[20\]

11. Cambridge Lodge No. 9 K. P. v. Routh A provision of "ready for occupancy" does \[Ind.\] 71 N. E. 148. A tenant in possession not necessarily mean fitted by the lessor may not dispute his landford's title. Harvin w. Blackman, 112 La. 24, 36 So. 213: Meese ac's business. Gerry v. Siebrecht, 88 N. Y. v. Miller \[Mich.\] 101 N. W. 52; Weide v. St. Paul Boom Co. \[Minn.\] 99 N. W. 421: Fuller Co. v. Manhattan Const. Co., 88 N. Y. 8. 1049. Where plaintiff, two years after receiving a deed, leased to defendant in a writing describing plaintiff as owner, the lessee is equipped to claim ownership. Wadge v. Klitteson, 12 N. D. 452, 97 N. W. 856.

01. Tenant may show that landlord's title has subsequently been extensigned. Sherman v. Fisher \[Mich.\] 101 N. W. 572.

01. Town of Morgan City v. Dalton, 11 La. 9, 86 So. 208.

01. Dixon v. Finnegan, 182 Mo. 111, 81 S. W. 449. Possession under a tax on assessment lease is not adverse to the title of the fee owner. Miller v. Warren, 94 App. Div. 192, 87 N. X. S. 1011.

01. Horne v. Mullills, 119 Ga. 634, '46 S. E. 663.

01. Presumption overcome by proof of lessee's claim of ownership by adverse possession at execution of the lease. Broad v. Blenty \[Ark\] 83 B. W. 339.

01. See 2 Curr. L, 674.

01. Roth v. Adams, 185 Mass. 341, 70 N. E. 445; Shinkle, Wilson & Kreis Co. v. Blrney, 33 Ohio Clr. R. 525.

01. Roth v. Adams, 185 Mass. 341, 70 N. E. 446: Prahar v. Tousey, 93 App. Div. 507, 87 N. Y. 8. 845.

01. Duker v. Del Genovese, 93 App. Div. 575, 87 N. Y. S. 889; Prahar v. Tousey, 93 App. Div. 507, 87 N. Y. 8. 845; Landt v. Schehender \[Mont.\] 77 E. 307. A. lessee's covenant to use premises only for a lyeem or dancing hall does not imply a covenant by the leaseor as to their fitness for such purpose. Lyons v. Gavin, 43 Mise. 659, 88 N. Y. S. 252.

- Cur. Law. Landlord and tenant SS 5B. 395

For wrongful eviction or breach of covenant for quiet enjoyment, a tenant may recover the damages proximately resulting therefrom,\[30\] but the landlord does not forfeit his rights acerning under the lease and statutes.\[81\] A lessee may maintain his possession as well against his lessor,\[32\] or the transferee of the lessor acquiring rights subsequent to the lease, as against strangers.\[83\] Within reasonable limits restrictions may be made upon the use of leased property,\[34\] but notice of an intention to vacate is not notice requiring a landlord to enforce a provision for rejecting tenants violating the rules of the house.\[85\] One may compel his co-tenant to refrain from obstructing the light and air.\[86\]

(SS 5) B. Assignment and subletting.\[37\]--As a general rule the power of assignment is incident to a leasehold estate,\[38\] unless restrained by statute,\[39\] or by the terms of the lease, in which case an assignment without the assent of the landlord is not void, but voidable at the latter's option;\[40\] but a rental upon shares is regarded as personal.\[41\] A tenant subletting without proper authority and thereafter inducing the landlord to oust the sublessee is liable for damages sustained by such sublessee.\[42\] The purchase of a leasehold operates as an assignment thereof,\[43\] and the foreclosure of the mortgage of a lease is a breach of a condition against calcination,\[44\] but otherwise as to the mere giving of a mortgage.\[45\] The assignment of a lease and the subletting .for part of the term are different transactions,\[44\] and an agreement by a lessee to convey any interest less than all of his is an agreement to execute a sublease and not to assign his lease.\[47\] A mortgage of a leasehold can have no duration beyond the term of the lease,\[48\] but an assignment may be shown by parol to be a mortgage security for a debt.\[49\] Where a person

## 8 N. Y. S. SS4: Fuller Co. v. Manhattan

- Const. Co., 88 N. Y. S. 1049.
- 30. Tenant may demand an Issue on the damages upon the appeal of summary procedures.
- 32, 33. State v. De Baillon \[La.\] 37 So. 481.
- 34. Lessor entitled to specific performance.
- Peer v. Wadsworth \[N. J. Eq.\] 58 A. 379.
- 35. Practicing on musical instrument.
- 36. Setton v. Julliard, 91 N. Y. S. 348.
- 36. Oehmre v. Shotland, 90 N. Y. S. 958.
- 37. See 2 Curr. L. 676. Carol evidence is admissible to identify a leasehold interest conveyed in an indefinite assignment. Asca-
- 38. Meyer v. Livesley \[Gr0\] 78 P. 670;
- 39. Sayre's Ann. Cl. St. 1827, S. 3250. As-
- 30. Sayre's Ann. Cl. St. 1827, S. 3250. As-
- 31. Carete v. Pfaff \[Tex. Cliv. App.\] 78 S. W. 974;
- 32. Waggoner v. Cnody \[Tex. Cliv. App.\] 82 S.
- 33. Sicek
- 34. Scott v. Slaughter \[Tex. Civ. App.\] 80 S. W. 643. Lessor held under the evidence to have waived a breach of covenant against assignment by lessee. Warner v. Cochrane
- 35. C. A.l 128 F. 553.
- 36. Meyer v. Livesley \[Gr0\] 78 P. 670.
- 37. Cakvert v. Hobbs \[Mo. App.\] 80 S. W.
- 38. Incorporated Town of Ozark v. Adams
- 39. A. 40. West Shore R. Co. v. Wenner, 70 N. Jaw, 233, 57 A. 408.
- 40. A covenant against one does not include the other. West Shore R. Co. v. Wenner, 70 N. Jaw, 233, 57 A. 408.
- 41. Schenkel v. Lischinsky, 90 N. Y. S. 300.
- 42. Miller v. Warren, 94 App. Dlv. 192, 87 N. Y. S. 1011.
- 43. Providence, F. R. & N. Steamboat Co.
- 44. Providence, F. R. & N. Steamboat Co.
- 45. Fall River \[Mass.\] 72 N. E. 338.

other than the lessee is in possession of leasehold premises, the law presumes the lease has been assigned to him in a manner not violating the statute of frauds.\[50\] In equity but not at law,\[51\] a subtenant is chargeable with knowledge of the terms of the lessee's lease,\[52\] but he is not liable upon the covenants of the contract between the owner and lessee, unless he has contracted to become so.\[53\] One holding as assignee of a lessee and recognized as a lawful tenant by the landlord may insist on the lease provision for renewal.\[54\] An assignee is not permitted to question the validity of a sublease where it is not attacked by the leaser.\[55\] (SS 5) _C. Repairs and improvements.\[56\]_--In the absence of statute or agreement to repair by the landlord,\[57\] or fraud or concealment as to the condition of the premises on his part,\[58\] the tenant takes the risk of safe occupancy;\[59\] but as is provided by statute in some states,\[60\] this rule does not extend to an outbuilding, apprute-nant to the demised premises constructed and maintained for the use in common of the tenants,\[61\] nor after notice, to that portion of the property not exclusively demised to the tenant,\[62\] nor to repairs of an extraordinary nature,\[63\] but refers only to repairs necessitated by the acts of the lessee or his employes.\[64\] Under a covenant to "keep" and surrender the premises "in as good state and condition as reasonable use and wear thereof will permit" the tenant must put, keep, and leave them in good repair,\[65\] and a covenant to repair by the tenant runs with the landlord.\[66\] For a breach of a tenant's covenant to make repairs and improvements, the landlord may recover the cost of repairing the resulting damage from such failure, also the rental value during the period of repairs,\[67\] and a landlord is liable for his breach of an agreement to repair, made during the continuance of the tenancy, and based upon a good consideration.\[68\] Upon breach of a landlord's covenant to repair, a tenant should make the repairs and deduct therefor from the rent,\[69\] or vacate and sue for damages ex contractu.\[70\] That a landlord made repairs is not evidence of a promise to keep the premises in repair.\[71\] A notice to repair need not .\[50\] **50.** Weinhandler v. Eastern Brew. Co., $9 **60.** Code, $2455.\*\* Richmond Ice Co. v. N. Y. S. 16: Weide v. St. Paul Boom Co. **C7.** J49 S. E. 650.\*\* **61.** Edwards v. Kissler, 5 Ohio C. C. (N. S. 44.\*\* **62.** Roof pipe and Its sewer connections.\*\* Levine v. Baldwin, 87 App. Div. 150, 84 N. Y. S. 82.\*\* Water system just above the ceiling.\*\* Rubenstein v. Hudson, 86 N. Y. S. 750.\*\* **63.** Rebuilding as a wall condemned for defects from time and wear. Street v. Central Renw. Co., 91 N. Y. S. 847.\*\* Tenant liable for repair of fence damaged by rains. Jones v. Felker \[Ark.\] 80 S. W. 1088.\*\* **64.** Does not refer to a defective pipe for conveying water from the roof to the sewer. Levine v. Baldwin, 87 App. Div. 150, 84 N. Y. S. 92.\*\* Ducker v. Del Genovese, 93 App. Div. 575, 87 N. Y. S. 889.\*\* **65.** Lehmaier v. Jones, 91 N. Y. S. 687.\*\* **66.** But an assignee of the lesgor cannot sue for a breach which occurred before such assignee acquired title. **Foss v.** Stanton, 76 **77.** St65, 87 A. 942; Lehmaier v. Jones, 91 N. Y. S. 687.\*\* **67.** Loughlin v. Carey, 21 Pa. Super. Ct. 477.\*\* The measure of damages for a breach of covenant is the necessary cost of making the repairs. Lehmaier v. Jones, 91 N. Y. S. 687.\*\* **68.** Frey v. Vignler \[Ca.\] 78 P. 733.\*\* Ne consideration.\*\* Altsheler v. Conrad \[Ky.\] 82 S. W. 257.\*\* **69.** Spero v. Levy, 43 Misc. 24, 86 N. Y. 869.\*\* **71.** Galvin v. Beals \[Mass.\] 72 N. E. 869.\*\* 4 Cur. Law. LANDLORD AND TENANT SS 5E. 397

state the particulars and extent of the repairs required.\[73\] The changing of windows into doors is a violation of a covenant against alteration,\[13\] and constitutes waste,\[14\] and in the absence of a covenant to the contrary, a tenant is liable to the landlord for waste, by whomsover committed.\[78\] An injunction to prevent waste will not be granted where the alleged wrongful acts are trifling in their nature.\[78\]

(SS 5) \_D. Insurance and taxes.\[77\]--Unless otherwise agreed, the duty to pay taxes rests upon the holder of the legal title,\[78\] but a lessee may legally bind himself to pay the increase in taxes on insurance because of improvements.\[79\] A covenant to pay taxes and water charges runs with the land;\[80\] and under a covenant to pay taxes assessed during the term, a tenant's liability extends to a tax for which the rolls are completed during the term.\[81\] A lessor cannot recover of his lessee premiums advanced for insurance according to the lease, where the insurance procured was void because of the lessor's mistatement.\[82\]

(SS 5) \_E. Injuries from defects and dangerous condition. To tenant or his servant.\[83\]--In general the rule of caveat emptor applies,\[84\] and the tenant takes the risk of safe occupancy.\[85\] but a landlord is liable for injuries from fraudulently concealed defects,\[86\] though not for those arising from defects of which he had no previous knowledge and of which he could not have known\[87\] by the exercise of reasonable care.\[87\] He is not bound to call the attention of his tenant to defects coming into existence during the term,\[89\] and a tenant knowing the defective condition of the premises may continue a use thereof if exercising due care.\[90\] A landlord is not liable to one tenant for the negligence of a co-tenant,\[91\] and may by express agreement shift to his tenant the responsibility to the public for injuries from snow and ice upon the premises.\[92\] Under a covenant to keep in repair, a lessor is liable in an action ex contract,\[83\] for personal injuries to the lessee,\[94\] or \[84\].

72. Foss v. Stanton, 76 Vr. 365, 67 A. 942. N. E. 112; Kushes v. Ginsburg, 99 App. Div. 73, 74. Peer v. Wadsworth (N. J. Eq. 1) 58

147, 91 N. Y. S. 216; Lovitt v. Creekmore A. 378.

75. Nashville, etc., R. Co. v. Heikens

01. Butts v. Fox (Mo. App. J. 81 S. W. 1984).

01. See a Curr. L. 678.

01. Clinton v. Shugart (Iowa) 101 N. W.

01. Evidence held to show lessee not liable

01. Redreath v. Gillespie (Ind. App. J. 72 N. E. 3)

88.7. Eddy v. Ehrligher, 98 N. Y. S. 840.

89. Ordijev y. Ehlbiger, 99 N. Y. S. 721.

01. Lehmaier v. Jones, 91 N. Y. S. 687.

01. Though they could not be paid before

01. Y. S. 684.

91 N. Y. S. 162. Under a lease reserving the control of the ceiling to the landlord, a tenant may recover for injuries from failing

89. X.

398LandLORD AND TENANT SS 5F. 4Cur. Law. his family, arising from breach of such contract,98 but where a landlord has agreed to repair, he must be given reasonable notice of the defects.98 Under a lease with covenants to repair by the tenant, and an ordinance requiring city inspectors to repair dangerous buildings and charge to the landlord, the latter is not liable to tenant for the cracking of the walls unless negligence is shown.99

Footnote 98: http://www.math.mit.edu/ 4 Cur. Law. LANDLORD AND TENANT SS 6. 899

of lease where such right of removal is not specified.\[18\] Whether property is a trade fixture is generally a question of fact.\[19\] A landlord consenting to removal of shutters from a leased building cannot thereafter claim damages for such removal.\[20\] One who has failed to pay any rent will not be allowed to remove fixtures according to the lease, upon his offer to pay all arrears.\[21\]

SS 6. \_Rent and the payment thereof.\[22\]--Rent is an incident of the reversion,\[23\] and can only be recovered where the conventional relation of landlord and tenant exists.\[24\] One who occupies the premises of another is liable for the rent during such occupancy,\[25\] irrespective of the validity of his lease,\[26\] but a lessee assigning his interest with consent of the landlord is discharged from further liability for rent.\[27\] In Arkansas a tenant wrongfully holding over after statutory notice is liable for double rent.\[28\] Notice before termination of a lease of a raise in rent in case of holding over is binding upon the tenant though objected to,\[29\] and such a notice may be left at tenant's place of business with the person in charge if of suitable age and discretion.\[30\] To hold a tenant who abandons his term for the loss of rent thereby entailed, a landlord is not bound to let the premises remain idle during the remainder of the term; the tenant is acquitted of liability only when the lessor accepts the surrender.\[31\] A mere protest accompanying a payment of rent does not change its character.\[32\] A lessee having no knowledge of a transfer of the reversion is not in default for paying rent to the original lessor,\[28\] and under a lease providing for the deposit of rent in a certain bank, such a deposit constituted payment of the rent.\[34\] A provision for an annual rent payable in equal monthly instalments on the first of each month does not require payments in advance.\[35\] Monthly payments to a landlord by a subtenant on behalf of a tenant cannot be regarded as payments on rent previously due so as to affect the running of the statute of limitations.\[36\] In the absence of proof to the contrary, the court presumed that checks given for rent were in full payment of rent then due.\[37\] Upon the conveyance of lands under lease, an apportionment of rent is properly based upon rental values, not mere areas.\[38\] Under a lease providing for rent at 5% of the valuation less improvements by lessee, the premises should be considered as vacant property with clear title in fee simple.\[39\]

18. City of St. Louis v. Nelson \[Mo. App.\]

SS 8. W. #71.

19. Planking and stringers. Crerar v. Daniels, 209 IL. 296, 70 N. E. 589. Oil derricke and machinery are not fixtures becoming part of the freehold. Garlran v. Hickman \[V. Va.\] 49 S. B. 14. Flouring mill machinery is in general an irremovable future. Incorporated Town of Ozark v. Adams \[Ark.\]

SS 8. W. #20.

20. Cohen v. Wittermann, 91 N. T. B. 493.

01. Little Falls Water Power Co. v. Hausdorff, 127 F. 44.

01. See 2 Curr. L, 681.

01. Winstine v. Zlglatsk-Marks , Co. \[Comb.\] 59 A. 496.

01. Parties adversely claiming title. Murphy v. Hoporoff, 142 Cal. 43, 75 P. 567.

01. Rubens v. Hill, 211 N. 523, 72 N. E. 1127; Ascarte v. Pfaff \[Tex. Civ. App.\] 78 S. W. #74. A tenant who has moved out but not surrendered the keys may be liable for rent during a period of reconstruction following a fire. Schloss v. Schloss \[Mich.\] 100 N. W. #32.

01. Noland v. Cincinnati Cooperative Co. \[Ky.\] 38 S. W. #27; Ascarte v. Pfaff \[Tex. Civ. App.\] 78 S. W. #74.

01. Though the assignee be insolvent, Ascarte v. Pfaff \[Tex. Civ. App.\] 78 S. W. #74.

01. That removal would cause great inconvenience and injury to business is not a defense. Driver v. Eddington & Co. \[Ark.\]

01. W. #78.

01. Steess v. Bergmeier, 91 Minn. 613, 95 N. W. #48.

01. Delivered to tenant's bookkeeper by registered mail. Stees v. Bergmeier, 91 Minn. 513, 98 N. W. #48.

01. Gerhart Realty Co. v. Brecht \[Mo. App.\] 34 S. W. #16.

01. Gerry v. Slebrecht, 88 N. Y. S. 1034.

33., Middina Natural Gas & Oil Co. v. Lee \[Ind. App.\] 72 N. E. 492.

35. Goldsmith v. Schroeder, 93 App. Div. 206, 87 N. Y. S. 558.

01. Bousthon v. Boughton \[Conn.\] 58 A.

01.

01. Bon v. Fenlon, 89 N. Y. S. 961.

01. Gribble v. Toms Defenses, set-offs and reductions.40--Failure to deliver possession of the entire premises leased may amount to a failure of consideration for the lease;41 and an eviction is a good defense to an action for rent,42 if occurring before the rent becomes due,43 but it is no defense that knowing of a conveyance of the reversion the tenant thereafter paid rent to his original lease,44 neither is it a defense that he has rendered himself unable to perform stipulations agreed upon in lieu of rent.45 Re-entry under a defeasance clause terminates a tenant's liability for rent, but not his liability upon covenants surviving the re-entry.46 The mere long continued receipt of rent when overdue does not constitute an equitable defense.47 Payment is a matter of defense,48 and must be pleaded to entitle it to be proved.49 The lessee may recoup damages arising from fraud by the landlord,59 but a counterclaim for damages in tort may not be interposed in an action upon a lease for rent.51 A defense of breach of agreement by the lessor can be shown only under a plea of recoupment or set-off.52 As an offset to rent, the measure of damages for lessor's failure to repair after a fire is the difference between the rental value of the premises as left by the fire and its condition if repaired as covenanted.53 Under a written lease binding the tenant to make repairs, etc., he cannot show as a counterclaim a breach of a prior oral agreement by which the landlord was to put the premises in perfect condition.54 A tenant may be liable to a receiver for the value of occupation after the receiver's appointment, though there be an offset as against the landlord.55 Failure of a limited partnership to ratify its sublease other than as a subtenant is a good defense relative to rent accruing after its assignment for creditors and its vacation of the premises.56 Promise by the owner of property leased for stock raising to make good any losses due to a lack of proper fencing is not without consideration.57

Footnote 40: See 2 Curr. L. 682.

Footnote 41: Occupation of portion of premises did not constitute a waiver of his rights. Sulverclaim. Vogel v. Piper, 83 N. Y. S. 431.

Footnote 42: Geostchluq v. Shapiro, SS N. Y. S. 171.

4 Cur. Law. LANDLORD AND TENANT SS 8. 401 after each yearly sale. \[41\] A tenant upon shares is not a mere laborer working for wages, but has an interest in the crops, \[92\] and upon the death of such a tenant, his estate is entitled to remuneration quantum mervit. \[63\] A lease upon shares made in reliance on the personal character of the lessee is not assignable without consent of the lessee. \[64\] An oil lease in consideration of royalties contains an implied covenant for diligent operation after oil is struck. \[65\]

SS 8. _The term, termination of tenancy, renewals, holding over. \[66\]_--A provision for termination of tenancy for breach of covenant may be a condition or a conditional limitation, \[67\] but in general a default by the lessee in the conditions of the lease, ipso facto terminates his rights thereunder. \[68\] Upon the termination of a tenancy by the land Lord, the tenant may recover a deposit made by him as a guarantee of his fulfillment of the covenants, \[66\] but not if recovery of possession is had for nonpayment of rent. \[69\] Conveyance of property by a lessor does not per se terminate a tenancy, \[70\] and changes in the personnel of a tenant, acquiesced in by the lessor do not terminate a tenancy at will. \[70\] Under a lease that will expire after three years from a given date if the property be sold, the tenancy is terminated by a sale after the date specified. \[71\] In Mississippi a tenancy "by the month" can only be terminated at the end of a monthly term after proper notice. \[72\] The homestead interest of a widow being that of occupancy only, her abandonment of such interest terminates an unexpired lease she had previously made. \[73\] A subtenant's right of possession falls with a termination of the principal lease according to its terms. \[74\]

_A lease may be rescended, \[73\]_ if reasonable diligence be shown, \[73\] for failure of a lessor to deliver possession at the beginning of the specified term, \[73\] or for fraud by the lessor. \[66\] Suit by a lessee to enforce his claims as equitable owner of part of the land is a rescission of the lease, \[74\] and an action by the landlord to recover the land and quiet title is an acceptance of such rescission. \[75\]\_--A surrender may occur by operation of law. \[66\] Where after abandonment, the landlord relets in his own name, the tenancy is terminated; \[65\] but where a right to abandon premises arises, the tenant must

\*\*61. Price v. Grice II(a)no 19 P. 387. 62. Parker v. Brown, 136 N. C. 280, 48 S. E. 657. Tenant on shares may assert his rights against his landlord by a laboratory. Iben, but cannot maintain treatment. De Loach v. V. Delk, 119 Ga. 88, 47 S. E. 204. Failure of \[66\], a tenant to use for recovery of possession after entry, dispossession and seizure of crops by the landlord does not defeat the tenant's right to recover the value of the crops. Fagan v. Vogt \[Tex, Civp.\] 88 S. V. 664. In an action for breach of a lease upon royalties, evidence as to what the owner would take for the property, is handling. \[66\] A lease upon shares made in relating to the measure of damages. \[66\] Burwell v. Brodie, 134 N. C. 540, 47 S. E. 47. 68. Parker v. Brown, 136 N. C. 280, 48 S. E. 657. 64. Meyer v. Lyleesley \[Or\] 78 P. 670. 65. Acme Oil & Mining Co. v. William, 140 Cal. 681, 74 P. 296. See \[66\], 85 Carr. L. 684. Martin v. Crosley, 91 N. Y. S. 712. Gartin v. Hickman \[W. Va\] 49 S. E. 14. Hecklau v. Hauser \[N. J. Law\] 59 A. 18. 70. Anzolone v. Parkusz, 96 App. Div. 188. 89 N. Y. S. 203. 89 N. Y. S. 203. 4 Curr. Law--26. \[71\] Foley v. Constantin, 43 Misc. 91, 86 N. Y. S. 780. 72. Walker Ice Co. v. American Steel & Wire 73. 158 Mass, 462, 70 N. E. 597. Hiselc Hv. Veegner \[Vi\] 101 N. V. V. Delk, 119 Ga. 88, 47 S. E. 204. Failure of \[Vi\] 74. Wilson v. Wood \[Miss.\] 36 So. 609. after entry, dispossession and seizure of crops by the landlord does not defeat the tenants' right to recover the value of the crops. Fagan v. Vogt \[Tex, Civp.\] 88 S. V. 664. In an action for breach of a lease upon royalties, evidence as to what the owner would take for the property, is handling. \[72\] A lease upon shares made in reliance on the personal character of the lessee is not assignable without consent of the lessee. \[73\] An oil lease in consideration of royalties contains an implied covenant for diligent operation after oil is struck.

remove with reasonable promptitable." Manual delivery is often material in determining surrender," though in general the acceptance of a new lease by the lessee constitutes a surrender of the preceding one." The acceptance of surrender of a lease terminates the relation of landlord and tenant," is a bar to recovery for a breach of covenant," and though in case of surrender between rent days, the tenant is discharged from liability for rent from the last rent day," it has no effect upon accrued rent, though payable in advance." An acceptance may be by the secretary of a corporation," or by an agent having authority to modify a lease, though it provide for surrender only upon the written consent of the landlord." Formal notice of an intention to vacate is not necessary." An eviction may consist of the exclusion of the tenant from a substantial portion of the dcmised premises," the renting of a part of the building for lewd purposes," the arbitrary exclusion of a tenant's servant from the use of the elevator," failure to heat as agreed," or the alteration," or damage by fire of the premises destroying their usefulness;" but allowing premises to fall into a state of decay does not necessarily constitute an eviction, nor a breach of a covenant for quiet enjoyment," nor do alterations, improvements and repairs made with the consent of the tenant," nor an assault upon a tenant by a hall boy, even if imputable to the landlord;" neither does violation by a co-tenant, of a lease provision against practicing upon musical instruments." Whether the acts of a landlord amount to an eviction is frequently a question of fact."

Destruction of premises." Since the renting of a building carries with it the subjacent land, the destruction of the building does not necessarily terminate the relation of landlord and tenant."

_Forfeiture._" The general rule is that forfeitures are discontinuanced by the 4 Cur. Law. Landlord and tenant $ 8.

courts,\[11\] and the requirements of a lease must be strictly followed by the lessor before a forfeiture will be enforced against the lessee.\[12\] The right of forfeiture may be exercised by the covenantee only,\[13\] who may waive his rights;\[14\] but the assignee of a lessor who has waived a forfeiture cannot enforce such forfeiture.\[18\] Generally the acceptance of rent is a recognition of a continuation of the tenancy and a waiver of forfeiture;\[16\] but the acceptance of rent after an alleged breach of a continuing condition is no bar to a recovery for subsequent breaches.\[17\] A tender, after forfeiture, of royalties due under a lease, is not a bar to the lessor's right to insist on the forfeiture.\[14\] Forfeiture of oil and gas lease is worked by failure to drill within the prescribed time or to pay the rental;\[19\] but such a forfeiture does not carry with it the oil derricks and machinery.\[20\]

_Notice to vacate and demand of possession.\[21\]_--A notice to vacate for breach of covenants must be sufficiently specific to inform the tenant of the breach complained of,\[22\] but in general a substantial compliance with the statute as to notice is sufficient.\[23\] Service upon one of two or more partners,\[24\] or in the tenant's absence, upon his wife,\[25\] or upon his agent who on the same day delivered the notice to his principal, is sufficient.\[26\] The reasonableness of a notice to vacate must depend upon the surrounding circumstances.\[27\] Permission to a tenant to remain, notice to quit having been served, may constitute a withdrawal of the notice,\[28\] as may the giving of a second notice.\[29\] One holding by claim of adverse title is not entitled to notice to remove before suit is brought.\[30\] Under a lease giving the tenant a refusal of the premises from month to month, the tenancy terminates at the end of each month and no notice to quit is necessary.\[31\] A tenant claiming to hold a lease for a definite term is not estopped from claiming as a tenant at will and entitled to the statutory notice, where by the landlord's own case a tenancy at will exists.\[32\] A demand for possession is sufficient to prevent a renewal by continued occupancy,\[33\] and proof of service of notice to quit will overcome a presumption that a tenant is holding over with permission of the landlord.\[34\] A notice served on the 2nd to quit on the 23rd of the same month, being the end of the monthly rent period, is sufficient in Washington.\[35\] In Nebraska a tenant in default of rent is entitled to but three days' notice.\[36\] In Vermont no notice to quit is necessary in case of a lessee holding over after termination of a lease by its own limitation or after breach by him of a stipulation contained therein.\[37\]

\_Renewal under express agreement.\[38\]--\_Unless otherwise provided a renewal is for the term and according to the conditions of the original agreement;\[39\] but the law does not favor agreements for perpetual renewal.\[40\] Provisions relating to renewals are generally construed against the landlord,\[41\] and upon his breach of covenant for renewal, the lessee may require specific performance,\[42\] where the conduct of the tenant as such has not been inequitable,\[43\] or he has not waived his right to a renewal.\[44\] A lease for a term of years with option to the lessor to renew for another like period or else pay for buildings erected by the lessee is satisfied by one renewal.\[45\] The acceptance of a new lease is equivalent to a surrender of possession and a re-entry under the new tenancy,\[46\] and releases a surety on the prior agreement.\[47\] Where a lease provides for renewal upon notice, the tenant must affirmatively express his election unless waived by the landlord;\[48\] but under a demise allowing renewal without requiring a written notice thereof, mere holding over may be sufficient.\[40\] A holding over pursuant to a new verbal letting constitutes a tenancy from month to month of a city leasehold.\[50\]

\_Holding over without agreement.\[51\]--\_A holding over without a new lease is pre-

32. Comp. Laws 1897, $ 9257. Simons v. Detroit Twist Drill Co. \[Mich.\] 99 N. W. 862. 33. Drinkard v. Hepinstall \[V. Va.\] 47 S. E. 72. 34. Thull v. Allen \[Neb.\] 101 N. W. 1024. 35. Teater v. King, 35 Wash. 138, 76 P. 688. 36. Hutzel v. Draper \[Neb.\] 99 N. W. 263. 37. Wheeler v. Wheeler \[Vt.\] 59 A. 842. 38. See 2 Curr. L. 687. 39. Gerhart Realty Co. v. Brecht \[Mo.\] 84 S. W. 216. Does not carry with it a parol contract made subsequent to the former lease. Slack v. Knox, 213 Ill. 190, 72 N. E. 746. 40. "With the privilege of renewal at the same rate and terms each year thereafter from year to year" constituted letting from month to month after expiration of terms specified. Tischner v. Rutledge, 35 Wash. 285, 77 P. 88. 41. Kaufmann v. Liggett, 209 Pa. 87, 58 A. 129. A lesser violating a covenant for renewal cannot require a strict compliance with the lessee's covenants. Warner v. Cochrane \[C. C. A.\] 128 F. 55. The covenants of an existing lease may furnish consideration for a contract of renewal. Brown v. Montgomcr, 21 Pa. Super. Ct. 262. Upon renewal equity will not compel an arbitration, though provided for in the lease, but will order an apprisement. Disagreement of arbitrators does not divest a tenant of his rights. Kaufmann v. Liggett, 209 Pa. 87, 58 A. 129. 42. Warner v. Cochrane \[C. C. A.\] 128 F. 553: Neidenstein v. Cusick, 178 N. Y. 543, 71 N. E. 100. 43. Bankruptcy of tenant not sufficient ground for annulting the renewal clause. Olden v. Sassman \[N. J. Eq.\] 57 A. 1075. 44. Whitaker v. Hughes \[OK\], 18 P. 383. 45. Powell v. Pierce \[Vt.\] 49 S. E. 666. 46. City of St. Louis v. Nelson \[Mo. App.\] 83 S. W. 271. 47. Reading Trust Co. v. Jackson, 23 Pa. Super. Ct. 69. 48. Spanpler v. Rogers, 123 Iowa, 724, 89 N. W. 580; Keppler Bros, v. Heinrichdorf, 5 Ohio C. C. (N. S.) 112; Gerhart Realty Co. v. Brecht \[Mo. App.\] 84 S. W. 216. More holding over is not sufficient, though the lease covenanted not to relinguish the premises without the written consent of the lease. Sponsiger v. Rogers, 123 Iowa, 724, 99 N. W. 580. Evidence held to show the necessity of a new lease to operate as a renewal under an option therefor. Werlein v. Janssen, 112 Lk 241, 36 S. 216. 49. Gerhart Realty Co. v. Brecht \[Mo. App.\] 84 S. W. 2 4 Cur. Law. LANDLORD AND TENANT SS 9. 405

sumed to be upon the conditions of the expired agreement," though in some states a one-year term is thereby implied." Payment of a specified increase of rent constitutes an acceptance of the premises at such amount for another term." The holding over of one under authority of the lessee is binding upon the latter."

8 9. _Landlord's remedies for recovery of rent. Parties and procedure generally."_."A lessee and one joint lesser may be estopped from objecting to a recovery by the other leasor, of the rent due." In Missouri to entitle a purchaser of land under lease to bring suit for the rent, a demand therefor must be made together with an exhibit of the deed under which he claims." The relation of landlord and tenant is a prerequisite to an action for use and occupation," and there can be no recovery in the absence of proof as to the rental value" and its nonpayment by the tenant;" but whether or not rent was demanded is immaterial." Assumpstuantum merit will not lie for a recovery of rent under an express contract to pay at a particular time or in a particular way," and upon an attempted recovery for use and occupation at an agreed monthly rent or a reasonable rate, no recovery can be had on the theory of a tenancy at will with payments of rent annually due." To compel election between inconsistent remedies both must exist at the time of resort to one of them." An action for recovery of rent is not barred by previous action for recovery of possession and for mesne profits," nor is it a waiver of the right of forfeiture of the lease for nonpayment of such rent, nor a bar to a forceable detainer action." A tenant abandoning his term is acquitted of liability only when the lessor accepts the surrender."

the premisses after the expiration of the lease as co-tenants of the plaintiff, and are liable, at most. only for occupation rent. Valen-time v. Healy. 178 N. Y. 391.

The tendency of the more recent decisions, as well as the English practice, is opposed to the New York rule that a tenant in common who has taken a lease of the moiety of his co-tenant, is not liable as under a new lease for holding over. See O'Connor v.

Plenary, SS 3 Minn, 247, 39 Am. Mt. Rep. 601.

Lelgh v. Dickson, L. R. 15 Q. B. Div. 60.

The New York court has, however, extended the whole of the contract, regardless of the principle by including within it the case states. It is clear that the firm of B and C (vations. Shinn v. Guyton & H. Mule Co. occupied the premises purely by virtue of the \[16\], \[17\], \[18\], \[19\], \[20\], \[21\], \[22\], \[23\], \[24\], \[25\], \[26\], \[27\], \[28\], \[29\], \[30\], \[31\], \[32\], \[33\], \[34\], \[35\], \[36\], \[37\], \[38\], \[39\], \[40\], \[41\], \[42\], \[43\], \[44\], \[45\], \[46\], \[47\], \[48\], \[49\], \[50\], \[51\], \[52\], \[53\], \[54\], \[55\], \[56\], \[57\], \[58\], \[59\], \[60\], \[61\], \[62\], \[63\], \[64\], \[65\], \[66\], \[67\], \[68\], \[69\], \[70\], \[71\], \[72\], \[73\], \[74\], \[75\], \[76\], \[77\], \[78\], \[79\], \[80\], \[81\], \[82\], \[83\], \[84\], \[85\], \[86\], \[87\], \[88\], \[89\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[93\], \[95\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[90\], \[91\], \[92\], \[93\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[90\], \[91\], \[92\], \[94\], \[95\], \[96\], \[97\], \[98\], \[99\], \[99\], \[99\], \[90\], \[91\], \[93\], \[94\], \[95\], \[97\], \[98\], \[99\], \[99\], \[99\], \[99\] A lessee is responsible for the rent of property in possession of his subtenants not in privity of contract with the lessor,60 and it will not be presumed that the tenant had assigned his lease in the absence of proof that another was in possession of the entire premises.70 A guaranty of rent, under seal, imports a consideration and suit may be brought thereon for a default in the rent.71 In Kansas a recovery of rent, where the relation of landlord and tenant is implied as a matter of law, is limited to a period of three years prior to commencement of the action.72 The general rules as to procedure and evidence apply.73 Judgment for rent and eviction is conclusive of the existence of the relation of landlord and tenant, the validity of the lease and the landlord's right to regain possession.74

_Stipulated right to relet.75_

_Distress.76_--In general, at common law, all goods and chattels upon the premises were liable to distress for rent;77 among the many exceptions to this rule are the exemptions of goods entrusted to an agent to be sold on commission,78 property held by the tenant as bailee,79 goods of the tenant taken in execution though remaining on the premises,80 and household goods belonging to a stranger not in a house but temporarily standing on the sidewalk in course of removal to a wagon.81 The filing of a counter-affidavit to a distress warrant is a plea to the merits,82 and converts the warrant into mesne process, the proceeding then amounting to a suit for rent.83 For a wrongful distress, a tenant in Pennsylvania may bring replevin, or an action under the state statute, or the statute of Marlbridge or under the common law.84 The creation of another lion upon the property is not effectual to defeat the landlord's right to distress for one year's rent;85 and by statute in Virginia a landlord may distrain for more than one year's rent if no lion has been created upon the property before levy of the distress warrant.86

Harding v. Austin, $8 App. Div. 564, $7 N. $87. $87. $87. $87. $88. $8.

4 Cur. Law. LANDLORD AND TENANT SS 9. 407

_Attachment.\*_--The procuring of an attachment instead of a distress warrant is not a ground for exemplary damages.\*

_Liens and securities for payment of rent.\*_--Upon. the removal of property pledged for rent, it is for the landlord to determine as to the sufficiency of the property remaining.\* A landlord's lien upon the crops for rent is for a debt so in the nature of purchase money that it is superior to the statutory exemptions,\* and takes precedence over purchas or incumbrances accruing subsequent to the attaching of the lien.*2 it extends to the crops of the tenant,*3 or those raised by his sublessee or assignee,*4 and may be asserted against the products or the purchaser thereof,*5 but does not attach to crops shipped out of the state.*6 An assignee of rent cannot claim a right to a lien upon crops as a landlord.*7 Some statutory provisions are considered in the notes.* A landlord waives his lien upon the crops or animals of his tenant by consenting to their sale,*9 or being a witness thereof without objection.* A waiver in favor of materialmen to a specified amount inures to the benefit of all furnishers in their order of service up to that amount.* A crop against which a landlord has a claim for advances is considered in the possession of the landlord so long as it remains upon the rented premises,* but a mere direction by a tenant to a landlord, claiming a lien upon the crops, to go and attach them does not make the landlord owner thereof.* A landlord's lien cannot be foreclosed on the trial of the right to property attached as that of the tenant and claimed by the landlord.* In Georgia a tenant's creditor may contest by affidavit, the alleged lien, whereupon the issue is tried as in other causes.* Failure by a tenant to file a counter-affidavit in proceedings to foreclose a landlord's lien and a subsequent private sale after levy

**87. See 2 Curr. L. 690. 88. LLawson v. Goodwin \[Tex. Civ. App.\] 84**

**88.** We 279. 89. See 2 Curr. L. 690. 90. If he believes himself insecure, the landlord may sieze for the rent whether due or to become due. Millot v. Conrad, 112 La. 928, 36 So. 807. 91. Exemption. Civ. Code 1895, $ 2866 et seq. Shirling v. Kennon, 119 Ga. 501, 46 S. E. 680. A landlord?s lien upon the crop is superior to the claim for an allowance for the tenant's widow. Walker v. Patterson's Estate \[Tex. Civ. App.\] 77 S. W. 437. But see Parker v. Brown, 136 N. C. 280, 48 S. E. 657. 92. Staber v. Collins \[Iowa\] 100 N. W. 827. It cannot be affected by the tenant's false statements to a purchaser of the crop \[Iien by Rev. St. 1899, $ 4115\]. Williams v. De Lisle Store Co., 104 Mo. App. 567, 79 S. W. 487. 93. Edwards v. Anderson \[Tex. Civ. App.\] 82 S. W. 659. Not for an indebtedness arising from the pastmage of stock or hire of a team not used in cultivating the farm. Tucker, Zeev & Co. v. Thomas \[Tex. Civ. App.\] 80 S. W. 649. 94. Edwards v. Anderson \[Tex. Civ. App.\] 82 S. W. 659. 95. 96. Ball v. Sledge, 82 Miss. 749, 35 So. 447. 97. State v. Elmore \[S. C.\] 46 S. E. 939. 98. In Mississippi a landlord has a lien on all agricultural products raised on the premises, as security for rent and supplies for the current year. Ball v. Sledge, 82 Miss. 749, 85 So. 447. A landlord will not be allowed a lien for a year's rent under the premise of the landlord.\*10 The Pennsylvania statute where upon a sale is not a lien, but the demand is not 1408 LANDLORD AND TENANT SS 10. 4 Cur. Law.

is not a bar to an action of trover by the tenant.7 The South Carolina landlord

lien act has been held constitutional.8

8 10. \_Landlord's remedies for recovery of premises.9--\_Ejectment is the proper action for re-entry under a lease, when possession and a right to a deficiency from reletting on account is sought,10 and "justice ejectment" is available where a tenancy for life, created by contract, is involved.11 Summary proceedings are available upon default in the rent,11 though the lease give a right of re-entry.13 After the giving of notice to terminate a tenancy for breach of covenant, the landlord may resort to summary proceedings,14 and a lease provision requiring the lease to give thirty days' notice to enforce forfeiture because of breach of covenants is not a bar to an action for possession for non-payment of rent.14 A landlord cannot maintain summary proceedings against a tenant holding under an invalid lease where there has been no termination of tenancy by notice or limitation,16 nor for a failure to pay a specified penalty for a breach of covenants for improvements.17 Failure to farm land in a good and husbandlike manner is not waste entilting the landlord to a recovery of possession.18 Where, a tenant is in possession, equity has no jurisdiction to enforce a forfeiture of the lease, the lease having an adequate remedy at law.19 An action of forceable detainer will not lie where only questions of title are involved;10 the question of possession can alone be determined.21 The mere delivery of the key by the tenant to the landlord does not entitle the latter to enter and expel by force the tenant who continues in actual possession.22

4 Cur. Law. LANDLORD AND TENANT SS 10. 409

a tenancy.\[92\] In an action for possession for nonpayment of rent, counterclaims or set-offs are not admissible,\[33\] nor can defendant set up his equitable title,\[34\] nor justify possession under a lease which he has repudiated by his plea,\[35\] but he may show the conditions under which he holds.\[36\] An unrecorded written memorandum of a lease for four years is insufficient to support the possession of a tenant against summary proceedings brought by a subsequent bona fide purchaser.\[37\] Proceedings begun before the complete expiration of the time allowed for payment of rent will be dismissed.\[28\] Judgment for tenant is an'estoppel on the landlord only as to what was or what should have been decided.\[39\] Jurisdiction to try an action for possession depends upon the existence of the landlord and tenant relation at commencement of suit,\[40\] and not the amount involved.\[41\] In New Jersey a justice loses jurisdiction by refusing to summon a jury unless the costs therefor are advanced or secured.\[42\] In Georgia exclusive jurisdiction of proceedings against a tenant holding over is vested in the superior court.\[48\] A court of equity may restrain summary proceedings.\[44\] A writ of restitution issued at the commencement or during the pendency of an action is in general governed by the same principles of law as a writ of attachment on other ancillary process in the main cause.\[45\] An order of dispossession is not entered by default and subject to vacation by the court where one of a firm properly served appeared and consented to its issuance.\[48\] Assumpsit for rent will not bar an action for possession unless the rent be paid within the time specified by the notice.\[47\] Some statutory provisions are considered in the notes.\[48\] An equitable defense is not available in a common-law action of ejettment.\[49\] Where a lease expires by its own limitation, no written demand by the landlord for possession is necessary before bringing an action for forcible detainer.\[50\] Under a lease providing for the immediate issuance of a hab. fa. poss. upon failure to surrender possession.

**32.** Civ. Code 1895, SS 4813 et seq. Patrick v. Cobb \[Ga.\] 49 S, E. 806. **33.** Hunter v. Porter \[Idaho\] 77 P. 434. **34.** Guttrel v. Moran \[Mich.\] 101 N. W. **34.** 561.\*\* Bond v. Chapman, 34 Wash. 606, 76 P. **57.** Jones v. Seward, 13 Okl. 711, 76 P. 154. **55.** Rausch v. Briefer \[Mich.\] 101 N. W. **523.** Wheeler v. Wheeler \[Vt.\] 59 A. 842. **37.** Laws 1886, p. 607, c. 547, SS 240, 241. **38.** Hutter v. Morin \[Idaho\] 77 P. 434. **39.** 58.\*\* N. Y. S. **30.** Check v. Preston \[Ind. App.\] 72 N. E. 1048. **30.** Does not prevent landlord from showing value of crops in subsequent action. **31.** Burwell v. Brodie, 134 N. C. 540, 47 S. B. 47. **40.** Jurisdiction not affected so far as costs are concerned by demolition of the building during an appeal and subsequent retrial. Simmons v. Pepe, 43 Misc. 661, 88 N. Y. S. **120.**

**41.** Schumann Piano Co. v. Mark, 208 III. **282, 70 N. E. 226. **42.** Story v. Walker \[N. J. Law\] 68 A. 343.** But judge of City Court of Montrle may administer south to affanus in such proceedings and may issue a warrant to be returned to the Superior Court. Stephenson v. Warren, 119 Ga. 604, 46 S. E. 647. **44.** Kanfmann v. Liggett, 209 Pa. 87, 58 A. 129. **45.** Teater v. King, 35 Wash. 138, 76 P. **588.** one is not liable in trespass for failing to wait five days after termination of the lease before the issuance of such writ.\[51\]

SS 11. _Liability of third persons to landlord or tenant.\[52\]_--Both the tenant and the landlord may sue for injuries to their estate in the premises\[53\] proximately resulting from one's negligence.\[54\] A tenant rightfully removing the goods of his predecessor has no control over such goods after their removal,\[55\] and if instead of delivering them upon demand, he moves and stores them he is guilty of conversion.\[50\] In Missouri one knowingly purchasing crops grown upon den-mised lands is liable to the landlord for the unpaid rent, to the value of such purchase,\[57\] but not as for a conversion unless purchasing with knowledge of a lien.\[58\] A recorded lease is notice to everyone of its existence.\[59\]

SS 12. _Crimes and penalties.\[50\]_--In some states it is a misdemeanor for a tenant to remove crops without consent of the landlord or five days' notice of an intention to make such removal,\[51\] but disposal of crops without consent of an assignee of rent is not criminal, such assignee not being a landlord and entitled to a lien.\[52\] It is no defense that the tenant had suffered damage by the landlord's breach of contract, equal to the rents and advancements.\[63\] An officer removing goods from premises upon execution of a writ of restitution is not amenable for their remaining upon the sidewalk for an unreasonable time.\[54\]

LARD PATENTS, see latest topical index.

LARGENY.

SS 1. Common Law Lareeny (410).

SS 2. Statutory Lareeny, Theft, etc. (412).

SS 3. Indiement and Prosecution (412).

A. Indictment (412).

E. Instructions (416).

B. Admissibility of Evidence (414).

F. Trial, Sentence and Review (417).

SS 1. _Common law lareeny.\[1\]_--Lareeny is the felonious taking and carrying away\[2\] of the personal property\[3\] of another,\[4\] with intent to convert it to the use

SS1. Dickson v. Wood, 209 Pa. 345, 58 A.

Proceeds of property applied upon a mort-sge given by tenant and landlord. Smith V. State, 139 Ala. 115, 36 So. 727.

SS2. State v. Elmore \[S. C.\] 46 S. E. 938.

SS4. State v. Bell \[N. C.\] 49 S. E. 163.

SS4. Williams v. District of Columbia, 22 App. D. C. 471.

Cottunowear Mifg. Co. v. Pittsburgh Shose Co.,

1. See 2 Curr. L. 696.

72 N. H. 546, 68 A. 242. Whether the officer executing a writ of restitution removed goods from other than the "store floor" or certain premises was for the jury. Morality v. Wagner, 88 App. Div. 612, 84 N. Y. S. 864.

SS4. Pittsburgh Cottunowear Mifg. Co. v. Pittsburgh Shose Co., 72 N. H. 546, 58 A. 242.

SS5. McGonigule v. Belleis C. \[Mass.\]

71 N. E. 569.

SS7. Rev. St. 1899, $ 4123. Williams v. De Liske Store Co., 104 Mo. App. 567, 79 S. W.

487.

SS8. Crane v. Murray \[Mo. App.\] 80 S. W.

SS9. Laws 1896, p. 615, c. 547, $ 266. Reid v. Long Lake, 44 Misc. 370, 89 N. Y. S. 933. No fraudulent or wrongful act of the recording officer can change its character as a recorded instrument. Id.

60. See 2 Curr. L. 696.

01. Code, $ 1759. State v. Bell \[N. C.\] 49 S. E. 163. Evidence held insuffeent to ass-tain a construction for disposing of property to defrund a landlord of his lien for rent.

01. State v. Elmore \[S. C.\] 49 S. E. 164.

01. State v. Carr \[Del. Gen. Sess.\] 57 A.

01. Code, $ 1759. State v. Bell \[N. C.\] 49 S. E. 163. Evidence held insuffeent to ass-tain a construction for disposing of property to defrund a landlord of his lien for rent.

01. The proof of the of the taker,\[5\] without consent of the owner.\[4\] Where the taking is under circumstances showing a want of felonious intent,\[7\] such as a claim of ownership in one's self,\[8\] or for any purpose excluding the presumption of intent to deprive the owner of his property,\[9\] there is no larency. A bailee who has lawful possession cannot commit larency.\[10\] The subsequent wrongful conversion of property by one who has received it from the owner in good faith does not constitute larency.\[11\] Where possession is obtained by means of a trick or device, the offense is made out;\[12\] but false representations inducing one to part unconditionally with the title to goods do not constitute larency.\[13\] If defendant came into possession in good faith with the owner's consent, a subsequent conversion will not amount to larency;\[14\]

which is inclosed by stakes or otherwise,\[8\] mistaken, he cannot be convicted of larency.\[8\] sufficiently to show private possession, are\[8\] Brid v. State (Fla.) 37 So. 525. That the not part of reality, but chatlets, and therefore the subject of larency, People v. Wanner,\[4\] distinct with a felonious intent. Removal\[4\] Misse. 136, 88 N. Y. S. 281. As to larency of lorecy flank a public building and voluntary restoration of substantially the same kind and value. Fletcher v. Com.\[8\] 80 S. W. 1089. Retention of deposition by dependent for purpose of submission to his attorney. Parv v. Loder, 97 App. Div. 218, 89 N. Y. S. 823.

\[8\] 8. McCCarry, V. State \[Tex. Cr. App.\] 80 S. W. 373; Hull V. State \[Tex. Cr. App.\] 80 S. W. 380. See 2 Curr. L. 696, n. G. Can be no larency where one takes property under bona fide belief that it is his own. State v. Wasson \[Iowa\] 101 N. W. 1125.

\[9\] 8. Jackson V. State \[Tex. Cr. App.\] 79 S. W. 521. See 2 Curr. L. 697, n. 11. Where one is seen taking goods from a building adjoining one that is on fire, it is a question for the jury whether it was with an intent to remove the goods to a place of safety or to steal them. People v. Smith, 143 Cal. 597, 77. 449.

\[10\] 8. State v. Seency \[Del. Gen. Sess.\] 59 A. 48. See 2 Curr. L. 697, n. 13.

\[11\] 8. State v. Teller \[Or.\] 78 P. 980.

\[12\] 8. See 2 Curr. L. 697, n. 16. Short chan-ging. Flynn v. State \[Tex. Cr. App.\] 83 S. W. 206. Where persons conspire to cheat a man under color of a bet, and the simply deposits his money as a stake with one of them, not meaning thereby to part with the ownership therein, they, by taking the money, commit larency. Hindman v. State \[Ark.\] 81 S. W. 336; State v. Boatright, 182 Mo. App. 33, 81 S. W. 450. Where the ownership of the property is not parted with but possession alone is obtained by a fraud or trick with intent to convert the property and permanently deprive the owner of it, and it is converted to the use of the taker without the owner's consent, the offense is larency at common law and under the Missouri statute. State v. Copenhagen \[Mo.\] 84 S. W. 942. Lock game held to constitute larency where prosecutor never intended to part with title to his money, and not obj-taining money by trick or confidence game prohibited by Mo. Rev. St. 1899, 8 2213. Id. Indine one to deposit money as security. State v. Buck \[Mo.\] 84 S. W. 951.

\[13\] 8. See 2 Curr. L. 697, n. 17. Otherwise where the testimony shows that the title has not passed. Hunt v. State \[Ark.\] 79 S. W. 769; State v. Buck \[Mo.\] 84 S. W. 951; State v. Copeman \[Mo.\] 84 S. W. 942.

\[14\] 8. Abrams v. State \[Ga.\] 48 S. E. 965. See 2 Curr. L. 697.

413LARCENY SS 2. 4Cur. Law.

but if an intent to convert was present at the time of coming into possession, it is lareeny.\[15\] One attempting to steal a horse, but frustrated after procuring the bridle and saddle, may be convicted of stealing these but not the horse.\[16\] One aiding and abetting another in the commission of the offense is equally guilty.\[17\] Where defendant in the course of an hour and a half obtained from prosecutor money with which to buy liquor, in all amounting to $80, this was one continuous transaction, constituting a felony.\[18\] Under the Kentucky statute, making it an offense for any carrier, porter.or other person to whom money is confided for carriage, to embezzle the same, the offense consists in the fraudulent appropriation, without reference to the amount, of the money.\[19\]

SS 2. _Statutory lareeny, theft, etc.\[20\]_--Notwithstanding that lareeny from a railroad car be made a specific offense, yet if at the time of the lareeny, the car is within a house, the same act would also be lareeny from the house.\[21\] Loose lumber not a part of the building or fixtures is not within a statute prohibiting the felonious removal from any church, chapel or other public building of any goods, chatlels or other thing of value belonging thercto.\[22\] That a statute defining and classifying the offense of lareeny from the house did not provide a penalty is not fatal to a conviction thereunder.\[23\] Several statutory definitions and distinctions are discussed in the note.\[24\]

SS 3. _Indictment and prosecution. A. Indictment.\[25\]_--As in other cases an

15. Hiring livery, Johnson v. State, 119 of lareeny, which remain same as at comGa. 563. 46 S. E. 839; State v. Blay \[Vt.\]

mon law. State v. Copenan \[Mo.\] $4 &, V. 58 A. 794. The question of such intent is 942. Rev. St. 1899, $ 2213, providing punish-for the jury. People v. Smith, 143 Cal. 597. 77 P. 449; State v. Blay \[Vt.\] $8 &, A. 794.

game, does not apply where property is obtained by trespass, but only where victim consents to parting with title and possess-sign. No. 1142.

17. See 2 Curr. L. 698. Where cattle were stolen with the knowledge of defendant, who helped to drive them away and sell them, he is guilty of lareeny \[Pen. Outg. &, 531, subd. 3\]. People v. Mills, 178 N. Y. 274, 70 N. 786, ag. State \[Miss.\] $6 No. 541.

01. Stat. of 1903, $ 1203. Commonwealth 19. Stat. of 1903, $ 1203. Commonwealth 19. Stat. of 1903, $ 1203. Commonwealth 19. Smith \[Ky.\] $2 S. W. 236. 20. See 2 Curr. L. 698. 21. Bone v. State \[Ga.\] $8 &, S. E. 886. 22. Fletcher v. Comm. \[Ky.\] $0 S, W. 1089. 23. Penal Code 1895, $ 178. Heard v. State, 120 Qa. 848, 48 S. E. 311. 24. The Arkansas statute making it a felony to steal a cow, hug or other animal contemplates five animals \[Sand &, H. Blig.\]

by false preteness. People v. Rothstein \[N. $ 1700\]. Hutchinson v. State \[Ark.\] $8 &, Y.\] $7 12 N. E. 899. Lareeny is defined in the V. 331. The title to chang. 4395, Acts of 1895, Florida, held to be broad enough to 880, this was one continuous embrace grand lareeny. Ex parte Bush \[Fln.\] $7 So. 171. The Georgia Penal Code of 1895 was intended to make the stealing employment pointed out. Flor v. Terri-of baled cotton a felony, regardless of value (Okl.) $7 P. 565. The Texas statute or of the place where the cotton was stored. Hail v. State, 120 Ga. 143, 47 S. E. 519. In \[Chaterater's of theft, one of property taken privately without the knowledge of the steling includes no lesser offense. State v. Gouvernale. 112 La. 966, 36 So. 817. The kaleins statute of 1902, to the extent that make resistance \[arl. 880, subd. 2, Pen. Code 1896\]. Steele v. State \[Tex. Cr. App.\] is unconstitutional \[Acet No. 107 of 1902\]. $1 S. W. 962. Sec Carroll v. State \[Ga.\] $8 State v. Dalcourt, 112 La. 420, 36 So. 479. S. E. 909, for similar statute. In order to **Missouri** Rev. St. 1899, $ 189
26\. Melvin v. State, 120 Ga. 490, 48 S. E. It is no variance that the latency was of a 198. An Indictment alleging that accused the indicated being for latency of the longest path. Hunt v. State \[Ark.\] 79 S. W. 769. commmit a heft of horses which he had hired is not defective for failure to allege that accused was a party to the contract of hiring. Harrold v. State \[Tex. Cr. App.\] v. State \[Tex. Cr. App.\] 80 S. W. 728. An Indictment charging the unlawful, willful and felonious taking and driving away of a horse from the possession of the owner, naming him, giving a description of the property, and fixing the time and venue, is sufficient. State v. Rooke \[Idahol 79 P. 82.

27. See 2 Curr. L. 699, n. 53. To charge that one did "unlawfully and wrongfully and errors", v. State \[Tex. Cr. App.\] 80 S. W. 630.

01. State v. Minch \[Minn.\] 102 N. W. 207. Describing property as "one shovel, of the value of one dollar," its too general. Melvin v. State, 120 Ga. 490, 48 S. E. 198. Description held sufficient. Bone v. State, 120 Ga. 866, 48 S. E. 356. Indictment for sim-ple latency charging accused with stealing "one black and white male hog, of the personal goods", of a named person sufficiently describes the property. Harvey v. State \[Ga.\] 49 S. E. 674.

01. Melcendon v. State \[Ga.\] 48 S. E. 902. Hall v. State, 120 Ga. 142, 47 S. E. 519. Court s will judicially notice the denomina-tional value of money proven to have been stolen. Etcot v. State, 126 Ga. 543, 48 S. E. 315. A variance between a complaint charging the theft of a "steel strap" and an information stating that the article stolen was a "steel trap" is fatal to a conviction. Snogra v. State \[Tex. Cr. App.\] 80 S. W. 625. Where the allegation is general, in a charge of theft, that the money taken was lawful current money of the United States, the evidence must show that it was legal tender or legal tender currency of the United States. Nickels are legal tender. Black v. State \[Tex. Cr. App.\] 79 S. W. 811.

01. Melvin v. State, 120 Ga. 490, 48 S. E. It is no variance that the latency was of a check, the indictment being for lareven of money. Hunt v. State \[Ark.\] 79 S. W. 769. commmit a heft of horses which he had hired 30. Etcot v. State, 120 Ga. 543, 48 S. E.

01. Testimony which identified money stored was a party to the contract of hiring. Harrold v. State \[Tex. Cr. App.\] 80 S. W. 728.

01. Melvin v. State, 120 Ga. 490, 48 S. E. It is no variance that the latency was of a hrose from the possession of the owner, naming him, giving a description of the property, and fixing the time and venue, is sufficient. State v. Rooke \[Idahol 79 P. 82.

01. See 2 Curr. L. 699, n. 53. To charge that one did "unlawfully and wrongfully and errors", v. State \[Tex. Cr. App.\] 80 S. W. 630.

01. Eictor v. State, 120 Ga. 543, 48 S. E. 315. Where, in an Indictment, property is alleged to have been taken by fraud and stealth, it is not necessary to set out the fraudulent acts relied on as constituting the fraud. Converision by ballee. Flohr v. Territory \[Okl.\] 78 P. 865.

01. State v. Minch \[Minn.\] 102 N. W. 207.

01. Describing property as "one shovel, of the value of one dollar," its too general. Melvin v. State, 120 Ga. 490, 48 S. E. 198. Description held sufficient. Bone v. State, 120 Ga. 866, 48 S. E. 356. Indictment for sim-ple latency charging accused with stealing "one black and white male hog, of the personal goods", of a named person sufficiently describes the property. Harvey v. State \[Ga.\] 49 S. E. 674.

01. Melcendon v. State \[Ga.\] 48 S. E. 902. Hall v. State, 120 Ga. 142, 47 S. E. 519. Court s will judicially notice the denomina-tional value of money proven to have been stolen. Etcot v. State, 120 Ga. 543, 48 S. E. 315. A variance between a complaint charging theft of a "steel strap" and an information stating that the article stolen was a "steel trap" is fatal to a conviction. Snogra v. State \[Tex. Cr. App.\] 80 S. W. 625. Where the allegation is general, in a charge of theft, that the money taken was lawful and avoidance of limitations; but ownership must be alleged.\[37\] Allegations of ownership are material and must be proven as alleged.\[28\] The misspelling of the owner's name is not a fatal variance if it is idem sonans with the true spelling.\[39\] Possession cannot be charged to be in the owner where the property is being held as lost property by one who does not know the true owner.\[40\] Several means of committing the offense may be charged in the conjunctive,\[41\] and where the act may be one of several statutory offenses, they may all be charged in different counts to meet the proof.\[42\] Clerical errors are immaterial.\[43\] (SS 3) B. Admissibility of evidence.\[44\] Declarations by accused,\[45\] his conduct,\[46\] other and different thefts,\[47\] the condition of cattle stolen,\[48\] circumstances

- 4 Cur. Law. LARCENY SS 3C. 415

bearing on the question of intent involved in the main charge,49 statements made to the prosecutor by one with whom defendant was acting in concert when the offense was committed, though made in defendant's absence,50 and all facts connected with the larceny, when part of the res gestae,51 are admissible. A local custom in regard to the rights of persons taking up and holding stray cattle cannot be shown.52 Any fact having a legitimate tendency to prove that a larceny has been committed,53 or to identify accused with the person in possession of the property, may be shown.54 A confession of one of two joint defendants is admissible only as against him.55 The state must show that defendant took the property animo frandi:58 The prosecutor may testify as to his ownership of the property.57 (SS 3) _C. Effect of possession of stolen property.58_--The possession of recently stolen property is evidence of guilt.59 Such possession raises a presumption that

thereby shown. Buck v. State \[Tex. Cr.\] State \[Ga.\] 48 S. E. 903. But in a prosecutor horse theft, it was not competent that larcenless, committed at least a year for the state to show mut an alleged defective the offense charged, by different persons under different circumstances, and by the officers about the theft of the horse. different means, is inadmissible. Betting at 1075. State \[Tex. Cr. App.\] 78 S. W. 785. 1075. On prosecution for larceny of 320 w. 450. Admission of evidence as to other 'gold piece, testimony that after arrest willcharges of larceny help proper, where close- 'golleman found $20 gold piece in 1yr introvoven with that on which defend- 'golle', though witness cannot identify par- 'g P. 82. 1075. 1075.

the person having possession is the one who stole it,"00 unless he accounts satisfactorily for his possession,"1 in which case it is incumbent upon the state to show that his explanation is false."2 The property found in defendant's possession must be identified as that belonging to the prosecuting witness."3

(SS 3) \_D. Sufficiency of evidence.\_64--It is incumbent upon the state to sustain each element of the crime by satisfactory proof."5 Cases turning on the sufficiency of the evidence to support a verdict of guilty are collected in the note."6

(SS 3) \_E. Instructions.\_67--Instructions on the liability of principals of the second degree,"88 prosecutor's custody of the property,"64 defendant's good faith in taking,"70 and the presumption arising from possession of the stolen property, are

and weighed by the jury in connection with \[Fex. Cr. App.\] 80 S. W. 870), hogs the other evidence. If a reasonable doubt \[Folard v. State \[Tex. Cr. App.\] 79 S. W. 86; Jackson v. State \[Tex. Cr. App.\] 80 S. W. 870, does the defendant is entitled to the bene-fit of it. State v. Tax \[N. J. Law\] 59 A. 18. 119; Bennett v. State \[Ark.\] 84 S. W. 843; 60. State v. Carr \[Del. Gen. Sess.\] 74 A. 370. Such possession together with false statements as to source of its possession is \[Folard v. State \[Ex. Cr. App.\] 80 S. W. 870\], hogs \[Folard v. State \[Ex. Cr. App.\] 80 S. W. 870\], hogs \[Folard v. State \[Ex. Cr. App.\] 79 S. W. 870\], hogs \[Folard v. State \[Ex. Cr. App.\] 80 S. W. 870\], hogs \[Folard v. State \[Ex.

- Cur. Law.LARCENY SS 3F.

referred to below.71 No instruction on the question of the value of the property stolen is necessary where it is immaterial under the statute.72 In Texas, failure to instruct as to a particular issue is not error in a misdemeanor case unless a proper request in writing is presented thereon and refused.73 A defendant who has produced evidence tending to sustain the issues on his part is entitled to have the jury instructed on his theory of the case.74 It is proper to refuse an instruction distinguishing between grand larceny and robbery.75 The failure of the court on a prosecution for grand larceny to give the jury a form of verdict permitting it to find defendant guilty of petit larceny is favorable to the accused, and is not a ground for reversal on appeal,76 particularly where defendant did not request an instruction permitting a conviction for the lesser crime, and the evidence showed that he was guilty of grand larceny if he was guilty of any crime.77 It is proper to refuse a charge that the jury could not find defendant guilty unless he committed the crime alone, where he is jointly indicted with another for the commission of the crime charged.78 An instruction defining the difference between larceny and obtaining money under false pretenses is not necessary where there is no evidence that the prosecutor parted with the ownership of the property or consented to defendant's conversion of it.78

(SS 3) _F. Trial, sentence and review.89_--Where there was a question whether or not witness was a detective or an accomplice with defendant in the theft, the question should have been submitted to the jury.81 Under an information for larceny from the person of a named individual in the nighttime, a verdict of guilty of larceny from "a" person in the nighttime is insufficient.82 In Louisiana a sentence of imprisonment in the penitentiary cannot be imposed where the accused has entered a plea of guilty of petit larceny.83 Notwithstanding the provision in Connecticut that one who steals chattels not exceeding $15 in value shall be given a money fine, a person stealing a horse of less than that value may be given a jail sentence.84 Sentence of 20 years under statute applicable to third offenses affirmed.85 One indicted for robbery may be convicted of larceny from the person.88

Cr. App.J 80 S. W. 380. A charge that one who, acting on the faith of a statutory provision, takes charge of an animal abandoned by its owner, cares for it, and at the end of three months sells the animal, is guilty of larceny, even though the statute proves unconstutional. 18 bad. Kueney v. Uhl \[Towal 98 N. W. 602. Charge held to have fairly submitted question whether accused took calf into his possession with fellows intent to steal it. Crockford v. State \[Neb.\] 102 N. W. 70.

71. Murray v. State \[Miss.\] 26 So. 541; State v. Lax \[N. J. Law\] 59 A. 18. Charge directing the jury not to consider defendant's recent possession of the property unless the evidence showed that he had personal and actual possession involving a distinct and conscious ownership, held favorable to defendant. Beard v. State \[Tex. Cr. App.J 83 S. W. 824.

01. Theft of horse of any value punishable under 2 Ball. Ann. Codes & St. Wash. $ 7113. State v. Washing \[Vwash.\] 78 P. 1019.

01. Hull v. State \[Tex. Cr. App.J 80 S. W. 380. Code Cr. Proc. art. 723, did not change \[Towal 101 N. W. 1125.

Curr. Law--27.

the rule. Lacett v. State \[Tex. Cr. App.J 79 S. W. 33.

74. Evidence insufficient to show that property came into defendant's hands lawfully, so as to entitle him to charge that he could not be convicted if the jury so found.

State v. Teller \[Or.\] 78 P. 980.

75. Robbery Involves grand larceny, and jury could not accept of larceny from person it facts showed robbery. People v. Clark \[Ca.\] 79 P. 434.

76, 77, 78. People v. Clark \[Ca.\] 79 P. 434.

79. State v. Copenman \[Mo.\] 84 S. W. 942.

01. See 2 Curr. L. 705.

01. Lightfoot v. State \[Tex. Cr. App.J 78 S. W. 1075.

01. State v. McGee, 181 Mo. 312, 80 S. W. 89.

01. State v. Coston \[La.\] 37 So. 619.

01. Gen. St. 1902, $ 1204. McVelgh v. Ripley \[Conn.\] 58 A. 701.

01. In re Butter \[Mich.\] 101 N. W. 630.

01. Under Iowa Code, $ 4753, making It robbery to steal and take from the person of another any property, the subject of larceny, by violence, etc. State v. Wasson \[Towa\] 101 N. W. 1125.

Lasciviousness; Lateral Railroads; Lateral Support; Law of the Case; Law of the Road; Leases; Legactis and Devises; Lingual Conclusions; Legactis; Letr-TERS; Lattrees of Credit; Leveses; Lewfulness, see latest topical index.

**LIBEL AND SLANDER.**

**1. Definitions and Distinettions (418).**

**1.** **A. Actual or Compensatory Damages (423).**

**1.** **A. In General (418).**

**2.** **B. Words Imputing Crime or Want of Chasity (419).**

**3.** **C. Arggravation of Damages (424).**

**4.** **C. Words Exposing to Contempt or Ridi- Cule (419).**

**4.** **D. Words Injuring in Business or Occupation (420).**

**5.** **E. Disparagement of Property or Title (421).**

**6.** **Fleading; Declaration, Complaint, or**

**7.** **Maile (421).**

**8.** **A. Privlege and Privileged Communlea- (425).**

**9.** **A.3** **E.1**

**9.** **B.1** **B.2** **B.3** **C.** \*\*C.

be taken in accordance with their general acceptance,"97 and given that meaning which under all the circumstances of their publication may be presumed to have been conveyed to those to whom the publication is made."88 It is not necessary that the defamatory charge or imputation shall be made in direct and positive terms, or that it shall be made as of the knowledge of the person making it."89 More words of abuse are not actionable in themselves.1

(SS 2) _B. Words imputing crime or want of chasticity.2--Slanderous words which impute the commission of some crime by the plaintiff involving moral turpitude, or which would subject the offender to an infamous punishment, are actionable per se,3 and this is true whether such crime is one at common law or has been made so by statute.4_

Footnote 4: Cur. Law.

At the early common law it was not regarded as actionable to charge a female with unchastity without showing special damage;5 but by reason of statutory changes and the trend of modern judicial opinion, it is now almost universally held actionable per se to charge another with adultery or fornication.4 (SS 2) _C. Words exposing to contempt or ridicule.7--Any false statement_

911. Words injuring in business or trade. \[an action for libel in charging complainant Jaeger v. Beberdick \[N, J. Law\] 57 A. 157. \[with taking part in a rebellion against the 97. See 2 Curr. L. 706, n. 62. Morse v. \[government of Brazil, where there is no Times-Republican Printing Co. \[Iowa\] 100\] allegation and proof of a statute making N. W. 867. \[w idng penalties therefor, the court cannot Voodward \[Mont.\] 78 P. 215. It is not necessary that the words make a charge in express terms, for they are actionable if Ishment for reason. Crashley v. Press Pub. they consist of a statement of facts which would naturally and presumably be understood by the hearers as a charge of crime. \[Minn.\] 89 N. W. 642. See, also, monographie note, 2 Curr. L. 706, Construction of words. \[See monographie note, 2 Curr. L. 709, Destamation by irony, insination, etc. The assertion of a libel, either by insination, irony, question or allusion, is the same as if asserted directly in terms. Wilkens v. Hammann, 43 Misc. 21, 86 N. Y. S. 741. It is a sound rule that the publisher of libelous matters attributed to others is liable to the person injured if such matters are published with evident sanction and are made the basis of offensive insinations, derogra, story expressions of opinion, and Injurious characterizations. Mertens v. Bee Pub. Co. \[Neb.\] 98 W. W. 847. \[N. W. 87. 1\]. The words spoken were not of themselves the basic wrong. The complaint was for wrongful exclusion from public resert. \[commanding=

Footnote 4: Cur.

420

LISEL AND SLANDER SS 2D.

4 Cur. Law.

published of or concerning another which tends to injure his reputation and thereby expose him to public hatred, contempt, scorn, obliquay or shame, is libelous per so;" thus to charge another with being afflicted with venereal disease is slanderous."

(SS 2) _D. Words injuring in business or occupation._\[10\]--Any false and malicious statement published concerning another is libelous per se when it tends to injure him in his business,\[11\] and so of publications reflecting on the character or qualifications of a professional man,\[12\] or of a public officer in the conduct of his office.\[13\] But words to be actionable on this ground must touch the plaintiff in his office, profession or trade,\[14\] and be shown to have been spoken of the party in relation thereto and to be such as would prejudice him therein.\[15\]

8. Morse v. Times-Republican Printing \[ginning "Hints to Advertisers--This is from Co. \[Towa\] 100 N. W. 867. Newspaper publication that a man is a euunch (Eckert v., Louis" is libelous per se. Midland Pub. Co. Van Pelt \[Kan.\] 76 P. 909, 66 L. R. A. 266), v. Implement Trade Journal Co. \[Mo. App.\] , that he is a common liar (Paxton v. Wood-) 83 S. W. 298. While to characterize another wwrd \[Mont.\] 78 P. 215), that plaintiff's as extravagance wife had announced that her life had been as, yet to charge that one's extravagance made unhappy because plaintiff neglected everything, her included, in his absorbing enterprise may be actionable when said of pursuit of millions and that he sacrificed \[of large enterprises in which others are everything to his one passion (V0V0V0M) \[ intersected. Daily v. De Young, 137 F. 491: 147\]. To accuse one of being a secret slan- Daily v. Engineering & Min. Journal, 94 derer and a senandal monzer, with betraying his friends, and telling lodge secrets (Patron v. Cruele \[Ark.\] 81 S. W. 830, to say of \[coception, or by any direct attack upon propo- one that in attempting to collect a bill he threatened violence with a pistol and was artery or conduct of business, or by any direct arrested (Hanson v. Krehlehl, 68 Kan. 670: 75 P. 1041). So to publish of plaintiff' of the complainant, is not within the equi-"Savant cannot make a living. Old Oxford professor and family in sad straits. He is United States. Edison v. Thomas A. Edison living with his young wife and two small \[Jr. Chemical Co., 128 F. 957. The placing of children in a house which has not a single a firm of merchants on an "unfair list" by door or window enclosed. He is too poor Clerks' Union is not libelous per se. Watson finish his dwelling and too proud to ask \[des & Son v. Retali Clerks' Union No. 479, aid" is libelous per se. Martin v. Press Pub., 120 Ga. 424, 47 S. E. 911. So of "blacklisting" Co., 93 App. Div. 631, 87 N. Y. S. 859. As an employ. Wabash R. Co. v. Young, 162 Publication describing plaintiff as "an Eng. Ind. 102, 69 N. E. 1003. To charge one with lishman of more or less indifferent repute" being a member of a labor organization ls not libelous per se where there is no in- and that he is a labor agitator is not libel-neuendo alleging the libelous meaning of ous per se. Wabash R. Co. v. Young, 162 such words. Crashley v. Press Pub. Co. (N. 102, 69 N. E. 1003. To allege that a trade journal is a fake is to charge theft, crime be imputed to the plaintiff to consult theft, the libel is on the manager of the be such that its publication naturally tends to brand him with dishonery or other con- duct or characteristic deserving the con- tempt or reproation of right minded peo- cules the private life of an author, and rep- ple. To say that "Charles was not in Boone for his health. Charles was in Boone for the other fellow's health. The other fellow's health is all that Charles left in and cannot be justified on the ground that Boone. He took everything else the other had. * * * Cholly was strictly onto his job just the same. He got away with over \[13. To publish of a director of the state $500 good hard currency" is libelous per se. Morse v. Times-Republican Printing Co. \[Iowa\] 100 N. W. 867.

1. McDonald v. Nugent, 122 Iowa, 651, 98 N. W. 566. See 2 Curr. L. 717, monographing note, Words imputing disease.

1. See 2 Curr. L. 717.

1. For a mercantile agency to report of a business house that lts bank account "is not disassed as an entirely desirable one," if false, is actionable. Mower-Hobar Co., v. H. 812. A publication be- gia Code, which makes a person liable with 4 Cur. Law. LIBEL AND SLANDER SS 4. 421

(SS 2) \_E. Disparagement of property or title.10--\_A bona fide claim of title to plaintiff's property is not actionable.11 Words disparaging property, to be actionable on that basis, must be spoken of the property and not of the person of plaintiff,12 and a publication relating to the value of shares of stock which plaintiff had advertised to sell at public sale must be shown to have been false and malicious to have caused special pecuniary damage.12

SS 3. \_Malice.20--\_Malice, express or implied, is an essential ingredient of libel,21 but where the language complained of is actionable per se, both malice and injury are presumed.22 But the malice which the law thus implies and presumes to exist is malice in law, or legal malice, as distinguished from malice in fact, or actual malice.23 Where the publication is not actionable per se, actual malice must be shown.24 The presence or absence of actual malice becomes material only as a circumstance affording a basis for increasing or diminishing the amount of recovery, and in cases involving the defense of privileged publication.25

SS 4. \_Privilege and privileged communications.26--\_Not all communications which may tend to injure are actionable. Thus any matter or thing pertinent27 and material28 to a judicial proceeding is for reasons of state policy absolutely privileged,29 even if uttered maliciously.29 The privilege extends to a full and

out proof of special damage for words spok-

so understood. Midland Pub. Co. v. Imple-

en of another in reference to his "profession" calculated to injure him therein. 238.

Flaherty V. Daley, 120 88, 48 B., 237.

19. Young v. Geiske, 209 Pa. 515, 58 A.

It is not necessary that such minister should

887.

at the time the words are spoken by recelving compensation for his services. Id. To

say of a school teacher that he is "noted,"

Montana statute, defining libel, the exist-

though used in an involutive sense, and, re-

refine to a particular district, "has done

to entitle the plaintiff to recover. Paxton

more damage and less good than any other

v. Woodward \[Mon1\] 78 P. 215.

teacher," and, referring to his application

22. See 2 Curr. L. 720, n. 77. Butler v.

for a position as teacher, "this district

23. Raven Print. Co. (Iowa1) 100 N. W. 867; Short

ed the gentleman down." does not disparage

3. Aoton \[Ind. App.\] 71 N. E. 505; McDon-

him or impute to him a lack of any quali-

40. W. Nugent, 123 Iowa, 651, 98 N. W.

01. Nyrege V. Jones \[N. D.\] 100 N. W.

to the due fulfillment of the duties of a

school teacher, and is not actionable per se.

Paxon v. Woodward \[Mon1\] 78 P. 215.

15. Patron v. Woodward \[Mon1\] 78 P.

01. To say of plaintiff that he had an

sodget daughter whom he was accustomed

to go off and live with for periods of a

98 N. W. 505; Morse V. Times-Republican

week at a time, leaving his wife at home

alone, is not actionable per se, in the absence of an alienation that the words were

spoken of plaintiff in reference to any occupation or business. Cassavoy v. Patti-

son. 93 App. Div. 87, 87 N. Y. S. 658.

16. See 2 Curr. L. 720.

01. Plaintiff must show the words were

maliciously published. Butts v. Long \[Mo. App.\] 80 S. V. 311.

18. A publication to the effect that a

h hotel kept by plaintiff was a resort for

questionable characters, and that one of

such characters probably committed a certain murder, referred to the property of

plaintiff and not to plaintiff himself. Magillo

v. New York Herald Co., 93 App. Div. 547,

87 N. Y. S. 827. A publication stating that

"Mr. Crooked \[Calvin\] K. Heffilder gets

it in the neck again" is a libel of the named

person individually and cannot be enlarged by Inunendo to apply to a corporation of

which he is manager, in the absence of an

allegation that he and the corporation are

one and the same, or that people generally

19.
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correct report of judicial proceedings, but there must be no prejudicial comment,"11 and where there is inaccuracy in the report of a judicial case, defendant may show that reasonable care was used.32

Again, whenever an author or publisher acts in the bona fide discharge of a public33 or private duty,34 legal or moral,35 or in the prosecution of his own rights,36 his statements are privileged, but only qualifieldly so.37 When a communication is privileged, it does not lose its privileged character by reason of incidentally coming to the attention of others than those for whom it was intended.38 Whether an alleged slanderous communication is privileged is a matter of law for the court to determine, when the circumstances and the occasion of the communication are undisputed.39

that defendant had inflicted an assault and not privileged, and good faith and probable battery, and testimony to the same effect canse are not a defense. Star Pub. Co. v. upon a trial, are spoken in the course of judicial proceedings, and privileged. Laing v. Mitten, 185 Mass. 233. 70 N. E. 128. But libelous matter published of a court after the conclusion of a cause is not within the privilege. Burdett v. Com. \[Va.\] 48 S. E. 878.

30. Laing v. Mitten, 185 Mass. 233, 70 N. E. 128.

01. Striking headlines to a newspaper report characterizing plaintiff as a "trator, seducer and periparer" are actionable. Dorr v. U. S., 195 U. S. 138, 49 Law. Ed. -.

01. Use of opinion filed by the court as the source of the newspaper's information sustained. O'Connell v. Boston Herald Co., 129 F. 839.

01. Newspaper reports or criticisms It is universally understood that when a citizen offers himself as a candidate for public suffrage he invites criticism of his character to the extent that such criticism is directed to his qualifications for the office to which he aspires. His obligation to submit to such criticism cannot be determined by his own feelings or belief as to the fairness and justness of the criticism. The rule is based upon considerations of public policy. namely, that the merits and demerits of public men, including candidates for pub-like office, shall be freely canvassed, to the end that the voters may make a safe and intelligent selection. Mertens v. Bee Pub. Co. \[Neb.\] 99 N. V. 847. But this privilege extends only to criticisms or expressions of opinion based upon sufficient foundation, such as admitted or proven facts, and not to false allegations of fact. The better opinion is to the effect that when a publish-er undertakes to state a fact with reference to another person which would be defamatory of the person and injurious to his reputation, there is no doctrine of privilege to shield the publisher for such misstatement of fact. If, on the other hand, the publisher, up-on certain proved or admitted facts, expresses his opinion, however severe or uncompilmentary such opinion may be, the rule of privillege will extend its protection in the absence of express malice. Id. An insurance agent as such is not a public officer, nor is his character a matter of such general public interest as to bring him within the scope of the privilege extended in this class of cases. Morse v. Times-Republican Print. Co. \[Iowa\] 100 N. V. 867. If allegations of fact in a newspaper charging a candidate for office with a criminal offense are false, they are not 4 Cur. Law. LlibEL AND SLANDER SS 7B. 433

**SS 5.**_Publication."_--Publication is an essential element of libelous defamation, \[41\] and the sending of a letter through the mail is not a publication. \[42\] But it has been said there may be publication before or after the mailing of the letter, as by dictation to a stenographer. \[43\] Every repetition or republication of a libel is a new label, \[44\] and a suit may be maintained in any county in which the newspaper is circulated, though published in another county. \[45\]

**SS 6.**_Justification."_--That the libelous matter was copied from another paper is no justification. \[47\] Good faith, when so pleaded, is available in mitigation of damages, but not as a defense, \[48\] nor is it a defense that defendant did not intend to make the charge which he did in fact make, \[48\] nor can actionable words be justified on the ground that they were intended as a jest. \[50\] That plaintiff has libeled defendant does not defeat his cause of action. \[51\]

**SS 7.**_Damages, \[32\] and the aggravation and mitigation thereof. A. Actual or compensatory damages. \[52\]_--Upon proof of words actionable per se and their application to plaintiff, he is entitled to such compensatory damages as are attributable to the publication, \[54\] without proof of special damage, \[58\] though in an action of slander in one's business, prospective profits are speculative and cannot be considered. \[59\] Shame and modification are elements of and may constitute grievous mental suffering, and are elements of actual damage. \[67\] Where only compensatory damages can be recovered, the standing of the defendant is immaterial. \[58\]

(SS 7) _B. Punitive or exemplary damages. \[69\]_--To warrant a recovery of punitive or exemplary damages, the presence of actual malice must be established, \[69\] though a newspaper publisher may be cast in punitive damages, though unaware

40. See 2 Curr. L. 722. \[41\] Sun Life Assur. Co. v. Bailey, 101 V. 443. 44 S. E. 692. \[42\] Sun Life Assur. Co. v. Bailey, 101 V. 443. 44 S. E. 692. Especially if sent to the person libeled, with no reason to suppose that it will be opened and read by any one else before he has received and read it Rumney v. Worthley \[Mass.\] 71 N. E. 316. See 2 Curr. L. 723, n. 97. \[43\] This may be by dictation of the letter to the stenographer, writing out on typewriter and subsequent signature by the author, or by making contents of the letter known to others before or after it was mailed, or in a number of other ways (dictum). Sun Life Assur. Co. v. Bailey, 101 Vn. 443, 44 S. E. 692. \[44\] Note: The same was held in Gambrill v. Schooley, 93 M. 48. following Pulman v. 997. \[45\] H11, 1 Q. B. Div. 524; but was denied in Owen v. Ogilvie Pub. Co., 82 App. Div. \[N. Y.\] 465. The negative seems supported by better reason. See comment in 8 Law Notes, 467. \[46\] Each publisher is liable to the same extent as if the calumny originated with him. Morse v. Times-Republican Print Co. \[Iowa\] 100 N. V. 867; Kersting v. White \[Mo. App.\] 80 S. W. 730. But a repetition of defamatory words, though in the presence of others made at the special request of plaintiff, does not constitute such a legal injury as will give rise to an action. Paterson v. Frazer \[Tex. Civ. App.\] 79 B. W. 1077. \[45\] Tingley v. Times Mirror Co., 144 Cal. 205, 71 T. P. 918. \[46\] See 2 Curr. L. 723. \[47\] Butler v. Barrett, 130 F. 544; Morse v. Times-Republican Print Co. \[Iowa\] 100 N. W. 867. \[48\] Morse v. Times-Republican Print Co. \[Iowa\] 100 N. W. 867. \[49\] Morse v. Times-Republican Print Co. \[Iowa\] 100 N. W. 867; Dunley v. Wolferman \[Mo. App.\] 17 B. W. 1165. The question whether defendant exercised good faith, made an honest mistake and had reasonable grounds for believing the publication true. Is under the North Carolina statute for the jury. Osborn v. Leach, 135 N. C. 628, 47 S. E. 811. \[50\] Short v. Acton \[Ind. App.\] 71 N. E. 506. \[51\] Triggs v. Sun Print & Pub. Ass'n \[N. Y.\] 1 N. E. 739. \[62\] El. See 2 Curr. L. 722, n. 90. Patton v. Cruce \[Ark.\] 81 S. W. 350. \[52\] See, generally, Damages, 3 Curr. L. 997. \[53\] See 2 Curr. L. 723. \[54\] See 2 Curr. L. 723. \[55 424 LlibEL AND SLANDER SS 7C. 4 Cur. Law. of the publication.61 Where the slander was unprivileged, plaintiff need not prove the words spoken were false to authorize a recovery of smart money.62 (SS 7) _C. Aggravation of damages.63--The circulation of defendant's newspaper is material on the question of aggravated damages.64 Where the defendant interposes substantial evidence tending to support a plea of justification, that the proof fails to support the plea does not warrant a holding as matter of law that the plea was made in bad faith.65_

(SS 7) \_D. Mitigation of damages.66--The fact that before the publication on which suit is brought plaintiff libeled defendant,67 that defendant honestly believed the published charge was true,68 that the libelous matter was copied from another newspaper,69 and an offer to retract, if made before the commencement of suit, may all be considered in mitigation of damages.70 Likewise it is open to defendant to show the bad character of plaintiff.71 The mitigating circumstances, however, must have been known to defendant at the time of publication.73 (SS 7) _E. Inadequate and excessive damages.73--Appellate courts will not interfere with the award of a jury unless the amount awarded is so grossly inadequate or excessive as to shock the moral sense and raise a reasonable presumption that the jury was actuated by passion or prejudice.74_

SS 8. _Persons liable.75--A_ corporation may be liable for libel,76 and under the Texas statute, the wife may maintain an action of slander against the husband.77 It is no defense that the defamatory matter was published by another person or newspaper, and merely copied, with or without credit,78 for one who circulates it is also liable.79\_

61. Graybill v. DeYoung, 140 Cal. 323, 73 York Eventing Journal Pub, Co., 96 App. Div. P. 1067. See 2 Curr. L. 724, 10. 376, 85 N. Y. S. 263. 62. 63. 64. 65. 66. 67. 68. 69. 60. 61. 60. 62. 63. 64. 65. 66. 67. 68. 69. 61. 61. 62. 63. 65. 66. 67. 68. 69. 60. 61. 63. 66. 68. 69. 61. 64. 66. 67. 69. 61. 65. 68. 68. 69. 61. 60. 61. 62. 64. 65. 66. 67. 68. 69. 61. 68. 69. 60. 61. 61. 63. 67. 68. 69. 61. 61. 64. 67. 69. 62. 65. 66. 68. 69. 61. 67. 68. 69. 60. 61. 61. 62. 63. 64. 65. 66. 67. 68. 69. 61. 68. 69. 60. 61. 62. 64. 67. 69. 62. 68. 69. 61. 63. 67. 69. 61. 64. 68. 69. 62. 65. 67. 68. 69. 60. 61. 69. 62. 66. 67. 68. 69. 61. 60. 63. 68. 69. 61. 64. 69. 62. 67. 69. 63. 68. 69. 60. 61. 64. 69. 62. 67. 68. 69. 61. 65. 69. 61. 66. 67. 69. 61. 68. 69. 62. 69. 63. 69. 64. 68. 69. 60. 61. 67. 69. 61. 68. 69. 60. 61. 69. 62. 69. 63. 69. 64. 69. 65. 66. 67. 68. 69. 61. 69. 60. 61. 69. 62. 69. 63. 69. 64. 69. 65. 67. 69. 66. 68. 69. 61. 69. 60. 61. 69. 61. 69. 62. 69. 63. 69. 64. 69. 66. 67. 68. 69. 69. 60. 61. 69. 61. 69. 62. 69. 61. 69. 63. 69. 64. 69. 65. 67. 69. 66. 68. 69. 69. 60. 61. 69. 60. 61.

4 Cur. Law. LIBEL AND SLANDER SS 10. 425

SS 9. \_Conditions precedent.\*0--A precedent demand for retraction is required in some states,\[81\] but the right to recover cannot be abridged by a legislative enactment that a retraction shall be full compensation for the injury.\[82\] In Colorado an action for libel cannot be maintained unless commenced within one year after the cause of action accrued.\[83\]

SS 10. \_Pleading; declaration, complaint, or petition.\[84\]--The declaration or complaint must set out the particular words used,\[85\] allege that they were published of and concerning plaintiff,\[86\] with reference to his business or occupation where that is the basis of the suit,\[87\] and where the matter complained of is not actionable per se, must allege special damage,\[88\] specifically setting forth the facts.\[89\] Plaintiff in an action for slander to title must show title.\[90\] A petition which states the actual damages at $1,000 and the punitive damages at $9,000 sufficiently complies with a code provision that where exemplary damages are recoverable, the petition shall state separately the amount thereof.\[91\] A complaint that fails to charge publication in the state will not justify service on a foreign corporation within the state.\[92\] Common-law libel and an action for insulting words under the statute cannot be blended in one count; but a publication containing insulting words may be declared on under the statute, although it is libelous at common law.\[93\]

_Colloquium and innuendo.\*0--When the words are unequivocal in their import and obviously defamatory, it is not necessary to employ colloquium or innuendo to explain their application and meaning;\[95\] but if the words be of doubtful significance, or derive their libelous character not from their own intrinsic force, but from extraneous facts, it is necessary to allege the meaning intended,_

ters spoken by others. Mertens v. Bee Pub. 88. See 2 Curr. L 725. Watters & Son Co. \[Neh.\] 99 N. W. 847. 79. 424, 47 S. E. 911. 30. 424, 47 S. E. 911. 30. 424, 47 S. E. 911. 30. 48. 50. 81. 56. 2 Curr. L. 725. 82. 49. 43. 1901 of Kan- Jans, requiring a retraction by newspapers, num clause is not the equivalent of such an instrument. 1. 48. 670, 75 P. 1041. 30. 48. 51. 31. 48. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 61. 63. 68. 69. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 70. 71. 73. 75. 78. 79. 81. 82. 83. 84. 85. 86. 87. 88. 89. 80. 81. 83. 84. 86. 88. 89. 81. 84. 89. 82. 85. 86. 87. 88. 89. 80. 82. 87. 89. 81. 84. 88. 89. 82. 83. 84. 88. 89. 80. 83. 84. 89. 84. 89. 85. 86. 87. 88. 89. 81. 88. 89. 82. 84. 89. 83. 85. 86. 87. 88. 89. 80. 84. 89. 85. 87. 89. 88. 89. 80. 81. 89. 82. 83. 84. 89. 86. 88. 89. 81. 89. 82. 84. 89. 83. 85. 87. 89. 81. 88. 89. 82. 84. 89. 85. 87. 89. 88. 89. 80. 81. 89. 82. 84. 89. 86. 88. 89. 87. 89. 88. 89. 89. 80. 81. 89. 80. 82. 84. 89. 89. 80. 83. 84. 89. 85. 87. 89. 88. 89. 81. 89. 82. 84. 89. 86. 88. 89. 89. 80. 81. 89. 82. 84. 89. 88. 89. 80. 81. 89. 82. 84. 89. 89. 80. 82. 84. 89. 89 426 LIBEL AND SLANDER SS 11. 4 Cur. Law. or set forth such extraneous facts by proper averments." Where the plaintiff by innuendo absorbies a particular meaning to the words complained of, he is bound by such meaning and cannot at the trial resort to another."

_Plea: or answer."--Under the North Dakota statute" a defendant in an action for slander or libel may answer by way of justification and mitigation, either or both, or may plead mitigating circumstances in connection with a general denial.1 The justification must be as broad as the libel.2 Alllegations in an answer that plaintiff has unsuccessfully sned other publishers for libel are immaterial,3 and one slander cannot be set up as a counterclaim against another slander.4_

\_Demurrer._5--It is ground for demurrer that it does not appear that the statutory notice for retraction was given,6 and a demurrer raising the question whether the publication complained of is libelous per se is not frivolous.7 Where an answer contained first a general denial, then "for a first, separate, and distinct defense to the complaint herein" matter solely by way of justification, and finally alleged in a distinct paragraph a reiteration of the matter stated under the separate defense of justification "as a partial defense in mitigation," plaintiff had the right to test on demurrer the sufficiency of the plea of justification as a complete defense, apart from the partial defense in mitigation.8_

_Bill of particulars._9__

_Issues, proof and variance._10__--In slander it is unnecessary for plaintiff to prove that the words alleged to have been spoken were false,11 and where the publication is libelous per se, malice and injury are presumed, and no other proof need be offered than the publication itself and the identification of the plaintiff as the person assailed.12 To constitute justification, the supporting proof must be as broad as the charge.13\_

SS 11. _Evidence._14__--Where matters alleged to be libelous are conditionally privileged, the onus of proving their falsity,15 and that they were published with malice,16 is on plaintiff; but where the published matter is actionable per se, the burden is on defendant to prove its truth or matters in mitigation.17\_

Footnote 49: See 2 4 Cur. Law. LIBEL AND SLANDER SS 12. 427

Any fact tending to establish malice,18 or the lack of it,19 the truth or falsity of the charge,20 and the extent of plaintiff's injury proximately resulting from the publication, may be shown,21 and evidence of plaintiff's general, social and business standing is admissible.22

SS 12. \_Trial.28--\_Whether a publication is actionable on its face,24 or when given a particular meaning ascribed to it by the plaintiff or defendant,25 or whether the matter complained of will bear the meaning ascribed to it by innuendo,20 and whether it was privileged,27 are questions of law; but whether ambiguous

S. W. 730. The doctrine of privilege operates to change the ordinary rules with respect to libelous matter to this extent only: it characterise his motive. Wrege v. Jones removes the presumption of malice, and makes it incumbent on the party complain- in charging plaintiff, president of an insurance company, with perjury in making his the construction of the written matter con- situuting the alleged libel, or by extrinsic facts and circumstances from which the forms of the company and found the questions answered differently in different reports for the same year, are admissible on the question of malice and in mitigation of damages. Burnham v. Franklin, 44 Misc. 299, 89 N. Y. S. 917. But an allegation that to be slandews is pleaded as a defense, the company had been excluded from doing business in certain states is immaterial. true. Hume v. Kusche, 42 Misc. 414, 87 N. Y. S. 105. Where defendant sought to extenuate the publication by showing that the article was copied from another paper, evidence was admissible to show that such such witness from whom plaintiff had purchased before the publication by defendants. Butler v. Barret, 130 F. 944. Utterances made by defendant prior to the one prosecuted for, imputing to prosecutri's adulterous conduct, are relevant as tending to prove that like utterances with which he is charged, if made in fact, were malicious. Grant v. State \[Ala.3\] 37 So. 420. A man's record at police headquarters is admissible in an action for libelbling him only on the question of malice. It is not evidence of the facts there- in stated so as to constitute justification. Carpenter v. New York Evening Journal Pub. Co., 96 App. Div. 376, 89 N. Y. S. 263. Plaintiff may, if he elect to do so, yet solely upon the libelous character of the publication to show malice, but he is not limited to it. Evidence is admissible of other defamantory charges, and of statements made by defendant, even though after the commencement of the action, which may tend to evince a wish to vex, annoyy or Injure plaintiff, but for the purpose only of proving malice, and not as affording a basis of extra compensation therefor. Patson v. Woodward \[Mont.\] 78 P. 218. Statements made by defendant at the same time, or shortly before or after, those charged in the indicment, are admissible to show intent. Stayton v. State \[Tex. Cr. App.\] 78 S. W. 1071. In an action for libel or slander, the right to recover punlory damages depends upon the presence of actual malice; and where such damages are claimed, the presence or absence of actual malice, and its degree, is a vital and material question. In such cases the defendant may, under a sufficient answer, testify directly to his intent or motive, and also as to facts and 128

LICENSES SS 1. 4 Cur. Law.

words, or words decided by the court to be capable of the special meaning ascribed to them, were in fact used and understood in such special sense, is a question of fact for the jury, taking into consideration all the circumstances under which they were uttered or published.\[28\]

It is unnecessary in instructing in a libel suit to point out the particular words in a written article which constitute the libel, but it is sufficient to charge that the article as a whole was libelous,\[29\] and an instruction that in estimating damages the jury have a right to consider the natural and necessary consequences of the publication upon plaintiff is correct.\[30\]

SS 13. _Criminal_ slander in Texas must be uttered maliciously and wantonly as well as falsely.\[31\] One who circulates a libel may be guilty of the offense d-nounced by the Michigan statute,\[32\] making it a misdemeanor to falsely charge another with the commission of a crime.\[33\]

LICENSESES.\[34\]

SS 1. Power to Require and Validity of $ 3. Assessment and Recovery; Prosecu-Startures (428). $ 2. Interpretation of Statutes and Ordinalences and Persons Subject (430). $ 4. Effect of Failure to Obtaln (432).

SS 1. \_Power to require and validity of statutes.\[35\]-License regulations are ordinarily justified as an exercise of the police power,\[36\] and the fact that some classes of persons are excepted does not make the regulation void,\[37\] though it was

28. Morning Journal Ass'n v. Duke IC. $ 2. Comp. Laws 1897, $ 11.762. $ 128. $ 65. See 2 Cur., L. $ 706, note. $ 33. Mack V. Sharf \[Mich\] 101 N. W. $ 631. The meaning intended to be given to the alleged libelous words by the defendant as $ 4. Effect of Failure to Obtaln (432). $ 1455; Insurance, 4 Curr. L. $ 157 (right to do fact for the jury. Hamilton v. Lovery \[Ind. App.\] $ 11 N. E. $ 54. If the words are ambiguous, the jury are to determine, not what the defendant intended to charge, but what in fact be did charge, and what the reading public reasonably supposed or understood. Morse v. Times-Republican Print. Co. $ 100 N. W. $ 86. In Holmes v. Crisby \[Ga.\] $ 8 E. $ 934, the general rule is stated to be that the question of libel or no libel is one of fact for the jury. $ 100 N. W. $ 86. If the words are ambiguous, the jury are to determine, not what the defendant intended to charge, but what in fact be did charge, and what the reading public reasonably supposed or understood. Morse v. Times-Republican Print. Co. $ 100 N. W. $ 86. In Holmes v. Crisby \[Ga.\] $ 8 E. $ 934, the general rule is stated to be that the question of libel or no libel is one of fact for the jury. $ 100 N. W. $ 86. If the words are ambiguous, the jury are to determine, not what the defendant intended to charge, but what in fact be did charge, and what the reading public reasonably supposed or understood. Morse v. Times-Republican Print. Co. $ 100 N. W. $ 86. In Holmes v. Crisby \[Ga.\] $ 8 E. $ 934, the general rule is stated to be that the question of libel or no libel is one of fact for the jury. $ 100 N. W. $ 86. If the words are ambiguous, the jury are to determine, not what the defendant intended to charge, but what in fact be did charge, and what the reading public reasonably supposed or understood. Morse v. Times-Republican Print. Co. $ 100 N. W. $ 86. In Holmes v. Crisby \[Ga.\] $ 8 E. $ 934, the general rule is stated to be that the question of libel or no libel is one of fact for the jury. $ 100 N. W. $ 86. If the words are ambiguous, the jury are to determine, not what the defendant intended to charge, but what in fact be did charge, and what in fact be did charge, and what in fact be did charge, and what in fact be did charge, but in fact be did charge, 4 Cur. Law. LICENSESS SS 1. 429

otherwise held where the exceptions were numerous and unreasonable,98 nor are they ordinarily construed as restraint of interstate commeree;99 but to be so sustained, they must be in some manner designed to subserve public comfort or safety,40 and must be reasonable in character.41 License laws, however, are often passed in the exercise of the taxing power,42 and as such must conform to the constitutional provisions relating to taxation.43 Where the subject-matter is within the taxing power, neither the propriety44 nor the amount45 of the tax is subject to judicial review. Municipal power to impose license taxes must be derived expressly or by necessary implication from legislative grant,46 and in California

Footnote 42: The taxing power is not a taxing power, but it is not a taxing power, but it is not a taxing power, but it is not a taxing power.

Footnote 43: The taxing power is not the Constitution provides that the grant must be by general statute;" but a law relative to cities of one class is general within such provision,"48 and the provision does not relate to cities incorporated by special act."49 A license tax ordinance does not embrace two subjects because it contains both police and revenue features.50

In respect to some professions and skilled trades, the granting of licenses is often referred to a board of examiners,51 and such acts are not invalid as a delegation of legislative power.52 The powers of such boards, however plenary the grant, are not arbitrary.53 It is sometimes required that the applicant be a graduate of some institution,54 and the board is usually made the judge of the good standing thereof.55

Enforcement of an invalid license tax may be enjoined.58

SS 2. _Interpretation of statutes and ordinances and persons subject.57_-License laws being penal are to be strictly construed,58 and one cannot be convicted thereunder unless clearly of the class of persons designated by the act.59 Where the eaharter. City of Winston v. Beeson, 135

ing is not unreasonable. In re Thompson N. C. 271, 47 S. E. 457. A power to define who shall be considered "transistent mexensistent mexensata" does not give power to include persons who are not merchants. Itinerant op-, 27, relating to the licensing of barhers. Itinerant. City of Waukon v. Fisk \[Iowa\] 100 N. W. 475. One who takes orders for himself and has the goods shipped to the buyer is a transient merchant. City of Cedar Falls v. Genterer, 123 Iowa, 670, 99 N. W. 651. Nor does a power to license peddlers, etc., include itinerant opticians. City of Waukon v. Fisk \[Iowa\] 100 N. W. 475.

47. Licenses for revenue are taxes within a constitutional provision that municipal-, ties can be vested with taxing power only by general law. Ex parte Jackson, 143 Cal. 564, 77 P. 457. If the authorizing statute be general, it is immaterial that other cities have not acted under it. Id.

01. Ex parte Jackson, 143 Cal. 564, 77 P. 457.

01. Ex parte Helm, 143 Cal, 553, 77 P. 453. The city of Marysville has power under its special act of incorporation to impose license taxes for revenue. Ex parte Lemon, 143 Cal. 558, 77 P. 455.

01. Kansas City v. Overton, 68 Kan. 560, 75 P. 459.

01. An act making the approval of a board of examiners necessary to the carrying on of a trade need not prescribe a standard of proficiency. Barber's license law. State v. Briggs \[Or.\] 77 P. 750. The power of determining such standard vested in the board may not be an arbitrary power, but subject to an implied limitation of fair exercise. State v. Briggs \[Or.\] 77 P. 750; Id., 78 P. 361.

01. Dentistry act not unconstitutional as conferring legislative power on board. In re Thompson \[Vash.\] 78 P. 859.

01. In Oregon the commissioners for licensing saltors' boarding houses have no arbitrary power to deny a license. Laws 1903, p. 235, $ 3, giving power to reject, is to be construed in connection with the prior clause (White v. Mears, 44 Or. 215, 74 P. 931), and as so construed, the statute is vaid (Id.).

01. A requirement that applicants for license to practice dentistry shall have a diploma from a dental college in good standing.

01. The licensing of barhers schools is within the scope of the title of Laws 1903, p. 235, $ 3, giving power to reject, is to be construed in connection with the prior clause (White v. Mears, 44 Or. 215, 74 P. 931), and as so construed, the statute is vaid (Id.).

01. A requirement that applicants for license to practice dentistry shall have a diploma from a dental college in good standing.

01. The licensing of barhers schools is within the scope of the title of Laws 1903, p. 27, relating to the licensing of barhers.

01. Kloss v. Com. \[Va.\] 49 S. E. 655.

01. Illustrations. A salesman carrying samples and taking orders which are filled and shipped from a factory is not a peddler. Kloss v. Com. \[Va.\] 49 S. E. 655. A statute taxing traveling vendors of patent medicines, jewelry, soap, paper "or other merchandise" does not include salesmen selling Illuminating oil in large quantities. Standard Oil Co. v. Swanson \[Ga.\] 49 S. E. 262. A nonres-ident manufacturing company who has an agent in another state to whom it ships goods in bulk, to be by him assorted and distributed among its customers, is a merchant within the tax statutes of such state. American Steel & Wire Co. v. Speed, 110

01. Kansas City v. Overton, 68 Kan. 560, 75 P. 449.

01. An act making the approval of a board of examiners necessary to the carry-, ring on of a trade need not prescribe a standard of proficiency. Barber's license law. State v. Briggs \[Or.\] 77 P. 750. The power of determining such standard vested in the board may not be an arbitrary power, but 4 Cur. Law.

LICENSES SS 3.

431

a license is required for the carrying on of a business, single or occasional acts,60 or acts merely incidental to another business,61 are not within the statute. A boat making regular trips to a port within a state is within the jurisdiction of such state for the imposition of privilege tax on the sale of liquor on such boat.62 Where both state and municipality tax a business, one engaged therein must pay both taxes.63

SS 3. \_Assessment and recovery; prosecutions for failure to pay.64a--Privilege taxes for past years may be collected without any reassessment.64 A statute providing for the back assessment of taxes on .property which has escaped taxation applies to privilege taxes.65 Classification of a railroad by the railroad commission as one claiming charter exemption from state control is necessary to the imposition of additional privilege tax on that account.65 Under North Carolina statutes providing for a license tax, it was held a tax could be collected by the state as well as by the county.67 Where no adequate remedy is provided for collecting a tax, the city may sue therefor.68 Limitations run against a license created by contract.69 Proceedings for violation of a city license tax ordinance are civil and need not be on information.70 An indictment alleging sale of "coal oil, a lubricating oil" is good, it being a question for the jury whether coal oil is a lubricating oil.71 An indictment for selling one kind of oil without a license is not sustained by proof of sale of another kind.72 The exception as to products of defendant's farm need not be negatively.73 An indictment that defendant "engage in procuring laborers" sufficiently avers that he engaged in the business of so doing.74 An indictment for acting without a license as agent for a foreign corporation is not defective for failing to allege the incorporation of the principal, its name as alleged being one appropriate to a corporation.75 A complaint charging the keeping of a "livery or feed" stable without license is good after conviction.76 Where the tax is an annual one on the carrying on of a business, a conviction of doing business without a license bars further prosecution for carrying on such business during the current year.77 The "certificate of registration" required by section 1 of the barber's license law of Washington is the same as the "certificate" mentioned in section 10 and is sub-

tall" (Standard Oil Co. v. Com. \[Ky.\] 82 leveled for the privilege of selling intoxetal-S. W. 970), while if the sale is to others than .Parsons v. People \[Colo.\] 76 dealers it is pedding (Standard Oil Co. v. 664. See 2 Curr. L 732, n. 36, et seq. 63a. Standard Oil Co. v. Com. \[Ky.\] 80 S. W. 864, 65. Foppiano v. Speed \[Tenn.\] 82 S. 1150. Giving of trading stamps is not a W. 872, .66 Gulf & S. I. R. Co. v. Adams, 83 Mlss. "Gift enterprise" within a charter power to license such enterprises. City of Winston v. 306, 36 So. 144. 67. State v. Armour Packing Co., 135 N. 60. A single sale is not within an ordinance licensing itinerant vendors. State v. Feingold \[Conn.\] 82 A. 211. 61. One employed to post bills is "engaged in the business" of bill posting, but one employed as a salesman who occasional. \[N. J. Law\] 85 A. 15. 15. 16. 17. 18. 19. 47 S. E. 557. The Turnlinking of trading stamps in connection with the sale of mer. 25 K. 18. 216. 80 S. W. 206. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 51. 59. 61. 62. 50. 52. 54. 56. 57. 59. 62. 58. 59. 63. In Colorado drugsists are liable for the state tax as well as the municipal tax ject to revocation under section 14.18 The section of the barber's license law forbidding practice without having obtained a license includes one who practices after revocation of his license.79

SS 4. \_Effect of failure to obtain.80--\_Though it is generally held that no recovery can be had by an unlicensed person on a contract for the doing of an act for which a license is required,81 it has been held that failure of a broker to take out a license does not avoid his contract for compensation,82 and a foreign corporation may sue, though it has not paid the license tax.83

**LICENSES TO ENTER ON LAND.**

SS 1. Nature, Creation and Indicin of a L4. & 2. Rights and Limbilities of Licenses cense and Distinction from Easements and (433). Other Estates (432). Licenses Coupled with an Interest (433).

SS 1. \_Nature, creation and indicia of a license and distinction from easements and other estates.84--\_A license is authority to enter on another's land or to do some act thereon which without authority would be wrong, and which is not an estate in the land.85 It is in the absence of an estate in the lands that it differs from easement.86 A lease differs in being an irrevocable (except by its own terms) interest in the use or profits of the lands.87 A license must emanate from one having authority to grant it.88 It may arise by implication,89 but is not necessarily implied from unrestrained user.90 An attempted sale by parol of standing timber amounts to a license to cut and remove it.91 Since a license does not create an estate, it need not be in writing.92 It is revocable at will93 and by the weight of

78, 79. State v. Chaney \[Wash.\] 78 P. 915. \[partition between adjolners creates a license to use it as a passway. Belser v. Moore \[Arl.\] 84 S. W. 219. \[A: 8\]. 87. 219. \[B: 8\]. 88. Tooker v. Duckworth \[Mo. App.\] 80. 87. 863. \[B: 8\]. 88. Box, Board & Linking Co. v. Vincennes Paper Co., 45 Misse, 1, 90 N. Y. S. 836. \[Tex.\] 84. See a Curr. L 734. \[S5.\]. 85. Cyc. Law Diet. "Licenses;" 1 Tiffany Real Prop. 678. \[Licenses are executory and executed and express and implied. Cyc. Law Diet. "Licenses," 1 Tiffany Real Prop. 678. \[S6.\]. 86. Note: In a number of cases collected in note to Waldron's Petition \[R.\] 67 L. R. A. 120, it is held that the right in a burial lot is a mere license, not an easement. See Kincel's Appel, 66 Pa. 411, 5 Am. Rep. 377; Wind v. German Ref. Church, 4 Sandf. Ch. \[N. Y.\] 471; Richards v. North-west Protestant Dutch Church, 32 Barb. \[N. Y.\] 42; Craig v. First Pres. Church, 82 Pa. 42, 32 Am. Rep. 417; Buffalo City Cemetery v. Buffalo, 46 N. Y. 803; McGuire v. St. Patrick's Cathedral, 54 Hun \[N. Y.\] 207; Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 481; Partridge v. Firat Indep. Church, 39 Md. 631; Rayner v. Wugent, 60 Md. 615; Ciuding Cathedral Church v. Manning, 72 Md. 116; Dwenger v. Geary, 113 Ind. 106. The facts and reasoning in the foregoing cases are well set out in the note referred to. 87. See Landlord and Tennant, 4 Curr. L. 389. \[S8.\]. There is no presumption that railroad employees have authority to give a license to cross the track. St. Louis S. W. R. Co. v. Shiflet \[Tex.\] 83 S. W. 677. \[S9.\]. The fact that there is a door in a 4 Cur. Law. LIENS.

authority, notwithstanding an express promise to the contrary and expense incurred on faith thereof," especially where based on no valuable consideration;" but authority is not wanting for the proposition that if the enjoyment is preceded necessarily by the expenditure of money, it becomes irrevocable," especially after it is executed."

\_Licensees coupled with an interest."--\_The license of a tenant of an apartment house to use a portion of a porch not attached to his rooms is not a license coupled with an interest."

SS 2. \_Rights and liabilities of licensees.\_1--\_The authority is for the doing of only the act specifically licensed.2 It cannot ripen into an easement by user." Rights under an unrevoked license cannot be interfered with.4 A licensee may maintain trespas.5 He must exercise ordinary care to avoid injury,4 and cannot recover for injuries caused by existing defects.7

LIENS.

$ 1. Definition and Nature (434).

$ 2. Common-Law, Equitable and Statu-

$ 4. Watver, Extinguishment, Discharge

$ 2. Common-Law, Equitable and Statu-

$ 2. Emonmon-Law, Equitable and Statu-

$ 3. Emon-Law, Equitable and Statu-

$ 4. Common-Law, Equitable and Statu-

$ 4.

**SS 1.**_Definition and nature._--A lien is a hold or claim which one person has upon the property of another as a security for some debt or charge.\[12\] From its very nature it takes priority over the claims of simple creditors\[13\] and inferior liens.\[14\]

**SS 2.**_Common-law, equitable and statutory liens. A. Common-law liens._\[15\] --A common-law lien consists in the mere right to retain possession\[16\] until the debt or charge is paid.\[17\] The sellers of fruit trees under a contract of payment out of crops raised therefrom have no lien on the land whereon the trees are planted.\[18\]

**(SS 2)**_B. Equitable liens._\[19\]--A written\[20\] contract showing an intention to charge identified property with a debt or other obligation\[21\] creates an equitable lien thereon. The principles of equity requiring it, such lien will be upheld, though the contract be invalid;\[22\] but the invalidity of an agreement for a common-law lien does not of itself give rise to an equitable lien, though the agreement be made in good faith.\[23\]

Equity will, in the absence of an express agreement, create a lien when the rights of the parties cannot be otherwise secured;\[34\] but it will not declare such a lien where to do so would destroy the protection the law affords infants.\[25\]

Where there is an exchange of lands, a breach of a covenant of warranty by riers. $ Curr. L. 591: Chattel Mortgages, $ 17. Cyc, Law Diet. "Liens." Curr. L. 682: Executions, $ Curr. L, 1397; Factors, $ Curr. L, 1415; Inns, Restaurants and Loding Houses, $ Curr. L. 123: Judgments, $ Curr. L, 287; Landford and Tenant, $ Curr. L, 287; Landford and Tenant, $ Curr. L, 682; Mortgages, $ Curr. L, 682; Mortgages, $ Curr. L, 683; Mortgages, $ Curr. L, 684; Mortgages, $ Curr. L, 685; Mortgages, $ Curr. L, 686; Mortgages, $ Curr. L, 687; Ventors and Purchasers, $ Curr. L, 1376; Vanders and Purchasers, $ Curr. L, 1382; Taxes, $ Curr. L, 1786; Venders and Purchasers, $ Curr. L, 159; Not create a lien on the land in the hands of Logging Liens (see Forestry and Timber, $ Curr. L, 1468); Crop Liens (see Agricultural, $ Curr. L, 137, and Landford and Tenant, $ Curr. L, 388); Maritime Lies (see Shlping and Water Traffic, $ Curr. L, 1648).

**9.** See Bankruptcy, $ Curr. L, 434; Innsolvency, $ Curr. L, 129.

**10.** See Estates of Decedents, $ Curr. L, 1338.

**11.** See Marshashing Assets and Securlices, $ Curr. L, 798.

**12.** Gilmor v. Dale, 27 Utah, 372, 75 P.

**932:** Cyc. Law Diet., "Lien." A personal claim against a bankrupt's estate does not constitute a lien. Eason v. Garrison \[Tex. Civ. App.\] $ 82 S. W, 800.

**13.** An equitable mortgage takes precedence of the rights of creditors in proceedings to administer the property of the mortg-gargor for the benefit of his creditors. Harifigan v. Gilchrist \[TWLs.\] $ 9 N. V. W, 809. Under tax law requiring assessment of taxes against the person, and requiring collection out of personal property if possible, the lien of a real estate mortgage executed prior to a tax assessment and levy, is superior to the assessment. Ferguson v. Ka-both, 43 Or. 414, 75 P., 200.

**14.** See post, $ 3, Priorities between liens.

**15.** See $ Curr. L. 137.

**16.** A factor's lien does not attach until he acquires possession. Ryttenberg v. Schefer, 131 F. 313. See titles Agency, $ Curr. L. 68; Attorneys and Counselors, $ Curr. L, 376; Factors, $ Curr. L, 1415.

**17.** Cyc, Law Diet. "Liens." Curr. L, 682; Executions, $ Curr. L, 1397; Factors, $ Curr. L, 1415; Not create a lien on the land in the hands of Logging Liens (see University of London, $ Curr. L, 1397; Factors, $ Curr.

one party entitles the other to a lien on the land conveyed to the former for damages sustained by reason of such breach.\[20\] One entering on land with knowledge that it belongs to another acquires no lien for improvements.\[27\]

(SS 2) \_C. Statutory liens.\[28\]--\_The special lien given laborers on the product of their labor generally attaches to the property of their employers only.\[20\] In some states one lawfully in possession of personal property of another has a lien thereon for any services rendered the owner in the protection, improvement or safe-keeping of such property.\[20\]

\_Construction.\[30\]--\_The ordinary rules of statutory construction apply,\[91\] and the statutes are to be construed so as to be rendered effective if possible.\[92\]

SS 3. Priorities between liens.\[33\]--\_The determination of priorities is usually sought as incidental to other relief, but it may be sought by an original bill, and it is no objection to such a proceeding that the plaintiff is not likely to be benefited thereby.\[34\] As between equitable liens, priority is determined by the equities of the case.\[35\] Statutory liens being involved, the priority is often dependent upon the nature of the lien, as for instance, a purchase-money lien;\[36\] but lacking this intrinsic superiority, the priority depends upon record\[37\] or the equivalents thereof.\[38\]

26. Newburn v. Lucas \[Iowa\] 101 N. W., 3 Curr. L. 353; Garishment, 3 Curr. L. 1550; 370. Wade v. Keown, 25 Ky. L. R. 1787, 74 S. W. 900. Curr. L. 788. See 2 Curr. L. 788. For specific statutory liens, see titles Attachment, 3 Curr. L. 353; Executions, 3 Curr. L. 1397; Inns, Restaurants and Lodging Housees, 4 Curr. L. 133; Landiord and Tennessee 4 Curr. L. 135; Mechanics' Liens, 2 Curr. L. 869; Railroads, 2 Curr. L. 1382; Taxes, 2 Curr. L. 1786; Warehousing and Depostis, 2 Curr. L. 2029; Crop Liens (see Agriculture, 3 Curr. L. 137, and Landiord and Tennant, 4 Curr. L. 389); Agisters Liens (see Animals, 3 Curr. L. 159); Logging Llens (see Forrestry and Timber, 3 Curr. L. 1468).

01. Employo repairing property of one other than his employer has no lien thereon on, though the result of such repairs be to make practically a new article \[CIV. Code 1895, 5 2793\]. Lanler v. Bailey \[G.4\] 48 S. E. 824.

01. Under Rev. Civ. Code, $ 2153, one contracting to cut, stack, Dale and hauh may from another's farm is entitled to a special lien on the unhauled hay, dependent on possession for their compensation, and, as between the parties, the lienor is in possession until the hay is voluntarily surrendered. Woodford v. Kelley \[S. D.\] 101 N. W. 1069.

30a. See 2 Curr. L. 739.

31. The words "continued possession" in the lien law \[Laws 1897, c. 418, $ 112\] refer to a case where the continued possession of the chattel is intended to remain with the vendee. Mott Iron Works v. Reilly, 39 Misc. 833, 81 N. Y. S. 323.

01. The provision in Burns' Rev. St. 1901, $ 6566, relative to erection of partition fences, requiring the township trustee's statement to be recorded-in the "mechanics" item record," is not ineffective because there is no such record, there being a record in which mechanics' liens are required to be Atlee v. Builard, 1203, 700, 888. Judgment creditors by intervening in a pending creditor's suit in which a reviewer is appointed acquire equiitable Hens on the property of the corporation as of the party between liens of the same class or date of filing. Atlantic Trust Co. v. Dana Compliance with statutory provisions which do not affect the rights of the contesting parties as between themselves need not be proven.39 The lien of an ordinary recorded mortgage is not subordinate to mechanics' liens merely because the money which it was given to secure was loaned for the purpose of improving the mortgaged premises, and under an express contract that it should be so used.40 As between himself and the mortgage, a judgment creditor is entitled to all the surplus proceeds of the sale after the payment of the mortgage debt, with such expenses only as are provided for in the mortgage or are necessarily incident thereto.41

In order to obtain a decision on the question of priority, such question must be within the scope of the action.42 The property being in the custody of one court, general creditors cannot pursue it in another court by means of an action at law, judgment and execution.43 On a question of priority, a court will not set aside its state statutes for the benefit of foreigners and to the prejudice of its own citizens.44 The word "creditor," as used in statutes declaring unrecorded chattel mortgages to be void as against creditors, means creditors having some sort of lien fixed by law or legal proceedings upon the particular property, and does not include a mere general creditor.45

'84. _Waiver, extinguishment, discharge and revival.46_--One may waive his lien, and the waiver being for a specified amount, it operates in favor of subsequent lienors in the order of their priority, up to the amount specified,47 and the burden of showing the waiver rests on the subsequent lienor.46 The ordinary rules of construction apply,49 and the breach of an independent condition in another contract does not entitle one to avoid his waiver.50 By the acceptance of a substitute lien, the former one is extinguished.51 In California a lien upon collateral is extinguished.51

\[C. C. A.J 128 F. 209. A mortgage by ln-\] creditors in the latter. Snyder v. Yates tervening in a receiversp suit acquires a prior right to the income thereafter earned by the receiver as against ordinary judgment creditors subsequently intervening, and whose judgments were obtained during the receiversp. Id. See 2 Curr. L. 739, n. 7, 8.

39. In a contest between lienors, failure to prove allegation that no proceeding at law was had in a suit to foreclose a real estate mortgage, held to be, at most, error without prejudice. Chaffee v. Sehestedt \[Neb.\] 96 N. W. 161.

01. Chaffee v. Sehestedt \[Neb.\] 96 N. W.

01. Staton v. Webb \[N. C.\] 49 S. E. '55. Attorney's fees cannot be allowed the mortgage without proof of necessity or authority in the mortgage. Id. Mortgagor cannot by subsequent agreement with the mortgage give the latter the entire proceeds under the pulse of exorbitant commissions. Id.

01. The priority of liens will not be determined on the trial of the right to property attached as that of a tenant and claimed by the Landirol. Groesbeck v. Evans \[Tex. Civ. App.\] 83 S. W. 430.

01. Where, during action to foreclose a mortgage, a temporary injunction issued restraining the defendant from disposing of the property, held the latter was in the custody of the law. Ryan v. Donley \[Neb.\] 96 N. W. 234.

01. Chattel mortgage executed and recorded in one state on property afterwards transferred to another will not be given priority over the liens of local attaching tinguished by the lapse of the time within which an action can be brought upon the principal obligation \[52\]. A court of equity does not, by the appointment of a receiver, acquire authority to displace contract lines \[68\].

A recital in a deed will revive a vendor's lien so as to give it priority over a judgment lien subsequently accruing \[54\].

SS 5. _Enforcement and protection of liens \[55\]._--In most cases of statutory liens, the statute expressly provides a mode for its enforcement \[56\]. In a suit to establish a lien on land, all persons against whom any relief is sought should be made parties \[57\]. The owner's right to redeem being barred, junior lienors not parties to the first proceeding are only entitled to a decree allowing them a reasonable time within which to redeem \[58\]. A debtor being adjudged a bankrupt pending an action in a state court to enforce a specific lien against his property, the state court is not thereby, nor by failure of the trustee in bankruptcy to intervene, divested of jurisdiction \[59\].

_Statutory proceedings to enforce or foreclose \[60\]._--A suit to foreclose a statutory lien against real property is one calling for the exercise of the equity powers of the court \[61\]. The holder of a lien on real property is not denied due process of law by failure to personally serve him with notice of the pendency of proceedings in rem affecting his lien \[62\]. The plaintiff need not negative provisos not contained in the enacting clause of the statute \[68\], and there being a general denial, must prove all essential facts \[54\]. The commencement of an action of foreclosure suspends the running of the statute of limitations in favor of the defendants in the action ; but it continues to run so far as others are concerned \[68\]. The jury not responding to the issue of the existence vel non of a lien, it is error to enter judgment establishing such lien \[69\]. An execution issued on the foreclosure of a laborer's lien operates as final process until arrested by a valid counter affidavit \[67\].

_Equitable remedies and procedure \[68\]._--A receiver may be appointed when nec:ss-

entire property and made to a trustee to secure the bondholders. Security Trust Co. v. T Temple Co. \[N. J. Eq. 58 A. 855\].

52. Where an action on a debt for which insurance policies on the life of the debtor were pledged as security was barred be-

01. Action under Burns' Rev. St. 1901,

01. A new, Ed. 623.

01. A new, Ed. 623.

01. A new, Ed. 623.

01. A new, Ed. 623.

01. Action under Burns' Rev. St. 1901,

01. 658, to enforce a lien for building a partitition fence, need not allege that the lands

01. A new, Ed. 623.

01. A new, Ed. 624.

01. A new, Ed. 625.

01. Action under Burns' Rev. St. 1901,

01. 658, to enforce a lien for building a partitition fence, need not allege that the lands

sary to preserve the lien.\* Where a lienor acquires the legal title to the property, he may maintain a bill of strict foreclosure to cut off the equity and right of junior incumbrancers to redecm.\* When confirmation of a judicial sale discharging prior liens on the land and relating them to the purchase money is asked, the court will consider the equities of such lienholders.\[71\]

**LIFE ESTATES, REVERSIONS AND REMAINDERS.**

**SS 1. Nature and Definitions (438).**

**SS 2. Mutual and Relative Rights and Remedles of Life Tements, Future Tements and Their Prilves (441). Taxes and Incumbrances and Life Tements, Remandernen or Reversions (442). Mutual**

**LIFE ESTATES, REVERSIONS AND REMAINDERS.**

**SS 1. Nature and Definitions (438).**

**SS 2. Mutual and Relative Rights and Remedles of Life Tements, Future Tements and Their Prilves (441). Taxes and Incumbrances and Contribution (442). Mutual**

**SS 2. Rights and Remedles Between Third and Their Prilves (441). Taxes and Incumbrances and Life Tements, Remandernen or Reversions (444).**

**LIFE ESTATES, REVERSIONS AND REMAINDERS.**

**SS 3. Nature and Definitions (443).**

**SS 4. Nature and Definitions (444).**

**SS 4. Nature and Definitions (445).**

**SS 4. Nature and Definitions (446).**

**SS 4. Nature and Definitions (447).**

**SS 4. Nature and Definitions (448).**

**SS 4. Nature and Definitions (449).**

\*\*SS 4. Nature and Definitions (449).

4 Cur. Law. LIFE ESTATES, REVERSIONS, ETC. SS 1. 439

_A remainder is an estate expressly limited to take effect in possession immediately on the expiration of the particular estate,\[58\] not in derogation thereof and created by the same instrument.\[80\]_

A remainder is vested if there is a present fixed right to future enjoyment,\[87\] through subject to defeansances and substitutions.\[88\] It is inheritable\[89\] though not yet in possession.\[90\]

It is contingent when limited to a dubious or uncertain person,\[91\] or upon a dubious and uncertain event,\[92\] or upon an event which may not happen until after

Law Diet. "Reversion." The wife's inter-est in lands subject to entresy initiate is in the heirs. Where before termination of "i.e. revection. Wineseting v. Zigitatki-Marks Co. \[Conn.\] $9 A. 496. If the remaindermen child, such child took its parents' estate. de prior to the termination of the particle. Porter V. Osman \[Mich.\] $8 N. W. $69. WIII \[command.\] $4. Loyd v. Loyd's Ex'r, 102 Va. 519, 46

S. E. 687

S5. A remainder must be supported by a particular estate: If the particular estate determines before the remaindermen is qualified to take, the remainder expires. Arch-vitor and issue. Field, on marriage and er v. Jacobs \[Iowa\] $101 N. W. 195. Estate in trust, the Income to children for a specified period when the estate was to be considered in free to certain remaining beneficiaries, held to create equitable remainders or cross remainders in free and entitled to the legal title on the termination of the "trust. Loomer v. Loomer, 76 Conn. 522, 67 A. 167.

S6. Dead with reservation to grantor for remainder life. Dovier v. Looslon, 180 Mo. 546, 79 S. W. 420. See 2 Curr. L. 742, 49 at set. So. $7. Remainder to one on termination of "life estate. Archer v. Jacobs \[Iowa\] $101 N. W. 195. A warranty deck to "A" with a reservoir of the rents and profits to the grantor for life creates a vested remainder in free in "A." Dovier v. Toulson, 180 Mo. 546, 78 S. W. 420.

S8. Estate to a wife for life remainder to children, and if any child died before testator or life tenant, his children should take the share of their parent, gives children and returning at restator's death a vested re-,

A gift over to the life tenant's children "or E. 10. Estate to "A" for life, remainder to certain named persons, or if any of such persons died before the life tenant, leaving children should take the share of their parents, creates a vested re-,

A vested re-,

mainder in persons named. Woodley v. Calhoun \[S. C\] $8 E, E 27. Estate to "A" for life, remainder to "B" if "B" die be-,

for life, remainder to his issue if any, otherwise to his heirs, gives "B" a vested re-,

Wines to his heirs, gives "B" a vested re-,
the termination of the particular estate. The uncertainty whether a remainderman will outlive the life tenant does not make a remainder contingent." It is the present capacity of taking effect in possession if the possession becomes vacant," not the certainty that such will exist that marks a vested remainder." Remainders may "cross" or alternate."

Vested remainders are favored in construction."

A vested fee-simple estate in remainder is "property" within a statute giving a husband a life estate in his wife's property if she died intestine." Even contingent remaindermen may be "owners" within statutory definitions." Ordinarily only vested future estates are leivable.1

Under the rule in Shelley's Case a limitation to "heirs" of a life tenant converts the particular estate into a fee.2

_At common law a valid conditional limitation" could be made only by way of executory devise,4 but statutes now generally make them valid if created by deed."_ However, it is said that a conditional limitation does not cut down nor accelerate the prior estate in fee."\_ Under a statute providing that such an estate may be limited to the "right heirs" of the grantor, it may be limited to a specified person, a right heir."\_

the first In the order named who is alive at 111 the termination of the partteular estate the death of the life tenant takes a fee. 128 Ill. 430: Ducker v. Burnham, 146 Ill. 93. Devise to "A" for life, and at her 9, 37 Am. St. Rep. 135; Roundtree v. Round-death to her children and grandchildren, if she left neither, to "B", "A"" on 146D and providing that all interests in land shall be grandchildren in being at the death of testator took a vested remainder, though they 30. 292. Conditional'limitations and exception not survive their mother. Archer v. Jacobs \[Iowa\] 101 N. W. 195. Provision in will to "A" on death of "B" does not indicate an intention to postpone the vesting of the estate until "B" death. Id. 94. Archer v. Jacobs \[Iowa\] 101 N. W. 195. If the class to whom a remainder is devised is certain and only the time of enjoyment is postponed, the estate is vested; thus an estate to "A" for life or during widowhood, then to grantor's children. Deve V. Dec, 211 Ill. 338, 72 N. E. 429. 90. Archer v. Jacobs \[Iowa\] 101 N. W. 195. 96. Remainder to one if he survive the life tenant if not to another vests in the order named as they shall survive. McKee v. McKee's Exr \[Ky.\] 82 S. W. 451. 97. See Deeds of Convevance, 3 Curr. L. 1056; Vills, 2 Curr. L. 2076. Will be held vested if it can be done with manifest violation of the intention of a donor. Archer v. Jacobs \[Iowa\] 101 N. W. 195. 98. Snyder v. Jones \[Md.\] 59 A. 118. 90. Condenration proceedings. Charleston & W. C. R. Co. v. Reynolds \[S. C.\] 48 S. E. 476. 1. See Executions, 8 Curr. L. 1897. 1056: A vested remainder In fee may be taken in execution and sold by virtue thereafter under a judgment against the remainderman (Den v. Hillman, 7 N. J. Law, 218; Wilkinson v. Chew, 54 Ga. 60; Zwaiva V. Gforth, 1 Lea \[Tenn.\] 31; Murrell v. Roberts, 33 N. C. 424, 53 Am. Dec. 419), so also, a reversionary Interest may be sold on execution, though it is contingent upon the happening of events which may never occur, and though the extent of the interest cannot be ascertained (Woodgate v. Fleet, 44 N. Y. 1). Contingent remainder, however. In which the takers cannot be identified un
What words will define the estates is a question of interpretation of the instrument wherein they are used.8

Footnote 8: The _reference_ committed by a stranger, he may recover full indemnity for an injury to the freehold,26 notwithstanding a statutory right of action in the remainderman.27

_Taxes and incumbrances and contribution.27a--It is the duty of the life tenant to keep down the taxes,28 and he is personally liable therefor,29 notwithstanding the estate is also bound.30 A remainder cannot be sold for taxes due on the life estate.31 The duty to preserve the premises from waste includes the obligation to keep down interest on existing incumbrances. If he is obliged to pay off an incumbrance, he is entitled to contribution.32_

_The possession of a life tenant is not adverse33_ to a remainderman or versioner,34 nor is the possession of one holding under him35 during the existence of

26. Including loss to remalnderman. Dix \[tenant, Dyer v. Branch Bank, 14 Ala. 622; v. Jaquay, 94 App. Dlv. 554, 88 N. Y. S. 228.

Combilant against subtenant for cutting time- 16 Ky. L. R. 784; Dunn v. Winston, ber held sufficient. Id.

31 Miss. 185; Morrow v. Dows, 28 N. Y. Eq. 27. Dix v. Jaquay, 94 App. Dlv. 554, 88 N. Y. S. 228.

327a. See 2 Curr. L. 744, n. 58, 67.

328. A life tenant is not entitled to de- duct from a payment which is an annual charge upon the land a proportionate share of the taxes. Angle v. Angle \[N. J. Eq. 1\]

57 A. 425. By permitting the estate to be sold for taxes and buying in the tax title, he acquires no rights against the remain-derman. Crawford v. Meis, 123 Iowa, 610, 98 N. V. 186.

The duty as between life tenant and remainderman to pay transfer taxes is treated in the topic. Taxes, 2 Curr. L. 1786.

29. Morrison v. Fletcher \[Ky.\] 84 S. W.

01. A life tenant is liable for taxes which become a alien during the existence of his tenancy. In re Corbin's Will, 91 N. Y. S.

01. Morrison v. Fletcher \[Ky.\] 84 S. W.

01. A life tenant is liable for taxes which taxes. It should be sold first. Penley v. Louisville \[Ky.\] 84 S. W. 588.

01. After judgment entered for sale for taxes which were a lien on both life estate and remainder, the remainder depends with the court the amount due by them.

Ifield, the judgment of sale should be modified. Weolley v. Louisville \[Ky.\] 82 S. W.

608.

NOTE, Effect on reversion or remalender of a tax sale during the existence of the life estate: There are two distinct doctrines. Under one the sale, if valid, extinguishes all prior titles of whatsoever nature or kind. Turner v. Smith, 14 Wall.

\[U. S\] 558, 20 Law. Ed. 724; Morreprey v. Union Trust Co., 93 U. S. 424, 23 Law. Ed. 964; Gross v. Taylor, 81 Ga. 86; Dunlap v. Gallatin County, 15 III, 17 Lewis v. Pleasants, 143 III. 271; Miami County Com'res v. Brack-

599. Bridge, 12 Kan. 114; Parker v. Baxter, 2 Gray \[Mass.\] 185; Langley v. Chaught, 134 Mass. 87; Sinclair v. Learned, 61 Mich. 335; Westbrook v. Miller, 64 Mich. 129. In several states it would seem that the reversion or remalnderman must be made a party to the tax suit. Glotchell v. Kredller, 84 Mo. 475; Allen v. McCabe, 23 Mo. 185; Smith v. Mesher, 17 N. H. 429; Jackson v. Babcock, 16 N. X. 426; Jones v. Devore, 8 Ohio St. 469; Fager v. Campbell, 5 Watts \[Pa.\] 87. See, also. Ycoum v. Zahner, 162

60a. 468; Brown v. Austin, 41 Vt. 262; Jar-

61;
74\. The other doctrine will be used in the context of the life.

75. The life tenant can recover from the measurement of the rate of the life estate, unless the owner of the future estate is by statute, given a right of action.\[36\] But a life tenant by devise who gets in an outstanding paramount claim thereafter holds adverse to the remainderman\[37\] who is affected with notice by the recording of the deed,\[38\] though the remainderman may ordinarily contribute so it. shall enure to him.\[39\] A co-tenant in remainder may purchase for his exclusive benefit an outstanding title,\[40\] and one may hold adversely to the others after the life estate terminates;\[41\] but improvements made by one inure to the benefit of all.\[42\] The possession of a life tenant cannot be tacked to that of a remainderman for the purpose of barring rights in third persons.\[43\]

\_Mutual dealings.--\_A contract of settlement between a life tenant as executor and remaindermen, if fair at the time, will not be set aside at their instance after his death.\[44\] Unauthorized advancements made to a remainderman do not constitute a lion on his interest.\[45\]

\_Increment to funds.\[45\]--\_Surplus and undivided profits on hand when the stock was purchased\[46\] and stock dividends go to the corpus.\[47\]

_Unconsumed income_ given for a specific purpose falls back into the corpus,\[48\] and a power not exercised in any manner affords no basis for a lion to cover other moneys devoted to its purpose.\[49\]

_The right of partition\[49\]_ is often given by statute to remaindermen and reversioners,\[50\] unless in the terms of the instrument creating the estate, a condition to the contrary prior to the time of enjoyment is implied.\[51\] This right may be denied if prejudicial to infant remaindermen.\[52\]

\_A power\[33\] to consume the principal may by terms of the grant\[54\] or by agree-

21, 14 Am. St. Rep. 538, See note to Esta-

brook v. Royon \[Ohlo\] 32 L. R. A. 805,

35. Hauser v. Craft, 134 N. C. 519, 46 S. E. 756; Chicago, etc., R. Co. v. Vaughn, 206

III. 234, 69 N. E. 113; Charleston & W. C. R. Co. v. Reynolds \[S. C.\] 48 S. E. 476. An action against a grantee of a life tenant within the period of limitations after the life tenants' death is not barred. Ousier v. Robinson \[Ark\] 80 S. W. 227.

36, Where a remainderman, with notice that his rights are disputed is given a right of action to settle disputed questions, notwithstanding the existence of the life estate, the bar of limitations may be invoked against him. Crawford v. Meis, 123 Iowa,

37, 88. Commonwealth v. Clark \[Ky.\] 83 S. W. 100.

39. His proportionate share of the price paid. Keller v. Fenske \[Wis.\] 101 N. W. 378.

01. Crawford v. Meis, 123 Iowa, 610, 99 N. W. 186.

01. Co-remaindermen had become owners of the life estate. McCullough v. Finley \[Kan.\] 77 P. 698.

See Tenants in Common and Joint Tenants, 8 Curr. L 1862.

42. He is not entitled to an allowance interferon on partition after the termination of the life estate. Porter v. Osmunu \[Mich.\] 98 N. W. 859.

01. Under Code, $ 152, providing that an action to foreclose shall be barred after ten years if the mortgagor has been in possession. Woodlier v. Wester, 136 N. C. 162, 48 S. E. 578. Code, $ 158, has no application, relief being provided for in $ 152. Id.

01. They having been old and unlikely to outlive him, released for a small portion, ment between life tenant and remainderman\[55\] be added to the life interest. The intention to grant the power must clearly appear.\[56\]

\_Protection to expectant interest.\[58\]--\_The owner of a defeasible title need not,\[57\] but a life tenant may be required to give bond that personal property will be forthcoming when his estate terminates,\[58\] unless the property be of such nature that enjoyment thereof cannot be had without possession or consumption in whole or part.\[59\] Remaindermen in a fund may procure the appointment of a trustee to take possession of and preserve it.\[60\] A contingent remainderman's interest,\[61\] if not too remote,\[62\] must be protected when the property is converted, and in South Carolina he must be made a party to condemnation proceedings.\[63\] Equity may authorize a sale for the purpose of preserving the estate,\[64\] but the necessity therefor must be apparent.\[65\] Where the principal falls into the remainder as fast as life interests in the income determine, investments should be apportioned into as many parts as there are life tenants.\[66\]

SS 3. \_Rights and remedies between third persons and life tenants, remaindermen or reversioners.\[67\]--\_A life tenant can convey no greater interest than he owns,\[68\] unless vested with a power of disposal.\[69\] His decd carries any equities in the land which he has against the remainderman.\[70\] In North Carolina his covenant of general warranty has the effect only of a personal covenant.\[71\] The administrator, of a

cording to her desire" creates a right to use, all; the remainderman takes only such part as is unabsposed of. McGuire v. Gallaghen \[Md.\] 59 A. 445. Implied from terms "To A, my wife, all my property, to be used by her according to her desire," at her death property remaining to B. Id.

55. Distributes under a will agreed with the widow that she should have the use of certain property for life with power to dispose of the principal, but not by will; held, the widow had power to incur indebtedness for living expenses payable out of the property either before or after her death. Hinn v. Gersten \[Wis.\] 99 N. W. 338. A clause that the widow should not dispose of the property by will did not change the effect of the agreement. Id.

01. Provision for the disposition of property "then remaining" at the death of the life tenant did not authorize the life tenant to sell. Thompson v. Adams, 205 III. 552, 69 N. E. 1.

01. See 2 Curr. L. 744, n. 61.

01. If not so provided in the instrument creating the title. McKee v. McKee's Ex" \[Ky.\] 82 S. W. 451.

01. McKee v. McKee's Ex" \[Ky.\] 82 S. W. 451.

01. As a general rule all sustivrotrautes must give bond. Maguire v. McGuire, 110 La. 279, 34 S0. 443. The fact that she is appointed as executrix without bond does not relieve her. Id.

01. McKee v. McKee's Ex' \[Ky.\] 82 S. W. 451.

01. Graham v. Whirridge \[Md.\] 58 A. 36.

01. Estate to "A" and his children, remainder to the descendants of "A" living at the time of his death. On a sale of the property during the life of "A", the judgment of sale should be so framed as to protect the interests of minor children if they survive their father. Bullock v. Bullock \[Ky.\] 84 S. W. 738.

01. Remaindermen not in being \[Pub. Laws 1903, p. 128\]. Smith v. Gudger, 138 N. C. 627, 45 S. E. 555.

01. Is entitled to compensation when the estate is taken. Charleston & W. C. R. Co.

01. Though no such power is given "by the instrument creating the life estate. Thompson v. Adams, 205 III. 552, 69 N. E. I.

01. Thompson v. Adams, 205 III. 552, 69 N. E. I.

01. Thompson v. Adams, 205 III. 552, 69 N. E. I.

01. So that as each life interest termlates that fraction may be turned over. Graham v. Whirridge \[Md.\] 58 A. 36.

01. See 2 Curr. L. 745.

01. Commissioners of Yazoo & Mississippi-

01. Volley Delta v. Neims \[Miss.\] 37 So. 116.

A downress cannot convey the reversion.

60. Onsler v. Robinson \[Ark.\] 80 S. W. 227. The

01. grantee of a life tenant takes no greater interest than the grantor owns. Chicago, etc., R. Co. v. Vaughn, 206 III. 234, 69 N. E.

01. Where a legate had a life estate in certain stock and the trustee was authorized by the will to give him possession and control of it, and the legate pledged it under his authority, held, that in so doing the

01. If not so, the state is not a trustee's agent, and the

01. As a general rule all sustivro
    life tenant, can have no interest." The lien of a mortgage executed by him ceases" and his tenant becomes a trespasser;" but it is held that his grantee of a right of way does not," and that he may recover his improvements from the reversioner," especially if in possession in good faith."

A vested remainder is alienable." At common law, a contingent remainder was not subject to conveyance," otherwise under a statute providing that any interest or claim to real estate may be disposed of by deed." Such a statute also includes a conditional limitation." It may be released to the tenant." While it is assignable in equity, it will not be enforced as against the assignor unless based on a valuable consideration."

The grantee of an expectancy acquires only his grantor's interest." A reversionary interest is subject to sale on execution." A possibility of reverter is not assignable." The legislature may provide for the sale of property so as to divest the interest of persons having contingent remainders and executory devises."

LLIE INSUANCE; LIMIT AND specific titles the various special limitations on particular kinds of actions and obligations,"8 and on those proceedings which do not fall within the general meaning given to the terms "actions" and "suits."8" Limitations on a statutory liability where the statute prescribes the period within which the actions must be brought"9 are not, strictly speaking, statutes of limitations, and are treated in titles pertaining thereto. The doctrine of laches is treated in the title Equity."8

**SS 1.**\_Stalutes of limitation, validity, interpretation and law governing.\_92--It is within legislative power to fix limitations on actions subject to the constitutional guaranties of property contracts and vested rights,"93 and if retroactive legislation is allowable, to provide that existing causes of action shall be barred unless brought within the period prescribed," or to cut down"8 or extend"8 the presently prescribed period with respect to existing causes. A state may prescribe a limitation for actions on foreign judgments different from that prescribed for actions on domestic judgments."4 A limitation may be specially prescribed for actions on written instruments executed outside the state."8 The operation of the statute may be suspended as to a class."94 There is a conflict of authority as to whether a barred obligation can be revived by statute."

Statures of limitation are statutes of repose, not of cancellation or payment." They affect the remedy, not the right,"8 and apply to actions, not to defenses." The general statutes are applied generally and in all cases where ex 4 Cur. Law. **LIMITATION OF ACTIONS SS 1.** 447

ception to their operation is not specifically made.\[6\]. The enumeration of specific exceptions by implication excludes all others.\[6\] Special statutes control general ones.\[7\]

If it was so intended\[8\] and a reasonable time within which to bring action is allowed to those whose demands have accrued,\[9\] a retroactive operation will be given them. But following the usual construction statutes of limitation will not be given a retrospective effect unless the legislature so intended and such intention is unequivocally expressed.\[10\] What is a reasonable time is a legislative question and the wisdom of its decision will not be inquired into unless the period allowed is manifestly insufficient.\[11\] A limitation is unreasonable which does not afford full opportunity for the enforcement of the rights upon which it operates.\[12\]

state a defense. Louisville Banking Co. v. 10. Edelstein v. Carlile \[Coo.\] 78 P. 680; Bucchanan, 25 Ky. L. R. 2167, 80 8. W. 193. Curtis v. Boquillas Land & Cattle Co. \[Ariz.\] Where, in an action on a note, the defendant 76 P. 612. Acts 1895, ch. 4375, p. 14, pro-set up that he had delivered lumber to the viding that a new promise to be effective plaintiff in part payment, the defense was not barred, though an action to recover forpletion to a promise made before the pas-the-lamber or set up its delivery as a conn-safe of the act. Vinson v. Palmer \[PIa.\] 34 ICELIA would be barred. Blackshear v. 1801, par. 2938, being the Dekle \[Ga.\] 48 S. E. 311.

First legislation Hinting the period within which actions for the recovery of real estate limitations do not run against a claim against the estate of a decudent pending action commenced before the statute took proceedings for the settlement of the estate, effect. Curtis v. Boquillas Land & Cattle Co. held, where a homeseted was mortgaged and \[Ariz.\] 76 P. 671. The provision in Rev. St. the husband died and the widow conveyed her interest, limitations did not cease to run in the imitation prescribed in a repeated act in favor of the wife's grantee as against foreclosure because of the fact that the ed a part of the period prescribed in the claim had been presented. Vandali v. 1801, par. 2938, being the case that not to new legislation where none had previously existed. Id. Mills' Ann. St. Co., 68 Kan. 585, 76 P. 1051. 8293, providing that an action for the recovery of land must be brought within 20 must be made an exception to the statute, progressive. Edelstein v. Carlile \[Coo.\] 78 however harsh or inequitable the enforce-ment may be. Fee's Adm'r v. Fee, 10 Ohio, 449, 38 Am. Dec. 103; Lathrop v. Shellinker, 6 Ohio St. 276; Howk v. Minnick, 19 Ohio St. 462, 2 Am. Rep. 413; Smith v. Bishop, 9 Y. v. Anderson, 95 U. S. 628, 24 Law. Ed. 365, Paxt (Tenn.) 71; Troup v. Smith's E's E's, 20 Johns. \[N. Y.\] 33; Allen v. Mille, 17 Wend. 108 U. S. 245, 27 Law. Ed. 808, eight and one. \[N. Y.\] 302; Ekstrom v. Ekhorn, 37 N. Y. 8. 68; Miller v. Wood, 116 N. Y. 351; Board of 245, 34 Law. Ed. 659, six months; Turner v. Chosen Freeholders v. Veghete, 44 N. J. Law, 509; Mast v. Easaton, 83 Minn. 161, 23 N. W. 253; Jacobs v. Frederick, 81 Wiss, 254; Blount v. Parker, 78 N. C. 128; Wood on Limtations \[3rd Ed.\] 8 274. See Achiosh, etc., R. Co. v. 1801. Action Graham Co., 68 Kan. 585, 75 P. 1051. 87. An action for dover under Code Civ. Proc. 8 1598 unaffected by the General Statutes. 1985 wetven v. Fick, 178 N. Y. 223, 70 N. 10. 88. Act Colo. April 29, 1895, as amended by 8. Act April 6, 1899, being a re-enactment of a prior state which it repealed, was intended to operate on judgments rendered prior to its passage. Lamb v. Powder River Live Stock Co. \[C. C. A.\] 132 F. 44. Act March 14, 1903, constructed to be retrospective in its operation. Orman v. Van Arsdell \[N. M.\] 78 P. 48. 9. Gwin v. Brown, 21 App. D. C. 295; Edelstein v. Carlile \[Coo.\] 78 P. 680; Lamb v. Powder River Live Stock Co. \[C. C. A.\] 132 F. 434.

448 LIMITATION OF ACTIONS SS 1. 4Cur. Law.

The statute is a positive rule of law and must be enforced when applicable,18 regardless of seeming harshness or unwisdom14 if properly invoked,18 and not otherwise.16 An equitable reason for granting relief from the bar will not be considered at law.17

_Admiralty18 and equity_, in the absence of exceptional circumstances, usually act in analogy to the statute;19 but they are not bound by it and will not follow it where conditions render it inequitable,20 except in cases of concurrent jurisdiction,21 and under a system where there is but one form of action and the statute is directed to the substance not to the forum.22

_Limitation is governed by the law of the forum;23 but where a statute creates a liability and annexes a limitation thereto, such limitation will follow the right wherever the cause is sued upon,24 and the fact that the limitation is contained in a different statute is immaterial, provided it is directed at the newly created liability.25 A law applying the lex loci to foreign causes will bar a suit_

eign judgments and also declaring that if
stockholders against the directors of a cor-the judgment be based on a cause which

portion may extend back over six years
accured more than six years prior to the

from the time of bringing suit. Barry v.
action on such judgment, the action, If

doesn't be combined

Moeller \[N. J. Eq.1\] 59 A. 97. Where a de-

against a bona fide resident, must be com-
mand ordinarily cognizable at law is be-

menced within three months after rendition

cause of special conditions enforceable only

of the judgment sued on, is unreasonable.

Lamb v. Powder River Live Stock Co. \[C.

same way as at law, either in obedience to

C. A.\] 132 F. 434.

13. Adams v. Hopkins, 144 Cal. 19, 77 P.

01. Where the defendant procured an

injunction under Rev. Code 1893, $ 5845 against

the foreclosure of a mortgage under a power

of sale contained therein, he is not stepped

thereby to plead the bar of the statute

against an action to foreclose. Feigen v.

Drake \[N. D.\] 101 N. W. 893. A judgment

establishing the validity of a mortgage rendered in an action to quiet title is not res

(C. C. A.\] 133 F. 28. Statutes of limitation

adjidicate against a plea of the statute

trapped in a subsequent action between the

same parties to foreclose the same mortgage, where it does not appear that the

conditions were such that the statute could

not have been made available as a defense

to the former action. Id. In the prescription liberaloid causa, the question of good

bad faith plays no part. Munholland v.

Fakes, 111 La. 931, 35 Sc. 983.

14. A court in its instructions is not re-

quired to comment on the wisdom and benef-

ence of the statute. Nelson v. Brisbin

\[Neb.\] 98 N. W. 1057.

15. A debter is under no obligation to

call his creditors' attention to the statute.

Paul v. Fidelity & Casualty Co. \[Mass.\] 71 N. E. 801.

16. Adams v. Hopkins, 144 Cal. 19, 77 P.

01. Paul v. Fidelity & Casualty Ins. Co. \[Mass.\] 71 N. E. 801.

01. The fact that pending a suit in rem

'to recover for breach of contract of afterfrelimment the damages sustained by libel-

lant have increased to a sum in excess of

the stipulation given for the release of the vessel is not such an exceptional circum-

stance as, will permit an amendment of the

libel to bring in the ship owner and add a new cause of action. The Southwalk, 138

F. 149.

19. See Equity, 3 Curr, L 1210. Federal

ecourt of equity. Stevens v. Grand Central

Min. Co. \[C. C. A.\] 133 F. 28. Accounting by against a corporation foreign to the lex loci where, however, it was at all times usable and could sue there.\[16\] Federal courts follow the statute of the state in which the action is tried.\[27\]

SS 2. \_Period of limitation.\[28\]--\_The various periods of limitation are entirely dependent on statutes, which usually prescribe time for the general classes of actions known as actions involving title to\[90\] or the rents and profits of, realty;\[30\] actions on contract;\[31\] sometimes specially on written contracts\[32\] and specialties;\[33\] liabilities arising out of contract;\[34\] actions for tort;\[35\] actions for usurly;\[36\] actions as bearing on construction. Davis v. Milli8, 440. An action for damages for failure to 194 U. S. 451, 48 Law. Ed. 1067.

28. Hence transitory cause of action run-ning four years in Nebraska was barred state (Code Civ. Proc. $ 884, subd. 2). there, though it run only over the two years prescribed in Iowa, where it arose. Taylor Y. S. 268. An action on a common-law bond 1s within the provision of Code. $ 185, pro- 27. Green v. Barrett, 123 F. 249.

01. See 2 Curr. L. 747.

01. See Adverse Possession, 3 Curr. L. 51. An action to determine title to one-half (cubie foot per second of water claimed nn- 672. Ball. Ann. Codes $ 480, subd. 3, der a feed is governed by Code Civ. Proc. $ 318. Five years. South Tube Independent Ditch Co. v. King, 144 Cal. 450, 77 P. 1032.

An action for breach of covenant running with the land is governed by the 20-year statute, not the 6-year. Chicago, etc., R. Co. v. McEwen (Ind. App.) 71 N. B. 926. An action to set aside a tax (ed because the land was purchased at a tax sale by the agent of the delimoment owner relative to the land is barred after five years (Code, $ 1448).

Bemis v. Plato, 119 Iowa, 127, 93 N. W. 83. The nullity of a sale made by the wife in payment of her husband's debts is cured by the prescription of five years, dating from the dissolution of the marriage or the majority of the hair of the wife. Munchholland $ 1. Fakes, 111 La. 931, 35 So. 983. Five-year statute does not apply to actions concerning the role of being real estate (Code Civ. Proc. $ 1481). Gron- $ 17 P. 211.

29. Valley Trading Co. (Mont.) 76 P. 211.

01. Valley Trading Co. (Mont.) 76 P. 211.

01. The nullity of a sale made by the wife in payment of her husband's debts is cured by the prescription of five years, dating from the dissolution of the marriage or the majority of the hair of the wife. Munchholland $ 1. Fakes, 111 La. 931, 35 So. 983. Five-year statute does not apply to actions concerning the role of being real estate (Code Civ. Proc. $ 1481). Gron- $ 17 P. 211.

01. Valley Trading Co. (Mont.) 76 P. 211.

01. The nullity of a sale made by the wife in payment of her husband's debts is cured by the prescription of five years, dating from the dissolution of the marriage or the majority of the hair of the wife. Munchholland $ 1. Fakes, 111 La. 931, 35 So. 983. Five-year statute does not apply to actions concerning the role of being real estate (Code Civ. Proc. $ 1481). Gron- $ 17 P. 211.

01. The nullity of a sale made by the wife in payment of her husband's debts is cured by the prescription of five years, dating from the dissolution of the marriage or the majority of the hair of the wife. Munchholland $ 1. Fakes, 111 La. 931, 35 So. 983. Five-year statute does not apply to actions concerning the role of being real estate (Code Civ. Proc. $ 1481). Gron- $ 17 P. 211.

01. The nullity of a sale made by the wife in payment of her husband's debts is cured by the prescription of five years, dating from the dissolution of the marriage or the majority of the hair of the wife. Munchholland $ 1. Fakes, 111 La. 931, 35 So. 983. Five-year statute does not apply to actions concerning the role of being real estate (Code Civ. Proc. $ 1481).

01. The nullity of a sale made by the wife in payment of her husband's debts is cured by the prescription of five years, dating from the dissolution of the marriage or the majority of the hair of the wife. Munchholland $ 1. Fakes, 111 La. 931, 35 So. 983. Five-year statute does not apply to actions concerning the role of being real estate (Code Civ. Proc. $ 1481).

01. The nullity of a sale made by the wife in payment of her husband's debts is cured by the prescription of five years, dating from the dissolution of the marriage or tions on a liability created by statute;" actions on a judgment;" and an omnibus section covering all actions not specifically provided for." Parties to a contract may by the terms thereof limit the period within which an action must be brought." In Kentucky, however, such a limitation is void as an attempt to vary the statute."

In New York the day on which the cause accrued is included," as is the last day, though it fall on Sunday."

SS 3. _Disability and exceptions. A. Trusts._"The statute does not run in favor of the trustee of an express" or continuing trust" until repudiation thereof

on personal injury, but was one arising out created by statute, and is barred after six of breach of contract to which the five- years. In re Campbell's Estate, 96 App. year statute was applicable. Altsheler v. Div. 561, 89 N. Y. S. 569. The 10-year statute Conrad \[Ky.\] 88 S. W. 257. In Kentucky, applicable to equitable actions does not apply. It.

proceedings for the assessment of land by which the owner failed to list must be brought within five years. Falls Branch Code Civ. Proc. $ 807, by the mother of a Jellico Land & Imp. Co. v. Com. \[Ky.\] 88 S. W. 108. An action for wrongful ejection port it is not for a penalty barred after two from a street car without force is not an years, but may be maintained within six action for assault and battery within Rev. years. State v. Patterson \[S. D.\] 100 N. W. St. 1899, $ 4275, limiting the right to bring 162.

actions for assault and battery to two years.

S8. The Nebraska General Statute of Limitations, SS 10, 16. Four years does not apply.\] 84 S. W. 172. Under Const. art. 7, $ 6, providing that no person acting on be- half of the state shall allow any claim which as between citizens would be barred, a transfer tax illegally assessed need not be refunded. In re Hoople's Estate \[N. Y.\] 72 N. E. 229. Action for fraud in inducing parties to lease a cotton press is governed by the four-year statute. American Cotton Co. v. Frank Heierman & Bro. \[Tex. Civ. App.\] 83 S. W. 845.

S3. Trespuss: An action against a city for damages resulting from the fact that the city engineer. gave a property owner an erroneous statement as to the grade of a street in reliance upon which he built is barred in six years. Moore v. Lancaster \[Pa.\] 88 A. 890. Ball. Ann. Codes & St. 1 4800, limiting the time within which an action for trepsmass must be brought, governs only such actions as were trepsmass at common law. Suter v. Wentee Water Power Co., 35 Wash. 1, 76 P. 298. Action for neg-lgent construction and maintenance of an irrigation canal from which water over-flowed plaintiff's land is not within its purvev. Id.

Negligence: The five-year statute is applicable to an action by a receiver for negligence of directors in managing a bank. Stone v. Rottman \[Mo.\] 82 S. W. 76.

Action for libel: Under Mills' Ann. St. 2901, must be commenced within one year. Complaint showed on its face that the cause accrued more than one year prior. Evans v. Republican Pub. Co. \[Colo. App.\] 78 P. 311.

36. One year in Kentucky. Burnside v. Mealor \[Ky.\] 80 S. W. 785. One year in Louisiana. Dannenmann v. Charlton \[La.\] 36 So. 665.

01. The individual liability of a stockholder for corporate indebtedness is within Code Civ. Proc. $ 385, requiring an action to be brought within three years. Jones v. Goldtree Bros. Co., 142 Cal. 383, 77 P. 389. An action for an accounting to require an executor to set apart receptor property from the estate of a decredit is to enforce a liability by the trustee,47 and notice to the beneficiary48 or until the trust relation is dissolved,49 or terminated by statute.50 The statute runs against an action to enforce a constructive trust from the date of notice.51 If an action by a trustee is barred, the right of the beneficiary is also gone, though he may have been under disability when the cause acerued,52 providing the trustee is vested with the legal title.53

(SS 3) \_B. Insanity and death.54--Limitations do not run against insane persons until the disability is removed.55 The death of a debtor does not suspend the operation of the statute.56 In Arkansas the death of a debtor causes a substitution of statutes.57

(SS 3) \_C. Infancy and coverture.58--The statute does not run against in-fants,59 but an infant may be barred by the bar against his trustee or representative.50 In many states statutes provide a period within which an action may be 452 LIMITATION OF ACTIONS SS 3D. 4 Cur. Law. brought after majority is attained,61 and if the action is not brought within such period, it is barred.62

The statute does not run against married women during coverture.63 In Kentucky their right to maintain an action is immaterial.64 The statute does not operate as between husband and wife.65

(SS 3) \_D. Absence and nonresidence.66--Generally speaking, the statute is tolled during nonresidence67 or absence of defendant from the state,68 no matter how long continued,69 providing such nonresidence precludes the bringing of the action.70 In some states the absence must be continuous and exceed a prescribed

61. Burns' Ann. St. 1901, SS 297, providing that a cause of action aceruping to a person under legal disability may be maintained

01. Under Rev. St. 1885, art. 3352. Illinois: without two years after the disability is removed. Bryson v. Collmer \[Ind. App.\] 71 N. E. 229. In Alabama the bar of the statute

time until one year after the passage of the is not effective against minors until three years after disability is removed. Bradford

Held, an action commenced in 1902 by a marre-v. Wilson \[Ala.\] 87 So. 235. Lead owned in

red woman 60 years of age was barred.

common by Infants and adults was sold for

from v. Pearson \[Tex. Circ. App.\] 81 S. W.

less than its value to one of the adults

753. An action commenced in 1902 by the and the proceeds partitioned. The infants

heres of a married woman who would, had

were represented by guardian ad item.

Held, within one year after attaining ma-

64. Ky. St. 1903, SS 2525. Ferrell v. Mau-

jority the infants could have their portion

of the land set aside to them on returning

65. Collins v. Babblit \[N. J. Eq.\] 58 A.

the money received \[Civ. Code Proc. # 391. 518\]. Taylor v. Webber \[Ly.\] 83 S. W. 567.

65. Collins v. Babblit \[N. J. Eq.\] 58 A.

01. Statute of limitations does not begin

to run in favor of husband until death of

Where land of infants was wrongfully sold

to innocent purchasers, an action to recover

her land occupancies, an action to recover

the proceeds brought within two years after

171. Mo. 362, 71 S. W. 826.

the oldest infant attains majority is timely.

Schneider v. Sellers \[Tex.\] 84 S. W. 417.

67. Under Burns' Rev. St. 1901, SS 298,

01. Under Code Circ. Proc. # 388, providing that an action not otherwise provided

resident may be subjected to the satisfaction

for must be brought within ten years from

of a personal judgment against the grantor

the time the cause accrued, and SS 396,

procured more than six years before. Ralph

viding that time of disability is not a part

of the time limited but that the period can-

the evidence as to the residence of a de-

not be extended more than one year after

disability ceases, a cause of action In an

infant against his guardian arising from

Mathews, 93 App. \[Div.\] 356, SS7 N. Y. S. 652.

constructive fraud is barred one year after

Conflicting evidence held to show that after

the infant attains majority. Cahill v. Sefitz,

93 App. Div. 105, SS 108. Y. S. 1009. Under

sharf & C. Ann. St. 1886, 2620, an infant

sharf using within 2 years after attaining ma-

pended during his absence. Simpson v.

jority. Mason v. Odum, 210 Ill. 471, 71 N. W. 185.

B. 386. Where a deed executed by one of

1894, SS 6145, 6146, constructed and held that

several executures was void but the grante

went into possession thereunder, limitations

com commenced to run against the exectures and

and the debtor is out of the state when the

against infant beneficiaries at that date, and

where such infants did not bring action

second section applies to actions, the sub-

within 10 years after attaining majority

ject-matter of which arises out of the state,

(Code Circ. Proc. # 356, 375), their action was

Powers Mercantile Co. v. Blethen, 91 Minn.

barred. Brown v. Doherty, 93 App. Div. 190,

339, 97 N. W. 1056.

87 N. Y. S. 653. The doctrine that one

def disability is entitled to a reasonable

belonging to another, took title in his own

time after the disability is removed to dis-

name and left the state, limitations against

affirm or ratify his acts does not give him

an action to declare a resulting trust did

a period other than that provided by the

not run while he was absent \[Rev. St.

stute for maintaining an action. Cahill v.

1899, SS 4282\]. McMurray v. McM 4 Cur. Law. LIMITATION OF ACTIONS 8 4. 453

period,71 but a change of residence is not necessary.72 A statute which suspends the operation during temporary absence does not apply to one who has never been a resident73 In Wisconsin74 nonresidence may be taken advantage of by a foreign corporation. A different rule prevails in New York.76 In Nebraska and Iowa,76 but not in Kansas,77 they may avail of limitations.

SS 4. _Accural of cause of action. In general.78--A cause of action79 accrues where there exists a demand capable of present enforcement, a usable party against_

the fee. Wetyen v. Fick, 178 N. Y. 223, 70

accrue until the son several years later se-

N. E. 497.

71. Code Civ. Proc. 8 401, suspends the

s. W. 606. Limitations run against a cause

sence from the state of over a year's duration. Miller v. Warren, 94 App. Dlv. 192, 87

the date of receipt. Murphy v. Omaha, 1

N. Y. S. 1011.

Neb. Unotr. 488, 95 N. W. 680. Money be-

72. Under Rev. St. 1895, art. 3867, the

taining to one school district erroneously

saturate is suspended whenever the defend-

and is absent from the state on business or

This is not a payment under mistake. Inde-

pleasure. Bemis v. Ward \[Tex. Civ. App.\]

S4 S. V. 291.

73. A note payable in Minnesota was exe-

Cited in New York by a resident of that

of land can be determined: therefore not as

state who before it came duce moved to New

South Wales, where the note was outlawed

Humphrey \[Vwash.\] 77 P. 1071. Where only

by the laws of that country. Held, not being

a resident of Minnesota at any time, the

the grantee went into possession, Imita-

note is not enforceable against him while

tomemorely within this state. Drake v. Big-

elow \[Min.\] 100 N. W. 664. This opinion

Civ. Proc. 8 415. Brown v. Doherty, 93

does not conflict with Powers Mercantile Co.

v. Bliethen, 91 Min. 339, 91 N. W. 1056.

saction for unlawful levy accrues at the date

74. Rev. St. 1898, 9422, 4223, suspending

the statute while a defendant is absent

saide. Fenner v. Kime \[Neb.\] 93 N. W. 483.

from the state, may be- taken advantage

of by a foreign corporation under $ 3207,

siving it a right to sue. Weybur & Briggs

Co. v. Bemis \[Wis.\] 93 N. W. 1050.

75. Where a domestic corporation assump-

ed the hdedness of a foreign corporation, limitations commenced only from the

date of assumption. Gray Lithograph Co. v.

Boyett, 120 Ga. 649, 48 S. E. 185. Against

American Watchman's Time Detector Co., 44

Mise. 206, 88 N. Y. S. 857. Stockholders of a

foreign corporation are, however, usable on

their liability. Platt v. Wilmot, 193 U. S.

802, 48 Law. Ed. 809.

76. Taylor v. Union Pac. R. Co., 123 F. 165.

01. Williams v. Metropolitan St. R. Co., 68

68 Kan, 17, 74 P. 600.

78. See 2 Curr. L. 751.

01. See Causes of Action and Defenses, 3

Curr. L. 663. An insurance policy provided

that action thereon must be maintained

within one year from loss; that in case of

disagreement the loss should be submitted

to arbitration; that the company should not

be deemed to have vafved any provision by

any act relating to appraisement. Held,

where without fault of the insured the

appraisers failed to agree within a year, his

right of action was not barred. Frits v.

British America Assur. Co., 208 Pa. 268, 57

A. 573; Tobias v. Richardson, 6 Ohio C. C. (N. S.) 74. Under the Oregon 'Bot Lien

Law, limiting the commencement of an action to one year after the cause of action

shall have accrued, limitations run from the

expiration of the credit allowed, not from

the furnishing of the material. Barstov v.

The Aurelia \[Or.\] 77 P. 835. A father executed a feed to his son. The son without

recording it returned it to his father. Held,

the right to have the deed canceled did not

not

to be published.

84.

- 4.4.

claim can be made."99 Where a permanent nuisance is created and damages occasioned can be ascertained immediately, limitations run from the time it is created,99 but if the total damage is not ascertainable but depends on forces set in motion by it, the statute runs only from the time actual damage results.91 A prescriptive right to use real property bars an action to recover for permanent injuries to adjoining property;92 but is no defense to an action for injuries to property beyond the limits of the right acquired.93 Federal courts follow the decisions of the state courts in determining when a cause of action created by a statute accrues.94

Footnote 93: The author is grateful to the anonymous referee for his constructive suggestions.

Footnote 94: The author is grateful to the anonymous referee for his constructive suggestions.

Footnote 95: The author is grateful to the anonymous referee for his constructive suggestions.

Footnote 96: The author is grateful to the anonymous referee for his constructive suggestions.

Footnote 97: The author is grateful to the anonymous referee for his constructive suggestions.

Footnote 98: The author is grateful to the anonymous referee for his constructive suggestions.
creditors of the corporation." The endurance of the statutory liability depends largely on the terms of the statute, which often provides a special limitation but not always.4

24 Am. St. Rep. 894; Western R. Co. v. |sense, a trust fund for creditors, but simply Avery, 64 N. C. 491; Glenn v. Howard, 81 create, as to the amount due thereon, the re-Ga. 883, 12 Am. St. Rep. 318; Lewis v. Glenn, lation of debtor and creditor between the 84 Va. 947; Vanderwerken v. Glenn, 85 Va. subscribers and the corporation (see Clark & 9; In re Hagger Bros. Mfg. Co., 19 App. R. M. Corp. 8 768) and if the statute of limitations runs against an action by the corpora- |c Can. | 582 > though in some states it is held that the period of limitations runs from the date of susverighton, or from a reason- |c sues supra}, it also runs, in the absence able time after the subscription within which to call for payment (see Pittsburgh & C. R. Co. v. Byers, 32 Pa. 22, 72 Am. Dec. 770; McCully v. Pittsburgh & C. R. Co., 32 Pa. 26; Shackamaxon Bank v. Dougherty, 20 VWkly. Notes Cas. \[Pa.\] 297; Hamilton v. | 34; In re Hagger Bros. Mfg. Co., 19 App. R. M. Corp. 8 768) and if the statute of limitations runs against an action by the corpora- |c Can. | 582 > (see | 582 > (see | 583 > (see | 584 > (see | 585 > (see | 586 > (see | 587 > (see | 588 > (see | 589 > (see | 58 4 Cur. Law. LIMITATION OF ACTIONS SS 4. 457

_Mistake._"--The statute does not run against a right of action growing out of mistake until discovery thereof."

_Fraud._"--It is generally provided that a cause of action arising out of fraud does not accrue until the fraud is" or ought to have been discovered." Concealed fraud if not within the statutory exceptions does not suspend the operation of the statute." Concealment of a cause of action becomes fraudulent when it is the

ders an assessment to be paid to the re-

bus clause. People v. Perris Irr. Dist., 142

ceiver, and, if not paid, to be collected by

Cal. 601, 76 P. 381. Where a widow did not

him, the statute of limitations runs from

discover that the title to lands purchased

the date of such order only. Great Western

by her son with money belonging to her hus-

Tel. Co. v. Gray, 122 m. 630. If a receiver

band's estate was taken in his name until

is required by statute to collect unpaid sub-

within ten years prior to action brought to

seriptions at once, and no order of court is

declare a resulting trust, the statute of lim-

necessary to entitle him to sue, the statute

itations had not run. McMurray v. McMurray runs from the date of his appointment.

ray, 180 Mo. 526, 79 S. W. 701. Where the

Vebber v, Hovey, 108 Mich. 49.

cashier of a bank to whom its assets were

It has been held, however, that, when a

correspondation is dissolved, the statute runs

the right to collect unpaid subscriptions from the date of the dissolution. Ga-

books, Central Bank of Kansas City v.

reschl v. Lewis, 15 Mo. App. 565; Id., 93 Mo.

197.

Bonus or Watered Stoek. The statute of limitations does not begin to run against a

fund designated for the payment of improve-

suit by creditors of a corporation to compel

payment by holders of bonus or watered

stock before the insolvency of the corpora.

fromes v. Northwestern Mfg. & Car

Co., 48 Minn. 174, 31 Am. St. Rep. 637, 15 L.

R. A. 470, 2 Keener's Cases, 1890, 1 Cum. Cas.

885; Jones v. Whitworth, 94 Tenn. 602. Com-

pare Wilson v. St. Louis & Western R. Co.,

120 Mo. 45. where a creditor was held to be

barred by labenes in a case In which stock

was issued for services at an overvaluation.

tion. See Clark & M. Corp. $ 490.

4. For full discussion see Clark & M. Corp. $ 828.

1. See 2 Curr. L. 753.

1. Assignee of a void life policy paid

remiums thereon believing it to be valid.

American Mut. Life Ins. Co. v. Bertram

\[Ind.\] 70 N. E. 258.

7. See 2 Curr. L. 753.

1. Failure of an officer to transfer stock

held fraudulent as to a stockholder who

had transferred it to him to be transferred

10. Piesch v. Milbrath \[Wis.\] 102 N. W.

to a capitalist to induce him to publd the

342. The right of action against the pro-

credit of the corporation. Shayback v. Ray-

mond, 93 App. Div. 326, 87 N. Y. S. 931.

Where an agent misappropriates funds of his

operation, at an excessive price, land on

principal, the statute does not commence

which they had obtained a secret option, is

run until notice to the principal. Guernsey

barred six years after accrual. Rev. St.

v. Davis, 67 Kan. 378, 75 P. 101. Under Code

1898, $ 422. Not within the exception which

Civ. Proc. $ 338, subd. 4, limitations do not

postpostunes the operation of the statute until

run against a cause of action for fraud

until the fraud is discovered. People v. 101 N. W. 388. The provision in subd. 3, $

Perris Irr. Dist., 142 Cal. 601, 76 P. 381.

The fact that a statute providing for the

of a regulation of irrigation districts declares

that no action affecting the validity of the

organization shall be maintained after two

years subsequent to organization does not bar

an action to have set aside for fraud the

declare a resulting trust, the statute of lim-

rece of confirmation. Id. Attachment and

levy upon real estate fraudulently trans-

ferred, all the parties being nonrecidentident

the right of action is discovered. Id. \[Wis.\]

Coulson v. Galitsman, 1 N. Web. Proof. 502, 96

N. W. 349. An action to set aside for fraud

a decree confirming the organization of an

irrigation district is not within the pro-

visions of Code Civ. Proc. $ 343. The omml-

The author is indebted to the author.

101. The author is indebted to the author.

001.

44.58 LIMITATION OF ACTIONS SS 5. 4 Cur. Law.

duty of the party having knowledge of the facts to discover them to the other.11 The recording of a deed fraudulently procured amounts to a discovery of the fraud,12 providing it is under such circumstances as to put an ordinarily prudent man on inquiry.13 The action must be brought within the time limited after discovery of the fraud,14 and ignorance thereof until a time within the period must be established.15

_Accounts.--Payments on a running account unless made to apply on specific items will be deemed general and stop limitations as to the entire account.16 A payment upon a book account which has never been recognized in its entirety, without a showing that the payment was made in recognition of the whole claim, will not stop limitations as to the unpaid portion.17_

SS 5. \_Tolling.18--\_Besides the commencement of an action,19 only the circumstances enumerated in the statute suspend its operation.20 This principle applies to limitations by contract.21 The failure to appoint an administrator will not suspend the operation of the statute as to a cause of action accrued at the date of the death of his decedent.22 A statutory prohibition staying the commencement of an action tolls the statute.23 but ignorance of the existence of a

11. Where an agent conceals the true state of facts relative to transactions between himself and principal. Arkins v. Arkins \[Coo. App.\] 77 F. 256.

01. Rogers v. Richards, 67 Kan. 706, 74 P. 255. Starts limitations against the grant policy not suspended by an injunction tor as to any fraud in procuring the deed. McDonald v. Rayard Sav. Bank, 123 Iowa, 413.

98 N. W. 1025.

13. Not where debtor and creditor live 5,000 miles apart and the property is atated where neither live. Jones v. Danforth \[Neb.\] 99 N. W. 495.

01. Ball. Ann. Codes & St. SS 4800, provides that an action for fraud must be commenced within four years after the discovery of the fraud. Held an action for relief against a fraudulent corporate reorganization scheme in which the sacrifice of mort-gaged property on foreclosure was complainted of was barred where the complaint showed notice more than four years prior to commencement of the action. Griffith v. Seattle Consol. St. R. Co. \[Wash.\] 79 P. 314. Reasonable deduction from the complaint was that plaintiff had knowledge of the fraud for eighteen years. McWhorter v. Cheney \[Ga.\] 49 S. E. 603.

01. Action to set aside a fraudulent conveyance. Fuller v. Horner \[Kan.\] 77 P. 88.

If the evidence leave the date in doubt, prescription will be maintained, especially where there is evidence that the fraud was discovered. Succesion of Danbin, 112 La.

103, 36 So. 287. A mere allegation that discovery was within the period is insufficient where from the circumstances of the case the probabilities are that it was made before. Id.

16. Howe v. Hammond \[Vt.\] 58 A. 724.

01. Rogers v. Newton \[N. J. Law\] 58 A. 110.

01. See ante, SS 4, as to effect of fraud and mistake.

01. See post, SS 6.

01. Where a creditor of a dissolved corporation may maintain action against stockholders on the dissolution of the corporation without recovering judgment against the corporation, limitations as to a stockholder cause of action does not,24 nor does the transfer of a cause of action25 or the transfer of money from an open account to a savings account.26 The filing of an action in partition wherein rights may be litigated tolls the statute as to all parties interested respecting such rights.27

_A new promise_ to pay after the cause has accrued tolls the statute and starts it running anew.28 There must be a promise,29 but it may be implied from an acknowledgment.30 An administrator may by a promise toll the statute as to a debt of the decedent so as to bind personality.31 but a promise by an heir is necessary to bind the reality.32

_A partial payment_ tolls the statute,33 but it must have been made by the debtor or under his authority,34 and on account of the debt in controversy.35 The burden of proving such payment is on the creditor.36

SS 6. \_Commencement of action. A. In general.37--The commencement of an action tolls the statute.38 Presenting a claim to an administrator is an action.39

_Action is begun_ by service of process40 or by voluntary appearance41 or issuance of process42 and filing complaint,43 or by filing complaint44 and issuance of summons followed by legal service.45

Footnote 42: For all purposes but limitations an If a complaint is good as against general demurrer, it is sufficient to toll the statute."

(SS 6) \_B. Amendment of pleading."--\_An amendment which does not state a new cause of action, but is filed after the bar of the statute is complete, relates back to the date of filing the original complaint." Whether a new cause of action is stated is to be determined by the rule against departures in pleading." Thus it is held that an amendment which merely amplifies the allegations of the original complaint," so as to state the cause with more certainty," or corrects a statement therein," or restates the same cause," or which works a substitution of parties," or which adds a material allegation," does not state a different cause of action In personam Is not commenced until R Railroad Co., 41 F. 144; Newton v. Alls, 12 process is served; but for that purpose is-suance with intent to have it served begins \[Sec. Ptillo v. Allen-West Commission Co. it \[V. S. 8 1214\]. Tracy v. Grand Trunk R. \[Sec. C. A.\] 131 F. 681.

49. A.count declaring for money bad and 42. In Washington the service of summons must be followed by a filing of the complaint within the time prescribed. Under 2 Ball Ann. Codes & St. 4807, providing an action is commenced when the summons is not sufficient. Cresswell V. Spokane County, 30 Wash. 620, 71 P. 195.

01. In Georgia, when the petition is filed, irregularities of the process or service is \[Sec. Ptillo v. Allen-West Comm. C. A.\] 133 F. 698.

01. Service on several Joint defendants was delayed six months. Cox v. Strickland, 120 Ga. 104, 47 S. E. 912. In Nebraska an action Is not commenced when summons is issued unless it Is actually served. The mere issue of summons without return of service is insufficient. Reliance Trust Co. v. Atherton \[Sec.\] 93 N. W. 150.

01. Though it might be open to attack through special demurrer. Schmidt v. Brittain \[Sec. Civ. App.\] 84 S. W. 677.

01. See 2 Curr. L. 756.

01. Coswell v. Hall, 135 Mass. 455, 70 N. B. 461; Cleveland, etc., R. Co. v. Bergschick-cr, 162 Ind. 108, 69 N. E. 1000.

NOTEL An amendment to a complaint which sets up no new cause of action or claim and makes no new demand but simply varies or expands the allegations in support of the cause already propounded, reinstates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. But an amendment which introduces a new or different demand not before introduced or made in the pending suit does not relate back to the beginning of the 'action so as to stop the running of the 'action' with the amendment is filed. Whalen v.

Morden. 95 F. 305; Railway Co. v. Wyler, 158 U. S. 285, 289, 39 N. Lawr. Ed. 938; Railway Co. v. Cox. 145 U. S. 593, 601. 606, 36 Law. Ed. 829; Sicard V. Davis, 6 Pet. \[U. S.\] 124, 8 Law. Ed. 342; Van De Haar v. Van Domo-veler, 56 Iovs. 671; Jacobs V. Insurance Co., 86 Iovs, 145; Buel v. Transfer Co., 45 Mo. 563; Scovill v. Glasner, 79 Mo. 49; Crofford v. Cothran, 2 Sneed \[Tenn.\] 492; Railway Co. v. Jones, 149 111, 361, 37 N. E. 247, 41 Am. St. Rep. 278, 24 L. R. A. 141; Eylenfeldt v. Steel Co., 165 111, 185; Railroad Co. v. Campbell, 110 113; Christy v. Farlin, 49 Mich. 319, 18 N. W. 607; Flatley v. Railroad Co., 9 Helisk, \[Tenn.\] 230; Buntin v.

action. But if an amendment states a new cause of action, it does not relate back;" so if the original complaint. does not state a cause of action," or the amendment sets up a new and different cause," the action is deemed commenced as of the date of filing the amendment."

(SS 6) _C. After nonsuit or dismissal._"--In most states it is provided that if an action fail otherwise than on the merits, a new action may be commenced within a prescribed period." Such statutes being remedial are liberally construed" and apply where a suit is dismissed for want of jurisdiction," or because a plaintiff mistook his form of remedy;" but not where a complaint is dismissed

St. R. Co. \[Mass.\] 71 N. E. 317. Complaint

particular trhe, cannot be amended after against a partnership may be amended so as to declare against one individually. Padren v. Clark \[Howard 99 N. W. 152. Under Code Civ. Proo. $ 723, providing that an amendment correcting or adding or striking out the name of a party may be allowed, a complaint against one as trustee may be amended so as to be against him personally. Boyd v. United States Motrg. & Trust Co., 94 App. Div. 413, 88 N. Y. S. 289. A wrong party was named as defendant. The real party answered by general denial and on the merits. The pleadings were signed "Attorney for defendant." After the period of limitations had elapsed, the plaintiff by amendment corrected the mismomer. Held, that the circumstances warranted a finding that the real defendant had appeared in the case prior to the bar of limitations. McCord-Collins Co. v. Prichard \[Tex. Civ. App.\] 84 S. W. 388.

**55.** Under Code, # 243, 273, an amendment may insert in a complaint for wrongful death that in the state in which the death occurred a statute was in force allowing an action, though at the time of the amendment the cause of action under such statute was barred. Lassiter v. Norfolk & C. R. Co., 138 N. C. 89, 48 S. E. 642. A bill by beneficiaries to set aside a sale of trust property sold under a judgment against the trustee may be amended to allege that the property was held in trust. Ferguson v. Morrison \[Tex. Civ. App.\] 81 S. W. 1240. An amendment setting forth essential statutory allegations in a bill to redeem an estate from a mortgage will be allowed where it appears that without such amendment a second bill could not be commenced before the mortgage would be forever foreclosed.

Dee v. Littlefield \[Me.\] 55 A. 438. Original petition in conversion against a ballege for sale was defective for lack of an allegation that a reasonable time had elapsed within which the might sell, before demand for return of the property. Gourley v. Prokop \[Neb.\] 100 N. W. 94, afg. 98 N. W. 243.

**56.** Bentley V. Crummey, 119 Ga. 94, 47 S. E. 209.

**57.** Mackey v. Northern Mill, Co., 210 Ill. 115, 71 N. E. 448. Original complaint in a statutory' action against a railroad where a recovery could be had for injuries to stock regardless of negligence contained no allegation of demand as required by the statute. Held, such action did not toll the statute. Becker v. Atchison, etc., R. Co. \[Kan.\] 78 P. 408.

**58.** A petition under the act of March 3, 1891 \[26 Stat. at L. 851, U. S. Comp. St. 1901. p. 758\], for Indian depredations, alleging that the depredations were committed by a

### Limitation of actions SS 7.

4 Cur. Law.

because it does not state a cause of action,\[85\] or the original action was barred for want of service of process,\[86\] nor to a distinct action commenced while the prior action is pending.\[97\] While the second suit must be for substantially the same cause,\[86\] it does not have to be a literal copy.\[86\] It must be by the same plaintiff or his legal representatives,\[86\] and against all defendants who were necessary parties to the first action.\[71\] Such statutes have no reference to the law of venue.\[72\]

SS 7. \_Revival of obligation.\[13\]--A debt barred by limitations may be revived by a new promise to pay.\[74\] The new promise need not be express.\[75\] It may be implied from an acknowledgment of the existence of a -debt,\[76\] providing it is of such a character that a new promise can be fairly inferred.\[77\] The "unconditional promise in writing" required by statute must be clear and explicit.\[78\] It must be to the creditor or his agent, over the signature of the debtor.\[79\] A promise is

action for the same cause within one year.

\[width=0.5\] Held, where suit was dismissed because of mistake in the form of remedy, a new action could be instituted within a year. McMillan v. Reaume \[Mich.\] 100 N. W. 166.

\[width=0.5\] 65. A statute allowd a recovery for anti-malls killed by a railroad company regardless of negligence, but there must have been a demand within 80 days. The original complaint did not allege a demand and plaintiff dismissed his action without prejudice.

\[width=0.5\] 65. A statute had run. Becker v. Atichson, etc. R. G. \[Kan.\] 78 P. 408.

\[width=0.5\] 66. This statute does not apply where the action was barred for want of service of process. Comp. Laws, SS 985, Including in the things constituting commencement of suit the service of a copy of the declaration on the defendant personally. Without v. Detroit \[Mich.\] 100 N. W. 1020.

\[width=0.5\] 67. Sand E. H. Dig. # 4841, providing that if plain 4 Cur. Law. LIMITATION OF ACTIONS $ 8A. 403

not rendered conditional by stating the reasons why the obligation could not be liquidated presently.\* If a new promise may be made by parol, it is provable by parol regardless of changes made in the rules of evidence.81 Whether certain evidence constitutes a new promise sufficient to raise the bar is a question of law.82

Footnote 82: The author is grateful to the anonymous referee for the support of this work.

A partial payment revives a barred obligation of its own vigor, not as evidence of an express promise.83 Such payment must have been authorized by the debtor.84 A payment by the maker of an overdue negotiable instrument will not remove the bar as to an indorser.85

Footnote 83: The author is grateful to the anonymous referee for the support of this work.

An action of tort once barred cannot be revived.88

SS 8. _Operation and effect of bar. A. Bar of debt as affecting security.87--_

That the action on the principal obligation is barred does not affect a creditor's right against the security,88 unless otherwise provided by statute,89 nor does the fact that a personal judgment against the debtor becomes barred render dormant that part of a decree declaring that the creditor has a valid title to the security to the extent specified.80 A power of sale contained in a trust deded may be exercised, though an action on the debt it was given to secure is barred,81 and an action for possession by the purchaser is not such an effort to enforce the collec tion of the debt secured as to be barred by the limitations which have run against the debt.92 A right to foreclose the security may be barred, though the principal debt is not,93 though in Iowa and Indiana it is held that so long as the principal debt remains enforceable, the lien of the security continues unimpaired.94 A limitation contained in a bond to secure performance of a contract is not applicable to an action based on the contract.95 The death of a mortgagor does not toll the statute as to a co-mortgagor.96

(SS 8) B. Against whom available.97--The statute runs against a prior lien- or in favor of a subsequent lienor.98 It does not run against the state.99 The fact that a defendant is permitted by statute to interplead an indemnitor does not make the limitation application to the plaintiff's cause of action applicable to his action over against the indemnitor.1

(SS 8) C. To whom available.9--As a general rule, the right to plead the statute is a personal privilege,9 but is available to one who stands in the place of the party in whose favor it runs.4 There is conflict as to whether a foreign corporation may plead it.5 Persons interested in an estate may in certain cases plead it, though the personal representative fails to do so.9

4 Cur. Law. LIMITATION OF ACTIONS SS 9.

to dismiss if the complaint shows that the cause stated is barred.10 Objection that an amendment sets up a barred cause of action may be raised by plea.11 In some states a general demurrer is sufficient.17 In others the defense must be raised by special demurrer.18 The defense cannot be raised by a motion to quash process.14 If a complaint does not affirmatively show the cause stated to be barred,15 or if it indicates some circumstance which may have suspended the operation of the statute,16 it is good against demurrer. A bare averment to the contrary will not make good a complaint otherwise barred.17

Footnote 30: A place of prescription librendial causa. filed as an exception in limine but which contains no averments to break the force of the plaintiff allegations, but relies on admissions in his petition, should not be sustained if the pleadings present matters of fact which affect the question. Rhodes v. Cooper \[La.\] 37 So. 527. A complaint in an argument.

Footnote 4: Cur. Law--30.

to dismiss if the complaint shows that the cause stated is barred.10 Objection that an amendment sets up a barred cause of action may be raised by plea.11 In some states a general demurrer is sufficient.17 In others the defense must be raised by special demurrer.18 The defense cannot be raised by a motion to quash process.14 If a complaint does not affirmatively show the cause stated to be barred,15 or if it indicates some circumstance which may have suspended the operation of the statute,16 it is good against demurrer. A bare averment to the contrary will not make good a complaint otherwise barred.17

Footnote 18: The author is grateful to the anonymous referee for the support of this paper.

Footnote 29: The author is grateful to the anonymous referee for the support of this paper.

Footnote 30: A place of prescription librendial causa. filed as an exception in limine but which contains no averments to break the force of the plaintiff allegations, but relies on admissions in his petition, should not be sustained if the pleadings present matters of fact which affect the question. Rhodes v. Cooper \[La.\] 37 So. 527. A complaint in an argument.

Footnote 4: Cur. Law--30.

to dismiss if the complaint shows that the cause stated is barred.10 Objection that an amendment sets up a barred cause of action may be raised by plea.11 In some states a general demurrer is sufficient.17 In others the defense must be raised by special demurrer.18 The defense cannot be raised by a motion to quash process.14 If a complaint does not affirmatively show the cause stated to be barred,15 or if it indicates some circumstance which may have suspended the operation of the statute,16 it is good against demurrer. A bare averment to the contrary will not make good a complaint otherwise barred.17

Footnote 18: The author is grateful to the anonymous referee for the support of this paper.

Footnote 29: The author is grateful to the anonymous referee for the support of this paper.

Footnote 30: A place of prescription librendial causa. filed as an exception in limine but which contains no averments to break the force of the plaintiff allegations, but relies on admissions in his petition, should not be sustained if the pleadings present matters of fact which affect the question. Rhodes v. Cooper \[La.\] 37 So. 527. A complaint in an argument.

Footnote 4: Cur. Law--30.

Footnote 40: The author is grateful to the anonymous referee for the support of this paper.

Footnote 41: The author is grateful to the anonymous referee for the support of this paper.

Footnote 42: The author is grateful to the anonymous referee for the support of this paper.

Footnote 43: The author is grateful to the anonymous referee for the support of this paper.

Footnote 44: Cur. Law--30.

to dismiss if the complaint shows that the cause stated is barred.10 Objection that an amendment sets up a barred cause of action may be raised by plea.11 In some states a general demurrer is sufficient.17 In others the defense must be raised by special demurrer.18 The defense cannot be raised by a motion to quash process.14 If a complaint does not affirmatively show the cause stated to be barred,15 or if it indicates some circumstance which may have suspended the operation of the statute,16 it is good against demurrer. A bare averment to the contrary will not make good a complaint otherwise barred.17

Footnote 45: The author is grateful to the anonymous referee for the support of this paper.

Footnote 46: The author is grateful to the anonymous referee for the support of this paper.

Footnote 47: The author is grateful to the anonymous referee for the support of this paper.

Footnote 48: The author is grateful to the anonymous referee for the support of this paper.

Footnote 49: The author is grateful to the anonymous referee for the support of this paper.

Footnote 4 * 466 LIS PENDENS. 4 Cur. Law.

- "sary;" but where a reply is not allowed, intervening causes to take the case out of the statute must be set up in the original complaint.24

One setting up limitations has the burden of showing that the action is barred,25 his opponent the burden of showing that his cause falls within an exception 26 In an action to vacate a judgment obtained -by fraud, it is not necessary to show that the defense to the original action is not barred.27

Limited Pastheeship, Liquidated Damages, see latest topical index.

**LIS PENDENS.**

_General rule.28--A "purchaser pendente lite" acquires only those rights which his grantor had,29 and takes the same subject to any order30 or judgment31 that may thereafter be rendered in the case. The purchaser is not a necessary party to the proceeding,32 though he may, on motion, be made a party,28 and, the recovery being by virtue of the rights of one of the original parties, the fact that judgment is for one who became a party after the purchase does not change the rule.34 Such purchaser is also bound by agreements made by bis vendor in the course of the litigation,35 and, in the absence of statutory provisions, is not entitled to notice of the pendency of the action.36 The rule has no application to one acquiring rights prior to the bringing of the suit.37_

\*\*23. Under Code Clv. Proc. $ 522, providding that new matter set up in the answer not requiring a reply is deemed controvert; party. Armstrong v. Ashley, 22 App. D. C. ed, a plaintiff may prove that his case comes within an exception of the statute. Metz v. Metz, 90 N. Y. S. 840. Where a cause of action is stated and the answer pleads the bar of the statute, judgment cannot be entered for defendant on the pleadings, though from the face of the complaint the cause appears to be barred. Chemung Min. Co. v. Hanley \[Idaho\] 77 P. 226.

\*\*24. In Tennessee, chancery evidence of nonresidence, disability, new promise, parlant payment, etc., is inadmissible where not alleged, Jenkins v. Dewar \[Tenn\] 82 S. W. 470. Facts relied on to remove the bar must be specially pleaded. Shirye, Y. Clark \[Ark.\] 81 S. W. 1057. The pendency of an other action must be pleaded, otherwise to cannot be relied on. Citizens' Rank v. Spencer \[Iowa\] 101 N. W. 643.

**25. White v. Century Gold Min, & Milli.**

Co. \[Utah\] 78 P. 868. In trespass for cutting trees, limitations being pleaded, the defendant must show the date of the trespass, and where part of the cutting was barred and part was not, must show what part is barred. Buck v. Newberry \[V Wa\] 47 S. E. 889.

\*\*26. The assignee must show that his assignor had not discovered the fraud within the period of limitations. Hooker v. Worthington. 134 N. C. 283, 46 S. E. 726.

**27. People v. Perris Irr. Dist., 142 Cal. 601. 76 P. 831.**

**28. See 2 Curr. L. 762.**

\*\*29. Steger v. Traveling Men's Bldg. & Loan Ass'n, 208 Ill. 236, 70 N. E. 236; Martin v. Abbott \[Neb.\] 100 N. W. 142. Takes subject to rights of other party. Di Nola v. Allison, 143 Cal. 106. 76 P. 976. Mortgage pendente lite is not, on eviction of his mortgage, entitled to an equitable line on the property on the ground that the money was spent in Improvements, the mortgage was One purchasing pending an appeal(tm) and a grantee in a trust ded(tm) are purchasers pendente life. Recording ded is equivalent to purchasing.(tm)

A party asserting his pendens must prosecute the suit with reasonable diligence,(tm) and as to what constitutes such diligence is a question to be determined with reference to the circumstances of each particular case.(tm)

_Essential elements.(tm)--It is essential to the rule of his pendens that the property bc of a character subject to the rule, that the court have jurisdiction, that the property be sufficiently described,(tm) be then in litigation,(tm) and that title be claimed under a party to the suit.(tm)_

\[This rule is materially narrowed in its application by the registration laws; see above case for an example.\]

\[The secret are Debell v. Poxworthy, 9 B. Mon. \[Ky.\] 228; Clarey v. Marshall, 4 Dana \[Ky.\]

\[The secret is the * 468 LIS PENDENS. 4 Cur. Law.

\_Property within the rule.\_47--The doctrine has no application to negotiable instruments.48

\_Statutorylis pendens.\_49--In some states the common-law rule of notice arising from the action itself is abrogated and the filing of a notice is required;50 but a case not coming within the statute, the common-law rule obtains.51 A list pendens filed in a purely personal action is a nullity.52 This filing is only required in the absence of actual53 or constructive54 notice of the pendency of the action. The right to file a statutorylis pendens is an absolute one,55 the notice being effective only from the time of filing,56 and the judgment in the action has no retroactive power in favor of such notice.57

Footnote 48: The pendency of the action appearing here is not a necessary condition for the action.

Footnote 49: The word $\\mu$ is not a word $\\mu$.

Footnote 50: The word $\\mu$ is not a word $\\mu$.

Footnote 51: The word $\\mu$ is not a word $\\mu$.

Footnote 52: The word $\\mu$ is not a word $\\mu$.

Footnote 53: The word $\\mu$ is not a word $\\mu$.

Footnote 54: The word $\\mu$ is not a word $\\mu$.

Footnote 55: Under Code Civ. Proc. SS 1670. Shandley v. Levine, 44 Misc, 28, 89 N. Y. S. 717.

Footnote 56: Code Civ. Proc. SS 153. Greenwood Loan & Guarantee Ass'n v. Childs \[S. C.\] 45 S. E. 167. Under Gen. St. 184, SS 180, such notice does not affect the rights of a prior unrecorded conveyance. West Missasbe Land Ky, L. R. 2234, 80 S. W. 44. See 2 Curr. L. 762, n. 16.

Footnote 47: See 2 Curr. L. 768.

Footnote 48: Shannon's Code, SS 5260, 5267 as attachments considered as a statutorylis pendens. Kimbrough v. Hornsby \[Tenn.\] 84 S. W. 613. See 2 Curr. L. 763, n. 19.

Footnote 49: See 2 Curr. L. 768. 1. 19.

Footnote 50: California: Page v. Chase Co. \[CaI.\] 79 P. 278.

Footnote 51: The word $\\mu$ is not a word $\\mu$.

Footnote 52: The word $\\mu$ is not a word $\\mu$.

Footnote 53: The word $\\mu$ is not a word $\\mu$.

Footnote 54: The word $\\mu$ is not a word $\\mu$.

Footnote 55: Under Code Civ. Proc. SS 1670. Shandley v. Levine, 44 Misc, 28, 89 N. Y. S. 717.

Footnote 56: Code Civ. Proc. SS 153. Greenwood Loan & Guarantee Ass'n v. Childs \[S. C.\] 45 S. E. 167. Under Gen. St. 1834, SS 180, such notice does not affect the rights of a prior unrecorded conveyance. West Missasbe Land Ky, L. R. 2234, 80 S. W. 44. See 2 Curr. L. 762, n. 16.

Footnote 57: See 2 Curr. L. 763.

Footnote 58: The word $\\mu$ is not a word $\\mu$.

Footnote 59: See 2 Curr. L. 763.

Footnote 60: Jones v. Robb \[Tex. Civ. App.\] 80 S. W. 395.

Footnote 61: Cannot be canceled except pursuant to Code Civ. Proc. SS 1674. Shandley v. Levine, 44 Misc. 28, 89 N. Y. S. 717. See 2 Curr. L. 764, n. 30.

Footnote 62: Under Code Civ. Proc. SS 1674, the court has no discretion to refuse the cancellation of the notice after final judgment has been rendered. Jarvis v. American Forcite Powr-der Mfg. Co., 83 App. Div. 234, 87 N. Y. S. 717.

Footnote 742: A judgment in an action of ejecment dismissing the complaint upon the merits is such a final judgment, though it may be subsequently vacated. Id. See 2 Curr. L. 764, n. 23.

Footnote 63: Shandley v. Levine, 44 Misc. 23, 89 N. Y. S. 717.

Footnote 643: Shandley v. Levine, 44 Misc. 23, 89 N. Y. S. 717.

### 4 Cur. Law.

LOTTERIES.

invalid."The purchaser acquiring possession of the property may be dispossessed precisely as the person from whom he acquired possession might have been dispossessed," and, he having purchased the property from the purchaser at execution pending an appeal, the appellant on securing a reversal does not need a writ of "restitution to enable him to assert his rights."

Literar Property; Liverar Stable Keeppers; Live Stock Insurance; Lloyd's; Loan and Trust Companies; Loans; Local Improvements and Assessments; Local Option; Loos and Logging; Lost Instruments; Lost Property, see latest topical index.

LOTTERIES.

_What constitutes."--A lottery is a scheme for the distribution of property by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance."_ It does not cease to be such and become a mere contest because its result may be affected to some slight extent by the exercise of judgment."\_ An event presents the elements of chance in so far as, after the exercise of research, investigation, skill and judgment, it is impossible to foresee its occurrence or non-occurrence, or the forms and conditions of its occurrence."\_ One purchasing commodities entitling him to compete for prizes pays a valuable consideration for the chance."\_

Advertising a lottery," contriving or assisting to contrive a lottery scheme or gift enterprise," or offering for distribution property, the title to which is to

### 64. Austin v. Lauderdale \[Tex. Civ. App.\]

a member, is lottery, though unlucky members paying $1 per week for 30 weeks re- 65. Hargrove v. Cherokee Nation \[C. C. A.\] 129 P. 186.

a scheme whereby an investment company issued bonds numbered as the applications were received, the time of payment, and versal to claim protection from the resulting which plaintiff would have been re- "numbers they happened to receive. Siver v. Guarnete Inv. Co. \[Mo.\] 81 S. W. 1098.

if the sale had been decrered by the judge- "amount due under matured bonds invalid".

ment. Id.

See 2 Curr. L. 764. See, also, titles Betting and Gaming, 3 Curr. L. 499; Gaming Contracts, 3 Curr. L. 1546.

**68.** Whether called lottery, raffe, gift enterprise, or by some other name \[N. Y. Pen. Code. $ 323\]. People v. Lavin \[N. Y.\] 71 N. N. B. 753, rvg. 93 App. Div. 614, 87 N. Y. S. 83.

716. A scheme for the distribution of prizes by lot or chance, especially a gaming scheme in which one or more tickets bearing particular numbers draw prizes and the rest do not. McRea v. State \[Tex. Cr. App.\] 81 S. W. 741. In order to constitute a lottery or gift enterprise, there must be a purchase of a right, contingent to receive something greater than that purchased, the contingency depending upon lot or chance. City of Winston v. Beeson, 135 N. C. 271, 47 S. E. 457.

Schemes constituting leiteries; Distribution of money and cigars among persons sending in bande from certain cigars who estimate most closely the number of cigars of all brands on which the government will collect taxes during a certain month. People v. Lavin \[N. Y.\] 71 N. E. 753, rvg. 93 App. Div. 614, 87 N. Y. S. 776.

Sub the numbers pay tailor certain sum per week, and which holds weekly drawings, the member holding the lucky number receiving a suit of clothes and ceasing to be be determined by lot or chance, upon the drawing of a lottery, are generally forbidden.74

Lottery is a gaming device,78 and a city council having power to prevent and suppress gaming and gambling houses may pass an ordinance prohibiting the setting up or keeping of a house for the purpose of selling lottery tickets.78

Policy.--Statutes generally forbid the operation of policy lotteries,77 or the having in one's possession of any tickets or slips pertaining thereto.78 It is proper to permit an expert to testify that the papers in question are such as pertain to policy, where they are not, on their face, sufficient to give information of their true character to the members of the jury as men of common understanding.79

MAIMING; MAYHEM.

No cases have been found for this subject since the last article.80

Malice; Malicious Abuse or Process, see latest topical index.

MALICIOUS MISCRIEF. 81

The act must be malicious, and accident82 or claim of right83 is a defense. A street railroad is not within a statute relating to injury to "railroad" rolling stock.84 A charge of injury to property of four persons is not sustained by proof that one had an easement therein and the others no interest.85 On a prosecution for injury to real property; a defendant out of possession may show title in himself.88 A provision for increased punishment where the value of the property exceeds $50 refers to the value of the property injured.87

MALICIOUS PRODUCTION AND ABUSE OF PROCESS.

\[SPECIAL ARTICIA\* BT GRO. F. Lonsendorf.\]

$ 1. Nature and Elements of the Wrongs

Civil Actions (472). Actions or

(473).

Proceedings Involving Injury to

A. Malicious Criminal Prosecutions

Reputation or Credit (475).

Melicious Arrest in a Civil Action

B. Malicious Civil Proceedings and

(476). Malicious Proceedings to

Abuse of Process (472). Ordinary

Have One Declared Insane (476).

74. N. Y. Pen. Code, $ 28, makes It mis-

clement to show that defendant knew the char-

demeanor. Evidence held to show violation

of this section. People v. Pickert, 36 App.

tion. Id.

Div. 637, 83 N. Y. R. 188. Supreme court has

no jurisdiction of prosecections for violations

Arthur (N. J. Law) 57 A. 156.

of section 288. Id.

75. City of Portland v. Yick, 44 Or. 439,

75 P. 706.

M. Ordinance valid. City of Portland v. Yick, 44 Or. 439,

75. P. 706.

01. Ordinance valid. City of Portland v. Yick, 44 Or. 439,

01. Evidence sufficient to sustain conviction for operating policy lottery. O'Dell v. State, 120 Ga. 152, 47 B. E. 671. Instructions

as to reasonable doubt and impeachment approved. Id.

78. In order to constitute the offense of

knowingly having in possession "any paper,

document, ship, or memorandum that shall

pertain in any way to the business of lottery policy, so called, it is not essential

that there be in truth such a game or business conducted. N. J. Crimes Act 183, 858,

88. Adams v. State \[Tex. Cr. App.\] 81 S.

as amended in 1889 (P. L. 1889, p. 810; P. L. 1899, p. 215). The pretended or "so called"

business is equally prohibited. State v. Arthur \[N. J. Law\] 57 A. 156. Evidence sun-

"All late eases are included and marked by a dagger (!).

4 Cur. Law. MALICIOUS PROSCUTION, ETC., SS 1A. 471

Actions or Proceedings Involving | 4. Termination of Prosecution in Plain-Interference With the Possession, | 478. Favorable Termination Use, or Enjoyment of Personal | 479. Footnote 1: (487). Rule in Property (476). Attachment (477). | 477.

473 MALICIOUS PROSECTION, ETC., SS 1B. 4 Cur. Law.

(8 1) _B. Malicious civil proceedings and abuse of process._"--For convenience the rules in respect to ordinary civil actions and those entailing special injury to the person or seizure of his property will be considered separately without attempting any generalization further than to say that the tortiousness of such acts is well recognized within the limits hereafter stated."

_Ordinary civil actions._--It is an established doctrine in England that, since the statutes giving costs to the defendant," an action for malicious prosecution will not lie for the prosecution of a civil action, although it be shown that there was not reasonable and probable cause, and that the action was instituted and prosecuted maliciously, unless there is some special injury to reputation, or by reason of a seizure of property or arrest of the person. "In the present day, and according to our present law," said Bowen, L. J., in an English .case, "the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution.""" The reason given for this doctrine is that "in contemplation of law the defendant if unreasonably sued is sufficiently indemnified by a judgment in his favor, which gives him his costs against the plaintiff. And special damage beyond the expense to which he has been put cannot well be so connected with the suit as a natural and probable consequence that the unrigtheous plaintiff, on the ordinary principles of liability for indirect consequences, will be answerable for them.""

This doctrine has also been recognized by many of the courts in the United States, following the English decisions. These courts hold that, while an 'action may be maintained for the malicious prosecution without probable cause of a civil action or proceeding causing special damage to reputation or credit, or to the person, or to property, such an action cannot be maintained when there is no such special damage, but merely the expenses of a defense." "If the person be not arrested, or his property seized," said the Pennsylvania court, "it is unimportant how futile and unfounded the action may be, as the plaintiff, in consideration of law, is punished by the payment of costs."" And in a New Jersey case it was said: "Merely for the expenses of a civil suit, however malicious

95. See 2 Curr. L. 767, and as to abuse of | from the earller case of Pope v. Polloeck, process, see 2 Curr. L. 1277. 46 Ohio St. 367, 15 Am. St. Rep. 608, 4 06. See the following portions of this section, and see McCormick H. M. Co. v. Willin

(L. R. A., 255, Chase's Cas. 104, although |in attempt to distinguish it was made): \[63 Neb. 391, 88 N. W. 497\], 93 Am. St. Rep.

(419, with extensive monographie note 454, 4 Cur. Law. MALICIOUS PROSECTION, ETC., SS 1B. 473

and however groundless, this action does not lie, nor ever did, so far as I can find, at any period in our judicial history. It must be attended, besides ordinary expenses, with other special grievance or damage, not necessarily incident to a defense, but superadded to it by the malice and contrivance of the plaintiff; and of these an arrest seems to be the only one spoken of in our books,"--and in another place: "Formerly the amerement, now the costs, are the only penalty the law has given against the plaintiff for prosecuting a suit in a court of justice in the regular and ordinary way, even though he fail in such .prosecution. The courts of law are open to every citizen, and he may sue, toties quoties, upon the penalty of lawful costs only. These are considered as a sufficient compensation for the mere expenses of the defendant in his defense."

In other states, however, this doctrine is repudiated as not based upon any sound reason, for the recovery of costs by the defendant in an action, as is clear, does not in fact indemnify him, and also as being contrary to the general principles upon which the right of action for malicious abuse of process is based; and in these states it is held that an action for malicious prosecution will lie for the prosecution, maliciously and without probable cause, of an ordinary civil action, although commenced by summons only, where the defendant therein has in fact sustained damage by being put to expense, etc., although there may have been no arrest of his person or seizure of his property, and his only damages may be the expense to which he has been put by the groundless suit." "Whatever," said the Connecticut court, "might have been true when the several statutes giving costs were enacted," we cannot, at this day, shut our eyes to the truth known to everybody, that taxable costs afford a very partial and inadequate remuneration for the necessary expenses of defending an unfounded suit; and of course this remedy is not adequate to repair the injury thus received; and the common law declares, that for every injury there is a remedy. Before the statutes entitling defendants to costs existed, they had a remedy at common law for injuries sustained by reason of suits which were malicious and without probable cause." And this principle is, and ought to be, operative still, in all cases where the taxation of costs is not an ample remedy."

All of the courts,--both in England and in the United States,--probably agree that an action for malicious prosecution or abuse of process will lie where

**3. Potts v. Imlay, 4 N. J. Law, 330, 7 Am.**

**St. Rep. 533, 10 L. R. A. 621; Wade v. Nat.**

**Dee. 603.**

**A. Woods v. Flinnell, 13 Bush \[Ky.\] 628;**

**A. Vwords v. Flinnell, 13 Bush \[Ky.\] 628;**

**Closson v. Staples, 42 Vt. 209, 1 Am. Rep. 318;**

**Vhipple v. Fuller, 11 Conn. 582, 29 Am. Dec.**

**389: Smith v. Smith, 26 Hun Y. Y. 573;**

**Pangburo v. Buhl, 1 1 Wend. \[N. Y.\] 345; Mar-**

**470, 66 Am. St. Rep. 615, 621. Suling out a**

**bourg v. Smith, 11 Kan. 554; McCafle v.**

**Mefonley, 86 Ind. 538, 44 Am. Rep. 343;**

**Lockenour v. Sides, 57 Ind. 360, 26 Am. Rep. 58; Smith v. Burrus, 106 Mo. 47, 27 Am.**

**St. Rep. 329; Eastin v. Bank of Stockton, 66 Sal. 128, 68 Am. Rep. 77; O'Neill v. Johnson, 53 Min. 439, 39 Am. St. Rep. 615; McPherson v. Runyon, 41 Min. 524, 16 Am. St. Rep. 727; Lipscomb v. Shafner, 86 Penn. 112; Koul. 125, Koul. 126, Koul. 127, Koul. 128, Ko. 129, 68 Am. St. Rep. 615; Slater v. Klimbro, 91 Ga. 217, 44 Am. St. Rep. 19; Roberts v. Keeler, 11 Ga. 181; Brand v. Hinchman, 68 Alth. 596, 13 Am. St. Rep. 362; McCormick Harvest Mach.**

\*\*Co. v. Willan, 68 Neb. 391, 88 N. V. 497, 93 Am. St. Rep. 449, 56 L. R. A. 338 (explaining? dictum apparently to the con-

**Icarinary in Rice v. Day, 34 Nb. 100). See also, Antell v. June, 81 Mich. 477, 21 Am.**

**Hinchman, 68 Alth. 596, 13 Am. St. Rep. 362, a civil action, prosecuted maliciously and without probable cause, results in special damage to the defendant in addition to the expenses of his defense, whether in reputation or credit,* as in the case of bankrupty proceedings, or to the person, as in the case of an arrest in a civil action, or to property, as in the case of attachment, replevin, etc.* "The action lies," it was said in a New York case, "against any person who maliciously and without probable cause prosecutes another, whereby the party prosecuted sustains an injury either in person, property, or reputation.""

If a person maliciously and without probable cause prosecutes a civil action in the name of a third person, the defendant therein may maintain an action against him if he has sustained actual damage, but not otherwise;" but one not a party is not injured." In so far as the elements of malicious civil prosecution differ from those of criminal prosecutions," they will be discussed hereafter."

_Abuse of process_\[15\] is the malicious or unfounded use of some regular legal proceeding to obtain an advantage over an opponent\* which it is not the purpose of the law to effect thereby." Neither actual maliee, except possibly under statutory definitions," want of probable cause, nor a determination of the action," is essential; but probable cause makes innocuous the issuance of unfounded process," and the abuse implies malice," that is, an ulterior purpose," whilst advice of counsel may show good faith and disprove an ulterior purpose." As in other torts there must be damage, i. e., arrest or seizure of property." Some authorities regard malice as essential," but it would be more accurate speech to say that only an ulterior purpose must exist." The improper use of process made after issuance and not the mere fact of an improper motive in causing issuance or in using it for a proper purpose affords the test." The use of it for a proper purpose howsoever maliciously is not a wrong." A direct action lies for the wrong."

- 8. Compare, however, Cincinnati Daily Tribune Co. v. Brucek, 61 Ohio St. 481, 76 Am. Schhaustive monographic note "Abuse of St. Rep. 438, referred to in note 31, Infra. 9. Co. Lit. 161a; Savili v. Roberts, 1 Salk. 14: Austin v. Dibman, 3 Barn. & C. 139: Gyr. \[ord v. Woodgate, 11 East, 297; Quarter Hill\], 111 Cold Min. Co. v. Eyre, 11 Q. B. Div. 674: Vellis v. Noyes, 12 Pick. \[Mass.\] 324: Savage v. Brewer, 16 Pick. \[Mass.\] 453, 28 Am. Dec. 255: Turner v. Walker, 3 Gilli & J. \[Mid.\] 377, 22 Am. Dec. 329: Morton v. Young, 55 Me. \[24. 92 Am. Dec. 565: And see post, 51 IB, where these cases are specifically treated. \[10. Nelson, C. J., in Bump v. Betts, 19 Wend. \[N. Y.\] 421, Chase's Cas. 107, Erwin's Cas. 452. \[11. Cotterell v. Jones, 11 C. B. 718. \[12. Duncan v. Grfswold, 82 Ky. 546, 18 S. V. 354. \[13. See note, this section. 14. See post, $ 2 get seq. 15. See process, $ 9. 2 Curr. L. 1277. 16. \[14. Cyc. Law Dict. "Abuse of Process" citing Wharton. 17. Mayer v. Walter, 64 Pa. 283, cited 1 Am. & Engr. Enc. Law \[2d Ed.\] 222; Johnson v. Reed, 136 Mass. 421: Bartlett v. Christoffill, 69 Md. 219; Doctor v. Riedel, 96 Wis. 158, 71 N. W. 119, 65 Am. St. Rep. 40. The "perversion" of process. Nix v. Goodhill, 95 Iowa, 822, 58 Am. St. Rep. 434. "Two elements are necessary
- (1) the exist: Istence of an ulterior purpose, (2) an act in the use of process not proper in the regular prosecution of the proceeding." Bonney v. King, 201 Ill. 47, 66 N. E. 877; Jeffrey v.
  4 Cur. Law. MALICIOUS PROSECTION, ETC., SS 1B. 475

\_Actions or proceedings involving injury to reputation or credit.--\_Even in England and other jurisdictions where the general rule that an action will not lie for the malicious prosecution of an ordinary civil action is settled, it is held that an action will lie for prosecuting, maliciously and without probable cause, a civil action or proceeding which directly and naturally involves injury to the reputation or credit.\[30\] Thus, the prosecution, maliciously and without probable cause, of bankruptcy proceedings against a trader, or the analogous proceedings against a corporation to wind it up for insolvency, since it "is in itself a blow struck at the credit of the person or company whose affairs are thus brought in question," is an actionable wrong.\[11\] There was a somewhat similar decision in a late Wisconsin case, where it was held that an action would lie for the malicious prosecution of a civil action brought ostensibly for the purpose of winding up a partnership, but in reality for the purpose of obtaining possession and control of the partnership property.\[32\] An action for suing out an attachment maliciously and without probable cause, and levying on property, may be sustained on this ground, in so far as the defendant's reputation, credit, and business are injured thereby.\[33\] Ordinarily, however, the action is based on the injury to property.\[34\] Merely tak ing out execution for an excessive amount but not willfully or maliciously is not a wrong,\[35\] nor is merely suing for an excessive sum.\[36\]

In a late Federal case it was held that an action will lie for prosecuting, maliciously and without probable cause, a civil action in which the pleadings contain defamatory allegations injurious to the defendant's reputation and business.\[37\]

\_Malicious arrest in a civil action.--\_It is well settled in all jurisdictions that an action for malicious prosecution will lie, or an action for malicious abuse of process in the nature of an action for malicious prosecution, if a civil action is brought maliciously and without probable cause, and the defendant is arrested therein or held to bail, or if a defendant is maliciously arrested or held to bail, when there is no probable cause therefor, or held to bail in a larger sum than is due, in an action for which there is good cause, or where he is maliciously arrested on an execution against the person which is not void but which is wrongfully issued.\[38\] The action will lie for thus procuring ne exact.\[39\]

\_Malicious proceedings to have one declared insane.--\_An action for malicious prosecution, or for abuse of process, will lie in favor of one against whom another has instituted or instigated, maliciously and without probable cause, proceedings under a statute to have him declared insane, after such proceedings have been determined in his favor and he has been discharged.\[40\]

\_Actions or proceedings involving interference with the possession, use, or enjoyment of personal property.--\_All of the courts agree that an action for malicious prosecution or malicious abuse of process will lie for the prosecution, maliciously and without probable cause, of a civil action or proceeding, or the suing out of civil process, where the defendant sustains special damage by reason of a seizure of or levy upon his property, or other interference with his use and enjoyment thereof. The particular means by which such damage is effected are not material, so long as it is accomplished by a malicious abuse of process. "Any particular method of interfering with property rights," said the Wisconsin court in a late case, "as by attachment, is not material. An equitable levy upon property, as in garnishee proceedings, or the deprivation of the defendant of his property by means of the appointment of a receiver, or any other means whereby his property is taken into the custody of the court or taken out of the custody of the owner and out of his free control, * * * which, in the ordinary course of things, causes damage not reached by a mere judgment of vindication or for costs, is sufficient."\[41\] It is no defense that one has a legal right to process if he uses it to knowingly levy on exempt property for an ulterior purpose.\[42\]

Soothard, 10 N. Y. 236. See Breck v. Blanch-Am. Dec. 213.

36. Grant v. Moore, 29 Cal. 644.

01. Wade v. Nat. Bank of Commerce, 114

01. Lockenour v. Sides, 57 Ind. 360, 28 F. 377.

01. Goslin v. Vlleock, 2 Wils. 302; Smith v. Cattel, 2 Wils. 376; Pierce v. Street, 3 Barn. & Ad. 397; Granger v. Hill, 4 Bing, N. C. 212, Chase's Cas. 107; Morton v. Young, 55 Me. 24, 92 Am. Dec. 565; Turner v. Walk-er, 3 Gill & J. \[Md.\] 377, 22 Am. Dec. 329;

01. Burnap v. Wright, 14 III. 301.

01. Wade v. Nat. Bank of Commerce, 114

01. Lockenour v. Sides, 57 Ind. 360, 28 F. 377.

41.7, 77 P. 672. As toprobable cause, malice, 81, 95 Me. 24, 92 Am. Dec. 565; Turner v. Walk-er, 3 Gill & J. \[Md.\] 377, 22 Am. Dec. 329;

42. Goothall, 95 Iowa, 282, 58 Am. St. Rep. 434.

01. Luckenour v. Sides, 57 Ind. 360, 28 F. 377.

01. H. P. 677. 672. As toprobable cause, malice, 81, 95 Me. 24, 96 Am. Dec. 565; Turner v. Walk-er, 3 Gill & J. \[Md.\] 377, 22 Am. Dec. 329;

01. H. P. 677. 672. As toprobable cause, malice, 81, 95 Me. 24, 96 Am. Dec. 568; Turner v. Walk-er, 3 Gill & J. \[Md.\] 377, 22 Am. Dec. 329;

01. H. P. 677. 672. As toprobable cause, malice, 81, 95 Me. 24, 96 Am. Dec. 569; Turner v. Walk-er, 3 Gill & J. \[Md.\] 377, 22 Am. Dec. 329;

01. H. P. 677. 672. As toprobable cause, malice, 81, 95 Me. 24, 96 Am. Dec. 569; Turner v. Walk-er, 3 Gill & J. \[Md.\] 377, 22 Am. Dec.

4 Cur. Law. MALICIOUS PROSECTION, ETC. SS 1B. 477

\_Attachment.--\_Thus it is well settled that such an action will lie for attaching property maliciously and without probable cause, whether there is want of probable cause for the action in which the attachment is sued out, or want of probable cause for suing out the attachment in an action for which there is good cause.${}^{43}$ The fact that an attachment bond was given as required by the statute, and that the plaintiff might maintain an action thereon, does not prevent him from maintaining his action on the case at common law for maliciously suing out the attachment.${}^{44}$ The action may be maintained even though there may have been no actual seizure of the property, if it was levied on and thus put in custodia legis, for the defendant is thereby virtually dispossessed during the time the levy is in force.${}^{45}$

\_Garnishment.--\_Malicious abuse of the process of garnishment is actionable. Thus, it has been held that an action will lie against one who maliciously and without probable cause garnishes wages which are due to his debtor, but which are exempt,${}^{46}$ or one who brings successive garnishment proceedings against exempt wages hoping to coerce a settlement through fear of discharge from employment.${}^{47}$

\_Execution.--\_An action on the ease for malicious abuse of process will lie for maliciously and wrongfully causing the issue and levy of an execution on a judgment, if the judgment and execution are not void, as where an execution is issued on a judgment for a debt known to have been paid before entry of the judgment,${}^{45}$ or for a greater amount than is due on the judgment at the time the execution is issued,${}^{49}$ or on a judgment procured by fraud.${}^{50}$

\_Replevin.--\_In all jurisdictions, no doubt, an action for malicious prosecution or malicious abuse of process will lie for prosecuting, maliciously and without probable cause, an action for the possession of personal property and suing out a writ of replenvin therein, where the property is taken under the writ from the defendant's possession.${}^{51}$ In some jurisdictions the action will lie even though the defendant's possession of the property is not disturbed,${}^{52}$ but as to this, as we have seen, the decisions are conflicting.${}^{58}$

\_Bankruptcy and insolvency proceedings.--\_An action will lie for maliciously and

42, \[Cooper v. Scyoc.-104 Mo. App, 414, 79\]

43. Knote v. Miller, 70 Tex. 613, 8 Am. St. S. Vr. 751.

01. Savage v. Brewer, 16 Pick. \[Mass.\]

13 Am. St. Rep. 362.

453. 28 Am. Dec. 255: Bump v. Butts, 19

001. Nix v. Goodhill, 95 Iowa, 282, 58 Am. Wend. \[N. Y.\] 421, Chase's Ca. 107, Zerwin's

St. Rep. 434. See, also, Noonan v. Orton, 30

Cas. 452; Boon v. Maui, 3 N. J. Law, 863;

Wis. 356.

Lawrence v. Hagerman, 56 Ill. 68, 8 Am.

47. \[Cooper v. Seyoc, 104 Mo. App. 414, 79\]

Rep. 674: Spaida v. Barrett, 67 Ill. 289, 11

8. W. 761.

Am. Rep. 10; Donnell v. Jones, 13 Ala. 490,

48 Am. Dec. 59; Id., 17 Ala. 685, 52 Am. Dec. 574. And see Gyroford v. Woodgate, 11

194: Stewart v. Cole, 46 Ala. 464: Spengler

East, 297. 2 Camp. 117. If the judgment or v. Davy, 16 Grat. \[Va.\] 381; Burkhart v. Jennings, 2 W. Va. 242; Tomlinson v. Warner, 9 Ohio, 104; Fortman v. Rottier, 8 Ohio

St. 548, 72 Am. Dec. 606; Alexander v. Harrison, 38 Mo. 258, 90 Am. Dec. 411; Brand v. Hinchman, 68 Mihch 590, 13 Am. St. Rep. 562; Foster v. Pitts, 63 Ark. 387; Humphreys v. Stucliffe, 192 Pa. 336, 73 Am. St. Rep. 819; Friel v. Plummer, 69 N. H. 498, 76 Am. St. Rep. 190. As to the liability of an attorney, see Higgins v. Russo, 72 Comn. 238, 77 Am. St. Rep. 307.

44. Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; Alexander v. Harrison, 38 Mo. 258, 90 Am. Dec. 411; Lawrence v. Hagerman, 56

01. 68, 8 Am. Rep. 674; Spadas v. Barrett, 57

01.

without probable cause suing out a commission in bankruptcy, or prosecuting in-solvency proceedings, against a person or corporation, where the possession or enjoyment of his property is thereby interfered with, for "wherever there is an injury done to a man's property by a false and malicious prosecution, it is most reasonable he should have an action to repair himself."54 Such an action may also be maintained, as we have seen, because of the injury to reputation and credit, and the resulting injury to business."55

\_Action to wind up a partnership.--In a late Wisconsin case, while it was strongly intimated that the court would follow the English doctrine against the right to maintain an action for malicious prosecution of an ordinary civil action, it was held that an action could be maintained for the malicious prosecution of a civil action brought ostensibly for the purpose of winding up a partnership, but the real purpose and the effect of which were to take the possession of the property from the defendant therein for the benefit of the plaintiff, and to enable the latter, through the forms of law, to control such property and thereby obtain title thereto."56

\_Actions or proceedings involving interference with the possession, use, or enjoyment of real property.--An action for malicious prosecution or malicious abuse of process will lie against one who, maliciously and without probable cause, prosecutes a civil action, or causes the issue and execution of civil process, whereby another's possession, use, or enjoyment of real property is interfered with to his damage."57 Thus, there would seem to be no doubt that an action will lie to recover any special damages resulting as a proximate consequence from the malicious and wrongful issue and levy of valid attachment or execution upon real property," as for instance, where it was done with no reason to believe defendant indebted but to extort money from him."59

An action lies for maliciously and without probable cause prosecuting an action for forcible entry and detainer, where the defendant therein is ousted from possession,"60 or even though his actual possession is not disturbed."61

It has also been held that an action will lie for prosecuting a bastardy proceeding maliciously and without probable cause, where by statute the proceeding operates as a lien on the defendant's land from its commencement;"62 for prosecut * 4Cur. Law. MALICIOUS PROSECTION, ETC. SS 1B.

- 68. Gatev. Condon. SS 1C. 38. 67 Am. 68. 35. 40. 87. 41. 87. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 91. 92. 93. 94. 95. 96. 97. 98. 99.

Where sheriff's officers, having a writ for the arrest of a defendant in an action, came to him while he was sick in bed and told him that, unless he would deliver up a certain document or find bail, they must either take him or leave a man with him, and he delivered the document, it was held that there was a malicious abuse of process for which an action would lie.\[74\]

An action for malicious abuse of process may lie even where the defendant has recovered a judgment against the plaintiff and obtained satisfaction thereof by execution. Thus in a late Michigan case a complaint setting out a conspiracy between the defendants to defraud the plaintiff, and the fact that he was defrauded out of his money by the means of a void judgment obtained by them through fraud, and an execution thereon, was held to state a good cause of action for malicious abuse of process.\[75\] If in executing a writ of removal a sick child be injuriously exposed, there is an abuse\[76\] to which neither the advice of a physician\[77\] nor contributory negligence of parents\[78\] affords a complete defense. Successive malicious veavatious suits not prosecuted to trial constitute actionable wrong.\[79\]

(SS 1) \_C. Search warrants.--\_Search warrants for goods alleged to have been stolen or criminally concealed generally also direct the arrest of the person named therein, and in such a case if sued out maliciously and without probable cause, an action for malicious prosecution will lie.\[80\] But a search warrant merely directing a search, and under which the person named is not arrested or prosecuted, cannot support an action for malicious prosecution, for there is no prosecution.\[81\] In that case the issuance and execution of the warrant is an abuse of process for which an action will lie, although the party is not charged with any crime and is not arrested,\[82\] or if arrested, is not prosecuted.\[83\]

SS 2. \_Responsibility of defendant for the prosecution or suit and his participation therein.--\_To sustain an action for malicious prosecution, it is necessary for the plaintiff to show, not only that there has been a prosecution, but also that the defendant was the prosecutor,--that he instituted the prosecution himself,--or else that he caused it to be instituted.\[84\] One who merely assents passively is not charged.\[85\] One is not liable who merely states facts to the prosecuting attorney, or a police officer, who then acts on his own motion in instituting a prosecution,\[86\]

tion for damages for an abuse of the process of the court.\[2\] Z Addison, Torts, 868.

74. Grainger v. Hill, 4 Bing. N. C. 212, Chase's Cass. 107, Biglow's Cass. 67.

01. Chatiffur v. June, 81 Mich. 477, 21 Am.

01. Rep. 533, 10 L. R. A. 621.

76, 77, 78. Bradshwn v. Frazier, 113 Iowa, 579, 86 Am. St. Rep. 394.

77. Payne v. Donegan, 9 Ill. App. 566.

01. Miller v. Brown, 3 Mo. 127, 28 Am. Dec. 693; Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611; Boeger v. Langenberg, 97 Mo.

390, 10 Am. St. Rep. 322; Page v. Citizens Banking Co., 111 Gm. 73, 18 Am. St. Rep. 144.

78. And see Carey v. Sheets, 67 Ind. 375; Elsee v. Smith, 16 Eng. Com. Law Rep. 19; Cooper v. Booth. 3 Exp. 135.

81, 82. Carey v. Sheets, 67 Ind. 375; Witsson v. May, 71 Int. 269; Flora v. Russell, 138 Ind. 153; Harlan v. Jones, 16 Ind. App. 358; Bell v. Clapp, 10 Johns (N. Y. 263, 6 Am. Dec. 339; Elisee v. Smith, 16 Eng. Com. Law Rep. 212; Boot v. Cooper, 8 Esp. 144.

79 Term R. 355. "This action is to redress any damages" * * sustained in his reputation by the scandal, in his person by the imprisonment, or in his property by the expense incurred." Miller v. Brown, 3 Mo.

127, 28 Am. Dec. 683; Olson v. Tvete, 46 Minn. 225, so holding where no goods were found.

83. In this case there was an arrest but no prosecution was instituted. 4Spangler v.

Booze \[Va.\] 49 S. E. 42, collecting and commenting on numerous authorities to the same effect.

84. Yoceum v. Polly, 1 B. Mon. \[Ky.\] 358, 36 Am. Dec. 583; Miller v. Milligan, 48 Barb.

01. \[N. Y.\] 30, Chase's Cas. 98; Babcock v. Merchants' Exchange, 159 Mo. 381; Smith v.

01. \[N. Y.\] 36, Chase's Cas. 98; Babcock v. Merchants' Exchange, 159 Mo. 381; Smith v.

01. \[Austin, 49 Mich.\] 286; Breneman v. West, 21 Tex. Cliv. App. 19; !Stundmaker v. Gaudet

01. \[La.\] 37 S. So, 4 Cur. Law. MALLIOUS PROSECTION, ETC. SS 2. 481

or who acts, although maliciously, in subordination to the prosecuting attorney in a prosecution instituted by the latter's direction, on information derived from others.\[87\] The prosecution, though instigated by defendant, must be specifically directed by him at plaintiff or there is no liability.\[88\] A mere surety is not liable for malicious civil prosecution.\[89\] In the case of abuse of process, defendant must have been the author of the abuse or a participator, not merely the procurer of the process; nor is an attorney liable who prosecutes for a contingent fee, where that is legal, unless he acts maliciously and without probable cause.\[90\] It will not lie against one who acts in a privileged official capacity\[91\] or against a municipal corporation.\[92\] A private corporation may be liable,\[93\] and its agent who advises it is also liable.\[94\] The imputation to the corporation of its agent's act in instituting a prosecution is governed by rules more pertinent to the law of agency and corporations than to this topic. Suffice it to say that it must be done pursuant to express or apparent special authority, or by one whose general duties include such an authority, such as a general manager, law officer, custodian of property affected by crime, or officer generally charged to detect and apprehend criminals.\[95\] If complainant acted under particular direction of a corporate officer and not in pursuance of general authority, it must be shown that the officer had authority to give such directions.\[96\] Neither is the corporation bound by an attorney who had no authority to institute or direct institution of a prosecution and who did not direct it but did advise and attend the preliminary hearing of plaintiff.\[97\]

In accordance with the usual rules,\[98\] the superior is liable for a prosecution emanating from performance of delegated service or action.\[99\] The liability of one who acts in person on information rendered by agent presents a question of probable cause.\[9\]

86. Smith v. Austin, 49 Mich. 286; Burn- note 26 Am. St. Rep. 131, and see note 34 hann v. Colateral Loan Co, \[Mass.\] 60 N. E. 405-49.

01. Evidence held to show that prosecution 94. Whitney v. New York Cas. Ins. Ass'n, was instituted by advice of county attorney. 27 App. Div. 320, 50 N. Y. S. 227.

\[Muontal v. Mjinnevolis & St. L, R. Co.\] 95. See note 26 Am. St. Rep. 132; Clark & M. Private Corp. Cr. Corporations, 5 Curr. L. 880; Clark & Skyles, Agency. Cr. Agency, 8 Curr. L. 68.

v. St. Louis Transit Co. \[Mo. App.\] 84 S. W. 181.

87. Yocum v. Polly, 1 B. Mon. \[Ky.\] 358, 56 Am. Dec. 583.

01. Warrant procured for Xeeper of a dids-orderly house and "all vile and improper persons found" there does not render in-formal liable to person not named. Bridges v. Berls, 2 City Ct. R. \[N.Y.\] 171.

01. Surety on attachment bond. Harr v, Vvar \[Arl.A\] 84 S. W. 496; \[Smith v. Hogan, 25 Vash. 250, 77 T. 390.

01. Foy v. Barry, 87 App. Div. 291, 84 N. Y. S. 235; Syndexer v. Brossen, 511 1357; Bradashw v. Frazier, 113 lowa, 578, 86 Am. St. Rep. 394, 55 L. R. A. 258.

01. Member of grand jury. Sidener v. Russell, 34 III. App. 44. Mayor of a city not acting minsterally. Goodwin v. Gulld. 94 Tenn. 486, 45 Am. St. Rep. 143, 27 L. R. A. 660.

01. Brown v. Cape Girardesu, 90 Mo. 377, 59 Am. Rep. 28.

01. Boogher v. Life Ass'n. 75 Mo. 319, 42 Mm. Rep. 413; Springfield Engine & T. Co. v. Green, 25 Ill. App. 106; Jordan v. Alabama, etc., R. Co., 74 Ala. 85, 49 Am. Rep. 800; Reed v. Homer Sav. Bank, 130 Mass. 443, 29 Am. Rep. 448. See other cases cited 44 Curr. Law-31.

01. Smith v. Austin, 49 Mich. 286; Burn- note 26 Am. St. Rep. 131, and see note 34 Ann. Rep. 405-49.

01. Evidence held to show that prosecution 94. Whitney v. New York Cas. Ins. Ass'n, was instituted by advice of county attorney. 27 App. Div. 320, 50 N. Y. S. 227.

\[Muontal v. Mjinnevolis & St. L, R. Co.\] 95. See note 26 Am. St. Rep. 132; Clark & M. Private Corp. Cr. Corporations, 5 Curr. L. 880; Clark & Skyles, Agency. Cr. Agency, 8 Curr.

483 MALICIOUS PROSECTION, ETC. SS 2. 4 Cur. Law.

A partner who does not consent is not liable if the prosecution be not for the purpose of furthering the firm business8 or within its scope.4

A creditor and levying officer are jointly and severally liable for abusing gar-nishment process by successive issues to induce payment of exempt wages or cause discharge from employment.8

Infancy and covector are not an absolute defense but as in case of other torts may in combination with circumstances afford one.8

A person is sufficiently a prosecutor, however, or connected with a prosecution, to be liable in such an action, if the prosecution was instituted on his affi-davit or complaint before a magistrate, or if it was instituted at his instance or request by the attorney for the state.' And a person who maliciously and without probable cause induces another person to make a complaint and institute a criminal prosecution is liable.8

One who merely makes a true statement of facts to a magistrate is not liable in an action for malicious prosecution because of the error of the magistrate in deciding that the facts stated constitute a crime, and issuing a warrant of arrest on his own motion.9 But this does not apply where a person maliciously makes a false statement of facts to a magistrate for the purpose of causing the institution of a criminal prosecution.10 And even the making of a true statement of the facts

2. Gilbert v. Emmons, 42 III. 143, 89 Am. \[to take advantage of his own fraud upon the Dec. 412: Rosenkrans V. Barker, 115 III. 331, 56 Am. Rep. 168. And see generally Patrick. Torts \[Webb's Ed.1 397; Fitzjohn v.nership, 2 Curr. L. 1106.

1. Page v. Citizens' Bank, 111 Ga. 73, 78 Am. St. Rep. 144, 51 L. R. A. 463.

1. Proscution for luceny is not within the scope of a mercantile firm. Noblett v. Bartsch, 31 Wash. 24, 96 Am. St. Rep. 886.

1. \[Cooper v. Scoyc, 104 Mo. App. 414, 78 S. W. 751.

1. Compare Infants, 4 Curr. L. 92; Husband and Wite, 8 Curr. L. 1665, and see note 26 Am. St. Rep. 138.

1. Grant v. Deuel, 3 Rob. \[La.\] 17, 38 Am. De. 228: Kline V. Shuler, 3 Fred. \[L. N. C.\] 484, 49 Am. Dec. 402: Well V. Israel, 42 La. Ann. 955: Dennis V. Ryan, 65 N. Y. 285, 22 Am. Rep. 685: Cole v. Andrews, 70 Minh. 230: Ward V. Sutor, 10 Tex. 343, 8 Am. St. Rep. 606: McLeod V. McLeod, 76 La. 483; Walser v. Thiles, 56 Mo. 89: Teisterer v. Lee Sum \[C. C. A.\] 94 7: 348; Peck v. Chouteau, 91 Mo. 140, 60 Am. Rep. 226: Bur. nap v. Marsh, 111 538; Bicknell V. Dorion, 16 Pick. \[Mass.\] 478. Liquidity of public of officer. Resiterer v. Lee Sum \[C. C. A.\] 94 F.: 343. Liquidity of an attorney swearing to Information. Whitney v. New York Casuality Ins. Asn. 27 App. Div. \[N. Y.\] 320.

64 Tal. \[Lad.\] 284: McNeely V. Driskill, 283 N. C. 281: That the defendant's name was not in-dorsed on the indicentent, as required by law, as prosecutor, and the absence of proof that defendant gave evidence at the trial, are not conclusive that he was not the prosecutor. Kline v. Shuler, 8 Med. L. \[N. C.\] 484, 49 Am.' Dec. 402. Compliant not exempt from liability because arrest was under an alias wri. McLeod v. McLeod, 75 Alta. 483.

The fact that the prosecution was instluted by the defendant under the order of a court is no defense, if the court was moved to make the order by the defendant's false evidence, and the prosecution involved the repetition of the same false false falsehood. "for otherwise the defendant would be allowed.

4 Cur. Law. MALICIOUS PROSECTION, ETC. SS 3. 483

to a magistrate will not exonerate the prosecutor from liability, if he afterwards signs and swears to a complaint or affidavit erroneously charging such facts as a crime, or otherwise actively participates in the issuance of the warrant.\[11\]

A prosecutor is not liable for an indictment brought in by the grand jury in disregard of his evidence, as where they find an indictment for one offense, when his evidence before them was of the commission of another.\[12\] The rule is otherwise where he, though testifying to a different offense from that presented, was nevertheless instrumental in procuring the indictment.\[13\]

SS 3. \_The prosecution of the plaintiff. In general.--\_To support an action for malicious prosecution, as distinguished from mere abuse of process, the first essential is that the plaintiff shall have been subjected to what the law regards as a prosecution. If for any reason the alleged prosecution had no existence, the plaintiff must pursue some other remedy for the injury done him,--as an action of trespass for false imprisonment, action on the case for malicious abuse of process, etc., according to the circumstances. He cannot sue for malicious prosecution.\[14\]

To constitute a "prosecution" the proceedings need not go to a trial on the charge. There is a sufficient prosecution where a person is arrested on a complaint made before a magistrate, although he may be discharged by the magistrate for want of sufficient evidence to hold him, or for failure of the complainant to appear, etc.\[15\] And there is a prosecution where a person is arrested and held or committed for the grand jury, and afterwards discharged because of a failure of the grand jury to find an indictment.\[16\] But, as a general rule, there is no such prosecution as will sustain an action for malicious prosecution, where a person is arrested without a warrant, and brought before a magistrate and discharged, without the filing of any complaint,\[17\] or where a complaint is made, but is not followed by an arrest or the issue of any process.\[18\] The mere calling of a policeman and appearing as a witness is not a prosecution by defendant.\[19\]

11. Anderson v. Buenhanan, Wright \[Ohio\] Am. St. Rep. 144, S1 L. R. A. 463; Sayles v. 725; Finn v. Frink, &4 Me. 261, 30 Am. St. Rep. 348; Lunsford v. Dietrich, &3 Ala. 565, 30 Am. St. Rep. 79; Boeger V. Langenberg, &4, note 41.

30 Am. St. Rep. 78; Boeger V. Langenberg, &4, note 41.

37 Mo. 390, 10 Am. St. Rep. 322. It has been held, however, that one who truly states to a magistrate facts showing a particular crime, and signs and swears to an affidavit or complaint drawn up by the magistrate, supposing it to charge the crime intended by him, is not liable because the magistrate by mistake drew up the affidavit or complaint so as to charge a different crime.

38. C. C. 270, 39 Am. Dec. 123; Bartlett v. Christliff, &9 M. 219; Swift v. Wittchard, &103

01. G. 193, under a statute requiring that the prosecution shall have been instituted and "earried on." In Page v. Citizens' Bank, 111

01. Cookfield v. Braveboy, & McMull. \[S. C.\] 270, 39 Am. Dec. 123; Bixby v. Brundage, & Gray \[Mass.\] 129, 61 Am. Dec. 44; Kra-mer v. Lott, &50 Pa. 495, 88 Am. Dec. 586; Turnin v. Remy, & Blackf. (Ind. 210: Barry v. ThHard x. R. Co., 51 App. Div. (N. Y.) 588; Swift v. Witchard, &103

01. C. 270, 39 Am. Dec. 123; Bartlett v. Christliff, &9 M. 219; Swift v. Witchard, &103

01. 193, under a statute requiring that the prosecution shall have been instituted and "earried on." In Page v. Citizens' Bank, 111

01. 73, 78 Am. St. Rep. 144, an arrest under a search warrant arsignificant and discharge on the prosecutor's announcement of inability to make a case is held to be a prosecution "earried on." That an arrest is gcr-really essential, see note 8E Am. St. Rep. 130 and cases cited. But it has been held that no arrest is necessary to support an action for the malicious institution of banky proceedings. Coffey v. Myers, 84 Ind.

01. And in the case of an ordinary criminal prosecution, an actual arrest of the plaintiff is not necessary to give him a right of action, if he was informed by an officer that there was a warrant for his ar
    Want of jurisdiction and defects or irregularities in proceedings.--An attempted prosecution before a person or tribunal having no existence as a judge or court, either de jure or de facto, is clearly a mere nullity, and cannot give rise to an action for malicious prosecution, the remedy being an action of trespass for false arrest and imprisonment, or an action on the case for libel or slander, and all concerned therein being liable. But difficulty arises in determining the effect of mere want of jurisdiction or irregularities where the prosecution was instituted or carried on before a regularly constituted magistrate or court, and to some extent the decisions are conflicting. If an afflavit or complaint is made, for the purpose of instituting a criminal prosecution, before a magistrate having no jurisdiction of the offense, or if an afflavit or complaint so made does not state any offense, and the magistrate nevertheless issues a warrant at the request of the complainant, and the accused is arrested, the proceeding is coram non judice and void, and both the complainant and the magistrate are liable in trespass for false imprisonment.20 Some of the courts, therefore, hold that if there is nothing further in the way of a prosecution than an arrest and discharge by a magistrate, the person accused must sue in trespass, and cannot maintain an action for malicious prosecution.21 Other courts hold, however, that he may sue either in trespass or case.22 Some courts go even further, and apply the same rule, where there is no jurisdiction, although the plaintiff may not only have been arrested, but afterwards prosecuted for the alleged offense, on the ground that the proceedings are a nullity, and there is therefore no prosecution in contemplation of law.23 Most courts, however, hold that if the plaintiff has been in fact prosecuted, and not merely arrested and discharged, and the malicious and false prosecution is alleged as the ground of action, and not the arrest, an action for malicious prosecution may be maintained, notwithstanding the fact that the magistrate or court had no jurisdiction at all to entertain the prosecution, or the fact that the complaint or indictment on which the prosecution was based did not charge any crime.24 If the court had jurisdiction of the offense charged, an action for malicious prosecution cannot be defeated by showing that the complaint or indictment was so defective, or the proceedings otherwise so irregular, that, if there had been a conviction, the judgment would have been erroneous, or even a nullity.28

rest, and to appear, and he did appear and submit to the jurisdiction of the magistrate. Strehlow v. Petitl, 96 Wis. 22.

19. Police preferred charges. 1Boden v. St. Louis Transit Co. \[Mo. App.\] $4 S. W. 151.

01. Site ante, $ 2. notes 9, 10.

01. Krawse v. Spiegel, 94 Cal. 370, 28 Am. St. Rep. 137; Maher v. Ashmed, 30 Pa. 344.

172 Am. Dec. 198; Baird V. Householder, 32 Pa. 168; Kramer v. Lott, 50 Pa. 495, 88 Am.

22. Dec. 556; Lewin v. Uzuber, 65 Md. 341; Sa-tilla Mfg. Co. v. Cason, 89 Ga. 14, 58 Am. St. Rep. 287; Colium v. Turner, 102 Ga. 534. A mere arrest under a warrant which is void on its face is nothing but a trespass, and will not support an action for malicious prosecution. Lewin v. Uzuber, 65 Md. 341; Colium v. Turner, 102 Ga. 534.

01. Hays v. Younglove, 7 B. Mon. \[Ky.\] $45; Paril v. Reed, 30 Kan. 534; Bell v. Keegerrs, 37 Kan. 64; Breight v. Bell, 37 Ind. 550; Stocking v. Howard, 13 Mo. 25; Barton v. Kavanaugh, 12 La. Ann. 332.

01. Bixby v. Brundage, 2 Gray \[Mass.\] $129, 61 Am. Dec. 443; Whitting v. Johnson, 6 Gray \[Mass.\] $129, 61 Am. Dec. 444; Whitting v. Johnson, 6 Gray \[Mass.\] $47; Kramer v. Lott, 50 Pa.

01. Goslin v. V. Wiecock, 2 Wits. 302; Stone v. Stevens, 121 Corn. 219, 30 Am. Dec. 611; Morris v. Scott, 21 Vermont. \[N. T.\] $13, 34 Am. Dec. 286; Dennis v. Ryan, 63 Barb. \[N. T.\] $149; Id., 68 N. Y. $39, 22 Am. Rep. 635; St. Rep. 137; Maher v. Ashmed, 30 Pa. 344.

01. A. M. Dene, 168; Rammel W. Housendorf, 32 Pa. 168; Rammel W. Housendorf, 32 Pa. 168; Rammel W. Housendorf, 32 Pa. 168; Rammel W. Housendorf, 32 Pa. 168; Rammel W. Housendorf, 32 Pa. 168; Rammel W. Housendorf, 32 Pa. 169; Rammel W.

4 Cur. Law. MALicious PROSECTION, ETC. SS 4. 485

An action for malicious prosecution cannot be maintained where the only thing done was to arrest the defendant under a warrant, and afterwards discharge him, and the warrant was so defective that the alleged prosecution had no existence.20 The remedy is trespass for false imprisonment.27 But fatal defects in a warrant of arrest will not prevent an action for malicious prosecution under an indictment afterwards presented.28 And where a complaint on which the plaintiff was tried before a magistrate was sufficient, defects in the warrant issued thereon, and under which the plaintiff was arrested, are immaterial.29

A search warrant without an arrest would seem not to be a prosecution but otherwise if there is an arrest and consequent proceedings.29 It is important chiefly as a matter of pleading for in either event the malicious issuance and execution of it is actionable.21

\_Effect of want of jurisdiction or irregularities in civil actions.--\_According to the weight of authority, if a person prosecutes a civil action maliciously and without probable cause, or maliciously and without probable cause procures the arrest of the defendant or an attachment of his property, he cannot defeat an action on the case for malicious prosecution or abuse of process by setting up that the court had no jurisdiction of the action, or that the capias or attachment issued therein was void for want of jurisdiction or otherwise.22 Some of the cases, however, hold that the remedy in such a case, if there is any, is by an action of trespass.28 One who falsely and maliciously sues out an attachment, which is executed, cannot escape liability on the ground that the afflavits on which it was issued were insufficient.24 And the same is true of a 'search warrant.28

486 MALICIOUS PRODUCTION, ETC. 8 4. 4 Cur. Law.

must show "that his innocence was pronounced by the tribunal before which the accusation was made;"as but this is not strictly true. "Any proceeding," said the New Jersey court, by which the particular prosecution is disposed of in such a manner that it cannot be revived, or that the prosecutor, if he intends to proceed further, must institute proceedings de novo, is a sufficient termination of the prosecution to enable the plaintiff to bring his action."239

Thus a sufficient termination of the prosecution in favor of the plaintiff is established, when it is shown that, after being committed or bound over by a magistrate, he was discharged, or the prosecution abandoned, because of refusal or failure of the grand jury to find an indictment against him;" that he was discharged by a magistrate, either because of insufficiency of the evidence against him, or because the defendant withdrew the prosecution or failed to make any complaint or to appear;" or by the court in which the indictment was pending, for want of prosecution;" that he was discharged on a writ of habeas corpus if the circumstances are such that the prosecution is thereby ended," but not otherwise;" or that he was acquitted by direction of the court because of a defect in the indictment," or because the facts stated in the indictment, and which were the same as were stated by the defendant to the prosecuting attorney and before the grand jury, did not constitute a crime."

Kan. 567; Von Koehring v. Witte, 15 Tex. 1ury had no jurlsdiction or authority to pass Civ. App. 646; Hinds v. Parker, 11 App. Div. on the indictment (Stark v. Bindley, 152 Ind. \[N. J. 327; Carpenter v. Nutter, 127 Cai182), or that the prosecution was not in fact 61. Jersey to allege that the plaintiff was discontinued, but an indictment was found discharged from his imprisonment is not enough, for this does not necessarily imply Witt, 15 Tex. Civ. App. 646); or that the prosecution is at an end. Morgan , v. Hughes, 2 Term R. 255.

This rule does not apply in an action for multicously and without probable cause suing out a peace warrant, under which the plaintiff was committed or bound over to, by Eriggs, 4 Mete, \[Mass.\] 421; Moyle v. keep the peace, the proceedings having been wholly ex parte, and the magistrate having been required by law to act upon the facts stated to him, without the plaintiff having any opportunity or right to contest the proceeding. Stewart v. Gromott, 7 C. B. (N. S.)

Babcock, 2 Johnns. (N. Y.) 203; Jones v. 191; Hydo v. Greuch, 62 M. J. 517. And the Finch, 84 Va. 204; Strehchv v. Pettit, 96 rule does not require that a criminal prose-, where 84 Ind. 105. Com-

tion shall be terminated before the defendant may maintain an action for abuse of criminal

470. The rule applies to a discharge by a of process therein, as for use of criminal

United States commissioner. Jones v. Finch, process to compel him to abandon a claim, etc.

84 Va. 204. But a prosecution is not terml- to property or pay a disputed claim, etc.

nated by discharge by a magistrate, so as White v. Apsley Rubber Co. \[Mass.\] 63 N.

t to permit an action for malicious prosecution, if the prosecution with due diligence follows up and continues the prosecution in a court having jurisdiction to try the case on its merits. Hartshorn v. Smith, 104 Ga.

80. Apspar v. Woolston, 43 N. J. Law, 57.

01. Morgan v. Hughes, 2 Term R. 255; 235: Schippel v. Norton, 38 Kan. 567.

Mitchell v. Williams, 11 Mees & W. 205; Ba-

42. But this does not apply to a dis-con v. Waters, 2 Allen \[Mass.\] 400; Graves

charge of one from imprisonment, or recognize. Dawson, 120 Mass. 78, 39 Am. Rep., 429,

Brigelow's Cas. 62; Murray v. Lackey, 2 ment

37. Murphy. \[N. C.\] 385; Rice v. Ponder, 7red. L.

390; Shock v. McChesney, 4 Yates

\[Pa.\] 507, 2 Am. Dec. 415; Gilbert v. Em-

42. Im. 143, 89 Am. Dec. 415; Potter v.

mons, 42 Ill. 143, 89 Am. Dec. 415; Potter v.

Casterline, 41 N. J. Law, 22; Apgar v. Woolst, 43 N. J. Law, 57.

ton, 43 N. J. Law, 67.; Proctor Coal Co. v.

45. Moss \[Ky.\] 40 & S. W. 681. A formal order

01. The court discharging him is not necessary. Potter v. Castefine, 41 N. J. Law, 23.

01. Pulllaw v. Martin, 43 Ill. 688; Merritt

But failure or refusal of the grand jury to man v. Morgan, 7 Or. 68; Hinds v. Parker, 11 Apg. Div. IN. 7.327;

45. Wicks v. Fenthan, 4 Term R In some of the cases it has been held that when a complaint has been made before a magistrate for an offense which he has jurisdiction to try, or an indictment has been found, and presented to a court having jurisdiction to try the offense, there must be a trial and acquittal, at least unless the complainant consents to a dismissal, and that a dismissal or noble prosequi entered on motion of the prosecuting attorney is not a sufficient termination of the prosecution to permit an action for malicious prosecution, as this does not tend to show the innocence of the accused, and another complaint may be made, or another indictment found, on the same complaint.\[47\] Other courts hold that a dismissal without trial or entry of a noble prosequi, if not by the procurement or consent of the accused, while it does not determine the innocence of the accused, and may not prevent another indictment or complaint, is nevertheless a sufficient termination of the particular prosecution in favor of the accused to entitle him to maintain an action. This view is undoubtedly supported by the weight of authority.\[48\] This does not apply, however, where a complaint charging an offense is dismissed without a trial, or a noble prosequi entered on a good indictment, because of a settlement or compromise between the accused and the complainant, or otherwise by the procurement or with the consent of the accused.\[49\] A search warrant is ended when it proves ineffective and the proceeding is discontinued.\[50\] There need be no trial on merits and acquittal.\[51\]\_Favorable termination or innocence of the plaintiff.--To enable one to maintain an action for the malicious prosecution of a criminal charge against him, he must so far as the prosecution is concerned stand innocent of the offense charged, that is it must have terminated in his favor.\[52\] While unnecessary to prove innocence, it may be proved in rebuttal,\[53\] and a judgment of conviction is conclusive as to his guilt until it is set aside or reversed.\[54\] If he was in fact guilty of the following. But striking of a criminal case from the docket on motion of the state's attorney, with leave to reinstate the same, question, see ante, $ 18.

- 47. Buller N. P. 14; Bacon V. Towne, 4; Cushl. \[Mass.\] 217; Parker V. Farley, 10 Cush. \[Mass.\] 217; Gupupi V. Ward, 106 Mass. 289; Cradival V. Barth, 109 Mass. 158, 12 Am. \[Reg.\] 682, Chasse Cas. 102, Erwin's Cas. 483; Garine V. Fraser, 76 Mc. 37; Ward V. Reasor \[Va.\] 36 S. E. 470. The Massachusetts cases above cited, however, were limited in Graves v. Dawson, 130 Mass. 87, 89 Am. Rep. 429, Bigelow's Cas. 92; Id., 133 Mass. 419, and it was held that while a noble prosequi is not necessarily such a termination of a prosecution as will permit an action for malicious prosecution,\_as where it was produced by the plaintiff.--yet it may be unhurt v. Ward, 19 Ala. 264; Bigelow v. 48. Moulton V. Beccher, 1 Cabb. N. C. \[N.\] 193, Chasse's Cas. 103; Ycoum V. Polly, 1 B. Mon. \[Ky.\] 358, 36 Am. Dec. 583; Hatch v. Cohen, 84 N. C. 602, 37 Am. Rep. 630; Apgar v. Woolston, 43 N. J. Law, 67; Lowe v. Wartman, 47 N. J. Law, 413; Richter v. Kos- ter, 45 Ind. 440; Holliday v. Holliday, 123 Cal. 26; Douglas v. Allen, 60 Ohio St. 165; Driggs v. Burton, 44 Vt. 124; Woodworth v. Millis, 61 Wt. 41, 50 Am. Rep. 135; \[Hurgren\] 68, 75 Ind. 675; Whitlev. Union Mut. Life Ins., 611 Cal. 685, 75 P. 168. And see Brown v. Randall, 36 Conn. 53, Arrest for drunkenness. \[Kersetter\] 56, 4 Am. Rep. 35; Page v. Citizens Bankring v. Thomas \[Twash.\] 79 P. 290. Co., 111 Ga. 73, 85, 73 Am. Rep. 144, 155. 54. Mellor v. Baddeley, 6 Car, & P. 374; Basebe v. Matthews, L. R. 2 C. P. 684; Grif- s59. and dictum in cases cited in the note * 488 MALicious PRSECTION, ETC. SS 4. 4 Cur. Law.
- 489 crime for which he was prosecuted, he cannot recover, although the defendant did not know of his guilt when he instituted the prosecution, or of facts establishing probable cause for the prosecution. \[86\] The fact that the plaintiff was acquitted on the prosecution or discharged by a magistrate, or because of the failure of the grand jury to find an indictment, is not conclusive evidence of his innocence, and does not preclude the defendant from showing that he was in fact guilty. \[80\] A very recent opinion in dissent favors allowing recovery despite a conviction which was merely technical and procured by false facts for an ulterior purpose. \[87\] _Rule in respect to civil prosecutions and abuse of process._--It is the general rule, in order that an action may be maintained for malicious prosecution of a civil action or proceeding, that the action or proceeding must have terminated, and in favor of the present plaintiff, for until its determination it cannot be known that it was unfounded; and this fact must be alleged in the declaration or complaint. \[88\] But this rule does not require that all proceedings that may be had or are required in an action to finally work out or enforce the rights of the parties shall occur before a cause of action will accrue to the defendant therein for maliciously prosecuting such action. \[89\] It requires only that the issues material to the question of the bona fides of such action shall be tried and closed by final judgment. \[80\] The general rule that determination of the action or proceeding complained of is necessary certainly applies where it is sought to recover for the prosecution of an ordinary civil action as having been brought maliciously and without probable cause; \[80\] or for the prosecution of an action of replevin, \[81\] or of bankruptcy or insolvency proceedings, \[82\] or of a suit for a receiver, \[88\] or of statutory proceedings to dispossess a tenant, \[84\] etc. The rule also applies to an action for malicious prosecution of a suit in which a capias or attachment was issued, if it is based on the ground that there was no cause of action at all, or no cause of action for the whole amount sued for. \[88\] But if the action is based on the ground that there was no cause for the issue of the capias or attachment, it may be maintained as Am. Dec. 422; Severanee v. Judkins, 73 Me. \[Mass.\] 69 N. E. 632: Lubby v. Bennett, 111 N. 613, 87 Am. St. Rep. 837, 56 L. R. A. 376. The fact that there is no appeal from the conviction is immaterial. Basebo v. 261: Dwodrell v. Carpy, 129 Cal. 168. And see Fulton Grocery Co. v. Maddox, 111 Ga. 260. 55. Adams v. Lister, 8 Biackf. \[Ind.\] 241, 25 Am. Dec. 102; Parkhurst v. Masteller, 57 Iowa, 474; Johnson v. Chambers, 10 Ired. L. \[N. C.\] 287; Plummer v. Gheen, 3 Hawks \[N. C.\] 66, 14 Am. Dec. 572; Theroed v. Nuckdox, 68 Miss. 116; Bigelow v. Stickles, 80 Wis. 98, 27 Am. St. Rep. 25. But the defendant cannot establish probable cause merely, by proof of facts which were not known to him. See post, SS 5, note 85. \[St. Plummer v. Gheen, 3 Hawks \[N. C.\] 66, 14 Am. Dec. 672; Bigelow v. Stickles, 80 Wis. 98, 27 Am. St. Rep. 25, and other cases above cited. \[Mack v. Sharp \[Mich.\] 101 N. W. 631. 57. 71n Lipowicz v. Jervis, 209 Pa. 315, 65 A. 619, Mitchell, J., dissenting, says there Is no probable cause even in case of conviction where the offense was a wholly tech-nical one found on facts which the prosecution had caused to appear and the prosecution for an ulterior purpose. \[88\] 58. Metropolitan Bank v. Pooley, 10 App. Cas. 210; Wood v. Laycock, S. Mete. \[Ky.\] 192, Palge's Cas. 355; Turner v. Walker, 3 Gill & J. \[Md.\] 372, 22 Am. Dec. 329; Jones v. Kirkesy, 10 Gill & J. \[Md.\] 372, 22 Am. Dec. 329; Jones v. Kirkesy, 10 Ala, 839; Burt v. Place, 10 Cah. 105, 106 Cah. 106 Cah. 107, 108 Cah. 108 Cah. 109, 110 Cah. 111, 111 N. 613, 111 N. 614, 111 N. 615, 111 N. 616, 117 N. 617 N. 618, 118 N. 619, 119 N. 619, 119 N. 619, 120 N. 619, 121 N. 619, 122 N. 619, 123 N. 619, 124 N. 619, 125 N. 619, 126 N. 6 4 Cur. Law. MALICIOUS PROSECTION, ETC. SS 5A. 439 soon as the capias or attachment has been vacated, or according to several decisions, even before it has been vacated." In case of injunction the action must first be finally determined."7

The action complained of need not necessarily have been determined in the plaintiff's favor by a judgment of the court. There is a sufficient termination where it was voluntarily dismissed or withdrawn by the defendant, or discontinued by his failure to appear and prosecute it."8 A verdict or final determination on the merits is not necessary."9 An action is not determined in favor of the defendant therein by a judgment in his favor, so as to entitle him to maintain an action for malicious prosecution, if the plaintiff has appealed, and the appeal is still pending and undetermined," or if the judgment has been reversed and the case remanded for a new trial, which has not been had."1 but the fact that he has a right to appeal or to move for a new trial does not render an action premature, if it does not appear that any appeal has been taken or motion for a new trial made." If there was a judgment against the defendant (the present plaintiff) in the suit complained of, and it has not been reversed or set aside, it is conclusive against him in an action for malicious prosecution," unless it appears that there was no opportunity to defend." And a judgment against him is conclusive, even though reversed or set aside, unless it is shown, as it may be, that it was procured by fraud or other unfair means."8

Termination of a civil action or criminal prosecution is not necessary to entitle the defendant therein to maintain an action, not for malicious prosecution, but for abuse of process"8 in the action or prosecution,--as for illegally making use of a writ of arrest in a civil action to compel the defendant to surrender property," or for illegally using criminal process to compel the defendant to pay a disputed claim or surrender property." An action for malicious abuse of process will lie even where the defendant recovered a judgment in the suit complained of, and has obtained satisfaction thereof by the issue of an execution, where the judgment was recovered by fraud in a court having no jurisdiction of the plaintiff."

8 5. \_Want of reasonable and probable cause. A. In malicious criminal prosecution."8-A person cannot maintain an action for malicious prosecution unless he shows "that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be, in the eyes of the judge, inconsistent with the existence of reasonable and probable cause."91 It is not enough for the plaintiff to allege and prove that

**68**. Fortman v. Rottler, $ Ohio St. 548, 72 Am. Dec. 606; Brand v. Hinchman, 68 Mich. 580, 13 Am. St. Rep. 362; Alsop v. Lidden (Ala.) 30 So. 401. See, also, Bump v. Bets, 18 Wenda. 18. Y. 421, Chasse's Cas. 107, Er-vln's Cas. 452; but see Kelley v. Osborn, 86 Mo. App. 239. If the capias or attachment is void, the action may be maintained before it is vacated. Turner v. Walker, 3 Gill & J. \[Md.\] 377, 22 Am. Dec. 329.

**67**. VINITILATIONS V. Ainsworth \[VWs.\] 99 N. V. 327.

**68**. Pierce v. Street, 3 Barn. & Ad. 397; Arundeli v. White, 14 East, 216; Cardinal v. Smith, 109 Mass. 158, 12 Am. Rep. 682, Chase's Cas. 682, Erwin's Cas. 463. A dismissal suffices. !Hurgren v. Union Mut. Life Ins. Co., 141 Cal. 585, 75 P. 168.

**69**. (Hurgren v. Union Mut. Life Ins. Co., 141 Cal. 585, 75 P. 168.

**70**. Reynolds v. De Geer, 13 III. App. 113; Nebenzahl v. Townsend, 61 How. Pr. \[N. Y.\] 353.

**71**. Dowdahl v. Carpy, 129 Cal. 168.

**72**. Luby V. Bennett, 111 VWs. 613, 87 Am. St. Rep. 897, 56 L. R. A. 261; Marks v. Townsend, 87 N. X. 590 (compare Ingram v. Root), 51 Hun \[N. Y.\] 238.

**73**. Jones v. Kirksey, 10 Ala. 339.

**74**. Bump v. Bets, 19 Wenda. \[N. Y.\] 421, Chasse's Cas. 107, Erwin's Cas. 452.

**75**. Burt v. Place, 4 Wenda. \[N. Y.\] 591; Welch v. Boston & P. R. Co., 14 R. I. 609.

**76**. As stated in a previous section, no termination of the action or salt is necessary to support a right to recover for abuse of process. See angl. $ 1B "Abuse of Process."

**77**. Grainger v. Hill, 4 Bing. N. C. 212, Chase's Cas. 107, Bigelow's Cas. 67.

**78**. White v. Apsley \[Mass.\] 63 N. E. 885.

490 MALicious prosecution, ETC. SS 5A. 4 Cur. Law. he was innocent, and the charge false, and that the defendant instituted the prosecution with actual malice, but he must go further, and both allege${}^{ ext{s2}}$ and prove that the defendant did not believe him to be guilty, or, if he did, that he had no reasonable and probable grounds for his belief. In other words, as it is generally expressed, malice and want of probable cause must concur.${}^{ ext{s3}}$ And the burden of proving that the prosecution was without probable cause is primarily on the plaintiff.${}^{ ext{s4}}$ It is no defense that there was probable cause for supposing the plaintiff guilty, if the defendant did not, at the time, know of the faets constituting the probable cause.${}^{ ext{s5}}$ And even if he did know all the facts, yet if he did not believe the plaintiff guilty, the defense of probable cause cannot avail.${}^{ ext{s6}}$

\_Effect of malice.--\_As stated above, the fact that the defendant acted maliciously in causing the prosecution does not render him liable, unless he also acted without probable cause, both of these elements being essential;${}^{ ext{s7}}$ and it has repeatedly been held that want of probable cause cannot be inferred from any degree of malice that may be shown.${}^{ ext{s8}}$ "From the want of probable cause, malice may be

82. Box v. Taylor, 2 Shower, 154: Murril \[Div. \[N. Y.\] 317; Ross v. Innis, 35 III. 487, v. Tracy, 6 Mod. 169; Kirtley v. Deck, 2 Munf. 86 Am. Dec. 373; Walter v. Sample, 25 Pa. \[Va.\] 10, 5 Am. Dec. 445; Young v. Gregorie. 275, Chase's Ca. 101, Pajeg's Cas. 358: Posa- 3 Calli \[Va.\] 446, 4 Am. Dec. 556; Denney ter, v. Pitts, 43 Ark. 37; Apsar v. Wobiston, v. Woodsum, 100 Mass. 185; Turner v. Turner, 43 N. J. Law, 51; Lensford v. Dietrich, 93 Ala. 85 Temn. 857; Palmer v. Palmer, 8 App. Div. 568, 30 Am. Stt. Rep. 79: Monroe v. Weston (N. Y.) 331; Cousins v. Wwords, 14 Apr. Dv. 112, Number Co., 50 Ca. Am. 158; 98Madmaker v. \[N. Y.\] 338, 162 N. Y. 625: Higeln v. Apple, 65 Ark. 274; 14Dowelve v. Jervis, 780 Pa. 155, above elted. In some jurisdictions proof by 55 A. 619, Compare Wall v. Toomey, 52 the plaintiff that he was acquitted by a jury, or discharged or acquitted by a magistrate, or discharged or acquitted by a magistrate, etc., is held to make out a prima facie case of want of probable cause, so as to shift the ard. 11 Apr. Cas. 247; Hicks v. Falkner, 8 Burden of proof to the defendant. See infra, Q. B. Div. 167; Turner v. Ambler, 10 Q. B. 105, 52; Kirtley v. Deck, 2 Munf. \[Va.\] 10, 5 Am. Dec. 445; Fonshaw v. Ferguson, 2 Denio \[N. Y.\] 617, Chase's Ca. 100; Miller v. Milligan, 48 Barb. \[N. Y.\] 30, Chasse's Ca.s. 385; Walter v. Wamble, 25 Pa. 718, Chase's Ca. 101, Pajeg's Cas. 355: Stone v. Stevens, 594; Harkrader v. Moore, 44 Cal. 141, Erwin's 13 Conn. 318, 30 Am. Dec. 611: Grant v. 105, 5 John, 160, 14.1 78, Am. Dec. 228; Med. 546; Bail v. Rawles, 93 Cal. 221, 27 Am. 546; Pajeg's Cas. 349; Cockfield v. Braveboj, 88. 116, McMullen \[S. C.\] 370, 39 Am. Dec. 133; Stewrt v. Sonborne, 85 U.S. 187, Burdick's Ca. 251; Booger v. Langenberg, 97 Mo. 39, 105 Am. St. Rep. 322; Vinual v. Corc. 18 W. V. 13, Apsar v. Woolston, 43 N. J. Law, 51: Wil- 11ams v. Vanneter, 8 Mo. 339, 41 Am. Dec. 644; Ross v. Innis, 35 III. 487, 85 Am. Dec. 373; Smith v. Austin, 496, 286; Wilson v. Bowen, 64 Mich. 133; Lunsford v 4 Cur. Law. MALICIOUS PROSECTION, ETC. SS 5A. 491

implied; \[80\] but the want of probable cause can never be implied from the proof of malice. The direct proof of the most intense malice is not sufficient; there must be proof also of the want of probable cause, or the suit must fail. The want of probable cause is never implied. \[80\] Its absence cannot be inferred from evidence of a motive generating malice. \[91\]

\_"Probable cause" defined.--_Reasonable and probable cause, or "probable cause,"_ as it is generally expressed, means "a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged."" It follows that mere suspicion, or even a bona fide belief, as to the plaintiff's guilt, is no defense, unless there were reasonable grounds for such belief and the defend-ant acted with due caution in entertaining it, \[91\] but the prosecutor may rely on

460; Ulmer v. Leland, 1 Greenl, \[Me.\] 135, 10 point of the defendant, and he should not 4m. DEe. 48; Yeomu y. Polly, 18. Mon. \[Ky.\] be held linble because of natural partiality 58. 84 Am. DEe. 581; Adams v. Lisher, 2 and prejudice. _Ary_ was said in a Wisconsin Blacker. \[Ind.\] 241. 25 Am. DEe. 102; Griffin v. Chubb, 17. Tex. 603, 58 Am. DEe. 58; Med. \[the prosecutor is so injured by the offense calfe v. Brooklyn Life Ins. Co., 45 Md. 198, that the could not likely draw his conclusions Paigres Cas. 34; Stewart v. Sannebron, 98 with the same impartiality and absence of U. S. 187, Burdick's Cas. 253; Ross v. Trins, prejudice that a person entirely distinct-35 Ill. 487, 58 Am. DEe. 573; Plummer v. \[cated would deliberately do. All that can be Green, 3 Hawks \[N. C.\] 64, 14 Am. DEe. 572; reouired of him is that he shall act as a Bitling v. Ten Eyck, 82 Ind. 421, 42 Am. Rep. 585; Hick's V. Bramitev, 102 Gm. 264, and other Iy to do in like circumstances." Spear v. causes cited in the note preceding. Compare, Miles, 67 V. 1350, 56. And see Carter v. Sub-however, Wenger v. Phillips, 198 Pa. 214, erland, 52 Mich. 597. Complaint for stander 78 Am. St. Rep. 810.

But proof of express malice may be taken into consideration on the question and may

by hearing them on path. \[82\]wer v. Hortigl render slight evidence in addition sufficient (Minn.) 93 W. W. 796. Three examinations to establish want of probable cause. Grant

disclosing apparent deficit followed by con->. Deuel, 3 Rob. \[La.\] 17, 38 Am. DEe. 288.

88. See post, SS 6, note 81 et seq.

substitution with counsel and prosecution for 90. Adams v. Lisher, 5 Blacker. \[Ind.\] 241, 100. \[C.C.\] 130 P. 882. \[Lorens from corpora. \[FXO v. Smith \[R. I.\] 67 A. 92\].

91. Competition In business. \[82\]wer v. Wienacht, 99 App. Dlv. 316, 81 V. N. F. 807.

01. Poshyv. Ferguson, 2 Duelle \[N. Y.\]

Co., 105 Mo. App. 416, 79 S. W. 1156.

61. Chase's Cos. 100. Sec. 35, also, Muns v. **Facts submitted to jury**.

Dupent, 3 Wash. C. (C. U. S.\] 37; Carl v. attempted train wrecking by placing ties Ayers, 53 N. Y. 14, Chase's Cas. 49; Stone v. **Fact**.

Stevens, 12 Cono. 213, 36 Am. DEe. 671; Cock->.

feid v. Braveby, 2 McMull. \[S. C.\] 270, 99 C. \[On. Min.\] 93 W. W. 273. Plaintfarrest. \[Am. DEe. 133; Richt v. McBean, 17 II. 63\].

Ross v. Innis, 35 Ill. 487, 85 Am. DEe. 373; Asch v. Marlow, 20 Oh. 119; Wilson v. \[Bowen, 64 Mich. 183; Vishan V. Core, 18 W.\]

Weer and there had been previous misapprov. Va. 1: Lunnford v. Dietrich, 93 Am. DEe. 58, 300 ration by plaintiff from same source. Am. St. Rep. 73; 14, 84 Am. St. Rep. 73; Thompson v. Beacon Valley, etc.,

88. Y. S. 107 * 492 MALicious PROSECTION, ETC. SS 5A. 4 Cur. Law. the testimony of others and need not be an eye or ear witness.94 The fact that the defendant might have ascertained facts showing that the plaintiff was not guilty, or that on the facts known to him a person of extreme or unusual caution would not have proceeded, does not render him liable. All that can be required is that he shall have exercised reasonable care under the circumstances, and shall have acted as an ordinarily cautious and prudent man would act under like circumstances.95 On the other hand, innocence is not the test of want of probable cause.96 Facts which manifestly fall short of criminality afford no probable cause,97 and the presumption favors legality rather than criminality of an act.98 It sufffeces that there was probable cause for that crime informed of though the officer misnamed it in the warrant and the arrest was for one without cause.99 There is not only probable cause but a duty to prosecute one whom an officer knows has violated the law1 and his connivance at the offense makes no difference.9

_Evidence._--All the circumstances bearing on probable cause may be received; for example a dispute between parties,3 threats,4 the substance, completeness and manner of the disclosure to counsel,5 good faith in acting on advice.6

Footnote 493: The author is grateful to the anonymous referee for the support of the author.

Footnote 494: The author is grateful to the anonymous referee for the support of the author.

Footnote 495: The author is grateful to the anonymous referee for the support of the author.

Footnote 496: The author is grateful to the anonymous referee for the support of the author.

Footnote 497: The author is grateful to the anonymous referee for the support of the author.

Footnote 498: The author is grateful to the anonymous referee for the support of the author.

4 Cur. Law. MALCIOUS PROSECTION, ETC. SS 5A. 493

made to him by third persons tending to induce belief in the plaintiff's guilt,${}^{11}$ but not statements which were not communicated to him;${}^{12}$ and the plaintiff may show that the defendant knew of the bad character of the person on whose information he relies as tending to show probable cause.${}^{18}$ More failure to inquire of one who would have furnished more cause is not evidence of want of probable cause.${}^{14}$ Delay while investigating does not raise an inference of want of probable cause,${}^{15}$ likewise forbearance to claim embezzled money does not show its absence.${}^{16}$ It has been held that proof that the defendant instituted the prosecution for the purpose of coercing payment of a debt is prima facie evidence of want of probable cause, although not conclusive.${}^{17}$ On the question whether one prosecuted for forcibly defending certain alleged rights of occupancy was entitled to such rights, former transfers of that to which the right pertained but containing no reference to it may be received.${}^{18}$

All of the courts agree that want of probable cause is not conclusively shown by the fact that the prosecution was abandoned, or that the grand jury failed to find an indictment, or that the plaintiff was acquitted or discharged by a magistrate, or by the verdict of a jury.${}^{19}$ Most of the courts have gone further than this, and have held that no implication of want of probable cause is raised, even prima facie, so as to warrant a recovery without other evidence on the question, by proof that the prosecution was abandoned,${}^{20}$ or that the plaintiff was acquitted by a petit jury on a trial of the charge,${}^{21}$ or by a magistrate on a trial before him.${}^{22}$

10. McIntyre v. Levering, 148 Mass. 546, 39 Am. Dec. 123; McLeod v. McLeod, 75 Ala. 13 Am. St. Rep. 594; Bacon v. Towne, 4 Cush. 483. Discharge by magistrate. Riteble v. \[Mass.\] 217, 240; Ross v. Innis, 35 Ill. 487, McBean, 17 Ill. 63; Boeger v. Langenberg, 97 55 Am. Dec. 373; Israel v. Brooks, 23 Ill. 575; Msc. 390, 10 Am. St. Rep. 222; Bieplowow v. Blizzard v. Hrays, 46 Ind. 165, 15 Am. Rep. 221; Woodworth v. Mills, 61 Vris. 44, 50 Am. Rep. 135; Jones v. Morris, 97 V. 43; 17thur. 41; Held v. Webster, 60 Tex. 207; Barhindt kettle v. Frost \[Mich.\] 100 N. V. 288. Con- trax, Kennedy v. Holladay, 25 Mo. App. 503. 1010 see Skidmore v. Bricker, 77 Ill. 164. 11. French v. Smith, 4 V. 363, 24 Am. Dec. 616; Lamb v. Galland, 44 Cal. 603; Widmayer v. \[meyer v. Felion, 95 S. F. 926. The fact that the prosecution was instituted on evidence of statements of an alleged accomplice does not establish want of probable cause. Widmayer v. Felton, 95 F. 926. 12. McIntyre v. Levering, 148 Mass. 546, 12 Am. St. Rep. 594. 13. McIntyre v. Levering, 148 Mass. 546, 12 Am. St. Rep. 594. 13. McIntyre v. Levering, 148 Mass. 546, 13 Am. St. Rep. 594; Anderson v. Friend, 71 Ill. 475; Chapman v. Dunn, 86 Mich. 31.

494 MALICIOUS PROSECTION, ETC. SS 5A. 4 Cur. Law.

And some courts have held that there is no implication of want of probable cause even from proof that a magistrate discharged the plaintiff on preliminary hearing because of insufficiency of the evidence to show probable cause for holding him, or from proof of failure of a grand jury to find an indictment against him.${}^{ ext{ ext{ iny 23}}}$ Other courts, however, have taken a different view, on the latter proposition, and have held that, since the very question of probable cause, and not that of innocence or guilt, is before a committing magistrate and a grand jury, the plaintiff makes out a prima facie showing of want of probable cause, and shifts the burden of proof to the defendant, by proof that he was discharged by the magistrate sitting as a committing magistrate, or that the grand jury failed to find an indictment against him.${}^{ ext{ iny 24}}$

By the weight of authority, reasonable and probable cause, is conclusively shown, at least in the absence of proof of fraud and perjury or other unfair means,${}^{ ext{ iny 23}}$ by proof that the plaintiff was convicted of the offense charged, by a jury, or on a trial before a magistrate or other tribunal having jurisdiction, although the verdict was afterwards set aside and a new trial granted,${}^{ ext{ iny 26}}$ or the judgment of conviction was vacated or reversed on appeal, and the plaintiff was acquitted on another trial, or discharged without a trial.${}^{ ext{ iny 27}}$ In some jurisdictions, however, this

of acquittal but to deal with the case as

paer is not sufficient to show want of probabeling it were new before them. #Laing v. able cause. Wakely v. Johnson, 115 Mich. Mitten, 185 Mass. 233, 70 N. E. 128.

But see Cockfield v. Braveboy, 2 McMullen

25. Ross v. Hixon, 46 Kan. 550, 26 Am. \[S. C.\] 270, 39 Am. Dec. 125: Lunsford v. St. Rep. 132; Burt v. Place, 4 Wend. 113. Y.\] Dietrich, 93 Ala. 665, 20 Am. St. Rep. 79. A. 591; Holiday v. Holliday, 123 Cal. 26; Pay-verdict and judgment of the court finding

son v. Caswell, 22 Me. 212; Adams v. Bicknell, that the prosecution was malicious and with:

126 Ind. 22 Am. St. Rep. 576; Phillips

out probable cause is not admissible to show

v. Vilage of Kalamazoo, 83 Mich. 33; Welch

want of probable cause. Sweeney v. Per-

v. Boston & P. R. Corp., 14 R. I. 609. Con-

vey, 40 Kan. 102.

viction become final is conclusive. It was

22. Philpot v. Lucas, 101 Iowa, 478; East-

arfirmed on appeal. Kfraegel v. Stewart

man v. Monastes, 32 Or. 291, 67 Am. St. Rep. 17ex. Cliv. App. 81 S. W. 365. Some courts

531. Discharge by magistrate who had

hold that a conviction is conclusive evidence

jurisdiction to try and not merely to comu-

of probable cause even where it was pro-

mit for trial. F'Fox v. Smith \[R. I.\] 57 A.

v. Smith, 7 Gray \[Mass.\]

932. But see Sherwood v. Reed, 35 Conn.

450, 98 Am. Dec. 284.

23. Israel v. Brooks, 23 III. 575; Thomp-

01.

son v. Beacon Rubber Co. 56 Conn. 493;

Ganea v. Southern Pac. R. Co., 51 Cal. 140;

26. Parker v. Huntington, 7 Gray \[Mass.\]

Farwell v. Laird, 58 Kan. 402; Apgar v.

v. Noonstos, 43 N. J. Law, 57 (disapproving the

dictum to the contrary in Potter v. Caster-

line, 41 N. J. Law, 22). A finding by the

magistrate that the prosecution was mall-

cious and without probable cause is not admissible to show want of probable cause.

emissble to show want of probable cause for holding him,

Farwell v. Laird, 58 Kan. 402.

24. Ambs v. Atishion, etc., R. Co., 114 F.

317: Bostick v. Rutherford, 4 Hawks \[N. C.\]

83: Vival v. Core, 18 W. Va. 11; Smith v. Ege,

52 Pa. 415: Madison V. Penslyanix R. Co.,

147 Pa. 509, 30 Am. St. Rep. 756; Barisht v.

720: Tommany, 158 Pa. St. 545, 38 Am. St. Rep. 852; Shtraus v. Young, 26 M. 246; Williams v. Norwood, 2 Yerz. \[Tenn.\] 239; Frost v.

60 Holland 4 Cur. Law. MALICIOUS PROSECTION, ETC. SS 5A. 495

doctrine is not recognized, but it is held that when a conviction has been vacated or reversed, and the plaintiff afterwards acquitted, it is prima facie evidence of probable cause, but not conclusive.${}^{18}$

Probable cause is prima facie established, but not conclusively, by. proof that the plaintiff was committed or bound over by a magistrate for trial, although he may have been afterwards tried and acquitted, or discharged without a trial,${}^{29}$ or that an indictment was found against him by the grand jury, although he was afterwards acquitted.${}^{30}$ Disagreement of a.jury on a trial of the plaintiff is prima facie evidence of probable cause, although he was again tried and acquitted.${}^{31}$ And proof that a verdict of acquittal was rendered only after deliberation, and that the jury entertained a doubt on the evidence, is evidence in favor of the existence of probable cause.${}^{32}$

\_Province of court and jury.--\_Although there are some decisions to the contrary, or apparently so, the overwhelming weight of authority is to the effect that the question of probable cause is a question of law for the court. If there is any dispute as to the facts going to show probable cause or the want of probable cause, those facts must be left to be found by the jury, either in a special verdict, or by finding a general verdict under instructions for the court, according to the practice in the particular jurisdiction; but whether particular facts show probable cause or want of probable cause is a question of law to be determined by the court after a special verdict on the facts, or by giving instructions on the subject to the jury, when they are to find a general verdict only; instructions that if they find certain facts to have existed or not to have existed, then there was or was not probable cause.${}^{33}$ Thus where the defendant claims that he acted on the advice of counsel, it is for the court to instruct the jury as a matter of law, that if although reversed on appeal to higher com-

Co., 15 Nev. 167; Sharpe v. Johnston, 75 Mo. missioners. But where a prosecution for felony is withdrawn, and the defendant is

Rep. 236; Raleigh v. Cook, 60 Tex. 438. Con-conviected of a misdemeanor included in it,

tra, Motes v. Bates, 80 Ala. 382.

and afterwards acquitted on appeal, the

conviection is not such evidence of probable

Rep. 758.

cause as will defeat an action for malicious

prosecution of the charge of felony. Labar

v. Crane, 49 Mich. 561.

28. Goodrich v. Warner, 21 Conn. 432.

Maffatt v. Fisher, 47 Iowa, 473; Bowman v.

stone v. Sutton, 1 Term R. 545; Stone v.

Brown, 52 Iowa, 487; Olson v. Neal, 63 Iowa,

Proc., 24 Pick. (Mass), 84: Bulkeley v.

214; Johnson v. Miller, 63 Nowa, 529, 50 Am.

Rep. 758; Maymar v. Shiman (Neb.) 91 N.

W. 576; and see Burt v. Place, 4 Wend. N.

Vinari V. Corek, 18 V. Va., 1: Nash V. Orr, 3 Y. J. 591. In Womack v. Circle, 29 Grat.

Pfev, 8 C.J. 94, 5 Am. Dec. 547; Travis v.

\[Va.\] 192, the court was evenly divided on

this question.

29. Thadox v. Jackson, 4 Munf. \[Va.\] 462;

Bionut, N. C. Term R. 123, 7 Am. Dec.

Ash v. Mariow, 20 Ohio, 119; Ross v. Hixon,

70; Ulmer v. Leland, 1 Greenl. \[Me.\] 185.

44 Kan. 550, 26 Am. St. Rep. 123; Ewing v.

Sanford, 19 Ala. 605; Spalding v. Lowe, 56

Premm v. Cessum, 58 Kan. 331; Plummer v.

Mich. 866; Hale v. Boylen, 22 W. Va. 224;

Ganes v. Southern Pac. R. Co., 51 CA14. 140;

Schonfeld v. Ferrars, 47 Pa. 194, 84 Am. Dec.

Diemer v. Herber, 75 Cal. 187; Holliday v. 583;

Bion T. 476; Gulf, Colorado, etc. R. Co., James,

Holiday, 133 Cal. 26; Wholing v. Wells, 50

La. Ann. 562; Hess v. Oregon German Bank-

73 Tex. 12, 16 Am. St. Rep. 743; English

mg Co., 31 Or. 503; Sharpe v. Johnston, 76

Mo. 660; Raleigh v. Cook, 60 Tex. 438. Walv-

er by the plaintiff of preliminary examina-

R. 607, Rogers v. Olds, 117 Schon, 863; Hess

tion, for the purpose of giving ball for his

appearance, has been held an admission of probable cause they find as facts that the defendant acted in good faith on the advice of counsel, after submitting a full and fair statement of the facts known to him, there was probable cause, and it is for the jury to say whether the defendant did act in good faith on the advice of counsel after such a submission of facts.\[34\] What are the facts bearing on probable cause is for the jury\[35\] and what they constitute in law is for the court.\[36\] Whether the defendant believed the plaintiff guilty is a question of fact for the jury.\[37\] Whether one who instituted proceedings to keep the peace was really in fear is for jury.\[38\]

(SS 5) \_B. In malicious civil prosecution.--\_To sustain an action on the case for the prosecution of a civil action, it is generally necessary for the plaintiff to show, as in an action for a malicious criminal prosecution,\[39\] that the action was prosecuted, or the process caused to be issued or used, both maliciously and without reasonable and probable cause. "These two ingredients," it has been said, "are invariably held to be indispensable.\[39\] And the burden of showing both malice and want of probable cause is on the plaintiff.\[41\] This rule certainly applies in all jurisdictions where it is sought to recover damages for the prosecution of an ordinary civil action.\[42\] And by the weight of authority it also applies, in the absence of a statute to the contrary, where it is sought to recover damages sustained by reason of a wrongful attachment,\[43\] execution,\[44\] arrest of the person,\[45\] injunction,\[46\] garnishment,\[47\] distress warrant,\[48\] writ of estrepement,\[49\] or bankruptcy

34. See the cases cited post, SS 7. As to \[Co., 67 Md. 461, 1 Am. St. Rep. 409; Kolka the proper mode of submitting the facts to the jury and instructing them as to the Elkhoff v. Fidelity & Casualty Co., 14 Minn. existence of probable cause, see, particular- 119,

1y, Ball v. Rawles, 93 CaL. 222, 27 Am. St. 43. Williams v. Hunter, 3 Hawks \[N. C.\] Rep. 174.

35, 36. All reasonable inferences favorable to the jury.

1@Shafer v. Hertsig \[Minn.\] 93 N. W. 786.

37. Ball v. Rawles, 93 CaL. 222, 27 Am. St. 43.

01. 122, 27 Am. St. 43.

01. 174.

01. 180 N. Dayv, 15 Grat. (Va.) 381; Burkhart v. Jenings, 2 V. Var. 242; Brand v. Hinchmao, 68

01. 13 Am. St. Rep. 362; McFadden

01. 1999, 53 N.

4 Cur. Law. MALicious PROSECUTION, ETC. SS 5B. 497 proceedings.**60** "Probable cause" to arrest seems to be included in "reasonable ground" to apprehend departure of a debtor from the state.**61** It is not justified by his mere intention to depart where the statute warrants arrest only if he departs to avoid citation.**62**

According to the weight of authority a voluntary dismissal by the plaintiff is prima facie evidence of want of probable cause;**63** but not conclusive.**64** The fact that there was a verdict for the defendant (the present plaintiff) in the action complained of is not prima facie evidence that the action was without probable cause, nor is it such evidence of want of probable cause as to render slight additional evidence on that point sufficient.**65** The suit having been prosecuted by an assignee for collection, he may be asked if the dismissal was at request of the assignor now defendant.**66** An offer to compromise is not evidence of want of probable cause.**67** In malicious prosecution of attachment, want of probable cause is not a necessary inference from payment of the debt,**68** but it does follow where a satisfaction by conveyance has been agreed, on and a conveyance made and delivered lacking only a stamp.**69** Admitting the nonexistence of insanity does not amount to proof of want of probable cause for an inquest of sanity.**60** The finding of the arresting court that an alleged absconding debtor had no intention to depart is admissible,**61** but what were the debtor's real intentions is immaterial if not known to an arresting creditor,**62** and is prejudicially admitted if of sympathetic tendency.**63** Where damages are counterclaimed for wrongful attachment, evidence why the plaintiff's demand was refused will be admitted if bearing on the propriety of suing out attachment.**64** If there was a judgment for the plaintiff (the present defendant) in the action complained of, it is conclusive evidence of probable cause until reversed or set aside,**65** or even though reversed on appeal,**66** unless it appears that it was procured by fraud or perjury, or other unfair means,**67** or that there was no opportunity to defend.**68**

A defendant who settles a suit voluntarily, instead of allowing it to proceed to a determination by the court, cannot maintain an action for the institution of the suit as malicious and without probable cause; he is estopped from claiming that it was without probable cause.**69** But this does not apply where the settlement is made under dures. The payment of money under protest to procure release from arrest in a civil action is paid under dures, and not voluntarily, and does not estop the defendant from afterwards bringing an action for malicious prosecution and arrest, and recovering the money so paid in such action.**60** The 5B, 498 MALicious PROSECTION, ETC. SS 5C. 4 Cur. Law. . . same is true where a settlement or payment is made under duress of goods, to procure the release of goods from an unwarranted attachment.${}^{
ef{m1}}$

Whether or not there was probable cause, the facts being undisputed, is purely a question of law for the court;${}^{
ef{m2}}$ but he who procures special interrogatories going to this question cannot complain of its submission.${}^{
ef{m3}}$

(SS 5) _C. In case of abuse of process probable cause is not in the same sense material.${}^{
ef{m4}}$_ Hence the fact that there was probable cause for a civil action, as where it was brought for a debt really due, does not prevent the defendant therein from maintaining an action for malicious abuse of process in such action.${}^{
ef{m5}}$

SS 6. _Malice.${}^{
ef{m6}}$_--It is also necessary, in order to maintain an action for malicious prosecution, that the plaintiff shall show that the defendant instituted the prosecution, or caused it to be instituted, maliciously,--"that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice.${}^{
ef{m7}}$\_ The action cannot be maintained, although it may appear that there was no probable cause for the prosecution, unless it also appears that it was instituted maliciously;${}^{
ef{m8}}$ and the burden of proving malice, or of proving facts from which malice may be inferred, is on the plaintiff.${}^{
ef{m9}}$ If there are several defendants, malice must be brought to each.${}^{
ef{m0}}$

Malice may be inferred, and according to the better opinion it is to be presumed, in the absence of proof to the contrary, from want of reasonable and probable cause;${}^{
ef{m1}}$ but the want of probable cause does not raise a conclusive implication of malice as a matter of law. The inference is one of fact which may be rebutted by circumstances showing that there was in fact no malice.${}^{
ef{m3}}$ "If probo able cause and malice are both present, there can be no recovery; if they are both absent, there can be none. In this class of actions, it is only where malice is present and probable cause is absent that there can be a recovery."?sa It is not so readily found as between parties unacquainted," or where due investigation was first made."85 It is presumed86 by some courts conclusively87 to be malicious if done to coerce compliance with a civil demand. The relations between the parties may be shown if not too remote.85 Motive may appear from the fact that defendants were also offenders in the same kind of crimes whereof plaintiff was accused,"87 and there being a conspiracy the letters and declarations of co-conspirators with defendant may be admitted as in other cases,90 though the particular one of the authors be not identified91 or it was uttered before the conspiracy was formed."92 Business disagreements93 or plaintiff's engagement in a competitive business may bear on malice.94 Conversations with the now plaintiff at or before prosecution are admissible on good faith.95 Mere delay in lodging complaint is not conclusive of malice.95 Where plaintiff was arrested for forcibly defending possession of another's land it does not tend to prove malice that the owner had other land more suitable to his purpose.97

The malice necessary to support an action for malicious prosecution is malice in fact, as distinguished from the malice in law which is established by mere legal presumption from proof of certain facts,98 as the malice presumed as a matter of law from the publication of a libel,99 but it is not necessary to prove "express malice," in the popular signification of the term, as that the defendant was prompted by malevidence, or acted from ill-will, resentment, or hatred towards the defendant. It is sufficient to prove malice in fact in its enlarged legal sense, by which is meant the state of mind of a person who willfully and purposely does an act to the injury of another, knowing at the time that it is unlawful.' Good faith is such freedom from partiality and prejudice as can fairly be expected from an ordinarily prudent man acting without malice.2

Whether the defendant acted maliciously is a question of fact for the jury,' but it is for the court to instruct the jury as to the kind of malice which is necessary and sufficient.4 Malice is for the court where there is no evidence but an acquittal;' good faith being there presumed.'

_In case of civil suits_ the malice necessary to sustain an action for malicious prosecution need not necessarily be ill-will; but it may be any other unjustifiable or wrongful motive.7 There is malice, as well as want of probable cause, where an action is brought or process caused to be issued with knowledge that there is no sufficient cause, of without an honest belief that there is sufficient cause.8

Malice may be inferred from the want of probable cause,8 but it does not necessarily follow as a matter of law. The inference is one of fact, which may be rebutted by other evidence showing good faith, and the question, therefore, is for the jury under all the circumstances.10 An offer of compromise does not show malice.11 Anything showing knowledge of baselessness of a demand is admissible to show malice in suing thereon.11 An admission that insanity did not exist in fact is not an admission that probable cause for insanity proceedings did not exist or prima facie evidence that it did not exist and that there was malice.13 Whether there was malice is a question of fact for the jury.14

Footnote 20 4 Cur. Law. MALICIOUS PROSCUTION, ETC. SS 7. 501

but also for the purpose of showing probable cause,\[16\] that he submitted to disinterested\[17\] private counsel, being a regularly admitted attorney or counsellor at law,\[18\] of good standing,\[19\] a full and fair statement of all the facts which he knew were capable of proof, or believed to be so, and acted in good faith on his advice in instituting the prosecution; and if he shows this, he is not liable, although it may appear that the facts did not warrant the advice and the prosecution.\[20\] And for the same purpose, and with like effect, he may show that he acted in good faith on the advice of the prosecuting attorney, after submitting to him a full and fair statement of the facts.\[21\] Where probable cause involves no question of fact, advice of counsel is immaterial except on the question of malice.\[22\]

But proof that the defendant acted on the advice of counsel is not conclusive. On the contrary, it is no defense at all if it appears that he did not seek and act upon the advice in good faith, but merely as a cover for the prosecution, or that his statement of the facts to the counsel, upon which the advice was based, was unfair and partial, and inconsistent with an honest purpose.\[23\] Advice of counsel is no

**16. But see Vinal v. Core, 18 W. Va. 1:**

defense that he acted on the advice of counsel. Terre Haute & L. R. Co. v. Mason, 148

1.078. In Kentucky advice and good faith in acting thereon are a complete defense. "Tandy v. Riley (Ky.) 80 S. V. 776. "Z1. Wenger v. Phillips, 195 Pa. 214, 78

18. Otmstead v. Partridge, 16 Gray \[Mass.\]

381: Stanton v. Hart, 27 Mich. S.33; Murphy v. Larson, 71 Ill. 172; Burgett v. Burgett, 42

19. This qualification is made In some states. Murphy v. Larson, 77 Ill. 172: Roy v. Glongs, Ill. 112 Ill. 656: Schatten v. Holm-

01. Klaq 149 Ill. 644; Stubbs v. Mulholamid

31.0. 67 S. W. 650. Compare Horne v. Sulivan, 83 Ill. 30. "Orcgan v. Mackintosh, 2 Barn", & Orgena Gemma Banking Co., 31 Or. 503; Cr. 693; Walter v. Sample, 25 Pa. 275, Chase's Cas. 101, Paige's Cas. 368: Barbint v. Tammany, 168 Pa. 546, 38 Am. St. Rep. 853; Blunt v. Little, 3 Mason (U. S.) 102; Stanton v. Goshorn (C. A.) 94 F. 52; Willie Noyes, 12 Pick. (Mass.) 327; Bartlett v. Brown, 6 R. I. 37, 15 Am. Dec. 675; Gold-

31.1. 487, 85 Am. Dec. 373; Wicker v. Hotehkiss, 62 Ill. 101, 174 Am. Rep. 75: Griffin v. Chubb, 7 Tex. 603, 68 Am. Dec. 86; Paddock v. Watts, 116 Ind. 146, 9 Am. St. Rep. 832; Lamb v. Bicknell, 128 Ind. 210, 22 Am. St. Step. 576; Johnson v. Miller, 69

32.1. 58 Am. Rep. 231; Jackson v. Linston, 47 Kan. 396, 47 Am. St. Rep. 300; O'Neal v. McKinna, 116 Ala. 606; Huntington v. Gault, 87 Mich. 144; Tryon v. Pin-

33.2. 57. 67 Am. St. Rep. 398, 47 Am. St. Rep. 399, 47 Am. St. Rep. 400; O'Neal v. McKinna, 116 Ala. 606; Huntington v. Gault, 87 Mich. 144; Tryon v. Pin-

34.3. 57. 67 Am. St. Rep. 398, 47 Am. St. Rep. 398, 47 Am. St. Rep. 414; Tryon v. Pin-

35.1. 67. 68. 77. 69. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 80. 81. 83. 87. 89. 81. 84. 89. 82. 85. 87. 89. 80. 81. 84. 89. 83. 87. 88. 89. 81. 85. 89. 80. 82. 81. 86. 89. 81. 87. 89. 82. 83. 87. 89. 80. 83. 84. 89. 84. 88. 85. 89. 81.

defense if it appears that the defendant did not believe the plaintiff to be guilty.\[34\] It is no protection against the abuse of criminal process to coerce civil demands without desire to vindicate law.\[25\] Gratuitous advice may be a protection.\[26\] It is not necessary to show that the counsel was honest in giving the advice\[27\] but if the prosecutor knew that such was not the fact the advice would avail nothing,\[28\] and if an interested attorney advises contrary to what other reputable disinterested ones have advised it is no protection.\[29\]

According to the weight of authority, advice of a magistrate as to the existence of probable cause, at least if he is not also a regularly admitted attorney or counsillor at law, is not on the same footing as advice of private counsel and of the prosecuting attorney, for magistrates are not supposed to be learned in the law, and it is no part of their duty to give such advice; and such advice, therefore, is not admissible as showing or tending to show probable cause for the prosecution,\[20\] although it would seem to be admissible as tending to show absence of malice.\[31\] It has been held, however, that this rule does not apply where the magistrate is also a regularly admitted attorney at law.\[32\]

Truthfulness of disclosure to attorney,\[33\] and whether advice was honestly relied on by prosecutor is for the jury.\[34\]

_In civil suits._--In an action for malicious prosecution of a civil action or abuse of civil process, the defendant may show, as in an action for a malicious criminal prosecution,\[35\] that he acted upon the advice of disinterested counsel, and thus rebut evidence of malice and want of probable cause, provided he acted in good faith and after a full disclosure of all the facts,\[36\] but not otherwise.\[37\] Advice of counsel who was known to be personally interested is not within this rule.\[38\] Advice of counsel

son v. Miller, 69 Iowa, 662, 58 Am. Rep. 31; 597: Finn v. Frink, 84 Me. 261, 80 Am. St. Holliday v. Holliday, 123 Cal. 26; Hess v. Oregon German Banking Co., 31 Or. 503. But since the law does not exempt a prosecutor from liability where he does not exempt a prosecutor from liability where he does not exempt a prosecutor, then with reasonable caution and prudence, other courts have held the contrary. Sappington v. Watson, 59 Mo. 85; Hill v. Palm, 38 Mo. 13; Cooper v. Utterbach, 27 Md. 282: An. rens & Ott Mfg. Co. v. Hoeher \[Ky.\] 51 S. W. 194: Stubbs v. Mulholland \[Mo.\] 67 S. W. 650. The burden of showing that the statement of facts submitted to counsel was full and fair is on the defendant. Williams v. Casebeber, 126 Cal. 77. Whether there was a full and fair disclosure of facts, and whether the advice of counsel was obtained and acted on in good faith, are questions for the jury. Anderson v. Friend, 71 III. 476: Connerv v. Manning, 163 Mass, 44; Smith v. Walter, 125 Pa. 453: Thompson v. Price, 100 Mich. 558; Seabridge v. McAdam, 108 Cal. 845. 24. Hewlett v. Cruthelcy, 5 Tautm. 277: Wills v. Noyes, 12 Pick. \[Mass.\] 327: Vann v. McCreary, 77 Cal. 434: Johnson v. Miller, 82 Iowa, 693, 31 Am. St. Rep. 514, and other cases in the note preceedins. 25. !Rulison v. Collins \[Ind. T.\] 82 S. W. 748. 26. !Mack v. Sharp \[Mich.\] 101 N. W. 631. 27, 28. !Shea v. Cloquet Lumber Co. \[Minn.\] 100 N. W. 111. 29. !Adkin v. Pillen \[Mich.\] 100 N. W. 117. 30. Brobst v. Ruff, 100 Pa. 91, 45 Am. Rep. 583: Williams v. Vanneter, 8 Mo. 339, 41 Am. Doc. 644: Mauldin v. Ball, 104 Tenn.

may be considered as bearing on probable cause to sue out attachment if the liability is doubtful or is a question of law,\[39\] but it is immaterial where on incomplete disclosure counsel advised correctly.\[40\] Disclosure fully and fairly to counsel\[41\] and good faith in acting thereon are for the jury.\[42\]

8.8. Advice of a physician on insanity is admissible in disproof of malice and want of probable cause in instituting insanity proceedings\[43\] and it need not amount in law to probable cause to be admissible on malice.\[44\]

8.9. Damages.\[45\]--The liability is for the natural consequences only,\[46\] and if there be no actual or express malice\[47\] by way of compensation only,\[48\] which includes attorneys' fees and expenses,\[49\] loss of time,\[50\] loss of liberty and society of family,\[51\] mental anguish, pain and suffering of mind,\[52\] loss of social standing and good repute,\[53\] loss of employment\[54\] or injury to business\[55\] or credit.\[56\] Suffering and bad conditions while in custody are according to the better supported opinion recoverable;\[57\] but in some states it is said that bad jail conditions ought not to be attributed to the defendant's act.\[58\] .While the mental suffering caused by knowledge of the helplessness or suffering of plaintiff's family is admissible as a consequential injury to him,\[59\] the injurious consequences to his family are not recoverable.\[50\] The injury to reputation will be lessened by the fact that before the prosecution plaintiff's repute was not good.\[51\] If there be a battery or personal injury, damages are recoverable for it in a different cause of action if at all.\[52\]

89, 40. 'Dorr Cattie Co. v. Des Moines \[App.\] 33 S, W. 303: Routh v. St. Louis Transit \[Lowa\] 98 N. W. 918. 41, 42. 'Harr v. Ward \[Ark.\] 84 S, W. 486. 424: Sheldon v. Carpenter, 4 N. Y. 487, 55 Am. Dec. 301; Rockwell v. Brown, to physician, the physician advised that plaintiff was insane. 'Grlswold v. Griswold, 143 Cal. 617, 77 P. 672. 45. 'Stoecker v. Nathanson \[Neb.\] 98 N. W. 461. 46. Not for all the results "no matter what happened." 'Liang v. Mitten, 185 Mass. 233, 70 N. E. 128. But error was cured by stating correct rule in another paragraph. Id. General consequences enumerated ed. Hamilton v. Smith, 39 Mich. 222; Savill v. Roberts, 1 Ed. Raym. 374; Lavender v. Hudgens, 32 Ark. 763. 47. See post, this section, Exemplary damages.

48. Goodbar v. Lindsley, 51 Ark. 380, 14 Am. St. Rep. 54; Barnett v. Reed, 51 Pa. 190, 88 Am. Dec. 574, and other cases cited note 93 Am. St. Rep. 465. 49. Kolka v. Jones, 6 N. D. 461, 66 Am. St. Rep. 615; Hamilton v. Smith, 39 Mich. 222; Marshall v. Benter, 17 Ala. 832; Ziegler V. Powell, 54 Ind. 173; Krug v. Ward, 77 Ill. 603: Landa v. Obert, 45 Tex. 539; Gregory v. Chambers, 78 Mo. 294: Magner v. Renkk, 65 W. 364. Also money paid sureties on bond. Wheeler v. Hanson, 161 Mass. 370, 42 Am. St. Rep. 408. Not including taxable costs. Classon v. Staples, 42 Vic. 209, 1 Am. Rep. 316; Whiting v. Johnson, 6 Gray \[Mass.\] 246. Not unnecessary expense. Easith v. Bank of Stockton, 66 Cal. 123, 65 Am. Rep. 77. 50. Hamilton v. Smith, 39 Mich. 222. 51. Peath v. Braunsdorff, 40 Wis. 107; Hamilton v. Smith, 39 Mich. 222. 52. Lunsford v. Dietrich, 86 Ala. 250, 11 Am. St. Rep. 37; Wheeler v. Hanson, 161 Mass. 370, 42 Am. St. Rep. 408; Hamilton v. Smith, 39 Mich. 223; Parkhurst v. Masteller, 57 Iowa, 474; McWilliams v. Hoban, 42 Md. 56; 'Dwyer v. St. Louis Transit Co. \[Mo.\] In the case of civil suits maliciously prosecuted or process abused, the rule that natural consequences measure the damages will be varied according to the nature and action of the suit or writ." Certain consequences follow in any case." From malicious and unwarranted attachment the law will presume some damage at least nominal." Says the Iowa court in a late case, the rule is that injuries to credit, character and business are too remote" and the rule is the same whether suit be brought on the bond or for malicious abuse of the writ." This, however, would be entirely inconsistent with those precedents which hold that attachment may be an injury to credit or reputation as well as to property." Attorneys' fees and expenses of attending court are proper elements." In case of abusive garnishment, losses due to want of the garnished money" and loss of time while unable to find employment after a discharge," are not natural consequences. Every injury to credit, business or feelings may be recovered for malicious ne exeat."

Loss from inability to sell property or the value of the use of it during the time possession was withheld is a proper element." In the absence of malice or oppression, the difference in value of property when taken and at any subsequent time which plaintiff may elect before action brought is the measure."

Exemplary damages may be recovered as in other cases." Pecuniary circumstances of defendant may be considered where the statute permits recovery beyond actual damages." There should be actual personal malice or reckless disregard of plaintiff's rights." And of course there must be actual damages," but no special plea is necessary if malice be charged and proved." Express malice appears from arrest without cause." The general rule that the measure of exemplary damages varies with the tort feasor's wealth applies." To mitigate or defeat exemplary damages anything disproving express malice is proper." A charge on exemplary damages must not include punitive damages in those states that recognize a distinction."

Am. Rep. 169; O'Brien v. Frazler, 47 N. J. man v. Allen, 79 Ga. 637, 11 Am. St. Rep. 449 Law, 349, 54 Am. Rep. 170; Fitzgibbon v. Brown, 43 Me. 169; Bacon v. Towne, 4 Cush. 174; Davis v. Seeley, 91 Iowa, 583, 51 Am. St. Rep. 356; Spalds v. Barrett, 5711, 289, 11 Am. Rep. 10; Barnett v. Reed, 51 Pa. 190, 88 Am. Soc. 574, and cases cited note 93 Am. St. Rep. 465.

Contra, Wilson v. Bowen, 64 Mich. 133, 76 Coleman v, Allen, 79 Ga. 637, 11 Am. St. Rep. 499.

77. Ul Dwyer v. St. Louis Transit Co. \[Mo. App.\] 83 S. W. 203; Rosenkrans v. Barker, 115 Ill. 331, 56 Am. Rep. 169; Burnett v. Reed, 51 Pa. 191, and other cases cited in note 24 Am. St. Rep. 164.

01. Schippel v. Norton, 38 Kan. 567, and see Damages, 3 Curr. 597.

01. Davis v. Seeley, 91 Iowa, 583, 51 Am. St. Rep. 356.

01. !D Dwyer v. St. Louis Transit Co. \[Mo. App.\] 83 S. W. 303.

01. See the rule stated in Damages, 3 Curr. 197, and see note 26 Am. St. Rep. 164.

01. Bradner v. Faulkner, 93 N. Y. 515; Carter v. Sutherland, 52 Mich. 597.

01. Charge In addition to compensation that exemplary damages to a certain sum to punish defendant might be awarded held not to admit of punitive damages. !Cooper v. Soyco, 104 Mo. App. 414, 79 S. W. 751.

4Cur. Law. MALICIOUS PROSECTION, ETC. SS 10. 505

A few illustrative cases on _adequate and excessive damages_ have been collected.\*4

SS 10. _General matters of practice and pleading._\[85\]--The venue of such an action is transitory unless there be a statute localizing it in the county where it arose.\[86\] Where the distinction in forms of action is preserved, the proper remedy is case and not trespass.\[87\] Under the codes, the pleadings must exhibit the real nature of the action and not incorporate in the same count allegations which introduce some other cause such as false imprisonment.\[88\] In most states it is now proper to join counts for malicious prosecution and false imprisonment, slander and other causes resting in the one transaction.\[89\] If two or more persons have a cause of action, they should bring separate actions and not joint.\[90\] Defendants should be impleaded as in other torts.\[81\] Allegations of conspiracy do not prevent dismissal as to all but one defendant.\[92\] All the material elements of the cause of action must be well pleaded,\[93\] and issue joined thereon or on properly pleaded matter of defense.\[94\] If defendant tenders issue that he made a full disclosure to counsel and acted on advice and in good faith, it must be traversed by reply.\[95\] The preliminary practice on the pleadings,\[96\] trial and adduction and reception of evidence,\[97\] rules of evidence,\[98\] argument of counsel,\[99\] instructions,\[100\] verdicts and findings,\[101\] are

84. $5,000 not excessive to woman prose-cuted for adultery as culmination of contin-ueled persection. Bigelow v. Sickles, 80 Wis. V. Cleveland EL R. Co., 4 Ohio C. C. \[N. S.\] 89, $7 Am. St. Rep. 25. $25,000 not excessive where plaintiff 55 years old and earning $4,500 a year paid $5,000 to counsel to prose-cured atopultal of embezzlement. \['Hawson v. Leggett, 97 App. Div, 416, 90 N. Y. S. 5. 5600 not excessive where old man was arrested and greatly humiliated, grieved and disturbed in mind, though confined but a few hours. $tChariton v. Markland \[Vwash.\] 78 P. Rep. 897. 132. $4,000 criticised as excessive. $3hea v. Cloguet Lumber Co. \[Minn.\] 100 N. W. 111. Consult generally Damages, 3 Curr. L. 997. 135. See 2 Curr. L. 770. 136. 13 Enc. Pl. & Pr. 420. 87. See note 93 Am. St. Rep. 469, and cases cited. 88. Pleading the fact of an arrest with the other facts does not introduce a cause of action for false imprisonment. \[Jones v. Louisville & N. R. Co. \[Ky.\] 82 S. W. 416. And see 13 Enc. Pl. & Pr. 423. 88. In Kentucky malicious prosecution cannot be joined with slander. $Tandy v. Riley \[Ky.\] 80 S. W. 776. Can be joined with false imprisonment. Haskins v. Ralston, 69 Mich. 63, 13 Am. St. Rep. 376. See 13 Enc. Pl. & Pr. 424. See generally Pleading, 2 Curr. L. 1178. 90. See cases cited note 93 Am. St. Rep. 469. 91. Page v. Citizens' Bank Co., 111 Ga. 13, 17 Am. St. Rep. 144. 92. 132. 133. 134. 135. See preceding sections. 11 is no objection that the complaint alleges what would have been the outcome of a successful prosecution. $T Ramsey v. Flavours \[Ark.\] 80 S. W. 147. 14. An allegation that .the former action was terminated by a noble prosecution and a denial thereof for want of knowledge raises the issue as to its termination. $TLieb-lang v. Cleveland EL. R. Co., 4 Ohio C. C. \[N. S.\] 516. In an action for malicious prosecution, the plaintiff is put upon proof of evidence,\[97\] rules of evidence,\[98\] argument of counsel,\[99\] instructions,\[100\] verdicts and findings,\[101\] are

01. $5,000 not excessive to woman prose-cuted for adultery as culmination of contin-ueled persection. Bigelow v. Sickles, 80 Wis. V. Cleveland EL. R. Co., 4 Ohio C. C. \[N. S.\] 89, $7 Am. St. Rep. 25. $25,000 not excessive where plaintiff 55 years old and earning $4,500 a year paid $5,000 to counsel to prose-cured atopultal of embezzlement. \['Hawson v. Leggett, 97 App. Div, 416, 90 N. Y. S. 5. 5600 not excessive where old man was arrested and greatly humiliated, grieved and disturbed in mind, though confined but a few hours. $tChariton v. Markland \[Vwash.\] 78 P. Rep. 897. 132. $4,000 criticised as excessive. $3hea v. Cloguet Lumber Co. \[Minn.

subject to general rules which are pertinent to other topics. Only a few illustrative late cases have been cited.${}^{102}$ The conclusiveness of a judgment affirmed adverse to plaintiff precludes him from suing the clerk of court as a conspirator to withhold papers necessary to appeal successfully.${}^{103}$

SS 11. _Malicious prosecution as a crime_ is recognized in Texas${}^{104}$ and perhaps other states.

**MANDAMUS.**

**SS 1. Nature and Office of Remedy In General (506). Other Adequate Remedy (509).**

**SS 2. Quties and Rights Enforceable by Handamus (509).**

**SS 11.** _Malicious prosecution as a crime_ is recognized in Texas${}^{104}$ and perhaps other states.

**MANDAMUS.**

**SS 1.** \_Nature and Office of Remedy In General (506). Other Adequate Remedy (509).\*\*

**SS 2.** \_Dutse and Rights Enforceable by Handamus (509).\*\*

**SS 3.** \_Judicial Procedure and Process (509).\*\*

**SS 4.** _Pertition or Affavito_ (523).\*\*

**SS 5.** _Alternative Writ (523)._

**SS 6.** _Denumerer to Petition or Writ; Anwver or Return; Subsequent Pleadings (524)._

**SS 7.** _Pertial, Hearing and Judgment (526)._

**SS 8.** _Pertial, Hearing and Judgment (526)._

**SS 9.** _Trial and Hearing (526)._

**SS 10.** _Pertimory Writ (527)._

**SS 11.** _Performance (527)._

**SS 12.** _Review (527)._

**SS 2.** _Jurisdiction (520)._

**SS 1.** \_Nature and office of remedy in general.${}^{1}$--\_Mandamus is an 'extraordinary${}^{2}$ remedy in the nature of a civil action at law,${}^{3}$ to compel performance of a duty imposed by law.${}^{4}$ The writ may issue to enforce a continuing duty, as well as to direct performance of specific acts.${}^{5}$ But it merely directs performance; the court which issues it does not acquire the custody or care of property involved.${}^{6}$

**SMandamus is the common-law remedy to compel action; injunction is the equitable remedy to prevent action.${}^{7}$ But the remedies of 'mandamus and mandatory injunction are closely analogous.${}^{8}$**

**abandoned or taken up as such. ?Kueney**

**v. Uhl \[lowa\] 98 N. W. 602. More specific**

**share that there must be want of probable cause besides malice held needless. ?Rulison**

**v. Collins \[Ind. T.\] 82 S. W. 748. Charge**

\*\*on inference of malice, etc., held not contorn 4 Cur. Law. **MANDAMUS SS 1.** 507

Mandamus was originally a prerogative writ, and it does not issue now as a matter of legal right, but at the discretion of the court, though this discretion is to be exercised in accordance with the rules that have been established concerning the remedy." The writ will not issue when it would work injustice,10 or introduce confusion or disorder,11 or aid illegal acts or business,12 or compel a respondent to violate the law.13 Nor will a court ordinarily command the doing of an act which another court of competent jurisdiction has enjoined, and thereby subject the defendant to punishment for contempt.14 But the mere fact that the act, performance of which is sought to be compelled, has been enjoined by another court is no defense to an application for mandamus, if it appears conclusively from the record, or from the conceded facts of the case, that the court which issued the injunction order had no power to enjoin the act in question.18

The writ will not be issued unless it appears that the relator has a clear legal right thereto,16 and that the act sought to be enforced is one of absolute obligation

injunction will not lie against an officer to **11.** State v. Board of Com'rs, 162 Ind. compel the performance of a duty which is 680, 70 N. E. 372.

in its nature judicial, but only when the **12.** Mandamus will not lie to compel in- duty is ministerial. Bennett v. Richards stimulation of a telephone in a house ad- \[Ky.\] 83 S. W. 154. Under the Kentucky United to be used as a bawdy house. God-Code, mandamus will not lie to compel a win v. Carolina Tel. & T. Co., 136 N. C. 258, private corporation engaged in the business 48 S. E. 636.

of supplying water to the public, to furnish **13.** Mandamus to compel a township comparator to a person. Wiemer v. Louisville mittee to put a road and causeway in repair **13.** State v. Board of Com'rs, 162 Ind. 580, 70 N. E. 373.

To N. E. 375. See, also, as to "discretion," a crime. Justice v. Gloucester County \[N. Gay v. Tarrance \[Cal.\] 78 P. 540, 541, 542.

A ruling on an application for the writ **14.** A board of county commissioners will will be reversed on appeal only when a clear **15.** A house of discretion is shown. Granting of **15.** A financial aid tax when amalgamous to compel mayor and chief of **15.** A counter has enjoined such action, espe- police to use their summary powers to pre- **15.** A family where the personnel of the board has **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial aid tax is a **15.** A financial tax is a \*\*15.

508

MANDAMUS SS 1.

4 Cur. Law.

on the part of the person or officer sought to be coerced.17 Conditions precedent to the vesting of relator's legal right must have been performed,18 and there must have been some actual default in respect to the duty of the respondent.19 But an objection that mandamus proceedings were prematurely brought is waived by the parties appearing and participating in the proceedings.20 The right to the remedy rests upon the legal rights of the relator and the legal duties of the respondent; equities between the parties are not to be considered.21

It is ordinarily held that the writ will not be granted unless its issuance will serve some useful legal purpose,22 and be of some benefit to the relator;23 but when it appears that a legal duty has not been performed, there is no abuse of illegal and vold. Custer County Bank v. \[ng in issue. Territory v. Socarro \[N. M.\] Custer County \[S. D.\] 100 N. W. 424. Manadama-76 P. 283. A. civil service clerk who has muh to compel an appropriation of money for been taken off the suspended list, and has a school building by common counculs was become entitled to reinstatement, a vacancy denied where the requisition was made in having occurred, need not demand reinstating-ambiguous form by the board of education, ment before bringing mandamus therefor. and was misunderstood by the common coun- People v. Grout, 45 Misc. 47, 90 N. X. S. 861. cells. Commonwealth v. Pittsburg, 209 Pa. A petition for mandamus to compel collecletion of taxes from a corporation illegally ex-question raised as to a teacher's right to un- empted will not be dismissed for lack of a paid wages, and no authority by the board demand and refusal, since the obligation to to issue a warrant on the treasure was collect such taxes existed without a demand. shown, mandamus would not lie to compel a director to sign such warrant. Davis v. \[8. C.\] 46 S. E. 539. Jewett \[Kan.\] 77 P. 704. To entitle a relator to a mandamus he must show himself legal-ly entitled to some right properly the sub- two state Republican conventions; a suit in ject of the writ, that it is legally demand-able from the respondent, and that respond- the proper remedy. State v. Houser \[VWs.\] ent has power to perform the required duty. People v. Greene, 95 App. Div. 397, 88 N. X. 8. 601.

17. Writ will not lie to compel a county set up as against a plain legal right. Davis auditor to bring up and enter on a current v. Miller Signal Co., 105 Ill. App. 657. Manadminquent tax duplicate delinguent personal taxes omitted by his predecessors, such duty to continue an injunction restraining a corporation from making a contract unless it law. State v. Smith \[Ohio\] 72 N. E. 300. An act created a special provisional fund and ordered the treasure to transfer to it stubs considerations. Fletcher & Sons v. Al-sums credited to certain other funds. Held, pema Circuit Judge \[Mich.\] 99 N. W. 748. mandamus would not lie to compel the treasuretor to transfer to the provisional fund any other money than those in the funds designed in the act. Regents of Agribel- tural College v. Vaughn. \[N. M.\] 78 P. 51. Mandamus will not issue to compel one to arrest. or cause the arrest of, one charged with violation of gambling laws, without a complaint or warrant, unless the violation of law was in the presence of the person to be coerced; since arrest for a misdemeanor without a warrant is not authorized by law. State v. Williams \[Or.\] 77 P. 955. Whare a where it would prove unavalling or where the act sought to be enforced is legally im-treasuretor to transmit to the clerk of the circuit court funds for payment of jurors granted to compel a board of elections to and witnesses falls to show that the comp-terdier's endorsement of the requisition has been countersigned by the governor, the alternative writ of mandamus will be denied. State v. Knott \[Fla.\] 37 S. 303. 87.

01. A petition seeking two kinds of re- l discretion in issuing the writ, though it is doubtful if it will result in any substantial benefit.24

\_Other adequate remedy.25--\_Mandamus will not lie when there is any other plain, speedy, specific and adequate remedy at law.26 But the fact that the party applying for the writ might have redress in a court of equity does not affect the right to mandamus.27

\_"Laches" or delay.28--\_Mandamus, like other remedies, may be barred by delay, but mere lapse of time, without resulting prejudice to the defendants, is not sufficient to bar the remedy,29 if the right or claim sought to be enforced is not barred by limitations.20

**SS 2.**\_Duties and rights enforceable by mandamus. A. Judicial procedure and process.31--\_While mandamus will not issue to control discretion or revise judicial action,32 it is the proper remedy to compel a court to proceed and try a

**34.** State v. Boyden \[S. D.\] 100 N. W. "poolroom" maintained In violation of the 763. The fact that colored children had been gambling laws, the existence of the remedy excluded from a certain public school so long that a writ to compel their admission held not to preclude the right of a mandamus would do them no good is no excuse for compel the mayor and chief of police to denying it, they having a legal right to attach such school. People v. Alton, 209 III. 461, 70 N. E. 640. 25. See 2 Ctrr. L. 773. 27. Baltimore University v. Colton, 98 Md. 26. 28. 57. A. 14. 1120; State v. Sommerville \[La.\] 36 So. 104. A clerk of the circuit court has a plain, adequate and complete remedy, under Code 1896, $ 13, by which to recover on a claim against the county, disallowed by the commissioners, and mandamus will not lie to compel payment. Searchrough v. Watson \[Ala.\] 37 So. 281. Mandamus will not lie to compel a board of education to admit a pupil to a school as a free pupil, where the law provides a speedy and adequate remedy by appeal to the county superindented of schools. Preston v. Board of Education of Independent School Dist. \[Iowa\] 100 N. W. 54. A school teacher having a right of action on contract to collect salary, may not have mandamus to compel a director to sign a warrant on the treasure. Davis v. Jewett \[Kan.\] 77 P. 704. Before an officer dismissed from the police force by judgment of the police board can obtain a mandamus to compel the board to reinstate him, he must show he exhausted his legal remedies before the board by applying for a new trial. State v. Board of Police Com'rs \[La.\] 37 So. 16. \*\*Remedy at law held inadequate: A law student. wrongfully expelled without notice, and asking mandamus to compel restate- to the bringing of the action. Milster v. Sartamburg \[S. C\] 46 B. E. 539. \*\*Baltimore University v. Colton, 98 Md. 623, 57 A. 14. A school teacher may compel a school board to draw a warrant for his salary, the action on contract not affording an adequate remedy, since after getting judgment he might still be compelled to have mandamus to get the warrant signed. State v. McQuade \[Wash.\] 79 P. 207. Where the county auditor, after executing a warrant for a claim, prevented the money thereon by a forged indorsement, the fact that an action on the official bond of the county treasurement was available, did not bar the claimant's right to mandamus to compel issuance of a warrant to it. American Bridge Co. v. Wheeler, 35 Vash. 40. 76 P. 534. Where several prosecutions had failed to result in the closing of a court of common pleas from the judgment 510

MANDAMUS SS 3A. 4 Cur. Law.

cause when it refuses to do so upon the erroneous decision that it has no jurisdiction," or to set aside a wholly void order.24 Purely ministerial duties35 of courts or judges imposed by law34 may be controlled by mandamus. The duty of the court must be clearly apparent,37 and the occasion fully mature.38

rendered on the verdict, the probate judge -- motion to vacate the order. Cahill v. Su-cannot be required to order the railroad -- perior Court \[CaL\] 78 P. 467. The writ was company to pay the amount of the verdict -- issued where the Federal court stayed pro-into court or to handowners pending proceed-ings in error. State v. Walter, 76 Ohio St. -- termined by the state court in which also accounts --, 71 N. E. 288. Court having denied a motion had been brought. The Federal judge -- into that plaintiff should not be allowed to -- was directed to proceed, since the party was prosecute an action because he had not paid -- entitled to maintain actions in both Federal -- the costs of other actions, mandamus would -- and state courts. Barber Asphal Pav. Co. v. not lie to compel the court to reverse its -- Morris IC. C. A. 132 F. 945. Mandamus to judgment and grant the motion. Ex parte Colley -- 1Aa. 37 S. 282. An action to remove -- case will not lie at the instance of a plain-aheriff was prosecuted on the relation of --, when it would be the court's duty upon the attorney general and motion was made -- such trial to direct verdict for defendants. to suspend the sheriff pending the action. -- Hatch v. Trazer -- \[Mich.\] 101 N. W. 228. The district court dismissed the action and -- 3A. A purchaser of land, after a decree motion. Heid, a judicial determination of a -- quetting title -- thereto, may have mandamus -- matter properly before it, not revlewable by -- to compel vacation of an order setting aside -- mandamus. State v. District Ct. of Fourth -- such decrere, granted without notice to or -- Jueltical Dist. \[N. D.\] 100 N. W. 248. Manda-knowledge of such purchaser. Vincent v. -- runs will not lie to compel vacation of an -- Bernie Circuit Judge \[Mich.\] 102 N. W. 369. order striking a stipulation of discontinuum- -- since from the files, since plaintiff was in -- and not by writ -- error. Gutierrez v. Terri-the cause or pay costs. Thompson v. Bay -- Circuit Judge \[Mich.\] 101 N. W. 61. Manda-superedas to stay operation of a decree -- runs will not -- lie to compel a judge to trans- -- for a cause from the law to the equity -- duty, and the remedy for refusal to fix it is -- locked; the remedy for refusal to go so is by mandamus. McBride v. Whitaker \[Neb.\] by appeal. Horton v. Gilli \[Lind. T.\] 82 S. W. W. 847. Where an administrator ap- -- beated from an order of a probate judge -- re- --, 3A. A. 132 F. 945. -- Revlew, commenting on the case last cited -- penal bond in an unwarranted sum, the ad- -- "Where a court improperly refuses to act -- or unreasonably delays its action, mandamus --, 71 N. W. 847. -- Handamus is, how- --, 3A. A. 132 F. 945. -- Revlew, commenting on the case last cited -- penal bond in an unwarranted sum, the ad- -- "Where a court improperly refuses to act -- or unreasonably delays its action, mandamus --, 72 N. W. 847. -- In this paper, the author is not -- beated from an order of a probate judge -- to accept a proper bond, --, 3A. A. 132 F. 945. -- Revlew, commenting on the case last cited --, 73 N. W. 847. -- A. 132 F. 945. -- Revlew, commenting on the case last cited -- penal bond in an unwarranted sum, the ad- -- "Where a court improperly refuses to act -- or unreasonably delays its action, mandamus --, 73 N.

4 Cur. Law. **MADamus $$$ 2A**.

Mandamus will not lie where there is another adequate remedy,30 as by certiorari,30 appeal or writ of error;31 nor will the writ issue where the court from which it is sought is given no revisory control over that against which it is asked;32 but the writ will issue to compel a trial court to obey the mandate of an appellate court.43

36. It is the duty of the clerk of the | the writ to a court of appeals in cases where Portland municipal court to issue bench | an appeal or writ of error lies. Smith v. warrants (city charter, $ 331); mandamus | Conner \[Tex.\] $4 $8. W. $15. An order of the | will not issue to compel the judge to issue | such warrants. State v. Williams \[Or.\] 77 | a guardian to account is an appelaable order and hence not revlewable on mandamus. and clerk of court to deliver a venite facias | Hopper v. Stowe \[Mich.\] 100 N. W. 268. for the summoning of Jurors to the county |hardim, under a law making it the duty of |hardim to summon jurors for the court |in question, said judge having directed his | Cervit v. Wolcott \[Mich.\] 99 | clerk to deliver such venite to the city | superintendent of police. Dickson v. Phelan | 39 N. W. 405. Marandamus will not lie to compel a trial judge to include in a |linlin Circuit Judge \[Mich.\] 99 N. W. 1. bill of exceptions an afflavit made on information and belief, since an afflavit so | make cannot be considered. Gay v. Torrance | \[Cal.\] 78 P. 540. Mandamus will not lie to compel a district judge to make an order |staying execution pending an appeal, where the record has not been filed in the superpure court within 90 days as required by law. Youngberg v. Smart \[Kan.\] 78 P. 422. On application to a judge to certify his disqualification to preside in a given case, his determination of his qualifications is not discretionary; his action, if erroneous, may be controlled by mandamus. Application held not to show disqualification, and writ denied. State v. Pitts, 139 Ala. 152, 36 so. 20. **37.** An information for uttering a forged |check being quashed, the prosecuting attorney sworse out a complaint for obtaining money by false pretenses, and had accused | bound over for trial on that charge. Held, prosecuting attorney was not entitled to |mandamus to compel the judge to vacate the order quashing the first information, after acquiescing in such order, the motion for the order to vacate being made orally in the absence of accused. Louisell v. Benzie Ciruit Judge \[Mich.\] 102 N. W. 371. Mandamus to compel a judge to dissolve an injunction restraining the building of a drain which would result in injury to plaintiff's land denied, though it appeared that plaintiff was not the owner in free but held a contract only. Emery v. Ionia Circuit Judge \[Mich.\] 101 N. W. 801. **38.** A writ of mandamus or certiorari will not be granted to review a motion to quash |contempt proceedings before a final determination therein. Toepel v. Donovan \[Mich.\] 102 N. W. 389. **39.** Mandamus will not lie to compel the circuit court of appeals to file conclusions of fact, since there is a remedy by motion to have the record returned with instructions to include such conclusions. Nowlin v. Hall | \[Tex.\] 79 S. W. 806. **40.** Where a district judge exceeded his jurisdiction in quashing a panel and discharging a jury, on motion of a prosecuting attorney, certiorari and not mandamus is the proper remedy to correct such improper action. Heitman v. Morgan \[Idaho\] 79 P. 225. **41.** Supreme court of Texas will not issue | \[Tex.\] 79 S. W. 806. **40.** Where a district judge exceeded his jurisdiction in quashing a panel and discharging a jury, on motion of a prosecuting attorney, certiorari and not mandamus is the proper remedy to correct such improper action. Heitman v. Morgan \[Idaho\] 79 P. 225. **41.** Supreme court of Texas will not issue | \[Tex.\] 79 S. W. 806. **40.** Where a district judge exceeded his jurisdiction in quashing a panel and discharging a jury, on motion of a prosecuting attorney, certiorari and not mandamus is the proper remedy to correct such improper action. Heitman v. Morgan \[Idaho\] 79 P. 225. **41.** Supreme court of Texas will not issue | \[Tex.\] 79 S. W. 806. **40.** Where a district judge exceeded his jurisdiction in quashing a panel and discharging a jury, on motion of a prosecuting attorney, certiorari and not mandamus is the proper remedy to correct such improper action. Heitman v. Morgan \[Idaho\] 79 P. 225. **41.** Supreme court of Texas will not issue | \[Tex.\] 79 S. W. 806. **42.** Where a district judge exceeded his jurisdiction in quashing a panel and discharging a jury, on motion of a prosecuting attorney, certiorari and not mandamus is the proper remedy to correct such improper action. Heitman v. Morgan \[Idaho\] 79 P. 225. **41.** Supreme court of Texas will not issue | \[Tex.\] 7 Under the Texas statute requiring a court of civil appeals to certify to the supreme court a question in the decision of which it fails to concur with the opinion of another court of appeals,\[44\] it is held that mandamus to compel such certification will not be granted where the decisions alleged to be in conflict are easily distinguishable,\[45\] or where the conflict is between a court of appeals and the supreme court, and not another court of appeals.\[46\]

A writ of supervisory control will not issue to review and annual an order holding a defendant guilty of contempt and directing his punishment, where it does not appear that the court acted in an arbitrary or unlawful manner.\[47\]

(SS 2) _B. Administrative and legislative functions of public officers.\[48\]_--The writ of mandamus lies only to enforce a purely ministerial duty and to protect a plain, admitted and unquestioned legal right which has been arbitrarily or without due warrant of law denied.\[49\] It never lies to interfere with a legitimate exercise of discretion by executive or administrative officers.\[50\] Illustrative holdings applying the general rule to the acts or duties of various municipal\[51\] and state\[52\]

by counsel for plaintiffs, again dismissed the case. Heid, mandamus issued to compel the trial court to proceed and try the case. App. D. C. 275. Where the meaning of a regulation of the Bureau of Indian Affairs requiring the local Indian agent to counter-reversed on a writ of error and the cause remanded with directions to award a new form saie of land allotted to them by the government was in dispute, the act of coun-ant for events in appellate court, the circuit a purely ministerial act such that mandamus would lie to compel its performance. Def. Denial by the commissionion of patents of an application for registration of a label on the ground that it is not descriptive of the article for which it used is a decision requiring the exercise of discretion, and is not levelable by mandamus. Alien v. U. S., 44. Acts 26th Leg. p. 170, c. 98.

45. Shirley v. Connor \[Tex.\] 80 S. W. 984.

See, also, opinion filed on rehearing, Id., 81

Inners-in-chief the appeal to which an in- or a payment is by law entitled, where the primary author has twice rejected his claims.

On the other hand it is not descriptive of the article for which it used is a decision requiring the exercise of discretion, and is not levelable by mandamus. Alien v. U. S., 44. Acts 26th Leg. p. 170, c. 98.

45. Shirley v. Connor \[Tex.\] 80 S. W. 984.

See, also, opinion filed on rehearing, Id., 81

primary examiner to forward to the exam-S. W. 284.

46. Smith v. Conner \[Tex.\] 84 S. W. 815.

01. As where. defendant failed to show a examiner has twice rejected his claims.

bona fide attempt to comply with an order to pay alimony and counsel fees. State v. Elten 655, reversing court of appeals of the District Court of Eighth Judicial Dist. \[Mont.\] 79 P. 401.

48. See 5 Curr. L. 775.

01. Riverside Oil Co. v. Hiteboek, 21 App. D. C. 252. When the law requires a public officer to do a specified act in a specified way upon a conceded state of facts, with-out regard to his own judgment as to the propriety of the act, and with no power to exercise discretion, the duty is ministerial in character, and performance may be compensated by mandamus if there is no other remedy. In re Troy Press Co., 94 App. Div. 614, 88 N. Y. S. 115.

01. Federal officers: As to compel the postmaster general, who had prohibited cir-culation of a newspaper through the malls.

to permit its circulation. In re Coleman, 131

F. 151. Refusal of the secretary of the interior to issue a patent to land, protests having been filed, was not reviewable by mandamus. Riverside Oil Co. v. Hiteboek, 21

App. D. C. 252. Mandamus will not lie to compel the secretary of the interior and the Indian commissioner to require a subordinate Indian agent to perform a purely ministerial duty, such as countersigning a check.

If the duty be purely ministerial no order 4 Cur. Law. MANDAMUS SS 2B. 513

officers, of court officers,\[33\] of licensing boards,\[34\] and of civil service commissioners,\[56\] are given in the notes.

cept upon conditions which he has no power \[COUNTY OFFICERS. Dutles held en-to impose. People v. Kennedy, 97 App. Div. 103, 89 N. Y. S. 603. Since the statutes require consumer to deposit funds in dit-quir a mayor and chief of police of a city \[ferent depositary banks of the country in to actively interfere to prevent open viola- tion of law, mandamus lies to compel them \[Nob\]. 101 N. V. 325, ap- proved and followed in 101 N. V. 327. Manually of the gambling law by maintain- damus lies to compel a clerk of a board of anonymity of a public "poelroom," prosecutions of individual offenders having failed to close the place. Moores v. State \[Nob\]. 89 N. W. 249. \[Visco as the one in which session laws are to be published. In re Troy Press Co., 94 it unlawful to permit certain animals to run at large in cities of a certain size, and re- quiring such cities to adopt ordinances to bond tendered be arbitrary, mandamus lies prevent such animals so running at large, discretion and consider the sufficiency of authorities to adopt the required ordinances such bond. Goun

### 514 Mandamus $ B.

A 4 Cur. Law.

As to whether a ministerial officer may, in a mandamus proceeding, urge as a defense the unconstitutionality of the statute imposing the duty sought to be

longing to an Individual and as having a certain measurement and boundary, when lands depends on a question of fact, the su-the title exhibited by him fails to show that preme count will not, by mandamus, compel he owns any property answering such description. State v. Board of Assessors \[LaA.\] to accept an application for a purchase. 37 No. 878.

**Scheel officers:** The duty of a county su-printed to record the description of the commissioner to issue a certificate showing boundaries of a school district, and to prepare a map of the same, under Mills' Ann. St. # 3988, 3992, is purely ministerial of the contractable by mandamus. People v. Vanphorn \[Colo. App.\] 77 P. 978. The character of such duty is not changed by an appeal to and a decision by the state board of education. Id. The selection of text books for schools, entrusted to a board of education, is a purely legislative function requiring the exercise of discretion and judgment, and the action of such board cannot be controlled by mandamus. State v. Wilson \[Iowa\] 93 N. W. 336. The determination of the question of residence of a pupil being one of fact, which involves the discretionary power of a board of education, its action will not be reviewed by mandamus proceedings to emplett to accept a pupil as a free pupil. Preston v. Board of Education \[Iowa\] 100 N. W. 54.

**Duttes relative to public lineways:** The power of a county commissioners' court to open and establish public roads is discretionary, and its exercise is not subject to control by mandamus. Howe v. Rose \[Tex. Civ. App.\] 89 S. W. 1019. The act of a highway commissioner, under Highway Law. $ 99, in certifying as abandoned a highway which has not been used as such for six years, is not a discretionary act, but is re-viewable by mandamus. People v. Marlette, 94 App. Div. 592, 88 N. Y. S. 379. Hence the filing of such certificate in regard to a high-way which has in fact been used continuous-ly for the six years preceding is not a defense to an action of mandamus to compelel him to attach such highway to a certain road district, or make a separate district of it, and open it for public travel under Highway Law, $ 4\]. Id. Mandamus is the appropriate remedy to compel the performance of statutory duties of township trustees with respect to the opening of established high-ways. Alleguations of alternative writ held, on demurrer, sufficient to require a trustee to open a road. Welch v. State \[Ind.\] 78 N. E. 1043. Township officers cannot be compelled by mandamus to repair a bridge, when they are of the honest opinion that such repairs cannot be made for a sum such as they have the power to expend. Kingsley v. Nylan \[Mich.\] 99 N. W. 744. The statutory duty of a county court in the matter of building bridges with adjoining counties is discretionary, and mandamus will not lie to compel the court to join with another county in the building of a particular bridge. State v. Thomas, 183 Mo. 220, 82 S. W. 106. Where one of two counties charged jointly with the maintenance of a bridge across the stream dividing such counties notifies the other to join In a contract for repairs, the county so notified may be compelled by mandamus to comply with the notice by joining in the contract or refusing so to do. Iske v. State \[Neb.\] 100 N. W. 315.

**52.** Where the right to purchase school lands depends on a question of fact, the su-the-ciffusioner by him fails to show that the commissioner of the general land office scripttion. State v. Board of Assessors \[LaA.\] 128. A petition for mandamus to compel a control of Education, its district attorney to institute quo warrants proceedings for warption of a franchise must show an arbitrary refusal to act, and not merely a mistake of judgment. Bugglen v. Doe \[Ariz.\] 78 P. 367; Id., \[Arriz.\] 76 P.

**53.** The attorney general of New York is vessel with discretion in approving con-revidence of a pupil being one of fact, which involves the discretionary power of a board of education, its action will not be reviewed by mandamus to approve a concept a pupil as a free pupil. Preston v. 54.

**54.** The attorney general of New York is vessel with discretion in approving con-revidence of a pupil being one of fact, which involves the discretionary power of a board of education, its action will not be reviewed by mandamus to approve a concept a pupil as a free pupil. Preston v. 55.

**55.** Mandamus lies to compel a clerk of open and establish public roads is discretionary, and its exercise is not subject to control by mandamus. Howe v. Rose \[Tex. Civ. App.\] 89 S. W. 1019. The act of a highway commissioner, under Highway Law, $ 99, in certifying as abandoned a highway which has not been used as such for six years, is not a discretionary act, but is re-viewable by mandamus. People v. Marlette, 94 App. Div. 592, 88 N. Y. S. 379. Hence the filing of such certificate in regard to a high-way which has in fact been used continuous-ly for the six years preceding is not a defense to an action of mandamus to compel him to attach such highway to a certain road district, or make a separate district of it, and open it for public travel under Highway Law, $ 4\]. Id. Mandamus is the appropriate remedy to compel the performance of statutory duties of township trustees with respect to the opening of established high-ways. All 4 Cur. Law. MANDAMUS SS 2B. 515

cnforced, before the validity of the act has been judicially determined, the authorities are apparently in hopeless conflict.14

law should become inoperative in that pre- office not being in issue, the only question clnet, mandamus will lie to compel the coun- being the salary and the title and grade cli to issue a license, if it arbitrarily refuses which it was the police commissioner's duty so to do. George & Bro. v. Winchester \[Ky.\] to accord to him. People v. Greene, 95 App. 80 S. W. 1158. The issuance of a certificate Div. 397, 88 N. Y. S. 601.

to a graduate of a "regular" veterinary school is not discretionary with the Michl- 1678 (14 T. L. A. 511, and Van Horn v. State, San State Veterinary Board, under Pub. Acts 46 Webb, 64, 84 T. W. 365, fairly represent 1899, No. 191, and Comp. Laws 1897, c. 218.

the opposite views which the courts have Wise v. State Veterinary Board \[Mich.\] 101 taken on this question. In the former case N. W. 562.

55, **Acts held discretionary**. Reclassifica-, be and must be, treated and acted upon by tion of a position in a fire department would subordinate executive functionaries as con- involve a quasi judicial set by the civil serviv- - isotational and legal until their unconstitutionality or illegality has been Judicially es- by mandamus. Dill V. Wheeler, 51 N. Y. S. 601.

686. State civil service commission of New "In the latter case it is held that minis-York acted in a quasi judicial character in their officers upon whom the legislature changing the rules so as to make it possible has sought to impose a duty by statute may to relieve relator from the office of com- - asserst the unconstitutionality of the statute parison clerk in county clerk's office, and as a defense to an application for mandamus that act cannot be reviewed on, to require him to perform the supposed duty, People v. Hamilton, 3437, 59, N. X. S. 547. In since the constitution is the fundamental 97. See, also, Id., 90 N. Y. S. 547. In the law of the land, and a statute repugnant absence of charges of bad faith or illegal action, the determination of civil service commissioners in rating candidates in competi- - isot - isot, or course, they examinations cannot be reviewed either by mandamus or ceritori. People v. M. - Genera, 4, C. 185; State v. Jumel, 32 La. Cooney, 91 N. Y. S. 436. Under the civil serviv- - isot - bev provisions of the New York charter, an employ whose position was regularly abol- - not lie to compel its enforcement. People jished, his name duly certified to the coun- - isot - isot - mission, and who received an appointment - isot - isot - an attempt to the first vacancy, is not entitled to man- - isot - isot - an attempt to complement reinstatement to his original position by reason of a notice stating unconstitutionally as a defense. Franklin he was removed from service, instead of stating merely that he was signed. People v. Mhomore, 90 N. Y. S. 807.

Acts held reveivable by mandamus: Where a board of fire commissioners abolished are in the department and at the same time created a new office with the same duties for the purpose of removing relator, through the decisions "which would furnish he was entitled to mandamus to compel reinstatement. People v. Coleman, 99 App. Div. finally adopted. That is that statutes are 85, 81 N. Y. S. 432. A disbursing clerk in the finance department was put on the suspendent old list and an accountant, without examarina, was given the duties of disbursing clerk. Heid, mandamus would lie to compel consistentement of the suspended clerk. People v. Grout, 45 Misc. 47, 90 N. Y. S. 801.

The editor of the note to State v. Heard, 47 Where a board of fire commissioners abolished are in the department and at the same time created a new office with the same difficulties for the purpose of removing relator, through the decisions "which would furnish he was entitled to mandamus to compel reinstatement. People v. Hamilton, 44 Misc. 577, 90 N. Y. S. 91. But the who more they.

Finally, we have found that the question of the question of the question will also be found in Payne v. Rainuth \[W. V.\] 46 B. E. 927. It is there said that the prevailing rule is that if direct enforcement of a law, claimed to be invalid, is sought, mandamus will not issue. The following cases are there given as recognizing this rule: A mandamus was sought to compel a town clerk to assess a taxi; but the court holding that the state commanding it was unconstitutionally, it was refused. State v. Rainuth \[W. V.\] 46 B. E. 927. It is there said that the prevailing rule is that if direct enforcement of a law, claimed to be invalid, is sought, mandamus will not issue. The following cases are there given as recognizing this rule: A mandamus was sought to compel a town clerk to assess a taxi; but the court holding that the state commanding it was unconstitutionally, it was refused. State v. Rainuth \[W. V.\] 47 B. E. 927. It is there said that the prevailing rule is that if direct enforcement of a law, claimed to be invalid, is sought, mandamus will not issue. The following cases are there given as recognizing this rule: A mandamus was sought to

### 516 Mandamus $ 2B.

_Duties relating to allowance and payment of claims against municipalities.\[57\]--The act of auditing and passing upon claims against a municipality is a quasi judicial proceeding, not reviewable by mandamus.\[58\] But after a claim has been duly established and allowed,\[59\] mandamus lies to compel the proper officer or officers to take the necessary steps preliminary to payment,\[60\] if there is a refusal to do so.\[61\]_

Mandamus lies to compel distribution of a fund for the purpose for which it was created,\[62\] but not for some other purpose.\[68\] That no appropriation for the fund has been made, or if made has been lawfully exhausted, is a good defense to

compel them. Van Horn v. State, 46 Neb. 62, who has constructed and delivered to the city of New York certain scows, which the canvassing board to count ballots as dilucity has accepted without objection, may rected by the statute. Maynard v. Board, compel payment of the amount due him by $4 Mich. 228, 47 N. W. 765, 11 L. R. A. 322, Mandamus. The fact that he did not commadamus refused to compel controller to play with the eight-hour law as applied to draw warrant to pay a demand allowed by a statute. Patty v. Colgan, 97 Cal. 251, 31 P. 1133, 18 L. R. A. 744. Mandamus refused to pay bond. Brandenstein v. Hoke, 101 Cal. the mayor and city council of a city to set 131, 35 P. 562. Mandamus refused to compel payment of judge's salary. McDermott v. P. Dinnie, 6 N. D. 278, 69 N. W. 294. So to compel issue of town bonds to build a rail-rod. People v. Bachelor, 53 N. Y. 128, 18 am. Rep. 480.

But in State v. Commissioners, 18 Neb. 506, 26 N. W. 316, the court refused to pass on the validity of a statute, and compelled an act going straight to its enforcement. See, also, 19 Am. & Eng. Enc. Law \[2nd Ed.\] 764.

57. See 2 Curr. L. 778.

01. Auditing and disallowance of a claim by a town board of auditors is a quasi judicial proceeding; mandamus does not lie to compel a re-examination of a claim rejected as illegal. People v. Matthies \[N. Y. 12 N. E. 103; People v. Matthies, 92 App. Div. 16, 87 N. Y. S. 196.

01. Mandamus will not Issue pending an appeal: Mandamus will not lie to compel delivery of a warrant by a city controller during the pendency of an appeal by a tax-payer from the order of a city council applying and allowing the claim. Lobeck v. State \[Neb.\] 101 N. W. 247. A perentory wrt of mandamus will not issue to compel a city to levy a tax for the payment of a judgment at the first opportunity after the rendition of such judgment, where proceeded.

Ings in error were brought in good faith, though no stay bond was given. Pherson v. Young \[Kan.\] 77 P. 693.

60. The duty of a county auditor to issue warrants. for claims allowed by county commissioners is purely ministerial and enforceable by mandamus. American Bridge Co. v. Wheeler, 55 Wash. 40, 76 P. 534. Mandamus will lie to compel county commissioners to take the necessary steps to provide for payment of negotiable county orders issued for construction of a public highway. State v. Gunn \[Minn.\] 100 N. W. 57. After a claim against the state has been litigated and final judgment against the state rendered, and it is admitted that there are available funds, the act of the state auditor in drawing a warrant for the amount of the judgment is a ministerial act, compelible by mandamus. State v. Weston \[Neb.\] 99 N. W. 520, A contractor * 4 Cur. Law. **MADAMUS $$$ 2B.**

such a proceeding.64 That there are other creditors entitled to share in a fund is no defense.65

\_Duties of election officers and boards.66--\_Since political conventions have exclusive jurisdiction over their own proceedings,67 the regular nomince for a political office may by mandamus compel the proper officials to place his name on the ballots as such nominee.66 The relator must in such case show his nomination69 by a legal convention.70 In so far as election officers or boards, charged with the duty of canvassing returns, act judicially, their action is not subject to control by mandamus;71 but they may be compelled to perform duties clearly imposed by law.72 While there is a conflict on the question,73 the weight of authority seems to be that an election board which has ceased to exist as such by reason of the expira tion of the terms of office of its members,\[74\] or which has acted and dissolved\[75\] cannot by mandamus be compelled to reassemble and recanvass returns.

_Enforcement of rights to public office.\[76\]--Mandamus lies to compel admission or restoration to office of one having a clear prima facie right thereto, shown by a commission, certificate, or other legal evidence thereof;\[77\] and in such case the writ may be invoked directly against the person holding the office, requiring him to admit his successor thereto, and to turn over the records, property and insignia of the office.\[78\] But if relator's title is not clear, his remedy is not mandamus, but quo warranto.\[79\]_

(SS 2) _C. Quasi public and private duties.\[80\]--Corporations may be compelled by mandamus to perform quasi public duties growing out of the acceptance of municipal grants\[81\] or expressly imposed by law,\[82\] unless the situation is so complicated as to make relief in a court of law impracticable.\[83\]_

**74. Mandamus will not lie to compel a 658; Burr v. Norton, 25 Conn. 103; Warner mayor and councilmen of a city who con- v. Myers, 4 Or. 72; People v. Head, 25 Ill. stitted an election canvassing board, to 325. And authority is not wanting for the reconvene and recanvass an election for city recognition that the writ will go, not only recorder, after their terms of office have ex- against one holding over, but also against pired. Holdermann v. Schane \[W. Va.\] 48 an intruder under color of authority, Banson v. Wilson, 4 Tex. 400; Lindsey v. Lock- rected to such former officers, by name, be converted into a suit against their successors, so as to compel them to convene v. Sefeld, 50 W. Va. 552, 40 S. E. 424, 55 L. R. A.' 92.**

**75. Clear legal title to'an office is neces- slyred. Id. When the terms of office of eleg- to insectors have expired, they cannot, asry to emtitle a person claiming it to mandependently of the election law, be compelled by mandamus to reconvene and ref- canvass the ballisto. People v. Hahes, 44 Mus. 475, 90 N. Y. S. 61.**

**75. A canvassing board which has acted and dissolved cannot be compelled to resemble and restore a certificate which it had changed. People v. Mattinger, 211 Ill.**

**75. A canvassing board which has dissolved before properly performing its functions may be compelled to reconvene and recanvass the vote. (Conflict in authorities noted.) Morris v. Glover \[Ga.\] 49 S. E. 786.**

**76. See 2 Curr. L. 777.**

**77. Kilne v. McKelvey \[W. Va.\] 49 S. E. 896.**

**78. VWr awarded against one holding over after expiration of term for which he was elected or appointed, until his successor should be elected or appointed (Code 188, 5.7, 8), relator being an appointee. Kline v. McKelvey \[W. Va.\] 49 S. E. 896.**

**A clerk of the circuit court dided before the expiration of his term, and the judge ap- pointed a clerk ad interim, and later the governor filled the vacancy by regular ap-pointment. HeId, mandamus would lie to compel the judge's appointee to deliver the office, with its records, to the governor's appointee. State v. Givens \[Fla.\] 37 So. 208.**

**Note: See, also, Walter v. Belding, 24 Vt.**

\*\*79. The program is a program of

**Mandamus** **SS 2U**.

**Mandamus** has also been held the proper remedy to enforce the duties which corporations owe to stockholders.**${}^{\\mbox{ iny\\sf{54}}}$** Thus the right to inspect the books,\*\*${}^{\\mbox{ iny\\sf{55}}}$ **by-laws,**${}^{\\mbox{ iny\\sf{55}}}$ **and membership list**${}^{\\mbox{ iny\\sf{57}}}$ **of the corporation, has been so enforced. As to the right to compel registration of a transfer of stock, there is a conflict in the authorities.**${}^{\\mbox{ iny\\sf{58}}}$ **The right to mandamus to compel officers to make calls upon unpaid subscriptions is doubtful.**${}^{\\mbox{ iny\\sf{59}}}$ **If the right to an office is clear, or has been adjudicated, mandamus will lie to seat the person entitled, but not if there is a question as to the right to the office.**${}^{\\mbox{ iny\\sf{59}}}$ **Mandamus lies to compel delivery of books and records of the corporation to officers entitled to them.**${}^{\\mbox{ iny\\sf{51}}}$ **The remedy has been held** **may be compelled to supply water of such quality and in such quantity as its contract** **Stetiauer** **V. New York & S. Const. Co., 42 N. requires. Mandamus, and not an action for rescission of the contract is the proper remedy. Syomour Water Co. v. Seymour \[Ind.\] \[N. Y.\] 183; Welpennayer v. Bitner \[Md.\] 45 70 N. E. 514. A gas company possessing a franchise and virtual monopoly may be compelled by mandamus to furnish light to a city at a reasonable price. Public Service Corp. v. American Lightning Co. \[N. J. Eq.\] 87 A. 482.**

**For full treatment of the duties of private corporations enforceable by mandamus, see note to City of Potwin Place v. Topeka R. Co. \[51 Kan. 609\] in 87 Am. St. Rep. 317.**

**S2. The duty of a railroad company to construct and maintain such farm crossings as the court shall determine to be suitable (under Rev. St. 1898, 1 8180) is a clear legal duty enforceable by mandamus, State v. Wisconsin Cent. R. Co. \[Wis.\] 102 N. W. 16.**

**Mandamus is an appropriate remedy to compel observance of a valid rate regulation of the railroad commissioners imposing specific public duties on railroad companies. State v. Atlantic Coast Line R. Co. \[Fla.\] 87 So. 652.**

**83. Where it was sought to compel rall-road companies to build. viaducta across and along the streets of a city, and it appeared that the location of tracks was such that in some places such viaducta must be built jointly and in others by separate roads, it was held that a court of law could not, by mandamus, give the relief demanded; only a court of equity, with all the parties before it, could properly adjust their rights and duties. Burlington & C. R. Co. v. People \[Colo. App.\] 77 P. 1026.**

**84. The fact that officers of a corporation are by law made personally liable for its debts when they fall to file the certificate showing payments on capital stock, does not afford such a remedy as to preclude the right to mandamus to compel filing of the certificate. Bay State Gas Co. v. State \[Del.\] 56 A. 1120.**

**Note: As to enforcement of by-laws of corporations by mandamus, see note in 32 L. R. A. 575. The principal case there given, Bassett v. Atwater, 65 Conn. 353, holds that mandamus lies to compel the officers to call a special meeting of stockholders, when requested so to do in accordance with the by laws, if a statute prescribes the mode of calling such meetings.**

**85. See 2 Cur. L. 781, n. 8.**

**Note: And that mandamus is the proper remedy of a stockholder who is denied the right to inspect the books of a corporation is held in State v. St. Louis, etc., R. Co., 29 Mo. App. 301; Coekburn v. Union Bank, 13 La.**

**86. See 2 Curr. L. 782, n. 9.**

**87. A member of a political club--a private corporation--may maintain mandamus to compel the proper officers to permit him to inspect the list of members, for the purpose of carrying out the objects of the organization, when such inspection is refused to him after a proper demand. McClintock v. Young Republicans \[Pa.\] 59 A. 691.**

\*\*88. Note! In some jurisdictions, it has been held that mandamus will lie to compel a corporation to register a transfer of stock, and "issue a new certificate to the transferee. People v. Crockett, 9 Cal. 112; Green Mount & State Line Turnpike Co. v. Bulla, 45 Ind. 1; State v. McIver, 2 Rich. \[S. C.\] 25; In re Klaus, 67 Wis. 401. The better opinion and the weight of authority is to the contrary, on the ground that a transferee has an action at law for damages or a suit in equity to enforce his rights. Rex v. Bank of England, 2 Doug. \[T.\] 173, 13 Am. Rep. 1available to compel reinstatement of persons wrongfully expelled,"2 and deprived of rights and privileges."3

Mandamus will not issue against individuals as such, but only against a person or persons clothed with authority to do the act sought to be compelled." The writ will not be granted to enforce contract obligations,"5 or to afford relief for fraud or mistake."6

SS 3. \_Jurisdiction."--\_In some states a mandamus proceeding cannot be heard by a judge in vacation at chambers;"8 in others the contrary rule prevails."9

Statutory provisions authorizing proceedings by mandamus in election cases do not divest the court of its common-law jurisdiction to issue the writ." Jurisdiction of an appellate court" may be determined by the amount in controversy." A peremptory writ of mandamus will not be issued except with the view of the enforcement of its mandates, if necessary, by the court issuing it." Where different courts have concurrent jurisdiction, application should be made to that court which can most conveniently and best enforce the decree rendered."

\_Federal courts.--\_In the federal courts mandamus is not allowed as original

92. Nelson v. Board of Trade, 58 III. App. -- peremptory writ should not issue. Martin v. 399. Clark, 135 N. C. 178, 47 S. E. 397. -- a law student, deprived of the rights and privileges of membership of the school without notice and wrongfully, has a right to mandamus to compel restoration to such rights and privileges, whether the school is organized for profit or not. Baltimore University v. Colton, 98 Md. 623, 57 A. 14. -- a.u. -- a.

4 Cur. Law. MANDAMUS SS 4A. 521

process but is employed only in aid of jurisdiction already acquired, and is a species of execution for enforcing the judgment in the principal case." They cannot take jurisdiction of such suits by removal from the state courts under the removal acts." Each federal court has jurisdiction to issue the writ to a subordinate court or judge in the exercise of and in aid of its appellate jurisdiction, and this power may be exercised though its appellate jurisdiction has not been actually invoked by appeal or writ of error." It is without power to issue it in a case not reviewable in that court by appeal or writ of error," or to issue it to create a case for the exercise of its appellate jurisdiction."

_Venue_ in mandamus cases is determined by the statutes fixing the venue of other civil actions."

SS 4. _Parties_. \_A. Parties plaintiff."\_The writ of mandamus will issue only at the instance of one "beneficially,"" or pecuniarily interested in the action sought to be coerced." Where several persons are interested they may unite in bringing the action." Where their rights are several and relief must be separately granted, one may maintain the action and obtain individual relief without joining the others;" but he cannot in such action obtain relief for the others, not joined as relators." A private individual cannot maintain mandamus to compel the performance of a purely public duty," unless he can show some peculiar interest greater than that which he has with the general public." If one relator has a

6. City of Cleveland v. U. S. \[C. C. A.\] for inspection of public records, and are refused it, If entitled to such inspection, may unite in mandamus to compel such inspection, Payne v. Staunton \[TW. Va.\] 46 S. E. \[Gen. St. 1882, $ 244\]. State v. Scarborough

1. An action for mandamus under the Iowa statutes held not removable to the Federal court, though damages may be recovered in the same action. Myistre Mill. Co. v. Chicago, etc., R. Co., 132 F. 289.

8, 9, 10. Barber Asphalt Pav. Co. v. Morris IC. C. A.\] 132 F. 945.

11. An issue in mandamus proceedings cannot be tried in any other county than the one in which the respondent resides \[Gen. St. 1882, $ 244\]. State v. Scarborough

01. See 2 Curr. L. 783.

01. Under Code Civ. Proc. $ 1086, application must be by a party "beneficially interested." Ellis v. Workman, 144 Cal. 113, 77 P. 822. Hence where plaintiff's land was sold for failure to pay instalments of a street improvement bond, the writ would not issue to compel the city treasure to cancel the bond, since the bond could not affect the right to redeem from the sale, and could not be injure the owner prior to redemption. Id.

01. Purchasers of municipal bonds are parties in interest, and, though nonrefenstents, may maintain mandamus to compel a mayor to sign and seal the bonds. Halsey v. Now-rey \[N. J. Law\] 59 A. 449. An individual cannot maintain mandamus to compel performance of an act unless he has a pecuniary interest in the act to be compelled. Payne v. Staunton \[TW. Va.\] 46 S. E. 927. Where, pending an appeal from an order denying an application for mandamus by a stockholder to compel the corporation to permit him to inspect its books, relator sold his stock and the corporation dissolved, the case could not be further prosecuted. State v. New Orleans Maritime & Merchants' Exch., 112 La. 868, 36 S. 760.

01. Several persons who make common application to a clerk of * county court * 532 **MANDAMUS SS 4B**. 4Cur. Law. sufficient interest to enable him to maintain the action, the motive of a co-relator will not be cause for dismissal.\[20\]

(SS 4) \_B. Parties defendant.\[21\]--\_The only necessary parties defendant in a mandamus proceeding are those whose duty it is to perform the act demanded,\[22\] or without whom the relief demanded cannot be granted.\[23\] Other interested persons, may be properly joined, though not necessary.\[24\] The state is not a necessary party to a petition for mandamus presented by a citizen to enforce a right in which the state in its sovereign capacity is not concerned.\[25\]

- v. Staunton \[W. Va.\] 46 S. E. 927. A male \[state civil service commission were necessary\] of the state, over 21 years of \[say parties to a mandamus proceeding to agree and a qualified voter, may bring manamus to compel election officers to perform their duties under the law, the purpose be- v. Wheeler, 91 N. Y. S. 686. A proceeding in \[andamus against an official body like a to test Ats 1897, p. 65, c. 51, fkring the number and apportionment of state senas- resignation of any or all the members. The \[roots and representatives\]. Brooks V. State, 162 Ind. 568, 70 N. E. 980. A clerk of the circuit court is a proper party, as relator, is necessary. But the resigning members are not thereby relieved from liability, but \[re\] for money to pay jurors and witnessment for costs. Gaubenour v. Anderson \[Fla.\] 37 So. 303. \[20\]. The mere fact that one of two reactors in mandamus proceedings, instituted the court to deliver a venite for the sum- to close a public "poolroom," was actuated by a belief that a certain citizen was inter- of police, the law requiring the sheerift to extend in its profits, and by the desire to drive him out of business, was held no reason for dismissal of the proceedings. Moores v. State \[Neb.\] 39 N. W. 249. \[21\]. See 2 Curr. L. 784. \[22\]. Since a relator is entitled to an effective writ, it is proper to include in its \[v. 405\]. Other Kentucky law (Laws 1868, commands all those whose co-operation ls by law required, even though it be by separat and successive steps, in the perform- ance of the official duties which is necessary to be him his legal right. State v. Williams \[Or.\] 71 P. 655. But if the law requires a single officer to perform such duties, there is no necessity for joining \[no duty developed on him until the levy had other officers. Thus a mayor and executive board ought not to be joined in mandamus to compel arrest and prosecution of gamblers, the taxes. Guthrie v. Sparks \[C. C. A.\] 131 where, under the law, the chief of police ls a prosecuting officer. Id. The only necessary defendants in a mandamus proceeding to test the constitutionality of a law fixing the number and apportionment of state senators and representatives are the clerk, new judge and commissioners were necessary and auditor of the county where the proceeding is brought. Brooks v. State, 162 Ind. 568, 70 N. E. 980. The officers of a corporation are not necessary parties v. Anderson \[Tex. Civ. App.\] 81 S. W. 104. \[24\]. The president of a corporation is \[andamus preceding a report\]. \[25\]. The president of a corporation is \[andamus preceding a report\]. \[26\]. \[27\]. \[28\]. \[29\]. \[30\]. \[31\]. \[32\]. \[33\]. \[34\]. \[35\]. \[36\]. \[37\]. \[38\]. \[39\]. \[40\]. \[41\]. \[42\]. \[43\]. \[44\]. \[45\]. \[46\]. \[47\]. \[48\]. \[49\]. \[50\]. \[51\]. \[52\]. \[53\]. \[54\]. \[55\]. \[56\]. \[57\]. \[58\]. \[59\]. \[60\]. \[50\]. \[51\]. \[53\]. \[59\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[70\]. \[69\]. \[71\]. \[72\]. \[73\]. \[74\]. \[75\]. \[76\]. \[77\]. \[78\]. \[79\]. \[80\]. \[81\]. \[82\]. \[83\]. \[84\]. \[85\]. \[86\]. \[87\]. \[88\]. \[89\]. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[99\]. \[90\]. \[91\]. \[90\]. \[91\]. \[92\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[9 4 Cur. Law. Mandamus $ 7.

## 5 Pleading and procedure in general

The proceeding for mandamus being an action at law, the rules of pleading are the same as in other actions at law \[27\]. The rule that a demurrer reaches back to the first fault committed by either party applies with special force to cases of mandamus \[28\].

The procedure varies. The action is sometimes instituted by petition, sometimes by motion, supported by affidavit, while in some states the alternative writ is regarded as the first pleading \[29\]. The various steps in the proceeding are treated in chronological order in the succeeding sections.

## 6 Petition or affidavit

\[30\]The petition must be verified \[31\]. All the facts properly set forth in the petition \[52\] or affidavit \[33\] and not expressly denied are taken as true. The petition or affidavit must show that the act sought to be compelled is the duty and within the power of the person sought to be commanded \[34\]. A petition to compel reinstatement to a public office must show the creation or existence of the office, and relator's legal right to hold it \[35\]. The action required must be definitely stated \[36\]. The performance of conditions precedent to the right demanded need not be alleged if the law presumes their performance \[37\]. Objections to a petition reachable by demurrer are waived by answering after the demurrer has been overruled \[38\].

## 7 Alternative writ. Issuance in first instance

\[39\]Where a peremptory writ is asked in the first instance, notice of application therefor must be given \[30\].

\[3\]

Where issues of fact are raised by denials of allegations of the petition, an alternative, not a peremptory writ, should issue.41 But if the return is not in such form that it can be considered, the peremptory writ may issue.42

\_Contents; manner of pleading.43--An alternative writ should purport on its face to have been issued on order of the court.44 But an objection that a writ is defective in this respect is waived by an appearance to the proceedings and a demurrer to the writ on the ground that the facts stated do not constitute a cause of action.45 It must show a clear right to the relief demanded, by alleging distinctly the material facts on which the relator relies.46 The including in the mandatory clause of an alternative writ of a command for greater relief than relator is entitled to under the allegations of his petition and writ renders it insufficient as against a demurrer for want of facts or a motion to quash.47 Allegations of the alternative writ which are well pleaded and not denied by the answer are to be taken as true.48

_Service49 of the writ must be in accordance with the statutes governing service of process.50_

_S 8. Demurrer to petition or writ; answer or return; subsequent pleadings.51_

--A demurrer to an alternative writ of mandamus is treated as a demurrer in other actions at law.52 A demurrer to a petition, though it admits facts alleged, does not necessarily grant relator's right to maintain mandamus proceedings.53\_

filed was treated as an answer to the petitl-

proper demand and refusal. Bay State Gas

tlon, and defendant given a right to de-

Co. v. State \[De1.\] 56 A. 1114. In manda-

fend. Stanton v. O'Kane \[W. Va.\] 47 S.

mus certainty of allegation is required, but

E. 245.

if the alternative writ states the facts on

which the demand is based with sufficient

88 N. Y. S. 1022; People v. Hamilton, 90 N.

precision to express the right of the re-

Y. S. 547; People v. Coleman, 99 App. Div.

lator and the duties of the respondent in

88, 91 N. Y. S. 482; People v. McAdoo, 91

such manner that the ordinary mind may

N. Y. S. 553. A petition for a peremptory

easily apprehend them, this is all the eer-

writ of mandamus will be denied where the

tainty required to defeat a demurrer. State

return to the petition raises an issue of

V. Atlantic Coast Lime R. Co. \[Fla.\] 37 So.

fact, entilting respondent to a jury trial.

652. When rectilals and allegations of an

Territory v. Brown \[OKl.\] 78 P. 318.

alternative writ of mandamus construed to

42. Where the return of a circuit court

to a rule nisl commanding him to hear and

duty of respondent railroad company to put

determine a motion for a new trial was on

into operation a rate regulation of the rall-

ordinary legal cap instead of the transcript

road commissioners, the writ is not de-

paper required by the rules, the return was

nont considered, and the petition making a

circ instance of the violation of the regula-

prima facle case, a peremptory writ was

lissued. Ex paste Geter \[Ala.\] 37 So. 341.

43. See 2 Curr. L. 782.

44, 45. Indiana Natural Gas & Oil Co. v.

for one-half a certain sum, the fact that the

State, 162 Ind. 690, 71 N. E. 133.

46. An alternative writ to a judge

manding him to issue bench warrants, which

allges that he neglects to issue warrants

ent sum as to which no demand and re-

"as required by law" states a mere legal

fusal was alleged. State v. Sams \[Neb.\] 99

conclusion: no duty to issue warrants is

N. W. 544.

shown. State v. Williams (Or.) 77 P. 955.

A mere allegation "on information and be-

lof" that a payment of an instalment or

call of capital stock has been made, is not

sufficiently certain to warrant a writ of

mandamus to compel the corporation to file

the certificate regarding such payments

required by law. Bay State Gas Co. v. State

\[De1.\] 56 A. 1120. The alternative writ is

regarded as the first pleading in a manda-

mus proceeding and must set forth by way

of reetal the allegations of the petition.

State v. Board of Police Com'rs \[Mo. App.\]

82 S. W. 960. Alternative writ of manda-

mus to compel corporation to permit inspection of books by stockholders held to contain

all essential allegations of fact, including

proper demand and refusal. Bay State Gas

tlon, and defendant given a right to de-

Co. v. State \[De1.\] 56 A. 1114. In manda-

fend. Stanton v. O'Kane \[W. Va.\] 47 S.

tus certainty of allegation is required, but

if the alternative writ states the facts on

41. People v. Cullinan, 95 App. Div. 598,

which the demand is based with sufficient

88 N.

4 Cur. Law. **MADAMUS SS 8.**

The answer or return must tender well defined issues.${}^{\\spadesuit}$ If the return be regarded as insufficient in law, the proper practice is to demur;${}^{\\spadesuit}$ or if regarded as untrue in respect of its allegations of fact, to join issue upon it.${}^{\\spadesuit}$ Allegations of the answer or return which are not put in issue by a reply are deemed admitted,${}^{\\spadesuit}$ unless the statute provides to the contrary.${}^{\\spadesuit}$ On demurrer to the answer, the facts alleged are to be taken as true.${}^{\\spadesuit}$ Such demurrer reaches back to faults in the writ or petition.${}^{\\spadesuit}$

There must be no departure from the petition in relator's subsequent pleadings.${}^{\\spadesuit}$ Where after a demurrer to a petition has been overruled, respondents an inssue, set up a positive death of the facts stated, or should state facts in condensation and avoidance with such precision and certainty that the court may be fully advised of all the particulars necessary to enable it to pass judgment upon the self-ciency of the return, and the return should not be evasive. State v. Jennings \[Fla.\] 35 So. 986. A return to a alternative writ of mandamus to compel a corroboration and its president to permit stockholders to in-the-fly.

swer, relator replies, and respondents demur to the replication, the last demurrer cannot be carried back beyond the answer.\[62\]

SS 9. _Trial, hearing and judgment. A. Trial and hearing.\[63\]_--Issues of fact, to be tried at the hearing,\[64\] must be tried by jury, unless a jury is waived.\[65\] The proceeding being at law, a reference to a master to report on the facts and law involved is improper.\[66\] If the respondent on trial fails to meet the burden of proof on the issues raised by the pleadings, a peremptory writ will issue.\[67\]

Where mandamus was brought to enforce the mandate of the circuit court of appeals, the entire record being before the court, the circuit court having entered no order from which a writ of error would lie, it was held proper to deal with the case as though properly before it on writ of error, in order to expedite justice.\[68\]

On original application for mandamus in the supreme court of Washington, if the sufficiency of the petition is challenged by demurrer, and respondents also desire to raise issues of fact, both demurrer and answer are filed at the same time, and final disposition of the case made at one hearing.\[69\]

_Abatement and dismissal.\[70\]_--Mandamus proceedings against continuing boards are not abated by the expiration of the term of office of one member, and the appointment of his successor.\[71\] Relator may dismiss without prejudice before trial, if respondent makes no counterclaim.\[72\] Dismissal is proper if the controversy has ceased to exist.\[73\]

on that date, and the reply admits his discharge but alleges that the discharge was wrongful, the reply is not a departure from the petition. City of Chicago v. People, 210 - 84, 71 N. E. 816.

62. City of Chicago v. People, 210 - 84, 71 N. E. 816.

01. See 2 Curr. L. 788.

01. Where on mandamus to compel a county superintendent to record a description of boundaries of a school district, and make a map of the same, a decision by the state board of education is pleaded as a defense, and the jurisdiction of that body, and the correctness of its decision are questioned by the reply, the issues so raised are to be determined on the hearing for mandamus. People v. Vanhorn \[Colo. App.\] 77 E. 978.

01. Since under Code Civ. Proc. $ 2082, proceedings are the same as in an action. Hence where the trial was by the court, and it was impossible to tell whether a reversal of judgment was for an error of law or because the facts found were not supported by evidence, owing to the confused state of the record, a new trial was grant-ed. People v. Wells, 178 N. Y. 411, 70 N. E. 926.

01. Jury trial being waived, the court should determine the facts only, and at special term the parties should move for such final order as the law applied to the facts found will warrant \[Code Civ. Proc. $ 2082-2084\]. People v. Grout, 45 Misc. 181, 91 N. Y. S. 900. Where in mandamus proceedings commenced in the supreme court and referred to a circuit court for trial of issues of fact, no motion was there made to set aside the verdict rendered, the relator is not entitled to a peremptory writ, though the averments of the petition were clearly proven and the verdict contrary to the evidence, requiring the supreme court to set it aside. The issues must be submitted to
    (SS 9) _B. Judgment._ _Scope of relief."--The petitioner is entitled to all that he seeks, or nothing."_ Being concluded by the terms of the alternative writ, where such writ is awarded for a purpose partly proper and partly improper, the court will not enforce it by peremptory mandamus as to that which is proper, but will give judgment for the respondent."\_ That alternative relief is asked is not fatal to a petitioner's right to the writ."\_

_Costs."--The prevailing party is entitled to costs."_ Costs cannot be awarded against one not a party."\_

SS 10. _Peremptory writ."_--The writ should be directed to the officers who have the power and whose duty it is to do the act required."\_ A writ which per-emptorily requires the execution of an enterprise involving a complication and variety of detail, without any plan upon which to work, will not be sustained."\_

SS 11. _Performance."_--A writ commanding a chief of police to arrest and prosecute gamblers will not be construed as a command to make such formal charges against such persons as will make their arrest for misdemeanor lawful."\_ After service of an alternative writ of mandamus ordering a city council to levy a tax for a certain purpose, the mandamus proceeding cannot be defeated by making the annual tax levy and omitting the levy ordered by the writ."\_ In such case it is competent for the court to compel the council to reconvene and correct the levy."\_

SS 12. _Review."_--Appeals and writs of error are taken in mandamus proceedings in the same manner and to the same court as in other civil actions at law."\_

judge to proceed with a case, he having re-

be valid, but which was in fact void. State

fused to do so pending an appeal from an

v. Carlson \[Neb.\] 101 N. W. 1004.

order granting a temporary injunction, dis-

\*\*80. Where judgment against a city was missed, where such appeal was determined

vacated pending mandamus proceedings to before the hearing on the application for

compel city officers to issue a warrant for mandamus. State v. Superior Court of Spo-

payment of the judgment, whereupon the

kane County \[Wash.\] 79 P. 483.

**74. See 2 Curr. L. 789.**

\*\*75. Where the relief demanded was broad-

when was not a party. People v. Common

er than the duty fixed by statute the writ

will not issue. Bay State Gas Co. v. State

\[Del.\] 56 A. 1125.

**76. Gay v. Torrance \[Cal.\] 78 P. 540.**

\*\*77. Where no alternative writ was issued, but a peremptory writ issued grants

improper relief, if petitioner or relator is

entitled to some kind of relief which was

included in his prayer, he should receive it,

and the necessary amendments in pleadings

and processes, may be made to conform there-

to. School Dist. No. 1 in Denver v. School

Dist. No. 7 in Arapahoe County \[Colo.\] 78 P. 690.

**78. See 2 Curr. L. 789.**

\*\*79. A mandamus proceeding is an action within the Wisconsin Code definition (SS 2595), and the prevailing party is entitled to costs. State v. Board of Trustees of Po-

licemen's Pension Fund \[Ws.\] 88 N. W. 954.

Code Civ. Proc. $ 2086, providing that where

application for mandamus is granted or denied."\_ A

nied without a previous alternative writ,

costs may be allowed either party as upon

motion, does not contemplate awarding costs

to an unsuccessful party. People v. Common Council, 95 App. Div. 75, 88 N. Y. S.

493. Relator himself being without fault.

the costs of mandamus proceedings must be

adjudged against public officers compelled by

the writ to perform statutory duties, al-

though such officers were acting in obedi-

ence to an injunction believed by them to

to be valid, but which was in fact void. State

v. Carlson \[Neb.\] 101 N. W. 1004.

order granting a temporary injunction, dis-

\*\*80. Where judgment against a city was

missed, where such appeal was determined

vacated pending mandamus proceedings to

before the hearing on the application for

compel city officers to issue a warrant for

mandamus. State v. Superior Court of Spo-

payment of the judgment, whereupon the

kane County \[Wash.\] 79 P. 483.

74. See 2 Curr. L. 789.

01. Where the relief demanded was broad-

when was not a party. People v. Common

er than the duty fixed by statute the writ

will not issue. Bay State Gas Co. v. State

\[Del.\] 56 A. 1125.

76. Gay v. Torrance \[Cal.\] 78 P. 540.\*\*

01. Where no alternative writ was issued, but a peremptory writ issued grants

improper relief, if petitioner or relator is

entitled to some kind of relief which was

included in his prayer, he should receive it,

and the necessary amendments in pleadings and

and processes, may be made to conform there-

to. School Dist. No. 1 in Denver v. School

Dist. No. 7 in Arapahoe County \[Colo.\] 78 P. 690.

78. See 2 Curr Mandamus proceedings in the Federal courts being strictly legal in nature, final orders made thereon are reviewable only by writ of error." None lies until a final order has been made." An appeal will not lie from an order granting an alternative writ,"2 or from an order denying a motion for a peremptory writ."3 The approved and correct procedure in Minnesota to obtain a review of a decision in mandamus cases is to appeal from the judgment or an order denying a motion for a new trial." In Wisconsin an order is not appealable unless it affects a substantial right." Questions must be properly saved for review."44

MandATE; Markine Insurance; Maritime Lines; Markets; Markets, see latest topical index.

MARRIAGE."7

SS 1. Nature of Marriage; Capacity of Parties, Fraud, and Duress (528).

SS 2. Licenses and Ceremonial or Formal Ensentis of a Valid Contract of Marriage (529). Burden of Proof (529).

SS 1. Nature of marriage; capacity of parties, fraud, and duress."8--Marriage is a civil status resulting from contract whereby the parties sustain to each other and to society the relation of husband and wife." There is no duress avoiding it where a man marries to escape prosecution for seduction," or to avoid bistardy proceedings," and no presumption of fraud is indulged thereupon." It is fraudulent to fail to disclose a fact that there is a duty to disclose." The fact that the

v. Board of Assessors \[La.\] 37 So. 878. An \[77 N. W. 221, and classifies them according alleged claim against the German government for $500,000 for false imprisonment is not an actionable claim of any ascertainable above.)

vale, so as to give the supreme court of the United States jurisdiction of an appeal from a judgment of the court of appeals of the District of Columbia, denying a writ of mandamus to compel the secretary of state to press the claim against the German Empire. The matter in dispute must have a money value exceeding $5,000. United States v. Hay, 194 U. S. 373, 48 Law. Ed. 1025.

90. City of Cleveland v. U. S. \[C. C. A.\] 127 F. 667.

01. In a hearing on plaintiff's demurrer to defendants return in mandamus proceedings, the court made an order to which plaintiffs excepted in part. Thereafter plaintiffs put in a reply to the return, and the court required defendant to file a regionnder within a certain time. Held, since plaintiffs had elected to stand by their de-murrer, and the court had allowed further pleading, there had been no final order from which a writ of error would lle. Wrtr dismissed as premature. Jabine v. Sparks \[C. C. A.\] 131 F. 440.

01. The granting of such writ is a matter of discretion and the remedy of a person aggrieved thereby is by appeal from the final order in the proceeding. People v. O'Donnell, 90 N. Y. S. 961.

01. State v. McKellar \[Minn.\] 99 N. W. 807.

01. An appeal'from an order directing the peremptory writ to issue is irregular practice and should not be encouraged. State v. McKellar \[Minn.\] 99 N. W. 807. (The opinion collects all the Minnesota mandamus cases since State v. Copeland, 74 Minn. 371, parties were of different color raises the presumption that the relation between them was not marriage,8 and in some states prevents the existence of that relation at all,e for in many states a marriage between a white person and a negro is void.7

8 8. _Licenses and ceremonial or formal essentials of a valid contract of marriage.8-A marriage may be valid though the consent of a guardian of one of the parties is not obtained as required by statute.9_

Footnote 8: A similar argument was used for the proof of the following statement:

_A common-law marriage10_ is formed by cohabitation with intention to assume the relation of marriage,11 as no particular form is necessary, but it is enough if what was said and done shows that a contract was made.12 Marriage per verba de futuro cum copula is not consummated, unless the copula is had in fulfillment of the future agreement.11 The question of the existence of the marriage is for the jury.14 A ceremonial marriage which is invalid because of the disability of one of the parties may be validated by the continued cohabitation of the parties after the removal of the disability,18 unless neither of the parties contracted the marriage in good faith.16 But where there was a meretricious commencement of the cohabitation, there will be no presumption of marriage from its mere continuance.17 In Kentucky there is no common law marriage.18\_

Footnote 10: See 2 Curr. L. 795.

Footnote 11: The parties were married in the beginning of the paper, and they were not allowed to have a common law.

Footnote 12: The parties were married in the beginning of the paper, and they were not allowed to have a common law.

Footnote 13: The parties were married in the beginning of the paper, and they were not allowed to have a common law.

Footnote 14: Evidence that parties had sexual in-gether after her emancipation in 1865. Keen v. Keen v. Keen \[Mo.\] 83 S. W. 526.

Footnote 15: The parties were married in the beginning of the paper, and they were not allowed to have a common law.

Footnote 16: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 17: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 18: A similar argument was used for the proof of the following statement:

Footnote 19: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 20: See 2 Curr. L. 795.

Footnote 21: Where parties merely agreed to "go to housekeeping," though the woman went by his name. lived with him, and he supported her, there was no marriage. Make! v. Hancock Out. Life Ins. Co., 95 App. Div. 241; 88 N. Y. 8, 757.

Footnote 22: Cohabitation, recognition of the parties and their friends as husband and wife and holding themselves out as such for 20 years was not sufficient to show marriage and overcome the presumption of innocence in a prosecution for bigmary. State v. Hanshrough, 181 Mo. 348, 80 S. W. 900. Evidence of cohabitation, declarations, and reputation among friends sufficient to show marriage. Klenke v. Noonan \[Ky.\] 81 S. W. 241. Evidence held insufficient to overcome the presumption of marriage. Tracy v. Frey, 95 App. Div. 579, 88 N. Y. S. 874.

Footnote 23: The parties had sexual Intercourse, but did not live together, and still expected.

Footnote 24: Curr. Law--34.

Footnote 25: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 26: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 27: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 28: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 29: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 20: See 2 Curr. L. 795.

Footnote 21: Where parties merely agreed to "go to housekeeping," though the woman went by his name. lived with him, and he supported her, there was no marriage. Make! v. Hancock Out. Life Ins. Co., 95 App. Div. 241; 88 N. Y. 8, 757.

Footnote 22: Cohabitation, recognition of the parties and their friends as husband and wife and holding themselves out as such for 20 years was not sufficient to show marriage and overcome the presumption of innocence in a prosecution for bigmary. State v. Hanshrough, 181 Mo. 348, 80 S. W. 900. Evidence of cohabitation, declarations, and reputation among friends sufficient to show marriage. Klenke v. Noonan \[Ky.\] 81 S. W. 241. Evidence held insufficient to overcome the presumption of marriage. Tracy v. Frey, 95 App. Div. 579, 88 N. Y. S. 874.

Footnote 23: The parties had sexual Intercourse, but did not live together, and still expected.

Footnote 24: Curr. Law--34.

Footnote 25: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 26: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 27: The parties were married in the beginning of the paper, and they were allowed to have a common law.

Footnote 28: The parties were married in the beginning of the paper, and they were allowed relation of husband and wife,20 and once shown to exist it is presumed to continue.21 Marriage may be shown by the certificate of marriage,22 the testimony of an eyewitness of the ceremony,22 entries in a parish register,24 evidence of general repute, or the declarations of the parties,25 and may be inferred,26 but not conclusive!y, from the grant of letters of administration.27 In a suit for divorce, defendant may show in defense to an application for temporary alimony, that there was no marriage.28

Footnote 28: The author is grateful to the anonymous referee for the support of the 20 4 Cur. Law. Marshaling assets and securities. 531

The marriage contract of an infant is voidable only at his election.\[37\] Evidence of mental weakness alone is not enough to show that a marriage was void.\[38\] The marriage of the parents renders the offspring legitimate.\[30\]

SS 4. _Proceedings for annulment.\[40\]_--Marriage may be annulled, where entered into through duress\[41\] or fraud, and the action will not be dismissed for collusion where no such issue was determined by the trial court.\[42\] Though invalid because formed while a divorce decree against a party was not yet final it will not be annulled if the parties have for a long time recognized it.\[43\] In an action for divorce or separation, defendant cannot, by way of counterclaim, demand the annulment of the marriage.\[44\] A suit may be brought in behalf of a lunatic to annul the marriage,\[45\] but a father cannot bring suit for the annulment of the marriage of his infant daughter without making her a party to the action.\[46\] In a suit to annul the marriage, the court will allow the woman counsel fees, expenses,\[47\] or alimony.\[48\] But a judgment in favor of the wife for separation is a bar to any action to annul the marriage.\[49\]

SS 5. _Criminal offenses.\[50\]_--An indictment for falsely swearing to a marriage license affidavit made before a deputy clerk is sustainable.\[51\]

Marghage Settlements, see latest topical index.

Marghaling assets and securities.\[52\]

_The doctrine_ of marshaling assets and securities is that, where there are two funds, one creditor having security in both and another in one of them, equity will compel the former to first exhaust the security in which his interest is exclusive.\[53\] It is the duty of the junior incumbrancer to demand that resort be

### Marshalling assets and securities.

4 Cur. Law.

first had to property upon which the paramount lien is exclusive,\[54\] and the burden is upon him to show that he will receive a benefit from the proceeding, and that the senior lienors will not be materially prejudiced thereby.\[65\] The doctrine has been invoked in bankruptcy cases,\[54\] and in proceedings to wind up insolvent corporations.\[57\]

\_Limitations of doctrine.\[58\]--\_The rule cannot be applied to the prejudice of the senior lienor\[59\] or third parties,\[60\] nor can it be enforced against others than the common debtor.\[61\] A suit to marshal assets will not lie where there is a pending equity suit in which the right to relief must be necessarily determined.\[42\]

\_Liability of paramount creditor.\[63\]--\_Unless the remaining security is sufficient to satisfy all claims,\[54\] a senior lienor by releasing his right to the singly charged property with notice of a junior lienor's right will be deemed to have waived his right to the doubly charged property to the extent of the amount so released.\[65\]

ayment of the check as far as it would \[personal right is converted into an equity. Bank of British North America v. \[table claim against the assets in the hands of \[reights, etc., of The Ansgar, 127 F. 859, see 2 Curr. L, 178, n. 13, n. 14\]. In absence of such a demand junior mortgage cannot object to first mortgage \[reached\] before the creditor should be permitted to proceeding against property covered by both, to supply any deficiency out of the proceeds declaratory of the equity ruled considered. \[The proceeds\] plus the proceeds exceed the amount of the debt, the creditor will hold the balance in thrust for the assignee. See Graeff's Appeal, mounting to $8,00, and that the value of the property was only $7,700, and falling to show that plaintiff could attack any of the mortgage for fraud held demurable. Id. \[The\].

MARSHALING ESTATE; MARITAL Law, see latest topical index.

**MASTER AND SERVANT.**

\*\*II L. The Relation of Statutory Regulations (533). Termination of the Relation (534). Actions for Wrongful Discharge (534). Actions for Breach by Employover (558). Labor Laws (536). \*\*SS 2. The Right of Master In Services of Employee and Compensation Therefore; Assignments of Wages; Trade Secrets; Statutory Provisions (537). **SS 3. Master's Linbility for Injuries to Servants (540).** A. Nature and Extent in General (540). Statutes (541). The Relation of Master and Servant Must Exist (542). The Master's Negligence Must Have Begen the Proximate Cause of the Servant's Injuries (544). Contractual Exemption from Lability (545). \*\*B. Tools, Machinery, Appliances, and Places for Work (546). Temporary Appliances; Seafrolds (548). Statutes (549). Places for Work (551). Methods of Work, Rules and Regulations (553). Operation of Trains (554). **D. Warning and Instructing Servant (555).** E. Fellow-Servants (557). Determination of Relation (559). Employers' Liability Acts (566). **F. Risks Assumed by Servant (568).** P.S. Interactions with Relation by Third Dangers Incidental to Business Person (612). **(570). Known or Obvious Dangers' 6. Crimes and Penalties (612).**

**SS 1.**_The relation and statutory regulations._\*\*1--\*\*The relation of master and servant rests upon contract, express or implied, and the existence of the relation is to be determined by reference to the principles applicable to other contracts.\*\*2 Whether the relation established 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.\*\*3 Where services originally rendered under an express contract are continued after expiration of the term, without objection by the employer, an implied contract of service is created;\*\*4 the law presuming a renewal of the original agreement.\*\*5 But this presumption does not apply unless it appears that there was, in fact, a prior contract and that the servant rendered services thereunder for a full term;\*\*6 nor does the presumption arise from the fact that a servant's immediate predecessor had a definite contract.\*\*7 The parties are bound by the construction which they have themselves placed

**4. Professor in agricultural college. State**

\*\*6.

### 1334 Master and Servant $ 1.

Upon their contract.\[8\] A labor organization cannot, as an organization, make contracts of employment for its members;\[9\] and an agreement to work under the rules of an organization as to compensation and time of payment cannot be inferred from the mere fact of membership and knowledge of the rules.\[10\]

\_Termination of the relation.\[11\]--If the contract of employment is for an indefinite time, the employer may discharge the employee at any time;\[12\] but if the contract is for a definite term, the employee has a right of action for his discharge before the end of such term,\[13\] unless the right of discharge is reserved by the employer by the terms of the contract,\[14\] or the discharge is for sufficient cause, such as disobedience of lawful and reasonable orders connected with his employment.\[15\] The right to discharge does not include the right to destroy the employ's property, if not promptly removed.\[16\] Any form of words which conveys to the servant the idea that his services are no longer required is sufficient to constitute a discharge.\[17\] An employee who has been discharged either in accord with or in violation of the terms of the contract of service, and has accepted or acquiesced in such discharge, is not required to return to the service at the request or importuality of the master.\[18\]

_Notice of termination.\[19\]--A rule of a company requiring employees to work a six days' notice before leaving the service is reasonable.\[20\] Where a contract for a term provided for a continuance of the relation, if services proved satisfactory, the employer was held not bound to give the employe notice of his dissatisfaction with the services rendered, when such dissatisfaction ought reasonably to have been inferred from the employer's conduct.\[21\]_

_Actions for wrongful discharge.\[22\]--A servant wrongfully discharged may treat the contract as terminated and sue as upon a quantum merit,\[23\] or may stand upon his contract, and recover under its terms, and for damages for its breach.\[24\]_

**8. Where parties had agreed upon high- or wages for services as engineer, the agreement was a construction of the original contract as not Including services as engineer, but only general services around sawmill,\[31\] Wilson V. Godkin \[Mich.\] 88 N. W. 885.**

**9. Burnetta V. Marcelline Coal Co., 180 Mo. 241, 79 S. W. 136.**

**10. Rules of Miners' Union held not binding on an miner. Burnetta v. Marcelline Coal Co., 180 Mo. 241, 79 S. W. 136.**

**11. See 2 Curr. L. 803.**

**12. Contract with local agent of commision company held to be for an indefinite time. Harrington V. Brockman Commission No. \[Mo.\] 81 S. W. 629. A contract of employment is not enforceable unless the term is definitely fixed at the time the contract is made. Held, contract not for a definite term. Hickey v. Klam \[Tex. Civ. App.\] 83 S. W. 716. Evidence held not to show hiring for any definite term. Lerora v. Central Fruit Co., 87 N. Y. 84. 25. Evicence in action for breach of contract of employment held insulinClient to prove that plaintiff was employed as a miltimer for a reason. Walker v. McCormick, 88 N. Y. 88. 106. An agreement to pay for future servants at a certain rate per month is not as a matter of law a hiring for a month. Kososki v. Kelly \[Wills.\] 100 N. W. 1037.**

**13. Evidence sufficient to show a contract of employment for a definite term. Johnson v. Crookston Number Co. \[Minn.\] 100 N. W. 125.**

**14. Evidence held to show contract sub- and hiring for a given amount of work.\[23\]**

**15.**

**16.**

**17.**

**18.**

\*\*19.

4 Cur. Law. Master and Servant $ 1.

But he cannot pursue both remedies; an election of one bars the other.28 Whether a discharge was wrongful, in a given instance, is usually a question of fact,20 and the burden is upon the master to prove a justification.27 The motive, or the reason assigned, for a discharge, is wholly immaterial if at the time there existed a sufficient ground for the discharge.28 An employe wrongfully discharged before the expiration of his term may recover the contract price for the remainder of the term, less what he has earned or might earn by reasonable diligence.29 It is the duty of a wrongfully discharged employe to endeavor in good faith to find other work of a like kind to that he agreed to perform,20 and if he fails to procure it, having made reasonable efforts to do so, he may recover the contract price of his services for the period of his employment, or up to the time of trial.31 But if he fails to use such reasonable diligence to procure other employment, his damages should be mitigated to the extent of compensation which he might have received by proper effort.32 An employer, in order to show himself entitled to a reduction of the agreed compensation, must allege and prove that the employe could have earned wages at similar work;33 he need not show that the employe actually charged. State Board of Agriculture v. Mey- \[29. Forked Deer .Pants Co. v. Shipley, 25 \] \[Colo. App.\] 77 P. 872. \[25. Discharged salesman recovered, immediately after his discharge, the amount due him, and for three days' work for which his compensation was not due. Held, this the amount of the agreed compensation, must allege and prove that the employe could have earned wages at similar work;33 he need not show that the employe actually charged. State Board of Agriculture v. Mey- \[29. Forked Deer .Pants Co. v. Shipley, 25 \] \[Colo. App.\] 77 P. 872. \[25. Discharged salesman recovered, immediately after his discharge, the amount due him, and for three days' work for which his compensation was not due. Held, this the amount the acts of both parties before contract, and for damages for breach, James v. Parsons, Rich & Co. \[Kan.\] 78 P. 438. \[30.\] \[31.\] \[32.\] \[33.\] \[34.\] \[35.\] \[36.\] \[37.\] \[38.\] \[39.\] \[30.\] \[31.\] \[32.\] \[33.\] \[34.\] \[35.\] \[36.\] \[37.\] \[38.\] \[39.\] \[30.\] \[31.\] \[33.\] \[34.\] \[35.\] \[36.\] \[37.\] \[38.\] \[39.

- 536 MASTER AND SERVANT SS 1. 4 Cur. Law.

worked at other employment.\[34\] A claim for damages up to the time of trial is a relinquishment of any claim for the remainder of the term.\[35\] The value of plaintiff's services is immaterial on the question of damages for breach of the contract, if no cause for the discharge is alleged or proven.\[36\] To recover for breach of the contract, the employe must prove performance by himself.\[37\] In an action for damages for wrongful discharge, plaintiff need not allege and show affirmatively that he sought and could not obtain other employment, or that he stood in readiness to perform after the contract had been terminated.\[38\] The burden rests upon defendant to show that other employment might have been found, or that it had been offered and declined.\[39\] That a complaint in an action for wrongful discharge demands money as due rather than as damages does not render it defective.\[40\]

\_Actions for breach by employer.--\_An employer cannot recover damages from an employee for failure to perform, if he himself has not fully performed,\[41\] or if the contract was broken by fault of both parties.\[42\] Contract provisions for liquid-dated damages for breach by the servant are enforceable.\[43\]

\_Labor laws.\[44\]--\_The New York eight-hour law;\[45\] the Kansas act providing for the recovery of damages by a servant discharged because he belongs to a labor

- 528. But the decision of the supreme court of the United States that a statute does not conflict with the 14th amendment is not
- 529. Where there is no evidence tending to show the servants incomperency or unfavitness, the fact that his services may not have been profitable is immaterial on the question of damages. Weber Gas & Gasque Line Cong. v. Bradford \[Tex. Civ. App.\] 79 S. W. 45.
- 530. Jones V. Oppenheim, 91 N. Y. S. 343.
- 531. Glillesp v. Ashford \[Iowa\] 101 N. W. 649. Where there is no evidence tending to show the servants incomperency or unfavitness, the fact that his services may not have been profitable is immaterial on the question of damages. Weber Gas & Gasque Line Cong. v. Bradford \[Tex. Civ. App.\] 79 S. W. 45.
- 542. Jones V. Oppenheim, 91 N. Y. S. 343.
- 543. Glillesp v. Ashford \[Iowa\] 101 N. W. 649. Where there is no evidence tending to show the servants incomperency or unfavitness, the fact that his services may not have been profitable is immaterial on the question of damages. Weber Gas & Gasque Line Cong. v. Bradford \[Tex. Civ. App.\] 79 S. W. 45.
- 555. Jones V. Oppenheim, 91 N. Y. S. 343.
- 556. Gillesp v. Ashford \[Iowa\] 101 N. W. 649. Where there is no evidence tending to show the servants incomperency or unfavitness, the fact that his services may not have been profitable is immaterial on the question of damages. Weber Gas & Gasque Line Cong. v. Bradford \[Tex. Civ. App.\] 79 S. W. 45.
- 557. Jones V. Oppenheim, 91 N. Y. S. 343.
- 558. Glillesp v. Ashford \[Iowa\] 101 N. W. 649. Where there is no evidence tending to show the servants incomperency or unfavitness, the fact that his services may not have been profitable is immaterial on the question of damages. Weber Gas & Gasque Line Cong. v. Bradford \[Tex. Civ. App.\] 79 S. W. 45.
- 559. Jones V. Oppenheim, 91 N. Y. S. 343.
- 559. Glillesp v. Ashford \[Iowa\] 101 N. W. 649. Where there is no evidence tending to show the servants incomperency or unfavitness, the fact that his services may not have been profitable is immaterial on the question of damages. Weber Gas & Gasque Line Cong. v. Bradford \[Tex. Civ. App.\] 79 S. W. 45.
- 560. Glillesp v. Ashford \[Iowa\] 101 N. W. 649. Where there is no evidence tending to show the servants incomperency or unfavitness, the fact that his services may not have been profitable is immaterial on the question of damages. Weber Gas & Gasque Line Cong. v. Bradford \[Tex. Civ. App.\] 79 S. W. 45.
- 561. Glillesp v. Ashford \[Iowa\] 101 N. W. 649. Where there is no evidence tending to show the servants incomperency or unfavitness, the fact that his services may not have been profitable is immaterial on the question of damages. Weber Gas & Gasque Line Cong. v. Bradford \[Tex. Civ. App.\] 79 S. W. 45.
- 562. Glillesp v. Ashford \[Iowa\] 101 N. W. 649. Where there is no evidence tending to show the servants incomperency or unfavitness incomperency or unfavitness, the fact that his services may not have been profitable is immaterial on the question of damages. Weber Gas & Gasque Line Cong. v. Bradford \[Tex. Civ. App.\] 79 S. W. 45.
- 563. Glillesp v. Ashford \[Iowa\] 101 N. W. 649. Where there is no evidence tending to show the servants incomperency or unfavitness incomperency organization;"\* part of the Indiana act directed against blacklisting;" the Alabama act relative to the abandonment of contracts by employees and renters of lands;"\* and the California act limiting the compensation to be received by employment agents,"*-have been held unconstitutional. Decisions construing the California and New York eight-hour laws are treated in the note*

**SS 2.**_The right of master in services of employee and compensation therefor; assignments of wages; trade secrets; statutory provisions._"--Where there is a contract,"*2 the amount of the servant's compensation"* and the time of payment\*34

pendent contractors for public works to sustained. Knoxville Iron Co. v. Harblison, eight hours per day, except in emergencies, is unconstitutional because in conflict with the Lystices, 163 Mass, 589, 2S L. R. A. 344. the rights of municipal corporations conferred by the state constitution. People v. Groot \[N. Y.\] 72 N. E. 444.

Note: See, also, People v. Coler, 168 N. Y. 1, 59 N. E. 516, 82 Am. St. Rep. 605, 52 R. A. 491. Usury laws, the validity of L. R. A. 814; People v. Orange County Road Comfortuction Co., 175 N. Y. 84, 67 N. E. 129.

pendent contractors for public works to sustained. Knoxville Iron Co. v. Harblison, eight hours per day, except in emergencies, is unconstitutional because in conflict with the Lystices, 163 Mass, 589, 2S L. R. A. 344.

Other courts have denounced them as deferred by the state constitution. People v. Groot \[N. Y.\] 72 N. E. 444.

Note: See, also, People v. Coler, 168 N. Y. 1, 59 N. E. 516, 82 Am. St. Rep. 605, 52 R. A. 491. Usury laws, the validity of L. R. A. 814; People v. Orange County Road Comfortuction Co., 175 N. Y. 84, 67 N. E. 129.

pendent contractors for public works to sustained. Knoxville Iron Co. v. Harblison, eight hours per day, except in emergencies, is unconstitutional because in conflict with the Lystices, 163 Mass, 589, 2S L. R. A. 344.

Other courts have denounced them as deferred by the state constitution. People v. Groot \[N. Y.\] 72 N. E. 444.

store: See, also, People v. Coler, 168 N. Y. 1, 59 N. E. 516, 82 Am. St. Rep. 605, 52 R. A. 491. Usury laws, the validity of L. R. A. 814; People v. Orange County Road Comfortuction Co., 175 N. Y. 84, 67 N.

pend upon its terms. Where the contract does not specify the rate of compensation, the law implies a promise to pay what the services are reasonably worth.55 The right to compensation ceases at the expiration of the term.56 A promise to pay for services rendered under an abandoned contract must be supported by a sufficient consideration.87 A servant may become personally liable for advances in excess of his commissions, though his contract does not provide for such liability, where he quits the employment.58

Footnote 58: The author is grateful to the anonymous referee for his constructive support.

To recover the agreed compensation, the servant must prove full performance of the contract by himself; a breach of his contract by engaging in other employment, when his master is entitled to his exclusive services,89 or by quitting the service, without excuse, before the end of his term,80 will defeat a recovery and give the master a cause of action for damages for the breach.61 Wrongful conversion of his master's property will defeat a recovery,82 unless the right to insist on a forfeiture of wages on this ground has been waived by the master's retaining the servant in his employ.83 Holdings as to the sufficiency94 the sufficiency95 and admissibility96 of evidence in actions to recover compensation, are given in the notes.

4 Cur. Law. Master and Servant $ 2. 539

Where extra services are performed with the expectation and on the promise that the servant should receive a certain sum at the death of the employer, such promise is enforceable, though the services would have been performed without it. \[97\] The presumption that a deceased master has regularly paid the wages of a servant according to the custom of the locality applies only where the relation between deceased and claimant was that of master and servant only. \[68\]

\_Extra compensation. \[60\]--\_The right to extra compensation for work in excess of eight hours per day, given by the New York statute, may be waived by receiving regular wages without objection. \[70\]

\_Medical treatment. \[71\]--\_A conductor of a railroad train has no implied authority to contract for medical services, shelter and food for an injured employe, except in case of an emergency. \[72\]

\_Assignments of wages. \[73\]--\_One in the actual employment of another, receiving wages under a subsisting contract, may make a valid assignment of future earnings, though the time of employment is uncertain, \[74\] and the consideration is not fixed in amount. Thus an extension of credit is a valuable consideration sufficient to support such an assignment. \[75\] The burden is upon a creditor of an employe, attacking an assignment, to prove that it lacked consideration. \[76\] No formality is necessary to the acceptance by the employer of an assignment of wages; paying wages to the assignee is a sufficient acknowledgment of liability. \[77\] Knowledge or want of knowledge of the assignees cannot affect the employer's liability, nor is their knowledge a matter of discovery by the employer. \[78\] Where a person makes two assignments of wages to different assignees, and the assignments are recorded at the same place, at the same hour and minute of the same day, the employer is not liable to either assignee. \[79\]

\_Trade secrets and inventions. \[80\]--\_Information acquired by a servant in the course of his employment relative to the master's property belongs exclusively to the employer and cannot rightfully be imparted to others. \[81\] The duty of the employee, arising by contract or confidence reposed in him, to preserve a trade

cial contract of service, but differ as to compensation to be paid thereunder, evidence of the value of plaintiffs services is admissible as affecting the probability of the respective claims of the parties. Id. Under a complaint alleging a five-year contract, and a continuance of the same for another term of five years, proof of breach of a contract from year to year was finalizable. Brightson, V. Claim Co. \[71\], 72 N. E. 564. \[72\], 72 N. E. 520. \[73\], 67. Graham V. Rapp's Estate, 105 Mo. App. \[59\], 80 S. W. 42. Evidence sufficient to sustain finding that extra services were rendered with expectation on part of both master and servant that they would be paid for, and that payment had not been made. Blwell v. Rapp, 72 N. H. 254, 56 A. 342. \[68\]. It has no application where decedent, by his conduct, showed an intention to marry the claimant, his housekeeper. Schraffer v. Beatty, 306 Pa. 184, 55 A. 958. \[69\]. See 2 Curr. L. 806. \[70\], 70. Turns v. Fox, 90 N. Y. S. 254. \[71\]. See 2 Curr. L. 806. \[72\]. When a brakeman was injured at a town where company was ready and willing to supply adequate treatment, but was moved elsewhere at his own request, it was held that conductor had no implied authority to contract for services and lodging at \[C. A. 127\].

secret, is owed primarily to his employer;\*\* but when the trade secret is assigned, the assignee acquires the right to protect his property by restraining the former employes of the assignor from revealing the secret.**\[83\]** The obligation of an employee to assign to his employer an invention made in the course of his employment does not arise from the existence of the relation of employe and employer alone; there must be a contract to assign.\*\*\[84\]

\_Statutory regulations.--\_The Kentucky statute requiring mine operators to pay employes on the fifteenth and thirtieth of each month, to within fifteen days of those dates,**\[85\]** and that giving manufacturing employes liens for wages superior to prior mortgage liens,**\[88\]** are held constitutional. The special lien given by statute in Georgia to laborers, on the product of their labor, attaches to property of their employers only.**\[87\]** Labor claims are entitled to stand as preferred debts against insolvent estates, under the Indiana statute, only when the labor was performed in connection with the business in which the insolvent debtor was engaged.**\[88\]** The South Carolina act prohibiting payment of wages in checks redeemable only in merchandise is constitutional.**\[80\]** The act does not apply to such a check issued as a credit only and not as payment.**\[80\]** Under the Indiana act requiring corporations to settle in full with employees once a month, and providing a penalty for failure to do so, such penalty, and attorney's fees, can be recovered only where there is no written contract of employment.\*\*\[81\]

**SS 3.**\_Master's liability for injuries to servants.**\[92\]\_A. Nature and extent in general.**\[93\]**--It is the duty of the master to exercise ordinary care for the safety of his servants by providing a reasonably safe place to work,**\[94\]\*\* and reasonably safe and suitable tools and appliances,**\[95\]** and by maintaining all these in a reasonably suitable condition and state of repair.**\[96\]** It is also his duty to exercise ordinary care in supplying reasonably safe materials,**\[97\]** and a reasonably sufficient number\*\*\[98\]

**82,83.** Vulcan Detinning Co. v. American Can Co. \[N. J. E.\] 58 A. 290.

84.\*\* Evidence held not to show a contract to assign patent rights in an invention.

85.\*\* Code 1902, SS 2719, 2720, does not deny Pressed Steel Car Co. v. Hansen, 128 F. 44.

85.\*\* The statute (Ky. St. 1903, SS 2749a)

86.\*\* C. v. Spartan Mills \[S. C\] 47 S. E. 695.

not an improper exercise of the police pow- or, nor does its enforcement interfere with on such check for a money judgment. John-vested rights or contract obligations, nor does it impose a penalty for nonpargent of S. E. 695.

87.\*\* Commonwealth v. Reinecke Coal Min.

91.\*\* In an action based on Burns' Rev. St. Co., 25 K.y. L. R. 2027, 79 S. W. 287. Sub-, see. 1 of this statute, being an amendment to absence of a written contract. Baltimore, the original act of 1899, is not unconstitutional on the ground that it was improp-, e.g., R. Co. v. Harmon, 161 Ind. 358, 68 N.

92.\*\* For extended note on the rIght of a servant to recover damages from persons v. Magnan, Fawke Lumber Co. \[Ky.\] 80 S.

87.\*\* Under Civ. Code 1895, SS 2793, an employee in a machine shop acquired no lien on a locomotive, which he had practically made over, which belonged to a third person, and not the owner of the shop. Lanier v. Bailey \[Oa.\] 48 S. E. 324. Where in pre-,ceeding to foreclose a special lien on the locomotive, an execution in favor of the employee against his employer was issued, an ordinary claim by the owner of the locomotive is a proper remedy. Lanier v. Bailey \[Ga.\] 48 S. E. 324.

88.\*\* Under Burns' Ann. St. 1901, SS 7051, 7058. McDaniel v. Osborne \[Ind. App.\] 72 N. E. 601. A receiver appointed in a fore-, closure action is not an assignee or recovel-, or within the meaning of SS 7051, 7058 of this statute.

89.\*\* Under Burns' Ann. St. 1901, SS 7051, 7058. McDaniel v. Osborne \[Ind. App.\] 72 N. E. 849.

89.\*\* Under Burns' Ann. St. 1901, SS 7051, 7058.

4 Cur. Law. MASTER AND SERVANT SS 3A. 541

of reasonably competent and safe fellow-workmen.\*\* It is, further, the duty of the employer to warn and instruct his servants as to latent or unknown dangers of the employment,1 especially if such servants are young, ignorant or inexperienced.2 Where a business is sufficiently extended and complicated to require it, the master owes his servants the duty of framing and promulgating reasonable rules and regulations, looking to their safety.3

Footnote 10: Richards v. Riverside Ironworks \[Vv. Val. 49 S. E. 457. A. 437. The degree of care re-quired of one whose business requires the use of explosives is greater than that required of one who does not employ such dangerous instrumentalities. Longas v. La Grand Quarry Co. \[Iowa\] 100 N. W. 488.

Footnote 11: Vyalace v. Boston & M. H. Co., 72

statute.12 But the legislature may, in its discretion, set up definite standards of duty to be observed by employers, which are uncontrolled by common-law rules.12 Failure to perform a positive duty fixed by statute is negligence per se, for which an injured employee may recover,14 if such failure was the proximate cause of the injury.15 Decisions construing statutes are referred to in the note.16

Footnote 12: The author is grateful to the anonymous referee for his comments.

\_The relation of master and servant must exist.17--\_To warrant a recovery for personal injuries caused by a breach of the master's duties, as master, it must appear that the person injured was at the time his servant,18 and was engaged in the performance of the duties for which he was employed.19 The employee must con-

Footnote 12: Applied Rev. St. Ohio 1892, SS 6871, re-

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

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

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

Footnote 16: The author is grateful to the anonymous referee for his comments.

Footnote 17: The author is grateful to the anonymous referee for his comments.

Footnote 18: The author is grateful to the anonymous referee for his comments.

Footnote 19: The author is grateful to the anonymous referee for his comments.

Footnote 12: Applied Rev. St. Ohio 1892, SS 6871, re-

4 Cur. Law. MASTER AND SERVANT SS 3A. 543

fine himself to the scope of his employment.20 To entitle one to the protection due a servant, an actual contract of employment is not necessary; it is sufficient if the workman performs services for the employer, with the latter's consent.21 A master owes a volunteer only the duty not to willfully injure him, and to use care not to injure him after notice of his position of peril; youth and inexperience of the volunteer do not change the relation or rights and duties of the parties.22 A railway company owes the same duty to an express messenger as it owes to its own employes.23

One for whom work is being done by an independent contractor is not liable to the contractor's servants for negligence of the contractor;24 nor is a contractor liable to a servant of a subcontractor for injuries, unless he has been guilty of some act of personal negligence, which caused such injuries, independently of all other causes.25

The test commonly applied in determining whether the relation exists is the degree of control exercised over the workman.26 A servant loaned to a third person for the performance of special services becomes the servant of that person, though in the general employ of the one who loaned him,27 if he becomes subject to the control and direction of such third person.28

and there could be no recovery for his death. Shadoan's Adm'r v. Cincinnati, etc., R. Co. \[Ky.\] 82 S. W. 567.

20. Engine hoster who volunturally exchanged work with a switchman could not recover for injuries received while performing switches. Baltimore & O. R. Co. v. Doty \[C. C. A.\] 133 F. 866. Section hand on street railway attempting to replace a trolley wheel on the wire held not acting as a volunteer, though it is the conductor's duty to replace such wheel. Toledo, etc., R. Co. v. Pfsterer, 5 Ohio C. C. (N. S.) 259.

01. Boy assisting father in mine with knowledge and consent of employer of father, entitled to protection and safe place to work, though no actual contract was made with him. Ringe v. Oregon Coal & Savivarigation Co., 44 Or. 407, 75 P. 703. Evidence sufficient to warrant finding that plaintiff was employed with knowledge and consent of defendant or one who had authority to act for him. Palmer v. Coyle \[Mass.\] 72 N. E. 844. Where a minor was put to work on trains, contrary to his father's instructions, it was held that the company would be liable for the minor's death, if caused solely by negligence of the company, though the relation of master and servant did not exist. Coleman v. Himmelberger-Harrison Land & Lumber Co., 105 Mo., App. 254, 79 S. W. 981. A boy, assisting his father in a mine is deemed to be on the premises by injureition of the owner, who owes him the duty to keep the premises reasonably safe. Williams v. Belmont Coal & Coke Co. \[W. Va.\] 46 S. E. 802. A custom, observed by a mine operator, of requiring a father, desiring his son to assist him in the mine, to obtain from the bookkeeper an order on the blacksmith for tools, is a regulation which may be waived; and the operator cannot de-ny that a duty was owed to a minor furnished with tools without such an order. Ringe v. Oregon Coal & Navigation Co., 44 Or. 407, 75 P. 703.

01. Atlanta & W. P. R. Co. v. West \[Ga.\] 49 S. E. 711.

01. Chicago & N. W. R. Co. v. O'Brien.

132 F. 593. This relation and duty was not affected by a statute making invalid contacts releasing railway companies from liability for negligence of employees resulting in injuries to other employees (Id.), nor did such statute change the rules of evidence in actions for negligence based on the relation (Id.).

Note: The various reasons for the holding that an expressman carried on a passenger train by contract between the express and railroad companies is a passenger are arrayed in a note in 4 Columbia Law Rev. 592, commenting on Long v. Lehigh Valley R. Co. \[C. C. A.\] 130 F. 870. In that case releases of liability had been exchanged so as to look wholly to the express company. See Carrizers, 3 Curr. L. 591.

24. Bridge company not liable to independent contractor's servant for injury cause-ed by defective tool furnished him by the contractor. Omma Bridge & Terminal Co. v. Hargadine \[Neb.\] 98 N. W. 1071. Where one who employs an independent contractor retains the right to inspect and oversee the work so far as is necessary to see that it conforms to the specifications, the relation of master and servant is not created between the one for whom the work is being done and servants of the independent contractor. R. Lo. \[Neb.\] 25. Nelson v. Young, 91 App. Dlv. 457, 87 N. Y. S. 69. It is the duty of a contractor to attend to shoring a building in course of reconstruction, though the actual work is subject. Id. See title Independent Contractor, 3 Curr. L. 1702.

01. The relation of master and servant exists where the employer selects the workman, may remove or discharge him for misconduct and may order what work shall be done and the mode. and manner of its performance. Walsh v. Heisenberg, 89 N. Y. S. 85.

01. Delory v. Blodgett, 185 Mass. 126, 69 N. E. 1078; Grace & H. Co. v. Probst, 208 III.

147, 70 N. E
While the owner of a railroad owes the servants of another company, operating trains on the road, the duty of ordinary care to keep the roadbed reasonably safe,28 such owning corporation will not be liable if the injury arose solely from negligence in operating trains, and not from defects in the roadbed.30 A servant in the employ of a lessee railroad company, and injured solely through negligence of his employer, has no cause of action against the lessor company.31 But the contrary is held in Missouri.32 A railway corporation operating a road jointly with another corporation is liable for injuries to employes as a member of a partner-ship.38

\_The master's negligence must have been the proximate cause34 of the servant's injuries.35--\_Illustrative holdings are grouped in the notes.36 If negligence of the loading a vessel under control of defendants, was the servant of the latter during that speedal service. Breslin v. Sparks, 97 App. Div. 69, 89 N. Y. S. 627.

apply light mine and cars held proximate subject to the control of the general master, or becomes subject to the control of the third party, the issue presented is one of fact for Central Coal & Iron Co. v. Pierec, 25 Ky. L. the jury if the evidence is in dispute. Grace & Hyde Co. v. Probst, 208 Ill. 147, 70 N. E.

12. Heid that elevator operator did not become the servant of a company putting fire extinguisher system in the building and using the elevator in its work. Walsh v. Riesenberg, 89 N. Y. S. 58.

01. This is true whether or not the injured employe was also an employee of the owning corporation. Southern Kansas R. Co. v. Base \[Tex. Civ. App.\] 80 N. W. 1038.

01. Ederie v. Vicksburg, etc., R. Co., 112 La. 728, 36 So. 664. Where servant of a grain company was killed on a switch track, owned and operated by the grain company, the railway company which constructed the track was not liable for the death. Saus v. Chicago, etc., R. Co, \[Tex. Civ. App.\] 81 S. W. 88.

01. Lewis v. Mayysville, etc., R. Co, 25 Ky. L. R. 948, 76 N. S. 526.

01. Under the Missouri statute relative to the leasing of roads by railroad corporations of the state, a lesser company is liable for injuries to a servant of the lessee, caused by the lessee's negligence. Markey v. Louisiana, etc., R. Co. \[Ml.\] 84 N. W. 61.

01. Harririri v. South Carolina & G. Extension R. Co., 135 N. C. 601, 47 S. E. 730. That the partnership agreement of the corporations in ultra vires does not relieve them of such liability. Id.

01. For doctrine of proximate cause see Negligence, 2 Curr. L. 996.

01. Bailey v. Chesade Timber Co., 35 Wash. 255, 77 P. 371; Gulf, etc., R. Co. v. Davis \[Tex. Civ. App.\] 80 S. W. 253; Godrey v. St. Louis Transit Co. \[Mo. App.\] 81 S. W. 1250.

01. In the following cases, negligence of the master, or of one for whose negligence the master was responsible, was held the proximate cause of the injuries complained of. Rotten condition of wooden tank, and not the turning on of steam, held proximate cause of injury from escaping steam.

01. If negligence of the 571, 87 N. Y. S. 219. Proximate cause of injury held to be swimming of scale board and not ordering employe to go under the scale board. Simonds v. Georgia Iron & Coal Co., 133 F. 716. Finding that defect- 4 Cur. Law. MASTER AND SERVANT SS 3A. 545

master be shown as a proximate or efficient cause, the existence of contributing negligence of a fellow servant37 or other causes, operating with the master's negligence, will not relieve him from liability,38 the injured employee being himself in the exercise of due care.39 Where the master has been guilty of negligence liable to cause injury, the fact that an injury occurred in an unusual or unexpected manner will not preclude a recovery;40 but there can be no recovery for the consequences of an act or omission, which the master did not anticipate, and ought not, in reason, to have anticipated, would result in injury.41

\_Contractual exemption from liability.--\_Contracts relieving masters from their common-law liability for negligence42 or from statutory duties43 are contrary to plaintiff's injury from being struck by a rail. Ing built on a wheel of a vessel was use of Hicks v. Southern Pac. Co., 27 Utah, 826, 76 P. 625. Section foreman's negligence in run-failure to detach the pitmans. Herbert v. ning a hand car on the time of a regular train, and not failure to give statutory sig-fellow-servant's negligence in reversing nal at crossings held the proximate cause of injury to section hand while lifting car off of injury to an brake, held proximate cause track to avoid collision. Illinois Cent. R. Co. v. McIntosh \[KY.\] 80 S. W. 496. Negligence

Lunman v. Golden Anchet Channel Xin, Co. of a switchman in attempting to uncouple cars while in motion, at a time when cars were slippery with snow, was not the proximate cause of his being knocked from the car by a switch handle. Chicago & A. R. Co., 268. In the following cases the master's negill.

S. W. 1280.

Serve was held not the proximate cause of injury. Buehn injury. Defect in appliance. Hoehn v. Lautz, 94 Apr. Div. 14, 87 N. K. 8921. De

100 N. W. 345. See subsection E herein.

fective clutch which would not stop a machine when loaded. Desosiers v. Bourn \[R. J. 87 A. 835. Noncompliance with a city orinance respecting elevators. Middendorf v. Sethore, 105 III. App. 221. Failure to keep blast

plaintiff's slipping, was the efficient and furnace in repair not proximate cause of plaintiff's being overcome by gas. Stenger v. Buffalo Union Furance Co., 90 N. T. S. 222. Failure to block guard rails in rail-road yard not proximate cause of switchman's death. Ray v. Vickburg, etc., R. Co. \[Minn.\] 37 So. 43. Failure to furnish ex-tra man not proximate cause of injury to bridge repair. McKenna v. Chicago, etc., R. Co. \[Minn.\] 100 N. W. 373. Alleged defect in a cant hook not the cause of fall and death of plaintiff's husband. Laudeman v. Ryan, 209 Pa. 3, 57 A. 1118. Where seaman was killed by being struck by mast broken by a loaded bucket in unloading vessel, the rotten condition of the mast was held not the proximate cause of the injury, expelacially since it was strong enough for its ordinary uses. Robinson V. Pittsburg Coal Co. \[C. C. A.\] 129 F. 244. Where a workman was injured while attempting to mend a belt, the causes which produced the break in the belt are not the proximate cause of the injury. Schoultz v. Eckardt Mfg. Co., 112 La. 586, 86. 593.

In these cases there was no recovery because the sole proximate cause was shown to have been negligence of fellow-servant's.

Negligence of brakeman, and not failure to provide signals, held proximate cause of injury of air brakes. Hence no recovery. Fullmer v. New York, etc., R. Co., 208 Pa. 585, 87 A. 1062. Death in collision not caused by defective track but by negligent occupation of it by switch engine crew.

Yahoo & M. Y. R. Co. v. Schraag \[Mins.\] 38 So. 193. Proximate cause of failing of stag-

4 Curr. Law-35.

public policy and void. Contracts between railway and express companies, releasing the former from liability for negligence resulting in injury to employes of the latter, are not enforceable in states where such contracts are contrary to public policy.\[44\]

(SS 3) _B. Tools, machinery, appliances, and places for work.\[45\]_--The master is not required to furnish the safest machines and appliances, of the newest and best kind,\[46\] but only such as are reasonably safe,\[47\] and of a kind in general use for the same purpose.\[48\] An employer may, when necessary, use agencies and appliances which are particularly dangerous, providing such precautions can be and are taken as to reduce the necessary dangers to a condition of reasonable safety." Under such circumstances, the degree of care required of the master is correspondingly great."50 The master, having provided reasonably safe and suitable machines or appliances, is not liable for injuries resulting from their negligent use by an employee,"51 or from their use for a purpose for which they were not intended,"52 or from the selection by an employee of such as are defective, others, reasonably safe, being available."53 It is the duty of the master to use ordinary care to maintain the tools, machinery, and appliances provided by him in a reasonably safe condition by proper repairs54 and reasonable inspection."56 What is a reasonable inspection is to be determined from surrounding facts and circumstances."56 The master is under no duty to inspect simple or common tools,"57 or to discover and remedy.

4B, 50. Vvelch v. Bath Ironworks, 98 Me. 55. Newton v. New York, etc., R. Co., 96 861, 57 A. 88. 51. Kasadarian v. James Hill Mfg. Co., 130 51. Kasadarian v. James Hill Mfg. Co., 130 52. Where servants in the master's absence rigged up a stiff-log derrick with a guy line, to give it a longer reach than 1t was intended to have, the master was not liable for an injury resulting from such use of the derrick. Maxfield v. Graveson \[C. C. A.\] 131 F. 841. Where a host rope in mine was used for a purpose other than that for which it was provided, without the employer's knowledge, whereby it became weak-ened and unsafe, the employer was not liable for an injury resulting from such improper use. Gribben v. Yellow Aster Mlim. & Milli Co., 142 Cal. 248, 75 P. 839. Complaint held not to state actionable negligence where it showed use of a brace, intended to support a roof, as a handhol. Babcock Bros. Lumber Co. v. Johnson, 120 Ga, 1030, 48 S. E. 438. But if a master requires a servant to use, or knows that he will necessarily use, for one purpose, an appliance intended for another purpose, he will be responsible for its deefoctive condition. Id. 53. Needham v. Stone, 186 Mass. 565, 72 N. E. 80. Where plaintiff was injured by reason of old spikes being used in laying steel, the company was not liable, having furnished plenty of good spikes, and the use of old ones was negligence of its forman. Gauges v. Fitethurg R. Co., 185 Mass. 76, 69 N. E. 1063. Where mine operator fur- vished a sufficient number of linch-ping for cars, he was not liable for an accident caused by failure of deceased's follow-servant to put one in, whereby a wheel fell from a car, striking deceased. Jackson v. Lincoln Min. Co. \[Mo. App.\] 80 S. W. 727. Plaintiff, assistant to driver of delivery waygon, could not recover if injury was caused by driver's failure to select a safe harness. Palmer v. \[Goyle \[Mass.\] 72 N. E. 844. The rule that the master's duty to provide safe tools and appliances extends only to such as are in fact furnished by the master has no appli- cation to safeguards against dangers arising out of the work. Burns v. Delaware & A. \[Tel. & T. Co. \[N. J. Err. & App.\] 59 A. 220. 54. Twornbly v. Consolidated Elec. Light Co., 98 Mo. 853; 57 A. 85; Guif., etc., R. Co. v. Davis \[Tex. Civ. App.\] 80 S. W. 853; Mechan v. Great Northern R. Co. \[N. D\] 10 N. W. 183; Foster v. New York, etc., R. Co. \[Mass.\] 72 N. E. 831. Tongs for handling hot ingots of iron defective. Mulligan v. \[Glorado Fuel & Iron Co. \[Colo. App.\] 77 P. 877. 877. 877. 878. 879. 88. 88.

548 MASTER AND SERVANT SS 3B. 4 Cur. Law.

defects arising necessarily from the ordinary use of the servant's instrumentalities; \[58\] the servant is presumed to be the first to discover such defects, and it is a part of his duty to remedy them. \[59\] Nor does the duty of inspection always rest upon the master, even in regard to appliances and premises under his sole control. \[60\] One who is a mere tenant has a right to assume that the owner has used due care in rendering the premises reasonably safe for his tenant's purposes. \[61\] The master may discharge his duty of keeping himself informed of the condition of machinery, so as to keep it in repair, by requiring the servant in charge to report defects discoverable by him in its use to the master or the master's representative. \[62\] The master is not liable for defects of which he had no notice, and which the exercise of ordinary care would not have disclosed. \[63\] Actual notice will not render him liable unless he could thereafter have warned the servant or made repairs. \[64\] Notice of a defect in the original construction of an appliance is presumed. \[65\] The duty of the master to furnish reasonably safe instrumentalities, and to maintain them in such condition, applies to instrumentalities used and controlled by him, though owned by others. \[66\]

_Temporary appliances; scaffolds. \[67\]_--In regard to temporary structures, such trouble. Glasscock v. Swrofford Bros. Dry froman, who was injured while cleaning it. Guff, etc., R. Co. v. Larkin \[Tex.\] 82 S. W. 1026, ryg. 80 S. W. 104. A forty-foot exten- ison ladder is not a common tool or applpl- in the exercise of ordinary care ought to have known, held negligence. San Antonio, blv. Consolidated Elec. Light Co., 98 M. 1984, 57 A. 1984, 57 A. 1984, 58 A. 1984, 59 A. 1984, 59 A. 1984, 59 A. 1984, 60 A. 1984, 61 A. 1984, 62 A. 1984, 63 A. 1984, 64 A. 1984, 65 A. 1984, 66 A. 1984, 67 A. 1984, 68 A. 1984, 69 A. 1984, 70 A. 1984, 71 A. 1984, 72 A. 1984, 73 A. 1984, 74 A. 1984, 75 A. 1984, 76 A. 1984, 77 A. 1984, 78 A. 1984, 79 A. 1984, 80 A. 1984, 70 A. 1984, 71 A. 1984, 72 A. 1984, 73 A. 1984, 74 A. 1984, 75 A. 1984, 76 A.

## 4 Cur. Law. Master and Servant $ 3B.

as scaffolds, built and used by the employees in the course of their ordinary duties, the master fully performs his duty by supplying a sufficient quantity of suitable materials, and he is not liable for injuries caused by negligent construction\[88\] or failure to use the suitable materials supplied.\[89\] As to scaffolds, this rule has been changed by statute in New York.\[90\] If the master, instead of leaving the details of construction to the servants who are to use it, undertakes to furnish them with a completed structure, he owes them the same degree of care as in furnishing other appliances, and is liable for injuries resulting from negligence of those selected to construct it.\[11\] It has also been held that though the construction of staging is left to employees, the master will be liable if he furnishes palpably unsafe materials therefor;\[12\] and the fact that a fellow-servant was negligent in selecting defective materials for use will not relieve the master from liability.\[91\]

_Status._--Holdings under the Indiana,\[74\] Minnesota,\[75\] New York,\[76\] Maine,\[77\]

McCarthy v. Claflin \[Mc.\] 59 A. 293. Employee used single boards, when he might langu caused by a defect in the scaffold, un-have used more; master not liable for not liable for not liable for not liable for liableand Alabama78 factory acts, and the Iowa mines law,78 are given in the notes. The _act of congress_ requiring cars engaged in interstate commerce to be equipped with automatic couplers89 applies not only to cars actually being used in interstate commerce, but also to cars being made up into trains for the purpose of moving interstate traffic,81 and a locomotive is a "car" within the statute.82 A car is engaged in interstate traffic, within the meaning of the act, until its actual transit ceases.88 The act prohibits the use of couplers which require the employee to place himself between the ends of the cars either to prepare the coupler for the impact, or to make the actual coupling;84 and this prohibition applies to the act of uncoupling, as well as the act of coupling, cars.85 The act is not complied with by providing couplers of dissimilar types, which will not work together so as to remove the necessity of going between the cars.86 Failure to equip cars

St. 1901, SS 70871, requiring machines to be

was a defect in the "ways, works, machinery properly guarded. The Indiana factory act

or plant," for which the master would be

1899 (Burns' Ann. St. 1901, SS 70,81), applies to a machine shop maintained by a

Bloss-Sheffield Steel Re Iron Co. V. Mobley,

railway company to make repairs and manu-

193 Ala, 425, 36 So. 181. And timbers used

facture materials for its own use. Baltimore

to scotch or chock hot pots and hold them

& O. S. W. R. Co. V. Cavanaugh (Ind. App.)

on tracks on slag piles while cooling off are

71 N. E. 238. Failure to provide a chute by

part a "the plant". Id.

which to convey slabs and refuse from one

To, Under Iowa Code, SS 284, requiring ex-

door to another in a sawmill is not a viol

oriented engineers to be placed in charge

lation of the statute requiring machinery

to be safeguarded (Acts 1839, 234, c. 142)

owner was hiable for the act of a supermit-

Crum V. North Vernon Pump & Lumber Co.

tendent who, knowing his own incompetency,

\[Ind. App.\] 72 N. E. 193. Where a fellow-

servant disobeyed orders to keep a saw

sured, and his employers knew of his dis-

of which an accident occurred, killing a

bedence yet retained him, they acquessed

miner. Berserford V. American Coal Co.

in the violation of the statute requiring the

\[Iowa\] 98 N. W. W. 902. Iowa Code, SS 2489, re-

saw to be properly guarded, and became

ble for an injury caused thereby. Berspianub

v. Ellis (Ind. App.) 72 N. E. 827. Where a

status fixes the duty to properly guard

achinery, such duty is not dependent upon

173.

request of the workman to have a particular

machine guarded, or to have a guard which

has been furnished properly adjusted.

Bhanchard-Hamilton Furniture Co. V. Colvin,

\[John. App.\] 89, SS 8. N. E. 1052.

75. The statute requiring machines In fac

foris and shops to be properly guarded

\[Gen. St. 1894, SS 2248\] requires the master

not only to furnish, but to maintain, guards

158.

or shields over the machines mentioned.

McGinty v. Waterman (Min.) 101 N. W.

176. A direction not to change guards on

a planer, when changing from one kind of

work to another, is a violation of the statute

\[Laws 1897, , 480, c. 415, SS 81\], requiring

machinos to be properly guarded. Klein

v. Garvey, 94, App. Div. 183, SS T. X. B. 998.

77. The statute requiring hotels and

buildings where any "trade, manufacture or

business is carried on requiring the presence of workmen above the first story" to be

equipped with suitable fire escapes (IRev. St.)

c. 28, SS 83), held not apply to a building

in which a restaurant was carried on on the

first floor, the kitchen being on the third

door, where there were three employes.

Carrigan v. Stillwell (Ma.) 59 A. 683. The

static applies only where workmen are

ployed above the first story in such numbers as to render escape difficult in case of fire. Id.

78. Where locomotive and switch engines

were operated in connection with a blast furnace, a defective headlight in an engine

183.

with automatic couplers\* or to keep such couplers in proper repair\*\* is actionable negligence.

_Places for work._\*00--The rule that it is the duty of the master to use ordinary care to provide and maintain a reasonably safe place to work\*\*00 applies to the track,\*\*01 \*\*yards,\*\*02 **and right of way**05 \*\*of railroads, to street railway tracks,\*\*04 \*\*to mines,\*\*05 \*\*and entries thereto and passageways therein.\*\*06 **Other illustrative applications are given in the note.**07****

Footnote 07: https://www.cds.org/

Footnote 08: https://www.cds.org/
The rule does not require the master to guard against dangers inherent in the business," and has no application where the employment consists in making a dangerous place safe," or where the place of work is being created,1 or is being constantly changed in character by the labor of men working upon it." Dangers in the place of work are not necessary or inherent within the meaning of the exception to the rule if they could have been avoided by a slight increase in the cost of the work." While the master cannot delegate the duty of furnishing a reasonably safe place,4 he is not responsible if the suitable place provided by him is rendered unsafe solely by negligence of fellow-workmen,5 or by the manner in which the work is performed.6 The responsibility of the master, under this rule, does not extend to temporary appliances, the construction, maintenance, and adjustment of which is a part of the general work of the employes themselves;7 nor does the rule apply to buildings in course of construction, in the same way as to completed buildings, ready for permanent use.8

The master is required to make a reasonable inspection of the place of work,9

terville Coal Co. v. Fidelity & Casualty Co., \[Mont.\] 71 P. 515. Gravel plt of railway.
130 F. 957. Defendant negligent in not furnishing
71 P. 202.

sufficient light for crew engaged in clearing

debris from trestile. Stewart v. Texas & P.

H. Co., 113 La. 525, 37 So. 129. Failure to

properly light bottom of elevator shaft

where plaintiff was sent to remove obstructions, held negligence. Nash v. Kansas City

Hydraulic Press Brick Co. \[Mo. App.\] 83 S. W. 90. Where a ship watchman was charged with duty of lighting the hold of the ship while it was being unloaded, and there was no special contract governing the manner of unloading, the ship was disable for injuries to a stevedore resulting proximately from failure to light the ship so as to make it a safe place of work. The Santiago, 131 F. 383. Shilpowners liable for negligence of master of vessel which resulted in making unsafe the place where a seaman was work-ing. The Westport, 131 F. 815. A telephone company which allowed an electric light company to use its poles, was under the duty to use reasonable care to see that such use of the poles did not expose its employees to unusual risks. Barto v. Iowa Tel. Co. \[Iowa\] 101 N. V. 876.

A street railway company is not chargeable with negligence in permitting a telephone company to place poles on land, not owned or controlled by the railway company, so close to the track as to make performance of the duties of the employees dangerous. Chattanoga Elec. R. Co. v. Moore \[Tenn.\] 82 S. W. 478.

98. Such as in rock quarrying. Kentucky

Frestence Co. v. McGee, 25 Ky. L. R. 2211, 80

S. W. 1113, Or where a section man is employed in clearing away a wreck on a rallroad. Baltimore, etc., R. Co. v. Hunsucker

\[Ind. App.\] 70 N. E. 556. There was no duty to give warning signals as to location of a burning bridge to employees on a train sent there to make repairs, the engineer and fireman knowing its location and the danger.

Kath v. Wisconsin Cent. R. Co. \[Vis.\] 98 N. W. 217.

99. Indiana & C. Coal Co. v. Batey \[Ind. App.\] 71 N. E. 191.

01. Driving tunnel in mine. Shaw v. New

Year Gold Mines Co. \[Mont.\] 71 P. 515.

2. Shaw v. New Year Gold Mines Co. \[Mont.\] 71 P. 515. Gravel plt of railway.

17 P. 202.

3. Barnett & Record Co. v. Schlapka, 208

1. Employe left unexploded dynamite in an excavation without informing plaintiff, who was ordered to complete the digging of the hole; master liable. Harp v. Chamber-

130 F. 957.

17 P. 515. See subsection E.

5. Shaw v. New Year Gold Mines Co. \[Mont.\] 71 P. 515. The master is not responsible when the place becomes dangerous only by reason of the carelessness of a fellow-servant. Koszicowski v. American Loco-

1. Shilpowners liable for negligence of master of vessel which resulted in making unsafe the place where a seaman was work-ing. The Westport, 131 F. 815. A telephone company which allowed an electric light company to use its poles, was under the duty to use reasonable care to see that such use of the poles did not expose its employees to unusual risks. Barto v. Iowa Tel. Co. \[Iowa\] 101 N. V. 876.

A street railway company is not chargeable with negligence in permitting a telephone company to place poles on land, not owned or controlled by the railway company, so close to the track as to make performance of the duties of the employees dangerous. Chattanoga Elec. R. Co. v. Moore \[Tenn.\] 82 S. W. 478.

98. Such as in rock quarrying. Kentucky

Frestence Co. v. McGee, 25 Ky. L. R. 2211, 80

8. The character of temporary floorings and supports depends upon the use to which they are put and the judgment of mechanism-

les engaged on the premises must govern

their construction. Fournier v. Pike, 128 F.

991.

001. The master is required to use ordinary care and prudence to acquaint himself with the condition of premises where he sets his employee to work. Kentucky

Frestence Co. v. McGee, 2 and is chargeable with knowledge of defects or dangers which such an inspection would disclose \[10\]. The servant has a right to assume that his place of work is safe and free from all dangers which are not obvious and necessary \[11\]. Neither the duty to provide reasonably safe instrumentalities \[12\], nor the duty to provide a reasonably safe place to work \[13\], can be delegated \[14\]. (SS 3) _C. Methods of work, rules and regulations \[18\]._--The master is under the duty to provide a reasonably safe method of doing the work \[16\]. He will be liable for injuries caused by the method employed, if he knew of the danger involved \[17\], or in the exercise of ordinary care, ought to have known of it \[18\]. The master, having provided a plan, will not be liable for the consequences of an unauthorized departure from it by his servants \[19\]. Where work is not such as to require special skill, and the master fails to devise a plan for doing it, the servants may adopt any plan which is usual and customary under similar circumstances \[20\]. But if the plan adopted unnecessarily requires the services of one specially skilled, the
554 Master and Servant $ 3C. 4 Cur. Law. master will not be liable for failure to provide a skilled servant. \[21\] A specific direction to do certain work in a dangerous manner is actionable negligence, unless the danger was so obvious that the servant must be held to have assumed the risk, \[22\] or to have been guilty of negligence in incurring it. \[23\]

If the nature of the business is such as to require it, \[24\] it is the duty of the master to adopt, promulgate and enforce such rules as will afford reasonable protection to servants while in the discharge of their duties. \[25\] He is under no duty to promulgate rules to govern servants acting outside the scope of their employment, \[26\] or to avoid open and apparent dangers, \[27\] or such dangers as could not have been anticipated by the exercise of ordinary care. \[28\] Failure to promulgate a particular rule does not constitute negligence unless it appears that the master should have foreseen the necessity for it, \[29\] and that such rule would have been practicable, \[30\] and, if observed, would have afforded reasonable protection. \[31\] If rules are so promulgated that servants have a reasonable opportunity to ascertain their terms, the method of promulgation is immaterial. \[32\]

\_Operation of trains.--\_The necessity of promulgating and enforcing rules of work is well illustrated in the case of railways. \[33\] A failure to observe rules for the operation of trains, which results in injury to an employ, is usually held actionable negligence. \[34\] The rules of a railroad company for the government of its

**21.** In buliding a bridge between two buildings, the men selected a method of raising: \[26\] **26.** Moran v. Rockland, etc., R. Co. \[Me.\] buildings, the men selected a method of raising: \[27\] **27.** Danger of repairing electrical fleshing "trigger." Master held to liable for injury **28.** Moran v. Rightner Tanning from falling timber caused by Improper **29.** Moran v. Rightner Tanning from **29.** Moran v.

employes are obligatory upon those who know them, and to whom they have been promulgated.\[38\] In providing for the safety of employes, a railway company may assume that its rules are being observed.\[34\] Rules may be abrogated by disregard of them with knowledge of the company's officers.\[37\] An express contract whereby an employe agrees to be bound by the rules of the company and waives liability for injuries caused by disregard of such rules, can be rescended only by mutual disregard of the rules subsequent to the date of the contract.\[38\]

(SS 3) _D. Warning and instructing servant:_\[29\]--It is the master's duty to properly warn and instruct young and inexperienced employees as to the dangers of the employment,\[40\] if the work required of such servants is such that either

1916, 79 S. W. 231. Sudden increase (n speed) of train, at a point where it was expected to stop to let workmen off, was negligence.

38. Disregard of rule requiring use of coupling stick prior to date of plaintiff's em-

to stop to let workmen off, was negligence.

ployment could not be shown. Central of Whisenhaht v. Southern R. Co. \[N. C.\] 49 S.

Georgia R. Co. v. Goodwin, 120 Ga. 83, 47 E. 559. Company chargeable with negligence where employees ran a freight train at an excessive rate and engineer failed to

40. Operator of dangerous machine.

sound whistle at a curve, though he had

been ordered to look out for hand car, a

Pa. 6, 57 A. 1101. Inexperienced operator of

millston with the hand car resulting and

cause death of employe. International &

Cosat Mfg. & Inv. Co., 34 Wash, 556, 76 P.

G. N. R. Co., V. Jacobs \[Tex. Civ. App.\] 84 S.

78. Employe set to work near dangerous

W. 288. Defendant was negligent where

cars on a sidtrack not clear of another

track were "cornered," instead of being

"showed" down the track, rules of the com-

closed cotton picking machine held neglig-

pany being thereby violated, and switchman

thereby injured whille making a coupling

with defective coupler could recover. Mis-

swort, etc., R. Co. v. Gearheart \[Tex. Civ. App.\] 81 S. W. 325. Failure of one section,

cutting machine held negligence. Bowden v.

App.\] 81 S. W. 325. Failure of one section,

when delayed and standing, to send back a

Mass. 549, 70 N. E, 1016. Failing to instruct

flagman or put with lights to warn the rear

section of a train, would be negligence ren-

clearing machine held negligence. Dolan v.

dering the company liable for injuries prox-

Boott Cotton Mills, 185 Mass. 576, 70 N. E.

imately caused thereby. San Antonio, etc.,

1025. Boy of 12, injured whille playing with

R. Co. v. Lester \[Tex. Civ. App.\] 84 S. W.

belts in factory where employed, should have

401. Where under the terms of a contract

been instructed. Lynchburg Cotton Mills v.

between a lumber company and a railroad,

Stanley, 102 Va. 590, 46 S. E. 988. Petition

permitting the former to use the railway

417 S. E. 953.

10--and lack of knowledge of the child held

of such trains were to be under the direct

not denumerble. Canton Cotton Mills v. Ed

orders of the railroad superintendent, and

wards, 120 Ga. 447, 47 S. E. 937. Failure to

were to display flags to protect themselves

instruct Inexperienced boy of 10 known by

from extra trains, running trains without

fornam to be working near dangerous m-

orders or flags was negligence. Roganville

chinery, held negligence. Vanseler v. Moser

Lumber Co. v. Gulf, etc., C. R. Co. \[Tex. Civ. App.\] 84 S. W.

Cigar & Paper Box Co. \[Mo. App.\] 84 S. W.

Appl.\] 82 S. W. 816.

201. Defendant negligent in failing to

**85.** Little v. Southern R. Co., 120 Ga. 347,

plain danger and warn employe engaged in

47 S. E. 953.

**86.** Failure to inform employes in charge

of rear section of a train running in two

So. 129. Boy 14% years old, employed as

sections that the forward section had been

office boy, whose duty it was to operate a

delayed was not negligence, when the collision would have been avoided had the crew

of the first section observed the rules (Quinn

as to operation of elevator. Lowry V. An-

v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 84

S. W. 396), nor would the company be liable

Inexperienced operator recovered when he

for having a freight box car caboses on the

was injured by reason of failure to readjust

rear of the first section, when observance of

its rules would have avoided the accident

after knives in it had been changed without

(Id.).

experience or instruction is necessary to enable them to do it with safety.41 Thus the duty exists where the servant is sent to perform dangerous duties outside the scope of his usual service.42 The sufficiency of such instruction is to be determined by the age, intelligence and experience of the employ.43 The master must also warn and instruct his servants as to special risks arising from peculiar conditions,44 and as to those hidden or latent dangers, known or which ought to be known, to the master,45 but unknown to the servant46 and not discoverable by him by the use of ordinary care.47 Failure of a vice-principal to warn a servant of an impending danger is negligence48 unless the vice-principal was not aware of the danger.49

No instruction is necessary as to obvious dangers50 fully known to the employee51 or which ought to have been known to him by reason of his experience,52

41. Ford v. Bodoww Lumber Co. \[Ark.\] are not apparent, the servant may presume that it is reasonably safe, and that he will be notified of special danger not open to or:

83 S. W. 346.

42. Bonnin v. Crowley, 112 La, 1025, 36 So.

01. Telephone employe, inexperienced as

lineman, injured by falling of a pole which he was working on, which he had not been

1032. Fornam's order to put potash in the instructed to test, Cumberland Tel. & T. Co.

v. Bills \[C. C. A.\] 128 F. 272. Common la-

borer in iron works ordered to assist expen-

soned water, was negligence. Geller v. Bristers in replacing pillars supporting a track.

Tennessee Coal, Iron & R. Co. v. Jarrett

43. Creenhe v. Bromley Bros. Carpet Co.,

209 Pa. 6, 57 A. 1101; Gleibel v. Collins Co.

54 W. Va. 515, 46 S. E. 569.

55 Hourship Corton Mills v. Stanley, 102 Va. 590, 46 S. E.

908. A young and inexperienced employe

must be instructed even as to apparent and

101. Inclendal dangers, if he does not know of

and appreciate them. Ford v. Bodow Lumber Co. \[Ark.\] 83 S. W. 346.

44. Work of piling logs in high tiers by

horse power is especially dangerous to man

on the pile. Delft v. McGrath \[Minn.\] 99 N.

W, 629. A master who, from necessity, uses

dangerous agencies or appliances, must give

his servants full information regarding the

danger, and full instructions as to the man-

ner of avoiding it. Day laboreer excavating

for foundation injured by explosion of
or by the exercise of ordinary care.58 There is no duty to instruct as to dangers incident to the employment, and which the servant assumes by his contract.59 The master will not be liable for failure to instruct unless he himself is chargeable with notice of the danger58 and of the servant's ignorance of the danger;59 and a servant who has the same knowledge of the danger as the master cannot recover.57 In the absence of notice to the contrary, the master may assume that a servant understands the ordinary risks of his employment58 and that he has the capacity of the average servant of the same age and experience.59

The duty to warn and instruct cannot be delegated.50

(SS 3) \_E. Fellow-servants.91--\_The master is charged with the duty of exercising ordinary care to employ and retain only such servants as are reasonably competent to perform their intended duties.62 He is accordingly liable for injuries to a servant resulting proximately from the incompetency of a fellow-servant,63 if he had either actual or implied knowledge of such incompetency.64

Fortin v. Manville Co., 12S F. 642. Railway not instrueth him regard thereto. Virginia employe held to have either actual or im- & S. W. R. Co. v. Bailey \[Va.\] 49 S. E. 33. puted knowledge of location of a culvert in a freight yard, so that a warning to him was not necessary. Central of Georgia. R. Co., 211 Co. v. Price \[Ga.\] 49 S. E. 683. 11. 126, 71 N. E. 850; Confeville Viterlied 52. Conductor under no duty to instruct experienced brakeman as to how to mount a moving car. Weed v. Chicago, etc., R. Co. 88. Where the master has negligently causa- \[Neb.\] 98 N. W. 827. Handhold on top of cireus car was placed nearer the end than usual. Heid, its position was obvious to a brakeman of experience. Woods v. Northern Pac. R. Co. \[Wash.\] 79 P. 308. Heid that a freehart to be experience and observation, had 711. 147, 70 N. E. 12. adequate knowledge of danger of standing in front of a circular saw when in operation. St. Jean v. Tolles & Co., 72 N. H. 657, 83 A. peteros to fellow-servants. Hilton V. Fitch- 506. No necessity for warning a miner of several years' experience in blasting of the danger in charging holes with dynamic. Northern Alabama Coal, Iron & R. Co. v. Beacham, 140 Ala. 422, 37 So. 227. 53. No duty to instruct a minor of metallic- ence and experience as to dangers readily ascertainable by him. Tucker v. National Loan & Investment Co. \[Tex. Civ. App.\] 80 S. W. 879. 54. Shickle-Harrison & H. Iron Co. v. Beck, 212 Ill. 268. 72 N. E. 423. 55. Diehl v. Standard Oil Co., 70 N. J. Law, 424, 57 A. 131. No duty to warn against use of dull chisel in cutting iron, when fore- 'man had no reason to suppose, from work- 'man's conduct, that he would use one. San Antonio Sewer Pipe Co. v. Noll \[Tex. Civ. App.\] 83 S. W. 900. 56. Tompkins v. Marine Engine & Mach. Co., 70 N. J. Law, 330, 58 A. 393. 57. Tennessee c. L. & R. Co. v. Jarrett \[Ten.\] 82 S. W. 224. Nonsuit proper where no defects were shown, and plaintiff had equal opportunity with defendant to know of dangers. Cartledge v. Pierpont Mfg. Co., 120 Ga. 217, 71 S. E. 586. Employer held not liable for death of servant caused by ex- 'plosion of varnish when deceased had as much knowledge as employer of the danger and of the proper manner of handling the varnish. Vallie v. Hall, 184 Mass. 358, 68 N. E. 829. 58. Murphy v. Rockwell Engineering Co., 70 N. J. Law, 374, 57 A. 444. A conductor may assume that his brakeman understands his ordinary and customary duties and need The master is entitled to a reasonable time in which to investigate the alleged incompetency of a servant;\[65\] but actual or implied knowledge of incompetency renders him at once liable.\[66\] It has been held that where the master has furnished a sufficient number of competent workmen, he will not be liable for the selection of a servant incompetent to perform a particular duty,\[97\] such selection being the act of a fellow-servant.\[68\] It is elsewhere held that where the act of selecting servants for particular duties is necessarily delegated, the act is nevertheless that of the master,\[98\] and if an incompetent servant is selected, and the master or his authorized agent knew, or ought to have known, of such incompetency, the master is liable.\[70\] But he will not be liable if the selection was made by one who was in fact a mere fellow-servant, and had no authority to make it.\[71\]

A master who has used due care in the selection of servants is not, at common law,\[72\] liable for the negligence of fellow-servants,\[73\] such negligence being

gence of section boss proved, where fellow-laborer, ordered to assist in pulling out a tie, struck plaintiff with his pick, when fact

the nuggilent employee was drunk was not known to the boss. Rose v, Louisville & N. R. Co. \[Ky.\] S8. W. 248.

#5. Kamp v. Coxe Bros. & Co. \[Wis.\] 99

N. W. 366.

#6. Where a master has knowledge of a servant's incompetency, he is liable for the death of a servant proximately caused by such incompetency, regardless of whether

cave ought to have, knowledge of incompetency, he is liable. After such actual or implied knowledge, the question of due care

under the same circumstances. Kamp v. Coke Bros, & Co. \[Wis.\] 99 N. W. 366.

**NOTE. Negilfence in retention of Incement**

**potent servants**: While the conditions of the master's liability to a servant for negligence of an incompetent fellow-servant have generally been stated as the negligent employment or retention of such servant,

most cases have sustained liability solely

upon the ground that the incompetent was known to be such before the injury, without

a consideration of the question whether the retention of the servant after such knowledge, constituted negligence. But the distinction between negligent employment and

**neglfent**: retention was carefully considered

in L. S., etc., R. Co. v. Stupak, 123 Ind. 210,

23 N. X. 246, where it was held that the mere fact of knowledge by the master was not sufficient to charge him for results of a servant's incompetency without a further finding or conclusive proof that the retention after knowledge was inconsistent with

due care. It was said that after information of a servant's incompetency was re-

ceived by a master, it might well be consistent with reasonable care and diligence to

postpone his summary discharge long enough to investigate as to the truth of

such information, and, even after being convinced of the incompetency, some reasonable

time might be imperatively necessary before

the discharge: hence that some delay might

be consistent with ordinary care. It was

also said, however, that if it appeared that

unnecessary delay intervened, the court

could declare the negligence as a matter of law. This case is followed by L. S., etc.,

R. Co., W. Bredelove, 10 Ind. App. 657, 8 N.

E. 357, and Schreiber v. U. T. Co., 158 Ind.

609, 613, 55 N. E. 742.

This "Indiana doctrine" is repudiated by

the Wisconsin court in Kamp v. Coxe Bros,

& Co. \[Wis.\] 99 N. W. 370, 371, where the

true rule is said to be that the master who

the struck plaintiff with his pick, when fact

tains an incompetent servant is liable for known to the boss. Rose v, Louisville & N. R. Co. \[Ky.\] S8. W. 248.

who are not themselves negligent, and have

not assumed the risk. If he is not negilfent in ascertaining the fitness of such an

employe when selected, nor in discovering

his unfitness afterwards, he is excused; but

when he has, or in the exercise of ordinary

such incompetency, regardless of whether

cave ought to have, knowledge of incompetency, he is liable. After such actual or implied knowledge, the question of due care

under the same circumstances. Kamp v. Coke Bros, & Co. \[Wis.\] 99 N. W. 366.

**NOTE. Negilfence in retention of Incement**

**potent servants**: While the conditions of the master's liability to a servant for negligence of an incompetent fellow-servant

have generally been stated as the negligent employment or retention of such servant,

most cases have sustained liability solely

upon the ground that the incompetent was

known to be such before the injury, without

a consideration of the question whether the retention of the servant after such knowledge,

the edge, constituted negligence. But the distinction between negligent employment and

59 A. 625.

neglfent retention was carefully considered

in L. S., etc., R. Co. v. Stupak, 123 Ind. 210,

23 N. X. 246, where it was held that the

there fact of knowledge by the master was not sufficient to charge him for results of a

servant's incompetency without a further finding or conclusive proof that the retention after knowledge was inconsistent with

that after information of a servant's incompetency was re-

received by a master, it an assumed risk.\[74\] But if negligence of a fellow-servant is not the sole cause of injury, but merely concurs with negligence of the master to produce it, the master is liable.\[75\]

_Determination of relation. Common-law rules.\[76\]--What constitutes the relation of fellow-servants is a question of general law,\[77\] and state courts need not apply the rule adopted by Federal courts,\[78\] nor will a state statute create a right of action in a Federal court,\[79\] though the construction placed on an employers' liability act by the state court will be followed by the Federal courts sitting in the state.\[80\] After the adoption of the English employers' liability act of 1880, English common law had no relation to a master's liability for injuries to a servant; hence, the decisions of English courts prior to 1880 have no binding force, in determinism._

App. Div. 310, 89 N. Y. S. 953. Inspector of \_g_ence of a fellow-servant which caused him \_n_ir brakes, injured through a brakeman's negligence in opening and closing switches \_c_overy by him. Chicago, W. & V. Coal Co. could not recover. Fullmer v. New York, v. Moran, 210 Ill. 9, 71 N. E, 88. Where an \_n_ir_y resulted from the omission of a neceston man was injured by a tile which was \_s_ervant by projecting step on cabocose, the only negligence was of a fellow-servant in \_n_ir_s to relieve the master. Bradford v. Tay-v. Detroit S. R. Co. \[Mich.\] 100 N. W. 268. No recovery where injury was caused by \_n_eg_intern act of a _foreman_, slippery floor resulting from the spilling of \_n_orber event by a fellow-workmurn. McRea was a recovery against the master, though \_n_r_o_Hood Rubber Co. \[Mass.\] 72 N. E, 1015. Death of servant occasioned by breaking of \_s_ervant. Illinois Southern R. Co. v. Marshall, 210 Ill. 562, 71 N. E, 597. Though fellow caused by negligence of a fellow-servant, \_s_ervants were negligent in leaving hatch- and not by defective appliances. Ennis v. Little & Co. \[R. I\] 55 A. 884. 74. Collingwood v. Illinois & I. Fuel Co. \[Iowa\] 101 N. W. 283; Murphy v. Grand Trunk R. Co. \[N. H.\] 58 A. 835; Wells v. \[Kan.\] 76 P. 441. If the order of a mine _O_'Hare, 209 Ill. 627, 70 N. E, 1056; Breslin v. Sparks, 97 A.D. Div. 69, 89 N. Y. S. 627; Sartin v. Oregon Short Line R. Co., 27 Utah, 447, 76 P. 219; Evans v. Josephine Mills, 119 G. 448, 46 S. E. 674. See subsection F. \_Y_s. Klaffke v. Betendorf Axle Co. \[Iowa\] 100 N. W. 1116; Lockwood v. Tennant \[Mich.\] a fellow-servant put up a car door would 100 N. W. 562; Swanson v. Oakes \[Minn.\] not defeat a recovery, if the proximate 101 N. W. 949; Strauss v. New York, etc., R. Co., 91 App. Div. 583, 87 N. Y. S. 67; Hieks v. Southern Pac., 27 Utah, 526, 76 P. 625; Virginia & S. W. R. Co. v. Bailey Missisourt, etc., R. Co. v. Huttena \[Tex. Civ.\] 49 S. E. 33; Ray v. Pecos & N. T. R. Co. \[Tex. Civ. Appl.\] 80 S. W. 112; Consumers' \_C_otton Oil Co. v. Jonte \[Tex. Civ. Appl.\] 80 logging camp by an engine 60 rods away, S. W. 847; Texas Cent. R. Co. v. Pelfrey \[Tex. Civ. App.\] 80 S. W. 1036; Cole v. St. Louis Transit Co. \[Mo. App.\] 81 S. W. 1138; John v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 82 S. W. 808. Where a palpably defective blank was furnished, its use by a fellow-servant in construction of a staging did not relieve the master from liability. Farrell v. Eastern Machinery Co. \[Conn.\] 59 A. 611. If railway track was defective at curve, negligence of the engineer contributing to cause derailment and death of fireman, would be no defense. Shugart v. Atlanta, etc., R. Co. \[C. C. A.\] 133 F. 505. Where passageway 1n factory was allowed to become unsafe, concurring negligence of $n$ fellow-servant did not relieve the master. Coiley v. Southern Cotton Oil Co.. 120 Ga. 258, 47 S. E. 932. Injury to miner being caused by negligence in leaving the root in an entry in an unsafe condition, the negili- \_n_ir_y.

ing the relation of fellow-servants, upon courts of a state which adopted the common law after 1880\[81\].

Courts differ not only as to the rules by which the relation is to be determined, but also in the application of those rules where there is a similarity of facts\[82\]. It is commonly held that persons intrusted with the management of work\[83\], and who have power to control or direct subordinates\[84\], are vice-principals, for whose negligent acts, while exercising their authority, the master is respon-

**81. Common law was adopted in WY-**

oming In 1899 (Rev. St. 1899, $ 2695), hence English decisions, though entitled to respect, have no binding force in that state. Johnston v. Union Pac. Coal Co. \[Utah\] 76 P. 1089.

(The opinion treats of English cases and the English act of 1880 at some length.)

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4 Cur. Law. MASTER AND SERVANT SS 3E. 561

sible. The mere fact that one intrusted with the exercise of discretionary authority sometimes, or habitually, works as a common hand, does not alone change his relation from that of vice-principal to that of fellow-servant." Whether, in doing a particular act, of which complaint is made, such servant represented the master, depends upon the nature of the act." If the negligence complained of arises out of and is the direct result of the authority conferred on him by the master, the master is liable," but if the negligence charged is an act done by the servant in his capacity as a co-laborer, and not as foreman, the master is not liable." If the act be one which such servant could do in either capacity, it will be held to have been done in the capacity in which it was his special duty to act." An employee can recover from the master for negligence of a superior, with whom he was working at the time, only on proof of gross negligence."

The rule adopted by many courts is that the relation is to be determined by the nature of the service in which the servant was engaged at the time, without reference to rank or title." Since the master's duty to exercise ordinary care

85. Illinois Southern R. Co. v. Marshal, while so watching, was fellow-servant of 210 III. 562, 71 N. E. 597. As where mine blaintiff, engaged in oilting, Ryan v. Third Ave. R. Co., 92 App. Div. 306, 86 N. Y. S. of an accident, but gave orders to the work: 1970. Where several servants in a brewery were secantanced to stop and start machine-bein, 207 III. 593, 69 N. E. 963. Superintendent of underground work in mine who d'hrowing off a clutch and starting a tub, thereby hurling plaintiff, was the act of principal, though he worked with his men at the same kind and grade of work. Carr et v. Baldwin (Mo.) 81 S. W. 204.

01. Pogarty v. St. Louis Transfer Co., 180

Mo. 490, 79 N. W. 684; Alabama G. S. R. Co. v. Baldwin \[Tenm.\] 82 S. W. 487.

87. Pogarty v. St. Louis Transfer Co., 180

01. Pogarty v. St. Louis Transfer Co., 180

01. Mo. 490, 79 N. W. 684. The act of a bridge building foreman 1n selecting an unsafe method of shortening pliles, kept in align.

proof in a manner more dangerous than the ment by the use of caps, was his incapacity as foreman. Depuy v. Chicago, etc., R. Co. \[Mo. App.\] 84 S. W. 103. Street car barn

programn negligently ran a car out, crushing the motorman against a sand box; he might have ordered the car run out by an employee. Held, he was a vice-principal while running out the car. Bien v. St. Louis Transfer Co. \[Mo. App.\] 83 S. W. 986. The fact that a general manager was feeding a plan- or when he ordered a boy to remove the hopper from the machine, did not change his character from that of vice-principal since it was not the duty of the feeder to give such orders. Horne v. La Crosse Box Co. \[Wis.\] 101 N. W. 935. Where a superintendent in charge of operations at a mine shaft, attempted to operate the cage in the absence of the engineer, knowing his own incompetency, the mine owner was liable for the resulting death of a miner, thrown from the cage. Bereard v. American Coal Co. \[Iowa\] 88 N. W. 902.

88. "Dual capacity doctrine" discussed and authorities recognizing it cited and classified, in _Pogarty v. St. Louis Transfer Co._, 180 Mo. 490, 79 N. W. 664; Bader v. Selke, 211 N. E. 1074. If superior servant undertakes the duties of a mere operator, the master is not responsible for his _Fuel Co._, 1800. We have _Fuel Co._, 1800. We have \_Fuel Co.

to provide for the safety of his servants cannot be delegated,92 any person engaged in the performance of any part of that duty is a vice-principal for whose negligence the master is liable.93

92. Dill v. Marmon \[Ind. App.\] T1 N. E. \[ gated to him. Ft. Wayne Gas Co. v. Nleman \[Ind. App.\] T1 N. E. 59. Though there \[Iowa\] 101 N. W. 283. The common-law rule of Arkansas, which is in force in Indian Territory, is that the character of the act performed, and not the grade or rank of a servant, determines whether he is a-fellow-the master is responsible for his acts and servant or vice-principal. Where an employe under an engine, preparing it for use, was struck and injured by reason of an, other employee engaged in similar work, running another engine against the one under which he was working, the two employees were fellow-serrents. St. Louis A. \[S. Rep.\] 84 S. W. 59. Negligence in performance of master's duties renders him liable regardless of the rank or authority of the negligent employee. One who had considerable control of men and at times had charge of a department, was yet a fellow-servant of an employee while holding a ladder for him while working on it. Ruememeli-Braun Co. v. Cahill \[OkL\] 79 P. 260. Failure of a road-master to keep track clear of clinkers is negligence imputed to master, and not that of a fellow-servant of a brakeman injured thereby. Missouri, etc., R. Co. v. Keefe \[Tex. Civ. App.\] 84 S. W. 679.

NOTE. Nondelevable duties: "The duties for which the master cannot escape liability by delegating their performance to an officer, agent, or servant, may be said to include the obligation to furnish the servant a reasonably safe place to work; to exercise reasonable care to avoid injury to the servant while engaged in his service; to exercise like care to furnish and maintain suitable and safe machinery, tools, and appliances with and about which the servant is required to work; to give the servant timely warning of dangers which are known or ought to be known to the master, but are neither known nor patent to the servant; to supply a sufficient number of competent workmen for the safe conduct of the particular labor in which the servant is engaged, and to exercise such direction, control, and supervision over the work as may be required to carry on the same with reasonable safety to all employed therein. Any failure in respect to these duties, whether by the master in person or by any employee to whom their performance is committed, is negligence for which the master may be held liable. This negligence may consist in matters of omission or commission, which latter will include the giving of an improper order. Hankins v. R. R., 142 N. Y. 416, 37 N. E. 466, 40 Am. St. Rep. 616, 25 L. R. A. 396: Dowling v. Allen, 74 Mo. 13, 41 Am. Rep. 298: Con. Coal Co. v. Wambach-er, 134 Ill. 57, 24 N. E. 627: Newbury v. Mfg. Co., 106 Iowa, 41, 69 N. V. 743, 62 Am. St. Rep. 682: "Berestford v. American Coal Co. \[Iowa\] 98 N. V. 902.

93. Burns v. Delaware & A. Tel. & T. \[Co. IN. J. Err. & App.\] 59 A. 220; Dill v. Marmon \[Ind. App.\] 71 N. E. 669: Baier v. Selke, 211 Ill. 512, 71 N. E. 1074. In Talana a foreman is held to be a fellow- servant unless the master's duties are delegated.

4 Cur. Law. MASTER AND SEIVANT SS 3E. 563

A rule frequently applied is that persons in the service of a common mas-

place: Millwright who put up permanent |solidated Elec. Light Co., 98 Me. 353, 57 A. shafting in a negllgent manner was the |s5. A machinist who furnished his helper master's agent, and not the fellow-servant of |s defective punch was a vice-principal, |n oller injured because of such negligence. |though he himself used the punch at times |Lininger v. Westinghouse Air Brake Co. |and did the same kind of work with it. |\[Pa.\] 69 A. 430. Where plaintiff was did. |Quir, Et., Co., V. Whisenhunt \[Tex, Civ. |Appl.\] 81 B. V. 332. In arranging and ad- a clogged coal chute, the foreman promis- |ing to attend to the gate of the chute while |W_pics, a foreman represented the master, |t was being cleared, the master was |sible| who would be liable for death of an employee |wre to attend to the gate. Fleming v. Tuttle, |device. Swanson v. Oakes \[Minn.\] 101. N. |90 N. Y. S. 661. A rear brakeman in charge |of signals on rear of train, such signals be |n to start out a defective ear, whereby a |ing required by statute, is not a fellow- |servant of one killed in a collision caused |Quir v. Brooklyn Heights R. Co., 91 App. by absence of the signals through the brake- |man's negligence. Chicago, etc., R. Co. v. Whickert \[Ind. App.\] 71 N. E. 223. The duty to use the ear not locate stock gaps to |the next the track cannot be delegated by a |servanty company and notice of such a defect |n not be brought home to the company's |s executve officers to make it liable. North- |An Alabama R. Co., V. Mansell \[La.\] 86 So. |459. An employee who is engaged in assisting a foreman in inspecting blast holes for unexploded dynaminets performing part of |the master's duty and is not a fellow-servant of employees who drill the holes or |s. |W_pics & 564 MASTER AND SERVANT SS 3E. 4 Cur. Law.

"ter," engaged in common service, directed to the same general end, are fellow-servants,"5 and for their negligence in the performance of a mere detail of their common employment,"6 the master is not answerable. This test is applied in some courts without reference to the grade of service, or power or authority of the servants,"7 or the fact that they may be employed in different departments;"8 but

Footnote 5: The author is grateful to the anonymous referee for his careful reading of the manuscript.

in Texas, it seems that such servants must be of the same grade;" and in Kentucky, employees engaged in distinct departments, are not fellow-servants.1 Servants under the control of separate masters are not fellow-servants.2

Footnote 1: The author is grateful to the anonymous referee for his constructive support.

Other courts hold that to constitute the relation of fellow-servants, employees must so directly co-operate in the particular business in hand,3 or their usual duties must be so related,4 or must bring them into such habitual association, that they may exercise upon each other an influence promotive of caution.5

sengers,\* mail agents, and other persons, carried on trains under special contracts between the company and their employers, are held not fellow-servants of the train crews.\*

\_Employers' Liability Acts.\_10--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, the limitation being frequently confined to employees of railroad corporations. Decisions under these statutes are grouped, by states, in the notes.11 Statutes excepting railroad risks from the operation of the fellow-serv-s.

S. Chicago, etc., R. Co. v. O'Brien, 132

no liability for negligence of persons in charge of switches. Indianapolis & G. Rap-

6. Plaintiff, being conveyed to \_steck

1. Under subd. 4, a conductor may re-

not's ears in which stock belonging to plain-

6. Ev employer had been hailed, was a passenger, and not a fellow-servant of de-

1. Eltsburgh, etc., R. Co. v. Collins \[Ind.\] 71

1. E. 661. An electric street car is not a

1. See 2 Curr. L. 821.

1. Alabama: Where recovery is sought

on ground of negligence of one in charge of

7. Eltsburgh, etc., R. Co. v. Bergeschickr, 162

1. Ilochmotive on the track (under employers'

1. Inability act), proof of an intent to induce

plaintiff is not necessary, even though plain-

11. If is guilty of contributory negligence,

01. If is, R. Co. v. Collins \[Ind.\] 71

01. Alabama Great Southern R. Co. v. Williams,

140 Ala. 230, 37 So. 255. An action by an

administator to recover for the wrongful

14. Alabama: Where recovery is sought

on ground of negligence of one in charge of

7. Eltsburgh, etc., R. Co. v. Bergeschickr, 162

1. If is, R. Co. v. Collins \[Ind.\] 71

1. See 2 Curr. L. 821.

1. Eltsburgh, etc., R. Co. v. Bergeschickr, 162

1. Alabama: Where recovery is sought

on ground of negligence of one in charge of

7. Eltsburgh, etc., R. Co. v. Bergeschickr, 162

1. Ilochmotive on the track (under employers'

1. Inability act), proof of an intent to induce

plaintiff is not necessary, even though plain-

11. If is, R. Co. v. Collins \[Ind.\] 71

01. Alabama, 230, 37 So. 255. An action by an

administator to recover for the wrongful

11. Alabama: Where recovery is sought

on ground of negligence of one in charge of

7. Eltsburgh, etc., R. Co. v. Bergeschickr, 162

1. Ilochmotive on the track (under employers'

1. If is, R. Co. v. Collins \[Ind.\] 71

1. Alabama: Where recovery is sought

on ground of negligence of one in charge of

7. Eltsburgh, etc., R. Co. v. Bergeschickr, 162

1. Ilochmotive on the track (under employers'

1. Ilochmotive on the track (under employers'

4 Cur. Law. MASTER AND SERVANT SS 3E.

ant rule are constitutional," if they afford equal protection to the employes to

liable. Hoffman v. Holt, 186 Mass. 572, 72 was making w coupling had finished and N. E. 87.

Minnesota: Gen. St. 1894, $ 2701, except-

lng railroad risks from the operation of the fellow-servant rule is not unconstitutional

as class legislation, since it makes no distinction between the liability of railroad

corporations, as such, and that of other employees; it applies to a peculiar class of

Ohio: Bates' Ann. St. $ 3855-22. Engineer

risks, namely, hazards incidental to the

operation of railroads. Kline v. MINnesota

Iron Co. \[Minn.\] 100 N. W. 681. (Discussing

former Minnesota decisions on the point).

The proviso in this statute, limiting its operation to completed roads, does not ex-

ciude private railroads, such as logging

and mining roads, from its operation. Thus

a narrow gauge private road used in strip-

ping an iron mine, is a railroad within the

meaning of the act, and an employee, in-

Jured by a fellow-servant's negligence, in

the operation of the road, may recover. Id.

The danger to a section man of being struck

by waste matter thrown by the fireman

while sorting coal is a hazard peculiar to

the operation of the railroad, within the

the operation of the failured, within the

meaning of the statute. Section man, so

the superior of subordinate servants in other

freman is his fellow-servant. Swartz v.,

Great Northern R. Co. \[Minn.\] 101 N. W.

Fys. 128 F. 474, the court below having held

the act unconstitutional because its benefits

ing for recovery for injuries to railroad em-

poyes caused by the negligent act of one

waying a right to direct their services, as em-

ploye's right of recovery is not limited to

cases where the injury results while he is

executing a special command of his superior; but such right exists wherever the injury results from the negligence of a superior,

though he is at the time discharging his

ordinary duties, and not the duties of the

master, the employee being at the time en-

ragged in his ordinary duties. Southern R.

Co. V. Cheaves \[Miss.\] 26 So. 691.

Missouri: Rev. St. 1899, $ 2873, making

railway corporations liable to employes for

injuries caused by negligence of fellow-

servants in the operation of the railway

does not apply to street railways. Stocks

v. St. Louis Transit Co. \[Mo. App.\] 7 B. W.

1176.

North Carolina: Priv. Laws 1897, c, 56,

p. S3. The statute does not make an

dependent contractor, employed by a railroad

cond company, liable to his employee for In-

juries caused by a fellow-servant's negil

force. Avery V. Oliver \[N. C.\] 49 S.

91. A railway employee, injured by neglig

gence of a fellow-servant while repairing

a railway bridge is within the terms of the

statute exempting railway employees injured

in the course of their employment from the

operation of the fellow-servant rule. Shigman v. Southern R. Co. \[185 N. C. 181, 47 S.

E. 420.

**New York:** Laws 1902, p. 1748, c, 600. One

who gave orders to men unloading stone, and

was understood by them to be a foreman

in charge of the work, was held a supermit-

lectedn under the act. Randall v. Holbrook,

C. & D. Contracting Co., 95 App. Div. 336,

88 N. Y. S. 681. The failure of a person who

had been, and was at the time, acting as a

train dispatcher, to see that a servant who

in charge of the work, was held a supermit-

section crew, placing a hand car on the track

tendsigned in operation of a car. Houston,

etc., R. Co. v. Jennings \[Tex. Civ. App.\] 81

88 N. Y. S. 681. The failure of a person who

had been, and was at the time, acting as a

train dispatcher, to see that a servant who

in charge of the work, was held a supermit-

section crew, placing a hand car on the track

is engaged in operation of a car. Houston,

etc., R. Co. v. Jennings \[Tex. Civ. App.\] 81

88 N. Y. S. 681. The failure of a person who

hack been, and was at the time, acting as a

train dispatcher, to see that a servant who

in charge of the work, was held a supermit-

section crew, placing a hand car on the track

is engaged in operation of a car. Houston,

etc., R. Co. v. Jennings \[Tex. Civ. App.\] 81

88 N. Y. S. 681. Section foreman did not assume

risk of negligence of engineer and fireman

in charge of engine hailing a passenger whom they apply.13 Such laws are usually held not applicable to street railways14 or private railroads.15 Constitutional provisions relaxing the stringency of the common-law fellow-servant doctrine in the interest of railway employees are to be reasonably, not strictly, construed.16

(SS 3) _F. Risks assumed by servant. Nature of defense.17_--Assumption of risk is a matter of contract; contributory negligence is a question of conduct.18 This distinction, carefully observed and pointed out by some courts,19 is ignored

train. International, etc., R. Co. v. McVey

negligence of any servant charged with \[Tex, Civ. App.\] 81 S. W. 991. Negligence of dispatching trains or transmitting tele-a foreman in running a hand car on the schedule time of a train is negligence of comotive engineer may recover for injuries an employee engaged in operating a car, caused by failure of a telegraph operator for which a section hand injured while assisting to remove the car from the track, er's office. Virginia, etc., R. Co. v. Clover's may recover \[Sajes' Ann. Cliv. St. 18897, art 4660h\]. Saa Antonio, etc., R. Co. v. Stevensen \[Tex. Civ. App.\] 83 S. W. 235. Under Sayles' Civ. St. 1889, art. 45606 making a railroad company liable for injuries to an employee caused by negligence of another employee operating an engine, a fireman may be required for failure of the engineer to use ordinary care to keep a lookout. Missouri, etc., R. Co. v. Keevency \[Tex. Civ. App.\] 80

Adim'v. 122. Gen. St. Minn. 1894, & 2701, held

S. W. 287. Under the same section, a company is liable to a switchman for an in-Iron Co. \[Minn.\] 100 N. W. 681. The Ohio

jury caused by a defective handoid, not-withstanding ordinary care to discover the defect, providing the defect was due to negligence of the company's servants en-lib -Ich -V. Toledo & O. Cent. R. Co., 5 Ohio C,

gaged with the switchman at the time in the operation of the train. St. Louis S. W.

R. Co. v. Corrigan (Tex. Civ. App.\] 81 S. W. 554. Under Batts' Ann. St. art. 45606, making railroad employees entrated with super-intendence of other servants vice-principals,

a roundhouse hostter was held a vice-prin-cipal as to his two assistants. Gulf, etc., R. Co. v. Howard \[Tex.\] 80 S. W. 226. But under art. 45606, they were his fellow-servants, while engaged in moving engines, since all three were working together in a common work at the same time and place.

Cisions in notes under various states, supra. Hence he could not recover for their negligence. Gulf, etc., R. Co. v. Howard \[Tex.\]

80 S. W. 229. A car sear, whose duty it was to fusten doors of cars being unload-ed, was not a fellow-servant of a truck-man employed in unloading, under. Rev.

St. 1895, art. 45606, defining as fellow-servants all employees of railroads in the same grade of employment, etc. Missouri, etc., R. Co. v. Hutenchs \[Tex. Civ. App.\] 80 S. W. 415. Under Gen. Laws 1897, Sp. Bess. p. 14,

c. 6, amending laws of 1891 and 1833, the test is whether the railway employees were in the same grade or department of employment. Hence a station porter, under control of station master, and brakeman, under conductor's orders, are not fellow-servants, though both are engaged in unloading freight. Gulf, etc., R. Co. v. El-more \[Tex. Civ. App.\] 79 S. W. 891. Plain-tiff, engaged in changing link bills on cars, held not fellow-servant of other employees engaged in operating cars in switching. Galveston, etc., R. Co. v. McAdams \[Tex. Civ. App.\] 84 S. W. 1076. Fellow-servant rule held no defense if Plaintiff was engaged with other servants in operating the train. Id.

Virginii Under Const. 162, providing for recovery by a railway employee for the by others." Whether a given risk is assumed is to be determined by reference to the contract between master end servant: the servant, by entering the master's service, impliedly contracts to assume such risks as are obviously incidental and necessary to the particular employment; he also impliedly contracts to assume dangers of which he learns while engaged in his employment, by continuing therein after acquiring such knowledge."

Since a master cannot, by contract, relieve himself from liability for breach of a positive statutory duty," and a servant cannot contract to assume the risk of such breach," it is commonly held that the defense of assumption of risk is not available where the negligence complained of is a violation of a positive statute." But under some statutes, the defense is admissible."

That a risk was assumed wil not defeat a recovery unless such risk was the sole proximate cause of the injury."

Fuelnor, 28 Ind. App. 479, 63 N. E. 239; Cent, R. Co., 135 N. C. 738, 47 S. E. 675. Smith v. Armour & Co. \[Tex. Civ, App.\] 84 S. \[Knowledge by the servant of defects in V. 675, 676.

570 MASTER AND SERVANT SS 3F. 4 Cur. Law.

The defense is available against minors as well as adults; \[27\] but some courts hold that children under fourteen do not assume the risk of negligence of fellow-servants. \[28\] Convicts, leased out by the state to employers, do not assume the ordinary risks of the employment, with the assumption of which free men would be charged. \[29\]

\_Dangers incidental to business. \[30\]--\_The servant assumes the ordinary risks of his employment, \[31\] of which he either knows or would have known if he had used ordinary care, \[32\] including those arising from the customary manner of conducting it, when he knows of such custom; \[28\] and this is so though the employment is necessarily dangerous. \[34\] The negligence of fellow-servants is an ordinary risk, within the meaning of the rule. \[35\]

an engineer assumed risk of using a head-light known to him to be defective, he did not assume the risk of negligence of an incompetent flagman in giving a signal proceed with a train, even though the resulting derailment in a washout could have been avoided, had he had a perfect head-light. Galveston, etc. R. Co. v. Fitzpatrick \[(Tex, Civ. App.) 83 S, V. 466. Switching 859, 87, 44, 606. Switching 859, 87, 44, 610 not assume risk of injury while making a coupling, caused by defendants' negligently "cornering" cars down a track, instead of "showing" them down, even though, he knew the coupler was defective and was trying to fix It. Missouri, etc. R. Co. v. Gearheart \[Tex, Civ. App.) 81 W. 825, 87, 81, 87, 81, 87, 81, 4 Cur. Law. MASTER AND SERVANT SS 3F.

The servant does not assume risks which exceed those ordinarily connected with his usual work, such as sudden and unexpected danger,\[36\] arising from unusual conditions,\[37\] or dangers encountered in work outside the line of his usual\[38\] or expected\[39\] employment. Extraordinary hazards are assumed only when thoroughly comprehended and freely accepted.\[40\] A servant does not assume the risk of extraordinary and unexpected danger encountered in a voluntary effort to save life.\[41\]

_Known or obvious dangers.\[42\]_--Besides the ordinary risks incident to his employment, the servant assumes such as are plain and obvious;\[48\] or actually

Child of 14, operating stamping machine, the risk of doing work outside the line of who understood the machine, and was his employment, when ordered to 01 It by warned to look out for his fingers, assumed the risk of getting them caught, the machine being neither defective nor out of re-riks of latter employment. American Car & \[Mass.\] 71 N. E. 948. Employes on train sent to repair burning bridge assumed in-clidential risks: hence no duty to warn them machinery, it could not be said as a matter of lw that all the risks he could see and assumed risks of employment while engaged in rebuilding a railway bridge, the use of which was continued during such work. McKenna v. Chicago, etc., R. Co. \[Minn.\] 100 N. W. 373. Dangers incident to the employment of making a place of known danger safe are assumed; hence a miner, ordered to fix part of roof in mine, assumed risk of such work. Indiana & C. Coi Co. v. Batey \[Ind. App.\] 71 N. E. 191.

\*\*Note: If a servant chooses to enter into an employment involving danger, he assumes the risk, even though the master might have avoided the danger. This being true of an unskilled laborer, the rule is even more strictly enforced against a skilled laborer. Foley v. Jersey City Elec. Light Co., 54 N. J. Law, 411, 24 A. 487; Chandler v. Coast City Elec. R. Co., 61 N. J. Law, 380, 39 A. 674; Johnson v. Devoe Snuff Co., 62 N. J. Law, 417, 41 Am. Rep. 986; McDonald v. Standard Oil Co., 65 N. J. Law, 446, 55 A. 289; Coyle v. Griffing Iron Co., 63 N. J. Law, 609, 44 A. 665, 47 L. R. A. 147. See, also, Beal v. Bryant \[Me.\] 58 A. 428; Dill v. Marmon \[Ind. App.\] 71 N. E. 669,--3 Mich. L. R. 164.

**35. See supra, subsection E. 36.** Brakenman did not assume risk of injury by the shifting of the platform on a car of peculiar construction. Hewitt v. East Jordan Number Co. \[Mich.\] 98 N. W. 992. Operator of steam ironing machine did not as matter of law assume risk of injury by sudden swaying of machine due to its instability as shown by the evidence. Thomas v. Exeter, etc., R. Co. \[N. H.\] 58 A. 88. Sectionman does not assume risk of being struck by refuse slate thrown by fireman while sorting coal. Swartz v. Great Northern R. Co. \[Minn.\] 101 N. W. 504. Inexperienced railroad laborer did not assume risk of getting off a moving flat ear. Mitchell v. Chicago & A. R. Co. \[Mo. App.\] 83 S. W. 289.

**37.** Brakenman did not assume risk of defective crossing gates which protected into his path along the track when he was engaged in his duties. Fearns v. New York, etc., R. Co., 186 Mass. 529, 72 N. E. 68.

**38.** Grace & H. Co. v. Probst, 208 Ill. 147, 10 N. E. 12. An employee does not assume risk of any other risk of known to him,\[44\] or which he ought to know, in the exercise of ordinary care,\[48\]

risk of using such saw without a guard.

Thicago Veneer Co. v. Walden \[Ky.\] 82 S.

W. 294. Experienced farm hand, between

19 and 20 years old, assumed risk of bundles

of oats slipping off Joaded wagon, causing him to fall. Tucker v. National Loan &

Investment Co. \[Tex. Civ. App.\] 80 S. W. 879.

Inexperienced employee digging under rock

assumed risk of pieces of it falling on him

when he struck it with his side. High-

tower v. Gray \[Tex. Civ. App.\] 83 S. W.

254. Experienced brakeman assumed risk

of working on foreign car on which hand-

hold was nearer the end of the top of the

car than on ordinary cars, such difference

in construction being obvious. Woods v. Northern Pac. R. Co. \[Twash.\] 79 P. 899. Ex

perlenced switchman, who had worked some

months in the yard where injured, assumed

the risk of injury from a switch, the

struction of which was, obvious. Loushay v.

Erle R. Co., 88 N. Y. S. 446. Petittitom did

not show that danger of working around

an ironer not provided with a fender was

not so open and obvious that plaintir, a

woman of mature age, assumed the risk.

Kluts v. Gibson Bros. \[Tex. Civ. App.\] 83

S. W. 404.

Risk held not obvious: Danger in cleaning

ing wool carding machine held not so obvious that plaintiff assumed it as a matter

of law. Sauvageau v. River Spinning Co.,

129 F. 961. Defect in ladder on ear held

not so obvious that brakeman assumed risk

of its use, as a matter of law. EB Paso N. E.

R. Co., v. Ryan \[Tex. Civ. App.\] 81 S. W.

563. A foreigner, of less than average

tellingee, did not, as matter of law,

sume the risk attending the cleaning of a

cotton picker, when he had not been

structed, had never seen the inside of the

machine, and the danger was not obvious.

Kasjeta v. Nashua Mffg, Co. \[N. H.\] 58 A.

874. Kentucky Freestone Co. v. McGee, 25

Ky. L. R. 2211, 80 S. W. 1113. The servant

assumes risks which he actually knows,

though such risks may not be obvious or

discoverable by ordinary care, Southern

Ind. R. Co. v. Moore \[Ind. App.\] 72 N. E. 479.

Mere familiarity with surroundings and circumstances may be sufficient to create

sumption of risk, although there might not

be entire familiarity with all circumstances

and conditions surrounding the place of ac-

cident. Consumers' Cotton Oil Co. v. Jone

(Tex. Civ. App.\] 80 S. W. 847. Where a

servant was injured by the falling of a pile

of iron near the track where he was

working, it was held that the fact that his

dide not relate to the department of his

master's work which embraced the piling of

the Iron, would not prevent the application

of the doctrine of assumed risk; since

whether he was charged with or had actual know

edge of a defect in the pile depended on

v. Hierold Co., \[Mass.\] 71 N. E, 854.

rounding circumstances. Avery v. Nordyke

& M. Co. \[Ind. App.\] 70 N. E, 888.

Illustrations: Engineer assumed risk of

using a headlight which he knew to be

defective. Galeston, etc., R. Co. v. Fitzpatrick \[Tex. Civ. App.\] 83 S. W. 406. Clerk,

familiar with slippery condition of marble

steps to the building where she worked, as

sumed risk of that condition. Kline v. Abra-

Crane v. Chicago, etc., R. Co. \[Iowa\], 99 N.

4 Cur. Law. MASTER AND SERVANT SS 3F.

and in view of his experience.46 He also assumes the risk of dangers of which he becomes aware in the course of his employment, if he continues to work47

W. 169. No recovery for an injury al- leged to have been caused by a defective condition of an appliance where it appeared that the servant had equal means with the master of ascertaining such condition. Hobbs v. Bowle \[Ga.\] 49 S. E. 285. A locomotive Herman, whose duty it was to inspect the locomotive's flights was injured by their leaking. It was not shown that the defects were known to the company, or were such that they ought to have been known. Heid, he assumed the risk. Kelley v. Chicago & A. R. Co., 105 Mo. App. 366, 79 S. W. 973.

A servant cannot be said as a matter of law to have assumed a risk unless it is clear that he knew, or by the exercise of ordinary care ought to have known, of the danger. Chicago & A. R. Co. v. Howseid, 208 III. 156, 70 N. E. 16. One who did not know and had no occasion to know of a defect did not assume risks arising therefrom. Bernard v. Pittsburg Coal Co. \[Mich.\] 100 N. W. 396. Lowering by hand a heavy circular piece of cast iron not so inherently dangerous as .to create assumption of risk by laborer assisting. Harris v. Williams Coceperage Co. \[Mo. App.\] 80 S. W. 924. The fact that an employe's hooked a guy into an eyebott did not charge him with the assumption of the risk of using the tackle, it not appearing that he knew or by reasonable care ought to have known of its defective condition. Caven v. Bodwell Grantle Co. \[Me.\] 59 A. 285. Evidence did not show that plaintiff had, or should have had, such knowledge of the danger of using a brass pinch that he assumed the risk of its split- citing and putting out his eye. Gulf, etc., R. Co. v. Whisenhunt Tex, Civ. App.\] 81 S. W. 332. Employe did not assume risk arising from shovel lying in gangway between engine and tank, unless it was habitually placed there by employees, so that he was charged with knowledge of its position, or unless he had actual knowledge of its position. Galveston, etc., R. Co. v. Mannus \[Tex. Civ. App.\] 84 S. W. 254. Mere knowi- edge of a defect in a chain. not such as to indicate that its use would be dangerous, does not make its use an assumed risk. International, etc., R. Co. v. Jourdan \[Tex. Civ. App.\] 84 S. W. 266. Conductor, struck by pole while collecting fares from the running board, held not to have assumed the risk as a matter of law, it not being conclusively shown that he had actual knowledge of the danger, or that it was so obvious that the was charged with such knowledge. Heoffmeier v. Kansas City-Leavenworth R. Co., 68 Kan. 831, 75 P. 1117. Where a scaffold of simple construction, with which plaintiff was familiar, fell because of hammering on support by plaintiff and fellowservants, plaintiff assumed the risk. Hughes v. Schnavel \[Colo. App.\] 78 P. 623. Employe not bound to know danger from flying particles of steel when holding a rail that was being cut. Yohs v. Shorthill Co. Toward 100 N. W. 495. A railway company held liable for an injury to an inexperienced brakeman, on ground that he could not be charged with notice of danger incurred or location of a switch staff which caused the injury. Lake without complaint.\[48\]

Mere knowledge of a defective condition will not charge a servant with the assumption of a risk; it must also appear that he appreciated the danger arising from the defect,\[49\] unless the defect is so apparent and the danger so glaring as to permit no other inference than that the servant, knowing of the defect, knew and appreciated the danger also.\[50\]

Appreciation of the whole extent of the danger is not necessary.\[51\]

The rule that known and appreciated risks are assumed applies to minors.\[52\]

_Reliance on care of master.\[53\]_

In the absence of actual or implied knowledge to the contrary,\[54\]

the servant has a right to rely on the presumption that the master has performed his duties, and supplied a reasonably safe place,\[85\]

known on it from third story: held, he as- summed the risk. Nelson v. New York, 91 summed the risk. Fortin v. Manville Co., 128 N. Y. S. 763. Knowledge that a boiler plug F. 642. Plaintiff, who knew that laundry-based did not work an assumption of the women themselves switched on electric current for the laundry, and had expressed dis- satisfaction with the custom, assumed risk of injury while inspecting fan, caused by mistake in switching on wrong current. Do boiling v. Deutscher Verein, 97 App. DIV. 39, 89 N. Y. S. 880. Employe, working under bridge deck which had been raised by Jackson assumed the risk of remaining there after being warned that it was to be let down. Pt. Worth, etc., R. Co. v. Robinson \[Tex. Civ, App.\] 84 S, W. 410.

48. Iowa Gold Min. Co. v. Diefenthaler \[Colo.\] 76 P. 981; Crooker V. Pacific Lounge & Mattres Co., 34 Wash. 191, 75 P. 632. A switchman who continues to work, after knowledge of a defect in the track, of which he does not give notice, assumed the risk of danger therefrom. Sloss-Sheffield Steel & Iron Co. v. Mobley, 139 Alta. 425, 86 S. 181. Experienced employe using energy belts, who knew they frequently broke, and could discover and report defects as they became apparent to the repearer, as- summed the risk of such belts breaking, when he had not reported a defect and asked for repairs. Taylor v. Withington & Cooley Mfg. Co. \[Mich.\] 99 N. W. 873.

01. Avery V. Nordyke & Marmon Co. \[Ind. App.\] 70 N. E. 888; Chicago, etc., R. Co. v. Tackett \[Ind. App.\] 71 N. E. 885; Chicago v., 600.

01. Youth and 1mmativity of a servant Union Terminal R. Co. \[Jow\] 99 N. W. 1985.

Depuy V. Chicago, etc., R. Co. \[Mo. App.\] 84 S. W. 103. Thus mere knowledge of a lack of precautionary measures, without knowledge of a latent danger. will not charge the employee with liability. Burns v. Delaware & A. Tel. & T. Co. \[N. J. Err. & App.\] 58 A. 220. Brackman did not as a matter of law assume risk of using a coupler structurally defective, not being shown to have actual or imputed knowledge of the danger in using it as the did. Brinkmeier v. Missouri Pac. To. \[Kan.\] 77 P. 588. That plaintiff knew there were live-wires near him did not preclude recovery for injury caused by them when he thought they were insulated and had been told they were safe. Haworth v. Mineral Belt Tel. Co., 105 Mo. App. 161, 79 S. W. 727. Employe, whose usual duties were different, ordered to set rhelts on wall of kilh, held not to have assumed risk of its falling, though there were visible defects in it. Browning v. Kasten (Mo. App.\] 80 S. W. 354. Engineer and fireman not shown to have knowledge of danger of using water containing chlorides in the boiler, so as to have as 4 Cur. Law. MASTER AND SERVANT SS 3F.

ably safe appliances,\[56\] and a sufficient number\[57\] of competent fellow-workmen,\[58\] and need not make an inspection to discover latent defects.\[59\] In other words, negligence of the master, or of his representatives, is not one of the ordinary risks of the employment, which the servant assumes.\[60\] But this rule is frequently

not assume risk of falling through open\[ risk of its falling, having no knowledge of hatchway. Schwarzschild v. Drysdale \[Kan.\] any defect, and being under no duty to in-76 P. 441. Employee had right to assume spect it. Womble v. Merchants' Grocery Co., that floor over which he was moving heavy machinery was safe. Thompson v. Ameri- can Writling Paper Co. \[Mass.\] 72 N. E. 343.

tact with live electric light wires, strong A servant, sent into a place where discovery of a dangerous defect would be difficult, to inspect, and having no knowledge of their condition. Barto v. Iowa Tel. Co. his safety has been reasonably provided for. Clark v. Wolverine Portland Cement Co. \[Tokai\] 101 N. W. 876.

57. Bonn v. Galveston, etc., R. Co. \[Tex. Co. \[Mic.\] 101 N. W. 845. One employed to assist engineer in locating entry in mine was entitled to assume that master had properly inspected the roof and made it reasonably safe. Wilson v. Alpine Coal Co. \[Key.\] 81 S. W. 278. Inexperienced muckur in mlnne may assume that mlnne is properly thinned. Mountain Copper Co., v. Van Buren \[C. C. A.\] 138 F. 1. Where It had been the custom to sand the rails on a certain grade to make it safe, a motorman had the right to assume that this duty was being continuously performed. Union Traaction Co. v. Buckland \[Ind. App.\] 72 N. E. 158. Car inspection sent between tender and baggage car to inspect chains had the right to assume that the company had furnished a reasonably safe place to work. St. Louis S. W. R. Co. v. Rea \[Tex. Civ. App.\] 84 S. W. 428. Brackeman may assume that his place of work is safe; does not assume risk from low cattle chute over track. Coles v. Union Terminal R. Co. \[Iowa\] 98 N. W. 108. Bridge Herman did not assume risk of injury from obstructions on track while riding on hand car to and from work. Texas & N. O. R. Co. v. Kelly \[Tex. Civ. App.\] 80 V. 1073. Plaintiff did not assume risk of derailment of a hand car by striking a block which fell from a train ahead, though he saw the car on which the block was loaded in the alleged negligent manner. McLean v. Perez Marquette R. Co. \[Mic.\] 100 N. W. 108.

01. Engineer may assume that company has used ordinary care in inspecting track and keeping it in a reasonably safe condition. Jackson Lumber Co. v. Cunningham \[Ala.\] 37 So. 445; Southern Kansas R. Co. v. Sage \[Tex. Civ. App.\] 80 S. W. 1038.

01. Rock Island Sash & Door Works v. Pohiman, 210 Hill 133, 71 N. E. 428: Klafkvc v. Betendorf Axle Co. \[Iowa\] 100 N. W. 1116; Missouri, etc., R. Co. v. Smith \[Tex. Civ. App.\] 82 S. W. 787. Roundhouse helper did not assume risk of insurg defective truck.

Qulf, etc., R. Co., V. Davis \[Tex. Civ. App.\] 138 S. W. 91. The servant as-

80 S. W. 253. Brackeman under no duty to inspect handheld on caboose. Missouri, etc.,

R. Co. v. Hoskins \[Tex. Civ. App.\] 79 S. W. 369: San Antonio & A. P. R. Co. v. Klauss \[Tex. Civ. App.\] 79 S. W. 58. Locomotive

60.0 limited in its application to negligence unknown to the servant,"1 or which was not discoverable by the use of ordinary care in the performance of his duties."2 It is held in Missouri that knowledge of a neglect of duty by the master does not convert the danger arising therefrom into an assumed risk, if the servant believes, and is justified in believing, that danger may be avoided by the use of due care."3

\_Relative on orders or assurances of safety."4--\_A servant does not assume a risk involved in executing a direct order of his superior, unless in so doing he acts as no ordinarily prudent person would act,"4 as where the danger is perfectly obvious."5 So also a servant may rely upon a positive assurance of safety by his

does not assume risks of defective appli-

though they result from the master's negances. Carson v. Southern R. Co. (S, C)

Iigence. Chicago, etc., R. Co. v, Benton (C.

46 S. E. 525. Risk of injury caused by defective fastening of car door and failure to

which is obvious, and continues to work,

properly inspect it not assumed. Missouri,

etc., R. Co. v, Huttenens \[Tex, Civ. App.\] 80

the defect arises through the master's neg-

S, W. 415. A risk arising from negligence

Iigence. Langloks v. Dunn Worsted Mills

of a railroad company or its servants is not

a risk "ordinarily incident to the employer."

Iigence. Langloks v. Dunn Worsted Mills

a risk "

of a railroad company or its servants is not

a risk "ordinarily incident to the employer."

Iigence. Langloks v. Dunn Worsted Mills

a risk "

of a "ordinarily" incident to the employer."

Iigence. Langloks v. Dunn Worsted Mills
superior, even though he knows there is some danger;"!" but he cannot rely upon such assurances absolutely, so as to avoid the consequences of incurring obvious and special dangers," or such as are ordinarily, incident to the employment."

_Reliance on promise to repair, after complaint."_--Where the servant has complained of a defective condition, and the master has promised to render it safe by repairs, the servant may continue in the employment, without assuming the risk,"!" for such length of time as is reasonably necessary for the making of the required repairs," unless the appreciated danger is so imminent that a man of ordinary prudence would refuse to encounter it," as where the machine or ap-

shifting a belt, an obviously dangerous po-

- **72**. Anderson v. Fielding \[Minn.\] 99 N. W.
- **857**. Studenroth v. Hammond Packing Co.
- **81**. W. 487\*\*; Missouri, etc., R.
- **82**. Baker \[Tex. Civ. Appl.\] 81 S. W. 67; Crooker v. Pacific Lounge & Mattures Co.
- **83**. Wash 191, 75 P. 632. Held, that a motor-
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pliance complained of as defective is simple, and the defect and danger obvious.74 The promise to repair must have been relied on by the servant.75 To entitle a servant to rely upon it, the promise must be positive,76 and made by one having authority to make it;77 and must remain unrevoked.78 The promise need not fix any definite time within which the repairs are to be made;79 a general promise is construed to mean that the repairs will be made within such time as is reasonably necessary for the purpose.80 If a definite time is named, the servant may continue in the service until the expiration of the time named.81

covery. It will not be presumed that a statute, charging a master with positive duties, intended to change this rule of the common law, unless the statute expressly $arepsilon$0 provides.80 Accordingly it is usually held that contributory negligence is available as a defense though the action be based on a violation of a statutory duty.90 But a contrary doctrine is applied where mining regulations are violated, owing to the great danger in that occupation.91

Footnote 91: International, etc., R. Co. v. Walters

\_Degree of care required of servant.92--\_Only ordinary care is required;93 that

61: International, etc., R. Co. v. Walters

_90._ So held under Minnesota Gen. St. 1894, \[Tex. Civ. App.J 80 S. W. 658. If a servant's $ 224, making It the duty of employers to negligence contributed in any degree or to any extent to bring about his injury, he

Osgood & Blodgett Mfg. Co., 91 Minn. 509, cannot recover. Camp v. Chicago G. W. R.

_98._ N. W. 645. Also under Indiana employers' Co. \[Iowa\] 99 N. W. 735; Little v. Southern R. Co., 120 Ga. 347, 47 S. E. 953.

Where the proximate cause of an injury is a negligent act of the employ, the fact that

218.\_ Violation of Gen. Laws 1896, e. 68, $ 6, requiring belting and gearing to be properly guarded did not give right of action, where plaintiff knew regarding to be unguard.

_324, 57 A. 718; Melly v. St. Louis, etc., R. Co._

_1\[Mo. App.J 81 S. W. 639; Berring Aff. Co. v.\] 57 A. 910._ Const. 162 and Acts 1901-02, p.

Femati \[Tex. Civ. App.J 79 S. W. 859, R. 859, R. 859, R. 859, R. 860, R. 861, R. 862, providing that knowledge of defects shall not bar recovery by a railroad of using safety coupler appliance could not

employe for injuries caused by the defects, does not take away the defense of contribu.

of his injury was getting caught in an unblocked guard rail. Gilbert v. Burlington Co.

_8._ N. R. Co. (C. C. A.) 128 F. 829. If plaintiff is guilty of contributory negligence, the mere fact that negligence of the defend-

Castrood's Adm's \[Va.\] 49 S. E. 489. Con-nothing but a willful act or willful or intentional neglect of duty will authorize a

under the automatic coupler act of Congress, recovery. Chicago, W. & V. Coal Co. v.

\_36, 580 MASTER AND SERVANT SS 3G. 4 Cur. Law.

is, such care as ordinarily prudent persons would exercise under the same circumstances.94 In determining whether due care was used in a given instance, not only the surrounding circumstances,95 but the age,96 experience,97 and capacity98 of the servant, must be considered. Mere knowledge of a defective condition which caused the injury is not conclusive on the question of contributory negligence;99 it must appear that the danger arising from it was appreciated,1

4 Cur. Law. MASTER AND SERVANT SS 3G.

or was so obvious that no prudent man would have encountered it.\* Failure to discover a latent defect is not negligence.\* But failure to remedy a known defect, or give notice of it to the master, is.\*

_Choice of methods._\* Needless exposure to danger is negligence.\* Hence, a voluntary choice of an obviously dangerous way of doing work, when a reasonably safe way is provided, is negligence,' if the work could have been as well

fective. Caven v. Bodwell Granlte Co. \[Me.\] though he did not fully realize his danger.

$9 A. 285, Where a hostler had ridden on ordinary engine tenders past a building in City. App.\] $4 S. W. 410. The fact that when the yards without injury, he was not necesarily negligent in riding on a larger tender, unless he knew it was of unusual size. Norfolk & W. R. Co, V. Cheatwood's Adm'x \[VA.\] $4 S. E. 489.

**2.** Weston v. Lackawanna Min. Co. \[Mo. App.\] $8 S. W. 1044; Cole v. St. Louis Transit Co. \[Mo.\] $1 S. W. 1183; Ahrens & Ott Mfg.

So. \[Mo.\] $1 S. W. 1184; Ahrens & Ott Mfg.

Co. v. Rellhan \[Ky.\] $2 S. W. 993. That employe knew that a hammer used in crush- IOFA set of \[Mo.\] $2 S. W. 993. That employe knew that a hammer used in crush- IOFA set of \[Mo.\] $2 S. W. 993. That employe knew that a hammer used in crush- IOFA set of \[Mo.\] $2 S. W. 993. That employe knew that a hammer used in crush- IOFA set of \[Mo.\] $2 S. W. 994. That employe knew that a hammer used in crush- IOFA set of \[Mo.\] $2 S. W. 994. That employe knew that a hammer used in crush- IOFA set of \[Mo.\] $2 S. W. 995. That employe knew that a hammer used in crush- IOFA set of \[Mo.\] $2 S. W. 996. That employe knew that a hammer used in crush- IOFA set of \[Mo.\] $2 S. W. 997. That employe knew that a hammer used in crush- IOFA set of \[Mo.\] $2 S. W. 998. That employe knew that a hammer used in crush- IOFA set of \[Mo.

and efficiently performed in one way as in the other.\* But if more than one reasonably safe method is open, choice of one rather than the other is not negligence,9 especially if the one chosen is customary, and ordinarily safe.10

Footnote 10: The _same_ is the same as the _same_, but the _same_ is the same as the _same_.

\_Reliance on master's care.11--Ordinarily, failure of a servant to inspect does not charge him with negligence, since he may assume that the master's duties relative to his tools, appliances, and place of work have been performed,12 and that the rules of his employer will be observed.13 A servant is not chargeable with negligence as a matter of law, when he acts in reliance on an assurance of safety by a superior,14 or when he is executing orders given him by a superior;15 but

Footnote 13: The _same_ is the same as the _same_, but the _same_ is the same as the _same_.

Footnote 14: A milli reparman had a right to rely on the superinendents' statement that he was going to shut down for repairs. Math-ews _vs_, Daly West Min. Co., 27 Utah, 193, 75 P. 722. Use of street car with a defective brake was not necessarily negligence, when the motorman was assured by those who selected the cars that it was fit for use. Cole v. St. Louis Transit Co. (Mo.) 81 S. W. 1138. Inexperienced and ignorant employee in distilery relied on assurance of milli that he such assurance" or order17 of a superior does not excuse the lack of due care on the part of the servant. If the danger incurred in executing an order is so great and apparent that no prudent man would have encountered it, the ,act that the order was given will not relieve the servant from the consequences of his negligence.18 The question is usually one for the jury,19 and the fact that an act was done in obedience to orders ; pertinent on the issue of the servant's care.20

_Disobedience_ of orders,23 or instructions of a superior,22 or failure to observe the rules of the employer,23 or a penal statute or municipal ordinance,24 will defeat a recovery for injuries proximately caused thereby.

\_Emergencies.25--\_Unwise or incautious conduct of a servant in attempting to extricate himself from a dangerous position in which he has been placed by negligence chargeable to the master is not negligence;26 nor will negligence be imputed to a servant who attempts to save life, unless his conduct is rash and reckless.27

could safely do certain work without a light. He could recover for the resulting injury. App. 8 & 9. V. 107s. Servant ordered to use mydgen v. H. E. Pogue Distillery Co. (KK.):

ussafe hydraulic jack. Wurtenberger v. Metropolitan St. R. Co., 68 Kan. 642, 75 P.

15. Plaintiff held not guilty of negligence

01. Where foreman directed employe to in obeying engineer's directions as to man-

set bricks at a kiln, he was not negligent

ner of doing work. Bernard v. Pittsburgh

conal Co. \[Mich\] 100 N. W. 396. That a

brakeman took part in making a flying

aswitch in violation of the company's rules

held not to prevent a recovery by him, when

\[Mo. App.\] 80 S. W. 354. Contributory neg-

the act was ordered by his superiors.

Inies Cent. R. Co. v. Jones' Adm'r \[Ky.\] 80 S. W. 484. Evidence held to show plaintiff

attempted to make a coupling by direction

of a superior; hence there was no choice of

methods In which to do the act. Fenn v.

Senboard Air Line R. Co., 126 Ga, 664, 48 S. E.

141. Brackeman, under instructions from con-

duetor, went between cars to couple them;

held not negligence though rules were violated. Carson v. Southern R. Co. (S. C.) 46

S. E. 525. Railroad laborer, with only a few

days" experience, had a right to presume that

getting off a flat car in motion was not dangerous, when ordered to do so by his fore-

employe disobeyed engineer's instructions

man. Mitchell V. Chicago & A. R. Co. \[Mo. \].

$\\lambda$pp.\] 83 S. W. 288. The servant may assume

that the master, in ordering him to do particular work will not expose him to unnecessary danger, and if he acts with ordinary

care under the circumstances, and is never-

theless injured, he may recover though he had some knowledge of the danger. Jancko

v. West Coast Mfg. & Inv. Co., 34 Wash. 556,

76 P. 78.

16. One who continues to operate an un-

swarded saw, relying upon a promise to guard it, must use reasonable care to protect himself. Crooker v. Pacific Lounge & Mattress Co., 34 Wash. 191, 75 P. 632.

17. Texas, etc., R. Co. v. Kelly \[Tex. Civ. App.\] 80 S. W. 1073.

01. Bering Mfg. Co. v. Femait \[Tex. Civ. App.\] 79 S. W. 869: Truly v. North Lumber Co., 83 Miss. 430, 38 Ga. \[Danger of being struck by pieces of rock under which

ploye was tunneling. Hightower v. Gray

\[Tex. Civ. App.\] 83 S. W. 154. Where plaintiff was injured by a collision between a

trim and a push car, if his conduct in re-

maining in a position of danger was not that

of an ordinarily prudent person be could not

recover, though he claimed he relied on a

command of his superior. International,

i.e., R. Co. v. Tisdale \[Tex. Civ. App.\] 81 S. W. 347.

19. Texas, etc., R. Co. v. Kelly \[Tex. Civ. App.\] 80 S. W. 1073. Servant ordered to use

mydgen v. H. E. Pogue Distillery Co. (KK.):

ussafe hydraulic jack. Wurtenberger v. Metropolitan St. R. Co., 68 Kan. 642, 75 P.

1049. Where foreman directed employe to

in obeying engineer's directions as to man-

set bricks at a kiln, he was not negligent

ner of doing work. Bernard v. Pittsburgh

in obeying the direction unless the danger

Coal Co. \[Mich\] 100 N. W. 396. That a

of a wall of the kiln falling was so palpable

that no person of ordinary prudence would

switch in violation of the company's rules

have encountered it. Browning v. Kasten

held not to prevent a recovery by him, when

\[Mo. App.\] 80 S. W
_Discovery of servant's peril; intervening negligence._\[28\]--Though a servant has been guilty of negligence in placing himself in a position of peril, the master owes him the duty of ordinary care for his safety, after discovering his peril;\[29\] and the master will be liable if negligence chargeable to him intervenes and proximately causes an injury:\[30\]

The sufficiency and admissibility of evidence on the issue of contributory negligence is treated in a succeeding section.\[31\]

(SS 3) _H. Actions._ 1. _In general._\[32\]--The law of the place where the injury occurred governs the right of recovery.\[33\] Venue is statutory.\[34\]

to avoid a collision with a passenger train. \[tion. Thus the "last chance" doctrine was International, etc., R. Co. v. McVey \[Tex. Del. Not applicable where a brakeman placed Civ. App.\] 81 S. W. 91. Recovery permitted himself in a dangerous position by violating rules and going to the caboose, instead of attempting to cut a live wire which had some in contact with a fellow-employe.

\[\] Whatworth by Shreveport Belt R. Co., 112 L. 853, 36 S. 414.

\[\] **28.** See 2 Curr. L. 840.

\[\] **29.** Engineer owed a switchman the duty of trying to save him after discovering him in a position of peril in front of his engine.

\[\] **31.** See post, subl. H. 4.

\[\] **32.** See 2 Curr. L. 841. The action given by the employers' liability act is merely cumulative of the common-law remedy and the allegations in support of each are the same except the allegation of notice necessary under the statute. Monigan v. Erle R.

\[\] **33.** Johnson v. Union Pac. Coal Co. \[Utah\]

\[\] **34.** \*\*76 P. 1089. Common-law fellow-servant rule, as applied in Idaho, where injury occurred, followed in Utah. Sartin v. Oregon Short Line R. Co., 27 Utah, 447, 76 P.

\[\] **31.** Texas law governs right to recover for injury occurring in Texas, caused by negligent loading of number on a car, though the car was loaded in New Mexico. El Paso, etc., R. Co. v. McComas \[Tex. Civ. App.\] 81 S. W. 760. Where contract of employment was made in Illinois, to be, and in fact, there performed, and the accident occurred there, -> of trying to stop the train, but also of -> nothing the whistle. Id. Complaint allegging that engineer carelessly moved a -> in after a brakeman had placed himself -> a perilous position between cars held to -> state a cause of action. Cleveland, etc., R. Co. v. Lindsay \[Ind. App.\] 70 N. E. 283. De-fense of contributory negligence held not available when conductor's negligence in signaling to start an engine by which gravel train was unloaded was the proximate cause of plaintiff's injury by sudden flying up of cable, the conductor having notice at the time of plaintiff's position of danger. Southern Indiana R. Co. v. Fine \[Ind.\] 72 N. E. 588.

\[\] **33.** The rule regarding discovered peril is of course not applicable where the perilous position of the servant was not in fact known, and there was no reason to suppose the servant would put himself in such posi 4 Cur. Law. MASTER AND SERVANT SS 3H3. 585

Notice of the action must be given if required by statute;35 but such notice is unnecessary if the action is based on the common law38 or on a statute under which a notice is not required.37

(SS 3H) 2. \_Parties.38--\_The law as to parties to the action is the same as that applicable to other actions, and need not be here stated.39

(SS 3H) 3. \_Pleading and issues.40--\_The _complaint or petition_ must show the existence of the relation of master and servant,41 and the existence of a duty owed by the master to the servant at the time of the injury alleged.42 Knowledge of a defect by the master43 and want of knowledge by the person injured44 must be

contrary to pure morals or abstract justice,ercise care toward the servant; a direct al- nor so inconsistent with the public policy negation of the existence of a duty, without of Vermont that it will not be enforced in such facts, is a mere conclusion of law. that state. Id. Pittsburgh, etc., R. Co. v. Lighthieser \[Ind.\]

34. Under Acts 27th Leg. p. 31, c. 27, $ 1, 71 N. E. 218, 44. on petition for rehearing, 71 N. E. 660; Kasadarian v. James Hill

railroad corporation for personal injuries

Mfg. Co., 130 F. 62. Characterization of an

the county in which the injury occurred or

act, in a pleading, as "negligent" will not

in which plaintiff resided at the time of the

injury, an employee for an indefinite term

must sue In the county where he boarded

Pup Co. v. Davis, 162 N. E.

and was injured though this domicle was

outside the state. Gulf, etc., R. Co. v. Rogers 17e., Civ., App.l. 82 S. W. 822.

sx. Statutory notice of injury to master

hold sufficient when given by one retained

for the purpose, who dictated the same to

a stenographer, the latter signing his name

by his authority. Greenstein v. Chick

\[Mass.\] 72 N. E. 955. Under the employers

\[Iability set (Laws 1902, p. 1749, e. 600), re-

quiring notice of the injury by the servant

within 120 days, or in case of his death, by

that it is one practable to operate in the

his executor within 60 days, notice by the

latter within 120 days after the accident is

in time, though not within 60 days after his

appointment. Hoehn v. Lauts, 94 App. Div. 14, 87 N. E. 921.

14, 87 N. X. 8, 921.

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Alleged. A complaint is demurrable if it shows on its face that the servant assumed the risk\[45\] or was guilty of contributory negligence\[44\] or that the negligence complained of was that of a fellow-servant for which the master was not liable\[47\] though these defenses need not be anticipated by specific allegations\[48\].

Though a general allegation of negligence may be sufficient as against a general demurrer\[49\] or after verdict\[50\] it is usually necessary to allege specific acts

Ga. 1030, 48 S. E. 438. Allegation that fore-man "knew" of danger in loosening a buckled rail, construed to include the allegation that he ought to have known. Southern R. Co. v. Blevins \[C. C. A.\] 130 F. 688. Where mine roof was alleged to be unsafe by reason of defendants' negligence, an averment that defendant knew of its unsafe condition was unnecessary. Wilson v. Alpine Coal Co. \[Ky.\] 81 S. W. 278.

44. Want of knowledge of defect in coup-ler. Cleveland, etc., R. Co. v. Lindsay \[Ind. App.\] 70 N. E. 283. Averments of want of knowledge of the servant must be as broad as the averments of knowledge on the part of the master. Consolidated Stone Co. v. Stages \[Ind. App.\] 71 N. E. 161. A complaint on the theory that the injury was caused by the incompetency and inexperience of a boy in charge of a switch, and that the master had been negligent in employing the boy for that purpose, must allege that plaintiff had no knowledge of the boy's incompetency before the injury. Indianapolis & G. Rapid Transit Co. v. Andis \[Ind. App.\] 72 N. E. 145. A general allegation of want of knowledge of dangers will not avail, as against a de-murrer, when other allegations show that the servant must have known of the dangers or defects complained of, or had an equal opportunity with the master of knowing of them. Baltimore, etc., R. Co. v. Hunsucker \[Ind. App.\] 70 N. E. 566. A petition showing on its face that plaintiff knew or ought to have known of defects alleged, and hence that he assumed the risk, is demurrable notwithstanding an allegation "that said defects and dangers " * were not so apparent. and imminent as to justify a reasonably prudent man" in refusing to obey a perenmporary order of his foreman. Smith v. Armour & Co. Tecz, Civ. App.\] 84 S. W. 675. Failure to allege want of knowledge by plaintiff of dangerous condition of mine roof cured by allegations of notice in the answer. Wilson v. Alpine Coal Co. \[Ky.\] 81 S. W. 278. In Rhode Island a declaration for injuries from a dangerous condition must negative assumption of risk by setting up want of knowledge of the danger or an excuse for continuing to work after acquiring such knowledge. Dalton v. Rhode Island Co. \[R. I.\] 87 A. 383.

Contru: In an action for injuries caused by defects in appliances, plaintiff need not allege want of knowledge of the defects. Cole v. St. Louis Transit Co. \[Mo.\] 81 S. W. 1138.

45. Declaration showing that plaintiff must have known of defective car wheel and disarrangement of lumber on car, demurrable, because showing that he assumed risk of being struck by lumber falling on the car when struck by a post. Truly v. North Lumber Co., 83 Miss. 430, 36 So. 4. An allegation of want of knowledge of danger 4 Cur. Law. Master and Servant SS 3H3. 587

of negligence.\[51\] A general allegation of negligence which directly indicates the act or omission complained of is sufficient to withstand a demurrer for want of facts.\[52\] A court cannot infer that appliances were unsafe,\[53\] or that the master was at fault.\[54\] Less certainty and particularity are required where the facts, from their nature, are peculiarly within the knowledge of the other party.\[55\] The negligent acts relied on must be pleaded directly and not by way of recital.\[56\] Merely pleading facts showing a violation of a rule does not necessarily constitute a showing of negligence.\[57\] Wrongful negligence, and wantonness and willfulness, cannot be joined in the same count.\[88\] It must appear from the pleading that the negligence alleged was the proximate cause of the injury.\[50\]

proper objection having been ratsed on the trial, and contributory negligence having been then relied on as the sole defense. Yazoo, etc., R. Co. v. Schraag \[Miss.\] 86 So. 193. 51. Palmer Brick Co. v. Chenal, 119 Ga. 119 Ga.

A complaint alleging negligence of the master in furnishing appliances and negligence of his servants in using them states a cause of action for joint and several negligence."

\_The answer.--\_It is usually held that the defense of assumption of risk," continuity negligence," or that the negligence was that of a fellow-servant" must be specially pleaded. If both assumption of risk and contributory negligence are relied on they must be separately pleaded." Where due care is alleged in the complaint, a denial of the allegation is sufficient to raise the issue," and if the complaint alleges that the person charged with negligence was a foreman or vice-principal, the defendant may prove that he was a fellow-servant under a general denial." If plaintiff's own- evidence shows assumption of risk, the defense is available though not specially pleaded."

\_Issues, proof, and variance."--\_Recovery, if at all, must be for the negligence alleged" and proof of negligence not alleged is inadmissible." An allegation of

Wicker \[Ind. App.\] 71 N. E. 223. Where complaint alleged that negligent acts of an engineer, which constituted a violation of an ordinance, were the sole cause of the injury, section foreman while hand car was run-it was not necessary to allege that the in- jury would not have resulted if the ordinance of company's failure to provide rules as to had been obeyed. Pittsburgh, etc., R. Co. v. Lythuissey, V. New York, etc., R. Co. \[Gcon.\] 68 A. 459. On a 60. Carson v. Southern R. Co. \[S. C\] 46 S. E. 525.

IEEE \[Ind.\] 71 N. E. 223. Where complaint alleged that negligent acts of an engineer, which constituted a violation of an ordinance, were the sole cause of the injury, section foreman while hand car was run-it was not necessary to allege that the in- jury would not have resulted if the ordinance of company's failure to provide rules as to had been obeyed. Pittsburgh, etc., R. Co. v. Lythuissey, V. New York, etc., R. Co. \[Gcon.\] 68 A. 459. On a 60. Carson v. Southern R. Co. \[S. C\] 46 S. E. 525.

IEEE \[Ind.\] 72 N. E. 223. Where complaint alleged that negligence was reflected in injuries to the deceased were incident to his occupation and services as a brake-based was sufficient to raise the issue of assumption of risk. Adams v. San Antonio & A. P. R. Co. \[Tex. Civ. App.\] 79 S. W. 79.

OEA. VWonlie v. Merchants' Grocery Co., 135 N. C. 47, 47 S. E. 493. Answer held to contain general averment of contributory negligence in use of benches or tres in unloading car under which any fact showing negligence in such use could be shown. Bell v. Gulf, etc., R. Co. \[Tex. Civ. App.\] 81 S. W. 134.

Under Code 13896, $ 3295, In all personal injury actions, the general issue "not guilty" puts in issue all material allegations of the complaint. Sloss-Sheffield Steel & Iron Co. v. Mobley, 139 Ala. 425, 46 S. 181. Sustaining a demurrer to a special plea of contributory negligence is harmless error where there is a general plea under which any phase of contributory negligence may be proven. Moble, etc., R. Co. v. Bromberg \[Ala.\] 37 So. 395.

**63.** Bonnin v. Crowley, 112 La. 1025, 36 So. 812. Conflict of authority on the point recognized. Duff v. Willamette Iron & Steel Works \[Or.\] 78 P. 263.

**64.** A plea setting up both Is duplletions. Kansas City, etc., R. Co. v. Thornhill \[Ala.\] 37 So. 412.

**65.** Hutchings v. Mills Mfg. Co. (S. C) 47 S. E. 710.

**66.** Johnson v. Heath \[Neb.\] 98 N. W. 832.

**67.** Iowa Gold Min. Co. v. Diefenthaler \[Colo.\] 76 P. 81. White v. Lewington & Y. F. R. Co., 94 App. Div. 4, 87 N. Y. S. 901.

**68.** See 2 Curr. L, 847.

**69.** Recovery, if at all, must be upon the case made by the pleadings and evidence introduced thereunder. Allen v. Chicago, etc., R. Co. \[Howal\] 101 N. W. 863. Negligence alleged being defect in track, an instruction authorizing recovery for defective coupler negligence of the master will admit proof of the negligence or incompetency of a vice-principal, that he was a vice-principal, and that his incompetency was known to the master, and these facts need not be specially alleged.\[11\]

\_Pleading statutory causes of action.\[72\]--\_A statutory cause of action may be joined with one based on the common law,\[18\] but not in one count.\[14\] In New York, a complaint stating a cause of action at common law may be amended by allega-

Blanchard-Kamilton Furniture Co. v. Colvin, of materials furnished a workman, under 32 Ind. App. 398, 69 N. E. 1032. A declaration alleging injury of a brakeman by coming in contact with a telegraph pole neg-

Iackson \[Conn.\] 68 A. 762. An allegation (in contact with a telegraph pole neg-

that "appliances and devices necessary and

ligently permitted to stand near a switch

used for and in aid of coupling were in a track is sufficient without referring to the party who placed the pole there. Illinois

was sufficiently broad to admit evidence that

Terminal R. Co. v. Thompson, 210 Ill. 226,

the car in question had no environ. Eelt

T1 N. E. 328. And proof that the pole was

Orignally erected by a party other than the

Under an allegation that plainIf was ex-

railway company which owned the premises

ercising due care, he may prove that he

is not a variance, when it is alleged that the

was doing his work in the manner in which

railway company permitted the creation of

the pole. Id. An allegation that rallie were

not alleged that he was acting under a spec-

"inseuvely fastened to the cross-tie"'s sup-

ported by proof that the ties were rotten.

Northern Ala. R. Co. v. Shea \[Ala.\] 37 So. 796.

**Amendment of complaint:** A complaint

the boiler of the engine being blown out,

which sets up failure to Instruct as the

actionable negligence may not be amended

by adding allegations of a failure to prov

was admissible. Missouri, etc., R. Co. v.

vide suitable and safe machinery and appliances. Moyer v. Ramsay-Brishbane Stone

71. This is intimated to be the rule

Co., 119 Ga. 734, 46 S. E. 844. Where neg-

litense charged was unsafe fastening of a

rule a contrary holding on a former ap-

particular door, which fell on plaintiff, a

legal, the question not being properly raised,

longshoreman, It was error to allow an

marndment, over objection, charging a

general diplidated condition of the dock. New

the boiler of the engine being blown out,

trial granted though no application for a

pansionment was made. Oats v. New York

Dock Co., 90 N. Y. S. 878.

70. Where negligence complained of in an

action by a teamster was that the lines

law' action that the negligence complained

were too short and the wagon had no seat,

evidence of the lack of a brake was

land-
cient as against demurter, though the neg-

misible. Limberg v. Glenwood Lumber Co.

\[Cal.\] 78 F. 782. In an action based solely

on negligence of a servant in operating a

grain dump at sn elevator, evidence

geidding the condition of the dump was

which merely suggest that a fellow- servant

irrelevant. Healy v. Patterson, 123 Iowa, 81,

may have owed a duty which he neglected

98 N. W. 576. Evidence that defendant acted

in good faith in putting a servant to work

72. See 2 Curr. L. 843, n. 60; Id. 844, n. 66,

with frozen dynamite and believed him capa-

ble of using it Inadmissible, when plaintiff

73. Common-law count based on duty

did not allege or claim willful or wanton

owed to one on premises by invitation of

conduct or punitive damages. Currently v.

Jackson \[Conn.\] 68 A. 762. Where the neg-

ligence alleged as the cause of a enve-in in

a mine was improper thmpering, evidence of

other particular causes of a cave-in was

not visible, when there was no evidence of

the existence of such causes in the mine in

question. Mountain Copper Co. v. Van

Buren \[C. C. A.\] 138 F. 1. Under an allega-

tion that it was a conductor's duty to have

such a reasonable knowledge of the location

of cars as to make a coupling safely, a question whether it was not his duty to know the

exact spot where certain cars were when a

coupling was being made, was improper.

Virginila, etc., R. Co. v. Bailey \[Va.\] 49 S. E.

33.

**Evidence held admissible:** Facts showing

Imputed knowledge of dangerous condition

**R. Co. v. Balesv**

\*\*R. Co. v. B tions bringing the cause within the employers' liability act.78 Where the facts alleged bring the action under an employers' liability act, due service of the statutory notice must be alleged.79 Other decisions as to pleadings in actions based on statutes are treated in the notes.71

(SS 3H) 4. \_Evidence. Burden of proof and presumptions.78--\_The burden

75. Laws 1902, p. 1748, c. 600, merely ex-tteds the master's common-law liability; it does not give a new remedy. Multigun v. We unnecessary for the defendant to set up

Erie R. Co., 99 App. Div. 499, 91 N. Y. S. 60.

76. Under New York act (Laws 1902, p. 1748, c. 600), notice of the time, place, and cause of the injury must be given within 120

days. Crosby v. Lehigh Valley R. Co., 128

F. 193. But it the action is at common law, and is not based on the statute, no allegation of notice is necessary. Gmaehle v. Rosenberg, 178 N. Y. 147, 70 N. E. 411.

77. Alabama: In an action based on a violation of the automatic coupler act, the complaint need not alleg the manner in which such violation caused the injury. Mo-

bile, etc., R. Co. v. Bromberg \[Ala.\] 37 So.

395. In an action under Code 1896, SS 1749, subsec. 5, to recover from the company for negligence of an engineer resulting in the

freman's death, the complaint was held in-

sufficient for not alleging the engine was on the railway; but held to sufficiently

specify negligence of the engineer. Sloss-

Sheffield Steel & Iron Co. v. Mobley, 139 Ala.

425, 36 Sc. 181. A count under Code 1896, SS 1749, subd., 5, allegating that plaintiff injuries were caused by the negligence of one

at the time operating a locomotive on the

track of defendant's road, is insufficient if

it does not allege that such person was at

the time an employee of the defendant. Ala.

hama Great Southern R. Co. v. Williams

\[Ala.\] 37 So. 256. In an action under Code 1896, SS 1749, 1751, for death of an engineer,

caused by a defective track, an allegation

that the railway was defective at or near

the point where the engine was derailed

was sufficient. E. E. Jackson Lumber Co. v.

Cunningham \[Ala.\] 37 So. 445.

All panels: An averment that defendant

"wrongfully and uniafwhfully" employed

plaintiff, a minor under 14 years of age, who

had not produced an affinit that the was 14,

in a mine, is a sufficient allegation of a

will not of conscious violation of a statute

prohibiting such employment of minors and

giving a right of action to such a person, if

inferred (Hurd's Rev. St. 1889, a 931. Mar-

quette Third Vein Coal Co. v. Delie, 208

Ill. 116, 70 N. E. 17.

Indian: Under the Indiana employers

liability act, the plaintiff need not allege or

prove want of contributory negligence. Acta 1899, p. 58 (Durna' Ann. St. 1901, 3 5893),

providing that plaintiff in actions for

sonal injuries need not allege he was in the

exercise of due care, applies to actions based

on employers' liability act. Pittsburgh, etc.,

R. Co. v. Lighthieser \[Ind.\] 71 N. E. 218.

Chicago & E. R. Co. v. Latin \[Ind. App.\] 72 N. E. 539. Pittsburgh, etc., R. Co., Collins

\[Ind.\] 71 N. E. 661. A complaint allegation

neglience of defendant as the proximate cause of the injury is sufficient, unless

contributory negligence is disclosed on its face.

Cleveland, etc., R. Co. v. Goddard \[Ind. App.\] 71 N. E. 514. Nor need the complaint

71 N. E. 515. Nor need the complaint nega * 4 Cur. Law. MASTER AND SERVANT SS 3H4.

- is upon a servant, seeking to recover for injuries, to prove negligence of the master, \[79\] the presumption being that the latter's duties have been duly performed. \[80\] It is usually held that mere proof of the occurrence of an accident does not warrant an inference of negligence on the part of the master, \[81\] but some courts hold that the doctrine _res ipso loquitur_ applies in some cases, \[82\] as where the appliance from which the injury results is one required by law to be furnished by the master, \[83\] and the circumstances attending the injury are such as to warrant the inference that the accident would not have occurred if the master had used due care. \[84\] The burden is also on the plaintiff to prove that the negligence alleged was the proximate cause of the injury. \[85\]
- 70. Nord v. Boston & M. Consol. Copper & plank was split and broke when employe Silver Min. Co. \[Mon.\] 17 EUR 611; Neeley v. Southwestern Cotton Seed Oil Co., 13 Okl.
- 356, 75 P. 537; Cully v. Northern Pac. R. Co., 35 Wash. 241, 77 P. 202; Moore Limp Co., v. Johnston's Adm? \[V.4\] 8 S. E. 557. Burden is upon plaintiff to prove he was dirched to work on a machine other than the one he was employed to operate. McManus v. Davidit, 94 App. Div. 481, 88 N. Y. S. 55. The employee must show that a defect was known to the employer, or that he could have known of it by the exercise of ordinary care. Glasscock v. Sowford Bros. Dry Goods Co. \[Mo. App.\] 80 S. W. 364. Plaintiff, alleging the vicious and unruly disposition of a horse furnished him, and defendant's knowledge thereof, had the burden of proof thereon. Palmer v. Coyle \[Mass.\] 72 N. E. 544.
- 80. Chicago, etc., R. Co. v. O'Brien \[C. C. A.\] 122 F. 593; Glasscock v. Sowford Bros. Dry Goods Co. \[Mo. App.\] 80 S. W. 364. As that a sufficient number of competent servants has been provided. Hilton v. Fitchburg R. R. \[N. H.\] 59 A. 625. The presumption is that such rules as were necessary were prescribed. Hill v. Boston, etc. R. Co., 72 N. H. 518, 57 A. 924.
- 81. Egan v. New York, etc. R. Co., 5 Ohio C. C. (N. S.) 483; Chicago, etc., R. Co. v. O'Brien \[C. C. A.\] 132 F. 593; Droney v. Doherty \[Mass.\] 71 N. E. 547; Glasscock v. Sowford Bros. Dry Goods Co. \[Mo. App.\] 80 S. W. 364; Rickaky v. John O'Brien Boller Works Co. \[Mo. App.\] 82 S. W. 963; Neeley v. Southwestern Cotton Seed Oil Co., 13 Okl.
- 356, 75 P. 537; Moore Limp Co. v. Johnston's Adm? \[Va.\] 48 S. E. 557; Young v. O'Brien \[Vwash.\] 79 EUR 211. The res ipso louitur dectrines is rarely applied in master and servant cases. G. A. Duerler Mfg. Co. v. Dulling \[Tex. Civ. App.\] 83 S. W. 889. Proof merely of breaking apart of pipe, without any evidence as to the cause, does not warrant an inference of negligence. Edgens v. Gaffney Mfg. Co. \[S. C.\] 48 S. E. 538. The fact of an accident, lirjuring a brakeman, occasioned by the operation and stopping of a train does not give rise to a presumption of negligence. Allen v. Chicago, etc., P. R.
- 82. It is said that while there is a conflict, the trend of American authority in tcv ward the support of the text. Palmer Brick Co. v. Chenall, 119 G. 837, 47 S. E. 329.
- 83. Breaking of ladder under noded carrier is presumptive evidence of negligence, under Labor Law $ 18, warranting recovery if unruly explained. Cummings v. Kenny, 97 App. Div. 114, 89 N. Y. S. 579. Evidence that a Most courts hadd that the burden of proof of assumption of risk\*\* and contributory negligence\*\*7 is on the defendant, but there are contrary holdings.\*\*88 The defendant is entitled to the benefit of evidence on these issues, though introduced by plaintiff.\*\*89 Where the defendant denies the existence of the relation of master and servant, the burden is upon the plaintiff to prove such relation,\*\*90 **and if the injury is alleged to have been caused by negligence of other servants, the burden is upon plaintiff to allege and prove that the relation of fellow-servants did not exist.**91****

_Admissibility in general.92--On the issue of the master's negligence, evidence_

egin{tabular}{l|l} \\multicolumn{1}{l}{} & \\multicolumn{1}{l}{} & \\multicolumn{1}{l}{} \\ \\end{tabular}

**Ifgence of the company, where a brakeman** & S. 279; Carley v. Gair, 93 App. Dlv. 614, 87 N.\*\* \\ & was killed while attempting to couple cars, & Y. S. 709; Goodhines v. Chase, 91 N. Y. S. and there was no proof of negligence of any\*\* & 113; Glasscock v. Swofford Bros. Dry Goods other servant. Caldwell v. Missouri Pac. R. Co., \[Mo. App.\] 80 S. W. 364. Plaintiff must\*\* \\ & show want of contributory negligence under\*\* & **set creating liability for Injury caused by** \\ & Silver Min. Co. \[Mont.\] 75 T. 681; Illinois & defects in ways, works, and machinery\*\* \\ & Cent. R. Co., V. Coughlin \[C. C. A.\] 132 F., & **\[Laws 1902, p. 1174, c. 600\]. Hoehn v. Lautz, 801; G. A. Duerler Mfg. Co., V. Dufling \[Tex.\] 84 App. Dlv. 14, 87 N. Y. S. 921. Substant** \\ & prove that a defect in an engine indicated by a pounding in the cross head was the\*\* & **endimplement of children under sixteen un-** \\ & cause of the breaking of the eccentric rod, & filed is sufficient to place upon an injured\*\* \\ & which caused his injury. Kirstead v. Bryant, 98 Me. 523, 57 A. 788. Where assistant\*\* & **ligence. Lowry v. Anderson Co., 96 App. Dlv, 465, 89 N. Y. S. 107. No recovery for** \\ & to engine, but there was no evidence to show\*\* & **death of low in elevator shaft, when no one** \\ & how he was killed, an alleged defect in the engine was not proven to have been the\*\* & **saw the accident, and there was no evidence** \\ & or want of contributor negligence. Lowry v. & v. Anderson Co., 96 App. Dlv, 465, 89 N. Y.\*\* \\ & V. Anderson Co., 96 App. Dlv, 465, 89 N. Y. \\ & **S. 107. The rule in 49 O. S, 598 as to the** \\ & **burden of proving contributory negligence** \\ & so/d have resulted from either of two\*\* \\ & in case of defective appliances or unsafe\*\* \\ & places of work. Is an exception to the\*\* \\ & would be responsible, plaintiff cannot recover\*\* \\ & erase. Cleveland, etc., R. Co., 7chan, 4 \\ & damage was done by one cause as by the\*\* \\ & other. Nelson v. New York, 91 N. Y. S. 107. & **9.15. A presumption of** \\ & negligence arises which it is the duty of the\*\* \\ & **administator to rebut, when it appears that** \\ & the**porting of the train, the burden was** \\ & upon him to show that such\*\* \\ & **day\*\*\*\*are, have seen the train by which** \\ & to the automatic coupler being out of repair, & he was struck, or by listening would have\*\* \\ & and not to other causes, for which defend\*\* \\ & **heard it, in time to have stepped from his** \\ & ant would not be responsible. Meehn v. & place of danger. Green v. New York, etc., \\ & Great Northern R. Co., \[N. D.\] 101 N. W., 183. Burden on plaintiff to show that\*\* \\ & **has no stopped as quickly by method** \\ & actually employed as it could have been had\*\* \\ & it been equipped with a proper clutch. & **endimplement. Glasscock v. Swofford Bros. Desrostras v. Boum \[R. I.\] 58 A. 627.** \\ & **has** **. E. Jackson Lumber Co., V. Cunningham** \\ & ham \[Ala.\] 87 So. 445; Jenks v. Thompson & **to show non-assumption of risk by reason** \\ & **of** **illability of employment, to show she had** \\ & phile **Pulp & **Papper Co., 91 N. Y. S. 279;** \\ & Missouri, etc., R. Co. v. Jones \[Tex. Civ. App.\] & **p, 477, c. 415, 87 of other similar accidents" and of subsequent repairs* is usually excluded; but the condition of the place of work or appliances prior* or subsequent to* the accident is admissible, provided such condition is shown to have remained unchanged. Condition of other places or appliances cannot be shown."7. The customary method of doing work,"8 common and general use of an appliance* or of safeguards1 may

**93.** Evidence of other similar accidents to taln year, was admissible to show its condition at the time of the accident. Illinois same machine. Cohen v. Hamblin-Russell Catt. R. Co. v. Prickett, 210 Ill. 140, 71 N. E. Mfg. Co. \[Mass.\] 71 N. E. 445. It is sometimes permissible to prove prior similar accident.

**96.** Evidence of the condition of rails and deaths; such evidence cannot be excluded when it is-brought out as a part of a proper cross-examination. Schwarzschild v. Drysdale \[Kan.\] 76 P. 441. Evidence tending to raodbed. Jackson Lumber Co. v. Cunningham worked admissible as descriptive of the machine. Davis v. Kornman \[Ala.\] 37 So. 445. Witness permitted to give observations and measurements of the machine. Davis v. Kornman \[Ala.\] 37 railway crossing, made after accident, when So. 789.

**94.** Going v. Alabama Steel & Wire Co.

\*\*\[Ala.\] 37 So, 784. Evidence that knives of McAdams \[Tex. Civ. App.\] 84 S. W. 1076, a planner were sharpened and a belt tightened

Evidence regarding position of plank on after an accident, handmissible. Helling v. Sehlhofer \[Ca.\] 78 P. 710. Evidence of the blue when no change of conditions meanwhile manner in which an amery wheel was safe-guarded after an injury held admissible to shin. Co. \[Utah\] 77 P. 347. Evidence that swearal years after accident cable was fast-evidence of subsequent repairs or precautions is usually inadmissible to prove negligence. La Porte Carriage Co. v. Sullender

erroneously admitted, without limiting its \[Ind. App.\] 71 N. E. 922. Precountary

measures taken after an accident to prevent injury to other employees inadmissible. Davis v. Kornman \[Ala.\] 37 So. 789.

**95.** Evidence by quarry superintendent as to condition of quarry on day of accident ad-

show condition at time of accident when missloble. Lane Bros. & Co. v. Bauserman

\[Va.\] 48 S. E. 857. Evidence of condition of circular saw several months before accident

Doherrity \[Mass.\] 71 N. E. 547. Evidence of dent admissible when there was other evidence that its condition had remained unchanged during the interval. Dunekake v.

heart a new catch plate had been attached.

Beyer, 25 Ky. L. R. 2001, 79 S. W. 209.

Condition of packing rings and their effm-

L. W. W. 396.

clency in keeping oil out of a boller two years before an accident could be shown, when plaintiff agreed to prove such condition had remained unchanged. Shea v. Pa-

cile Power Co. \[Ca.\] 79 P. 378. Evidence

that a brake, the alleged defective condition

of which was alleged as the cause of accident, was defective three or four days before it was used by decedent, admissible. Terre Haute Ellec. Co. v, Kely \[Ind. App.\] 72 N.

E. 658. Condition of building six weeks before may be shown to prove its condition at time it collapsed; at least its admission in this case was not reversible error. Nelson

v, "Young, 91 App. Div. 457, 87 N. Y. 8, 69.

In action for death of car driver by material falling on him in mime entry, evidence of condition of entry and how its unsafe condition could have been ascertained was ad-

missloble. McFarland's Adm' v. Harlson & Walker Co. \[Ky.\] 82 S. W. 430. Exclusion of evidence that an alleged defective ma-

cile bad been repaired eleven weeks before the accident held proper, in the discretion of the court, on the ground of remoteness.

B. V. Kornman \[Ala.\] 37 So. 445. Witness permitted

N. E. 862. In an action for wrongful death of car driver by material falling on him in mime entry, evidence of

condition of entry and how its unsafe condition could have been ascertained was ad-

missloble. McFarland's Adm' v. Harlson & Walker Co. \[Ky.\] 82 S. W. 430. Exclusion of evidence that an alleged defective ma-

cile bad been repaired eleven weeks before

to identify decayed timbers taken from the accident, on the ground of remoteness,

ham \[Ala.\] 37 So. 445. Witness permitted

machine worked admissible as descriptive of the machine. Davis v. Kornman \[Ala.\] 37 railway crossing, made after accident, when

So. 789.

**94.** Going v. Alabama Steel & Wire Co.

Queen to accident. Galveston, etc., R. Co. v.

\[Ala.\] 37 So, 784. Evidence that knives of McAdams \[Tex. Civ. App.\] 84 S. W. 1076, a planner were sharpened and a belt tightened

Evidence regarding position of plank on after an accident, handmissible. Helling v.

Sehlhofer \[Ca.\] 78 P. 710. Evidence of the blue when no change of conditions meanwhile

manner in which an amery wheel usually be shown. Other holdings as to the admissibility of evidence on the issue of the master's negligence,2 contributory negligence of the servant,3 and assump-

negligence of the engineer in allowing the engine to move, it was competent to show what the custom of firemen running with this particular engineer had been. Cleveland, etc., R. Co. v. Bergschicker, 162 Ind. 108, 69 N. E. 1000. Proof of a general method of letting rails into a mine is handmissible without proof of a similarity of conditions at the time and place of the accident to conditions generally. Johnson v. Union Pac. Coal Co. \[Uttawa\] 76 P. 1089. Proof of general custom as to the time and manner of inspecting locomotive engines and boilers is admissible, if confined to the custom of well regulated and prudently managed companies. Illinois Cent. R. Co. v. Pricket, 210 Ill. 140, 71 N. E. 435. 89. Custom and usage of well regulated shops to have no set screws on the handles of shifters attached to drill presses is ad-missible, but not conclusive on negligence in omitting such screws. Going v. Alabama Steel & Wire Co. \[Ala.\] 37 So. 784. The fact that the appliance used was similar to that used by many other prudent persons in the games, a question how often the tube and its camera then is business may be shown, but does not exempt the employer from liability. Davis v. Kornman \[Ala.\] 37 So. 789. While a negligent act will not be exeved by the fact that it is customary, proof c. common and general use of an appliance is admissible on the issue of negligence in selecting and furnishing such appliance. Evidence that a block and hook of a certain construction was in common and general use admitted. Anderson v. Fielding \[Minn.\] 99 N. W. 357. After testimony that switch stands of a certain kind had been in use for 29 years, it was proper to show on cross-examination that they were being replaced by others of a later pattern. Chicago & A. R. Co. v. Howell, 205 Ill. 155, 70 N. E. 15. 1. Evidence that it was customary to place guards or spaenders on rip saws to protect the operator admissible. Crooker v. Pacific Lounge & Martress Co., 34 Wash. 191, 75 P. 632. Where evidence as to the custom of using guards on rip saws was in conflict, testimony of one who had visited mills that 24 out of 27 such saws examined were guarded was admissible. Id. Under a general averment of negligence of the master in not placing guards on a rip saw, evidence of a custom of using such guards was ad-missible. Id. Evidence of the usage of well regulated railroads as to the maintenance of stock gaps by them is relevant in an action for wrongful death of a brakeman struck by such a structure, but is not conclusive on issue of defendant's negligence in maintaining it. Northern Ala. R. Co. v. Manesell \[Ala.\] 36 So. 459. On the question whether the use of a machine without a guard is negligence, the admission of evidence regarding the practice in other mills in regard to similar machines is discretion-ary with the court. Such evidence is relevant, but may be excluded because introducing collateral issues. Dolan V. Root Cotton Mills, 185 Mass. 576, 70 N. E. 1025. Evidence that a guard rail had been erected at a culvert near a coal chute irrelevant on issue whether that was a necessary precaudent, but may be excluded because it is not possible to use a single- 4 Cur. Law. MASTER AND SERVANT SS 3H4. 595

tion of risk,\* and the admissibility of declarations as res gestae,\* are treated in the notes.

dence, without the latter part of the sen- \[Iowa\] 100 N. W. 1116. Where failure to tence which alleged proper construction of the bridge and proper warning; but the evidence regarding the instructions given and dence was not admissible to prove negligl- \[Iowa\] 100 N.

596 MASTER AND SERVANT SS 3H4. 4 Cur. Law.

Luman v. Golden Ancient Channel Min. Co. \[Ca1.\] 74 P. 807.

they are approaching stations admissible \[Ca1.\] 74 P. 807.

Evidence descriptive of machinery' A diagram of an alleged defective pile driver and appliances is admissible, if shown to be \[Trachem's interpretation of dispatcher's correct, though not made by the witness using it. Koon v. Southern R. Co. \[S.C.\] 48 S. E. 86. Evidence as to whether it was possible for one's hand to come in contact with \[Trachem's interpretation or to \[CoS Wheels of a spinning frame when the cover was on was admissible to describe the machine. Gomes v. New Bedford Cordage Co. \[Mass.\] 72 N. E. 840. After evidence that a particular ear on which plaintiff was injured was one of a series, evidence regarding the measurements of cars of that series is available. Illinois Cent. R., Co. v. Pricket, was admissible. Chicago & A, R. Co. v. \[Trac.\] 208 Ill. 155, 70 N. E. 15. Evidence that drawbar In coupler had too much lateral play, and showing the reasons for the defect to be a lack of retaining bolts, admissible as tending to show coupler defective. Evidence that another brakeman coupled Belt R. Co. v. Contery, 209 Ill. 844, 70 N. E. 773.

Rutes: In an action for injuries to an en-gineer caused by derailment in a washout, the company's rules relative to the placing of watchmen at dangerous points in stormy weather were admissible. Galveston, etc., R. Co. v. Fitzpatrick \[Tex. Civ. App.\] 83 S. V. 406. A book of alleged rules, admitted to contain rules adopted since an accident, is inadmissible as a whole to prove rules alleged to have been in force at the time of the accident. Quinn v. Brooklyn Heights R. Co., 91 App. Div. 488, 85 N. Y. S. 883. In an action by fireman for injuries received through backing of engine while taking on coal, the court should have construed and passed on the relevancy of a rule relative to the care of engines on sidetracks, etc. Cleveland, etc., R. Co. v. Bergschicker, 162 Ind. 108, 69 N. E. 1000.

Experiments: Permission to perform experiments before the jury is discretionary with the court. Carr v. American Locomotive Co. \[T. I.\] 58 A. 678. Evidence of experiments with an emery belt inadmissible when no effort was made to prove conditions were the same as those attending the accident. La Porte Carriage Co. v. Sullender \[Ind. App.\] 71 N. E. 922.

3. An employee may testify that he relled on a superintendent's statement that a mill in which he was making repairs was to be shut down. Mathews v. Daly-West Min. Co., 27 Utah, 193, 75 P. 722. Where negligence alleged was defective condition of track, evidence of brakeman's (plaintiff's) knowledge of such condition at place of the accident and at other points was admissible. International, etc., R. Co. v. Penn \[Tex. Civ. App.\] 79 S. W. 624. Evidence as to location of nearest turntable admissible to show why engine was run backward on a certain part of the road. Southern Kansas R. Co. of Texas, v. Sage \[Tex. Civ. App.\] 80 S. W. 1083. Evidence that no notice was posted at a blast hole, which plaintiff was cleaning out, that it was loaded, was admissible. Lane Bros. & Co. v. Bauserman \[Va.\] 48 S. E. 867. Evidence of schedule time of trains at a certain point admissible to show we stoch forneman not negligent in using the track with his push ear at a certain time. International, etc., R. Co. v. McC-Vey \[Tex. Civ. App.\] 81 S. V. 891. A rule requiring brakemen to be out on trains when \[Trac.\] 83 H. 44 Cur. Law.

Luman v. Golden Ancient Channel Min. Co. \[T.\] 74 P. 807.

they are approaching stations admissible \[Ca1.\] 74 P. 807.

on issue whether plaintiff was acting in line of duty when injured. Morriste v. Cana-diagram of an alleged defective pile driver and appliances is admissible, if shown to be \[Trachem's interpretation of dispatcher's correct, though not made by the witness using it. Koon v. Southern R. Co. \[S.C.\] 48 S. E. 86. Evidence as to whether it was possible for one's hand to come in contact with \[Trac.\] 74 P. 807.

they are approaching stations admissible \[Ca1.\] 74 P. 807.

on issue whether plaintiff was acting in line of duty when injured. Morriste v. Cana-diagram of an alleged defective pile driver and appliances is admissible, if shown to be \[Trachem's interpretation of dispatcher's correct, though not made by the witness using it. Koon v. Southern R. Co. \[S.C.\] 48 S. E. 86. Evidence as to whether it was possible for one's hand to come in contact with \[Trac.\] 74 P. 807.

We have argued that the correct functioning of the event is \[Trac.\] 74 P. 807.

_Expert and opinion evidence._"--If witnesses are shown to be properly qualified," they may testify as experts in regard to matters requiring special skill and knowledge,8 such as the danger attending particular methods of doing work," or the use of certain instrumentalities10 or machines,11 and whether such danger could be avoided.12 But mere conclusions of fact13 or opinions are inadmissible

Ironworks \[Iowa\] 101 N. W. 520. An admis-

f floors. Consumers' Cotton Oil Co. v. Jonte

son of a general sales agent, after an acel-

\[Tex. Civ. App.\] 80 S. W. 847. The method

dent causing a servant's death, was a mere

\[Tex. Civ. App.\] 80 S. W.

narration of a past event, inadmissible to

\[way poles is a matter of common knowledge prove the servant charged with negligence was incompetent, and that the master knew

\[command=

egin{tabular}{}
on issues which, under the evidence, are exclusively for the jury,14 such as proximate cause,15 negligence,16 and contributory negligence.17

4 Cur. Law. MASTER AND SERVANT SS 3H4. 599

and conduct of other employes of defendant; \[25\] the reasonable safety of the place of work \[24\] or appliances, \[25\] or methods of work adopted; \[26\] the necessity and rea-

v. Now York, etc., R. Co., 96 App. Div. 81, 89 N. Y. S. 23. In leaving signal bell exposed so that signal was accidentally given; and in Halling to instruct as to two to clean machine. Moyes v, Ogden Sewer-Pipe & Clay Co. \[Utah\] 77 F. 610. Where evidence showed an injury caused by starting of machine during to shifting of belt kept in place by defective appillance there was a prima facie showing of negligence to go to jury. Going v, Alabama Steel & Wire Co. \[Ala.\] 37 So. 784. Coal packets collapsed, in-juring plaintiff, directed to work under them, after defendant had been twice warned that structure was unsafe. O'Donnell v. Welz, 97 App. Div. 286, 98 N. Y. S. 958. Planks ordered to be carried down satriway in mine shaft; one slipped down and struck plaintiff. Jensen v. Commodore Min. Co. \[Min.\] 101 N. W. 944. Where defendant set plaintiff to work, requiring him to keep his arms in fur eye all day, assuring him it was harmless, plaintiff being thereby injured. Segal v. Padlasky \[Vis.\] 101 N. W. 381. Evidence held to justify submission to jury of issue whether defendant and another corporation were operating as partners the portion of the railroad on which plaintiff was killed. Harrill v. South Carolina & G. Extension R. Co., 135 N. C. 601, 47 S. E. 730. In an action based on a violation of the automatic coupler act, that deceased was coupling cars when killed, that the ears were not provided with automatic couplers, and that the accident was the result of old-fashioned couplers slipping by one another, makes a prima facie case. Mobile, etc., R. Co. v. Bromberg \[Ala.\] 37 So. 395. Evidence of negligence has unfmeet. Baumwald v. Trenkman, 88 N. Y. S. 182. Wilians v. Belmont Coal & Coke Co. \[W. Va.\] 46 S. E. 802. Brackeman killed between larvaheads while making a coupling. Cala-well v. Missouri Pac. R. Co., 181 Mo. 455, 89 N. W. 897. Injury from explosion of blasting powder in mine. Shaw v. New Year Gold Mines Co. \[Mont.\] 77 F. 515. Injury to shovcler in gravel pit. Cully v. Northern Pac. R. Co., 35 Wash. 241, 77 F. 202. Whether mining company was negligent in failing to keep mine properly timhered so as to prevent a cave-in. Mountain Copper Co. V. Van Buren \[C. C. A.\] 133 F. I. Boy's eye destroyed by explosion of bottle of carbonated water, Duerler Mfg. Co. v. Dulling \[Tex. Civ.\] .pp.\] 83 S. W. 889. Boy of 17 taken to railroad yard to be "broken in" and instructed, by experienced man, killed between cars, making a coupling. McMillan v. Grand Trenk R. Co. of Canada \[C. C. A.\] 130 F. SS27. Where mine boss was struck by a mis-sile, the nature of which was unknown, from above, while working on top of a case in a mine shaft. Jacobson v. Smith, 123 Iowa, 263, 98 N. W. 773. Trainmen not negligent in running train at too great a rate of speed, or in falling to stop, where section hand fell on pilot of engine from position near the track. Helm v. Milsouri Pac. R. Co. \[Mo.\] 84 S. W. 5. Switching crew had no knowledge of inspector's position between cars, and were not negligent in shunting cars down the track. Whitlev v. Chicago, etc., R. Co. \[Mo. App.\] 83 S. W. 65.

sonableness of rules,27 warnings and instruction,28 and whether rules were made29

N. E. 863. Maintaining unguarded a ditch

Negligence in original construction of freight

and pile of earth across path on premises by

which employees came to work. Norris v. 135 N. C. 414, 47 N. E. 493. Whether master

Cudahy Packing Co. \[Iowa\] 100 N. W. 853.

V whether condition of blocking between

exercise of ordinary care. Cudahy Packing

main and guard rail was defective through

Co. v. Roy \[Neb.\] 99 N. W. 231. Defendant

company's negligence. Plerson v. Chicago &

N. W. R. Co. \[Iowa\] 102 N. W. 143. Whether

railway company was negligent in maintain-

ing a scale box within 2 feet of ralls,

where tracks were standard distance apart,

held for the jury. Texas & P. R. Co. v.

Swearingn, 25 S. Ct. 164. Failure of master

ter to provide a reasonably safe crucible in

foundry. Athens & O. Mfg. Co. v. Rellihan

(Ky.) 82 S. W. 993. Hatchway of ship

Analytical T\[Tem.\] 77 N. W. 1056. Railway comn-

any had knowledge of defective condition

43 Misc. 535, 89 N. X. S. 500. Steam pipes

improperly fastened to polilers. Bonnin v.

M. R. Co. \[Mos.\] 84 S. W. 61. Finding that a

Crowley, 112 L. 1025, 36 S. 842. Leaving

coding wheels unboxed. Gomes v. New Bedford

ford Cordage Co. \[Mass.\] 72 N. E. 840. Cog

wheel of machine uncovered. Rock Island

Sash & Door Works v. Pohlman, 210 Ill. 133,

71 N. E. 428. Failure to inspect blast holes

to discover unexplored pieces of dynamite.

Hoe v. Boston & N. St. R. Co. \[Mass.\] 72

N. E. 341. Injury caused by stepping on

servap of sheet Iron in pathway leading to

factory. Flinn v. Ironeland Mfg Co., 90 N. X.

S. 887. Construction, repairs and inspection

of a steam reservoir In brewery. Kruger v.

Bartholomay Brew, Co., 94 App. Div. 68, 87

N. Y. S. 1054. Minor servant fell down

evideme sufficient to warrant finding that

vator shaft. Brager v. Austin \[Md.\] 58 A.

432. Plaintiff injured by falling through

trap door. Bateman v. New York, etc., R.

Co., 178 N. Y. 84, 10 N. E. 199. Miner struck

by rock falling from roof. Tennessee Coal.

Iron & R. Co. v. Garrett \[Ala.\] 37 So. 355.

Condition of railway track. Jackson Lumber Co. v. Cunningham \[Ala.\] 37 So. 445.

Car driver in m line killed by material falling

from roof. McFarland's Adm'r v. Harlshon

& Walker Co. \[Ky.\] 82 S. W. 430. Death of

servant caused by loose plani in walk along

a coal conveyer he was required to oil.

Clark v. Wover Portland Cement Co.

\[Mich.\] 101 N. W. 845. Telephone company

sued for injuries to lineman caused by Ilve

electric light wire strung on defendants'

poles. Barto v. Iowa Telephone Co. \[Iowa\]

101 N. W. 876. Where vice-principal ordered

plaintiff to clean out blast hole, without

amination, and an explosion resulted. Har

ris v. Balfour Quarry Co. \[N. C.\] 49 S. E. 95.

whether inspection of railroad track was

sufficient in the exercise of due care. Jackson

Lumber Co. v. Cunningham \[Ala.\] 37 So.

445.

Evidence insufficient to prove negligence

of railway company in maintaining railroad

frog with excavation underneath. Riley v.

Louisville & N. R. Co. \[C. C. A.\] 138 F. 904.

25. Diamond v. Planet Mills Mfg. Co., 97

App. Div. 43, 89 N. Y. S. 635. Whether a

machine was properly guarded. Green v.

American Car & Foundry Co. \[Ind.\] 71 N. E.

268; Dowd v. Erle R. Co. \[70 N. J. Law, 451,

57 A. 248. Evidence held to support finding

that defendant was negligent in failing to

furnish suitable materials for construction

of sewer, and that snb negligence was the

proximate cause of a servant's death.

Kurgelska v. Jackson \[Minn.\] 101 N. W. 66.

Louisville & N. R. Co. \[C. A.\] 138 F. 904.

of piles was a reasonably safe place. Depuy

7 v.

or warning or instruction given; 30 and what was the proximate cause of the injury alleged. 21 The same rule applies as to the issues of the existence of the re-

Evidence held Insuffleent: To prove a been made and promulgated, plaintiff was valve and stem used in oil burning rivet entitled to go to jury on the issue whether a heater unsafe. Carr v. American Locometve

safe place to work had been provided. Quinn Co. \[TR. I\] 58 A. 678. Brakeman fell from V. Brooklyn Heights R. Co., 91 App. Div. car owing, as alleged, to a defective ladder 489, 86 N. Y. B. 883. Submission to the jury thereon. Carleton v. Great Northern R. Co. \[Minn.\] 101 N. V. 601. To support finding company governing employees and dispatchment defend had not furnished proper appliances for anchoring a derrick car. Wag-

error, when there was no evidence to show her v. New York, etc., R. Co., 93 App. Div.

14, 86 N. Y. B. 921. To show hammer and co., 72 N. H. 600, 57 A. 920. The question spikes used in laying steel were defective

of the sufficiency of rules governing the and unsafe. Gawages v. Fitchburg R. Co.,

movement and management of cars was err-

185 Mass. 76, 69 N. E. 1063. Injury from

concepts should be of the jury when there was no evidence to show other rules in use

of master in furnishing unsafe appliances. Vender v. Red Wing Gas & Elec. Co. \[Minn.\] 95 N. W. 625.

would be more practicable or render the movement of trains safer. Ward v. Mannhat-

26. Whether method of lowering caps by

which piles were held in alignment, adopted

30. Whether instructions were given by

by forearm, was reasonably safe. Deputy v. young and inexperienced employe regarding

Chicago, etc., R. Co. \[Mo. App.\] 84 S. W. 103.

Mether a system of protecting car repair-

ers by blue flag signals is more efficient

M. W. 900. Whether fringe over railway

in protecting workmen than a system of personal warning by the yardmaster. State

v. South Baltimore Carworks \[Md.\] 88 A.

447. Whether a business is such as to require promulgated or rules, and whether

for the court if the facts are not disputed. rules adopted are proper, for the purpose

Defective pipe on engine held not proxi-

for which they were intended. Johnson v.

mate cause of engineer's injury. Douglass

Union Pac. Coal Co. \[Utah\] 76 P. 1089. The

reasonableness of rules promulgated by the

160. Plaintiff need not prove the cause al-

master is for the court; but where there is

dowth as to the applicability of rules to par-

by demonstrative evidence: proof of its prob-

ticular duties, a question of fact is presented. Rules requiring inspection of ap-

the jury. Cecl v. American Sheet Steel Co.

pliances, and reports on defects discovered,

\[C. A.\] 129 F. 542. Whether the negil-

held not applicable to an engine, on which

the footboard and handhold were defective,

so as to bar recovery by a switchman obliged

stronger than that plaintiff's own negligil-

to use them without opportunity for inspection. Leduc v. Northern Pac. R. Co. \[Minn.\]

100 N. V. 708.

28. The necessity and adequacy of instructions to servants in a particular instance. Creachen v. Bromley Bros. Carpet

S. W. 499. Evidence held to support finding

Co., 209 Pa. 6, 57 A. 1101. Necessity of In-

structing employee, engaged to hold rails

to secure wheel of machine before loading

while being cut, as to danger from flying

it into a vragon was proximate cause of

particles of steel, and how to avoid it.

Vohs v. Shorthill Co. \[Iowa\] 100 N. W. 495.

Tack Co. \[Mass.\] 72 N. E. 255. That boiler

Whether railway company was negligent in

explosion was caused by action of childges

failing to put out signal or giving other

in water, and not by negligent acts of en-

warning regarding an obstruction on track.

Rogers v. Cleveland, etc., R. Co., 211 Ill. 126,

71 N. E. 850. Whether master was negligent

that defect in blow-off, attached to boiler.

in falling to instruct and warn inexperienced

was the cause of an explosion. Goodhines v.

operator of Kneebloiter in shing factory.

Chase, 91 N. Y. S. 313. Where plaintiff was

Jancko v. West Coast Mfg. & Inv. Co., 34

injured by falling of a chest from a shelf,

Wash. 556, 76 P. 78. Whether the lack of

shown to be inclined and hence defective.

experience of a telephone employee was such

proof that a chest had fallen from the shelf

as to make it the master's duty to warn and

in question, it fell of itself, was held insuff-

in theeman. Britton v. Cent. Union Tel. Co.

\[C. C. A.\] 131 F. 844. Where a boy of 13

sears was injured by a dangerous machine

chest could not have been caused otherwise.

which lation of fellow-servants,\[32\] contributory negligence,\[32\] particularly where the servant is a minor,\[34\] and assumption of risk.\[35\]

a nonsuit for failure to prove one as the proximate cause. Carson v. Southern R. Co. \[N. C.\] 49 S. E. 559. Whether failure of first section of train running in two sections to send back a flagman was proximate cause-held to require submission of the issue to the jury. Sloss-Sheffield Steel & Iron Co. \[S. R.\] 149 S. R. 181. Whether defective track at curve or negligence of engineer in operating engine caused derailment and fireman's death. Shurant v. Atlanta, etc., R. Co. \[C. C. A.\] 138 F. 505. Whether falling of stone was caused by defective pillar cap in mine. Cecil V. American Sheet Steel Co. \[C. C. A.\] 129 F. 542. Whenther failure to furnish reasonably safe appliances caused an injury. Anderson v. Fielding \[Minn.\] 99 N. W. 387. Whether straight-ened condition of hook used in unloading vessel was sole cause of injury. Martin v. Merchants' & Miners' Transp. Co., 185 Mass. 487, 70 N. E. 934. Whether unprotected cow-wheel in mill was proximate cause. Roek Island Sash & Door Works v. Pohlman, 210 Ill. 183, 71 N. E. 428. Whether erratic motion of loaded bucket or negligence of derrick engineer in swinging it to doek at the time caused the accident. Robinson v. Pittsburg Coal Co. \[C. C. A.\] 129 F. 324. Whether plaintiff's condition was due to disease or a fall caused by use of an alleged defective wrench. O'Brien v. Missouri, etc., R. Co. \[Tex.\] 82 S. W. 319. Whether section foreman's negligence in running hand car on a train's time was cause of injury to a hand while lifting car off to avoid collision. Illinois Cent. R. Co. v. McIntosh \[K.Y.\] 80 S. W. 486. Whether defective condition of automatic stop on elevator was proximate cause of injury to operator. Central Union Bldg. Co. v. Kolander, 212 Ill. 27. 72 N. E. 50. Whether particle which struck plaintiff's eye came from unguided carry belt. La Porte Carriage Co. v. Sullender \[Ind.\] 71 N. E. 922. Whether the cause of injury was the furnishing of a defective appliance, or improper use of a proper appliance. Koon v. Southern R. Co. \[S. C.\] 48 S. E. 86. Where a servant was last seen going between cars to make a coupling, and his body was found near the place, the time and manner of his death were for the jury. McHugh v. Manhattan R. Co. \[N. Y.\] 72 N. E. 312. Whether injury to quarry employee driving a load of stone was caused by a defective brake. Allison v. Long Clove Trap Roek Co., 92 App. Div. 611, 88 N. Y. 833. Whether injury was caused by defective sand drier. Walker v. Carolina Cent. R. Co., 135 N. C. 738, 47 S. E. 675. Whether requr-ing employee to work near live wire without inz

# 4 Cur. Law. MASTER AND SERVANT SS 3H4.

F. 172; Cobb Chooelate Co. v. Knudson, 207

III. 452, 69 N. E. 816; Belt R. Co. v. Confrey, 209 11. 344, 70 N. E. 773; Baltimore, etc., R. Co. v. Cavanaugh (Ind. Appl.) 71 N. E. 239;

Cafter v. Boston Towboud Co., 185 Mass. 496.

70 N. E. 833; Martin V. Merchants & Miners, 50, 185 Mass. 485, 70 N. E. 934;

McKinnon v. Ritter-Conley Mfg. Co. \[Mass.\] 71

71 N. E. 296; Droney V. Dobrity \[Mass.\] 71

N. E. 547; Sipes v. Michigan Starch Co. \[Mcl.\] 100 N. W. 447; Maurer v. Gould \[N. J. Law1\] 59 A. Z. 87; Franck V. American Tartar Co., 91 Appl. Div. 571, 87 N. Y. 821; Krueger v. Bartholomay Brew. Co., 94 App. Div. 68, 87 N. Y. 8. 1054; Kamp V. Coke Bros. G. Co. \[Utah\] \[WIS. 91 N. V. 866. The question of con- tributory negligence is for the jury unless the evidence so conclusively discloses lie that

ring over that plaintiff was negligent in conreasonable men in the exercise of Impartial

luimg to use it. Robbins v. Big Circle Min,

judgment could draw no other conclusion. Co., 105 Mo. App. 78, 79 S. W. 480. Where

Gilbert v. Burlington, etc., R. Co. \[C. C. A.\] 128 F. 529; Fremont Brew. Co. V. Schultz

chine and it appeared superintendent had

\[Neb.\] 101 N. W. 234; Lebeau v. Dyerville

promised to repair it. Calhoun v. Holland

Mfg. Co. \[R. L\] 67 A. 109; Janacko v. West

Laundry, 208 Pa. 139, 57 A. 350. Where

Coast Mfg. & Inv. Co., 34 Wash. 556, 76 P. 78.

plaintiff slipped on floor and came in contact

Where an employ continues in the employ-

with saw. Aspenahub v. Ellis \[Ind. Appl.\] 72

ment after a promise to remedy a defective

N. E. 527. Inexperienced boy employed to

appliance, and the promise is then revoked,

empty hoppers injured, by revolving knives

expressly or impliedly. Neeely v. South-

of planer, issue being whether he had

western Cotton Seed Oil Co., 13 Old. 356, 75 P. 547. Whether a situation into which a

Crosse Box Co. \[Wis.\] 101 N. W. 935. Serv-

servant's hand caught in unguarded cogs.

that no prudent man would have risked it,

Stehner v. Creamery Package Mfg. Co. even under orders, is for the jury. Wurten-

\[Iowa\] 100 N. W. 345. Use of defective tongs

berger v. Metropolitan St. R. Co., 68 Kan.

642, 75 P. 1049. Where plaintiff was injured

by caving of walls of trench in which we was

whether use of saw in certain way was neg-

at work. Shea v. Manning \[Ala.\] 87 So. 683.

Embploye fell into empty coal bin. Nord v.

Hoston & M. Consol. Copper & Silver Min.

tory negligence of servant who used an un-

Co. \[Mont.\] 75 P. 681. Plaintiff fell into un-

garded pit. Aetna Powder Co. v. Earland-

\[Min.\] 99 N. W. 857. Whether plaintiff was

son \[Ind. Appl.\] 71 N. E. 185. Where truck-

In charge of moving machine and was neg-

man got foot caught in screw in through, in

the floor, a board which he placed over it

slipping. Virginia Portland Cement Co. v.

Luck's Adm'r \[Va.\] 49 S. E. 577. Experi-

ened Ironworker went upon timber hashed to

uprights and used as scsvold, and fell on

account of the beam turning. Welk v. Jackson Architectural Ironworks, 90 N. Y., 541.

Employe fell into ditch duy across path on

remless used by employes to get to their

work. Norris v. Cudahy Packing Co. \[Iowa\]

100 N. W. 852. Whether motorman was neg-

ligent in leaving his controller handle where

the foreman could get it and run a car out.

Bien v. St. Louis Transit Co. \[Mo. Apppl.\] 83

S. W. 988. Telephone Ineman injured by

live electric light604

ralway track, causing derallment and Gre-

Chicago, etc., R. Co. \[C. C. A.\] 138 F. 150.

man's death. Shingart v. Atlanta, etc., R.

Train hand killed by being struck by'ears

Co. \[C. C. A.\] 133 F. 505. Section hand lift.

Irie car of truck to avoid collision where

a switch engine. Peoples v. North Carolina

bandcar was running on train's time by

R. Co. \[N. C.\] 49 S. E. 87. Whether em-

foreman's orders. Illinois Cent. R. Co. v.

ploye's act in stepping across a track in

Melitonst \[Ky.\] 80 S. W. 496. Employive was

front of an approaching loaded car con-

thrown off step of caboose by sudden jerk

tributed proximately to his falling through

of train due to increase in speed at a point

a hole in the track. Texas Portland Cement

where train was expected to stop. Whisen-

& Linne Co. v. Lee \[Tex. Civ. App.\] 82 S. W.

nant v. Southern k. Co. \[N. C.\] 49 S. E. 859.

306. Elevator operator free from negligi-

Whether brakeman should have known of

erence. Central Union Bldg. Co. v. Kolander,

proximity of switch stand to track and was

212 Ill. 27, 72 N. E. 50. Plaintiff not guilty

negliment in attempting to mount an engine

of negligence in driving a violous rule over

passing it. McCabe v. Montana Cent. R. Co.

an alleged dangerous roadway in mine.

\[Montl.\] 76 P. 701. Whether an engine "hose"

their" crushed between a tender and a build-

71 N. E. 854. Where trakman looked for

ing in the yards was at his post of duty

a train and then started for a totolouse, and

when killed. Norfolk & W. R. Co. v. Cheaten

would have arrived there before a train

wood's Adm'x \[Va.\] 49 S. E. 489. Whether

could have reached him, if running within

brakeman had notice of, and appreciated

the speed limit, he was not negligient in

danger from, a pole near the track, so that

not looking again or in walking on the

under the circumstances, he exercised due

and of the ties. Camp v. Chicago Great

care. Illinois Terminal R. Co. v. Thompson.

Western R. Co. \[Iowa\] 99 N. W. 785. Plain-

210 Ill. 226, 71 N. E. 828. Section man struck

iff had no knowledge that hydraulic ma

by train while attempting to remove hand-

car under foreman's orders. Kansas City,

was not negligient. Kiraffe v. Bettendorf

etc., R. Co. v. Thornhill \[Ala.\] 37 S. 64.

Alx C. \[Iowa\] 100 N. W. 116. Hand car

Contributory negligence of engineer killed

deralled by striking block fallen from train

In collision, Yazoo & M. V. R. Co. v. Behara

ahead; plaintiff not negligent though he

\[Miss.\] 36 So. 192. Engineer of switch en

and seen the card loaded with mill refuse,

gline got out to look for hot box on engine,

and had followed on the hand car. McLean

and was killed by collision with cars which

v. Pere Marquette R. Co. \[Mich.\] 100 N. W.

had been kicked up a grade, in charge of a

748. Fireman not negligent in going on

braeeman, who failed to set brakes. Mis-

running board of engine. Ellington v. Great

sourt Pac. R. Co. \[Minn.\] 100 N. W. 218

Fireman injured by engine going through

withton from negligence in riding

bridge which train was sent with crew to

on footboard on tender. Leduc v. Northern

repair. Kath v. Wisconsin Cent. R. Co.

Pac. R. Co. \[Minn.\] 100 N. W. 108. Section-

\[Wis.\] 99 N. W. 217. Brackeman injured by

man, back 18 feet from engine, not negill-

running into defective crossing gates which

gent, when struck by state thrown by fire-

projected in hla path as he ran along

bendent sorting coal. Swartz v. Great Northern

side the cars. Feams v. New York, etc., R.

R. Co. \[Minn.\] 101 N. W. 504. Where fire-

Co., 186 Mass. 528, 72 N. E. 68. Unloading

man, injured in collision caused by en

freight with use of movable "brow" or pla-

gincer's being asleep, was at the time busy

form. Murphy V. New York, etc., R. Co.

firing in response to engineers's previous or

\[Mass.\] 72 N. E. 330. Evidence sufficient to

door to keep the engine "red-hot". Southern

show deceased negligent in attempting to

R. Co. v. Cheaves \[Miss.\] 86 So. 691. In-

uncuncuncuncunc cars without cutting off the air

Jury
14.0.10.10.

(SS 3H) 5. _Instructions._\[36\]--Only a few illustrative holdings are here given, the general principles governing the giving of instructions being treated fully elsewhere.\[37\]

Instructions must be confined to the issues raised by the pleadings,\[38\] and the evidence.\[39\] They should include all acts of negligence relied on by the plaintiff, and supported by evidence,\[40\] and where more than one ground is relied on, error in instructing on either aspect of the case is reversible.\[41\] The defendant is en-

so that he assumed the risk of falling by stepping on it. Galveston, etc., R. Co. v. Toliver \[Tex. Civ. App.\] 84 S. W. 375. Where manns \[Tex. Civ. App.\] 84 S. W. 254. Whether plaintiff assumed risk by going back to work after compalining to superbendent is promise to repair had been made. Going of danger and a promise by the latter to look after it. McKinnon v. Ritter-Conley 784.

Mfg. Co. \[Mass.\] 71 N. E. 296. Whether a defect in a crucible was known to or should have been known to plaintiff. Ahrens & O. Mfg. Co. v. Relliman \[Ky.\] 82 S. W. 933. Whether operator of saw assumed risk of being struck by piece of timber, and of putting his hand on the saw in consequence. Dean V. St. Louis Woodenware Works \[Mo. App.\] 80 S. W. 292. 'Whether girl of 14 assumed risk of working in wooden factory, and getting caught in machinery, Mayfield Woolen Mills v. Frazier, 25 Ky. L. R. 2263, 80 S. W. 456. 'Whether miner assumed risk' of a boulder falling, having seen a creve in it, but having been assured by his superbendent that it was safe. Carter v. Baldoni, \[Mo. App.\] 81 S. W. 204. 'Whether work-man was justified in assuming that promised repairs had been made in a valve, when they could have been in 15 minutes and he did not resume work for three hours, was for jury. Studentworth v. Harmond Packing Co. \[Mo. App.\] 81 S. W. 487. 'Whether defect in street car track was open and obvious and threatened immediate danger, or was such that conductor was justified in assuming he could use it safely in the exercise of due care. Houts v. St. Louis Transit Co. \[Mo. App.\] 84 S. W. 161. 'Where switchman had worked in two yards, but only 20 or 25 days in one of them, whether he had such knowledge of a freight house root which projected over a switch track. In such yard that he assumed the risk of being struck by it while on a car. Hawley v. Chicago, B. & Q. R. Co. \[C. C. A.\] 133 F. 150. 'Whether young and inexperienced employee had a right to assume that his employer expected him to clean a machine with his hands, in which case he could not be held to have assumed the risk of so doing. Mayes v. Ogden Sewer Pipe & Clay Co. \[Utah\] 77 P. 610. Where a workman, in performing his services. places himself in a position of probable danger, so that he has a right to be warned of an approach of danger, the question whether he has assumed the risk of working without such warning, cannot be decided by the court, but is for the jury. Albanese v. Central R. Co., 70 N. J. Law, 241, 57 A. 447. 'Evidence sufficient to show that several assumed risk of using certain three-legged benches and trestles in moving heavy sill from car. Bell v. Gult, etc., R. Co. \[Tex. Civ. App.\] 81 S. W. 134. Evidence sufficient to show that switchman had no knowledge of presence of rock in yards, and that frog was unblocked, and did not assume risk of stumbling and getting 4 Cur. Law. MASTER AND SERVANT SS 3H5. 60${}^{\\sharp}$

titled to proper instructions on assumption of risk,"27 contributory negligence,"48 and fellow-servants,"44 if these defenses are relied on.45 An instruction which may lead the jury to believe that the issue of contributory negligence can only be raised by affirmative evidence introduced for the defendant is erroneous, since it takes from the jury the consideration of plaintiff's evidence in chief on this issue.46

Instructions should be given upon the theories adopted at the trial.47 The instructions given must be warranted by the evidence.48 they should not be on

42. Where there is evidence tending to show a known risk, ordinarily incident to the employment, defendant is entitled to a charge on the doctrine of assumed risks. In chief as to his own negligence, but we, devote to meet that issue only after defendant had introduced some proof regard-headlight or negligent act of a flagman in giving it; and that thereafter it was plaintiff's misto a signal to proceed was the product reversible error. Pittsburgh, etc., R. refuse to instruct as to the assumption of the risk of using the defective health. Gliveston, etc., R. Co. v. Fitzpatrick \[Tex, Pittsburgh, etc., R. Co. v. Leightheiser \[Ind. Civ. App.\] 83 S. W. 406. Instructions regarding assumption of risks are erroneous if they do not include the rule as to assumption of actually known, as well as obvious, risks. Southern Indiana R. Co. v. Moore \[Ind. App.\] 72 N. E. 479. Instructions as to the assumption of particular risks must include the necessary causal relation between such danger or hazard and the accident causing the injury. Cobb Chocolate Co. v. Knudson, 207 Ill. 452, 69 N. E. 516. Entitled to prevent without a request therefor. Hilton & instruction on defense that plaintiff had actual or implied knowledge of the location and condition of culvert in yards which caused his injury. Central of Georgia R. Co. v. Price \[Ga.\] 45 S. E. 683. Certain instructions held not prejudicial to defendant because not including assumption of open and obvious risks, though unknown. Texas 45, 69 N. E. 343. Where the evidence was such that the jury was warranted in finding Portland Cement & Lime Co. v. Lee \[Tex, "The place where plaintiff was at work by A. App.\] 82 S. W. 306. 43. Instructions on contributory negligence held not to improperly limit the jury as to the circumstances to be considered. Texas, etc., R. Co. v. Kelly \[Tex, "Civ. App.\] 80 S. W. 1073. Charge on contributory negligence held broad enough to cover all circumstances attending the wrecking of a train by which engineer was injured. Southern Kansas R. Co. v. Sage \[Tex, "Civ. App.\] 80 S. W. 1038. Where the evidence did not show just how an employee got caught in a cotton seed conveyer, defendant was entitled to a specific charge on his theory of contributory negligence. Consmers' Cotton Oil Co. v. Gentry \[Tex, "Civ. App.\] 80 S. W. 394. Error to instruct that contributory negligence will not be presumed where there was evidence of negligence of plaintiff. Newport News Pub. Co. v. Beaumelister, 102 V. 677, 47 S. E. 821. 44. Where it appeared that a wire on a stock gap by which a brakeman was struck and killed might have been placed there voluntarily by a bridge foreman, the company was entitled to a charge on the fellow-servant rule. Northern Alabama R. Co. v. Mansell \[Ala.\] 36 S. 459. 459. Where it appeared without dispute that neither master nor servant knew of the alleged defect or the resulting danger, failure to instruct as to assumption of risk was harmless. Southern Indiana R. Co. v. Moore \[Ind. App.\] 71 N. E. 516. 46. 47. Instructions given upon a theory adopted at the trial will not be held erroneous on appeal, though the facts pleaded admit another theory. Blanchard-Hamiltor \[Ind. App.\] 72 N. E. 479. Instructions as to the assumption of particular risks must include the necessary causal relation between they and offers evidence that the injury slues the injury. Cobb Chocolate Co. v. Knudson, 207 Ill. 452, 69 N. E. 516. Entitled to prevent without a request therefor. Hilton & instruction on defense that plaintiff had actual or implied knowledge of the location and condition of culvert in yards which caused his injury. Central of Georgia R. Co. v. Moore \[Ga.\] 45 S. E. 683. Certain instructions held not prejudicial to defendant because not including assumption of open and obvious risks, though unknown. Texas 45, 69 N. E. 516. 46. 47. Instructions on contributory negligence held not to improperly limit the jury as to the circumstances to be considered. Texas, etc., R. Co. v. Kelly \[Tex, "Civ. App.\] 80 S. W. 1073. Charge on contributory negligence held broad enough to cover all circumstances attending the wrecking of a train by which engineer was injured. Southern Kansas R. Co. v. Sage \[Tex, "Civ. App.\] 80 S. W. 1038. Where the evidence did not show just how an employee got caught in a cotton seed conveyer, defendant was entitled to a specific charge on his theory of contributory negligence. Consmers' Cotton Oil Co. v. Gentry \[Tex, "Civ. App.\] 80 S. W. 394. Error to instruct that contributory negligence will not be presumed where there was evidence of negligence of plaintiff. Newport News Pub. Co. v. Beaumelister, 102 V. 67 608 MASTER AND SERVANT SS 3H6. 4 Cur. Law.

the weight of evidence,\[46\] and should not assume facts in issue.\[50\] They are sufficient if, construed as a whole, they properly present the law.\[51\] In actions based on statutes,\[52\] instructions may properly follow the statutory language.\[53\]

(SS 3H) 6. \_Verdicts and findings.\[54\]--\_In an action against a master and servant for joint and concurring negligence, there may be a recovery against the master alone,\[55\] and a verdict for the servant but against the master will not be set aside.\[56\]

SS 4. \_Liability for injuries to third persons. A. In general.\[57\]--\_A master is liable for the acts of his servant -within the general scope of his employment, while about his master's business, though the act be negligent,\[58\] wanton, willful,\[59\]

R. Co. v. Garrett \[Ala.\] 37 So. 355. An In-

count of a declaration a cause of action at

function that contributory negligence would

common law for failure to provide a safe

be no defense if plaintiff's position of peril

place to work, with a cause under an em-

was known, or by the exercise of ordinary

cyzer's liability law, it was error for the

care might have been known to the defend.

court, after instructing on the common-law

ants, was error, when there was no evidence

standing to show actual of implied knowledge

struction for plaintiff on the statutory

by defendants servants of plaintiff's peril

ground. Illing Cent. R. Co. v. Abrama

Illinois Cent. R. Co. v. Jones' Adm'r \[Key.\] 36 So: 542. An instruction which

80 B. V. 484. Held sufficient basis in ev

may lead the jury to believe that the fac-

dence for "saturation that if a railroad yard

tory act has made no change in the common-

conductor, knowing a brakeman sent to flag

law right of recovery for personal injuries

a train had not done so, could have had-it

is properly refused. \_Espenlaub v. Ellis \[Ind.

flags=d in time to prevent injury to plaintiff,

Appl.\] 72 N. E. 527.

defendant would be liable. Southern R. Co.

S3. A charge in the language of the stat-

v. Oliver, 102 Va. 710, 47 S. E. 862.

49. Missouri, etc., R. Co. v. Stinson \[Tex.

proper. Espenlaub v. Ellis \[Ind. App.\] 72 Civ. App.\] 78 S. W. 986.

50. Real question being whether a struc-

ture through which plaintiff's deceded fell

was a scaffold or simply a covering for a

iskylight, it was error for the court to as-

51. Carston v. Southern R. Co. 18 C.\] 46

sume that it was a scaffold. Conger v. Wils,

glns, 208 Pa. 122, 67 A. 341. In an action for

injuries resulting from the explosion of a

tube during an experiment conducted on the

defendant's premises by one neither an off-

cer nor employ, an instruction assuming

tion, etc., R. Co. v. Bowen \[Tex. Civ. App.\]

that such person was on the premises by

invitation was proper. Cameron v. B. Roth

Tool Co. \[Mo. App.\] 83 S. W. 279.

51. Instructions as a whole held to prop-

step present law regarding master's duty.

Merechants' & Miners' Transp. Co. v. Jack

son, 120 Ga. 211, 47 S. E. 522. An instruction that it was the duty of the master

to provide reasonably safe appliances in

not the ground that it is the mas-

ter's duty only to exercise reasonable care

to provide safe appliances, since though the

rule be stated in either form, "the duty of

the master in one case is not different from

his duty in the other." Chicago, etc., R.

Co. v. Tackett \[Ind. App.\] 71 N. E. 524. Instructions construed and held to require

jury to find plaintiff free from contributory

negligence, and not to assume that he was

free from negligence. Missouri, etc., R. Co.

v. Jones \[Tex. Civ. App.\] 80 S. W. 85.

structions considered and held to present

as the law that plaintiff's negligence would

necessitate verdict for defendant. Chicago,

etc., R. Co. v. Wicker \[Ind. App.\] 71 N. E. 524. In-

52. Where a common-law count for neg-

ligence is joined with a count based on lia-

bility under a statute, instructions as to

negligence should be confined to the first

count. Marquette Third Yeh Coal Co. v.

Dilei, 208 Ill. 116, 70 N. E. 17. Where an

ttempi was made to combine in a single

author to and was made to fall off by be
4 Cur. Law. MASTER AND SERVANT SS 4A. 609

or malicious,90 and this is so though the act complained of has been expressly forbidden by the master.61 If an act be within the scope of the servant's employment, proof of antecedent authority or subsequent ratification is unnecessary.62 He is not liable for unauthorized63 acts outside the course or scope of the servant's employment,64 even though the act be done with the intent to benefit and serve the master.68

Ing struck at by driver, who was owner's |anitor of a tenement house whlle driving servant. Hryman v. Tilton, 208 P8, 641, 57 A. |away boys creating a disturbance in front 1124. An engineer in care of railway tor- |of the building threw a stick at plaintiff's pedoes put one on the track and exploded it with his engine, solely for his own |street, and injured him. Held, the act was |anwesment, thus injuring a boy standing |not in the course of his employment. Kennedy v. White, 91 App. Div. 475, 86 N, Y. S. |being at the time in the conduct of the |s52. Company not liable where tenstner, |unloading coal under purchaser's directions, |P. Co. |VWs.) 98 N, W. 944. |On. Street railway company liable for mai- |throwing coal upon It. Atherton v. Kansas |Diceous prosecution where its conductor |Diceous of the |s52. Defendant not liable for act of his |D. Dwyer v. St. Louis Transit Co. |Diceous of the |s52. |Diceous of the |s53.

To render the master liable, the relation of master and servant must have existed at the time, \[96\] and in respect to the very transaction out of which the injury arose. \[97\] Authority at the time to control is the test by which the existence of the relation is to be determined. \[98\] If control is in the master and another jointly, the master is liable. \[99\]

Knowledge of a servant may \[70\] or may not \[71\] be imputable to the master so as to render him liable. Contributory negligence is no defense to a count in case for the willful and wanton acts of agents or servants of a corporation. \[72\] A master owes no duty to a trespasser to provide careful, competent and prudent servants. \[73\]

_Damages._--For the willful tort of its servant a corporation may be liable in punitive damages. \[74\]

_Joint liability._\[18\]--Master and servant are jointly liable for negligence of the servant while engaged in the master's business. \[76\] But such joint liability is sometimes limited to cases in which there was actual, not merely imputed, negligence of the master, concurring with negligence of the servant. \[77\]

horse which ran away. Father held not lia. \[\] Iowa, 720, 98 N. W. 573. Where employees liable for resulting damage. Evers v. Krousse, 70 N. J. Law, 653, 58 A. 181. Flagman and trackers of a railway company, under general brakeman who threw tarpedo back and forth, and then left it on planking of a railway company was held not liable for crossing where it was found by a boy, were negligent operation causing a collision, the aeting outside the scope of their employ. \[\] Openfon v. Boston, etc., R. Co. \[Tex, Civ. App.\]. 82 S. W. 816. \[\] 65. Railway company not liable for act of cashier in local office in causing the arrest of and institutes prosecution against a per-son suspected of stealing money. Daniel v. Al
(SS 4) _B. Actions; pleading._\[78\]--The complaint must show that the servant's act was authorized or was within the general scope of his employment." A direct allegation that the servant was acting within the scope of his employment is unnecessary if the facts alleged are sufficient to show that he was so acting." On the other hand such an allegation is unavailing if not supported by the facts alleged.\[81\] The defendant may be entitled to a bill of particulars.\[82\]

_Evidence._\[83\]--The burden is upon a plaintiff to prove by a preponderance of evidence that the servant was acting within the general scope of his employment." A count in trespass on the willful and wanton act of a corporation is not supported by evidence that the injury complained of was inflicted by servants, even though the acts were willful or wanton.\[85\]

_Questions of law and fact._\[86\]--Whether the act alleged was within the scope of the servant's employment is a question of fact.\[87\]

_Actions against master and servant jointly._--Under the Indiana statute an action to enforce the joint liability of master and servant may be brought in the county where either resides; and service may be made on the other in the county of his residence.\[88\] In an action against a master and servant jointly, the fact that no verdict was rendered for or against the servant,\[89\] or that a verdict was rendered for the servant,\[90\] will not invalidate a verdict against the master.

78. See 2 Curr. L. 865. \[ ants, acting in the scope of their employment. Obertoni v. Boston & M. R. Co. \[Mass.\]

01. Action for assault by servant. Seka-tor v. Lannon \[R. I\] 58 A. 456. Plaintiff

## 5 Interference with relation by third person

A civil action cannot, in general, be maintained for inducing a third person to break his contract.\[92\] A person is not liable for an act which he had a legal right to do, though it results in a servant's discharge.\[93\] But maliciously and willfully procuring the discharge of a servant gives a cause of action to the injured party for damages.\[94\] To constitute malice in such a case, actual ill will or hatred need not be shown; it is sufficient if the act was without legal justification.\[95\] Under a complaint charging a conspiracy to procure plaintiff's discharge, proof of the conspiracy was essential.\[96\] One who knowingly and willfully entices away the servant of another, inducing him to violate his contract with his master, thereby depriving the master of the services of a person actually in his service, or bound by contract to render him service, is liable to the master for the actual loss which he sustains therefrom.\[97\]

## 6 Crimes and penalties

The act of Congress abolishing and prohibit-

pedo Co. v. Lippineott Glass Co. \[Ind, AppJ\]

Mlegations that defendant accused plaintiff

90. Where, in an action against a railroad

of being a labor agitator, and that it black-

company and its engineer for injuries, a verdict

withour allegations showing such conduct

the engineer, such verdict will not be set

aside on the ground that since it found the engineer not guilty of negligence, the master

by. Id. To charge one with being a labor

ter cannot be held liable. Bedenbaugh v.

Southern R. Co. \[S. C.\] 48 S. E. 53. See, also, Carson v. So. R. Co. \[S. C.\] 46 S. E. 525, under Verdict and findings, supra, where

the action was by a servant.

91. See 2 Curr. L 865.

01. Where the employee stated to defendants that he would not return to the servant

by. Id. To charge one with being a labor

for not releasing him, though they had been

notified of his contract with plaintiffs, B.

J. Wolf & Sons V. New Orleans Tailor-Made

The fact that plaintiff went on a strike and

Pants Co., 113 L. 388, 57 So. 2.

93. A patron of a strict railway

many incurs no liability to a conductor by

reporting misconduct of the latter, while

on duty, to the superintendent, as a result

of which the conductor is discharged,

geardless of the patron's motive in making

the report. Lancaster V. Hamburger, 70 Ohio

St. 156, 71 N. E. 289.

94. Holder V. Cannon Mfg. Co., 135 N. C.

01. 292, 47 S. E. 481. An agreement among

employers to adopt a rule requiring employees

to work a six days' notice before leaving

the service, and to report to each other, and

refuse to hire employees who had violated

the rule is not an unlawful combination if

not entered into malleically; and the act of

properly reporting an employee in accordance with the agreement would not constitute a tort. Willis V. Musoegor Mfg. Co.,

120 Ga. 597, 48 B. E. 177. But a party to

such agreement will be liable for falsely

and wrongfully reporting an employee. Id.

Whether a company was justified in report-

ing an employee to other employers for violation of a common rule requiring six days

notice before leaving the service, and whether

the report caused plaintiff's failure to

seure other employment, was for the jury.

Id. General averments that defendant prevented plaintiff from obtaining employment

and caused his discharge from employment

obtained, do not state a cause of action, because too indefinite and uncertain. Wabash

98. See 2 Curr. L 866.

4 Cur. Law. MASTER AND SERVANT SS 6. 613

ing penage, and providing a punishment for violation of its provisions, is a valid exercise of the power conferred by the thirteenth amendment to the constitution. \[99\] The "condition of penage" prohibited by the act of Congress is not a system of penage only; but the condition of a citizen held by illegal means to involuntary servitude in order to extinguish a real or alleged debt to the person holding him. \[1\] Federal courts have jurisdiction of the crime of penage as defined by the act of Congress, though state courts may have jurisdiction of the same crime under the name of kidnapping or false imprisonment. \[2\] The Georgia statute providing that one who contracts for services with intent to obtain money or something of value, and not to perform the services, to the loss of the hirer, shall be deemed a common cheat and guilty of a misdemeanor, is constitutional. \[3\] The punishment provided is not imprisonment for debt, since it is not the failure to comply with the obligation, but the fraudulent intent with which it is undertaken, that is punished. \[4\] Besides alleging the procuring of advances with the fraudulent intent not to perform the services contracted for, an accusation under this statute must specifically allege what the advances consisted of. \[5\] That defendant was prevented by serious physical injuries from performing the services contracted for is a good defense. \[6\] The North Carolina act, imposing a license tax upon persons engaged in the business of procuring laborers for. employment outside the state and making it an indictable offense to engage in the business without paying the tax, \[7\] is a valid exercise of the taxing power, and is not a police regulation. \[8\] Since the tax imposed is annual, a conviction for engaging in the business without paying it is a bar to another prosecution in the current year. \[9\] The North Carolina act prohibiting the enticing or retaining from the service of another one who has contracted with him applies only where the servant has actually entered the service of the other, and not where he is only preparing to do so. \[10\] An afflavit for breach of a service contract with a surety for a fine, \[11\] reciting a confessed judgment for a fine and costs, is not supported by a contract showing confession of judgment for costs alone. \[12\] Statutes prohibiting the employment of minors by "any person" apply to corporations as well as natural persons. \[13\] Hence where the acts of a corporation agent, within the scope of his general authority, amount to a violation of such a statute, the corporation is guilty of the offense, though the agent was acting contrary to specific instructions. \[14\] The agent by whose acts the offense is committed is himself guilty of the same offense.\[15\]

Decisione construing the Texas statute penalizing the act of a surety company causing an employee to lose a position by canceling his bond,\[16\] and the Kentucky act requiring payment of miners on certain days of the month,\[17\] are treated in the notes.

**MASTERS AND COMMISSIONERS.\[18\]**

**SS 1. Office, Eligibility, Appointment, and**

**SS 4. Report of Master, Exceptions, and ObCompensation (G14),**

**SS 2. Proceedings for Reference (G14),**

**SS 3. Proceedings on Reference and Hearing by Master (G15).**

**SS 4.** _Office, eligibility, appointment, and compensation.\[19\]--The report of the master should give an itemized statement of the services rendered and the statutory.fees allowed therefor,\[20\] or, no statutory fees being allowed, if the chancellor fixes the compensation,\[21\] it should state the services rendered, the action of the court, whether such costs have been paid, and, if so, by whom.\[22\]_

In Kentucky a court commissioner is not entitled to compensation unless he file a statement under oath showing the number of days he was employed,\[23\] and such afflavit, if not rebutted, is sufficient evidence to establish the time of employment.\[24\] A statute providing the compensation due commissioners in certain cases is exclusive.\[25\]

The fee must be proportionate to the services rendered.\[26\]\_

**SS 2.**\_Proceedings for reference.\[27\]--The master is a ministerial officer and the exercise of judicial power cannot be delegated to him,\[28\] hence, without the

**15. Overland Cotton Mill Co. v. People**

**\[Colo.\] 75 P. 924.**

**\[6. Under Acts 1897, p. 247, c. 165, SS 8-10,**

**\[7.\]**

**\[8.\]**

**\[9.\]**

**\[10.\]**

**\[11.\]**

**\[12.\]**

**\[13.\]**

**\[14.\]**

**\[15.\]**

**\[16.\]**

**\[17.\]**

**\[18.\]**
4 Cur. Law. MECHANICS' LIENS.

consent of the parties, the court cannot refer the entire decision of the case to him. \[20\] There being no assignee, a master commissioner may be appointed to take charge of books and uncollected claims and to attend to the collection of the latter. \[30\]

SS 3. _Proceedings on reference and hearing by master. \[31\]_--In Minnesota, court commissioners have and exercise the judicial power of a district court at chambers. \[32\] There being a doubt as to the relevancy or propriety of a question asked on cross-examination, the witness should be required to answer. \[33\]

SS 4. _Report of master, exceptions, and objections. \[34\]_--It is the duty of the master to find facts, \[35\] and his report should clearly and concisely state his conclusions of law and fact, \[36\] but he is not required to decide what \_d_ecree shall be rendered thereon. \[37\] He not being required to report the evidence, \[38\] it is open to either party during the hearing before him to move in court that he be required to report the whole testimony, or any part of it, \[39\] but an application made subsequent to that time is never looked upon with favor. \[40\] In the absence of an exception the ruling \[41\] or finding \[42\] cannot be reviewed. Exceptions to the opinion of the master upon questions of law are unnecessary. \[43\] To be available the objection and exception must be specific. \[44\] Exceptions are to be confined to objections disallowed or overruled. \[45\] A master who, in disregard of court rules, files his report without giving a party an opportunity to file objections to it, the latter's remedy is to move to recommit. \[46\]

SS 5. _Powers of court and proceedings on review. \[47\]_--The conclusion of a master in chancery will not be disturbed unless clearly against the weight of the evidence. \[48\]

SS 6. _Re-reference. \[49\]_--Upon the reversal and remanding of a cause, the trial court has power to re-refer the cause to a master to take further testimony. \[50\]

Masterless or Vessels, see latest topical index.

MECHANICS' LIENS.

SS 1. Nature of Lien and Right to It in **SS 2. Services, Materials, and Claims for General (616).** \[\] Which Lien may be Had (617).

2m, Garinger v. Palmer \[C. C. A.\] 126 F. \[90\] See 2 Curr. L. 867, n. 7. \[91\]

3m. He should not be appointed if a competent person will accept the position of receiver. Andrews v. Wilson's Assignees \[KY.\] 82 S. W. 391. \[10\]

3m. See 2 Curr. L. 867. \[92\]

3m. They still retain the' authority conferred upon them by Gen. St. 1894, SS 5288, to authorize the issuance of writs of attachment, notwithstanding the enencment of Laws 1897, p. 576, c. 311, SS 2. Clements v. Utley, 91 Minn. 352, 98 N. W. 188. \[93\]

3m. Whitehead & Houg Co. v. O'Callahan, 130 F. 248. \[94\]

3m. See 2 Curr. L. 868. \[95\]

3m. Clark v. Seagraves \[Mass.\] 71 N. E. 813. \[96\]

3m. It is not proper practice for the master to present a treatise on the law, with citations of cases and quotations from reports. Steger v. Traveling Men's B. & L. Ass'n, 208 Ill. 236, 70 N. E. 236. \[97\]

3m. Clark v. Seagraves \[Mass.\] 71 N. E. 813. \[98\]

3m. Under a rule directing the master "to hear the parties and their evidence, and report his findings of fact and law to the 616 MECHANICS' LIENS SS 1. 4 Cur. Law.

**SS 2. Properties and Estates Therelin**

**Which may be Subjected to the Lien (618), of (625).**

**Sale of Property (619).**

**Homested (620).**

**SS 7. Assignment or Transfer of Lien (629).**

**Public Buildings (620).**

**SS 8. Waiver, Loss, or Forfleture of Lien (629).**

**SS 9.4. The Contract Supporting the Lien or Right to acquire It (629).**

**and the Privity of the Landovvner Thereto (620).**

**SS 10. Remedies and Procedure to Enforce**

**A. In General (620).**

**B. Contracts by Vendors, Purchasers, Lessons, and Lessees (621).**

**C. Subcontractors and Materialmen**

**B. Parties (632).**

**SS 5. Acts and Proceedings Necessary to**

**Acquire Lien (623).**

**A. Notice and Demand, Statement of**

**Claim and Affidavit (623).**

**of Notice on Owner (624).**

**B. Filing and Recording Claim and**

**SS 11. Indemnification Against Liens (635).**

**Statement Thereof (626).**

\_Scope of title.--\_This article treats only of statutory mechanics' liens. The general principles governing licns in general are treated under the title Liens.\[51\] Specific liens are treated under the topics to which they relate.\[52\]

**SS 1.**_Nature of lien and right to it in general.\[53\]-Lien proceedings are suits in rem against the land.\[54\]._

**A mechanic's lien is purely of statutory creation, and the statutory provisions in relation thereto must be substantially complied with.\[55\] It is generally held that such statutes are remedial in character and should be liberally construed,\[56\] at least in so far as they grant liens;\[57\] but persons claiming the benefit of the statute must bring themselves clearly within its purview as belonging to some class in whose favor the remedy is allowed.\[58\] Some courts require a strict compliance,\[59\] at least in so far as concerns the method by which such liens are claimed and enforced.\[60\]**

**Mechanic's lien laws are not unconstitutional as unreasonably interfering with liberty of contract or taking property without due process of law.\[61\]**

**51. See 2 Curr. L 736; 4 Curr. L 433.**

\*\*52. See Attachment, 3 Curr. L 853; Agency, 3 Curr. L 68; Attorneys and Counselors, 3 Curr. L 376; Auctions and Auction-

**eers, 3 Curr. L, 894; Brokers, 3 Curr. L 535; Carriers, 3 Curr. L 591; Chatel Mortrgages, 3 Curr. L 682; Executions, 3 Curr. L 1397; Factors, 3 Curr. L 1415; Inns, Restaurants and Lodging Houses, 4 Curr. L 123; Judgments, 4 Curr. L 287; Landford and Tenant, 4 Curr. L 389; Mortgages, 2 Curr. L 905; Ralfroads, 2 Curr. L 188; Taxes, 2 Curr. L 1786; Verdows and Purchasers, 2 Curr. L 1976; Agisters' Liens (see Animals), 3 Curr. L, 159; Logging Liens (see Forestry and Timber), 3 Curr. L 1465; Crop Liens (see Agriculture, 3 Curr. L 137, and Landlord and Tenant, 4 Curr. L 389); Maritime Liens (see Shtipping and Water Traffic), 2 Curr. L 1648.**

**53. See 2 Curr. L 860.**

**54. Hunt v. Darling \[R. I.\] 59 A. 398.**

**55. Russell v. Hayner \[C. C. A.\] 130 F.**

**50. Campbell v. Wm. Cameron & Co. \[Ind. T.\] 82 S. W. 762; Knelly v. Horwirth, 208 Pa. 487, 67 A. 957. There is no intendment In its favor, and it must show on its face that it is such a lien as the statute authorizes the claimant to file. Knelly v. Howarth, 208 Pa. 487, 57 A. 957.**

\*\*56. Campbell v. Wm. Cameron & Co. \[Ind. T.\] 82 S. W. 762; Russell v. Hayner \[C. C. A.\] 130 F.

4 Cur. Law. MECHANICS' LIENS SS 2. 617

Liens are sometimes given to the contract by the contract itself.${}^{\\spadesuit}$ They would ordinarily be equitable liens,${}^{\\spadesuit}$ or possibly, in some cases, mortgages.${}^{\\spadesuit}$ The description of the property in a contract giving a lien is sufficient if it can be identified therefrom.${}^{\\spadesuit}$ Equity will correct a mutual mistake in the description,${}^{\\spadesuit}$ notwithstanding the fact that the lien has been foreclosed and the property sold.${}^{\\spadesuit}$ One purchasing the original judgment may maintain the suit.${}^{\\spadesuit}$ The amount of the indebtedness${}^{\\spadesuit}$ and the fact that costs and attorney's fees are secured by the lien, having been determined in the foreclosure suit, cannot be inquired into.${}^{\\spadesuit}$ A provision in a contract for the erection of a house on a homesetead providing for an attorney's fee in case of the foreclosure of a mechanic's lien given thereby is invalid.${}^{\\spadesuit}$

SS 2. _Services, materials, and claims for which liens may be had.${}^{\\spadesuit}$--Material_ for which the lien is claimed must have actually been used in the construction of the building.${}^{\\spadesuit}$

A materialman is not entitled to a lien for money advanced to the contractor to purchase certain material in which the materialman did not deal,${}^{\\spadesuit}$ nor for tools furnished the contractor with which to work on the building.${}^{\\spadesuit}$ There can be no lien for materials furnished for sidewalks.${}^{\\spadesuit}$ In Pennsylvania a lien is given for materials furnished for the construction of a substantial addition to a building.${}^{\\spadesuit}$ Machinery for manufacturing purposes is covered by the New Jersey law.${}^{\\spadesuit}$ To authorize a mechanic's lien for repairs to machinery, the repairs must be in the nature of fixtures and not small parts of a machine which are constantly wearing out and have to be replaced.${}^{\\spadesuit}$ Under a statute giving a lien to anyone

778. The Federal court may exercise an In- | building, Ferguson v. Stephenson-Brown dependent judgment as to the validity of | Lumber Co. \[OK1\] 77 P. 184.

such laws under a state constitution, not- 74, 75. E Evans v. Lower \[N. J. Eq.\] 68 A.

withstanding state courts have declared 294.

them unconsutriational in judgments rendered | 76, Bradley Co. v. Gaghan, 208 Pa. 511,

before the commencement of the suit in the | federal court, but after the rights of the | parties have been fixed by their contracts.

Id.

\*\*62. Where a lien on a homesetead is given is a question of fact. Structure held "sub- | 3.

by a contract purporting to be signed by the wife, the burden is on defendant to es- | 78. Production and control of electric tablish by a preponderance of the evidence that she did not sign it. Instruction errooting. Moreno v. R. B. Spencer & Bro. \[Tex., Civ. App.\] 82 B, W. 1054. Contract for lien | 638, $. Bates Mach, Co. v. Trenton, etc..

held not to give lien for attorney's fees.

June & Co. v. Doke \[Tex. Civ. App.\] 80 S.

V. 402.

**63. See Liens, 4 Curr. L. 433; 2 Curr. L. 136.**

**64. See Mortgages, 2 Curr. L. 905; Foreclosure of Mortgages, 3 Curr. L. 1438.**

**65. June & Co. v. Doke \[Tex. Civ. App.\] 80 S. V. 402.**

**66. Sillman v. Taylor \[Tex. Civ. App.\] 80 S. V. 651.**

\*\*67. Percolosure will be set aside and new | 3.

one ordered. Silliman v. Taylor \[Tex. Civ. 1998 X. 543, 14 L. R. 470. There are.

Appl.\] 80 S. W. 651.\*\*

**68, eq. 70. Silliman v. Taylor \[Tex. Civ. App.\] 84 S. W. 651.**

**71. Summerville v. King \[Tex.\] 84 S. W. 643. On rehearing. For former opinion see | 83 S. W. 680.**

**72. See 2 Curr. L. 869.**

\*\*73. Evidence sufficient to show that lumber went into house. Darlington Lumber Co. v. Harris \[Mo. App.\] 80 S. W. 688. Evidence sufficient to sustain finding that materials furnished went into defendant's

## 618 Mechanics' Liens SS 3.

4 Cur. Law.

improving a lot at the request of the owner, a contractor building a sewer under a contract with property owners along the street has a lien therefor.\[80\]

The expense of hauling certain machinery from the freight station is properly included in a claim for labor in erecting it at a power house.\[81\]

A superintendent is entitled to a lien for services rendered as such,\[82\] but not for services in traveling about to hasten deliveries of material ordered by the contractors.\[83\]

In some states persons doing work for or furnishing material to railroads are given a lien therefor.\[84\]

SS 3. _Properties and estates therein which may be subjected to the lien.\[85\]_--A mechanic's lien cannot ordinarily be imposed upon a building unless in connection with some estate or interest in the land on which it was erected.\[86\] By statutes in some states, however, the lien may be foreclosed upon the house alone, and the purchaser at the sale may remove it.\[87\] In such case a lien claimant has a right of action against one preventing the removal of improvements to which the lien attaches, by destroying the same.\[88\] The measure of damages is their reasonable value before their destruction, where it would not have been necessary to tear them down in order to remove them.\[89\]

Leaschold estates may be subject to mechanic's liens, since they are interests in lands.\[90\] Hence, any structure becoming a part of such estate is also subject to the liens, though it may be treated for other purposes as personality.\[91\] The leasehold may be sold in the usual way, unless the lease forbids involuntary assignments.\[92\] The purchaser acquires only such estate as was held by the lessee, subject to the terms and conditions of the lease.\[93\]

The interest of a tenant in common is subject to a lien for repairs necessary to the preservation of the common property, where he knows that they are being buyers, particularly where evidence does not show that they were to be used in any particular mill. Ripley v. Coehti Gold Min., part of the reality as against the lienholder, Co. \[N. M.\] 76 P. 285.

80. Cal. Code Civ. Proc. $ 1191. Lien extends to construction of branch sewers. Williams, Belser & Co. V. Howell \[Cal.\] 78 P. 725.

01. Bates Mach. Co. v. Trenton, etc., R. Co., 70 N. J. Law, 684, 58 A. 935.

01. Colo. Sess. Laws 1899, p. 261, c. 118 (Mills' Ann. St. Rev. Supp. p. 769). Pitschke v. Pope \[Colo. App.\] 78 P. 1071.

01. Pitschke v. Pope \[Colo. App.\] 78 P. 1071. The burden is one one claiming a lien for work as superintendent to establish the amount earned by him in that capacity. Not entitled to lien where he cannot separate amount of time spent in superintendence from that spent at other work for which he was not entitled to lien. Id.

01. See Railroads, $ 6, 2 Curr. L. 1407.

01. See, also, Bagnell Timber Co. v. Missouri, etc., R. Co., 180 M. 420, 78 P. W. 1130; Eastern Tex. R. Co. v. Davis \[Tex. Civ. App.\] 83 S. W. 838. Washington Laws 1893, p. 32, c.

01. $ 3. _Properties and estates therein which may be subjected to the lien.\[85\]_--A mechanic's lien cannot ordinarily be imposed upon a building unless in connection with some estate or interest in the land on which it was erected.\[86\] By statutes in some states, however, the lien may be foreclosed upon the house alone, and the purchaser at the sale may remove it.\[87\] In such case a lien claimant has a right of action against one preventing the removal of improvements to which the lien attaches, by destroying the same.\[88\] The measure of damages is their reasonable value before their destruction, where it would not have been necessary to tear them down in order to remove them.\[89\]

Leaschold estates may be subject to mechanic's liens, since they are interests in lands.\[90\] Hence, any structure becoming a part of such estate is also subject to the liens, though it may be treated for other purposes as personality.\[91\] The leasehold may be sold in the usual way, unless the lease forbids involuntary assignments.\[92\] The purchaser acquires only such estate as was held by the lessee, subject to the terms and conditions of the lease.\[93\]

The interest of a tenant in common is subject to a lien for repairs necessary to the preservation of the common property, where he knows that they are being buyers, particularly where evidence does not show that they were to be used in any particular mill. Ripley v. Coehti Gold Min., part of the reality as against the lienholder, Co. \[N. M.\] 76 P. 285.

80. Cal. Code Civ. Proc. $ 1191. Lien extends to construction of branch sewers. Williams, Belser & Co. V. Howell \[Cal.\] 78 P. 725.

01. Bates Mach. Co. v. Trenton, etc., R. Co., 70 N. J. Law, 684, 58 A. 935.

01. Colo. Sess. Laws 1899, p. 261, c. 118 (Mills' Ann. St. Rev. Supp. p. 7 made, assents to and approves of them, and induces the contractor to enter into the contract with his co-tenant therefor, even though he is not in terms a party to such contract.94

Whether mechanics' liens attach to the separate property of married women depends upon the married women's acts of the various states.95

The amount of land on which a lien may be claimed is regulated by statute.96 Parties contracting for a builder's lien will be deemed to have used the words in their statutory sense as including the land.97

The lien can be preserved only as to the particular house or houses to which the material delivered within the statutory period goes, and not to the entire property embraced within the contract.98 Among several lots, parts of one block, a claimant may apportion without having made his deliveries separately to each lot,99 but between separate blocks, separated by public streets, no apportionment can be good except that which is made in fact at the time of delivery.1 A subcontractor for the erection of two houses, who has fully performed his contract, is entitled to a lien for the amount remaining due thereunder as against the owners, without regard to the fact that subcontractors under him did work and furnished material for both houses under joint contract indiscriminately, without keeping a separate account as to each.2 A single lien may cover no more than a single building, except where two or more buildings are joined together and owned by the same person.8

Footnote 94: The author is grateful to the author.

\_Sale of property.--\_A sale of the property pending the performance of the

95. Tom Sweeney Hardware Co. v. Gard-

grantee. Id. Materialman may enforce such

ner \[S. D.\] 98 N. W. 1105.

95. Im Florida lion statutes are not applicable. MacFarlane v. Southern Lumber &

this field entitled under pleadings to show Supply Co. \[Fla.\] 36 So. 1029. Equity will

that, while lumber was sold and delivered

not charge her estate for materials used in

under contract with husband, some of it was

constructing buildings on her separate property, where they were not furnished to her

Id.

or her agent, but to a contractor, who was

fully paid under his contract before a claim

was asserted against her or her property,

and neither she nor her husband, who made

the contract for the erection of the building ordered the material, or in any way

made her liable therefor. Id.

In Kentucky a married woman has the

same power to create liens on her property

for the improvement thereof as though she

were unmarried. Ky. St. 1903, $ 2128

pealed that part of SS 2479 requiring written

contract signed by her before lien would

attach: Jefferson v. Hogson Bros. \[Ky.\] 84

S. W. 540. Hence, where the husband transfers the property to the wife after making a

contract for improvements. the question of

his fraudulent intent is immaterial. Id.

New York. Knowledge on the part of a

wife that materials furnished her husband

were used in the construction of buildings on land owned by her makes them subject

to a mechanic's lien therefor. Evidence held

to show knowledge. Hurd v. Wing, $6 N.

Y. S. 907. A materialman's right to file a

linem against property owned by wife or materials furnished her husband for use in

buildings erected thereon is a liability of

the wife, giving her an interest in having

the indebtedness paid, so as to support an

agreement on the part of her grantee under

a warranty deed to pay it. Husband

veyed to wife while supplies were being furnished, and both afterwards conveyed to

D. C. 284.

work will not deprive the contractor of his lien for work and material already furnished, whether he completes the contract or not, if failure in that regard is without fault on his part.4 An offer to perform is equivalent to performance as regards the preservation of his lien.b A conveyance before the completion of the building, made for the purpose of defrauding the grantor's creditors, does not defeat liens, unless the vendee is a bona fide purchaser, without knowledge of the fraud.6 A subsisting right of lien is not rendered unenforceable by the conveyance of the property to a corporation for railroad purposes, even though no lien is given on buildings belonging to railroads which are essential to the operation of the road.7

\_Homestead.--\_In Texas where the owner of a homestead is the head of a family, neither the contractor nor those claiming under him can acquire a lien thereof, unless the contract for the improvements is signed by the wife and privately acknowledged by her.8

\_Public buildings.a--\_Mechanic's lien statutes do not extend to public buildings in the absence of an express provision to that effect.10

Liens given laborers and materialmen on contracts for public works and improvements are treated elsewhere.11

SS 4. \_The contract supporting the lien and the privity of the landowner thereto. A. In general.12--\_The basis of a materialman's or laborer's lien for improvements on land is the contract between the contractor and the landowner.13 Where the written contract is void, the contractor may establish a lien by showing a new contract,14 or, in its absence, by showing the reasonable value of the labor and materials which went into the house.14

No lien will be allowed where the contract provides for certain payments as the work progresses and the balance upon completion, but fixes no time for such completion.16 Neither the contract price, nor the precise details of the work, need be fixed in advance,17 but it is sufficient as to work and material alleged to have been furnished under one contract to show that it was in fact so furnished.18 Where one accepts material furnished for making improvements in property belonging to him, the law implies a promise to pay for it so as to entitle the materialman to a lien therefor.19

- 4, 5. Hutchins v. Bautch \[Wis.\] 101 N. W. 13. Mo. Rev. St. 1889, $ 4203. Hengstenberg v. Hoyt \[Mo. App.\] $3 S. W. 539.
- 6. Evidence held to show that conveyance was fraudulent and that vendee was not bona fide purchaser. Gillmour v. Colored, 96 App. Dliv. 58, $9 N. Y. 8. 689.
- 7. Bates Mach. Co., Y. Trenton, etc., R. Co., 70 N. J. Law, 84, $8 A. 935.
- 8. Tex. Rev. St. 1885, art. 3304. Muller v. McLaughlin \[Tex. Civ. App.\] $4 S. W. 687.
- 9. See 2 Curr. L 871.
- 10. Me. Rev. St. 1883, c. 91, $ 30 et seq., giving liens in certain cases on "a house, building or abruptances," does not apply to a Carnegie library. A. L. & 2 E. F. Goss Co, v. Greenleaf, 98 Me. 436, $7 A. 581. Lien does not attach to buildings held by trustees of academy for educational purposes. Nabilizard Co. v. Trustees of Chatham Academy \[Ga.\] 48 S. E. 978. No lien for boring well for city. Albany v. Lynch, 119 Ga. 491, 46 S. E. 622.
- 11. See Public Contracts, $ GE, 2 Curr. L. 1295: Public Works and Improvements, $ 5, 2 Curr. L. 1383.
- 12. See 2 Curr. L. 872.
- 13. Mo. Rev. St. 1889, $ 4203. Hengstenberg v. Hoyt \[Mo. App.\] $3 S. W. 539.
- 14. Made on Sunday. Sherry v. Madler \[Vis.\] 101 N. V. 1095.
- 15. Sherry v. Madler \[Vis.\] 101 N. W. 1095.
- 16. Blanks for ttime of completion in printed form not filled tn. Bolter v. Kozlowski, 211 Ill. 79, 71 N. E. 855. Conversion between owner and contractor held not to constitute contract to complete work at certain time, Id. Defendant held not precluded on hearing of exceptions to master's report from objecting to contract because of fraudulent alterations made after it left master's hands, because made no objection thereto before the master. Id.
- 17. Hutchins v. Bautch \[Vis.\] 101 N. V. 671. In Wisconsin it is not essential that the terms of the contract be so precise that the amount agreed to be paid for work and material furnished thereafter can be defintively determined therefrom \[Rev. St. 1895, c. 143\]. Id.
- 18. Hutchins v. Bautch \[Vis.\] 101 N. W. 671.
- 19. Jefferson v. Hopson Bros. \[Ky.\] $4 S. V. 546.

4Cur. Law. MECHANICS' LIENS SS 4B. The contract must be substantially complied with.20 The fact that an individual executes a contract under a firm name contrary to law does not deprive him of his lien.21 Contractors completing a building after the death of the owner, for the construction of which no enforceable contract existed, are not entitled to a lien.22 In New Jersey, a building is not subject to lien for a debt owing for work or materials used in repairing or altering it, unless the owner contracted the debt, or consented in writing to its being contracted by some other person.23 (SS 4) _B. Contracts by vendors, purchasers,essors, and lessees.24_--The title of the owner of land cannot be encumbered with a lien unless he expressly or impliedly consents thereto.25 Thus, land cannot be subjected to a lien for materials furnished to be used in altering and repairing a building under a contract with the lessee, where the owner did not consent to the improvements.26 As a general rule his consent thereto must be affirmative,27 mere knowledge and acquiescence being insufficient.28 This rule has been changed by statute in some states.29 In some states the lien is confined to cases where the contract has a special contract with the owner or his agent.20 A vendee in possession of real estate under a conditional contract of sale cannot defeat or cloud the vendor's title by suffering a mechanic's lien to be filed against the property for repairs to buildings situate upon it,21 particularly where the contract is of record.22 The person making the repairs cannot enforce his lien, as against the holder of the legal title, after forfeiture of the contract.23

20A substantial compliance is sufficient, especially where the amount required toson, 120 Ga. 28, 47 S. E. 554. complete the building is trifling, and the contractor offers to complete any incomplete work and to make slight repairs or corrections, Windham v. Independent Tel. Co., 55 Vash. 166, 76 P. 936. Failure to substantially comply with the terms of the contract prevents recovery, Sherry v. Madler (Vhis.) 101 N. W. 1095. Evidence held to sustain finding of damages due to poor material and workmanship in excess of amount due on contract. Fletcher v. Sandusky (Ky.) 83 S. W. 644. Evidence in action by one furnishing materials to subcontractor held insulfient to support finding as to value of work remaining uncompleted when work was abandoned by subcontractor. Miller v. Norcross, 92 App. Div. 355, 87 N. Y. S. 55. Evidence sufficient to sustain finding that the owner forcibly ejected plaintiffs from the work before the completion of the contract. Cochran v. Yoho, 34 Wash. 238, 75 P. 815. Individual cannot take contract under firm name \[N. Y. Pen. Code, SS 365\]. Vande-grift v. Berton, 83 App. Div. 548, 82 N. Y. S. 153. Product can now authority to d1-reet administrator to borrow money to complete building, and to execute trust deed therforer. Person furnishing money sub-rogated only to rights of contractors, and as they had no right to lien, he acquired none. Waldermeyer v. Loebly \[Mo.\] SS 1 S. V. 904. 23. N. J. P. L. 1898, p. 541, c. 226, 1 10. No lien where owner contracted verbally with bullder, who contracted in writing with plaintiff. Murphy v. Hussa, 70 N. J. Law, 381, 57 A. 388. 24. See 2 Curr. L. 873. 25, 26. Repward, Snedeker & Co. v. Morriston, 120 Ga. 28, 47 S. E. 554. 27. 28. Eichler v. Warner, 91 N. Y. S. 793. 29. In New Mexico where the owner of property acquires knowledge that materials are being furnished and repairs made on a house situated thereon, under contract with the lessee, he must, within three days, post a notice on the property stating that he will not be responsible for the same \[Comp. Laws 1897, p. 2256\]. Pearce v. Albright \[N. M.\] 176 P. 286. Where the materials and labor are furnished at the instance of the lessee, it is error to order that execution issue against the owner for any deficiency in the absence of a absorbing of personal liability on his part. Id. 30. Tennessee \[Shannon's Code, SS 3531\]. Reed v. Estes \[Tenn.\] 80 S. W. 1086. 31. Contract of purchase and title bond. Rusche v. Pitlman \[Ind. App.\] 72 N. E. 473. 27. former opinion, Rusche v. Pitlman \[Ind. App.\] 70 N. E. 832. Under the Alaska statute it must be alleged and proved that the work or labor was done at the instance of the owner of the building or his agent \[C\]v. Code Alaska, SS 262 (31 Stat. at L. 534, c. 786) (Russell v. Harser \[C. C. A.\] 130 F. 20), or that the owner had knowledge of its construction (Id.). 265 provides that when constructed with owner's knowledge it shall be held to have been constructed at his instance. Id. It is not sufficient to allege that it was done at the instance of one in possession of the land under a contract of purchase with the owner, in the absence of an allegation that the owner had knowledge of the contract. Id. 32. One furnishing labor and materials to a vendee in possession under a conditional contract of sale therefore recorded is A line for work performed in making improvements on property, which a vendee or tenant agrees to make, becomes superior to the vendor's or landlord's rights only when the contract contemplates that such improvements are to be ultimately for the benefit of the landlord or will enhance and benefit the security of the vendor,\[34\] or when the vendor or landlord, by affirmatively engaging in or encouraging the improvement, has misled the mechanic so that it would be inequitable to allow him to change his position.\[35\] There must be an affirmative consent on the part of the vendor, mere acquiescence being insufficient.\[36\]

A purchaser who, with knowledge of all the facts, consents to performance of work upon a building, thereby subjects himself to liability therefor.\[37\] An assignee of a leasehold interest in realty upon which a building is being completed is put upon inquiry and bound to take notice that statutory liens may be asserted and enforced thereon for materials and labor furnished in its construction.\[38\]

(SS 4) \_C. Subcontractors and materialmen.\[39\]--A subcontract is one made under a previous contract,\[40\] and a subcontractor is one who takes a portion of the contract from the principal contractor.\[41\] Where the principal contractor is released from his contract by the owner, who assumes liability for all labor and materials furnished and proceeds to complete the building, a materialman furnishing material used therein, under a contract with the original contractor, is entitled to a line as principal contractor with the owner.\[42\]

In the absence of conflicting claims between the person performing the labor and the person causing it to be performed, the latter has a line for the labor so furnished.\[48\] No privity or knowledge on the part of the owner is necessary to give a subcontractor a line for materials furnished to the principal contractor.\[44\]

When a subcontractor knows that a building contract contains a provision that no subcontractor shall file any line, the mere acceptance of such employment will bar him from asserting a line in opposition thereto.\[45\]

on forfeiture-of the contract for failure to comply with its terms \[Z Ball. Ann. Codes & St. Wash. $ 5901, construed\]. Northwest Bridge Co. v. Tacoma Shipbuilding Co. \[Vash.\] 78 P. 996.

33. Does not come within Burns' Ann. St. Ind. 1901, $ 7256, whereby line sublists against buildings in case of forefeiture of lease or foreclosure of mortgage. Rusche v. Pittman \[Ind. App.\] 72 N. E. 473, rvg. former opinion, 70 N. E. 832.

01. Bernard v. Adjornat, 43 Misc. 276, 88 N. Y. S. 859.

01. Contract held not to show intent that work on hotel should begin at once. Bernard v. Adjornat, 43 Misc. 276, 88 N. Y: S. 859.

01. Where owner contracted for sale and payment within 60 days, giving immediate possession, and contract provided that vendor does should erect a hotel thereon, held contract was not consent on part of vendor that work should begin at once, so as to give contractor commencing foundation on lot a Item as against him on default of vendee. Bernard v, Adjornat, 43 Misc. 276, 88 N. Y. S. 859.

01. Evidence held to show knowledge. Gilmour v. Cloedor, 96 App. Div. 358, 89 N. Y. S. 859.

01. Lessee can convey no interest superior to his own. Hammond v. Darlington \[Mo. App.\] 84 S. W. 446.

01. See 2 Curr. L. 874.

40, 41. Ryrndak v. Seawell, 13 Okl. 737, 76 P. 170. A materialman entering into a contract with a contractor to furnish materials for a building which the latter has agreed to build, having knowledge of the principal contract and contracting with relation thereto, on the understanding that the material is to be used in such building, thereby becomes a subcontractor within the meaning of the Item law, and is entitled to a Item for materials actually used in such building. Id. In Indian Territory all persons furnishing the materials or doing the work provided for by the line statutes are deemed subcontractors, unless they have contracts therefor directly with the owner or proprior, or his agent or trustee (Mansl. Dig. # 442; Ind. T. Ann. St. 1899, $ 2889). Materialman furnishing lumber to contract without arrangement with other person held subcontractor, Campbell & Williams v. Wil-Iliam Cameron & Co. \[Ind. T.\] 82 S. W. 762.

42. Okl. Clv. Code 1903, $ 620. Ryrndak v. Seawell, 13 Okl. 737, 76 P. 170.

01. Under N. J. P. L. 1898, p. 538, subcontractor may have line for labor furnished by its agents or employees. Bates Mach. Co. v. Trenton & N. B. R. Co., 70 N. J. Law, 844, 58 A. 935.

01. Wilson's Okl. St. 1903, c. 66, $ 4819. Complaint need not allege it. Ferguson v. Stephenson-Brown Lumber Co. \[Okl.\] 77 P. 184.

01. Bates Mach. Co. v. Trenton N. B. R. Co., 70 N. J. Law, 684, 58 A. 935.

4 Cur. Law. MECHANICS' LIENS SS 5A. 623

\*\*SS 5. _Acts and proceedings necessary to acquire lien. A. Notice and demand, statement of claim and affidavit.46--A notice, statement of claim or affidavit is usually required to be filed.47 It must substantially comply with all the requirements of the statute,48 and must be sufficient in itself without reference to extrinsic proof.49_

Its contents are prescribed by statute, but it must generally contain some statement of the contract,50 the amount claimed, the names of the owner, contractor and claimant,51 and a correct description of the property,52 and must be verified.53 Any description of the property which will enable one acquainted with the locality to identify it is sufficient.54 The fact that the land described exceeds the amount on which the statute allows a lien is immaterial.56 In the absence of fraud the fact that the statement claims larger amount than is found by the court to be due does not invalidate the lien,56 nor does the inclusion in the account of some items which did not go into the building affect the validity of the lien for the other items, where they are small and easily separated.57 Where a subcontractor claiming a lien for work, labor and materials is only entitled to a lien for materials, not the subject of a separate book account, the fact that the lien claimed was for the full contract price does not prevent its amendment so as to set up the reasonable value of such materials.58 A claim good in part will be held wholly bad if it cannot be determined, or is not shown, what part is valid.59

40. See 2 Curr. L. 875. 47. Armstrong v. Chisholm, 99 App. Div. v. Hull 100 N. V. 863. In Texas, aff. 465. 91 N. Y. S. 683. 48. Russell v. Hayner \[C. C. A.\] 130 F. 2 Sayles' Civ. St. 1897, art, 3339b. Insuft-90; Armstrong v. Chisholm, 99 App. Div. 465, 91 N. Y. S. 683. Notices hold sufficient, and belief. Merechants & Planters' Bank v. VWindham v. Independent Tel. Co., 35 Wash. Hollis \[Tex. Civ. App.\] 84 W. W. 269. 166, 76 P. 936. Statement. Ferguson v. Stephenson-Brown Lumber Co. \[Okl\] 77 P. 54. Prec., 3211. Western Iron Works v. Montana Pulp & Paper Co. \[Mont.\] 77 P. 44. Armstrong v. Chisholm, 99 App. Div. 413: Ferguson v. Stephenson-Brown Lumber Co. \[Okl\] 77 P. 184. 465, 91 N. Y. S. 683. 48. 530-322. Sherry \[Gehring\] defined is the building or structure upon v. Madler \[Vris.\] 101 N. V. 1085. Notice must contain a statement of the terms, time givc. Proc. **31** 2130, 2133, construed. West-en, and conditions of plaintiffs contract. 49. Cron Iron Works v. Montana Pulp & Paper Notice sufficient. Pearce v. Atbright \[N. M.\] 76 P. 286. 51. Statement sufficient \[Wilson's St. Okl\] 84 Paper Co. \[Mont.\] 77 P. 413. Where the 1933, c. 66, 4 819. Ferguson v. Stephenson-Brown Lumber Co. \[Okl\] 77 P. 184. Notice sufficient \[Idahn Sees. Laws 1899. p. 148. 8\]. Robertson v. Moore \[Idaho\] 77 P. 218. 41. Civ. Code Alaska, 8 266 (31 St. 534, c. 786) requires notice to state name of owner, or reputed owner if known. Russell v. Hayner \[C. C. A.\] 130 F. 90. If unknown, that fact must be stated and the name of the reputed owner given. Id. These facts should be stated in a direct, clear and positive manner, independently of the description of the property. Id. 52. Robertson v. Moore \[Idaho\] 77 P. 218; 53. Robertson v. Stephenson-Brown Lumber Co. \[Okl\] 77 P. 184. Mont. Code Civ. Proc. **52** 1311. Western Iron Works v. Montana Pulp & Paper Co. \[Mont.\] 77 P. 413. Affavit under 2 Sayles' Civ. St. 1897, art, 3339b. Merchants & Planters' Bank v. Hollis \[Tex. Civ. App.\] 84 W. 269. 53. Robertson v. Moore \[Idaho\] 77 P. 218; 53. Robertson v. Moore \[Idaho\] 77 P. 219; 53. Robertson v. Stephenson-Brown Lumber Co. \[Okl\] 77 P. 184. The failure of the deputy corke of court, before whom the statement was verified, to attach thereto an impression v. Gaghan, 208 Pa. 511, 57 A. 985.

Items beyond the dates included in the notice cannot be proved as part of the plaintiff's lien claim.60 A notice is not defective because claimant's Christian name is designated by initials instead of being written out in full.61

The wording of the statute need not be followed where it does not purport to prescribe a form of statement.62 A notice which follows the full language of the statute, and thereby renders it impossible to determine whether the claim is for labor or material already performed or furnished or to be performed or furnished,63 whether performed or furnished as a contractor or otherwise,64 or whether the amount claimed was the agreed price or the value, is insufficient.65

Two separate and distinct buildings or groups of buildings cannot be treated as one and the same building for the purpose of the statutory notice of lien, where rights other than those of the principal contractor are affected.66 Where the claim states that the materials were furnished and the work done at the request of an agent, it must show his authority.67 In Pennsylvania the claimant must set forth a copy of his contract, if in writing, or a statement of the terms and conditions thereof, if any of them are verbal.68' Where the specifications are expressly made a part of the contract, or are referred to as a part of it, they must be filed with it, in so far as they apply to the work for which the lien is claimed.68 Building plans need not be filed.70

An account is required to be attached to the notice in some states.71.

_Service of notice on owner.72--Persons claiming a lien are in many states required to give a notice to that effect to the owner,73 within a certain time after_

60. Foss v. Desjardins, 98 Me. 539, 57 A. \[they were furnished, and only a few items being subject to the lien. Knelly v. Horvath, 208 Pa. 487, 87 A. 967\].
01. Pearce v. Albright \[N. M.\] 76 P. 286, 62. Under Alabama Code, $ 2727, requiring 70. Knelly v. Horvath, 208 Pa. 487, 67.
01. Hing of statement containing a just and true account of the demand, the omission of the words "after all the just credits have been given," contained in such section, does not render the lien invalid. Alabama & G. Lumber Co. v. Tisdale, 139 Ala, 250, $ 50. \[63. Notice stating "the labor performed or to be performed, and the materials furnished or to be furnished" etc., is Insulin-client. Armstrong v. Chisholm, 99 App. Dlv, 455, 91 N. Y. S. 693. Defect not cured by subsequent statement that amount unpaid \["for labor and materials" is a fixed sum. Armstrong v. Chisholm, 99 App. Dlv, 465, 91 N. Y. S. 693; Ryan v. Train, 95 App. Dlv, 73, 88 N. Y. S. 441; Glimour v. Colored, 96 App. Dlv, 858, 98 N. Y. S. 689.
01. Ryan v. Train, 95 App. Dlv, 73, 88 N. Y. S. 441; Glimour v. Colored, 96 App. Dlv, 358, 98 N. Y. S. 689.
01. Ryan v. Train, 95 App. Dlv, 73, 88 N. Y. S. 441; Glimour v. Colored, 96 App. Dlv, 358, 98 N. Y. S. 689.
01. Dist. Col. Code, $ 1237-1264 construed. Richards Brick Co. v. Trott, 23 App. D. C. 284.
01. 2 Ball. Ann. Codes & St. Wash. $ 5900 construed. Northwest Bridge Co. v. Tacoma Shipbuilding Co. \[Wash.\] 78 P. 996.
01. Act June 4, 1901 (P. L. 436). Knelly v. Horvath, 208 Pa. 487, 67 A. 957.
01. Lien could not be sustained where specifications not filed, though the lied bill for materials sold and work done in order to support claim for extra work, and annexed it to lien, there being no statement of the terms and conditions under which 4 Cur. Law. MECHANICS' LIENS SS 5A. 625

the performance of the labor, or the furnishing of the material." In some states no notice is necessary where the lien is claimed by the principal contractor."

In New Jersey no liens can be filed against a building if a copy of the contract between the owner and the contractor is filed with the city clerk, but materialmen and laborers may obtain a lien on funds in the owner's hands belonging to the contractor by serving him with a stop notice." In order to entitle one to a lien for work under this statute he must be a laborer or journeyman employed by the contractor." A materialman is one who simply furnishes to the building, or for use therein, material which some one else is to incorporate into it by his labor." A demand must be made upon the contractor prior to the serving of notice on the owner." It may be made by the claimant in person, or by his duly authorized agent or attorney." In the case of a materialman the notice must show that the claimant has furnished materials which have been used in the building," that an amount of money is due him on account thereof," and that payment has been refused." The cases do not appear to be in harmony on the question whether it must specifically state that a demand has been made." The signature of the noticing party is not essential to its validity." A notice stating that a certain amount is due for work done and materials furnished is fatally defective if it does not differentiate the amount due for each." The notice is not defective because items which are not lienable claims are, by mistake and in good faith, included therein." Actual service on the owner must be proved." Service may be made in any form, or by any method which in effect

the owner or his agent, if to be found in the country in which the property is situat-

c. 226). Fehling v. Goings \[N. J. Eq.\] 58 A. ed, and if neither can be found therein, by

filing it in the office of the clerk of gives the written notice prescribed by statute." The rights acquired by the claimant are not invalidated by the bankruptcy of the contractor within four months thereafter." If the owner makes a payment on the building contract in advance of its terms, and the amount remaining due is insufficient to satisfy notices served according to law, he is liable as though such payment had not been made."

In New York, payments made by an owner before they become due by the terms of the contract, for the purpose of avoiding the provisions of the lien law, are ineffectual as against the lien of a subcontractor." Only collusive payments are forbidden, the statute not applying to those made before the owner knew, or had reason to know, that any one had a claim against, or had furnished materials to, the contractor." Payments made after notification of a claim will be regarded as made for the purpose of avoiding the lien law."

In Alabama, liens of persons furnishing material to the contractor extend only to the amount of any unpaid balance due him from the owner when notice of an intention to claim a lien is served on the latter, or which shall thereafter become due." An owner making payments to the contractor after such notice is not relieved from the effects of the lien, though the contractor abandons the work and he is compelled to pay more than the contract price for the completion of the building."

(SS 5) _B. Filing and recording claim and statement thereof."_--The statutory requirements for preserving the lien must be complied with." The claim or statement must be filed within the prescribed time." In Texas the lien is

- **Sp.** Fehling v. Gognes \[N. J. Eq.\] $ A. \[quired, and evidence was conflicting as to 642. May be given by the claimant's agent.\] whether the material was made necessary to completion of building, which had not 1d.
- **90.** Not assignments or transfers by bankrupt to defraud his creditors within in plans, held error to give declaration of Bankruptcy Act of 1898, c. 541, $ 67f, 30.
- Stat. 565 \[U. S. Comp.\], St. 1901, p. 3450\] whether the extras were necessary to com-Fehling v. Gognes \[N. J. Eq.\] $ A. 642.
- **91.** N. J. Gen. St. p. 2074, $ 5. Veitch v. Clark \[N. J. Eq.\] $ A. \[275\]. Heid no advance payment, though instalment was paid before all the doors and trim were on, it appearing that words "when the trim is on and the doors hung," as used in the contract, were ordinarily not construed strictly, but indicated a certain stage of the work, which had been reached. Id.
- **92.** Laws 1897, p. 517, c. 418, $ 7. Wolf v. Mendelsohn, 87 N. Y. $ 465.
- **93.** Wolf v. Mendelsohn, 87 N. Y. $ 465.
- **94.** Volf v. Mendelsohn, 87 N. Y. $ 465.
- **95.** Code 1896, $ 2723 construed. Alabama & G. Lumber Co. v. Tisdale, 139 Ala. 250, 36 So. 618.
- **96.** Alabama & G. Lumber Co. v. Tisdale, 139 Ala. 250, 36 So. 618.
- **97.** See 2 Curr. L. 878.
- **98.** Foss v. Desjardins, 98 Me. 539, 67 A.
- **881.**
- **99.** Maine: Notice of the lien claim must be filed within forty days after the lienor ceases to furnish materials \[Rev. St. 1833, c. 91, $ 32\]. Foss v. Desjardins, 98 Me. 539, 57 A. 881.
- **97.** Subsequently have four months under Mo. Rev. St. 1899, $ 4207. R. J. Schwab & Sons Co. v. Frieze \[Mo. App.\] $1 S. W. 1174; Lecoutor Bros. Stair Mfg. Co. v. Maddox \[Mo. App.\] $4 S. W. 99. Where it was not disputed that the last item was furnished within the time re given by the constitution, and no registration of claim is necessary in cases arising between the original contractor and the owner.1

Where there are separate contracts between the contractor and the owner for different jobs, the lien account must be filed within the statutory period after the completion of the work under each contract, in order to be good for the entire work.2 The question whether the materials were furnished and the labor performed under one general contract or under separate contracts is one of fact.3 When materials are furnished for the same improvement, in instalments and at intervals, but the parties intend them to be included in one account and settlement, the entire account will be treated as a continuous and connected transaction, and the lien limitation begins to run from the last item of it.4 When the building is substantially completed, and is tendered to and accepted by the owner as complete, the contractor cannot thereafter, at his own instance, and against the will of the owner, perform some part that was called for by the contract, and thereby extend the time for filing the lien.5 When extra work is done or material furnished by a contractor during the preformance of his agreement, as a part of or in furtherance of the same general object, it will be deemed, for lien purposes, a part of the same general contract, and the time for filing the lien for the amount due on the contract and the extra work will commence to run on completion of the work as a whole.6 But the performance of other or additional work after the completion of the contract cannot operate to extend such time.7

628MECHANICS' LIENS SS 6.4Cur. Law.

SS 6. _Amount of lien and priority thereof.\[11\]_--Where the erection of a building is one continuous undertaking without abandonment, a mortgage originating subsequent to the commencement of its construction is subordinate to the lien claims of all who have contributed to the completion of the structure.\[12\] In such case a mortgage purchasing on foreclosure sale does not become a bona fide purchaser, but is substituted only to the rights of the mortgagor, and takes subject to the liens.\[13\] A mortgage executed prior to the commencement of the work must be recorded in order to render it superior to lien claims for labor and materials.\[14\]

Mechanics' liens are superior to the homestead claims of the owner's minor children.\[18\]

Where machinery was sold on condition that a building be erected to put it in, notice to an agent of the seller, engaged in promoting a contract for erecting the building, of the building contractor's lien, was notice to the seller.\[18\] Knowledge of the agent that the building is being built on credit and that the statute gives a lien to the contractor and materialmen under such circumstances is sufficient to charge the seller with notice of the contractor's lien.\[17\]

An assignee for the benefit of creditors of a general contractor takes the property subject to the right of laborers and materialmen to subsequently file mechanics' liens for work performed prior to the assignment.\[18\]

The rights of a subcontractor are not limited to the balance due the contractor, but by filing his claim and serving the required notice he becomes entitled to a lien for the full amount due him,\[19\] of which he cannot be deprived by any adjustment between the owner and the principal contractor.\[20\] This is particularly true where the owner has actual notice of his employment, and fails to protect himself by withholding from the contract price a sufficient sum to pay his claim, as he has a right to do under the contract.\[21\]

In some states laborers, materialmen, and subcontractors are entitled to liens as against the owner only to the extent to which the latter is liable to the contractor under the contract.\[22\] In Kentucky the aggregate amount of liens allowed cannot exceed the contract price, and if those claimed are in excess of such price it will be distributed pro rata among the claimants.\[23\] Where the cost of the 11. See 2 Curr. L. 878.

12. Minn. Laws 1895, p. 224, c. 101, does not change this rule. City of Ortonville v. Geer \[Minn.\] 101 N. W. 963. Llens take precedence of mortgages given subsequent to the commencement of the work \[Mont. Code Civ. Proc, SS 2133\]. Western Iron Works v. Montana Pulp & Paper Co. \[Mont.\] 77 P. 413.

01. Mortgage executed after a part of the material was furnished. Western Iron Vorkes v. Montana Pulp & Paper Co. \[Mont.\] 77 P. 413.

01. Laws 1895, p. 224, c. 101. City of Ortonville v. Geer \[Minn.\] 101 N. W. 963.

01. Tex. Const. art. 16, SS 37, 50. Summerville v. King \[Tex.\] 83 S. W. 680.

16, 17. D. June & Co. v. Doke \[Tex. Clv. App.\] 80 S. W. 402.

18. In such case laborers have Inchate right to lien which becomes perfected when notice is filed. Armstrong v. Chisolm, 99 App. Div. 465, 91 N. Y. S. 299.

19, 20. Wheelock v. Hull \[Iowa\] 100 N. W.

4 Cur. Law. MECHANICS' LIENS SS 8. 629 building exceeds the contract price, the fact that others have not filed claims for liens does not entitle one who has done so to more than his pro rata share.\[4\]

A subcontractor relying on an unaccepted order given him by the principal contractor and neglecting to take advantage of the mechanics' lien law stands in the position of an ordinary creditor with no specific rights as against the owner or the property except under the order.\[28\] Serving notice of such order on the owner works an equitable assignment of so much of the amount to become due the contractor.\[28\] It is the duty of an owner, who has, under his contract, the right to retain from the contract price a sum sufficient to indemnify himself against any claims for which he may be liable, when he has notice that parties furnishing necessary materials and labor are unpaid, to withhold all further payments until such bills are settled.\[29\] The right of the contractor is to the balance remaining after all such claims have been satisfied, and the subcontractor taking an unaccepted order from him has no rights except as to such balance, and takes his chances as to there being any balance.\[30\]

The New York lien law provides that no assignment of the contractor of the money due or to become due thereunder, nor any order drawn by the contractor on the owner shall be valid until the contract, or a statement containing its substance and the assignment, or a copy of each, or a copy of such order, shall be filed with the county clerk.\[29\] This act does not affect payments made by the owner on account of labor performed or materials furnished under the contract.\[30\] An assignee for the benefit of creditors of a general contractor takes the property subject to the right of subcontractors having orders drawn on the owner in their favor, and payable out of a particular fund due on the contract, to file the same.\[31\] Thus orders given before such assignment and filed thereafter give the subcontractor priority over the assignee.\[32\]

SS 7. _Assignment or transfer of lien.\[33\]_--In Indian Territory liens are transferable and assignable by statute.\[34\]

SS 8. _Flavier, loss, or forefeiture of lien or right to acquire it.\[35\]_--A builder may waive his right to a statutory lien,\[36\] and does so by agreeing not to exercise it,\[37\] and such a contract binds a subcontractor with notice.\[38\] Where the terms of the contract are ambiguous, the doubt should be resolved against the waiver.\[39\] A stipulation agreeing to deliver the building free from all claims, liens, and charges is not a waiver of the contractor's right to a statutory lien.\[40\] Nor does

24. Under Ky. St, 1903, $ 2468, all have ors. Harvey v. Brewer, 178 N. Y. G, 70 N. liens, which are dissolved unless claims are filed within six months. Canady, Gilium k & 30. Harvey v. Brewer, 178 N. Y. G, 70 N. Key v. Webb, 25 Ky. L. R. 2107, 80 S. W. W. 172. 25, 26. Wheelock v. Hull \[Iowa\] 100 N. W. 863. 27. Iowa Code, $ 3093. Wheelock v. Hull \[Iowa\] 100 N. W. 863. 32. Armstrong v. Chisolm, $ 99 App. Div. 455, 91 N. Y. 829. 33. Cannot assert personal claim against owner superior to claims of those holding items. Wheelock v. Hull \[Iowa\] 100 N. W. 863. 34. Mansf. Dig. 4423; Ind. T. Ann. St. 29. Laws 1897, p. 511, c. 418, $ 15. Harvey v. Brewer, 178 N. Y. G, 70 N. E. 73. Armstrong v. Chisolm, $ 99 App. Div. 455, 91 N. Y. B. 290. Acceptance by owner of order drawn by contractor in favor of subcontractor who had filed a lien, and acceptance by subcontractor of owner's written promise to pay it in satisfaction of lien, which was thereupon discharged, held to constitute payment, so that filing of order not necessary to make it valid as against subsequent lien.\[39\] one furnishing and installing machinery waive his right to a lien by stipulating in the contract that title thereto shall not pass to the purchaser until all payments shall be fully made in cash.\[41\] The acceptance of the owner's notes is not a waiver of the lien unless they are taken as a payment.\[42\]

The fact that the materialman becomes surety on a bond of the contractor, conditioned to save the owner harmless from liens, does not estop him from suing the owner to enforce his lien, in the absence of a showing that the latter would be injured thereby.\[43\]

No representations of defendauts can operate to estop them to deny that claimants may file claims against any of the property until a specified time.\[44\]

SS 9. _Discharge and satisfaction.\[45\]_--In some states one having an interest in property upon which a mechanic's lien is claimed may give bond to dissolve such lien upon his interest.\[46\] The mere fact that the property was conveyed to him with a view to his giving such bond does not affect his right to do so.\[47\] Where the sureties falsely impersonate others and give false answers in regard to their property when examined before the master in chancery, the bond is void and does not work a dissolution, though signed and approved by the master.\[48\] The bond may, of course, be canceled if obtained through fraud.\[49\]

In an action on an undertaking given to procure the discharge of a lien filed by plaintiff's assignor, and running to the county clerk, plaintiff must allege that he has obtained leave to sue.\[50\]

SS 10. _Remedies and procedure to enforce lien. A. Remedies. Form of action.\[51\]_--In Utah at the time of filing a complaint for a lien and issuing the summons, plaintiff is required to publish a notice to all persons claiming liens on the premises to appear on a specified day and prove them.\[52\] All liens not then exhibited are waived.\[53\] Failure of a contractor whose time for filing a lien has not expired, and who is neither made a party, nor served with process, and has no knowledge of the proceedings, to appear and prove his claim, is not a waiver.\[54\] The statute is remedial, and should be liberally construed.\[55\]

41. Salt Lake Hardware Co, v. Chainman & Elec. Co., 128 F. 509.

01. Notes held not to have been given and accepted in payment of account pro tanto, and plaintiff had a right to apply amounts received by him subsequently to their payment rather than to the payment of his general account. Hence, the did not thereby release his lien on the building. Bryant v. Grady, 98 Me. 389, 57 A. 92. Payment by owner directly to plaintiff on assignment to him of architectects order held in effect a payment by defendant, and plaintiff could apply the amount so received on the notes, defendant having consented thereto. Id. Right not waived by the acceptance of a note on the owner's indededness, with the understanding that the materialman shall hold it until the owner can make a payment on account and then surrender it, no payment having been made, and the note being produced for cancellation at the trial. E. R. Darlington Lumber Co. v. Harris \[Mo. App.\] 80 S. W. 688.

01. Badger Lumber Co. v. Muehlebach \[Mo. App.\] 83 S. W. 546.

01. Estoppel inapplicable where property and not persons are to be charged. Bradley v. Gaghan, 208 Pa. 511, 57 A. 985.

01. See 2 Curr. L. 882.

01. Mass. Rev. Laws, c. 197, $ 28. Brecd v. Gardner \[Mass.\] 72 N. E, 983.

47, 48. Brecd v. Gardner \[Mass.\] 72 N. E. 983.

49. Where the owner fraudulently conveys the property to an irresponsible person, and procures him, as principal, and two other irresponsible persons, who fraudulently justified as sureties, to execute such a bond, equity will, on petition of the lienor, cancel the bond, enjoin the grantor and grantee from claiming any rights by reason thereof. and compel them to execute a release of such rights. Keyes v. Brackett \[Mass.\] 72 N. E, 986.

01. Necessary under N. Y. Code Civ. Proc. SS 814. Goldstein v. Michelson, 91 N. Y. S. 33.

Averment that undertaking ran to plaintiff's assignor rendered nugatory by annexation of instrument showing contrary. Id.

51. See 2 Curr. L. 882.

52, 53. Rev. St. 1838, $ 1391. Elwell v. Morrow \[Utah\] 78 F. 605.

54. No lien created until contractor files claim for record \[Rev. St. 1898, $ 1386\]. Evidence held to show that failure was with out prejudice to plaintiff's rights. Elwell v. Morrow \[Utah\] 78 P. 605.

01. Elwell v. Morrow \[Utah\] 78 P. 605.

**4** Cur. Law. **MECHANICS' LIENS SS 10A.**

In Georgia the execution issued on the foreclosure of a laborer's lien operates as final process until arrested by a valid counter-affidavit.\* The counter-affidavit converts this final process into mesne process, and raises an issue which must then be passed upon by the proper court.\[57\] Until a valid counter-affidavit is filed there is no case and no issue to be tried, and hence when it is void, defendant cannot have a ruling as to the validity of the foreclosure or levy.\[58\]

\_By attachment.\[69\]--In Maine, in an action to enforce a lien on land and buildings for materials furnished in the construction of the buildings, the attachment must be made within ninety days after the last materials are furnished.\* Sundays are included in the computation of such time,\[61\] and when the last day falls \_on Sunday an attachment on the following Monday is not seasonally made.\[62\]

\_Time of bringing action.\[63\]--\_Statutes generally limit the time within which actions to enforce the lien may be brought.\[64\] There need not be visible continuity of work from first to last in order that the last item may relate back to its commencement.\[65\] Delay in completing the work sufficient to so clearly indicate completion or abandonment as to excuse third parties dealing with the property from making inquiries in regard to the matter may affect the right of lien upon principles of estoppel in pais.\[66\] An action to enforce a lien, filed on the day on which the lien was filed, but thereafter, is not premature.\[67\]

\_Concurrent remedies.\[68\]--\_The fact that the statute provides a summary method for enforcing liens does not, in the absence of a provision to the contrary, prevent their enforcement by a bill in equity.\[68\]

The remedy upon a mechanics' lien and that upon the debt are distinct and concurrent and may be pursued at the same time,\[70\] or separately.\[71\] In states where the distinction between proceedings at law and in equity have been abolished, both remedies may be pursued in the same action,\[72\] including all provisional and

**56**. **Civ. Code 1895, SS 2816. Moultrie Lum-**

der Co. v. Jenkins \[Ga.\] 49 S. E. 678.

**57**. Moultrie Lumber Co. v. Jenkins \[Ga.\] 49 S. E. 678.

**58**. Where affidavit invalid because taken before defendant's attorney, there is nothing to amend, and proceedings are properly dismissed. Moultrie Lumber Co. v. Jenkins \[Ga.\] 49 S. E. 678.

**59**. See 2 Curr. L. 883, n. 95.

**60**. Pub. Laws 1897, p. 251, c. 222, SS 1.

Oakland Mfg. Co. v. Lemieux, 98 Me. 48, 857.

A. 795. Suit must be commenced within ninety days after the last materials are furnished \[Rev. St. 1858, c. 91, SS 34\]. Foss v. Desiderins, 98 Me. 539, 57 A. 881.

**61**, 62\*\*. Oakland Mfg. Co. v. Lemieux, 98 Me. 488, 57 A. 795.

**63**. See 2 Curr. L. 878, SS 5 B.

**64**. In Wisconsin the lien petition must be filed within six months after the last charge for furnishing material or work \[Rev. St. 1898, SS 3318\]. Hutchins v. Bautch \[Wis.\] 101 N. W. 671. Evidence held to show commencement of suit within four months after materials were furnished. Bates Mach. Co. v. Trenton, etc., R. Co., 70 N. J. Law, 684, 58 A. 935.

**65**. Allowed for deepening well and re-pairing pump and equipping it with frost-proof cock. Hutchins v. Bautch \[Wis.\] 101 N. W. 671.

**66**. Hutchins v. Bautch \[Wis.\] 101 N. W. 671.

**67**. Mo. Rev. St. 1899, SS 4160, providing that the time within which an act shall beauxiliary remedies obtainable in an action on the debt.78 In the Federal courts proceedings to foreclose mechanics' liens are suits in equity, even though the state statutes creating the liens designate such proceedings as actions at law,78 and where the case is removed, the pleadings should be recast so as to separate the two causes of action.78

Except in jurisdictions where the distinction between actions at law and suits in equity is preserved,78 the fact that plaintiff is unable to establish his right to a lien does not prevent bim from recovering a personal judgment.79

(SS 10) \_B. Parties.78--The original contractor is a necessary party to a suit by a subcontractor, laborer, or materialman.79

The wife is a necessary party to the foreclosure of a lien on community real estate,80 and where she is not made a party until after the statutory time for commencing suit has expired, the court has no jurisdiction to foreclose.81 She is also a proper but not a necessary party to a suit to foreclose a lien on a home-stead, title to which was in the husband alone, for work done under a contract made with him.82 Where she does not apply to intervene before judgment, it is not an abuse of discretion to refuse her subsequent application to vacate the judgment and permit her to defend on the same ground as that urged by her husband.83

There is a conflict of authority as to the necessity or propriety of joining sureties on the contractor's bond.84

a mechanic's lien, and an order of sale of the adjudienta as to right to recover for breach property on which it exists to satisfy the amount due upon the contract. In such an action an appeal bond in the form pre-
Though notice Insufficient, may recover unscribed in case of appeal from judgment for the payment of money held sufficient. Ma-

that plaintiffs "may have judgment against honey v. Johnson McLean Co. \[Neb\] 100 N.

W. 423. The sale does not extinguish the judgment or debt unless the proceeds are sufficient to pay it in full. Id.

73. As attachment and garnishment, Hatcher v. Hendrie & Bolthoff Mfg. & Supply Co. \[C. C. A.\] 133 F. 267.

01. Hatcher v. Hendrie & Bolthoff Mfg. & Supply Co. \[C. C. A.\] 135 F. 267.

01. Where suit was proceeded with on original pleadings as suit in equity, without objection, a money judgment against defendant is not void. even 1f erroneous, and cannot be collaterally attacked. Hatcher v. Hendrie & Bolthoff Mfg. & Supply Co. \[C. C. A.\] 133 F. 267.

01. In the federal courts where the complaint in a suit to foreclose a mechanic's lien is insufficient for that purpose, it cannot be sustained for the purpose of allowing plaintiffs to recover a personal judgment against the person liable on the contract.

Distinctions between law and equity preserved. Russell v. Hayner \[C. C. A.\] 130 F.

90.

01. In New York If the licenor fails for any reason to establish a valid lien in an action brought under the provisions of the lien law, he may recover judgment therein for such sums as are due him, or which he might recover on an action on a contract against any party to the action \[Code Civ. Proc. $ 3412\]. Koeppel v. Macbeth, 97 App.

Div. 293, $ N. Y., S. 869. The statute is not mandatory and plaintiff may, If he so desires, enforce contract claims not covered by a valid lien in a subsequent suit. Judgment in foreclosure suit held not res 4 Cur. Law. MECHANICS' LIENS SS 10C. 633

The proceedings are not binding on one not a party thereto,85 but are prima facie proof, and admissible in evidence against him.86

The petition cannot-be amended so as to include a necessary omitted party after the time for commencing suit to enforce the lien has expired.87

(SS 10) \_C. Pleading, practice, and evidence. Pleading.88--Applications of the general rules of pleading will be found elsewhere.89

The complaint must set forth the substance of the contract under which the work was done,90 must allege that defendant owned the land when the contract was executed,91 and must directly allege that the material was used in the construction of the building.92 A complaint sufficiently describing the property, fixing the time and manner of the labor, the amount due, and that the lien was filed within the statutory time, and complying with the requirement of ordinary suits in equity, is sufficient.93 The description of the property is sufficient if it points out and indicates the premises so that they can be identified.94

Liquidated damages provided for in the contract for delay in completing the work, defects in the work, and damages caused by its abandonment, may be set off against the builder's claim.95

In Alabama any defendant may put in issue the existence of a lien.96 It is error to enter judgment establishing the existence of the lien claimed when the jury does not respond to such issue, but renders a verdict for plaintiff on the issue of indebtedness only.97

_Practice.98--In an action to enforce a lien, where it is shown by counterclaim or cross-complaint that there is a demand for affirmative relief, either party is entitled to a trial by jury on that issue, if in the nature of an action at law.99 A suit to enjoin a foreclosure suit need not be brought in the county where the decree was rendered, where it is merely ancillary to proceedings to have plaintiff's lien declared superior, and the validity of the decree is not attacked.1_

**S5. Hammond v. Darlington \[Mo. App.\]**

puted or objected to, both will be considered $4 S. W. 446.

S6. In action for damages for destruction of buildings to which lien attached. Hammond v. Darlington \[Mo. App.\] 84 S. W. 446.

1035.

0001. Rumsey & Sikimeler Co. v. Piefer \[Mo. App.\] 83 S. W. 1027.

0001. See 2 Curr. L. 882, 883, $ 10a, 10b.

0001. See Pleading, 2 Curr. L. 1178. Where the right of the owner to recup damages is permissive an amendment operating to complen- an election should be refused (See Comp. Laws, $ 10710). Likewise where it will compel splitting a cause. Klibby Mfg, Co. v. Meronmlee Circuit Judge \[Mich.\] 101 N. W. 522. Compilation held to sufficiently disrupt that plaintiffs furnished labor and materials in building houses which defendants accept-ed, and that defendants knew that plaintiffs were the parties with whom they were dealing, so that they were liable therefor, not-withstanding the withdrawal of one of the parties to the contract. Cochran v. Yubo, 34 Wash, 238, 75 P. 815. General denal held to put in Issue question whether house had been completed according to contract, and to allow proof of nonperformance. Sherry v. Madler \[VVis.\] 101 N. W. 1035. In any event amendment should have been allowed if necessary. Id.

0001. Rev. St. 1898, $ 3220-3232. Where neither complaint or claim set forth new contract on which plaintiff finally recovered, but evidence of new contract was not dis- _Evidence._--The burden is on plaintiff to make good his lien against any or all of the properties against which he seeks to enforce it.3 He must prove the existence of the contract between defendant and the owner,4 that defendant owned the land when the contract was executed,5 and that the materials were used and actually went into the land.6

Footnote 4: The author is grateful to the anonymous referee for his comments on the manuscript.

An allegation that plaintiff executed a bond conditioned to save defendant harmless from liens and is thereby estopped to maintain the action amounts to an admission of the existence and validity of his lien.7

(SS 10) _D. Judgment, costs, and attorney's fees._--A judgment in an action to foreclose a lien for labor and materials furnished under a written contract that plaintiff is not, upon the merits,' entitled to foreclosure, or to a personal judgment for a balance claimed to be due him, is a bar to an action to recover for the same work and materials upon the theory of an implied contract.9 Where the petition to enforce a lien for materials furnished a contractor fails to allege that the owner is personally liable therefor, or that the owner was indebted to the contractor in any sum when notified of plaintiff's claim, a judgment against the owner by default is void.10

Footnote 10: Proceedings before justice under

In Indiana a suit to foreclose a mechanic's lien may be appealed notwithstanding the fact that the amount claimed does not equal the amount necessary to give jurisdiction to the appellate court.11

Footnote 11: The author is grateful to the anonymous referee for his comments on the manuscript.

Personal judgments against the owner of property on which a lien exists are, in the absence of priority of contract, allowed only when authorized by statute.12 In the absence of priority of contract, the right to a personal judgment under the statute depends upon the existence of a right to a lien.13

Footnote 12: The author is grateful to the anonymous referee for his comments on the manuscript.

\_Costs and attorney's fees.\_14--In some states, attorney's fees may be allowed in the foreclosure of mechanic's and laborer's liens.13 Where a junior lienor makes no objection to the erroneous inclusion of attorney's fees in the amount of the prior lien, he is not entitled to costs on appeal on modification of the judgment so as to exclude them.14

(SS 10) _E. Sale._--Where one person has a prior lien on a building and lot

13. See 2 Curr, L. 882, 883, 81 10A, 10B.

Miss. Code 1892, e. 17. Smith v. Frank

S. Bradley v. Gaghan, 208 Pa. 511, 57 A.

11. Acts 1801, p. 566, e. 247 (Burns' Ann.

01.

01. Evidence sufficient. Badger Lumber Co. v. Muehlebach \[Mo. App.\] 82 S. N. V. 546.

Dermurer to evidence should be sustained where it is not. Hengengertory. Hoyt \[Mo. App.\] 83 S. W. App.\] 83 S. W. 539. Evidence insufficient to show contract. Jose v. Hoyt \[Mo. App.\] 81 S. W. 468. Statement of counsel in making objection held not an admission that there was an original contractor. Id. The lien paper itself is not evidence of such a contract. Does not prove itself. Id.

S, 6. Evidence sufficient. Badger Lumber Co. v. Muehlebach \[Mo. App.\] 83 S. W. 546. Evidence held to justify preemptory instruction for plaintiff. Id. Evidence sufficient to support finding that material furnished by subcontractor was sold and delivered to be used by the contractor for the several buildings of the defendant owner.

Law Lumber Co. v. Auer \[Wis.\] 101 N. W. 425.

7. Badger Lumber Co. v. Muehlebach \[Mo. App.\] 83 S. W. 546.

1. See 2 Curr. L. 882, 883, 81 10A, 10B.

1. Maeder v. Wexier, 90 N. Y. S. 598.

1. Proceedings before justice under

1. Moss. Code 1892, e. 17. Smith v. Frank

S. Bradley v. Gaghan, 208 Pa. 511, 57 A.

11. Acts 1801, p. 566, e. 247 (Burns' Ann.

01. St. 1901, $ 1337f), as amended by Acts 1903,

01. D. 280, e. 156, applies only to civil cases in which the essential object is the recovery of a money judgment. Knowlton v. Appl.\] 83 S. W. 539. Evidence insufficient to show contract. Jose v. Hoyt \[Mo. App.\] 11 N. R. 585.

01. In jurisdiction of justice of the peace, and hence Acts 1901, p. 566, e. 247 (Burns' Ann.

St. 1901, $ 1337f), prohibiting appeals to Supreme and appellate courts in a suits with-in-in-justice's jurisdiction does not apply. Id.

15. Muller v. McLaughlin \[Tex. Civ. App.\] 83 S. W. 687.

01. Provisions of Tex. Rev. St. 1895, arts.

01. A. 3805, 3807, authorizing retention of amount due and another has a prior lien on machinery therein, it is proper to order the building and the machinery to be sold separately.\[17\]

SS 11. \_Indemnification against liens.\[18\]--Laborers and materialmen may maintain an action on a bond given to secure the performance of a contract, wherein the contractor agrees to pay their claims, when the parties evidently intended to secure them as well as the owner, even though they are not specifically named, and no consideration passes directly from them to the surety.\[19\] A subcontractor injured by a breach of the contract cannot be deprived of his right to recover on the bond by any act of the owner.\[20\]

The surety is not released because the owner withholds a part of the contract price in accordance with the terms of his contract, or a sum due him as damages for delay in completing the contract,\[21\] nor because of mere irregularities in the manner of making payments.\[22\] Where the obligation runs to the owner and all persons who may be injured by the breach of the contract, the only limit to the surety's liability is the penalty named in the bond.\[23\] Interest may be recovered on the claims though the amount of recovery is thereby made to exceed the penalty.\[24\]

Where the contractor gives bond to secure the performance of the conditions of the contract, which requires him to furnish all materials and labor, the owner may sue thereon without having first paid, or suffered judgment for, the claims of materialmen asserting liens against the property for failure of the contractor to pay them.\[25\] A compensated surety company cannot escape liability for the failure of the owner to pay the contractor in full where he receives due credit for the balance due, which inures to the benefit of the surety.\[26\] A judgment obtained, in good faith and without fraud or collusion, by the owner against the contractor for breach of contract, estops his sureties in an action on the bond.\[27\]

Sureties on a contractor's bond furnishing him materials and becoming responsible for labor to be used by him in completing the contract have no prior lien on the amount due him, but stand in the same position as any other person furnishing labor and material.\[28\]

The filing of a mechanic's lien does not injure a landowner who is indebted to the contractor on the contract price in an amount equal to or greater than the lien, since he has it in his power to protect himself.\[29\] The law will not presume that the owner is injured and so given a right to resort to the indemnity from the mere fact that a lien has been filed,\[30\] but he must allege and show that he does not owe the contractor an amount equal to, or greater than, the amount of the lien.\[31\]

One furnishing provisions to a railroad contractor cannot recover on a bond given to the railroad to pay persons supplying such provisions, there being no priority.\[32\]

**18.** See 2 Curr, L. 886.

**19.** As where bond runs to owner and all persons who may be injured by any breach of Its conditions. Getchell & Martin Laumber & Mfg. Co. v. Peterson \[Iowa\] 100 N. W. 550.

**20.** 21.\*\* Getchell & Martin Laumber & Mfg. Co. v. Peterson \[Iowa\] 100 N. W. 650.

**22.** Irregularities in manner of making payments held not to have released surty.\[30\] Getchell & Martin Laumber & Mfg. Co. v. Peterson \[Iowa\] 100 N. W. 650.

**23.** Getchell & Martin Laumber & Mfg. Co. v. Peterson \[Iowa\] 100 N. W. 550.

**25.** May regard the allowing claims to become charge on property as a breach.

Friend v. Ralston, 35 Wash. 422, 77 P. 794.

**26.** Credited In action between owner and contractor. Friend v. Ralston, 35 Wash. 422, 77 P. 794.

**27.** Friend v. Ralston, 35 Wash. 422, 77 P.

**79.**

**28.** Contract not abandoned to owner.

Evans v. Lower \[N. J. Eq. 58 A. 294.

**29, 30, 31.** Badger Lumber Co. v. Muehlebach \[Mpg. Appl. 83 S. W. 546.

**32.** Armour de Co. v. Western Const. Co. \[Wash.\] 78 P. 1106.

# MEDICINE AND SURGERY.3i

## 1 Public Regulation of the Business

of Treating Disease (036).

## 2 Regulation of the Keeping and Sale

of Drugs and Medicines (638).

## 3 1 Public regulation of the business of treating disease

It is within the power of the state to prescribe such restrictions and regulations for the practice of dentistry

or medicine and surgery

as shall protect the people from the consequences of ignorance or incapacity, deception or fraud. This includes the power to determine what acts shall constitute the practice of the healing art, and to impose conditions on the exercise of the privilege

Certificates or license

## 4 5 California: Legislative regulations

under which persons possessing proper qual-

Curr. L 666 (reporting births and deaths).

of dentistry are a valid exercise of the

polieve power to protect the public against

independent persons. Ex Parte Whitney,

solution of the question depends in part

144 Cal. 167, 77 P. 879. California dentistry

law (St. 1901, p. 544, e. 175) is not uncon-

stillttonal because it exempts from the

operation of its requirements those engaged

in the practice of dentistry at the time of

the passage of the act. Id. Nor does the

act make an arbitrary or unconstitutional

classification of persons permitted to prac-

v. Chace, 29 Ohio St. 577; Nelson v. State,

tice after examination; the classification

22 Ky. L. R. 438, 57 S. W. 601, 50 L. R. A. 383); obstetricians (State v. Welch, 129

lmg, graduates of reputable dental

lmg, graduates of high schools who have

N. C. 579, 40 S. E. 120); midwives (People

verved apprenticeships of four years, and

v. Arendt, 60 Ill. App. 83). As to Christian

lmg
scientists and osteopaths, there is a con-

fact. The Nebraska state is held to

apply to Christian scientists (State v. Bus-

well, 40 Neb. 158, 58 N. W. 728, 24 L. R. A. 68); the contrary is held under the Rhode

exambers by the provision that graduates

Island statute (State v. Myloid, 20 R. I. 632, 40 A. 753, 41 L. R. A. 428).

mitted to examination on furnishing sat-

The following cases hold that osteopaths

ifactory evidence of graduation: nor is

must comply with statutory requirements

as to the practice of medicine: Little v. State, 60 Neb. 749, 84 N. W. 748, 51 L. R. A. 717; State v. Gravert, 65 Ohio St. 289, 87

v. Am. St. Rep. 605, 65 L. R. A. 7191; Bragg v.

creating the State Dental Association and

State (Ala1). 58 L. R. A. 925; Jones v. People,

pde, 84 Ill. App. 455; People v. Jones, 92

requires dentits then practicing to regis-

lll, App. 445; People v. Gordan, 194 Ill. 560,

62 N. E. 858, 88 Am. St. Rep. 165. The fol-

loving hold that such statutes do not apply

to osteopaths: State v. Biggs, 133 N. C. 729, 46 S. E. 401, 98 Am. St. Rep. 731, 64

practice of dentistry does not confer legis-

lmg, R. A. 439; State v. Lifetime \[Oh\] 46

lmg, R. A. 334; Nelson v. State Bd. of Health,

22 Ky. L. R. 438, 57 S. W. 501, 50 L. R. A. 383; Hayd'en v. State, 291, 33 R. 653, 55 Am. St. Rep. 471; State v. McKnight, 131

N. C. 717, 42 S. E. 850, 59 L. R. A. 187,

As to state regulation of the practice of

osteopathy and Christian science as such.

see note to State v. Biggs \[N. C.\] 98 Am. St. Rep. 751, 753.

A traveling optical who fitted and sold

spectacles did not "troat, operate on or prescribe for any physical aimment" or Injury

or deformity, within the meaning of SS 7

of Laws of 1899, p. 275, nor did his ad-

vertisements profess to cure or treat disease or Injury by any drug or appliance,

within the meaning of SS 8 of the law, so

as to subject him to the penalty of prac-

telling thereunder without a license. People v. Smith, 208 Ill. 31, 69 N. E. 810,4 Cur. Law. -- MEDICINE AND SURGERY SS 1.

fees may be required.\[38\] Statutory provisions fixing standards of proficiency of applicants for certificates, which do not discriminate between different schools of medicine, are valid.\[39\] Constructions of various regulatory acts are given in the note.\[40\]

\_Prosecutions for violations of regulatory acts.\[41\]--\_The offense of practicing without a certificate is of a continuing nature, and a conviction for a particular act of practice bars prosecutions for previous acts.\[42\] Under an indictment for practicing medicine without a license, the crime is proven by proving special acts of practice of the defendant, and the state need not elect a particular act on which to base the prosecution.\[43\] If a statute regulating the practice of medicine does not declare the acts which shall constitute "practicing medicine" or "publicly professing to do so," it is for the courts to say what facts or proof bring a particular case within the statute.\[44\] Under statutes which denounce the public profession of skill in the art of healing by persons who do not hold the required certificate, proof of actual treatment is not in all cases necessary.\[45\] Holdings on the sufficiency\[46\] and relevancy\[47\] of evidence and on the sufficiency of the indictment\[48\] are given in the notes.

"itinerant physelans," and requiring a cer- -- specialists held not to apply to a physician office or license, construed and upheld. -- who had his home and headquarters at a State v. Edmunds \[Iowa\] 101 N. W. 431. -- clerks at three other towns which he visit- 431. The annual license fee of $250, Im- -- posed on itinerant physicians by $2581, Is not unreasonable. Id. The title of the act, -- 41. See 2 Curr. L. 888, n. 76. -- on the practice of medicine." is broad enough to include the license provision. Id. -- to be read at the time of declaration that it is to be paid to the state -- the statement of the law to register and treasurer for the use of the state sufficiently states its object and purpose, within Const. -- art. 7, $ 7. Id. -- 30. Section 2576 of the Iowa Code, prescribing examinations, is valid. Under this section magnetic healers who do not use medicines are not required to show proficiency in material media and therapeutics. -- State v. Heath \[Iowa\] 101 N. W. 429. Act -- 43. Where a -- magnetic/ healer was accused of practicing without a certificate, un- -- to practice medicine, a diploma from a college requiring the same standard of -- discases, the question of his guilt should nation of American Medical Colleges for that year, does not require that college to have -- evidence of actual treatment of any patient in the county. State v. Heath \[Iowa\] 101 N. W. 429. -- 44. Evidence Insufficient to prove defendant a traveling specialist and not an ordinary practicing physician. Howe v. State -- 1Tex. Cr. Appl. 78 S. W. 1064. A prosecution for violating -- 29 Stat. At L. 198, c. 313. -- regulating the practice of medicine in the District of Columbia, is supported by evidence that defendant he himself out as an expert in the treatment of alcoholism, maintained a sanitarium, and employed physicians who attended the patients under his direction. Springer v. District of Columbia, -- 23 App. D. C. 59. -- 47. Where defendant was charged with following the occupation of traveling specialist in 1903 without having paid the required license tax, the record of the commissioners' court showing the levy of such tax for 1902 was Inadmissible. Howe v. State -- 1Tex. Cr. Appl. 78 S. W. 1064. An advertising circular of a sanitarium for the treatment of alcoholism, referring to the

## 3 Regulation of the keeping and sale of drugs and medicines

Statutes must be fully complied with \[60\]

## 4 3 Recovery of compensation

\[61\] There can be no recovery for professional services by one who has not complied with statutory requirements \[62\]. Qualification of the physician under the statute will be presumed and the burden is upon him who denies license to practice \[63\]. In order to recover back money paid for treatment by one alleged to have been practicing in violation of law, the person treated must prove that he was induced to employ such person by the false representation that he was a practicing physician \[54\]. Evidence points are given in the note \[55\].

## 5 4 Malpractice

\[56\] _Degree of care required_

The implied contract of a physician or surgeon is not to cure, but to treat the case with that degree of diligence and skill ordinarily used by the average physician in good standing, having regard to the state of the medical profession at the time \[57\]. Whether proper skill and care were used in the treatment of a particular case is to be determined by the testimony of medical experts \[58\], and by reference to the doctrines of the particular school of practice to which the defendant belongs \[59\]. Failure to effect a cure is not necessarily evidence of negligence \[60\]. Failure to use reasonable care or skill in ascertaining the real cause of a patient's suffering, or the real nature of an injury, renders a physician liable \[61\]. Frequency or infrequency of visits is not alone conclusive on the question of negligence \[62\]. Custom or practice in the locality in the treatment of similar cases is the test \[63\]. A physician whose employment has terminated is under no further obligation to the patient \[64\].

manager as an "M. D.," and the fact that he registered at a hotel as a "doctor," while \[56\]. While \[56\], the amount claimed not conclusive, are evidence on the issue whether he held himself out as a practitioner. Springer v. District of Columbia, \[56\]. The same period is irrelevant. Kwiecinski v. Newman's Estate \[36\] 100 N. W. 391. Code, $ 2581, prohibiting itinerant physicians from practicing without a license, held not duplications, and to state an offense under the statute. State v. Edmunds \[56\] 101 N. W. 431. 40. See 2 Curr. L, 888. 50. Under Laws 1900, p. 1479, c. 687, $ 196, requiring drugsists, among other things, to make statements to the State Board of Pharmacy showing their employes' registration and qualifications, and to pay a fee for a certificate, payment of the fee without filling the required statement is no defense to an action for the statutory penalty, Bigelow v. Drummond, 90 N. Y. B, 913. 51. See 2 Curr. L, 888. 52. Physician who has failed to register according to Pol. Code 1895, $ 1479, 148 cannot recover. Murray V. Williams (G=4) 48 S. E. 686. 53. Allegation, in action to recover for services, that plaintiff was a "regular, practicing physician," held sufficient without alleging compliance with statutory provisions. Cather v. Damerell \[56\] 99 N. W. 54. Gather v. Lindsey \[Tex. Civ. App.\] 83 S. W. 225. 55. Evidence insufficient to warrant verdict for plaintiff in action to recover for services rendered as physician. Abrahams v. Koch, $8 N. Y. S, 148. Evidence in action against county for medical services held to 4 Cur. Law. MEDICINE AND SURGERY SS 5.

\_Malpractice by nonmedical treatment.\_Any person who holds himself out as a healer of disease and accepts employment as such is held to the duty of reasonable skill in the exercise of his vocation.\[65\] Thus one holding himself out as a magnetic healer is liable for damages resulting from a want of ordinary care or skill in treating a patient,\[66\] and in such case plaintiff need not prove that the method of treatment used was not proper or usual in magnetic healing.\[67\] An ordinary physician who does not claim or pretend to know anything of the practice of magnetic healing is competent to testify as to whether the treatment given by a magnetic healer was proper in any case.\[68\] But it is held that the standard of care to be applied to a Christian science healer is the care, skill and knowledge of the ordinary Christian scientist, not that of the ordinary physician.\[69\] There can be no recovery for injuries resulting from treatment by Christian science methods, on the ground that such treatment is contrary to public policy, if it appears that the giving of such treatment was not illegal, and that plaintiff voluntarily and intelligently consented to the use of such methods.\[70\]

A few holdings as to pleading,\[71\] evidence,\[72\] damages,\[73\] and questions of law and fact\[74\] peculiarly applicable to actions for malpractice, are given in the notes. See appropriate title for full treatment.

SS 5. _Negligent homicide by physician.\[75\]_--Negligence resulting in the death of the patient may render the practitioner criminally liable.\[76\]

**65**, **66**, **67**, **68**. Longan v. Weitmer, 180 * dentist which charges negligence in (1) removing two teeth unnecessarily, (2) allowing portions to remain in gum, and (5) pure from Christian science methods in treating in defective and improperly fitted bridgeswork, and alleges that these acts caused abscess on the gum and necrosis of the jawbone, states but one cause of action and the various acts are properly set could be successfully maintained only on allegation and proof of a false representation made with a fraudulent intent. Id.

**Note:** In Spead v. Tomlinson, supra, the court seems to extend to Christian scientists the rule that, in cases involving the liability of medical practitioners, where there are distinct and differing schools of practice, treatment given by a physician in a given case is to be tested by the general doctrines of his school, and not by those of other schools. See Patten v. Wiggins, 51 Me. 54, 81 Am. Dec. 593; Carpenter v. Blake, 60 Barb. 488, 513, 514.

In Longan v. Weitmer, supra, the court apparently refuses to extend this rule to magnetic healers, and holds that an ordinary physician may testify whether the treatment by a magnetic healer was proper in any case. A general rule of negligence is applied and it is said that if defendants "undertook to cure plaintiff of her maldies, and by negligent and unskillful treatment * * she sustained the injuries used for, she was entitled to recover just as she would be entitled to recover damages for the negligent or unskillful performance of any other kind of contract."

70. Spead v. Tomlinson \[N. H.\] 59 A. 376.

01. A petition alleging that defendant "Is a physician and surgeon engaged in the practice of medicine and surgery * * and has been so engaged for several years last past" is sufficient without alleging that he was a physician at the time he treated the platinum. Bower v. Self, 88 Kan, 825, 75 P. 1021. A complaint in an action against
    MERGENTILE AGENCIES.${}^{ ext{ ext{ extregistered}}}$

MERGER IN Judgment; MERGE OF Contracts; MERGE OF ESTATES, see latest topical index.

MIILITY AND NAVAL LAW.78

$\\lx@sectionsign$ 1. Military and Naval Organization, Maintenance and Kalistment (640).

A. Regular Army and Navy (640). Pay

A. Regular Army and Navy (640). Computa- and Subsistence (640). Computa- tion for Quarters (642). Sen Rations (643). Expenses and Mileage (644). Requirement (644).

$\\lx@sectionsign$ 1. Military and Naval Organization, Maintenance and Enlistment. A. Regular army and Navy (640). Computa- tion for Quarters (642). Sen Rations (643). Expenses and Mileage (643). Requirement (644).

$\\lx@sectionsign$ 1. Military and Naval Organization, Maintenance and Enlistment. A. Regular army and Navy (640). Computa- tion for Quarters (643). Expenses and Mileage (644). Requirement (644).

$\\lx@sectionsign$ 1. Military and Naval Organization, Maintenance and Enlistment. A. Regular army and Navy (640). Computa- tion for Quarters (640). Computa- tion for Quarters (642).

$\\lx@sectionsign$ 4. Civil Status, Rights and Labilities of the Military and Navy (640).

$\\lx@sectionsign$ 5. Martial Law (640).

$\\lx@sectionsign$ 6. Soliders' Homes, and Indigent Soliders (649).

$\\lx@sectionsign$ 1. Military and Naval Organization, maintenance and enlistment. A. Regular army and Navy.${}^{ ext{ extregistered}}$ Enlistment.${}^{ ext{ extregistered}}$--A minor cannot lawfully be enlisted in any branch of the military or naval service without the consent of his parents,${}^{ ext{ extregistered}}$ and one who has so enlisted by misrepresenting his age will be discharged by writ of habcas corpus at their suit.${}^{ ext{ extregistered}}$

\_Pay and subsistence.${}^{ ext{ extregistered}}$--The act of March 3, 1899, provides that naval officers shall receive the same rate of pay as army officers of corresponding rank,${}^{ ext{ extregistered}}$ but this does not operate to reduce the pay which, but for its passage, would have been received by any such officer at the time of its passage or thereafter.${}^{ ext{ extregistered}}$ The latter provision applies only to officers in the navy at the time of its passage,${}^{ ext{ extregistered}}$

given; for full treatment, see Homelde, $\\lx@sectionsign$ 1. Current. L. 1643, $\\lx@sectionsign$ 2.

## 11 MILITARY AND NAVAL LAW--Cont'd

and was intended to preserve intact the right of such officers to navy pay where it is more than army pay.\[87\]

Arnuy officers serving in the insular possessions of the United States and in Alaska, or serving beyond the limits of the United States, are entitled to ten per cent increased pay, over and above the rates of pay proper as fixed by law in times of peace,\[88\] and naval officers detailed for shore duty beyond seas are entitled to the same pay as army officers of equal rank detailed for duty in similar places.\[89\] Naval officers discharging their ordinary sea duties in such places are not, however, entitled to the increase.\[90\] Beyond the seas means beyond the continental limits of the United States.\[91\] Officers appointed to the navy from civil life are entitled to be credited with five years' constructive service on the date of their appointment for the purpose of determining their pay.\[92\]

Naval officers on shore duty receive fifteen per cent less pay than when on sea duty.\[93\] No service is to be regarded as sea service unless performed at sea under the orders of a department, and in vessels employed by authority of law.\[94\] Such vessels are only those owned or chartered by the government, or otherwise engaged in the service of the United States.\[95\] Whether an officer is on sea or shore duty must be determined by the order of assignment by the navy department in so far as it does not change the character of the service as defined by statute.\[96\] Hence an officer is not entitled to sea pay while occupied in traveling on duty partly on land and partly on a merchant vessel, for the purpose of reporting to the navy department, nor while traveling to join the ship to which he has been assigned for duty.\[97\] Where the duty partakes of sea service and shore

87. Colhoun's Case, 38 Ct, Cl, 198. Hence a naval officer in service when the act was beyond seas within the meaning of the act passed is entitled to navy pay when on leave if it exceeds army pay. Commander entitled to pay under Rev. St. 1556. Act of 1859 and amendment did not affect right under this section. Id. An assistant surgeon in the temporary service of the navy when the act was passed and who is there.

After given a permanent commission is not entitled to the benefits of the act. Apollution, 25 S. Ct. Cl, 123, 38 Ct. Cl, 124, 385, 386. Permanent commission under Act June 7, 1900 (31 Stat. L. 697). Taylor's St. 1901, p. 1079. United States v. Thomas. Case, 38 Ct. Cl, 123, 385, 386. Cl, 123, 386. Cl, 124, 387. Cl, 125.

S8. Act May 26, 1900, 31 Stat. L. 211, 385. Cl, 126, 388. Cl, 127, 388 Ct. Cl, 128, 388. Cl, 129, 388 Ct. Cl, 121, 388. Cl, 1203, 383. Cl, 121, 388. Cl, 122, 388 Ct. Cl, 123, 388 Ct. Cl, 124, 388. Cl, 125.

For the purposes of the navy version of the navy duty, the facts of each particular case must be considered, and if from the whole case there is a preponderance in favor of either service, it must constitute the basis for fixing the rate of pay.\[98\] An officer temporarily absent from a ship in commission, to which he is attached, is entitled to sea pay.\[99\]

The classification of mounted and unmounted pay was intended in a general way to mark a distinction between the pay of cavalry and infantry officers.\[1\] Mounted pay is not an allowance, but pay proper, and the officer to whom it is assigned receives it whether he is actually mounted or not.\[2\] A naval officer is not entitled to it, though an army officer of corresponding rank would he.\[3\]

In time of war every army officer serving with troops operating against an enemy who exercises, under assignment in orders issued by competent authority, a command above that pertaining to his grade, is entitled to receive the pay and allowances of the grade appropriate to the command exercised.\[4\] The statute applies only to cases where such an order is necessary to impose the burden of the higher command upon the officer,\[5\] and not to those where the command temporarily devolves upon an officer without an order of assignment.\[6\]

By the Act of April 26, 1898, the pay proper of enlisted men is increased twenty per cent in time of war.\[7\]

By Act May 26, 1899, officers and enlisted men in the army who served during the war with Spain and were honorably discharged without furlough, are given extra pay at the rate of two months to those who served beyond the limits of the United States, and one month to those who did not.\[8\] The extra pay given to volunteers on muster out extends only to those who actually sever their connection with the military service, and not to one discharged for the purpose of enabling him to accept an appointment in the regular army.\[9\]

\_Commutation for quarters.--\_At all places where there are not public quarters, commutation therefor may be allowed.\[10\] Commutation for quarters is a form of reimbursement, and not a part of an officer's compensation.\[11\] Hence where he occupies government quarters, no commutation can be allowed him, even though they were not regularly assigned to him,\[12\] or the number of rooms assigned is less than the number to which he is entitled under the regulations.\[18\]

\_Sea stations.--\_Naval officers are not entitled to an allowance for sea rations.\[14\]

To fix liability upon the government for additional pay to officers appointed to staff duty under the Act of April 22, 1898, the president must appoint them, or assign them thereto in his discretion.\[15\] The secretary of war may act for him as his constitutional organ in making such assignments, but cannot delegate such authority to a subordinate.\[16\]

An act appropriating money for payment of arrears of pay of volunteers in the Civil War that may be certified to be due by the accounting officers of the treasury is a promise to pay such claims, and removes the bar of the statute of limitations.\[17\] The court of claims has jurisdiction to adjust such claims by judicial investigation.\[18\]

An act referring a claim of a naval officer for pay during the period of his dismissal to the court of claims, and waiving the statute of limitations, leaves the cause of action precisely as it would have been had suit been brought within six years after the cause of action accrued.\[19\]

_Expenses and mileage.\[20\]_--\_By the Act of March 3, 1899, army and naval officers traveling under orders are entitled to mileage at the rate of seven cents a mile, to be computed over the shortest usually traveled routes,\[21\] except that they are only entitled to their actual expenses when traveling to and from our island possessions in the Atlantic and Pacific oceans.\[22\] From our island possessions to the United States means to the officer's destination.\[23\] By the Act of March 3, 1901, only actual expenses are allowed for travel outside the limits of the United States in North America.\[24\]

12. Not allowed where occupies room in marine barcracks as guest, with understanding that he will vacate when required. O'Deil's Case, 38 Ct. Cl. 194.

01. Twin's Case, 38 Ct. Cl. 87.

01. Allowance provided for by U. S. Rev. St. 1878, 1885 (U. S. Comp. St. 1901, pp. 1083, 1085), implied repeatedly by wavy personnel act of March 3, 1899 (30 Stat. at L. 1007, c. 418, 8 13; U. S. Comp. St. 1901, p. 1072), providing that naval officers shall receive same pay and allowances, except for-age, as received by army officers of corresponding rank. Gibson v. U. S., 194 U. S. 182, 48 Law. Ed. 926; Lowe v. U. S., 194 U. S. 193, 48 Law. Ed. 931, affg. 38 Ct. Cl. 170. Provision in last act and in act June 7, 1900 (31 Stat. at L. 684, 697), that it shall not operate to reduce pay, do not extend to allowances. Thomas' Case, 38 Ct. Cl. 113, 719, rvd. 25 S. Ct. 102, on other grounds; Id., 38 Ct. Cl. 70; Richardson's Case, 38 Ct. Cl. 182; Taylor's Case, 38 Ct. Cl. 155; Ryan's Case, 38 Ct. Cl. 143.

01. 30 Stat. at L. p. 362, 8 10. Truit's Case, 38 Ct. Cl. 398.

01. Officer appointed to staff duty as adjustment general under order issued "by command" of the major-general of the army, but "by direction of the secretary of war," not assigned by president, and not entitled to staff rank and"pay of major, though order recites it was made under the provisions of the statute. Truit's Case, 38 Ct. Cl. 398.

01. Act June 11, 1896 (30 Stat. L. 448).

Sowle's Case, 38 Ct. Cl. 525.

18. Sowle's Case, 38 Ct. Cl. 525.

01. Bishop's Case, 38 Ct. Cl. 473. The fact that the act refers to claimant as a lieutenant-commander is not an admission that he was such officer in law or in fact during the period of his dismissal. Merely descriptive of the service claimed to have been rendered. Id.

01. See 2 Curr. L. 891, n. 9, 10.

01. 30 Stat. at L. 1068. Made applicable to naval officers by 30 Stat. at L. 1007.

Thomas's Case. 38 Ct. Cl. 70; Id., 38 Ct. Cl. 131, 719, rvd. 25 S. Ct. 102, on other grounds.

22. 30 Stat. at L. 1068. Thomas's Case, 38 Ct. Cl. 70. Proviso became effective immediately on its approval, though contained in appropriation act. Chance's Case, 38 Ct. Cl. 75. An officer ordered from Manila to Shanghai for duty there, and when such duty is performed to proceed to San Francisco, is not traveling from our island possessions, and is entitled to mileage. Thom-as's Case. 38 Ct. Cl. 70.

01. Officer travelling from Manila to his home in Illinois for discharge not entitled to mileage for land journey after reaching United States. Chance's Case, 38 Ct. Cl.

An officer otherwise entitled thereto is not deprived of his right to mileage because he is ordered to proceed on transportation to be furnished him,\[25\] nor because he accepts such transportation and his expenses.\[26\] The secretary of the navy may direct that actual and necessary expenses only be allowed in cases where orders are given for travel to be performed repeatedly between places in the same vicinity.\[27\] It is within his discretion to determine what places are in the same vicinity, and his decision cannot be reviewed by the court.\[28\]

An officer honorably discharged from the service is entitled to transportation and subsistence from the place of his discharge to the place of his residence,\[29\] but this does not apply to one who immediately re-enters the service under a new appointment.\[30\]

It is the duty of the commanding officer of a fleet, squadron or vessel to send enlisted men to an Atlantic or Pacific port of the United States as their terms of enlistment expire, unless their detention for a longer period is, in his opinion, essential to the public interest.\[31\] This is not equivalent to a statutory salary and may be voluntarily waived by the enlisted man.\[32\]

\_Retirement. Officers.--\_Naval officers who served during the Civil War are entitled, on retirement, to the rank and three-fourths of the sea pay of the next higher grade.\[33\] The act applies only to actual officers who actually served during the war, or who at least voluntarily offered and obligated themselves to encounter its hardships and dangers.\[34\] The decision of a naval retiring board that claimant is not entitled to the benefits of the act on an agreed state of facts is subject to review by the courts.\[35\]

An officer on the retired list owes no duty to the government and his pay is not compensation for discharging the duties of that office, but is in the nature of an honorary pension.\[36\] Hence he may hold the office of chief clerk of the Department of Agriculture and draw the salaries of both offices.\[37\]

_Enlisted men_ are entitled to be retired after thirty years of service with the rank which they then hold, and to receive three-quarters of the pay and allowances of such rank.\[38\] After retirement they are not a part of the army,\[30\] and are the sea pay of rear-admirals of the nine lower numbers of that grade, and not of the pay of those of the higher numbers. Rear-admirals of nine lower numbers entitled to same pay as brigadier-general in army I30 pested. the officer is entitled to mileage. Id. 29, Rev. St. '$ 1289. Hull's Case, 38 Ct. Cl. 407. Volunteer officer discharged for purpose of, and who does, accept commission under Act March 2, 1899 (30 Stat. at L. p. 980, $ 4), not entitled to commutation for constructive travel.

not entitled to the additional pay for length of service,\[40\] nor to the increase given enlisted men in time of war.\[41\]

. (SS 1) \_B. Militia.\[42\]--\_In Kentucky the militia can be ordered into active service only by the governor in the exercise of his discretion.\[43\] His determination in this regard is conclusive and the necessity for such action cannot be inquired into.\[44\] When they have been so called out they are in active service and entitled to pay, and also to subsistence,\[45\] which must come out of the general fund in the state treasury.\[46\] Expenses are properly paid on warrant of the auditor of public accounts, on vouchers signed by the adjutant general and the governor.\[47\] The auditor is not liable on his official bond for payments made on vouchers signed by persons purporting to be the governor and adjustment general, though they were wrongfully so acting, if the amount paid was in fact a just claim against the state.\[48\] Such expenses incurred while the militia remains in active service, and until regularly discharged from duty by order of their superior officer, are valid and just claims against the state.\[49\]

The soldiers must receive orders from their superiors.\[50\] They cannot be required to leave their posts, and take the risk of becoming deserters, until orders are issued to them through the regular channels of which they may take notice and properly obey.\[41\] In cases of doubt they are justified in remaining on duty.\[52\]

SS 2. \_Regulations and discipline; promotion and discharge.\[53\]--\_Subject to the constitution and the laws of congress, the president may establish such rules and regulations for the government of the army as he may deem essential to the maintenance of efficiency, discipline and honor.\[54\] The power to establish such rules necessarily implies a power to modify or repeal them.\[55\] A modification is effected and shown by the promulgation of a new or different rule or regulation upon the same subject.\[56\] The secretary of war is the regular constitutional organ of the president for the administration of the army,\[57\] and rules and orders publically promulgated through him must be received as the acts of the executive, and as such be binding upon all within the sphere of his legal and constitutional authority.\[58\] He need not state that they emanate from the president, since he will be presumed to be acting with his approach and under his direction.\[59\] Such regulations cannot be questioned because they may be thought unwise or mistaken.\[40\] A footnote to a rule or regulation is not less authoritative than the principal text, where the language and character of the two point to $\\mathsf{a.a\\cdot single}$ authorship and an intention to that effect.\[61\]

The mere designation of lineal or relative rank in the official army register does not fix and determine an officer's rank in the army and his right to promotion.\[62\] Hence an officer who does not claim to be entitled to any higher rank for the present cannot be held to have been deprived 'of any legal or vested right because he is deprived of a lineal or relative rank or position in such register that might be of benefit to him in a future claim to promotion.\[63\]

The president may summarily dismiss a cadet at West Point without a previous trial and conviction by court martial.\[64\]

\_Desertion.--\_One deserting from the army in time of peace and not in the face of the enemy cannot be tried or punished therefor after the expiration of two years from the time when the offense was committed.\[65\] One deserting in time of war deserts in the face of the enemy, even though not in the immediate prescnce of the opposing force.\[60\]

cerned, both orders will be deemed to speak by same authority and to be of equal dig-

St. 1901, p. 9683). In re Cadwallwaller, 127

In re Brodie (C. C. A.) 128 F. 665.

F. 881; Ex parte Townsend, 138 F. 74.

The courts cannot substitute their own dis-

solider deserting after the signing of the

ertoon and judgment for that of the

executive department in matters properly

Spain but before the signing of the treaty

floted to it. United States v. Root, 22 App. D. C. 419. Thus they will not interfere by

actually existed. Id. But see Ex parte

mandamus to control and reverse the

ction of the president and war department

NOTE. Habes corpus--\_Jurisdiction of

in their work of reorganizing the army under the army reorganization act. In the

er was arrested more than two years after

absence of a plain and unnistakable

departure from its provisions. Though there

A statue prescribed that there should be

may be some question as to construction

adopted by them, yet court will not reverse

their action as against construction adopt-

ed by secretary of war, and by which rights

of others may be affected. Duties discretionary \[31 Stat. at L. 748, c. 192; U. S. Comp. St. 1901, p. 748\]. Id.

G1. Footnote in court-martial manual

1895, requiring court to order imprisonment in such place as reviewing authority

may direct. In re Brodie \[C. C. A.) 128 F.

65. United States v. Root, 22 App. D. C. 419.

01. Petition for mandamus in which it

was claimed that, by violation of army re-

organization act, relative rank of petition-

er had been reduced, denied because acts

were discretionary and petitioner had been

deprived of no vested legal right. United

States v. Root, 22 App. D. C. 419. Such

right is of a prospective nature only. Id.

64. Hartigan v. U. S., 25 S. Ct. 204, affg.

38 Ct. Cl. 346. Cadets are not army officers

within the meaning of a statute prohibiting dismissals in time of peace except after

trial and conviction by court-martial. U. S. Rev. St. 5 1229 U. S. Comp. St. 1901, p. 868). Word "officer" means commissioned

officer \[Rev. St. 5 1342, art. 99 (U. S. Comp. St. 1901, p. 944)\]. Id.

65. Limitatian does not begin to run un-

till expiration of term of enlistment and time during which he was absent from

United States after desertion is to be de-

ducted \[26 Stat. at L. 54, c. 78 (U. S. Comp. St. 1901, p. 968)\]. In re Cadwallwaller, 127

F. 881; Ex parte Townsend, 138 F. 74.

66. In re Cadwallader, 127 F. 881. A

color deserting after the signing of the

protocol between the United States and

Spain but before the signing of the treaty

faded to it. United States v. Root, 22 App. D. C. 419. Thus they will not interfere by

actually existed. Id. But see Ex parte

Townsend, 133 F. 74.

NOTE. Habes corpus--\_Jurisdiction of

conts over deserter from army: A desert-

er was arrested more than two years after

the expiration of the term of his enlistment.

A statue prescribed that there should be

no punishment after two years. Held, al-

adopted by them, yet court will not reverse

though the statute of limitations would

ed by a good defense before the court-

card by secretary of war, and by which rights

of others may be affected. Duties discretionary \[31 Stat. at L. 748, c. 192; U. S. Comp. St. 1901, p. 748\]. Id.

61. Footnote in court-martial

## 3. Military and naval law $ 3.

The law governing courts-martial is found in the statutory enactments of congress, particularly in the articles of war, in regulations prescribed by executive authority, and in military usage and procedure.\* Where charges have been issued and a court-martial having jurisdiction has been ordered, and the person charged has been held to answer, the jurisdiction attaching in favor of the court-martial will exclude that of a civil tribunal in which proceedings for a writ of habeas corpus may afterwards be commenced.\[69\] Where the petition for a writ of habeas corpus for the discharge of a minor, enlisting without his parent's consent, has been served, the court is not deprived of jurisdiction by his subsequent arrest by the military authorities on the charge of fraudulent enlistment.\[70\]

One becoming part of the naval service thereby subjects himself to the lawfully constituted courts-martial of such service, and clothes them with jurisdiction over his person and conduct.\[71\] A deserter who has never been discharged from the service is subject to the jurisdiction of a military tribunal,\[72\] and the civil court will not interfere before such tribunal has acted upon and decided the case.\[73\] The rule is not changed by the fact that the deserter pleads the statute of limitations.\[74\]

The supreme court of the District of Columbia has no jurisdiction in a habeas corpus proceeding to inquire into the grounds of the detention of a person unlawfully restrained of his liberty by officers of the navy or army outside of such district merely because the respective heads of the navy and war departments may be found and personally served with process therein.\[75\]

Statutory regulations governing the proceedings of courts-martial must be complied with.\[76\] In the navy a man may be arrested and confined for a period not exceeding ten days without an assigned reason being given.\[77\] A longer confinement can be imposed only by sentence of a court-martial, unless further confinement is necessary in the case of a prisoner to be tried by court-martial.\[78\] The accused is entitled to be furnished with a true copy of the charges, with specifications, at the time of his arrest, and no other charges than those so furnished can be urged against him at the trial.\[79\] When the commander of a 70. Ex parte Houghton, 129 F. 239,

out be controlled or revised by the civil 71. Bishop's Case, 38 Ct. Cl. 473.

65, 15 Law. Ed. 278; Ex parte Mason, 105 U. S. 696, 26 Law. Ed. 1213; Wales v. Whitney, 114 U. S. 564, 29 Law. Ed. 277. When the court-martial has no jurisdiction, its sentence is absolutely void, and the civil courts may by a writ of habeas corpus the navy are not the agents of the secretary of the navy, but both he and they are sentence. Ex parte Mason, supra. But that writ cannot be made to perform the functions of a writ of error. To warrant the discharge of the prisoner the sentence must not only be erroneous but absolutely void, Barrett v. Crane, 16 Vt. 246; Ex parte Reed, 100 U. S. 13. 26 Law. Ed. 538; Wales v. Whitney, 114 U. S. 564, 29 Law. Ed. 277. It would seem, therefore, that the court properly refused to interfere, for the petitioner, not having been discharged from the army, was still subject to the military jurisdiction.\[4\] Columbia L. R. 601.

67. See 2 Curr. L, 892.

01. In re Brodie \[C. C. A.1 128 F. 665.

01. Ex parte Houghton, 129 F. 239. The civil tribunal must wait until the court-martial has concluded its proceedings and until the sentence imposed by It has been worked out. Id.

01. Ex parte Houghton, 129 F. 239.

01. Bishop's Case, 38 Ct. Cl. 473.

72, 73, 74. In re Cadwallader, 127 F. 881.

75. Enlisted man in marine corps alleged to be unlawfully imprisoned by naval off-cer acting as governor of Guam. McGowan v. Moody, 22 App. D. C. 148. The officers of the navy are not the agents of the secretary of the navy, but both he and they are the agents and representatives of the president. Any authority exercised by secretary is solely as his representative. Allegation that prisoner is detained by his agents and in his control, though in' custody of person unknown, who exercises his authority under secretary's orders is conclusion of law. Id. The court will take judicial notice of the powers and duties of the secretary of the navy under the constitution and laws. Id.

01. Smith's Case, 38 Ct. Cl. 257.

01. Rev. St. p. 281, art. 24. Smith's Case, 38 Ct. Cl. 257.

01. Smith's Case, 38 Ct. Cl. 257.

01. Rev. St. p. 283, art. 43. Statute is mandatory, and unless furnished at time of arrest, sentence forfeiting prisoner's pay is void \[Rev. St. p. 283, art. 43\]. Smith's Case, 38 Ct. Cl. 257.

squadron on a foreign station convenes a court to try an officer, it will be presumed on collateral attack, and nothing to the contrary appearing on the face of the order, that he properly exercised his discretion and that such trial could not be avoided without inconvenience to the service.80

One convicted by a court-martial cannot be confined in a penitentiary unless he could be so confined if convicted in a civil court for the same offense.81 When the sentence prescribes 'imprisonment, the court is required to state whether the prisoner is to be confined in a penitentiary or at a post,82 except that, where it is impossible to determine which form of imprisonment should be imposed under the articles of war, because of the absence of the statutes of the state or territory where the court is sitting, the court may, in case of doubt, order that the imprisonment be in such place as the reviewing authority may direct.83 Whether the local law is impossible of ascertainment is a matter for the court itself to decide in each instance,84 and its determination in this particular is conclusive and not open to collateral attack.85

The trial and acquittal of a soldier by the civil authorities on a charge of murder for killing a fellow soldier is no bar to his subsequent arrest and trial by court-martial for conduct to the prejudice of good order and military discipline, though based on the same act.86 The suspension of an officer for a few hours and his restoration to duty does not relieve him from arrest and conviction for the same offense at a subsequent period.87

A court-martial has jurisdiction of the case of a provost-marshal charged with embezzling money received from drafted men to be turned over to their substitutes, though he had no express authority to receive it and assumed to act in his individual capacity in that regard.88 Such courts also have jurisdiction to sentence a prisoner to imprisonment for a term extending beyond the period of his enlistment.89

Courts-martial are lawful tribunals with power to finally determine any case over which they have jurisdiction.80 They act only in response to the call of a superior authority, and their judgments are inoperative until approved by it.91 When so approved they are not open to review by civil tribunals, except for the purpose of ascertaining whether the military court had jurisdiction of the person and subject-matter,92 or whether it has exceeded its powers in the sentence pro nounced." Neither are they open to collateral attack, where the court has cogninance of the charges and jurisdiction of the person of the accused.${}^{94}$

The judicial power of the president in passing on the sentence of a court-martial cannot be delegated, but he may avail himself of the services of a subordinate officer to aid him in the consideration of the proceedings and sentence.${}^{95}$ His personal knowledge of the facts disclosed by the record will be presumed from his approval.${}^{90}$ The officer convening the court-martial need not approve or disapprove the sentence, where the action of the president is required by law.${}^{97}$

SS 4. _Civil status_, \_rights and liabilities of the military and nary.${}^{98}$--Civil courts of a state have, in time of peace, general jurisdiction over persons in the military service of the United States who are accused of a capital crime or of any offense against the person of a citizen committed within such state.${}^{99}$ On a habens corpus hearing a Federal court will not, on conflicting evidence, determine the guilt or innocence of the accused.${}^{100}$

One enlisting in the navy does not thereby lose his actual or legal residence.${}^{101}$

SS 5. _Martial law.${}^{102}$_

SS 6. _Soldiers' homes, and indigent soldiers.${}^{103}$_

Millitia; Mills and Dams, see latest topical index.

**MINES AND MINERALS.**

SS 1. General Comment Law Principles (650). A. Public Ownership (650). C. Relocation (655). B. Private Ownership: Right of Free-hold Tenants of Less than Fee (650). $ 2. Acquisition of Mining Rights in Public Lands (650). A. What Lands May be Located (650). B. Who May Locate (651). B. Mailing Location; Forfeiture. Loss or Abandonment (653). C. Relocation (655). D. Proceedings to Obtain Patent; Adverse Claims (655). Suits to Determine Adverse Claims (656). $ 4. Ownership or Estate Obtained by Claim, Location and Patent; Apex Rightw (657). Joint Tenants (658). Extralateral Rights (659). Boundary Lines and Monuments (661). Duty to Protect Owner of Surface (662). $ 5. Right to Mine on Private Land Throva Open to Public (662).

93. Ex parte Townsend, 133 F. 74; Bish-op's Case, 38 Ct. Cl. 473. 94. In re Brodie \[C. C. A.\] 128 F. 665, Not for alleged errors and irregularities in its proceedings. Colman's Case, 38 Ct. Cl. 316. Judgment as to whether statute of limitations applies. Ex parte Townsend, 133 F. 74. 95. Bishop's Case, 38 Ct. Cl. 473. 96. Where he wrote on abstract of case "Approved," with his signature, and secretary of the navy notified officer that sentence had been approved by the president, his personal action will be inferred. Bishop's Case, 38 Ct. Cl. 473. 97. Under Act July 17, 1862 (12 Stat. at L. 605). Bishop's Case, 38 Ct. Cl. 473. 98. See 2 Curr. K. 892. 99. Rev. St. U. S. SS 1342, art. 59 (U. S. Comp. St. 1901, p. 955). United States v. Lewis, 129 F. 823. 100. United States v. Lewis, 129 F. 823. Soliders under indictment for murder In a state court for shooting a civilian, who had been stealing from a military post, will not be discharged where the evidence as to their guilty suit is conflicting. Id. A Federal court or judge has authority to Private Conveyances or Grants of $ 9. Public Mining Regulations (672). Mineral Habits in Lands (663). $ 10. Statutory Llens and Charges (672). $ 7. Leones (665). $ 11. Remedles and Procedure Peculiar to $ 8. Working Contracts (671). Drainage (672).

## 1. General common law principles. A. Public ownership.${}^{1}$

(SS 1) B. Private ownership; right of freehold tenants of less than fee.${}^{2}$--Petroleum and natural gas are minerals, and are a part of the realty so long as they remain in the ground.${}^{3}$ Hence they belong to the owner of the tract from which they are taken.${}^{4}$ But when they escape and go into other lands, or come under another's control, the title of the former owner is gone.${}^{5}$

Injuries to a coal mine caused by the issuance of an injunction restraining its working are injuries to the reality for which the equitable owner thereof may recover.${}^{6}$

Acquisition of mining rights in public lands. A. What lands may be located?${}^{7}$--A location under the Federal statutes can only be made upon unappropriated mineral lands${}^{8}$ belonging to the United States.${}^{9}$

Two loeations cannot legally occupy the same space at the same time.${}^{10}$ However regular in form a junior location may be, it is of no effect as against the rights conferred by a prior subsisting location,${}^{11}$ or against one who has previously otherwise acquired title to the land.${}^{12}$

Statutory license to locate mining claims thereon does not prevent the disposition or reservation of the public lands prior to the acquisition of vested rights.${}^{13}$

1, 2. See 2 Curr. L. 893. $ 3. Belong to the owner of the land so long as they are on it, or in it, or subject v. Baker, 132 F. $ 937. $ 137 F. $ 937. $ 138 F. $ 139.

4 Cur. Law. MINES AND MINERALS SS 3A.

All mineral land, whether known or unknown, was excluded from the grants to the Northern Pacific Railroad Company.\[14\] The statute provides for an examination and classification of the land as nonmineral before any patent therefor shall issue to the company.\[15\] The determination of the interior department as to the character of such land is conclusive, in the absence of fraud, imposition or mistake.\[16\]

(SS 2) \_B. Who may locate.\[17\]--Mining locations may only be made by citizens of the United States and those who have declared their intention to become such.\[18\] Locations made by aliens are not illegal or void, but are voidable only,\[19\] and the fact that the locator is an alien can be taken advantage of only by the government.\[20\] A subsequent declaration of intention by the locator, or one having an interest in the claim prior to the inception of any adverse rights, relates back to the date of the location or acquisition of the alien's interests therein, and validates the transaction.\[31\]

SS 3. \_Mode of locating and acquiring patent. A. Making and perfecting location.\[22\]--State legislatures may enact laws supplemental to the acts of congress relative to the location, possession and working of claims, and may prescribe requirements in addition to those fixed by such acts, so long as they are not inconsistent therewith,\[23\] and a substantial compliance with both the Federal and state statutes in regard to location and recording is necessary;\[24\] but a location fully complying with the Federal statute, and defective only because not complying with the state statutes, becomes a valid location upon repeal of the latter before the accrual of an adverse claim.\[23\]

When every act necessary to the completion of a location has been done before an adverse claim accrues, the order of their performance is immaterial.\[26\] The fact that many years have elapsed since the original location of a placer claim, without any patent having been issued therefor, does not affect its validity.\[27\]

14. Act July 2, 1864, c. 217 (13 Stat. at utes. Id. B. & C. Comp. Or. SS 3975-2977, L. 865). Traphaagen v. Kirk \[Mont.\] 77 P. prescribe manner of marking and recording claim and amount of development work, not in conflict with U. S. Rev. St. 8 2319, L. 8322, 3224 (Comp. St. 1901, pp. 1424, 1426).

01. Act Feb. 26, 1895, c. 136 (28 Stat. at utes. Id. B. & C. Comp. Or. SS 3975-3977, L. 863). Traphaagen v. Kirk \[Mont.\] 77 P. 8.

01. Traphaagen v. Kirk \[Mont.\] 77 P. 8.

01. See 2 Curr. L. 894.

01. U. S. Rev. St. 2319 (Comp. St. 1901, p. 1424). Shea v. Nilima \[C. C. A.\] 133 F. 209.

01. 20. Shea v. Nilima \[C. C. A.\] 133 F. 209.

01. Agreement by two aliens to locate claims in Alaska. One subsequently declar-ing his intention of becoming citizen may enforce contract and recover his interest in St. 1897, p. 214, c. 159, became valid on its claim located by other. Shea v. Nilima \[C. C. A.\] 138 T. 209.

01. See 2 Curr. L. 894.

01. Mont. Pol. Code, SS 3610 et seq. not in violation of U. S. Const. art. 4, SS 3, giving congress power to dispose of public lands. Mares v. Dillon \[Mont.\] 75 P. 963. Such regulations are not invalid on theory that they were enacted in the exercise of an unlawful delegation by congress of legislative power. Bute City Water Co. v. Baker, 26 S. Ct. 211, Requirement of the Montana Statute (Ann. Codes, SS 3612) that declaratory statement filed with clerk must contain the dimensions and location of the discovery shaft, and the location and description of each corner with the markings thereon. is not invalid as conflicting with Federal statute.\[27\]

01. Act July 2, 1864, c. 217 (13 Stat. at utes. Id. B. & C. Comp. Or. SS 3975-2977, L. 865). Traphaagen v. Kirk \[Mont.\] 77 P. prescribe manner of marking and recording claim and amount of development work, not in conflict with U. S. Rev. St. 8 2319, L. 8322, 3224 (Comp. St. 1901, pp. 1424, 1426). Wright v. Lyons \[Or.\] 77 P. 81.

01. Failure to comply with B. & C. Comp. Or. SS 3975-3977, relating to marking and recording notice of claim, and to development work held to render location invalid. Wright v. Lyons \[Or.\] 77 P. 81. Statutes are mandatory and must be strictly compiled with U. S. Rev. St. 8 2324, relating to marking boundaries. Worden v. Sidway \[Ark.\] 79 S. W. 777.

01. Location failing to comply with C.I. St. 1897, p. 214, c. 159, became valid on its The Federal statute authorizing the location and acquisition of mining claims on the public lands does not dispose of any estate in such lands, or create any burden thereon or right therein, until the actual inception and assertion of mining rights thereunder.\[28\]

\_Lode claims.\[29\]--In order to make a location, surface ground, including the vein or lode, must be appropriated,\[30\] and a vein or lode must be discovered within the limits of the claim.\[31\] A discovery means the finding of mineralized rock in place, as distinguished from float rock.\[32\] Whether or not it has been made is a question of fact.\[33\] Claims may not exceed fifteen hundred feet in length along the vein or lode, nor extend more than three hundred feet on each side of the middle of the vein at the surface. The end lines must be parallel.\[34\] The right of location in no respect depends upon the course of the vein beyond the limits of the claim.\[35\] The location must be distinctly marked on the ground so that its boundaries may be readily traced.\[26\] Any marking which will enable the boundaries to be so traced is sufficient.\[37\]

Statutes in some states require the filing of certificates of location,\[38\] or a copy of the notice of location.\[39\]

In some states amended location certificates may be filed within a specified time.\[40\] No amended certificate is necessary where the original notice is clear, definite and certain, and the boundaries of the claim so marked and monument that the same can readily be traced and determined.\[41\] In such case the original 4 Cur. Law. MINES AND MINERALS SS 3B. 653

notice may be filed within the prescribed time as the certificate of location.43 The filing of amended certificates in no way changes or enlarges a claimant's rights as against persons making locations after the filing of his first certificate.43

_Placer claims44_ are subject to entry under like circumstances and conditions as lode claims and upon similar proceedings.45 If on surveyed lands they should conform to the lines of such survey,46 if it is reasonably practicable to do so.47 Where the notice states that a legal subdivision has been located as a placer claim, it need not further state its boundaries.48 There is a conflict of authority as to the necessity of marking the boundaries of such claims located on surveyed lands.49

\_Oil land.50--\_Under the Federal statutes the location and sale of oil land is governed by the laws applicable to the location and sale of placer mining claims.51 Discovery need not precede or coexist with the posting of the notice and the marking of the claim,52 and a subsequent discovery perfects the title except in so far as the rights of others may have intervened.53

(SS 3) \_B. Maintaining location; forfeiture, loss or abandonment.54--\_Under the Federal statute an unpatented lode mining claim becomes liable to forfeiture and relocation on failure of the original locators to do the required assessment work in any one year, provided the latter have not resumed work upon the claim after failure and before such relocation.55 The work must be resumed in good faith and be prosecuted with reasonable diligence until the requirement for annual labor is satisfied.56

Assessment work may be done by one having a contract with the locator for

43. Not as against person locating prem-clusive right to prospect on certain quarter ises when they were open to location, \[500, without effort to mark location on Gwiney v. Brown \[Coi0.\] 77 P. 857. Defects ground, insufficient. Wordhen v. Sidway in the location certificates of defendants. \[Ark.\] 79 S. W. 777. $ 2321 does not dis-who relocated plaintiff's claim on the ground pense with requirements of $ 2324. Id. that he had forfeited his rights, cannot be \[500, Sec 25 Curr. K. 84, $ 2A.\] cured, as against plaintiff, by filing amended \[51\]. Act Feb. 11, 1897, c. 216 (29 Stat. at certificates after he has re-centered. Field v., Tanner \[Coi0.\] 75 P. 916. 44. 45. 2 Curr. L. 894, $ 3A. 45. U. S. Rev. St. $ 3239. 1 Kern Oil Co. v. Crawford, 143 Cal. 298, 76 P. 1111. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 39. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 48. 49. 42. 45. 47. 49. 43. 48. 49. 44. 46. 48. 49. 45. 47. 49. 48. 49. 49. 40. 41. 49. 41. 49. 42. 43. 44. 45. 46. 47. 48. 49. 48. 49. 49. 40. 41. 49. 42. 44. 47. 49. 41. 42. 44. 48. 49. 42. 45. 49. 43. 44. 46. 48. 49. 47. 48. 49. 49. 40. 41. 49. 42. 44. 49. 45. 49. 46. 47. 48. 49. 49. 48. 49. 49. 49. 40. 41. 49. 42. 44. 49. 43. 44. 45. 46. 47. 48. 49. 49. 41. 42. 44. 49. 45. 47. 49. 48. 49. 49. 49. 49. 40. 41. 49. 42. 44. 49. 43. 44. 46. 48. 49. 49. 41. 44. 49. 42. 44. 45. 46. 47. 48. 49. 49. 49. 41. 44. 49. 42. 44. 49. 45. 46. 47. 49. 48. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49 the purchase of the claim.\[57\] The burden of proving a forfeiture for failure to do such work is en the person alleging it,\[58\] and it must be established by clear and convincing evidence.\[59\] Evidence of the amount of money paid for work done, though not conclusive, is admissible.\[60\] Persons wrongfully holding possession of another's claim and preventing him from doing the required work thereon cannot set up his failure to support their title as against him.\[61\]

One tenant in common does not lose his interest in the claim by not contributing to the assessment work of his co-tenant.\[62\] Under the Federal statute where a co-owner fails or refuses to contribute his proportion of the cost of the required work after a personal notice or notice by publication to do so, his interest in the claim becomes the property of his co-owners who have made the required expenditures.\[63\] A notice addressed to a deceased co-owner by name, and "his heirs, administrators, and to all whom it may concern," is sufficient without specifically naming the heirs.\[64\] The fact that there is no administrator does not render the notice invalid where, under the local law, title vests in the heirs, and the administrator has only a lion for admini-trative purposes.\[65\] Claims for expenditures for several years may be grouped in the same notice.\[66\]

By Act July 2, 1898, volunteers in the army and navy during the war with Spain were relieved from the performance of assessment work on filing a notice of their enlistment, and their desire to hold the claim in the clerk's office where their location certificate was recorded, and their claims were not forfeitable for nonperformance of the required work until six months after they were mustered out of the service, or six months after their death in the service.\[67\] The filing of such notice by the owner of an unpatented claim which has been regularly located and recorded is equivalent in all respects to, and is attended with the same consequences that result. from, the actual performance of the work.\[68\] Thus, where no work has been done for the year prior to that for which the notice is filed, its filing operates as a resumption and full performance of the required work, and avoids a forfeiture.\[69\]

\_Abandonment.\[60\]--\_Abandonment is a matter of intention, and operates in-stanter.\[71\] It takes place when the locator gives up the claim and goes away from it, without any intention of repossessing it, and regardless of what may become

**57. Godrey v. Faust \[S. D.\] 101 N. W. \[718\] Work done by a company, the super-intendent of which has a contract with the locator of the claim for its purchase, inures to the benefit of the locator, though the superintendent is not shown to have assigned the contract to the company which furnished the money, sinced it will be considered as holding the contract in trust for it. Id. Sufficient competent evidence to support finding that annual representation work was done. Id.**

\*\*58. VWork required by U. S. Rev. St. 2324 (U. S. Comp. St. 1901, p. 1426). Whalen Consol. Copper Min. Co. v. Whalen, 127 F. 611; Willitt v. Baker, 133 F. 837.

**59. Willitt v. Baker. 133 F. 937; Field v. Tanner \[Colo.\] 75 P. 916.**

**60. Whalen Consol. Copper Min. Co. v. Whalen, 127 F. 611. Proof that receiver borrowed money to do assessment work, and reported that it had been done, and that report was approved by court, held sufficient to establish prima facte that work was performed. Id. Evidence insufficient to show that work, labor and expenses incurred were not reasonably worth the amount required by the statute. Id.**

**61. Field v. Tanner \[Colo.\] 75 P. 916.**

**62. Faubel v. McFarland, 144 Cal. 717, 78 P. 261.**

**63. Rev. St. 2324, Comp. St. 1901, p. 1426.**

**64. Ellder v. Horseshoe M. & M. Co., 194 U. S. 248.**

**65.**

**66.**

**67.**

**68.**

**69.**

**60.**

**61.**

**62.**

**63.**

**64.**

**65.**

**66.**

**67.**

**68.**

**69.**

**61.**

**62.**

**63.**

**64.**

**65.**

**66.**

**67.**

**68.**

**69.**

**67.**

**68.**

- 4 Cur. Law. MINES AND MINERALS SS 3D.

of it or who may appropriate it." On abandonment the claim reverts to its original status as a part of the unoccupied public domain, and is open to location by the first comer." An abandonment by two of three tenants in common does not affect the interest of the other." A statute providing that no interest in lands shall be created except by operation of law or by deed has no application to an abandonment of a claim by locators and the giving of permission to another to locate thereon."

An amended location of a lode claim does not operate as an abandonment of all rights under the original location, where the new location notice expressly states that no abandonment is intended."

(SS 3) _C. Relocation._"--Mining claims are not open to relocation until the rights of a former locator have come to an end."

(SS 3) _D. Proceedings to obtain patent; adverse claims._"--A patent of a placer claim will not convey the title to a known vein or lode within its area, unless such vein or lode is specifically applied and paid for;" but if no vein or lode is known to exist within the placer claim at the time the patent is issued, then the patentee takes title to any which may be subsequently discovered."

The judgment of the land department respecting matters which it must determine in ascertaining whether or not an applicant is entitled to a patent can only be assailed by direct proceedings, and is not open to collateral attack." The issance of a patent is conclusive evidence of the sufficiency of the steps taken by the locator." A patent issued to a named company establishes the fact that it is a corporation."

\*\*72. Action of two of the owners in grant-\*\*until after abandonment or forfeiture. Conn ing permission to third person to enter into possession of and relocate claim held an abandonment of their interest. Statement 80. U. S. Rev. St. **SS 233** (Comp. St. 1901, of other owner that he did not care to have anything more to do with claim heldabanment of his interest and ratiection of nets of others. Conn v. Oberto \[Colo.\] 76 P., 369. Where lode claim crossed placer claim 944.

therefore patented, the filing of a declaration can electing to take a patent for that part on north side of placer claim in pursuance of decree refusing to patent whole and re-

after patent was applied for its not a judgment intention, operated as abandonment of

south tract and took effect immediately on

such placer claim. Gurney v. Brown \[Colo.\] its filing. Gurney v. Brown \[Colo.\] 77 P., 357. The decision of the Interior Department in annulting an entry on coal land, permitting the amendment of another entry and issuing a patent in pursuance of the latter entry. Judgment is that of a special tribunal and unassailable except in direct proper, in determining extralateral rights, to

proceedings for its annulment or limitation. draw vertical planes through original lines. Quinn v. Baldwin Star Coal Co. \[Colo. App.\] and amended lines, extending both in the direction of the dip of the vein, and to award

- 83. Last Chance Min. Co. v. Bunker Hill to the claim extralateral rights to go much of the vein on its dip as lay within both of
- 84. Unlike as to fact that claim was located and subextensions, treating as abandoned only

so much of the original claim, with its planes so extended, as lay without the ex-

- 85. A. Relocation.\_"--Mining claims are not open to relocation until the rights of a former locator have come to an end."
- 86. A. Relocation.\_"--Mining claims are not open to relocation until the rights of a former locator have come to an end."
- 87. See 2 Curr. L. 896.
- 88. _Proceedings to obtain patent; adverse claims._"--A patent of a placer claim will not convey the title to a known vein or lode within its area, unless such vein or lode is specifically applied and paid for;" but if no vein or lode is known to exist within the placer claim at the time the patent is issued, then the patentee takes title to any which may be subsequently discovered."

The judgment of the land department respecting matters which it must determine in ascertaining whether or not an applicant is entitled to a patent can only be assailed by direct proceedings, and is not open to collateral attack."

The issance of a patent is conclusive evidence of the sufficiency of the steps taken by the locator." A patent issued to a named company establishes the fact that it is a corporation."

\*\*72. Action of two of the owners in grant-\*\*until after abandonment or forfeiture. Conn ing permission to third person to enter into possession of and relocate claim held an abandonment of their interest. Statement 80. U. S. Rev. St. **SS 233** (Comp. St. 1901, of other owner that he did not care to have anything more to do with claim heldabanment of

- 81. U. S. Rev. St. **SS 233**. Clipper M. Co., v. Ell M. & L. Co., 194 U. S. 220, 48 Law. Ed. 944.

- 82. A. judgment that a lode vein had not been shown to exist and pass through a conflicting patered placer claim when the latter patent was applied for its not a judgment that such vein does not pass through such placer claim. Gurney v. Brown \[Colo.\] its filing. Gurney v. Brown \[Colo.\] 77 P., 357. The decision of the Interior Department in annulting an entry on coal land, permitting the amendment of another entry and issuing a patent in pursuance of the latter entry. Judgment is that of a special tribunal and unassailable except in direct proper, in determining extralateral rights, to

- 83. Last Chance Min. Co. v. Bunker Hill to the claim extralateral rights to go much of the vein, An erroneous description of the land does not render the patent void where it can be easily located by reference to the menuments therein referred to.\[83\] Where an entry is permitted to be amended, to take effect as of the date of the original entry, the patent issued in pursuance thereof relates back to such date.\[86\] The mere suspension of a mineral entry for the purpose of requiring compliance with departmental regulations does not destroy the force of the certificate evidencing such entry, or enable third parties to attack its validity.\[87\]\_Suits to determine adverse claims.\[88\]--The Federal statute provides for the giving of notice of the filing of an application for a patent, which is equivalent to a summons in a judicial proceeding.\[99\] Where an adverse claim is filed during the publication, the adverse claimant must within thirty days commence proceedings in a court of competent jurisdiction to determine the question of his right to possession, and a failure to do so is a waiver of his claim.\[99\] The statute applies only to adverse claims arising from independent and conflicting locations of the same ground, and not to a controversy between co-owners or others claiming under the same location.\[91\] The owner of a prior placer location may maintain an adverse suit against an application for a patent for a subsequent lode location within its boundaries, made by persons entering against his will for the purpose of prospecting for unknown veins or lodes.\[92\] The burden is on adverse claimants to show that any part of the ground sought to be patented by defendant is within the boundaries of a claim as previously located by them.\[93\] The mere fact that the suit is brought pursuant to the requirements of this statute to determine the right to the possession of a mining claim does not confer jurisdiction on a Federal court.\[94\] The character of the action is not provided for and depends upon the practice in the state in which it is brought.\[93\] Where a state statute authorizes a suit to quiet title regardless of possession, a Federal court of equity in such state is a court of competent jurisdiction, though 84. Galbraith v. Shasta Iron Co., 143 Cal. 94, 76 P. 901. 85. 85. 86. 901. 87. 88. 91. 89. 80. 81. 82. 83. 84. 85. 87. 88. 92. 85. 89. 81. 82. 83. 84. 86. 93. 87. 88. 94. 89. 80. 81. 83. 84. 85. 86. 95. 87. 88. 96. 89. 81. 84. 86. 97. 85. 88. 98. 82. 86. 99. 83. 87. 89. 84. 88. 99. 85. 89. 86. 99. 87. 88. 90. 88. 91. 89. 89. 80. 89. 81. 89. 80. 81. 82. 83. 84. 86. 99. 87. 88. 98. 89. 88. 99. 89. 80. 81. 82. 84. 86. 99. 88. 99. 81. 83. 84. 86. 99. 88. 99. 81. 84. 88. 99. 81. 85. 87. 89. 88. 99. 81. 89. 82. 86. 99. 82. 86. 99. 83. 88. 99. 84. 88. 99. 85. 87. 89. 88. 99.

- 4 Cur. Law. #MNS AND MINERALS SS 4. 657

neither claimant is in possession.90 A part owner, joining with the others in filing an adverse claim, who afterwards acquires their interests, may maintain the suit in his own name.97

In such action the title of each party is brought in question, and, even where plaintiff's case fails, defendant is not entitled to a judgment or decree unless he establishes his title.98

In Montana it is immaterial which party is in possession, and it is sufficient to confer jurisdiction on the court if it appears from the pleadings that an application for a patent has been made and that an adverse claim has been filed and allowed in the proper land office.99 It is not necessary, no matter in what form the action is brought, for plaintiff to particularly set forth the nature of defendant's claim.1 If the action is brought in time, it proceeds to effective judgment in the same manner as other actions, and the court has the same power to allow amendments as in other cases.2 The verdict or decision must find which party is entitled to the property in dispute.3 Where plaintiff has two claims, both of which conflict with defendant's claim, but which do not conflict with each other, he may maintain a separate action to determine adverse claims based on each location, and the pendency of one such action is no bar to the other.4 The court only has jurisdiction to determine the right to the possession of the particular portion of the tract in controversy.5 Disbursements necessary to the filing of the adverse claim in the land office, but not for the procurement of anything necessary to the maintenance of the suit, cannot be taxed as costs.6

Footnote 4: Cur. Law. #MNS AND MINERALS SS 4. 657

The judgment of the court as to which of the adverse claimants is entitled to the possession of the claim does not settle the right of the successful claimant to a patent.7

Footnote 4: Cur. Law. #MNS AND MINERALS SS 4. 657

**96. Sand. & H. Ark. Dig. & $120, authorizes**

Civ. Proc. $ 1310, or a special statutory pro-

suits to quiet title regardless of possession.

Ceeding under Id. SS 1322. Id. A complaint

Willsitt v. Baker, 133 F. 937.

suits not bad for uncertainty or ambiguity,

97. V'Willitt v. Baker, 133 F. 937.

though it is alleged that a "protest" was

98. Must prove that he did assessment

suits not be paid for each year as required by statute.

the land office. Immaterial whether this

Willsitt v. Baker, 133 F. 937. Action is in

was done or not. Id. The complaint need

the nature of a suit to quiet title, and plaintiff can recover, If at all, only on the strength

promises, and that defendant claims somo

of his own title. If he does not show title,

right adverse to him, without specifying of

condition of defendants' title is immaterial.

what such adverse claim consists. Com-

Schroder v. Aden Gold Min. Co., 144 Cal.

bluant held sufficient as action to remove

628. 78 P. 20. Evidence sufficient to support

finding that mine extended in direction

certain contracts, and also to warrant

deicated by lead as far as it could be traced

upon the surface, and that its location cor-

responded with written notice rather than

held not bill to enforce forfeiture of lease.

with evidence of location of monuments. Id.

but merely to require court to ascertain

98. Pleadings held to show that action

was equitable in its nature. Also case was

if so, to remove cloud caused thereby. Id.

tried on that theory and hence parties can

not object in oral argument on appeal

Woody v. Hinds \[Mont.\] 76 P. 1.

\[Code Cliv. Proc. $ 1322. Mares v. Dillon

\[Mont.\] 75 P. 963.

\[MONT.\] 75 P. 963.

question that suit is equitable cannot object

to instructions to jury. Verdict merely ad-

visory. Id.

**1.** Duty to do so rests on defendant.

Woody v. Hinds \[Mont.\] 76 P. 1. Complaint

showing possession of plaintiff under claim

of title, application of defendant for patent.

filling of adverse claim in land office and its

alnowance, and commencement of suit with

in 30 days thereafter, is sufficient whether

suit is one to quiet title under Mont. Code

4 Cur. Law. #MNS AND MINERALS SS 4. 657

neither claimant is in possession.90 A part owner, joining with the others in

filing an adverse claim, who afterwards acquires their interests, may maintain the suit in his own name.97

Footnote 4: Cur. Law. #MNS AND MINERALS SS 4. 657

In such action the title of each party is brought in question, and, even where plaintiff's case fails, defendant is not entitled to a judgment or decree unless he establishes his title.98

Footnote 4: Cur. Law. #MNS AND MINERALS SS 4. 657

In Montana it is immaterial which party is in possession, and it is sufficient to confer jurisdiction on the court if it appears from the pleadings that an application for a patent has been made and that an adverse claim has been filed

, and allowed in the proper land office.99 It is not necessary, no matter in what

form the action is brought, for plaintiff to particularly set forth the nature of defendant's claim.1 If the action is brought in time, it proceeds to effective judgment in the same manner as other actions, and _rights._*--A valid location has the effect of a grant from the government of the right to the exclusive possession to the lands located,* and no rights can be initiated by a trespass thereon.\[10\]

Until the patent is issued, the actual title to the fee remains in the government, but the locator has a qualified title which may be conveyed or inherited.\[11\] His exclusive right of possession is as much his property as the vein or lode located.\[12\] A conveyance from the original locator of a part of claim and possession thereunder does not ripen into a perfect title until such locator secures title from the government.\[13\] The right to possession remains in the grantees only while the locator or his vendees with notice remain in possession and terminates as soon as he abandons the claim.\[14\]

\_Joint tenants.\[15\]--The general rule that co-tenants stand in a relation to one another of mutual trust and confidence, that one will not be permitted to act in hostility to the others in respect of the joint estate, and that a distinct title acquired by one will inure to the benefit of all applies with full force to the joint owners of a mining claim.\[16\] Hence a co-owner who amends the location notice, relocates the claim, or procures the issuance of a patent in his name, will be declared to hold the right or title thereby acquired in trust for all.\[17\] The fact that a stranger to the original claim joins him in acquiring such title is immaterial.\[18\] A co-tenant who excludes the other and takes out mineral will be liable without deduction for the cost of mining.\[19\]

One tenant in common may recover possession of the entire claim as against all persons except his co-tenants.\[20\]

- See 2 Curr, L. SS9.
- Worden V. Sidway \[Ark.\] 79 S. W.
- Clipper M. Co. V. Ell M. & L. Co., 194 U. S. 220, 48 Law. Ed. 944. Rule applies to placer claims. Id. Error, if any, in a ruling that possession of plaintiff by co-pancy merely was insufficient to show right of possession was harmless and waived by his proving valid statutory locations. Field v. Tanner \[Colo.\] 75 P. 916. Evidence sufficient to show valid locations by plaintiff. Id.
- Dwinneil v. Dyer \[Cal.\] 78 P. 247. Not by location on land acquired by Northern Pacific Railroad Company under land grant and by it conveyed to defendant, though conveyance and patent exempted minerals in soil. Traphaagen v. Kirk \[Mon.\] 77 P. 58. Not by entry on land previously appropriated as placer claim. Clipper M. Co. v. Ell M. & L. Co., 194 U. S. 220, 48 Law. Ed. 944. One who In good faith makes a location, remains in possession, and with due diligence prosecutes his work towards a discovery is protected against all forms of forcible, fraudulent, surretitious or clandestine entries and intrusions upon his possession. Another party cannot locate on land in peaceable possession of defendant on which he is preparing to drill well. Weed v. Snook, 144 Cal. 439, 77 P. 1028. Plaintiff's location of 80 acres is not, after making a discovery of oil thereon. available for the purpose of perfecting a consolidated claim to 160 acres, including the original 80 and an adjoining 80 in possession of defendants. Id. One may not go upon a prior valid placer location to prospect for unknown lodes, and get title to lode claims thereafter so discovered and located within the placer boundaries, unless the place owner has abandoned his claim, waives the trespass, or is, by his conduct, estopped to complain of it. Clipper M. Co. v. Ell M. & L. Co., 194 U. S. 220, 48 Law. Ed. 944. An entry under such circumstances is a mere trespass under which no rights can be acquired. Id.
- Worten v. Sidway \[Ark.\] 79 S. W.
- Elder v. Horseshoe M. & M. Co., 194 U. S. 248, 48 Law. Ed. 960. May sell or lease interest in oil claim. Weed v. Snook, 144 Cal. 439, 77 P. 1023.
- Place Clipper M. Co. v. Ell M. & L. Co., 194 U. S. 220, 48 Law. Ed. 944.
- Conn v. Oberto \[Colo.\] 76 P. 369.
- Cained only under conveyance and not by virtue of compliance with mining laws. Conn v. Oberto \[Colo.\] 76 P. 369.
- See 2 Curr. L. SS9., n. 84.
- Stevens v. Grand Cent. M. Co. \[C. C. A.\] 133 F. 28. Co-tenant cannot acquire exclusive possession by adverse possession without notice to co-tenant that such possession is hostile or adverse. Faubel v. Mc-Farland, 144 Cal. 717, 78 P. 261. Tenant in common not estipped to assert his interest against plaintiff to whom co-tenant sold property where he did not know that deded purported to convey entire property. Id.
- Stevens v. Grand Cent. M. Co. \[C. C. A.\] 133 F. 28, and cases cited. Under circumstances co-owner held not guilty of laches regardless of state statute of limitations. Id.
- Stevens v. Grand Cent. M. Co. \[C. C. A.\] 133 F. 28.
- Sweeney v. Hanley \[C. C. A.\] 126 F.
- Field v. Tanner \[Colo.\] 7 4 Cur. Law. Mines and minerals SS 4.659

_Extralateral rights._\[21\]--A lode location confers on the locator both intra-luminal and extraliminal or extralateral rights.\[22\] The intraliminal right embraces a right to all the ore within the boundaries of the claim down to the center of the earth.\[23\] Extralateral rights do not attach until after, in pursuit of his vein on its dip, the locator crosses the side lines of his location.\[24\]

The locator has the exclusive right to the possession and enjoyment of all the surface included within the lines of his location, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of such surface location.\[25\] But his right of possession to such outside parts of such veins or ledges is confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end-lines of his location, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges.\[26\]

Where there are surface outcroppings of the same vein within the boundaries of two lodge mining claims which conflict on the surface, the claim first located carries the right to work the vein.\[27\] Where the vein does not, on its dip, pass beyond the side lines of the junior location, but the disputed ore body is wholly within the surface lines of both the junior and senior locations, it belongs to the senior location.\[28\]

Though small pieces of quartz, narrow seams, and little pockets of ore embedded in prophyr be deemed sufficient to sustain a location, they do not give the owner any greater rights against veins apexing on other claims dipping under this ground than he would have if his location were based upon a substantial and well defined ledge.\[29\]

The end lines alone define the extralateral rights,\[30\] and they must be straight lines.\[31\] The end lines of a claim for the purpose of its extralateral rights are those laid upon the ground when it is located,\[32\] and the legal end lines of the

**21. See 2 Curr. L. S87, 4.**

another. Jefferson M. Co. v. Anchoria-Le-Leland M. & M. Co. \[Colo.\] 75 P. 1070.

**22.** Ore in dispute on dip of vein within **25.** U. S. Rev. St **& 2322** (Comp. St. 1901,

extended vertical planes of the end lines of one claim and also within side lines of **M. & M. Co.**, 131 F. 335; Clipper M. Co. v.

either claim and on dip of vein as it passes

through that claim. Jefferson M. Co. v. Anchoria-Leland M. & M. Co. \[Colo.\] 75 P. 1070.

**34.** An owner of a claim is entitled to all veins apexing within its boundaries, but not

to those apexing in the locations of other

not apply, but case is governed by that of

letgrass, and prevailing in regard to others

under the civil law. Golden v. Murphy

\[New.\] 75 P. 625.

**26.** U. S. Rev. St. **& 2322** (Comp. St. 1901,

p. 1425). Emplore M. & M. Co. v. Tombstone

M. & M. Co., 131 F. 339; Last Chance Min.

Co. v. Bunker Hill & S. M. & C. Co. \[IC. C. A.\]

131 F. 578. The doctrine of extralateral rights refers to that part of a vein which, on the dip, lies outside of the side lines of the location within whose surface lines the apex of the vein appears, and not to any part of such vein, either the outcrop or segments on the dip thereof, which lies wholly within planes drawn downward coincident with its surface boundaries. Jefferson M.

Co. v. Anchoria-Leland M. & M. Co. \[Colo.\] 75 P. 1070.

This section confers no rights whatever if

the land has been previously patented to App.) 75 P. 605.

original or discovery vein are the end lines of all veins within the surface boundaries with respect to extralateral rights.\[33\]

If the locators mistake the direction of the vein, lode, or ledge manifested by the outcrops of ore upon the surface, and lay out their claim crosswise instead of lengthwise of the vein, lode, or ledge, then the original side-lines become the legal end-lines, and the original end-lines the legal side-lines.\[34\]

The owner of a lode claim laying an end-line on the surface of a prior claim of course acquires no rights as against the owner of the latter,\[35\] but he may extend his lines over the latter's claim in the absence of any objection on his part, and by so doing acquires, as against the government and subsequent locators, the same rights, both surface and extralateral, as if all his lines were on unappropriated ground.\[36\] Though one end-line crosses land belonging to other older valid locations, it is nevertheless its end-line for the purpose of securing to it underground extralateral rights not in conflict with the senior locations.\[37\]

The extralateral right to a vein or lode outcropping on the surface is fixed by the course of such vein or lode at the surface, and not by its course on a level.\[38\] Such rights exist without regard to the angle at which the end-lines cross the general course of the vein,\[39\] and it is immaterial that the locator follows the vein underground more upon its strike than upon its dip.\[40\]

The fact that a vein or lode is of such width on the surface as to extend beyond the side-lines of the claim does not affect the extralateral rights of the claim as against a junior locator.\[41\]

The ownership and possession of a vein at the surface carries with it the ownership and possession of all that pertains to the location.\[42\] The mining right is an integral one, and is secured by a single location, and the title thereto is conveyed by a single patent.\[43\] This includes the extralateral rights and no adverse rights can be acquired as to them that could not be acquired as to the rest of the right.\[44\] The fact that the same person, company, or corporation acquires other claims is immaterial.\[45\]

A patent conveys the subsurface as well as the surface of a claim, subject only to the extralateral rights of adjoining owners.\[46\] Hence, the right to pursue a vein on its dip outside the lines of a claim does not include a right to run a horizontal tunnel from it into an adjoining patented lode claim for the purpose of reaching the vein in its descent through such adjoining claim.\[47\]

There is a presumption that one owns all ores found beneath the surface of his claim.\[48\] Such presumption cannot be overcome by speculative conjecture, or even intelligent guess.\[49\]

33. Jefferson M. Co. v. Anchorria-Leland M. & M. Co. \[Colo.\] 75 P. 1070. \[40\] 84. Empire M. & M. Co. v. Tombstone M. & M. Co., 131 F. 339. Where the lines originally located as the side lines of the claim are parallel, and it appears that the apex of the vein or lode in question crosses them. Last Chance Min. Co. v. Bunker Hill & S. M. & C. Co. \[C. C. A.\] 131 F. 579: Jefferson M. Co. v. Anchorria-Leland M. & M. Co. \[Colo.\] 75 P. 1070. Locators have the right to follow the vein lode or ledge, outcropping within the surface lines of their claim, upon its downward course, if it so far departs from the perpendicular as to carry it underground beyond the legal side lines to a point where it will be cut off by its legal end lines vertically extended in their own direction perpendicularly. Empler M. & M. Co. v. Tombstone M. & M. Co., 131 F. 339. \[40\]

01. Empire State-Idaho M. & D. Co. \[Colo.\] 75 P. 1070. \[41\] 83. M. & C. Co. \[C. C. A.\] 131 F. 579. \[42\] 84. Empire M. & M. Co. v. Tombstone M. & M. Co., 131 F. 339. Where the lines originally located as the side lines of the claim are parallel, and it appears that the apex of the vein or lode in question crosses them. Last Chance Min. Co. v. Bunker Hill & S. M. & M. & M. Co., 131 F. 579. \[43\] 85, 39. Last Chance Min. Co. v. Bunker Hill & S. M. & C. Co. \[C. C. A.\] 131 F. 579. \[44\] 40, 41. Last Chance Min. Co. v. Bunker Hill & S. M. & C. Co. \[C. C. A.\] 131 F. 591. \[45\] 42, 43, 44. Last Chance Min. Co. v. Bunker Hill & S. M. & C. Co. \[C. C. A.\] 131 F. 579. \[46\] 47, 48. Louls M. & M. Co. v. Montana M. Co., 134 F. 235, 48 Law. 953. \[47\] 48, 49. Heinze v. Boston & M. C. C. & S. M.

4 Cur. Law. MINES AND MINERALS SS 4.

Boundary lines and nonunents. \[50\]--In cases of conflicts between monunents called in a conveyance or patent and the courses and distances there noted, the former, if standing in their original positions, prevail. \[51\] If removed, the places where they originally stood may be shown by parol or documentary evidence, and, if proved to the jury by a fair preponderance of the evidence, they prevail over courses and distances. \[32\] If their location is not proved the courses and distances control the description, and must be followed in its application to the land. \[53\] Parol evidence is incompetent to substitute a call for another monument in place of the call for the original monument contained in the conveyance. \[54\]

The mere fixing of one monument is insufficient to indicate a boundary line so as to charge subsequent purchasers or locators with notice thereof. \[55\]

The wrongful taking of ore from the claim of another, in the absence of all other evidence, raises a disputable presumption that the taking was intentional and willful. \[56\] The measure of damages for the intentional, willful, or reckless taking of ore from the land of another without right is the enhanced value of the ore where it is finally converted to the use of the trespasser. \[57\] In case the taking is through inadvertence or mistake, or in the honest belief that one is acting within his legal rights, the measure of damages is the value of the ore in the mine. \[58\]

Leseses of a nine continuing to work it after notice of forfeiture under the mistaken belief that there has been no valid forfeiture are not willful trespasser.

Co. \[Mont.\] 77 P. 421. The owner of the surface is prima facte entitled to everything beneath the surface and may prevent the intrusion of anyone not showing a para- mount right to enter within the vertical planes of his boundaries. Maloney V. King \[Mont.\] 76 P. 4. Where plaintiffs prove their ownership of the surface and that defendants have taken ore from beneath it, the burden is on the latter to prove that they were the owners of the vein from whi it was taken. Hence have right to rebut any new matter set up by plaintiffs. Id. In action for removal of ore from plaintiffs' claim, where issue was the point where a certain vein departed from side line of defendants' location, and defendants introduced evidence that it departed at the point claimed by them, and plaintiffs in rebutist introduced evidence that it departed at different place as shown by fact that vein was exposed in certain cellar, held error not to permit defendants to show in rebuttal that vein in cellar was along course or strike which would bring it out at point other than claimed by plaintiffs. Id. He did no error in refusing to admit glass model. Id. Instructions as to admissions in answer held not misleading. Id. Allowing the jury to view the premises is a matter in the discretion of the trial court. Mont. Code City, Proc. SS 1081. Action for removing ore. Id.

49. Not by opinion of engineer that if vein having apex in adjoining ground continues to dip at same angle it will reach point where defendant is conducting its operations. Heitne V. Boston & M. C. C. & S. M. Co. \[Mont.\] 77 P. 421.

01. See 2 Curr. L. 898, a. 23.

01. Resurrection G. M. Co. v. Fortune G. M. Co. \[C. C. A.\] 129 F. 668. Monuments control courses and distances. When permanent and visible or ascertained boundaries or monuments are inconsistent with the use of the ore in the case of the presence of a single point.

01. See 2 Curr. L. 898, n. 90, 91. Resurrection G. M. Co. v. Fortune G. M. Co. v. Fortune G. M. Co. \[C. C. A.\] 129 F. 668. Where plaintiff takes the ground that defendant was a naked trespasser, it cannot thereafter contend that defendant was setopped to claim the right to remove the ore under a contract between the parties for the development of the mine. Empire M. & M. Co. v. Tombstone M. & M. Co., 131 F. 838.

01. Resurrection G. M. Co. v. Fortune G. M. Co. \[C. C. A.\] 129 F. 668.

01. Resurrection G. M. Co. v. Fortune G. M. Co. \[C. C. A.\] 129 F. 668. The value of the ore is the amount prescribed from the smeller or ore buyer after deducting the cost of mining treatment, sampling, haulings, railroad freight, and concentrating. Taken by one under claim of right. Montrozoa G. M. Co. v. Thatcher \[Colo. App.\] 75 P. 595.

passers.\[59\] Upon the question whether the taking was intentional, evidence of the knowledge and information which defendant's managing officers had relative to the location of the disputed boundary lines and corners of such claim before and during the removal of the ore,\[60\] evidence of their relevant acts and omissions during such time,\[61\] and testimony of their intent and purpose in taking the ore,\[92\] is competent. Negligence in ascertaining the limits of the land or the rights of the owner is competent evidence on the question,\[63\] but negligence amounting to mere inadvertence, without evil intent or recklessness, is not in itself sufficient proof to sustain a finding of fraud, bad faith, willfulness, or evil intent in committing the trespass.\[64\] An intentional or reckless omission to exercise care to ascertain the boundaries cf another's land or rights for the purpose of maintaining ignorance in regard to them, or a reckless disregard of them, is equivalent to a willful trespass in so far as the measure of damages is concerned.\[65\]

In an action for damages for the removal of ore, plaintiffs must in the first instance make a prima facie showing of the amount of ore extracted.\[66\] They can, of course, recover no more than the value of such an amount.\[67\] If defendants claim that the ore was taken from some other place they must prove that fact.\[68\] Defendant has the means of showing the amount taken, and if he does not do so he cannot complain that the verdict against him is too large.\[69\]

_Duty to protect owner of surface._--One who, by the removal of minerals, causes the surface of the ground to subside, is liable to the owner for the resulting damages, even though he uses the most approved system of mining.\[70\] An injunction will not issue to prevent the removal of coal under complainant's land, nor will the court assume charge of the operation of the mine, and direct the manner in which the work may be done, where it cannot be determined from the evidence whether the land will further subside, or whether complainant will be injured, and no rule appears by which the court can specify the manner in which the work shall be done.\[71\] Each subsidence is a trespass giving rise to a new and distinct cause of action, and hence injunction will not issue to restrain the removal to prevent a multiplicity of suits.\[72\]

SS 5. _Right to mine on private land thrown open to public._--By statute in Missouri the owners or lessees of mining land may post rules and regulations for mining the lots platted thereon.\[73\] Persons thereafter mining on such lands will be deemed to have assented to and accepted such rules and will be bound thereby. Upon their failure or refusal to comply therewith they forfeit all rights, and the owner may re-enter and take possession.\[74\] The receipt of any ore or mineral by the owner after a forfeiture is not a waiver thereof.\[75\]

59. Montrorona G. M. Co. v. Thatcher \[Coi. App.\] 17 F. 595.

60, 61, 62, 63, 64. Resurrection G. M. Co. v. Fortune G. M. Co. \[C. C. A.\] 129 F. 668.

65. Resurrection G. M. Co. v. Fortune G. M. Co. \[C. C. A.\] 129 F. 668. One may be so far negligent as to warrant an inference that he acted knowingly and intentionally, and to warrant the jury in finding his trespass to be willful. Id. \[75\]

01. Maloney v. King \[Mont.\] 76 P. 4.

01. Instruction as to recovery in case ore commingled with other ore erroneous. Maloney v. King \[Mont.\] 76 P. 4.

68, 69. Maloney v. King \[Mont.\] 76 P. 4.

79. Lloyd v. Catlin Coal Co., 210 III. 460, 4 Cur. Law. MINES AND MINERALS SS 6. 663

The act does not itself require the licensee to sign the register or rules of the company, but it may make a rule requiring him to do so.\[76\] If the owner knowingly permits him to enter without requiring him to sign, he cannot forfeit the miner's rights without giving him an opportunity to do so.\[17\]

The rules may specify the time during which the right acquired shall continue.\[76\] In case no time is specified, it continues for three years.\[79\]

The owner must not unnecessarily interfere with the licensee's use of the property.\[80\]

SS 6. _Private conveyances or grants of mineral rights in lands.\[81\]_--Mineral underlying the surface of the ground is subject to absolute conveyance,\[82\] and one person may own the mineral and another the surface.\[83\] Title thereto may be acquired by adverse possession,\[84\] but after a severance has taken place possession of the surface is not possession and occupancy of the underlying minerals.\[85\]

One owning underlying minerals who stands by and sees another sell them, and says nothing when it is his duty to speak, will be estopped from thereafter claiming the property, especially when he receives a part or all of the purchase price.\[86\]

A conveyance of all the minerals in or under a tract of land passes an estate in fee, having all the incidents of other like estates.\[87\] It is a legal estate of freehold and is subject to partition.\[88\]

The right to open and work a mine is property in which an estate in fee may be granted.\[89\]

76. Currey v. Harden \[Mo. App.\] SS 8. W. 81. See 2 Curr. L, 898. 710. Any one desiring to mine must sign 82, SS3. Moore v. Price \[Iowa\] 101 N. W. the register kept for that purpose, and thereby has the privilege of beginning mining as a licensee for the time, and under $ 110, the restrictions and conditions of the rules. Ashoraft v. Englewood M. Co, \[Mo. App.\] 81 81. W. 469. 77. Currey v. Harden \[Mo. App.\] 83 S. W. 770. In action on note, part of the consideration of which was the transfer of a license acquired under this statue, the defense was a false representation on the part of the payee that he had signed the register of the mine owner in accordance with rule adopted by him. It appeared that owner never objected to mining because register was not signed, and that defendants carried on operations without objection until mine became unprofitable. Held, that as defendants would themselves have had right to sign, the fact that plaintiff had not done so was immaterial and no defense. Id. 78. Rev. St. 1899, SS 8766. Ashoraft v. Englewood Min. Co, \[Mo. App.\] SS 8, W. 469. 79. Rev. St. 1899, SS 8767. Ashoraft, F. Emgievood M. Co, \[Mo. App.\] 81 S. W. 469. Where lessee failed to fix in rules the time during which right should continue, and plaintiff registered and then assigned his rights to defendant, in consideration of a royalty so long as the latter should operate, and defendant, after expiration of three years, mined under registration and agreement with owner, held that plaintiff's right to royalties ceased on expiration of three years from date of his registration. Id. 80. Injunction issued to prevent draining of pond across licensees' lot. Jack Harvard Zinc M. Co. v. Continental Zinc & Lead M. & S. Co, \[Mo. App.\] 80 S. W. 12.

A right, reserved in a dead, to work a mine may be lost by abandonment," but not the title to underlying minerals.\[91\]

Where the grantee under a dead conveying mineral rights executes a mortgage thereon, which is foreclosed, the purchaser at the foreclosure sale acquires only the grantee's interest in the property, and cannot exercise any right which is determined by the decree not to have been conveyed by the dead.\[92\]

By statute in California it is unlawful for the directors of any mining corporation to in any way dispose of any mining ground owned by it, or to obtain any additional ground, unless such act is ratified by the holders of two-thirds of the capital stock.\[93\] A previous consent or direction by the required number of stockholders, although purporting to have been made in their capacity as directors, is, at least as against creditors, equivalent to a subsequent ratification.\[94\]

The ordinary rules in regard to the execution and validity,\[95\] interpretation,\[96\] avoidance,\[97\] and enforcement of deceds and contracts of sale apply to those affecting mineral rights.\[98\]

for five years of right to open supposed paint mine on land conveyed to city for park, and to work the same thereafter to its full extent, unless the right to do so was purchased within six years from the date of the dead held to create state of inheritance. Id.

**90.** The question whether a right reserved in a deed to work a mine has been abandoned is mainly one of fact. Fact that no work was done by grantor's son for eight years after grantor's death hold not to show abandonment as matter of law. New Haven v. Hotchkiss \[Conn.\] 58 A. 753. Limitation of five years in deed reserving mine held to apply to right to open mine and not to right to work it after it had been opened. Id.

**91.** Does held not to require continuous work- \[7\] that a deed to a certain ing of mine after it was opened. Id. Where tenant in common conveyed his interest in land for park purposes, reserving right to open and operate mine thereon, and his content conveyed his interest to same grantee without reservation, held that former had sole and exclusive right to work mine. Id.

**92.** Could Barrett v. Kansas & T. Coal Co, \[Kan.\] 79 P. 150.

**92.** Duncan V. American Standard Asphalt Co. \[Ky.\] 83 S. W. 124.

**93.** St. 1880, p. 131, c. 118, p. 1 is constitutional. Lacy v. Gunn, 144 Cal. 511, 78 P. 30. Assignment for creditors lacking such ratification is void as to mining ground as against corporation, and hence assenting creditors not estopped to contest its validity. Id. The consent of the actual owners of the stock, and not of those who appear to be so, is required. Id. Only stockholders can raise question that corporation's deed was unauthorized. Galbraith v. Shasta Iron Co., 143 Cal. 94, T6 P. 901.

**94.** Statute for benefit of stockholders. Lacy v. Gunn, 144 Cal. 511, 78 P. 30.

**95.** Contract whereby plainiff agreed to transfer to defendant undivided interest in lode on land claimed by former in consideration of defendant's transfer to him of balance held not supported by adequate consideration so as to entitle him to specific performance, where complainment's entry was wholly \[Ineffectual. Traphaagen v. Kirk \[Mon.\] 77 P. 68.

**96.** Under contract whereby defendant having oil and gas leases conveyed gas 4 Cur. Law. Mines and minerals SS 7. 665

In its ordinary commercial sense a mineral is any inorganic substance found in nature, having sufficient value, separated from its situs as part of the earth, to be mined, quarried, or dug for its own sake, or its own specific uses.90 The word will be presumed to have been used in this sense in deeds reserving all minerals in, under, and upon the land conveyed.1

Under a contract for the sale of coal providing that the agreement or option shall be binding for a specified period only, the purchaser may acquire an equitable title by the acceptance of the coal within such time without a tender of the purchase price.2 A delay of two years on the part of the vendee in seeking to enforce the contract is not such laches as will deprive him of the right to specific performance.8

Time is of the essence of an option to purchase mining property.4 Persons having claims to mining locations are bound to the utmost diligence in enforcing them.6 The refusal of a trustee to deed an interest in a mining location in compliance with the trust agreement is a repudiation of the trust which entitles complaints to immediate relief, and, if known to them, opens the door to the defense of laches to a suit to enforce the trust.6

Footnote 4: The author is grateful to the anonymous referee for the support of the author.

SS 7. \_Leases.\_7--The question whether an instrument is a conveyance of the minerals in the land described or a mining lease is one of intention, to be gathered from the whole instrument.8 A lesser who conveys the land by a deed reciting that it is made subject to the lease thereby recognizes its existence and validity at that time.9

Footnote 8: A. Mines and minerals is a consequence of the fact that the author is grateful to the anonymous referee for the support of the author.

Footnote 9: A. Mines and minerals is a consequence of the fact that the author is grateful to the anonymous referee for the support of the author.

Footnote 10: Under Tex. Rev. St. 1805, art. 651, giving corporations power to lease lands
In Minnesota the duties of the state auditor, ex officio commissioner of lands, in issuing mining leases of state lands are purely ministerial, and hence his action in refusing a lease cannot be reviewed by certiorari.\[11\]

An oil and gas lease is, in effect, a sale of the portion of the land.\[12\] It is not, strictly speaking, a lease in the ordinary sense of the word, but rather in the nature of a written license with a conditional grant conveying the grantor's interest in the gas or oil well on condition that it is found in paying quantities.\[13\] When gas or oil is found the right to produce it becomes a vested right, and the lessee will be protected in exercising it according to the terms and conditions of his contract.\[14\]

The lease is not void for uncertainty because its duration extends so long as gas or oil may be found in paying quantities.\[15\] A lease requiring the lessee to sink a well within a certain time, or to pay a stipulated rental during the time drilling is delayed, and to pay a certain royalty on all gas and oil, is not void for want of mutuality.\[16\]

There is a conflict of authority as to whether a mining lease terminable at the will of the lessee is terminable at the will of the lessee.\[17\] It has been held that a provision that if the lessee shall at any time become satisfied that wells put in operation are not paying be may surrender the lease and remove the machinery and be released from all further obligations does not give him an arbitrary right to terminate the lease at pleasure, or make him a tenant at will.\[18\] If the well is actually paying, he cannot terminate the lease by merely asserting that it is not.\[19\] Under such a clause the lease is terminated as to unprofitable wells only.\[20\]

when not inconsistent with the corporate purpose. Not ultra vires as rendering it Im- Co., V. Oliver \[Tex. City. App.\] 79 S. W. 884. possible to further prosecute corporate business. Stark v. Guffey Petroleum Co. \[Tex. City. App.\] 80 S. W. 1980.

**11.** Lease under Laws 1855550505225 4 Cur. Law. MINES AND MINERALS SS 7. 667

As in the case of other contracts, the court in construing a mineral,\[21\] or oil and gas lease, will, if possible, give effect to all its parts, and its meaning will be determined from a consideration of all its provisions taken together as a whole.\[22\] The construction placed upon it by the parties will, if possible, be followed.\[23\] One purchasing land with knowledge of the existence of a contract for the sale of the oil and gas therein, and the construction which the parties have placed thereon, is not an innocent purchaser, and is bound by such construction.\[24\] Under a lease providing that the rent, when due, shall be deposited in the bank, a deposit therein is a payment of the rent.\[25\] The lessee, knowing nothing of the conveyance of the premises, is not in default where he pays rent to the original lessor, where the deed has not been recorded.\[26\] The intention of the parties governs as to whether time is of the essence of the contract.\[27\] It will be considered to be so where the contract provides that it shall be void if its conditions are not fulfilled within the prescribed time.\[28\] Applications of the ordinary rules in regard to covenants for title will be found elsewhere.\[29\] Oil and gas leases are construed most strongly against the lessee and in favor of the lessor.\[30\] Under a lease providing that it is to be void unless the lessee sinks a test well within a certain time, or pays a stipulated rental during the time drilling is delayed, the rights of the lessee will not be extended, on failure

\*\*20. Declaration that one well is unproft- use of natural gas and to furnish natural able does not avoid entire lease. Dickey v. Gas free does not require the furnishing of Coffeyville Virrifind Brick & Tile Co. \[Kan.\] If free gas for lights outside of the house, \[P. 4. 59 A. 266. 76 P. 888. 21. Evidence in action by administrator to recover royalty on one mined under lease held to show that no royalty was due. Defeahant not Ihable for royalty on tailings, chasing the property more than six years steer V. Dwyer, 104 Mo. App. 523, 79 S. W. 738. Mining lease held not to give lessee right to use timber to build houses for employees. Lewis v. Virginia Carolina Chemical Co. (8. C.) 48 S. E. 280. 22. Under lease for 12 years and so long thereafter as petroleum "can be produced in paying quantities." or certain annual payments, provided for in case of delay in commeming operations, are made, and providing for payment of royalties on oil and gas, held that actual consideration contemplated was 26. Indiana Natural Gas 60 Oil Co. v. Lee the development of the property, and lessee could not, by making annual payments, hold property for more than 12 years without have been paid to plaintiff, and not as negation-commeming to drill well. Indiana Natural Gas & Oil Co. v. Granger \[Ind. App.\] 70 N. E. 385. Under lease giving lessees right to remove machinery and fixtures at any time, they do not become part of reality but may be removed within reasonable time after forfeiture of lease for nonpayment of rental. Garllan v. Hickman \[TW. Va.\] 49 S. E. 14. What is reasonable time to be determined from all the facts and circumstances. Id. Oil lease constructed and lesser held charge- able with half cost of drilling unproductive well, including preliminary work of preparing ground, erecting derrick, etc. (Far West Oil Co., v. Witmer Bros. Co., 143 Cal. 306, 77 P. 61), and half actual cost reasonably incurred in pumping productive wells, though it might have been possible to have had work done for less money (Id.). EVI- demeahel not to show account stated. Id. A provision in a gas lease whereby the lessee is to equip the house of the lessee for the to drill the well within the stipulated time, by a mere offer to pay such rental, if the lessor elects to treat the lease as terminated.\[31\]

Where contiguous tracts are leased by their owners as one tract and the lease is silent as to the division of the royalty between theessors, parol evidence is admissible to show an agreement in regard to such division.\[32\]

A provision that the lease shall continue until a certain date and as much longer thereafter as oil or gas shall be found in paying quantities requires that the oil or gas shall be actually discovered and produced in paying quantities with-in the term.\[33\] A finding of indications of oil, or the existence of conditions rendering it probable that oil in paying quantities will be found if the well is operated in a certain way, is not sufficient, of itself, to extend the term.\[34\] An agreement to pay rental or royalty until, in the judgment of the lessee, oil or gas cannot be found on the premises, or, having been found, has ceased to exist, does not contemplate an arbitrary judgment as to its existence,\[35\] but there must be an honest judgment justifiable by the results of a bona fide investigation.\[36\]

The duty of exploring for minerals requires a search for all those named in the lease which may reasonably be expected to be found, considering the known geological conditions.\[27\] The testing must be so thoroughly done as to determine, not only their presence, but their commercial value, considering their abundance and accessibility.\[38\] Where the lessee contracts to operate the mine in a workman-like manner and to pay the lessor a royalty, there is an implied covenant to work the mine with reasonable diligence.\[39\] So too under a lease requiring the lessee to search for minerals he must do so within a reasonable time or he will be deemed to have abandoned his rights.\[40\]

An agreement giving one the right to explore for and mine oil and gas under certain property implies a duty on his part to make the exploration within a reasonable time, and a failure to do so entitles the owner to a forfeiture,\[41\] notwithstanding the expenditure of money and labor by the lessee.\[42\] It is proper in such case to show the amount of oil land under lease by defendant, and its efforts to acquire other tracts.\[43\]

- **32. To show that it should be paid to** & Mineral Co. v. Brown \[C. C. A.\] 131 F. owner of particular tract from which oil is produced. Rymer v. South Penn Oil Co., 54 W. Va. 530, 46 S. E. 559.
- **33. Murdock-West Co. v. Logan, 69 Ohio St. 514, 69 N. E. 894.**
- **34. Murdock-West Co. v. Logan, 69 Ohio St. 514, 69 N. E. 894. Even if certain payments were payments of rent and operated to extend the time within which oil might be sought for, the failure to thereafter make payments operated to terminate lease. Id.**
- **35. Consumers' Gas Trust Co. v. Littler, 162 Ind. 320, 70 N. E. 363. The court, in construing such a contract, will take judicial notice of the fact that gas or oil does not exist in paying quantities under all the lands within a recognized district, and that the only generally acknowledged way to determine whether it exists or not is by putting down a well. Id.**
- **36. Consumers' Gas Trust Co. v. Littler, 162 Ind. 320, 70 N. E. 863.**
- **37. Tenn Oil, Gas & Mineral Co. v. Brown \[C. C. A.\] 131 F. 696.**
- \*\*38. Information resulting should be such as prudent and experienced investor would require before developing mine. Superficial exploration held insuMicent. Tenn, Oil, Gas 4 Cur. Law. MINES AND MINERALS SS 7.

A contract giving one the exclusive right to put down a gas well, and providing that it shall terminate when natural gas shall cease to be used for manufacturing purposes, or when the rental shall not be paid for a certain period, is not terminated by the mere failure to pay such rental." The owner of the property in such case may either elect to put an end to the contract and recover what is due him, or may waive the forfeiture and enforce payments as provided for in the contract."

_Forfeitures_ are not favored and contracts looking to them will be strictly construed." If the causes for a forfeiture of a lease are distinctly specified and recited therein, courts will not decree a forfeiture for breaches of other provisions for which the parties themselves have not prescribed that penalty." The owner must give a reasonable notice of his intention to declare a forfeiture." A demand for a forfeiture at a time when he is not entitled to it is without legal significance." It is equivalent to a denial of the company's right to enter on the land for the purpose of making explorations and hence cannot operate as a notice to it to do so." The failure of the lessee to commence operations after the owner declares the lease forfeited cannot be regarded as a lack of diligence resulting in a forfeiture." In the abscence of a provision to that effect, the mere abandonment of an unproductive well will not work a forfeiture of an oil and gas lease." The fact that the owner takes possession after such abandonment is not inconsistent with continuing the contract in force."

A mere refusal to accept a sum which the contract requires to be paid annually until gas or oil is found does not work an immediate termination of the contract, but is an objection to further delay and requires the operator to proceed to drill for gas or oil within a reasonable time." What is a reasonable time depends upon the circumstances of the particular case." An agreement for de
day procured through fraud does not prevent a forfeiture.\[56\] Equity will not relieve a party from a forfeiture unless he can show good and sufficient reasons for noncompliance with the terms of the contract.\[57\]

The owner may waive his right to a forfeiture.\[58\] The right to forfeit an oil and gas lease is waived by accepting in advance an annual payment required by the contract to be made until oil or gas is found.\[56\] Where the lessor has done acts amounting to a waiver, his assignee acquires no right to declare a forfeiture for the same cause.\[60\]

_Abandonment_ of a lease is a question of intent, to be arrived at from all the evidence.\[61\] Lapse of time is evidence of abandonment, but is not conclusive.\[62\]

The death of the owner does not terminate the lease, though possession has not been taken thereunder.\[63\] A tenant, under an oil lease from a life tenant, who continues to take oil after the latter's death, is liable to the remainderman in trespass.\[64\]

Injunction will lie to prevent the invasion by a stranger of a tract on which plaintiff has the exclusive right to bore oil and gas wells, under an unexpired lease, and the threatened boring of a well by him for the purpose of extracting oil and gas without plaintiff's consent, whether he has actually made the entry or not, since the damages resulting therefrom would be difficult of ascertainment.\[65\]

The measure of damages for taking oil from the land of another unlawfully but under claim of right is the difference between what it sold for in the market and the cost of production.\[66\] The measure of damages for the use of timber by

**56. By conceessing fact that oil had been found in paying quantities. Instructions apprved. Guffey Petroleum' Co. v. Oliver** Where contract provides for furnishing free gas in lieu of rental, its acceptance prevents for jury whether there was an obligation on foreficture, though gas was not furnished from wells, developed on premises and no other rent was paid. Indiana Natural Gas standing agreement between plaintiff and defendant as to settlement of title. Id. The acceptance of such sum annually in ad-57. Equity will not relieve from forfeiture were work was not commenced until 11 months after lease was made, or though it printion of the year for which the last pay-was sunk 100 feet 9 days after time expired. Montroxona G. M. Co. v. Thatcher \[Colo. Appl. 75 P. 595. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 60. 61. 63. 64. 65. 66. 68. 69. 60. 61. 64. 66. 69. 61. 65. 66. 67. 68. 69. 61. 66. 69. 62. 63. 64. 66. 68. 69. 60. 61. 67. 68. 69. 60. 61. 69. 62. 64. 69. 63. 65. 66. 67. 68. 69. 60. 61. 68. 69. 61. 69. 62. 64. 69. 63. 66. 67. 68. 69. 60. 61. 69. 60. 62. 64. 69. 61. 68. 69. 61. 69. 62. 63. 64. 65. 66. 67. 68. 69. 61. 69. 63. 67. 68. 69. 60. 61. 69. 60. 62. 64. 69. 61. 69. 62. 65. 66. 67. 68. 69. 61. 69. 60. 63. 67. 69. 61. 68. 69. 62. 69. 63. 64. 66. 68. 69. 60. 64. 69. 61. 69. 62. 65. 66. 67. 68. 69. 61. 69. 60. 61. 69. 62. 66. 69. 63. 64. 66. 68. 69. 61. 69. 60. 62. 66. 69. 61. 69. 62. 63. 64. 66. 67. 68. 69. 61. 69. 62. 66. 69. 63. 64. 66. 68. 69. 60. 64. 69. 61. 69. 62. 66. 69. 61. 69. 63. 64. 66. 69. 64. 66. 68. 69. 61. 69. 60. 61. 69. 62. 66. 69. 61. 69. 63. 64. 66. 69. 61. 69. 62. 66. 69. 63. 64. 66. 69. 64. 66. 68. 69.

a lessee under a mining lease for unauthorized purposes, but under a mistaken belief that he had a right to use it, is its value on the stump with interest from the date of the conversion."

SS 8. Working contracts."--The right to enter upon real.estate and dig for and remove ore is an interest in land, and hence the statute of frauds requires contracts concerning it to be in writing."

The terms of a contract giving one the right to sink a shaft on and mine coal under the lands of another control the extent of such right."

An agreement giving one an option to purchase certain property with the privilege of prospecting and mining thereon for a certain period is a license coupled with an interest." Where the licensees go into possession, perform labor, and make expenditures in pursuance thereof, it becomes irrevocable, and they are entitled to exclusive possession while the agreement remains in force." A parol license to mine on the land of another is revocable at the option of the licensor, notwithstanding the fact that an express promise was made at the time it was granted that it would not be revoked, and that expense has been incurred and improvements made on the strength thereof." The fact that a custom or usage exists allowing the licensee to remain and work out his prospect against the will of the owner does not change the rule."

Under an agreement giving one an option to purchase certain property with a license to prospect and mine thereon, for a certain period, all ore susceptible of milling to be sold by the owner and the net proceeds to be applied on the purchase price, the net proceeds are to be computed by deducting the cost of mining from the gross sum produced, and, in case it is shipped and reduced, also deducting the expense of freighting, sacking, and milling." The rule is the same whether the action is on the contract for damages for failure to turn over the ore to the owner, or for the recovery of ore sold by the licensees to another."

An agreement between two or more persons to explore the public domain and discover and locate a mining claim or claims, for the joint benefit of all, is not within the statute of frauds, and need not be in writing." In determining whether it constitutes a partnership, the intention of the parties as disclosed by the nature and effect of the whole contract and acts done thereunder must control." If, in pursuance of the agreement, one of the parties locates a claim in his own name, he holds the legal title to the interests of the others in trust for them."

The existence of a grub-stake agreement need not be proved beyond a reasonable doubt." The ordinary rules of construction apply to such contracts."

67. Lewis v. Virginia-Carolina Chemical Co. \[8. C.\] 48 S. E. 280. 882. 88. See 2 Curr. L. 902. 88. See Frauds, Statute of, $ 7, 3 Curr. L. 1529. Entrushistle v. Henke, 211 Ill. 273, 71 N. E. 990. 70. Contract held to give no right to remove coal mined on other land through shaft on plaintiff's land. Moore v. Price \[Iowa\] 101 N, W. 91. Evidence insufficient to authorize reformation of contract in that regard. Id.

71, 72. Hall v. Abraham, 44 Or. 477, 75 P. 882. 73. Entrushistle v. Henke, 211 Ill. 273, 71 N. E. 990. 74. Evidence conflicting as to existence of custom. Entrushistle v. Henke, 211 Ill. 273, 71 N. E. 990. 75, 76. Hall v. Abraham, 44 Or. 477, 75 P. 882. 77. 78. Shea v. Nillima \[C. C. A.\] 133 F. 209. 79. Agreement between allens not void, and one subsequently declaring his intention of becoming citizen may recover his interest in claim located in name of other. Shea v. Nillima \[C. C. A.\] 133 F. 209. Complaint sufficient. Id. Delay of between one and two years held not such inches as to bar recovery, where defendants not prejudiced thereby. Id.

80. Action to establish trust in claim. Rule requiring one seeking to establish trust contrary to express terms of deed to make out case clearly and satisfactorily beyond a reasonable doubt does not apply. Location notice not of dignity and solemmity of sealed . Money paid under a contract to develop a mine may be recovered if it is not used for the purposes specified.\[82\]

\_Drainage.--\_Where mines have a common drainage, and the draining of one necessarily drains the other, the cost of such drainage should be divided in proportion to the benefits derived therefrom.\[83\]

SS 9. \_Public mining regulations.\[54\]--\_The statutes of Pennsylvania authorize the summary removal of an inspector of mines for neglect of duty, incompetency, or malfeasance in office, on petition of fifty reputable coal miners, after a hearing by the court.\[85\] The proceedings must show clear statutory authority and follow the statutory provisions strictly.\[86\] The statute does not authorize a petition for removal because of ineligibility for the appointment, or want of confidence in the inspector by the miners.\[87\] The remedy for ineligibility or want of jurisdiction to appoint is by quo warranto.\[88\]

The statutes of Indiana provide both a criminal and a civil liability for the failure of owners of land or persons in control of wells to plug abandoned wells sunk for natural gas or oil.\[89\] In so far as the statute provides for criminal liability it must be strictly construed.\[90\] The act does not apply to one having a mere right to explore and operate on such land for oil and gas, and no duty rests on him to plug abandoned wells which he finds there.\[91\]

Matters relating to the liability of mine owners for injuries to their employees are treated elsewhere.\[92\]

SS 10. \_Statutory liens and charges.\[93\]--\_The statutes of California give a lien on mining claims to any person performing work thereon,\[94\] and make anyone having charge of any mining or of the erection or alteration of any building thereon, the agent of the owner for the purposes of such act.\[95\] The labor must be performed instrument. Morrow v. Mathew \[Idaho\] 79 \[Evidence sufficient to establish contract sued P. 196. Evidence sufficient to sustain findings that contract was entered into, and was red both before and after it was made. Id. performed by plaintiff on his part, and that Fact that defendant had no control over defendant was seeking to avoid its terms. Id. Plaintiff held not guilty of such knees as to bar recovery. Id. Where one of the defendants had disposed of his interest held proper to take plaintiff's interest out of holdings of other, both being guilty of fraud and conspiracy. Id.

SS1. Contract between plaintiff and defendant held not to entitle former to interest in mining lease purchased by latter in company with others, where he had notice of facts but failed to claim interest until claim had been developed. McKenzie v, Coslett \[Nev.\] 78 P. 876.

SS2. Money exprended in cutting inclines, drifts and winzes, which either helped defendant directly in getting at its own or developed workings which might have shown ore belonging to defendant if they had not proved barren. Emple XIII, M. M. Cio. v. Tombstone Mill. & Mlin. Cio., 131 F. 839.

SS3. Cost equally divided. Fisk M. & M. Cio. v. Reed \[Colo.\] 77 P. 240. A contract by defendant to pay "its just and proper proportion" of draining contiguous mines held sufficiently definite. Complaint held to sufficiently state amount for which defendant was liable. Id. Averment that pumping was at defendant's request held unnecessary. Id. Contract having been executed held not void for want of mutually. Id. Evidence held to support findings that mines had common drainage and that plaintiff, by draining its own mine, drained that of defendant. Id.

SS4. \_Stutory liens and charges.\[93\]--\_The statutes of California give a lien on mining claims to any person performing work thereon,\[94\] and make anyone having charge of any mining or of the erection or alteration of any building thereon, the agent of the owner for the purposes of such act.\[95\] The labor must be performed instrument. Morrow v. Mathew \[Idaho\] 79 \[Evidence sufficient to establish contract sued P. 196. Evidence sufficient to sustain findings that contract was entered into, and was red both before and after it was made. Id. performed by plaintiff on his part, and that Fact that defendant had no control over defendant was seeking to avoid its terms. Id. Plaintiff's pumping operations held not to Id. Plaintiff held not guilty of such knees as to bar recovery. Id. Where one of the defendants had disposed of his interest held proper to take plaintiff's interest out of holdings of other, both being guilty of fraud and conspiracy. Id.

SS5. Act June 8, 1901, SS 19 (P. L, 545). In re Martin, 209 Pa. 266, SS A. 86, SS, SS. In re Martin, 209 Pa. 266, SS A. 86, SS. In re Martin, 209 Pa. 266, SS A. 86, SS. In re Martin, 209 Pa. 266, SS A. 86, SS. A. 86, SS.

in the actual work of mining or developing the claim.90 One not expressly authorized by the owner cannot be held to be his agent under this act unless he is engaged in doing some work upon the mine itself for the purpose of extracting ores therefrom.97

SS 11. \_Remedies and procedure peculiar to mining rights.98--In an action to recover possession of a mining claim, plaintiff cannot prevail against a defendant having prior possession under color of title, who did not by actual force oust him of actual possession.99

Where neither party has a perfected right to have a conveyance of title from the government, and the requirements of the statute providing for suits to determine questions respecting conflicting mining claims have not been complied with, the court can only adjudicate plaintiff's right to the exclusive possession of the land.1 The struggle is for possession only, and the parties cannot have a judicial determination as to which shall ultimately prevail in a contest for title.2

One suing to recover legal and actual possession of a claim which his grantor located as a placer claim assumes the burden of establishing a right of possession superior to the rights of defendants evidenced by their prior actual possession.3

Footnote 98: No lien for services of watchman caring for mine while it is idle. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

Footnote 99: Not sufficient to show that he was in possession under contract with owner under which he was empowered to make improvements and prosecective development work. Contracts inadmissible. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

Footnote 99: Under rev. St. L. U. S. 910 (U. S. Comp. St. 1901, p. 637), the case is to be determined by the law of possession. Bevis v. Markland, 130 F. 236.

1. Bevis v. Markland, 130 F. 255.

4 Cur. Law. -43.

Where one of two joint tenants of a mining claim fraudulently surrenders possession to third parties, his co-tenant cannot maintain ejectment against them, but his remedy is in equity.9 A bill averring that defendants' title was acquired under a relocation made in pursuance of a fraudulent conspiracy with plaintiff's partner, whereby the latter was to fail in his duty to perfect the original location, is sufficient to entitle plaintiff to treat defendants as trustees ex maleficio, and to recover from them as such trustees the materials taken from the mine.7 An injunction restraining further mining during the pendency of the suit will issue where it appears that some of the defendants are insolvent.9

Footnote 99: No lien for services of watchman caring for mine while it is idle. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

Footnote 99: Not sufficient to show that he was in possession under contract with owner under which he was empowered to make improvements and prosecective development work. Contracts inadmissible. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

Footnote 99: No lien for services of watchman caring for mine while it is idle. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

Footnote 99: Not sufficient to show that he was in possession under contract with owner under which he was empowered to make improvements and prosecective development work. Contracts inadmissible. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

98. See 2 Curr. La. - 503.

Under a statute providing that eigentment may be maintained by pleading and proving that plaintiff is entitled to possession and that defendant dispossessed him before the commencement of the action, one in possession of a mining claim under a lease, and claiming possession to the boundary lines may maintain ejectment against one entering on a part of the claim not actually occupied because the lessee did not know where the lines were.9

98. No lien for services of watchman caring for mine while it is idle. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

01. No sufficient to show that he was in possession under contract with owner under which he was empowered to make improvements and prosecective development work. Contracts inadmissible. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

01. See 2 Curr. La. - 503.

01. Under rev. St. L. U. S. 910 (U. S. Comp. St. 1901, p. 637), the case is to be determined by the law of possession. Bevis v. Markland, 130 F. 236.

01. Bevis v. Markland, 130 F. 255.

4 Curr. Law. -43.

98. No lien for services of watchman caring for mine while it is idle. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

01. Not sufficient to show that he was in possession under contract with owner under which he was empowered to make improvements and prosecective development work. Contracts inadmissible. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

01. No sufficient to show that he was in possession under contract with owner under which he was empowered to make improvements and prosecective development work. Contracts inadmissible. Williams v. Hawley, 144 Cal. 97, 77 P. 762.

01. See 2 Curr. La. - 503.

01. Under rev. St. L. U. S. 910 (U. S. Comp. St. 1901, p. 637), the case is to be determined by the law of possession. Bevis v. Markland, 130 F.

In an action to quiet title to an oil claim, plaintiffs must recover, if at all, on the strength of their own title \[10\].

An order granting the right to inspect the underground workings of a mine should determine and fix the means of access thereto \[11\], and should limit the examination to the workings of which it is necessary for the plaintiffs to have knowledge and to make surveys and maps \[12\]. Requiring the owner to lower and hoist the inspectors into the mine by means of its own appliances is not objectionable as a taking or damaging of its property without first making just compensation therefor \[13\]. The person seeking it must pay the cost of such inspection \[14\]. It is improper for the court to fix the cost of lowering the inspectors into and hoisting them from the mine without hearing evidence in regard to it \[13\].

Ministers of State; Minutes; Misjojober, see latest topical index.

**MISTAKE AND ACCIDENT \[16\]**

**SS 1. Definitions; Elements (674). # 3. Procedure to Obtain Relief (676). # 2. Relief Against (675).**

**SS 1.**\_Definitions; elements \[17\]--A mistake of fact is always a mental condition or conception \[18\]. A mutual mistake is one reciprocal and common to both parties, where each alike labored under the same misconception in respect to the terms of the written instrument \[10\]. Mistake, to be ground for equitable relief, must be of a material nature, and must be the determining ground of the transaction \[20\]. A mistake arising from an erroneous view of the legal effect of a dead in the chain of title 'is a mistake of fact against which equity will grant relief \[21\].

plaint and evidence sufficient to support \[which was in fact never passed, did not dejudgment for plaintiff. Moiina v. Luce \[Arriz\] 76 P. 602. Evidence sufficient to \[from the daughter, the property sustain finding that part of claim located \[could not be recovered after the daughter's by defendants was within boundaries of \[death. White v. Dotter \[Ark.\] 83 S. Vr. previously located claim owned by plaintiffs, 1052. A party is entitled to relief on the ground of mistake, only if such mistake was material to the transaction affecting its substance, and so important that it determined the conduct of the mistaken party \[of parties. Relief granted where a lease was made under the mistaken belief that the walls of the building were strong enough to support contemplated additional stories. Barker v. Fitzgerald, 204 Ill. 525, 68 N. E. 420. A mutual mistake of 23 feet in the depth of a city lot would be sufficiently substantial to warrant the intervention of \[equity, if established by the required proof.\] Abbro v. Gowland, 90 N. Y. S. 796. An alien may not have a contract for the exchange of lands resended on the ground that he was mistaken as to his legal right to acquire and hold reality and the other party's mistake as to his altenage, since such contract was not void, but could have been perfected by his inativization. Pembroke v. Huston, 180 Mo. 627, 79 S. W. 470. A sale of growing timber was at a stipulated price per race, and a certain sum was paid in advance. Upon the survey it was found that the total acreage amounted to less than the sum already paid. Heid, Cv. Code 1895, 88 3974, 3983, 3984, as to when equity will grant relief for mistake, do not apply; and that \[reduce may recover the excess paid vendor. Martin v. Peddy, 120 Ga. 1079, 48 S. E. 420. 21. As where the parties to a mortgage intended to cover husband's interest in land, 4 Cur. Law. MISTAKE AND ACCIDENT SS 2. 675

While reasonable diligence is required, relief on the ground of a mutual mistake will not be denied where it appears only that complainant might, had he done all in his power, have ascertained the truth.\[52\]

SS 3. _Relief against.\[23\]_--Reformation of a written instrument will be decreed by a court of equity only where the mistake is mutual;\[34\] or where there is a mistake on one side, and either fraud, surprise, undue influence, misapprehension, imposition, or like cause on the other;\[25\] or where the contract, as written, does not express the intended agreement of both.\[26\] Rescission or cancellation of the contract may be decreed either for a mutual\[27\] or unilateral mistake,\[28\] provided the situation is such that the parties may be placed in statin quo.\[29\] Equity will not grant relief for mistake of one party resulting from his own negligence.\[30\] Thus failure to read a written instrument executed by a party precludes relief,\[31\] unless he was unable to read,\[32\] or the other party was guilty of fraud.\[38\]

erroneously supposed a deed to the wife,

pursuant to an execution sale against the

husband, was valid. Livingstone v. Murphy

\[Mass.\] 172 N. E. 1012.

22. Barker v. Fitzgerald, 204 Ill. 525, 68

N. E. 420.

23. See 2 Curr. L. 904.

01. Coleman v. Illinois Life Ins. Co., 82 S.

W. 616; Jones v. Warren, 134 N. C. 590.

46 B. E. 740. Where by mutual mistake or

parts, certain lands included in a contract

were expressly reserved and exceeded in the

ded, equity gave the appropriate relief. Pinchback v. Bessemer Min. & Mfg. Co. \[N.

C.J 49 S. E. 106.

25. Jones v. Warren, 134 N. C. 390, 46 S.

E, 740. Neither law nor equity will relieve

against mistakes unless they are mutual, or unless the mistake of one party was

brought about by the conduct of the other.

Finks v. Hollis \[Tex. Civ. App.\] 85 S. W.

463.

001. Equity has jurisdiction to reform a

ded which by mistake of the draftsman

does not convey the estate intended. Nutall v. Natall \[Ky.\] 82 S. W. 377. Where parties

Master, 87 P. 63, F. \[Gurphy v. Shester,

through ignorance, inadvertence or lack of

appreciation of their acts, have executed a

349, 52; Brown v. Fagan, 71 Mo. 568; Voor-

writing which when legally construed does

not contain the intended contract, the in-

Alien s V. 421; Pearce v. Suggs, 85 French.

strument may be reformed by equity so as

724; Massey v. Cotton States Life Ins. Co.,

to embody the intended agreement. Deed

70 Ga. 74; Bonney v. Stoughton, 122 Ill.

reformed so as not to release a covariant

536.-From note in 65 Am. St. Rep. 500.

against use of the property for saloon purposes. Ulibein v. Matthews, 83 App. Div.

150 on him signs a contract, he is conclu-

57, 86 N. Y. S. 924.

27. A mutual mistake as to the extent, to

a material degree, of the interest to be con-

veyed, is ground for relief. Castleman v.

Mortgacor could not defend against a note

Castleman \[Mo.\] 83 S. W. 757. Where both

on the ground that he did not read it or

parties to a conveyance executed it under

know its contents, when he could have read

the mistaken belief that their grandmother

had made an election to take a child's part

W. 1109. One who signed a written com-

of an estate, and not a half interest for life

given her by will, there was a mutual mis-

take of fact, for which equity would set

\[W. Va.\] 47 S. E. 240. That some of the

aside the deed. Id.

28. Coleman v. Illinois Life Ins. Co., 82

S. W. 616. A bidder on a public building

who, by excusable mistake, omitted an e-

state on a part of the work and made a bid

several thousand dollars lower than the

tended, is entitled to have his field rescended,

and to recover his deposit, having notified

induced by some action or representation of

the board receiving bids promptly and that

board having awarded the contract to the

Medicine Co. v. Hyman & Co., 117 Ga. 851, A mistake of only one party, whereby the written contract does not express his intention, is unavailing to him in an action thereon.\[34\] A mistake as to a separable portion of a contract does not affect its validity as a whole.\[35\]

As to relief for mistake of law, see note.\[36\]

SS 3. _Procedure to obtain relief.\[37\]--Evidence of a mutual mistake, such as to warrant reformation, must be clear, satisfactory, and convincing.\[38\] A mere pre-ponderance of evidence is not enough,\[39\] and a direct conflict of testimony is conclusive against reformation.\[40\] Where it appears that through mistake the intended contract is not expressed by the writing, parol evidence is admissible to show what the real agreement was.\[41\] But when the contract pursuant to which a deed is executed is inserted therein as an essential recital, and the description of the property is inconsistent with such recital, equity will make the correction upon inspection of the deed.\[42\]_

There is a conflict as to whether a pleading setting up fraud may be amended so as to allege mistake.\[43\] A merely defective allegation of a mutual mistake, if there be not a total failure to allege such mistake, is cured by verdict.\[44\]

45 S. E. 288. Failure to read lumber con- to be different from that embodied in the trater; party bound. Harrison v. Wilson Lumber Co., 119 Ga., 45 S. E. 730.

82. One who does not know what he signs, because unable to read, is not bound by the contract. Melle v. Candelora, 88 N.

01. The doctrine that the carelessness or negligence of a party in signing a writing estops him from afterwards disputing its contents is not applicable in a suit between the original parties thereto, or where the defense is that, by reason of fraud, it does not embrace the contract actually made.

Spelts v. Ward, 2 Neb. Unoff. 177, 96 N. V.

56.

01. Contract for sale of land. Harmon v. Thompson \[Ky.\] 84 S. W. 569.

01. Including one Item, not owned by the policy holder, among the items insured, by mistake, does not affect the validity of the contract of insurance as to the other items. Herzog v. Palatine Ins. Co. \[Vash.\] 79 P.

01.

01. Note: For a mistake of law, pure and simple, there is generally no remedy. Lane v. Holmes, 55 Minn, 379, 43 Am. St. Rep., 508; McDanelis v. Bank of Rutland, 29 VT. 230, 70 Am. Dec. 406. But if the mistake is caused by fraud, Imposition or misrepresentation, etc., relief may be had in a court of equity. Kyle v. Pehley, 81 Vbis. 67, 29 Am.

01. Rep., 866; Haviland v. Willettle, 141 N. T.

35, 50; Jordan v. Stevens, 51 Me. 78, 81 Am.

Dec. 565; Benson v. Markbe, 37 Minn, 30, 6, Am. St. Rep., 816; Harridge v. Mithon, 51 Ala. 151; Moreland v. Aichson, 19 Tex. 303; Dile v. Shahan, 25 Ala. 694, 60 Am. Dec. 540.

Mistake of law and fact combined is a good ground for equitable relief, especially if it does not result in injury to the opposite party. Lane v. Holmes, 55 Minn, 379, 43 Am. St. Rep. 505; Estate of Woodburn, 138 Pa. 606, 21 Am. St. Rep. 932; Freeman v. Curtis, 51 M. 140, 81 Am. Dec. 564; Haviland v. Willettle, 141 N. T. 35--From note to Alabama, etc., R. Co. v. Jones \[Miss.\] 55 A.

S7. See 2 Curr. L. #05.

38. Evidence that agents who made contract of insurance understood the agreement Money Counts; Monze Lent; Money Paid; Money Received; Monopolies; Monvality Tables, see latest topical index.

MORTGAGES.

S 1. Nature and Elements of MortgagesPossession by Mortgagee (690). Right to (678). Possession (691). Payment of Taxes (691). Insurance (691). Right to (680). Recording (680). Fraud, Illegality and Dureses (681). $ 3. Absolute Deed as Mortgage (682). Defeasance (683). Once a Mortgage, Always a Mortgage (683). Mortgage or Conditional Sale (683). Mortgage or Assignment (684). Evidence (684). Relief Grant-ed (685). Costs (685). $ 4. Equitable Mortgages (685). $ 5. Nature and Incidents of Trust Deceds as Mortgages (686). Powers and Dules of the Trustee (686). Sale of the Premises (687). $ 6. Construction and Effect of Mortgages In General (688). Conflict of Laws (688). Property and Interests conveyed (688). Debts Secured (689). Reformation (701). $ 13. Redemption (701). Procedure to (688). Debts Secured (689). Reformation convey (702). Demages for Refusal to Re- (689). $ 7. Title and Rights of Parties (690). $ 14. Subrogation (703).

Scope of topicThis article is devoted to the mortgage as an instrument and the substantive rights growing from it. An earlier topic\[45\] has fully treated the procedure by which mortgages are foreclosed. The doctrine of notice and the operation of the recording acts,\[46\] the application of the statute of frauds,\[47\] the effect of the mortgage as an incumbrance,\[48\] and the purchase of lands subject to mortgage,\[49\] are treated elsewhere.\[50\] Mortgage within this topic means only those of land or interests therein.\[51\] A mortgage may be regarded as one on land which having been given as money has been "mortgaged" by the heirs.\[52\] A mortgage of a leasehold of more than three years is a "real estate" mortgage in New York\[53\] and when recorded as such need not be refilled as a chattel mortgage.\[54\]

Judicial mortgage in Louisiana signifies the lien which a judgment creditor has.\[55\] A judicial mortgage does not result from the registry of an unsigned judgment.\[56\]

inconsistent cause of action. Castleman v. 973; Vendors and Purchasers, 2 Curr. L. Castleman \[Mo.\] 83 S. W. 757. Where the cause of action pleaded and relied upon at the trial was for fraudulent misrepresentations. L. 1976. $ 20. Rights and libilities between life that ground cannot be sustained on appeal on the ground of mutual mistake. An amendment to the pleading, setting up mutual mistake could not have been made over defendant's objection. Connell v. El Paso Gold Min. & Mill. Co. \[Colo.\] 78 P. 677. $ 44. Where the inclusion of 11 acres in dead was alleged to be due to "some mistake, Inadvertence, accident or miscalculation." the averment was held good after verdict. Lewis v. Batten \[Tex. Civ. App.\] 80 S. W. 389. $ 45. See Foreclosure of Mortgages on Land, 3- Curr. L. 148. $ 46. See Notice and Record of Title, 2 Curr. L. 1053. $ 47. See Frauds, Statute of, 3 Curr. L. 1527. $ 48. See Covenants for Title, 3 Curr. L. 153. $ 47. See Fravds, Statute of, 3 Curr. L. 1527. $ 48. See Covenants for Title, 3 Curr. L. 154. $ 49. See Covenants for Title, 3 Curr. L. 155. $ 49. See Fravds, Statute of, 3 Curr. L. 156. $ 49. See Covenants for Title, 3 Curr. L. 157. $ 49. See Covenants for Title, 3 Curr. L. 158. $ 50. $ 51. Payment of Taxes (691). Insurance (691). Insurance (691). Right to the Compensation In Conclamation Proceedings (692). Rights of Successive Mortgages (692). Rights of Successive Mortgages (693). $ 68. $ 68. $ 7. $ 8. $ 8.

678

MORTGAGES $ 1.4 Cur. Law.

_Nature and elements of mortgages._${}^{57}$--A mortgage is a conveyance by way of pledge defeasible by the payment of the debt or obligation.${}^{58}$ It does not in most states create or alienate an estate in the land.${}^{50}$ Under a statute declaring it to be a conveyance, it is a conveyance of a mere chattel interest.${}^{60}$ The debt is the principal obligation,${}^{61}$ the mortgage merely an incident,${}^{62}$ and when the debt secured is declared void, the mortgage ceases to be a lion.${}^{63}$ The relation of debtor and creditor must exist.${}^{64}$ Any transfer of property as security regardless of the form by which it is characterized creates the relation.${}^{65}$ No particular form of words is necessary to create a mortgage.${}^{66}$

_Property subject to mortgage._${}^{67}$--A bare possession may be mortgaged.${}^{68}$ In Texas the homestead cannot be mortgaged.${}^{69}$

S7. See 2 Curr. L. 906.

Benton Land Co. v. Zeitler, 182 Mo. 251, 81 Note: See Tifany, Real Property, p. 1165, 8, V. 193. So long as the debt is enforceability and evolution of mortgage.

able, the mortgage has an equity in the 58. Fabrique v. Cherokee & P. Coal & Man. Co. \[Kan.\] 77 P. 584. And see Cyc. Law 96 N. W. 350.

Dict. "Mortgage."

SG3. Note given by a married woman secured by a mortgage on her property given a contract whereby specific property is hy-potencated for the performance of an act \[Burns Ann. St. 1901, # 6964, a contract of without necessity for a change of posses-sion. Mueller v. Rencks \[Mont.\] 77 P. 512.

Held, the note and mortgage were void. The mortgage continues the real owner, \[Th. Wagre Trust Co. v. Shiler \[Ind. App.\] and may grant a light and air easement 72 N. E. 494.

over the property so long as mortgages are not prejudiced. Wood v. Grayson, 22 App.

Min. Co. \[Kan.\] 77 P. 584; Beebe v. Wisconsin Morts. Loan Co., 117 Twis. 328, 93 N. W.

upon insured property is not a violation of 1103. Evidence held to show that a lease the covenant against change of title. Aetna was not intended as a mortgage. No en-Ins. Co. v. Jacobson, 105 II. App. 283. Where a prospective vendee refuses to complete the sale, the vendor can maintain an action for damages, pending which he may mortgage unlimited in time and not predicated upon the premises. Such act will not constitute an abandonment of the contract. Harmon v. Thompson \[KY.\] 84 S. W. 569. See state-

shov that a mortgage was executed to se-ment of the varying doctrines and align-

cure the mortgage from loss under an intent of states adhering to each. Cyc. Law

Dict. "Mortgage."

60. Mueller v. Rencks \[Mont.\] 77 P. 512.

him as her agent, Conlon v. Minor, 89 N. Y.

61. A feed of trust executed to secure the repairment of money to be advanced at a future date on condition that if the money was not advanced the deed should be canceled would not create a llen if the money was never advanced. Schneider v. Sellers \[Tex. Civ. App.\] 81 S. W. 126. Where the execution of the secured note is denied, it is not admissible in an action to foreclose

gal title to property at a shelr's sale unwithout proof of execution. Stoddard v.

Lyon \[S. D.\] 99 N. W. 1116. Where the maker denelis the genuineness of notes

for the amount paid, the relation of debtor cured by a mortgage, the burden is on the mortgage to prove the notes are in exist-

ence and that they were in fact executed by the mortgage. Bruce v. Wawner \[S. D.\]

Co., 117 Wis. 328, 93 N. W. 1103. It may be established by parol that the purpose of a writing or several writings was intended as a mortgage, though they bear on their face

In an action to foreclose where no judge-

ment against the makers of the mortgage

note is destred, it is necessary that the note

be produced in evidence it its execution is denied. Stoddard v. Lyon \[S. D.\] 99 N. W. 1116.

62. An outstanding mortgage or deed of

trust before foreclosure is not a bar to re-

every in ejecentent as between persons not

claiming under such deed or mortgage,

though the conditions have been broken.

_In proceedings to establish_ a mortgage, all persons having an interest in the property must be made parties.\[70\] Evidence of the circumstances surrounding the transaction is admissible.\[71\]

SS 2. _General requisites and validity.\[72\]_--The mortgagor must have some interest in the property mortgaged,\[73\] and authority to execute the mortgage.\[74\] If a probable interest is apparent, the mortgage is not void on its face.\[75\]

_Description.\[76\]_--As a general rule any description by which the premises may be identified\[77\] or ascertained by investigation aliante is sufficient.\[78\]

_The consideration\[79\]_ need not be furnished by the mortgage.\[80\] An equitable mortgage is a good consideration and justification for the giving of a formal mortgage, where in the absence of the equitable right, a valid security could not be given because of the rights of creditors.\[81\]

formed an intention to and were preparing to abandon it. Delaney v. Walker \[Tex. Fenny v. Weeems, 139 Ala. 270, 35 So. 83. Civ. Appl. 79 S. W. 601.

**76.** See 2 Curr. L. 914, n. 55 et seq.

\*\*Homestend can be mortgared in most states, but the wife must join else the mortgage is junior to it. See post, $ 2 and "A certain tract or parcel of land known".

**76.** Continent remaindermen. New York

**77.** See 4 Trust Co. v. Schoenberg, 87 App.

**78.** See 4. N. Y. S. 859.

**79.** Vizard v. Moody, 119 Ga: 918, 47 S. E.

**79.** See 2 Curr. L. 906.

**79.** A trust deed by one who has no title is void. Whitlock V. Cohn \[Ark.\] 80 S. W.

**79.** Where one executes a deed as secutiv and takes a bond for a recovevance which is transferred to another who pays the debt and takes a conveyance from the prusched by the mortgagor and upon truste, the right of a mortgage in a mortgage is awarded by the original owner after the execution of the security deed depends upon the mortgage antedting the transfer of the bond for a recovevance. Rountree

**79.** See 4. N. Y. S. 859.

**79.** A trust deed by one who has no title is void. Whitlock V. Cohn \[Ark.\] 80 S. W.

**79.** A \*\*(**79.** See 4. N. Y. S. 859.

**79.** See 50. N. Y. S. 869.

**79.** See 51. N. Y. S. 869.

**79.** See 52 Curr. L. 906.

**79.** See 53.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 54. N. Y. S. 869.

**79.** See 55.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 56.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 57.\*\* See 58. N. Y. S. 849.

**79.** See 59.\*\* See 50. N. Y. S. 869.

**79.** See 50.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 51. N. Y. S. 869.

**79.** See 52 Curr. L. 906.

**80.** The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 53.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 54. N. Y. S. 869.

**79.** See 55.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 56.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 57.\*\* See 58. N. Y. S. 869.

**79.** See 59.\*\* See 50.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 50.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 51. N. Y. S. 869.

**79.** See 52 Curr. L. 906.

**79.** See 53.\*\* The mortgage can enforce the mortgage in equity withstanding. Palmer v.

**79.** See 54. N. Y.

_A stipulation" that maturity may be accelerated for default_ in payment of interest is valid," but is deemed waived by acts tending to mislead the mortgagor." A mortgagor who leaves his usual place of abode without giving the mortgagee notice of his future whereabouts waives his right to notice of the mortgagee's election to declare the entire debt due." A stipulation that a power of sale may be executed in another state is valid." A void stipulation does not affect the validity of the mortgage."

_Recitals_ which constitute mere surplusage may be disregarded."

_The signature."_."\_If the signature is denied," the burden of proving it to be genuine is on the party claiming it to be valid." A mortgage of the homestead must be signed by the wife," but an acknowledgment of a mark as her signature is sufficient."

_A seal_ is not necessary."

_Acknowledgment_" as a general rule is not necessary to the validity of a mortgage," except to make it recordable against subsequent takers." But when required it must be taken by a disinterested officer" in the manner prescribed by law."

_There must be an acceptance,1_ but if beneficial an acceptance will be presumed."

_Recordation._--A statue requiring a mortgage to be recorded does not apply to an agreement extending the time of payment of the mortgage debt." Where

**82. See 2 Curr. L, 907, n. 43.**

**83. First Nat. Bank v. Citizens' State**

Bank, 11 Wyg. 32, 70 P. 726.\*\*

**84. The mortgage note provided that on default in payment of interest, all principal and interest should become due at the option of the holder. An assignee requested the mortgagor not to pay the interest at the appointed place, stating that he would call or it. Lawrence V. Ward \[Utah\] 77 P. 229.**

**85. Julien v. Model Bldg., Loan & Investment Ass", 116 Wyg. 79, 92 N. W. 561.**

**86. Express provision in a deed of trust. Vizard v. Moody, 119 Ga. 918, 47 S. E. 484.**

**87. A sale in such place is valid, notwithstanding it is of a quasi judicial character. Id.**

**87. A void stipulation for the payment of taxes on the mortgage debt does not render the mortgage void for usury. First Nat. Bank v. Glenn \[Idaho\] 77 P. 623.**

**88. "This mortgage is just to include a sufficient amount of said farm to secure the debt" does not render the mortgagee void. Watts v. Parks, 25 Ky. L. R. 1908, 78 S. W. 1125.**

**89. See 2 Curr. L, 906, n. 29 get seq.**

**89. Where a mortgagor disputed his signature for the reason that it was blurred, evidence held insufficient to show that it was forged. Colbert v. Moore, 185 Mass. 227, 70 N. E, 42.**

**91. Under Rev. St. 1988, 5 4192, that such a signature is presumed valid until denied under oath. Ellis v. Hof \[Wis.\] 101 N. W. 368.**

**89. Evidence held insufficient to prove the genuiness of a signature. Id. Possession by the mortgage of a mortgage note is insufficient proof of its execution where such execution is denied. Stoddard v. Lyon \[B. D\] 99 N. W. 1116.**

**92. If not, it is void. Lester v. Johnston, 137 Ala, 194, 33 So. 880.**

**83. First Nat. Bank v. Glenn \[Idaho\] 77 P. 64.**

**94. Where the execution of a mortgage is admitted, the fact that it is not under seal is not ground to exclude it from evidence. Vizard v. Moody, 119 Ga. 918, 47 S. E. 348.**

**95. See 2 Curr. L, 906, n. 30, 45.**

**96. See Acknowledgments, 3 Curr. L, 31.**

**97. See Notice and Record of Title, 2 Curr. L, 1053.**

**98. Acknowledgementment taken by a director and stockholder of a building and loan as-sociation mortgage is void. The instrument creates no liean. Fugman v. Jirl Wash-mention Bldg. & Loan Asse", 209 III. 176, 70 N. E, 644.**

**99. Under Rev. St. 2770, the wife must sign and acknowledge separately and apart from her husband before an officer who shall appraise her of her right. First Nat. Bank v. Citizens' State Bank, 11 Wyg. 32, 70 P. 726.**

**1. E**Evidence held to show that a mortgage was accepted. Holders of the debt secured had caused it to be foreclosed. Huber v. Jennings-Heywood Oil Syndicate, 111 La. 747, 35 So. 889. A grantee in a deed containing a mortgage assumption clause who never accepts the deed is not bound by it. Merriman v. Schmitt, 211 III. 263, 71 N. E. 986.\*\*

\*\*2. An absent person has the benefit of a mortgage in his favor executed and recorded by the mortgagor, though not accepted by the mortg a separate book is provided for the recordation of mortgages, the instrument entitled to record must be a mortgage in form.4 A written assignment is a conveyance within the recording act of New York.5 So is an agreement for an extension and reduction of interest rate.6

_Fraud, illegality and duress.7--A mortgage may be set aside for fraud,8 if established,9 illegality of consideration,10 or duress,11 and the fact that in executing the mortgage the mortgagor was guilty of compounding a felony, will not preclude him from seeking this relief.12 The right to cancellation for duress passes to a purchaser of the land.13_

_The law of pledges_ is distinct from that of mortgages and receives separate treatment.14 In Kansas the lion of a pledgee is subject to strict foreclosure; that of a mortgage is not.15\_

\_In mortgages by married women,16 the husband must join.17 Her mortgage may be valid, though the bond it is given to secure is void.18 A mortgage charging her separate estate with a debt due from herself and husband is valid in equity,19 unless by statute she is forbidden to enter into contracts of suretyship.20 Under such a statute, a mortgage of property held by husband and wife as tenants by entirety is void.21 And where a conveyance to the husband was resorted to as a subterfuge to evade this law, the mortgage will not be allowed to stand.22 The fact that she made false representations and is bound by an estoppel in pais does

shall be void as against subsequent pur-chasers and creditors. Kraft v. Holzman, 206 III. 548, 69 N. E. 574.

**4.**: Civ. Code, $ 1171 provides that absolute deeds shall be recorded in one book and mortgages in another. Held that the fact that an absolute deed can be shown to be a mortgage does not authorize its recordation in the mortgage book. Kent v. Williams \[Cal.\] 79 P. 527.

**5.**: Voideman v. Pech, 92 N. Y. S. 493.

**6.**: Void if not recorded. Weideman v. Pech, 92 N. Y. S. 493.

**7.**: See 2 Curr. L. 906, n. 32 et seq.

**8.**: Where necessities of the mortgagors known to the mortgages were taken advantage of by him and the instrument executed without due consideration. Laipn v. Crawford \[Mo.\] 85 S. W. 535. A deed of trust from a client to his attorney may be canceled for fraud and return of the money advanced is not a condition precedent. Jinks v. Moppin \[Tex. Civ. App.\] 80 S. W. 590.

**9.**: Evidence held to show that a mortgage was not procured by fraud. Simmons v. Reinhardt, 25 Ky. L. R. 1804, 78 S. W. 890.

**10.**: Evidence held to show that a mortgage was not a part of an illegal lobbying contract. Reynolds v. Britton, 92 N. Y. S. 2. Where partaking of the nature of a scheme of chance, the purchase of debentures, as a condition for obtaining a loan, renders the mortgage securing the loan not enforceable. Heintz v. Sawyer, 5 Ohio C. C. (N. S.) 249. The mortgage, the enforcement of which would amount to a penalty, will not be entertained in equity. Greenville Bldg, & Loan Ass'n v. Wholey \[N. J. Eq.\] 53 A. 541.

**11.**: Threats to send the mortgagor's son to the penitentiary unless the father secured a debt of the son by a mortgage. Gray v. Freeman \[Tex. Civ. App.\] 84 S. W. 1105.

**12.**: Gray v. Freeman \[Tex. Civ. App.\] 84 S. W. 1105.

**13.**: Gray v. Freeman \[Tex. Civ. App.\] 84 S. W. 1105. The deed from the mortgagor is admissible. Id. The original petition by the mortgagor for the same relief is admissible. Id.

**14.**: See Pledges, 2 Curr. L. 1243. Where a chose in action secured by mortgage is pledged, the mortgage foreclosed and title taken by the pledgee under the sheriff's deed and possession taken by him, the title is used in him and is substituted for the pledged choses in action and is governed by the law of pledges, not of mortgages. Blood v. Shepard \[Kan.\] 77 P. 565.

**15.**: Blood v. Shepard \[Kan.\] 77 P. 565.

**16.**: See 2 Curr. L. 907.

**17.**: Under $ 2208, Rev. St. 1892, the bond given by a married woman and mortgage on her separate estate to secure a loan must be joined in by the husband in order to render it valid. Equitable Bldg. & Loan Ass'n v. King \[Fla.\] 37 S. 181.

**18.**: The amount of the loan could be established without reference to the bond. Equitable Bldg. & Loan Ass'n v. King \[Fla.\] 87 S. 181.

**19.**: Being voidable, not void. Pape v. Lu-deman \[N. J. Eq.\] 59 A.

**20.**: Burns' Rev. St. 1 not preclude her from asserting the invalidity of such a mortgage where the mortgage was not deceived.23 A mortgage having notice of facts sufficient to put him on inquiry is chargeable with this as with all facts his investigation would have. disclosed.24

Footnote 23: The mortgage 4 Cur. Law. MORTGAGES SS 3.

and relationship of the parties, are to be considered.\[38\] It is not essential that the grantor be the mortgagor,\[36\] nor that the grantee be the creditor.\[37\] An agreement by the purchaser at a judicial sale to hold the property subject to the debtor's right to redeem, if entered into after the sale, must be in writing.\[38\]

_Defeasance.\[29\]--Where the transfer is in fact one for security, a promise to return is not essential.\[40\]_

_Once a mortgage always a mortgage.\[41\]--A_ deed intended as a mortgage\*\[2\] will remain a mortgage until the equity of reemption is cut off,\[43\] and the parties cannot by stipulation, however express or positive, render it anything else.\[44\]\_

_Mortgage or conditional sale.--If the nature of the conveyance is doubtful, it will be considered a mortgage rather than a conditional sale.\[45\] Whether an absolute deed and an agreement to reconvey constitutes a mortgage\[46\] or a conditional sale\[47\] depends upon the intention of the parties,\[48\] the nature of the transaction,\[48\] and the mutuality of the contract.\[49\] If time is of the essence of the contract, it is usually regarded as a conditional sale.\[51\] The test of the mortgage is the relation of debtor and creditor and the subsistence of a debt to be secured.\[52\]_

his mortgage has given him to obtain the \[Nat. Bank v. Moor \[Tex. Civ. App.\] 79 S. S. V. Graham, 140 Ala. 413, 37 So. 230. Executed by Illiterate persons to the wife of the attorney for the grantors for a con-sideration less than the value of the property. Burch v. Nicholas \[Ky.\] 80 S. W. 1132. 113. 113. 113. 113. 114. 114.

\_Mortgage or assignment.--\_The test is, was it intended to divest the debtor of his title. If not, it is a mortgage.\[53\] The validity of the transaction is to be determined by the law of preferences.\[54\]

_The proceeding to establish a mortgage\[55\]_ is equitable, and cannot be maintained unless the grantor shows a willingness and ability to redeem\[56\] and do equity.\[57\] A bill to have a deed absolute in form declared a mortgage may be entertained, though the land is outside the state.\[58\]

\_Evidence.\[59\]--\_The burden is on the party claiming it to be a mortgage to establish that fact.\[60\] It may be established by parol evidence.\[61\] The evidence must be clear and specific,\[92\] satisfactory as to credibility, unequivocal,\[63\] and reasonably conclusive.\[64\] A preponderance of evidence is sufficient.\[65\] Evidence of concurrent circumstances,\[66\] and acts of the parties relative to the transaction, are admissible.\[67\] Where the instrument is not ambiguous, the interpretation placed upon it by one of the parties is immaterial,\[68\] but if the nature of the transaction is doubtful, such interpretation may be looked to.\[69\] The fact that an absolute deed was

of the contract. On default the agreement was to be void. Smyth v. Reed \[Utah\] 78 P. 4:7. If the right to reurchase is not exercised within the time specified, it is foreclosed. McElmurray v. Blodgett, 120 Ga. 9, 47 S. E. 531. Conveyance is absolute, notwithstanding a separate written contract to reenvore within a certain time upon certain terms. Bates v. Sherwood, 5 Ohio C. C. (N. S) 63. 52. Fabrique v. Cherokee & P. Coal & Min. Co. \[Kan.\] 77 P. 584. See, also, ante, 81, 2.

53. A corporation while insolvent but in control of its property executed an instrument conveying its property to secure certain debts on the condition that when the debts were paid the instrument should be void. The truste to take possession, sell and hold the proceeds until the debt became dne, pay them and return the surplus to the grantor. Held a mortgage. Smead v. Chandler, 71 Ark. 505, 76 S. W. 1066. Such an instrument executed in Missouri is a mortgage within Sand. & H. Dig. 8509. 5091, relating to execution and recording of mortgages. Id.

01. In Missouri a corporation in control of its property may secure a creditor by a deed of trust, and a general assignment immediately thereafter will not invalidate the preference. Smead v. Chandler, 71 Ark. 505, 76 S. W. 1066. Such a ded is not void in Arkansas, notwithstanding a statute providing that none except certain preferences shall be allowed. Id.

01. See 2 Curr. L. 911. On motion for a nonsutit the court may decree an instrument to be a deed, though there is no technical nonsutit in equity. Morrison v. Jones \[Mont.\] 71 P. 607. A probate court has no jurisdiction to declare aded absolute to be a mortgage. Rook v. Rook, 111 III. App. 398.

01. Gerhardt v. Tucker \[Mo.\] 85 S. W. 55.

01. One seeking to have a contract to convey and a deed to be declared a mortgage cannot complain that the contract is void for insury. Malone v. Danforth \[Mich.\] 100 N. W. 445.

01. It being an action for relief from fraud, not an action dealing with title. Clark v. Segraves \[Mass.\] 71 N. E. 813.

01. See 2 Curr. L. 912, n. 16 et seq.

01. Evidence insufficient. Holmes v. Warner \[Cal.\] 78 P. 954.

01. Welborn v. Dixon \[S. C.\] 49 S. E. 232; Borrow v. Borrow, 34 Wash. 684, 76 P. 305. That a deed in which a grantee assumed a mortgage on the land was itself a mortgage. Hurd's Rev. St. 1903, c. 95, providing that every absolute deed intended as a mortgage shall be so considered. Merriman v. Schmitt, 211 III. 263, 71 N. E. 986. That a purehaser at a sheriff's sake agreed to reenvorey. Dickson v. Stewart \[Neb.\] 98 N. W. 1085; Foster v. Rice \[Iowa\] 101 N. W. 771. That party advancing money for another and taking title in his own name agreed to reconvorey. Borrow v. Borrow, 34 Wash. 684, 76 P. 305.

01. Absolute deed held to be what its face purported. Northwestern Fire & Marine Ins. Co. v. Lough \[N. D.\] 102 N. W. 160.

01. Testimony of one witness that the grantee promised to reconvorey on repayment of a sum paid by him on notes which he assumed, held insufficient after the grantee's death. Gerhardt v. Tucker \[Mo.\] 85 S. W. 552.

01. Evidence held insufficient. Dwyer Pine Land Co, v. Whiteman, 92 Minn. 55, 99 N. W. 362.

01. First Nat. Bank v. Moor \[Tex. Civ. App.\] 7 4 Cur. Law. Mortgages SS 4.

intended as a mortgage cannot be shown in an action for breach of warranty of title unless specially pleaded.70

\_Relief granted.--\_The land may be ordered sold if the mortgagor fail to reimburse the mortgage.71 The court will determine the right to possession.72

\_Costs.--\_The mortgagor is entitled to recover costs,73 but if the mortgage must enforce a sale of the property for the amount due him, the mortgagor must pay costs resulting therefrom.74

SS 4. \_Equitable mortgages.75--\_An equitable mortgage is a transaction to which equity attaches the character of a mortgage.76 It may arise from any writing.77 act,78 contract,79 or transaction80 from which can be read an intention to charge property with the payment of a debt; for example, where pursuant to contract one acquires title to property for the purpose of holding it as security.81 The fact that title is acquired through legal proceedings does not divest the transaction of its character.82 A contract to execute a mortgage upon the happening of a certain contingency is not an equitable mortgage,83 nor will an equitable mortgage be read into several instruments having a distinct legal significance.84

the mortgagee. Adams v. Hopkins, 144 Cal. 79. Where one contracts to execute a mortgage to secure a debt long overdue and then refuses to do so, he cannot complain of a decree charging the indebtedness on the land and ordering a sale thereof. Hamilton v. Hamilton, 162 Ind. 480, 70 N. E. 535. A loan was made for the purpose of enabling the borrower to purchase a home. It was agreed that the premises purchased should be held by the lender as security for the debt. Held that when the borrower refused to furnish the security the lender was entitled to have his claim decrered a llen on the premises. Hughes v. Mullaney, 92 Minn. 485, 100 N. W. 217.

Footnote 79: Where one contracts to execute a mortgage to secure a debt long overdue and then refuses to do so, he cannot complain of a decree charging the indebtedness on the land and ordering a sale thereof. Hamilton v. Hamilton, 162 Ind. 480, 70 N. E. 535. A loan was made for the purpose of enabling the borrower to purchase a home. It was agreed that the premises purchased should be held by the lender as security for the debt. Held that when the borrower refused to furnish the security the lender was entitled to have his claim decrered a llen on the premises. Hughes v. Mullaney, 92 Minn. 485, 100 N. W. 217.

**S0. A purchaser at Judicial sale and contemporaneous resale by executory contract to the delbtor whereby he is charged with a**

**the amount within that time. He**

**the matter without other consideration executed a dead to the wife of the person making the advancements. Held the transaction amounts to an equitable mortgage.**

**S1. Potter v. Kimball \[Mass.\] 71 N. E. 508. Where one agrees to advance money for the purchase of land, take title in his own name and convey to the real purchaser upon payment of the sum advanced, the transaction creates an express trust. Lucia v. Adams \[Tex. Civ. App.\] 82 S. W. 835. That no time is fixed for repayment does not render the transaction void. Id.**

**S2. By writ of summons and attachment and then by writ of entry, the fact that in the summons and attachment suit the execution was returned satisfied by levy on the property and in the writ of entry, execution for possession was issued, served and returned. Potter v. Kimball \[Mass.\] 71 N. E. 308.**

**S3. Agreement to execute a mortgage if**

**the disclosure proceedings were discontinued. Mathews v. Damanville, 91 N. Y. 8. 524.**

**S4. Where a person in feeble health contacted with a brother to care for her during life; that she would will him all her property, and in case she desired to be released from the contract she would pay him a reasonable compensation. The contract, will, and a power of attorney to manage her property was executed. Spence v. HuckIns, 208 Ill. 304, 70 N. E. 289.** _Limitations_ do not run against the right to redeem from an equitable mortgage until it is repudiated,\[85\] especially where the real nature of the transaction has been recognized by the parties and no prejudice has resulted.\[86\]

_The statute of frauds_ is no defense to an action to enforce a mortgagor's rights under an equitable mortgage.\[87\]

SS 5. _Nature and incidents of trust deeds as mortgages.\[88\]--A_ deed of trust to secure a debt though sometimes called a mortgage is essentially different.\[89\]

Statures applicable to mortgages may be inapplicable to trust deeds.\[90\] The doctrine that the cessation of the duties and powers of a trustee operates to carry title to the beneficiary has no application to a deed of trust to secure a debt.\[91\]

The trustee holds the legal title as security only, and when the debt is paid it reverts without a reconveyance,\[92\] and while a satisfaction of the debt determines his power to sell, his deed thereafter will convey the apparent legal title;\[93\] but his grantee with notice of the trust is liable to the beneficiaries for the value of the land.\[94\]

A trust deed can pass no greater interest than the grantor has.\[95\]

The ded well be construed according to the import of its terms.\[96\]

A pre-existing debt is a sufficient consideration.\[97\]

The grantor cannot defeat the operative effect of the instrument.\[98\]

_Powers and duties of the trustee.\[99\]_--A\_ trustee is the agent for both debtor and creditor,\[1\]

and should not be a contesting litigant in the matter of which he is trustee.\[2\]

Under a mortgage securing bonds he represents the bondholders.\[3\]

His rights, powers and duties are defined and limited by the instrument,\[4\]

and cannot

**85, 86.** Potter v. Kimball \[Mass.\] 71 N. E. \[provision in a trust deed that in case of the absence of the trustee "the then sheriff of the county" should succeed to his powers and sell the property in case of default in payment of interest means the person who was sheriff at the time of the default. Mc-

v. Muthal Ben. LLife Ins. Co., 181 Mo.

operate to divest the trustee of his legal title. Leech v. Karthaus \[Ala.\] 37 S. 68. 68. 90. A statute providing that payment of the mortgage debt divests the title under the mortgage. Leech v. Karthaus \[Ala.\] 37 S. 68. 68. 91. Since the payment of the debt operates to divest the cesut que trust, the creditor, of any interest. Leech v. Karthaus \[Ala.\] 37 S. 696. 92. Benton Land Co. v. Zeitler, 182 Mo. 251. 81 S. W. 193. His grantee can convey good title to a bona fide purchaser. Schneider v. Sellers \[Tex.\] 84 S. W. 417. 94. Schneider v. Sellers \[Tex.\] 84 S. W. 417. 95. Executed by one who had but a one-fourth interest. Berner v. German State Bank \[Iowa\] 101 N. W. 156. 96. A conveyance to trustees to sell and pay certain parties "the amounts they were bound for on certain notes" does not secure the notes. Taylor v. Skiles \[Tenn.\] 81 S. W. 1258. A conveyance containing full co-enants of warranty and purporting to convey all the interest of the grantor, but subject to the condition that the land be held in trust, to be sold and the proceeds applied to the payment of the grantor's debts, the balance, if any, returned to the grantor, bypassed the fee. Thompson v. Price \[Vwash.\] 79 P. 951. The grantor was not a necessary party to an action to foreclose a mortgage executed prior to the trust deed. Id. A be delegated unless under express authority.5 He does not control the debt and cannot assert the rights and equities of the beneficiary to any extent beyond the powers expressly conferred.6 Powers conferred by a deed of trust are strictly construed. Substitute trustees must be appointed,7 the powers executed,8 and the proceeds of a sale applied in the manner prescribed.9 If he is the beneficiary he may extend the time for payment of the debt.10 Under a provision that on failure of the trustee to act the owner of the debt may appoint a substitute trustee, an administrator of the owner of the debt may appoint a substitute trustee to execute the power in another state.11

Footnote 10: https://www.math.mit.edu/~m/

\_Sale of the premises.12--It is the duty of the trustee when requested to execute the power of sale contained in the deed.13 When a postponement of an acreud right to exercise the power of sale would prejudice the beneficiaries, it may be refused.14 Where there is an agreement for an extension of time between the owner of the debt and the grantor, an action for damages may be maintained against the creditor for a breach of such agreement,15 or an action may be maintained against a purchaser with notice to set aside the sale.16 In Maryland he cannot exercise the power of sale before giving a bond.17 He is personally responsible for breach of his duty.18

Footnote 10: https://www.math.mit.edu/~m/

_The security deed peculiar to Georgia19 has had its status fixed by the judicial decisions of that state.20 It conveys the absolute legal title,21 which the grantee holds for the owner of the debt.22 The interest of the grantor is not affected by_

Footnote 10: https://www.math.mit.edu/~m/

\_shows such an impediment to the exercise of administration in that state. Peacock v. of his power as renders it inequitable for him \*to proceed without the authority of the court. George v. Zinn \[W. Va.\] 49 S. E. 904. The existence of prior or subsequent items on the property is not such an impediment where there is no such dispute as to the amount as would deter bidders from offering a full and fair price. Id. Nor is the possibility of a right of subrogation and marshaling of assets in the trust creditor desirring the sale. Id. 5. Polliham v. Reveley, 181 Mo. 622, 81 S. 904. 182. 183. 184. 185. 186. 187. 188. 188. 189. 190. 191. 204. 192. 205. 206. 207. 208. 209. 209. 210. 211. 212. 22. 23. 24. 25. 26. 27. 28. 29. 209. 211. 22. 24. 28. 29. 212. 25. 26. 28. 29. 213. 214. 215. 216. 217. 218. 219. 220. 221. 23. 24. 25. 26. 27. 28. 29. 221. 28. 29. 222. 23. 24. 26. 28. 29. 23. 24. 26. 28. 29. 24. 27. 28. 29. 25. 29. 26. 29. 27. 28. 29. 28. 29. 29.

the transfer of the debt or title.23 Where the maker and holder of a security deed agree on a sale of the land partly for cash and partly on time and for a division of the purchase money, and the prospective grantee fails to complete the purchase, the creditor is not liable to the maker of the deed for breach of such contract.24 The debtor or his subsequent judgment creditor may redeem.25 If a creditor redeem he can compel a reconveyance to the debtor and make the land subject to sale under his judgment.26 Redemption can be accomplished only by payment of the secured debt in full.27

SS 6. \_Construction and effect of mortgages in general.28--The intention of the parties may be looked to in determining the meaning of terms employed.29 A word importing a singular number may extend to and be applied to several.30 If executed to secure overdue debts, it will be deemed payable presently.31 Reasonable expenses incurred in the making of the loan will not render the transaction usurious.32 A mortgage given to secure one against loss as a surety is not usurious because for a sum in excess of the liability secured.33 A purchase money mortgage is not made contingent because it is to be paid in part by proceeds of a resale.34

_Conflict of laws.--A mortgage is governed by the law in force at the date of execution, and a law which affects rights acquired thereunder impairs the obligation of a contract.25 The law of the place of execution governs the ccnstruction.36 The law of the place where the property is situated governs its effect,37 but the courts of a state where a note secured by mortgage on property in another state is executed have jurisdiction on declaring the note to be void to enjoin foreclosure in the state where the property is located.38_

_Property and interests conveyed.39--A mortgage executed pursuant to a prior agreement relates back to the date of such agreement.30 It creates a lien on all_

23. He acquires no levable interest until the debt is paid. Shumate v. McLendon, 120 Ga. 396, 48 S. E. 10.

01. Hudson v. Hudson. 119 Ga. 637, 46 S.

01. 874. The owner of the equity does not lose his interest in the land until he has been paid the purchase price of his equity. Id.

01. 26. Shumate v. McLendon, 120 Ga. 396, 48 S. E. 10.

01. A partial payment does not give the grantor a levable interest. Shumate v. McLendon, 120 Ga. 396, 48 S. E. 10.

01. See 2 Curr. L. 914.

01. "I draft hereby agree to give unto A mortgage Ilen to have and to hold said property as security, to be void on condition that the note be paid" is a mortgage and not an agreement to give a mortgage. Bray v. Ellison \[Ky.\] 83 S. W. 96. A patent ambiguity in a trust deed which is corrected by other expressions therein will be construed according to the manifest intent of the parties. Noe v. Wittbeck, 105 III. App. 502.

01. A mortgage rectiling "T" and "my." being signed by both husband and wife, included the wife, though she was not named in the body of the instrument and was sufficient as a mortgage of the homestead. Bray v. Ellison \[Ky.\] 83 S. W. 96.

01. Hamilton v. Hamilton, 162 Ind. 430, 70 N. E. 535.

01. The mortgage may be allowed reasonable expenses incurred in negotiating the loan, examination of the title, and inspection of the premises. Liskey v. Snyder \[W. Va.\] 49 S. E. 515.

01. A mortgage was given to secure a loan of the mortgage's credit. Heid, the fact that the mortgage was for a sum in excess of the note indorsed did not show the mortgage to be usurious, it being accepted as a mere indemity against loss. Bouker v. Galligan \[N. J. Eq.\] 57 A. 1010.

01. Iberia Cypress Co. v. Christen, 112 La. 451, 38 50. 491.

01. Law requiring a master's deed to be taken out within a specified time after the equity of redemption expires and on failure to do so, allowing the mortgage to recover possession, applied to a mortgage executed when there was no statutory limitation and no loss of righ by reason of failure to do so. Bradley v. Lighteap, 195 U. S. 1, 24, 25, 49 Law, Ed.

01. Smead v. Chandler, 71 Ark. 505, 76 S.

01. 106. A mortgage executed and record-ed in the state where the premises are located to secure bonds issued and payable in another state is governed by the law of the state where executed. Bramblet v. Commonwealth Land & Lumber Co. \[Ky.\] 83 S. W. 59.

01. Bowdle v. Jencks \[S. D.\] 98 N. W. 98.

01. Mortgage executed in Indiana on property in Missouri. Ft. Wayne Trust Co. v. Shiller \[Ind. App.\] 72 N. E. 494.

01. See 2 Curr. L. 914.

01. Is antecedent to a homestead claim arising on the date of the agreement and execution of the mortgage. Ferguson v. Walter Connally & Co. \[Tex. Civ. App.\] 76 S. W. 609.

## 4 Cur. Law. Mortgages $\\lx@sectionsign$ 6.689

property falling fairly within the description,\[41\] and if it purports to cover more than the mortgagor owns is valid as his interest.\[42\] Fixtures calculated to be for the permanent use of the reality\[43\] and appurtenances necessary to its enjoyment pass.\[44\] Where the extent of the right is not defined, it may be determined by what the parties have recognized as reasonably necessary.\[45\] In order that the lion may attach to after-acquired property, the terms of the instrument must be clear.\[46\] If because of mistake a mortgage does not include all the interests in the land intended to be included, the mortgage has a right as against the mortgagor to have a new mortgage covering the omitted portion;\[47\] but he is not entitled thereto as against subsequent mortgages and purchasers without notice.\[48\]

\_Debts secured.\[49\]--\_A mortgage is not security for any debt other than the one it was executed to secure.\[50\] A mortgage to secure funds to be advanced at a future date is not one to secure a liability contracted after the execution of the mortgage.\[51\]

\_Reformation.\[52\]--\_A mortgage will not be reformed to the prejudice of creditors without notice.\[53\]

## 5.4 Cur. Law-44.

- A married woman who executed with her husband a mortgage conveying all their interest is estapped to assert after his death Schmidt, 54 No. 515. See Bronson, Flixutres, estate and not a life estate in her if she $60 get seq.
- A2.4. Easement for light and air over an adjacent lot belonging to the mortgagor. Wood v. Grayson, 22 App. D. C. 432.
- A3.5. Wood v. Grayson, 22 App. D. C. 432.
- A4. Mortgage on a manufacturing plant tank and fixtures. Young v. Hatch \[Me.\]
- A50. A50.
- A61. It was supposed the land mortgaged constructively annexed ordinarily are carried by a mortgage of the freehold unless expressly excepted. Sands v. Pfeffer, 10 Cal. 259; Cunningham V. Voreton, 96 Ga.
- A62. Kliecos v. Kath, 40 IIL App. 99: Arnold v. Crowder, 81 Ill. 56, 25 Am. Rep. 280; Johnson's Exr v. Viseman's Exr, 4 Mete.
- A7. N. E. 1018.
- A8. The husband's land was sold under Minn. 67, 58 N. V. 1015, 31 Am. St. Rep. 452; Thomas v. Davis, 76 Mo. 42; Tate v. Pily \[Mass.\] 72 N. E. 1012. Grante in a Blackburne, 48 Miss. 1; Kettredge v. Woods, 3 N. H. 503, 14 Am. Dec. 833: Shecker v. Warren, 12 N. V. 170: Footnote V: footnotemark: , 96 that a husband releases his curtesy in land N. C. 265. 60 Am. Rep. 411: Prestion v. mortgaged by his wife is not notice that he Briggs, 16 V. 124; Tillman v. D. Lacy, 80 Ala. 103. The common-law rule that what-ever is annexed to the freehold becomes a part thereof has been held to apply in all its strictness (Gardner v. Finley, 19 Barb. \[N. Y.\] 127, although there is at present a tendency in the states where the mortgage is regarded as a mere security to modify the harshness of its application in relation to fixtures annexed subsequent to the ex-cuttion of the mortgage. See Bronson, Flixutres, 5 $6 est seq.
- Fistures annexed subsequent to the ex-cuttion of the mortgage are according to the weight of authority a part of the reality and cannot be removed during the life of the mortgage. Union Water Co. v. Murphy's Flat Fluming Co., 22 Cal. 631; Sechhouse v. Broward, 34 Pla. 503; Wood v. Whelan, 93 III. 163; Smith v. Goodwin, 2 Me. 537: Pierce v. George, 108 Mass. 78, 11 Am. Rep. 310: Harlan v. Harlan, 15 Pa. 507, 53 Am. Dec. 612; Frankland v. Moulton, 5 Wia. 1; Gunn-derson v. Swarthout, 104 Wis. 186, 80 N. W. 4 Curr. Law--44.
- A Curr. Law.\[45\]

## 7 Title and rights of parties

\_Nature of the mortgagor's interest.\[54\]--\_The mortgagore is regarded as the owner of the premises, and may as against all except his mortgagee or his assigns impose a servitude upon the premises.\[55\] He is entitled to possession\[56\] and to the rents and profits until his equity of redemption is cut off,\[57\] unless the premises are insufficient security for the debt,\[58\] or by the terms of the mortgago the mortgagee is entitled to possession.\[59\]

_The mortgagee's interest_ is an insurable one.\[60\] He may recover on his policy regardless of any other security he may hold.\[61\]

\_Estoppel as to title.\[62\]--\_Payment of interest on the loan does not estop the mortgagee to deny the validity of the mortgage.\[63\]

\_Assumption of possession by mortgagee.\[64\]--\_A mortgagee who purchases and goes into possession under a void foreclosure sale is a mortgagee in possession,\[58\] whether he takes possession with or without consent of the mortgagor.\[60\] A mortgagee in possession may maintain an action to have his rights adjudicated.\[67\] He stands in the place of and represents the mortgagor respecting the care of the property and the obligation of the tenant to make repairs.\[68\] On accounting,\[59\] he is liable only for the amount of rent actually received.\[70\] He cannot charge for repairs not essential to the preservation of the premises.\[71\] He is not chargeable for mortgagor who were not made parties to the foreclosure suit could not defeat the mortgage without paying the debt.\[10\]

The mortgagor who were not made parties to the foreclosure suit could not defeat the mortgage without paying the debt.\[11\]

_de. Investment Securities Co. v. Adams\[11\]_

_F7. To compel the holder of the legal title to redem or on failure to redemem to have the right of redemption barred.\[12\]_

_Hernern_v. Security Co.\[12\]_

_F8. He cannot charge the mortgagor for repairs which he was under no obligation to make. The mortgagor's tenant had ex-presy covenanted to make repairs.\[13\]_

_F8. Investment Securities Co. v. Adams\[11\]_

_F8. After the filing of a bill for the dissolution of a building and loan association which was in possession as mortgagor on-der a mortgage providing for such right until default, the mortgagee set up the default and prayed foreclosure and other ine.\[12\] The receivers collected the rent for leght days after the petition for foreclosure was filed. Upon foreclosure, the proceeds were insulfment to satisfy the debt.\[13\] The mortgage was entitled to have the rents collected by the receiver after her petition was filed applied to the payment of the deficiency.\[14\]_

_F8. A tenant_

4 Cur. Law. MORTGAGES SS 7. 691

a reduced rental acquieseed in by the mortgagor,\[72\] nor for an amount of the rents applied to the payment of back taxes and insurance which the mortgagor had failed to pay.\[18\] He cannot, in the absence of an express stipulation, recover compensation for his services in caring for the premises,\[14\] nor commissions on rents collected for his own benefit.\[75\]

_Limitations_ do not run against the mortgage debt while he is in possession.\[76\]

\_Right to possession.--\_A mortgage in a mortgage given to secure his support is entitled to possession,\[77\] unless from the terms of the mortgage a contrary intention can be inferred.\[78\]

\_Payment of taxes.--\_The mortgage is under no legal duty to pay the taxes on the premises,\[79\] but if he has paid them under the belief that he had a valid alien, he is entitled to recover the amount paid with interest,\[80\] and where he has the option of paying taxes and adding the sum to the amount of the claim, he may recover all sums necessarily expended,\[81\] but not sums he is not required to pay.\[82\]

\_Insurance.--\_Insurance procured by the mortgage for his own benefit does not inure to the benefit of the mortgagor.\[83\] Fraud of the mortgagor in procuring insurance on mortgaged premises for the benefit of the mortgagee is no defense to the mortgage's claim under the policy.\[84\] Conflicting interests between mortgagor and mortgage in an insurance policy insuring both their interests should be determined by one party suing on the policy and making the other defendant.\[85\]

\_Vaste.--\_A mortgage can recover for waste committed by strangers on the mortgaged premises.\[86\] The insolvency of the mortgagor is immaterial.\[87\] A mortgage was in possession. Spangenberg v. Schneder, 97 App. Div. 200, 85 N. Y. S. SS9.

72. Where the mortgage was to collect rent and apply it to the payment of taxes. etc., and to the payment of the debt, and the rent was reduced with the consent of the mortgage, the mortgagor, the difference between the original and substituted rental should not be credited on the debt. Wilmarth v. Johnson \[Wis.\] 102 N. W. 562.

01. Wilmarth v. Johnson \[Wis.\] 102 N. N. W. 562.

01. Chapman, C. Cooney, 25 R. I. 657, 57 A.

01. No agreement that he should be paid for such services, Barnard v. Paterson \[Mich.\] 100 N. W. 833.

Note: It is held by some courts (Brown v. South Boston Sav. Bank, 148 Mass. 300, 19 N. E. 832; Bradley v. Merrill, 91 Me. 340, 40 A. 132; Waterman V. Curtis, 26 Conn. 241) that a mortgage in possession is entitled to such commissions, or as it is some-times called, charges, for taking care of the estate; but the great weight of authority is against their allowance (French V. Baron, 2 Atk. 120; Elkmer V. Lopez, 25 N. J. E. 745; Turner v. Johnson, 95 Mo. 341, 7 S. W. 570; Allen v. Robbins, 7 R. I. 83; Brembaum v. Rowe, 2 Cal. 261; Harper v. Elk, 701 11, 851; Neptune Ins. Co. v. Dorsey, 3 M. Ch. 234. See Barnard v. Paterson \[Mich.\] 100 N. W. 893.

76. He may foreclose as soon as he dis-covers that the prior forecloser was void. Investment Securities Co. v. Adams \[Wash.\] 78 p. 625.

01. He may recover such possession whether there has been a breach of the condition or not. Davis v. Poland \[Me.\] 59 A. 520.

01. Where it is provided that support deal be furnished upon the mortgaged premises,\[79\] premises, Possession in the mortgagor in such case being necessary to enable him to perform the condition of the mortgage. Davis v. Poland \[Me.\] 59 A. 520.

01. The existence of a tax lien does not constitute a breach of a personal covenant suffered by the mortgage as grantor in the foreclosure dead. Stewart v. Wilson \[Ala.\] 37 No. 650.

01. Koerner v, Pfaff, 2 Ohio N. P. (N. S.)

01. Additional burden resulting in delay, interest, penalties and costs, First Nat. Bank v. McCarthy \[B.\] 100 N. W. 14.

01. Cost of procuring a tax dead and re-ordin it. First Nat. Bank v. McCarthy \[S.\] 100 N. W. 14.

01. Control of procuring a tax dead and re-ordin it. First Nat. Bank v. McCarthy \[S.\] 100 N. W. 14. A stipulation that the mortgagor should repay all money paid by the mortgage for taxes or on account of outstanding items does not apply to expense incurred in litigating unfounded claims adverse to the mortgage. Norris v. Belcher Land Mortg. Co. \[Tex.\] 83 S. W. 199.

01. Where a creditor secured by a dead of trust procured insurance on the prop-entry for his own benefit, the debtor cannot gagee in possession cannot be held liable for waste where the mortgagor recovers his property in a somewhat worse condition, but recovers money which might have been used in making repairs.\[88\]

_Right to the compensation in condemnation proceedings.\[90\]_--At law the compensation fund for property taken under the power of eminent domain belongs to the mortgagor; but the mortgagee can recover the award so far as necessary to repair the impairment of the security.\[90\] This principle applies where the land is not taken, but is damaged.\[91\] The right to reach the fund is an equitable right distinct from the rights under the mortgage on the remaining land.\[92\] If the mortgagee waives his right the mortgagor may recover.\[93\] The mortgagee cannot recover an amount not awarded as compensation.\[94\] Where a part of the premises are taken, nothing remains subject to the mortgage except the land not taken.\[95\]

_Acquisition of outstanding title_ by a co-mortgagee inures to the benefit of all.\[96\] Mortgagees cannot permit the land to be sold for taxes and acquire title as against the mortgagor,\[97\] unless permitted to do so by statute.\[98\]

_Rights of successive mortgagees._--A junior mortgage may require property on which a senior mortgagee's lien is exclusive to be first resorted to by him, un less the premises subject to both liens are sufficient to satisfy them," or the premises on which the superior lion is exclusive have been transferred'; but he must give the senior mortgagee notice that he intends to claim an equity through him," since it is not the duty of the senior mortgagee to ascertain his status." A second mortgagee who does not assume the first mortgage is not precluded from attacking its validity, though it is exempted from the covenants of the second mortgage;" but he cannot set up limitations as against a prior mortgagee's right to foreclose where there is no privity between them." Where a senior mortgagee brings action to correct the description in his mortgage, a subsequent mortgagee whose mortgage is subject to the same defect is entitled to be made a party and to the same relief."

_The right to foreclose_" is dependent on maturity of the obligation or its equivalent. No demand for payment is necessary." If the debt is payable on demand he may foreclose at any time." He is entitled to foreclose pro tanto on maturity of one of several notes secured." The mortgagee in foreclosing under a power of sale must exercise extreme good faith."

_An extension of time for payment of the debt_ is a contract affecting an incumbrance on land and applies in whosesoever hands the title goes during such period." It may be oral," but must be based on a consideration." It is binding according to its terms." The mortgage may be estopped from foreclosing before the expiration of the period of extension."

SS 8. _Lien and priorities._"--As between the parties the lion attaches at the time the mortgage is delivered;" as to third persons, from the date it is recorded." A mortgagee's lion is inferior to all equities of which he has notice," actual" .

90. Blanchette v. Farsch (S. D.) 99 N. W., of the mortgage debt. Briggs v. Weeks, 90 N. Y. S. 853.

01. Griffin v. Gingell, 25 Ky. L. R. 2031, 79 S. "W. 254.

01. Demand that the property on which the paramount lfen is exclusive be first resorted to. Blanchette v. Farsch (S. D.) 99 N. W. 79.

01. A first mortgagee is not required before releasing a portion of the premises on which his lion is exclusive to ascertain whether the mortgagor has subsequently incumbentbered the portion not released. Blanchette v. Farsch (S. D.) 99 N. W. 79.

01. Livingstone v. Murphy (Mass.) 72 N. E. 1012.

01. The subsequent mortgagee did not contest the senior mortgagee's right to prior, but lied a cross bill to foreclose his own mortgagee. Tinsley v. Lombard (Por.)

78 P. 895.

6. Scott v. Gordon (Mo. App.) 83 S. W. 550.

1. See Foreclosure of Mortgages on Land, 3 Curr. L 1438.

8, 9. Kebabian v. Shinkle (R. I.) 69 A. 743.

10. Land v. May \[Ark.\] 84 S. W. 489.

01. If he mislead intending purchasers, employ agents to bid against each other, the sale may be set aside. Kebabian v. Shinkle \[R. I.) 69 A. 743.

01. Missouri Real Estate Syndicate v. Sims, 179 Mo. 679, 78 S. W. 1006.

01. Evidence held sufficient to establish of such an agreement. Hauser v. Capital City Brew. Co. \[N. J. Eq.\] 57 A. 722. An original answer held sufficient evidence of an agreement for an extension of time of payment of the mortgage debt. Briggs v. Weeks, 90 N. Y. S. 853.

01. An extension of time in consideration of another's purchase of stock in the corporation mortgage, and paying the money into the corporation treasury, is based on a sufficient consideration. Hauser v. Capital City Brew, Co. \[N. J. Eq.\] 57 A. 722.

01. When a mortgage after the maturity of the mortgage induces the mortgage to remain his debtor in expectation that a reduced rate of interest will be accepted, he is thereafter estopped from exacting a rate provided for by the mortgage. Barnard v. Paterson \[Mich.\] 100 N. W. 833.

01. Where a third person purchased shares of stock of a corporation mortgage on the assurance of the mortgagee that the time of payment of the mortgage debt should be extended. Hauser v. Capital City Brew. Co. \[N. J. Eq.\] 57 A. 722.

01. See 2 Curr. L. 918.

01. If one loan money to a solvent person with an agreement that a mortgage to secure it is to be executed, and later when the borrower becomes insolvent he executes a mortgage, it is not a good preference as to other debts existing at the date of the mortgage. Code 1859, 8, 2, c. 74, requiring the loan and mortgage to be made at the same time. Feely v. Bryan \[W. Va.\] 47 B. E. 507.

01. Mortgages simultaneously executed will take precedence according to the dates of their recording. Kohn v. Warner, 105 JIL App. 321.

01. A grantee in a trust deed executed after a decree of a sale of the land under mortgage foreclosure but before the sale or constructive,22 but superior to equities with notice of which he is not charged.23 One holding an equitable interest in property cannot stand by while the person holding the legal title executes a mortgage and afterwards set up his interest to defeat the mortgage.24

_Liens for laborer's services25_ in connection with the mortgaged premises take priority over the mortgage.26 In Minnesota a lien for labor or building materials furnished after the execution of a mortgage may be superior to it.27 The lien of a subsequent mortgage is inferior to a lien for the purchase price of chattels purchased under conditional sale and annexed to the reality.28

is a purchaser pendente lite and whatever 435. Where the mortgagor, in whom title interest he acquires is subject to the lien \[was, was in possession with his mother of the foreclosure decree. Sentir v. Vanet, 209 Ill. 361, 70 N. E. 720; Griffin v. Gingell, 25 Ky. L. R. 2031, 79 S. W. 284. The record of an instrument which does not constitute a mortgage is not notice to subsequent purchasers or mortgages. Mathews v. Damanville, 91 N. X. S. 524. The fact that the record shows the source of a mortgage's title to be a voluntary conveyance from her husband and a judgment against the husband subsequent to the deed is not notice to the mortgage of any defect in the title. Glassburn v. Wireman \[Iowa\] 102 N. W. 421. A mortgage with actual notice that a third person is in possession. Crooks v. Jenkins \[Iowa\] 100 N. W. 82. Mortgage of a crop of hemp took with notice of an agreement that certain advances to harvest the crop were to be a first lien. Dickenson v. Columbus State Bank \[Neb.\] 98 N. W. 813. Assignees of a trust ded are charged with notice of the rights of parties in possession. Heppe v. Szczepanski, 209 Ill. 83, 70 N. E. 737.

22. See Notice and Record of Title, 2 Curr. L. 1052. A mortgage who is charged with constructive notice that there is a defect in the title of his mortgagor will acquire a lien subject to that of which he has constructive notice. Parker v. Parker \[N. J. Eq.\] 56 A. 1094. The record of a description so imperfect as to make its correction proper is notice to subsequent lien-ors. Scott v. Gordon \[Mo. App.\] 83 S. W. 550. Mortgages executed subsequent to the recordation of an instrument constituting an equitable mortgage. Matthews v. Damanville, 43 Misc. 546, 89 N. Y. S. 493. If an examination of the records would disclose that a mortgagor had no title, the mortgage cannot claim priority over prior mortgages in the record of which there was a misnomer of the mortgagor. Glenovich v. Zurich \[S. D.\] 101 N. W. 1103. A mortgage given by an incoming to a retiring partner, on the land transferred, with the consent of the co-partners, takes priority over a trust ded given by the new partnership for Indebtedness incurred after the recording of the mortgage. Tobias v. Commercial Sav. Bank \[Mich\] 98 N. W. 984.

The record of assignment may be notice of the existence of a mortgage. Revision 1898, $ 53 (Laws 1898, p. 630) makes the record of an assignment of a mortgage constructive notice of its existence. Higgins v. Jamensburg Mut. Bldg. & Loan Ass'n \[N. J. Eq.\] 58 A. 1078.

23. Yukler V. Walker \[Iowa\] 102 N. W. 1898, $ 53 (Laws 1898, p. 630) makes the record of an assignment of a mortgage constructive notice of its existence. Higgins v. Jamensburg Mut. Bldg. & Loan Ass'n \[N. J. Eq.\] 58 A. 1078.

01. Yukler V. Walker \[Iowa\] 103 N. W. 1898, $ 53 (Laws 1898, p. 630) makes the record of an assignment of a mortgage constructive notice of its existence. Higgins v. Jamensburg Mut. Bldg. & Loan Ass'n \[N. J. Eq.\] 58 A. 1078.

01. Yukler V. Walker \[Iowa\] 103 N. W. 1898, $ 53 (Laws 1898, p. 630) makes the record of an assignment of a mortgage constructive notice of its existence. Higgins v. Jamensburg Mut. Bldg. & Loan Ass'n \[N. J. Eq.\] 58 A. 1078.

01. Yukler V. Walker \[Iowa\] 103 N. W. 1898, $ 53 (Laws 1898, p. 630) makes the record of an assignment of a mortgage constructive notice of its existence. Higgins v. Jamensburg Mut. Bldg. & Loan Ass'n \[N. J. Eq.\] 58 A. 1078.

01. Yukler V. Walker \[Iowa\] 103 N. W. 1898, $ 53 (Laws 1898, p. 630) makes the record of an assignment of a mortgage constructive notice of its existence. Higgins v. Jamensburg Mut. Bldg. & Loan 4 Cur. Law. MORTGAGES SS 9.695

\_Nature of the right of priority.--\_Priority of lien is a vested right and cannot be interfered with by the legislature,\[29\] nor affected by subsequent transfers or transactions concerning the premises to which the mortgagee is not a party.\[30\] The fact that a prior judgment lien is postponed in favor of a subsequent one will not operate to postpone his lien.\[31\]

\_Waiver.\[32\]--\_A mortgage may waive his right to priority.\[33\] A waiver will be construed according to the legal effect of its terms,\[34\] but not to apply to claims not falling fairly within its meaning.\[35\]

_A mortgage to include future acquired property\[36\]_ attaches to an equitable title thereafter acquired.\[37\] It is inferior to a lien for the purchase money, but not to a lien for services rendered the grantee by the grantor after the sale.\[38\]

SS 9. \_Assignments of mortgages.\[30\]--\_No formal assignment is necessary;\[30\] a delivery accompanied by an intention to transfer is sufficient.\[41\]

**20.**: Act May 15, 1993, validating acknowledgments taken by an officer and stockhold- 421.

er of a building and loan association mortgagee, has no retrospective operation as against the holder of a lien acquired before the act was passed. Jugman v. Jiri Vashimington Bilds, & Loan Ass'n, 2011 in 176, 70 N. E. 644. A curative act validating the acknowledgment cannot deprive a subsequent mortgage of his right to priority over the first mortgage. Steger v. Travelling Mens' Bilds, & Loan Ass'n, 2011 in 236, 70 N. E. 236. Act Pa. June 4, 1901, 6.

2, providing that taxes shall be a first lien, is prospective and does not give priority to taxes over a mortgage which was a lien before the law was passed. In re Prince & Walter, 131 F. 545.

**30.**: A mortgagee in a mortgage subsequent to a deed of trust cannot be prejudosed by any agreement between the grantor _and_ others made subsequent to the execution of the mortgage. Leech v. Karthaus (Ala.J 37 So. 696. The benefitary in a deed of trust is not affected by an agreement unknown to him between the grantor and the beneficiary of a subsequent trust ded that such beneficiary's interest would be protected by the grantor. New York Store Mercantile Co. v. Thurmond (Mo.) 85 S. W. 333. One who furnishes money to a mortgage with which to pay taxes does not acquire. A lien superior to the mortgage, though the mortgagee has the shall have. Mersick v. Hartford, etc., R. Co., 16 Tom. 11, 55 A.

64. An agreement that a first mortgagee is not a small stand as security for additional indebtedness incurred after the execution of a second mortgage creates a lien secondary to the second mortgage. Crooks v. Jeni Kins (IowaJ 100 N. W. 82. The fact that a member of a firm agreed to release a mortgage given by another member of the firm for the benefit of the firm does not affect the rights of a mortgagee not a party. (N. J. Ea.) 60 A.

Grilin v. Stone River Nat. Bank (Tex. City. ADp.) 80 S. W. 254.

**31.**: Under a statute giving judgments priority in the order in which executions are issued thereon, the holder of a junior judgment on which execution is issued before issuance of execution on the senior judgment is not entitled to priority over a mortgage recorded before renddition of the junior judgment but after renddition of the An equitable assignment\*21 results from the transfer of the debt43 or a void foreclosure sale.44 The transfer of a portion of the debt operates as an assignment pro tanto.45

to record his mortgage.\[60\] An heir of the mortgagor acquires no greater estate.\[61\] In order to preserve his rights, the grantee must record his deed.\[62\]

_Assumption of the mortgage.\[63\]--A purchaser of mortgaged premises does not become personally liable for the mortgage indebtedness,\[64\] unless he assumes it.\[65\] The right to enforce the mortgagor's liability for a deficiency may be lost by laches.\[66\] Precise and formal terms of assumption are not necessary.\[67\] Where the amount of the mortgage is to be paid by the grantee as a part of the purchase price, it is an assumption of the debt.\[68\]_

_The agreement to assume\[69\]_ a mortgage must rest on a consideration.\[64\]\_ A grantee who never accepts a deed is not bound by an assumption clause,\[71\] but if he does accept, he is bound by its contents;\[72\] hence an assuming grantee is liable, though he procures the leaving of a blank in the deed, wherein the name of his grantee is inserted,\[73\] and the latter not having really assumed it is not liable.\[74\] The mortgage may enforce the agreement for his own benefit.\[75\] The assumption creates a charge upon the land.\[76\] An agreement to assume,\[77\] and the identity of the mortgage assumed, may be shown by parol.\[78\]

Where the grantee assumes a mortgage, it is presumed that such payment is a part of the consideration,\[78\] and he cannot set up as a defense that the mortgage is usurious,\[89\] unless the amount was not estimated in fixing the price of the land.\[81\]

who cannot be compelled to release their 66. A mortgagor conveyed the land sub-rights in the property sold and look to the lect to the mortgage. Subsequent grantees fund for protection. Mt. Adams & E. P. I. paid interest on the mortgage for 20 years R. Co., V. Central Trust & Safe Dep. Co., 2 after it came due and for 3 years after the mortgagor died his executors volunt- oho N. P. (N. S.) 529.

60. Rev. St. 1859, art. 4060, providing that unrecorded conveyances are void as to the mortgage. No claim was made against the subsequent bona fide purchasers. Garner v. Boyle (Tex.) 79 S. W. 1066.

01. The heir of a mortgagor to whom mortgaged property descends must be held to have knowledge of the terms of the mortgage. Fleming v. Hager, 121 lows, 205, 96 N. W. 752. An heir who accepts partition of property subject to a mortgage executed by the administrator, who was heard when the application to mortgage was made, and asserted to the approval of the administrator's final account, is estipped to question the regularity of the proceedings by which such mortgage was authorized. Wisconsin Trust Co. v. Chapman \[Wis.\] 99 N. W. 341.

01. Under Code Civ. Proc. $ 726, if he does not record, a judgment on foreclosure proceedings, is as valid against him as if he were a party. Hibernis Sav. & Loan Soc. v. Cochran, 141 Cal. 653, 75 P. 315.

01. See 2 Curr. L. 920.

01. Mueller V. Renzkes \[Mont.\] 77 P. 512. Evidence held insuffcment to show a grantee orally agreed to assume a mortgage. Mortgage not entitled to a deficiency judgment against him. Grover v. Bishop \[Mich.\] 101 N. W. 627. If a grantee purchases only the grantee's equity of redemption, he is not personally liable to pay the mortgage debt unless he expressly assumes and agrees to pay it. Roy v. Lobdell, 213 Ill. 383, 72 N. E. 1076.

01. Where the grantee assumes a mortgage covering other land as well as the land conveyed, the mortgage should be enforced as against the portion conveyed first. Mowry v. Mowry \[Mich.\] 100 N. W. 388. A feme eovert grantee is personally liable. Vizard v. Moody, 119 Ga. 918, 47 S. E. 348.

Status of mortgagor as surety."Where the grantee assumes the mortgage, the mortgagor's liability becomes that of a surety." He may compel the grantee to satisfy the debt." An extension of time granted by the mortgage without his consent," if valid," and if established," operates to discharge him from liability for a deficiency judgment. In Illinois he becomes a joint debtor," but in Missouri he does not; therefore a payment of interest by a grantee does not toll the statute of limitations as to him," nor does a payment of the proceeds of a foreclosure sale indorsed on the mortgage note."

SS 11. _Transfer of premises to mortgage and merger._"--An agreement by a mortgagor to regard the title of the mortgage as absolute on payment by the latter of a consideration is valid." Such an agreement negatives the acquiescence of the mortgage in the mortgagor's claim of an equity of redemption." The mortgage can acquire the equity of redemption only by a fair contract," based upon a new consideration," and if it was obtained by artifice and was based on no consideration except the original debt, it will be set aside." The mortgage has the burden to show that the contract was fair and that he paid what the equity was worth."

$Merger^{ ext{as}}$ is largely a question of intent." To work a merger by operation of law the interests sought to be merged must be of the same nature." A provision in the ded that the mortgage is not to be considered as merged but is to be held as "protection to title" is to be construed as intended to protect the grantee against such liens as intervened between the execution of the mortgage and the ded and not to prevent merger where there are no such liens." A parol agreement that a conveyance by the mortgagor to the mortgage shall not effect a merger is valid."

81. Lewis v. Farmers' Loan & Bldg: Ass'n \[Mo.\] 81 S. W. 887.

01. See 2 Curr. L. 921.

01. Germanin Life Ins. Co. v. Casey, 90 N. Y. S. 418; Regan v. Williams \[Mo.\] 84 S. W. 959.

01. The mortgagor being surety, this right is necessary for his protection. Gage v. Cameron, 212 III. 146, 72 N. E. 204.

01. Acceptance by the mortgage of interest one day before it became due operated as an extension. Germanin Life Ins. Co. v. Casey, 90 N. Y. S. 418; Brosseau v. Lowry, 209 III. 405, 70 N. E. 901.

01. An extension which is not binding does not release the mortgagor. Regan v. Williams \[Mo.\] 84 S. W. 959.

01. The fact that the grantee of mortgaged premises voluntarily pays an increased rate of interest on the debt is insufficient to show an agreement between the mortgage and grantee to change the rate without the knowledge of the mortgagor so as to discharge him as surety. New York Life Ins. Co. v. Casey, 178 N. Y. 381, 70 N. E. 916. The fact that a mortgage receives from the grantee of the mortgaged premises, interest on the debt three days before the debt is due is insufficient to show an extension so as to discharge the mortgagor from his liability as surety. Id.

01. A mortgage may treat and may have a personal joint and several decree against them. Arneson v. Haldane, 105 III. App. 589.

89, 90. Regan v. Williams \[Mo.\] 84 S. W. 959.

91. See 2 Curr. L. 922.

01. Luesenhop v. Einsfeld, 93 App. Div. 68, 87 N. Y. S. 268. A release discharging the mortgage from "all claims in law or equity and from all manner of claims upon or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the ded of these presents" is broad enough to embrace a release of the equity of redemption. Id.

01. Luesenhop v. Einsfeld, 93 App. Div. 68, 87 N. Y. S. 268.

01. Faulkner v. Cody, 45 Disc. 64, 91 N. Y. S. 633.

01. Hursey v. Hursey \[W. Va.\] 49 S. E. 267.

01. 97. Liskey v. Snyder \[W. Va.\] 49 S. E. 515.

01. See 2 Curr. L. 922. n. 83 et seq.

01. Where a mortgage and ded of the same premises were executed contemporaneously to the same party, evidence held to show that there was no intention that they should merge. Bloomer v. Burke \[Minn.\] 101 N. W. 974.

01. An Interest in $u$ mortgage will not merge with an estate in the land. Fenton V. Fenton, 208 Pa. 358, 57 A. 758. Especially where the intent not to merge is plainly apparent. Id.

01. Coon v. Smith, 43 Misc. 112, 88 N. Y. S. 261. The mortgage and grantee having subsequently devised this property, her ex-ecutrix could not foreclose this mortgage. Id.

01. Glenn v. Rudd \[S. C.\] 46 S. E. 555.

4 Cur. Law.

MORTGAGES SS 12.

**SS 12.**_Payment, release or satisfaction._\*\*--\*\*Purchasers of separate parcels of land subject to a common mortgage must contribute ratably to the discharge of the incumbrance.**5** \*\*The act of executors in paying off a mortgage on the estate of their decedent where funds are appropriated for that purpose cannot be construed otherwise than as a payment.**6** \*\*Their duty to pay it off is not affected by the fact that the funds are also applicable to the payment of other debts.**7**

Footnote 6: The term _Payment_ is the term _Payment_, which is the term _Payment_ secured by trust deeds of the same land, a foreclosure of one without reservation of the other lien discharges it,\[18\] even though the purchaser has notice of the other lien and pays less than the actual value of the land.\[19\] A sale by a trustee in bankruptcy subject to the lien of a first mortgage discharges subsequent mortgages.\[20\]

_The substitution of a new mortgage\[21\]_ does not necessarily operate as an extinguishment of the old one,\[22\] unless so intended,\[23\] nor does a substitution of debts.\[24\] The quitclaim deed of a mortgage discharges a mortgage.\[25\] It is discharged where a grantor who conveys with full covenants of warranty subsequently acquires the mortgage,\[26\] or where given as security for the debt of another, there is a material change in the contract without the consent of the mortgagor,\[27\] or where property of the real debtor included in the mortgage is released,\[28\] but not by obtaining a judgment on the debt secured,\[29\] nor by the purchase of a mortgage by a corporation of which the mortgagors were the principal stockholders.\[30\] Mortgages on a leasehold have no duration beyond the term of the lease.\[31\] The extinguishment of a mortgage does not extinguish the debt.\[32\] As against subsequent bona fide creditors without notice,\[33\] a mortgage largely reduced by payment cannot by mere agreement be left standing to secure a new consideration.\[34\]

_in agreement to release\[35\]_ must be based on a consideration.\[36\] In the absence of evidence, a sufficient consideration will be presumed.\[37\]

_The proper form of release\[38\]_ is by conveyance when the mortgage is in the form of an absolute deed,\[30\] and may be rendered necessary by the terms of the deefesance.\[40\] It must be recorded as required by law in order to be effectual as against subsequent assignees of the mortgage.\[41\]

**1S, 19.**: Alston v. Piper \[Tex. Civ. App.\] release of his property from the lien of the deed released the land of the wife. Id. \[Tex.\] 84 S. W. 417.

**20.**: The subsequent mortgage is entitled to have his claim satisfied ont of the proceeds of the sale. In v. Prince & Walter, 131 F. 546.

**21.**: See 2 Curr, L. 925, n. 18.

**22.**: See, also, Novation, 2 Curr. L. 1061. Evidence held insufficient to show that a mortgage was taken in satisfaction of a former one. Vinite v. Stevenson, 144 Cal. 104, 77 P. 828. Subsequent incommensers cannot because thereof claim priority. First Nat. Bank v. Citizens' State Bank, 11 Wyo. 32, 70 P. 726.

**23.**: A second deed of trust given and accepted in lieu of a prior one discharges the former. Benton Land Co., V. Zeitler, 182 Mo. 251, 81 S. W. 193.

**24.**: The debtor never executed the new mortgage. Freebury v. Elksell, 113 Iowa, 464, 99 N. W. 118.

**25.**: To the successor in interest of the mortgagor. Nickell v. Tracy, 91 N. Y. S. 287.

**26.**: The lien cannot be revived by a transfer of the mortgage to another. Brosseau v. Lowy, 209 Ill. 406, 70 N. E. 901.

**27.**: Stipulation for a higher rate of interest and increase of the note secured. Casey-Swassey Co. v. Anderson \[Tex. Civ. App.\] 83 S. W. 840.

**28.**: Where a wife executed a deed of trust of her land to secure a debt of her husband which deed also covered property belonging to the husband, a release of his property without her consent operated to release hers. Schneider v. Sellers \[Tex. Civ. App.\] 81 S. W. 126. Where land of a wife was included in a deed of trust with property of her husband to secure his debt, a 4 Cur. Law. MORTGAGES SS 13. . 701

Discharge of record."--A mortgage may be discharged of record at any time\[43\] in the manner prescribed."# The discharge is not conclusive proof of its satisfaction,"45 nor an acknowledgment by the mortgage that he has no interest in the premises.46 A discharge procured by fraud or mistake is unavailing for any purpose.47 A discharge whether before or after a conveyance,"48 with or without consideration,"9 and with or without the consent of the mortgagor,"50 discharges the premises in the hands of a bona fide purchaser from the lien of the mortgage."10 One attacking the release of a mortgage executed by himself has the burden of proving the existence of facts sufficient to warrant the court in setting it aside."10 One who is not a bona fide owner of the debt cannot assert the invalidity of the release as against a subsequent bona fide lienor."11 A condition precedent to the right of an agent to release will not be read from terms in his power plainly descriptive of the mortgage."11

Release by bar of limitations.55--A mortgage is not barred so long as the debt secured may be enforced,"12 and in the absence of statute, it is not barred though the debt may be.57 but if the mortgage is barred, the premises are free from the lien."12

gagor and subject to foreclosure may redeem, though the interest extend only to part of the equity of the mortgagor.60

\_The right to redeem_61 is not affected by agreements between the mortgagor and other lienors,62 nor by the fact that strict conditions agreed upon have not been performed,63 nor by a void foreclosure sale.64 At common law the right to redeem from an absolute deed intended as a mortgage survives the grantor.65 The right survives to his heir not to his administrator.66 If the indebtedness is payable on demand, the mortgage is redeemable at any time before strict foreclosure.67 An agreement that the mortgagor might redeem by payment within one year of a less sum than the amount of the debt is of no avail if not complied with.68

Footnote 60: Grantees of trees standing on the property in his hands as distinguished from premises may redeem. Rothschild v. Bay City Lumber Co., 139 Ala. 571, 86 So. 785. Such right to redeem is not prejudiced by against an administrator to have an absolute deed to the mortgage. Id. A team for years of a portion may redeem the whole. Kobabian v. Shinkle \[R. I.\] 59 A. 743. "Owner of an equity of redeemption" in Rev. Laws, c. 187, 83, providing that if such person dies his administrator may redeem, being substituted for "a person entitled to redeem" in the original act, includes the grantor in an absolute deed intended as a mortgage. Clark v. Seagraves \[Mass.\] 71 N. E. 813. "Afteching creditors of the mortgagor may redeem. Whitney v. Metallic Window Screen Mfg. Co. \[Mass.\] 73 N. E. 683. 61. See 2 Curr. L. 926, 11. 32 et seq. 62. Where mortgagees took a deed with an agreement that the mortgagor might redeem, deem at any time within two years, the right of redeemption in a grantee of the mortgagor of standing timber is not dependent on such agreement. Rothschild v. Bay City Lumber Co., 139 Ala. 571, 36 So. 785. 683. Wilson v. Mulloney, 185 Mass. 430, 70 N. E. 448. 64. The mortgagor may redeem at any time before title against him has been acquired by adverse possession. The doctrine of lachees has no application. Moore v. Dick \[Mass.\] 72 N. E. 967. Proceedings to which he was not a party. Rodman v. Quick, 311 Ill. 546, 71 N. E. 187. Where the power of sale in the mortgage requires publication of notice to be made in a particular paper, a publication in any other paper renders the sale void. Moore v. Dick \[Mass.\] 72 N. E. 967; Sherman v. Fisher \[Mich.\] 101 N. W. 572; Adams v. Hopkins, 144 Cal. 19, 77 P. 712. In order for a tenant to set aside a mortgage sale for fraud he must offer to redeem. Kebabian v. Shinkle \[R. I.\] 59 A. 743. 65. On the ground that the grantee has
Where each of several conveyances to the same person as security is a separate transaction, the mortgagor may redeem from each on paying the debt it was given to secure.\[88\] One redeeming is required to pay only the amount of the debt and incidental expenses necessary to preserve the title.\[89\] Void foreclosure proceedings cannot augment this amount.\[90\]

_Costs_ are taxed against the mortgagor unless he establishes a prior tender.\[81\]

\_Damages for refusal to reconvey.--\_Punitive as well as compensatory damages may be recovered from a grantee who fraudulently refuses to reconvey.\[82\] Where the grantee has sold the land the grantor may recover the proceeds but not punitive damages.\[88\]

\_Penalties for failure to release.\[84\]--\_No particular form of words is necessary to constitute a sufficient request to entitle one to maintain an action for failure to comply therewith.\[85\] It is sufficient if the language reasonably construed informs the mortgage that satisfaction is demanded.\[88\] Separate causes of action to recover penalties for failure to discharge mortgages of record after payment may be joined in different counts in the same complaint.\[87\]

SS 14. \_Subrogation.\[88\]--\_To entitle one to the right of subrogation, it must appear that the original debt was extinguished,\[89\] and that there are rights to which the doctrine will apply.\[90\] A mere transfer of the debt is insufficient.\[91\] A life tenant compelled, in order to preserve the estate, to pay a mortgage is subrogated to the rights of the mortgage.\[92\] A mortgage in a void mortgage is subrogated to the lien which his money was used to discharge.\[93\] Where a principal elects to hold an agent, who procures a mortgage, personally liable for the loan, and the agent pays the principal the amount of the loan, he is subrogated to the rights of the principal in a mortgage.\[94\] The doctrine does not apply to a junior mortgage who pays interest and makes payments on the principal of the prior incumbrance.\[95\] A purchaser at foreclosure sale is not subrogated to the rights of a mortgagor against a tenant of the premises for breach of covenant of his lease.\[96\]

other property in excess of the amount paid. \[ impression that he was obtaining security, Noble v. Graham, 140 Ala. 413, 37 So. 230, the doctrine of subrogation applies. Knox 78, Clark v. Seagraves \[Mass.\] 71 N. E. \[90\] V. Bar, 5 Ohio C. C. (N. S.) 51,

**70.** Taxes, interest on the mortgage and necessary repairs. Rodman v. Quick, 211 Ill. 546, 71 N. E. 1087.

**80.** The owner of the equity of redemption was not made a party to foreclosure proceedings. On redeeming he is not liable for post- to protect their security, costs of such foreclosure. Rodman v. Sellers \[Tex. Civ. App.\] 81 S. \[211 Ill. 546, 71 N. E. 1087.

**81.** Liskey v. Snyder \[V. Va.\] 49 S. E. \[515\].

**82, 83.** Welborn v. Dixon \[S. C.\] 49 S. E. \[51\].

**83.** See 2 Curr. L. 926.

**85.** A written demand signed by a mortgagor whose debt had been paid to "please cancel of record all mortgages against me" is sufficient under Code 1896, 8 1066. Partridge v. Wilson \[Ala.\] 37 So. 141.

**86.** A request, signed by the mortgagor and his wife, to the mortgagor, to go to the "probate office" and mark mortgages beid open there, "Satisfied." Henderson v. Wilson, 139 Ala, 327, 36 So. 516.

**87.** Partridge v. Wilson \[Ala.\] 37 So. 141.

**88.** See 2 Curr. L. 927; Subrogation, 2 Curr. L. 1768.

**89.** A mortgage being paid off by a member of the household of the administrator of the mortgage, the payor being under the contractgage.\[94\] The doctrine does not apply to a junior mortgage, but is not a member of the public or public

### 704 MOTIONS AND ORDERS.

A second mortgagee may to protect himself pay defaulted prior liens and charges and add them to his own," but he cannot call on the owner of the equity of re-demption who was not personally liable for reimbursement."

## 8 MOTIONS AND ORDERS.

### The office of a motion

is, accurately speaking, to obtain a rule or order incident to a cause or proceeding of which the court has cognizance." It will not lie to present and dispose of that which is part of the main issues in the cause," or which of itself is a cause of action," or which involves difficult and contested issues." But the fact that an action would also lie is not exclusive of motion."

The term "motion" is now much extended and comprehends many proceedings whose closest analogue is a petition in chancery."

### Stage of case when proper.

An adversary motion cannot be made until there are adverse parties in court," and a motion for final judgment on the pleadings cannot be made till trial."

### The moving papers.

The form of a motion being not technical, a petition sufficient in substance may be so regarded." A rule that the moving party shall state the term when the cause is triable has no application to a motion, e. g. one to declare whether a default exists, which depends on whether the case is at issue." If a motion and brief contain unfounded and disrespectful criticisms of a judge in the case, it will be stricken on the court's motion." The affidavits served are admitted if not denied by counter-affidavits" and no further evidence is requisite."

### Notice

is not required where an order made without notice is to be vacated." It is often required that papers must be served with the motion else they cannot be read on the hearing;" but leave to serve additional ones covering newly discovered facts may be given." Unless a proper excuse is shown for not originally serving proofs, they will, however, not be heard." If less than the regular notice be given, proof of necessity for a shorter notice should be made."

was no redemption from the foreclosure Mutual Life Ins. Co. v. Balknap, 19 Abb. N. sale. Stewart v. Parcher, 91 Minn, 817, 98 N. V. 650.

**97, 98. Brethauer v. Schorer \[Conn.\] 60 A. 125.**

**1. This topic treats only the principles common to all motions. Motions for particular rules or orders are discussed in topics to which the relief specifically pertains, such as Pleadings, 2 Curr. L. 1178; Discontinuance, Dismisssal, and Nonsuit, 3 Curr. L. 1097.**

**2. See 2 Curr. L. 929.**

**3. Note: See Cyc. Law Dict. "Motion," and see People v. Ah Sam, 41 Ca1, 645, 650; Prall v. Hunt, 41 Ill. App. 140; Reilly v. Wilkins, 67 Ill. App. 104.**

**4. Note: Sands v. Aargo of 227 Tons of Coal, 3 N. J. Law J. 361; Dietx v. Dietx, 2 Huon \[N. Y.\] 339.**

**5. Note: Curtis v. Engle, 4 Edw. Ch. \[N. Y.\] 117; Timan v. Leland, 6 Hill \[N. Y.\] 237.**

**Camp v. McCormick, 1 Denio \[N. Y.\] 641.**

**West v. His Creditors, 8 Rob. \[La.\] 123: Succession of Mielkee, 8 La. Ann. 11; People v. Judge of Calhoun Circuit, 24 Mich. 408.**

**See, also, Mutual Life Ins. Co. v. Balknap. 19 Abb. N. C. \[N. Y.\] 345.**

\**6. Note: See New York: El. R. Co. v. Manhattan R. Co., 63 How. Pr. \[N. Y.\] 14;* 4 Cur. Law. MOTIONS AND ORDERS.

_Hearing and rehearing_23_ and relief.--Motions are addressed to the court and not to a judge.24 The court may determine how it shall satisfy itself of the facts bearing on a motion.25 The hearing may be postponed to allow service of additional newly discovered proofs.26

Footnote 25: The author is grateful to the anonymous referee for the following reasons.

The relief granted on an order to show cause must not exceed that prayed.27

_On a default_ the court may grant the relief prayed for28 in so far as it is lawful or proper;29 but when the relief prayed is excessive or unlawful, the adversary should attend and advise the court,30 else he will be obliged to excuse his default before he will be relieved from an excessive order.31

_A motion may be renewed32_ which is interlocutory and not final,38 and it may be regarded as interlocutory despite a statutory right of appeal.34 If the grounds of a motion do not appear, the ruling thereon does not bar a renewal.35

If a motion be denied because not proper procedure, a petition or proper proceeding may then be instituted.36 Leave to renew is not necessary if reserved in the former ruling37 or if the motion be made in a different proceeding.38

_The order39_ should show by what authority, whether court or judge, it is made.40 It must be evidenced in the records of the court,41 but a separate signature is not essential.42 It will be regarded as an order of court rather than of a judge if it internally purports to be so, though lacking a caption,44 and the addition of a caption to a judge's order does not make it a court order.44

_An order operates as conclusive only according to the fair import of its terms45_ read with the motion.49 Recistals of fact in a judicial order should be taken as true if they can reasonably be so held.47 One who was dismissed by final judgment is not concluded by an interlocutory ruling.48 A rule to show cause adjudges nothing.49

Orders regarded as final for purposes of appeal are discussed in another topic.50

- 23. See 2 Curr. L. 929.

- 24. Motion to vacate rule to show cause No. \[Iowa\] 101 N. W. 277.

- 37, 38. People v. Paine, 92 App. Div. 303, not one for a single justice, Garbert v. 86 N. Y. S. 1109.

- 38. Note 2 Curr. L, 930.

- 39. Note 1, 84. Circuit Court, E. D. of Pa., providing for taking depositions in motions.

- 40. Must be at the time or nunc pro conformity act. Importers & Traders' Nat. Bank v. Lyons, 134 F. 510.

- 41. Order toutor to deposit funds need not be signed. Succession of -Wesmann, 110 La. 930, 24 80. 878.

- _Amendment and vacation._"1--Courts of law have always had the power to set aside their own orders rendered in a proceeding before them, during the pendency of such proceeding upon showing that such orders were procured by fraud."2 Equity, if it may change an order to effectuate the intent of the parties,"33 will do so only on clear proof."4 If a judge is clearly satisfied that an order was granted by his predecessor, without the exercise of judgment, or through mistake or fraud practiced on the court, or manifest indiscretion, or through the fact that adverse parties were not heard, he may set such order aside."53 Misrecitals of fact may be corrected."64 A motion to vacate must be made during term,"67 or while the case is pending,"68 or during the prescribed time"69 if any.

"_Action costs_"69 within the New York Code include costs of an appeal from the order."61

- MULTITARIOUSNESS; MULTIPLICITY; MUNICIPAL Aids and Reliefs, see latest topical index.

- \*\*MUNICIPAL BONDS.\*\*62

- \**S 1.*

- Power to Issue (706). Refunding Bonds (707). Railroad Aid Bonds (708). Limitation of Indebtedness (708). Curative Areas (708).

- \**S 7.*

- Transfer (714). Subrogation (714). Recitals (714) (with Special Article, p. 717). Vote: Previous for Payment (709). Assent SStopped (714). of Voters or Taxpayers (710). Notice of Election (711). Providing for Payment of Sal Fund or Tax (716). Bonds (711).

- \**S 9.*

- Sealing Overssee (717).

- \**S 10.*

- Enforcement of Improvement Bonds \**S 4.*

- Form and Requalities (712). **Against Abinters (717).**

"_Municipal bonds" includes bonds issued by every public corporation or department of government and not alone those of cities and villages. There are many collateral questions pertaining to the topics dealing with the particular class of public corporations which issues the bonds. These topics may be consulted."5 They also treat of warrants for payment of public moneys.64_

- **S 1.**_Power to issue._"65--Constitutional66 or legislative authority is necessary to authorize municipalities to issue bonds; there is no implied power to issue bonds in aid of a work of internal improvement,"67 or to issue bonds payable on demand."68

- See 2 Curr. L. $30, n. 8 et seq.

- James' Estate v. O'Neill \[Neb.\] $7 N. W. 22.

- Houghtening v. Stockbridge \[Mich.\] $9 N. W. 759.

- Harrigan v. Gilchrist \[Vis.\] $9 N. W. 89.

- Northwestern Life & Sav. Co. v. Gippe,

- \*\*S2 Minn. 36, 98 N. W. 364.

- Born v. Schneider, 128 F. 179.

- Interlocutory orders may be vacated at a subsequent term. Huffman v. Rhodes \[Neb.\] $100 N. W. 159.

- Six months in case of Inadvertence or mistake. State v. District Court of Second Judicial Dist. \[Mont.\] $7 P. 410.

- See Costs, $ Curr. L. $40.

- Wasserman v. Benjamin, 91 App. Div.

- See 2 Curr. L. $31.

- See Municipal Corporations, 4 Curr. L. $70; Counties, 3 Curr. L. $95; Sewers and Drains (drainage districts) $ Curr. L. $168; Common and Public Schools (school districts) 1 Curr. L. $44; Towns; Townships, 2 Curr. L. $177; Waters and Water Supply (water and irrigation districts) 2 Curr. L. $203.

- See 2 Curr. L. $717; Waters and Water Supply (water and irrigation districts) 2 Curr. L. $204.

- See 2 Curr. L. $81.

- See 2 Curr. L. $18.

- See 2 Curr. L. $21.

- See 2 Curr. L. $22.

- See 2 Curr. L. $23.

- See 2 Curr. L. $24.

- See 2 Curr. L. $25.\*

- See 2 Curr. L. $26.\*

- See 2 Curr. L. $27.

- See 2 Curr. L. $28.

- Police juries of parishes have no authority to incur a debt for road purposes under Const. 1898, art. 281, as their authority is controlled by art. 291. Favolaro v. Police Jury of Parish of St. Bernard, 11
  4 Cur. Law. Municipal bonds SS 1.

An act authorizing bonds for street work is not inconsistent with an act passed at the same session authorizing bonds for local improvements, and is not repealed by it." A municipality incorporated under a special law may be authorized to issue bonds under a subsequent general law." Authority to municipalities of a certain class to issue bonds is good where a substantial distinction exists between those municipalities within the class and those without." An ordinance does not embrace more than one subject where it proposes the issue of bonds for various purposes." Bonds, which were valid when issued under law of the state as declared by its courts will not be held invalid, though the state courts have subsequently reversed their decisions, as that would impair the obligation of the contact;" but the courts of North Carolina reach a different result on the ground that such decisions were not a part of the contract of purchase." Where a city has the power to issue bonds, in the absence of any showing to the contrary, it will be presumed that they were issued in accordance therewith." A county may bond itself for the cost of highways which it is empowered to build, one-half cost to be a county charge and no other means of payment being prescribed," and it being chargeable "in the first instance," it may include in them the amount which it is authorized to charge to the respective towns."

_Refunding bonds."_--The legislature may empower municipalities to issue refunding bonds" and may apply such a law to such only as are indebted in a certain sum." Acts authorizing the refunding of indebtedness will not be construed as mandatory, requiring such refunding." Refunding bonds are a continuation of the former liability and are not a new indebtedness within the constitutional meaning," consequently, bonds which were void for lack of power in municipality to issue them cannot constitute the basis of valid refunding bonds." The

69. St. 1901, p. 27, c. 32, not repealed by St. 1901, p. 34, c. 38, as repeals by implication are not favored, and latter act does not cover all the ground of the earlier one. Town of Mill Valley v. House, 142 Cal. 698, 76 P. 658.

01. Under Village Law (Laws 1897, p. 455, c. 414, $ 128), if authorized by an election and not inconsistent with its special charter, a village may issue bonds. Village of Canadavian v. Hayes, 90 App. Div. 336, 85 N. Y. S. 488.

01. Act authorizing cities of the first class to issue bonds for an armory where they had not issued bonds for the same purpose under a previous act is valid. State v. Rogers \[Minn.\] 100 N. W. 659.

01. For city hospital; for severe system; for new school houses and playgrounds; for repair of streets; for construction of a ball; for a public library, and for public parks in various designated localities. Law v. San Francisco, 144 Cal. 384, 77 P. 104.

01. Board of Com's of Henderson County v. Traveiers' Ins. Co. \[C. C. A.\] 128 F. 817: State v. Bristol, 109 Tenn. 315, 70 S. W. 1031.

01. Const. art, 2, $ 14, required that acts authorizing the incurring of indebtedness must be passed on three separate readings; and bonds issued under an act not so passed were held void, notwithstanding previous decisions that the fact that an act was signed by the officers of both houses was conclusive evidence that it was constitutionally passed. Graves v. Moore County Com's, 135 N. C. 49, 47 S. E. 134.

01. A taxpayer sued for taxes cannot set up irregularities in the issue of bonds refunding waterworks bonds. City of Tyler Bldg. & Loan Ass'n \[Tex.\] 81 S. W. 2.

76, 77. Ontario County v. Shepard, 91 N. Y. S. 611.

78. See 2 Curr. L. 932.

79, 80. It is not class legislation to allow charter, a village may issue bonds. Village bonds to fund such debt. Laws 1903, p. 85 N. Y. S. 488.

71. Act authorizing cities of the first class to issue bonds for an armory where they had not issued bonds for the same purpose under a previous act is valid. State v. Rogers \[Minn.\] 100 N. W. 659.

01. For city hospital; for severe system; for new school houses and playgrounds; for repair of streets; for construction of a ball; for a public library, and for public parks in various designated localities. Law v. San Francisco, 144 Cal. 384, 77 P. 104.

01. Board of Com's of Henderson County v. Traveiers' Ins. Co. \[C. C. A.\] 128 F. 817: State v. Bristol, 109 Tenn. 315, 70 S. W. 1031.

01. Const. art, 2, $ 14, required that acts authorizing the incurring of indebtedness must be passed on three separate readings; and bonds issued under an act not so passed were held void, notwithstanding previous decisions that the fact that an act was signed by the officers of both houses was conclusive evidence that it was constitutionally passed. Graves v. Moore County Com's, 135 N. C. 49, 47 S. E. 134.

01. A taxpayer sued for taxes cannot set up irregularities in the issue of bonds refunding waterworks bonds. City of Tyler Bldg. & Loan Ass'n \[Tex.\] 81 S. W. 2.

76, 77. Ontario County v. Shepard, 91 N.

right to issue refunding bonds is usually not dependent on a popular vote.\[84\] If a debt cannot be refunded in the denominations provided in the refunding act, the bonds cannot be issued for other denominations.\[85\]

_Railroad aid bonds.\[86\]--Under authority to issue bonds to aid in the construction of railroads, bonds may issue to purchase land for a station,\[87\] and where there is authority to subscribe to stock, the change of the name of the railway will not deprive the county of the right to subscribe to the same.\[88\] The beginning\[89\] or completion\[90\] of the railroad may be a condition precedent to the issue of bonds._

\_Limitation of indebtedness.\[91\]--The debt of a municipality is usually limited to a fixed percentage of its assessed valuation,\[92\] but sometimes another practical limit is a provision limiting the amount of the tax therefor that may be imposed in any one year.\[93\] In New York, municipalities may issue water bonds in excess of the ten per cent limit fixed by the constitution provided that the term of the bonds shall not exceed twenty years and an adequate sinking fund shall be provided.\[94\] A constitutional amendment authorizing an "additional indebtedness not exceeding ten per centum" of the assessed valuation will be construed to mean that much additional to what was previously authorized and not that much additional to what was previously incurred.\[95\] Where bonds are voted to be issued on the happening of a future event, the last assessed valuation before the bonds are actually issued is the one that limits the amount of the issue.\[96\] In determining the debt limit of a county, bonds payable from the assessment of a certain district therein need not be considered.\[97\] Contracts to pay for water or light annually or monthly as furnished if the current revenues are sufficient do not create an in- $4. But where the question is submitted of $18,000,000 will not exceed the limit to vote, the method prescribed by the act must be followed. City of Asheville v. 1014.

Webb, 134 N. C. 72, 46 S. E. 19.

$5, Laws 1895, P. 63, C. 7, art, 1, as amend-ed by Laws 1897, P. 47, C. 5, provided that bonds "may be issued in any denomination from $100 to $1,000," and to be in series so that they might be paid in ten equal annual payments; and an issue of ten bonds of $80 to refund an $80 debt could not be made, the debt not being refundable under the act. School Dist. No. 44 of Cado County v. Baxter \[OkL\] 78 P. 386.

$6. See 2 Curr. L. 931, n. 21.

$7. Jennings Banking & Trust Co. v. Jefferson, 30 Tex. Civ. App, 534, 70 S. W. 1005, afg. $8. The bonds issued in payment for the stock were valid. Board of Com'rs of Hen-derson County v. Travelers' Ins. Co. \[C. C. A.\] 128 F. 817.

$9. Authority to issue bonds to aid in the completion of a railroad does not authorize the issue of bonds in aid of a railroad not yet begun, nor can township bonds be sustained under an act authorizing county commissioners to issue bonds. Graves v. Moore County Com'rs, 135 N. C. 49, 47 S. E. 134.

$9. Where a railroad was to be constructed across the county, the construction of 4% miles by its successor was not such a substantial compliance as to authorize the issue of bonds. Green County v. Shortell, 25 Ky., L. R. 387, 76 S. W. 251.

$9. See 2 Curr. L. 932.

$9. Where the debt limit is 15 per cent of the assessed value, and the assessed value.

$420,000,000, bonds to the amount of $18,000,000 will not exceed the limit. Law v. San Francisco, 144 Cal. 384, 77 P. 1014.

$9. Const. 1874, art, 16, $ 9, prohibited counties from levrying a tax in excess of % per cent, except to pay indebtedness then existing for which an additional % per cent margin be level, the holder of bonds issued to take up prior indebtedness had the same right to the benefit of this tax as the original holder. Desha County v. State \[Arx.\] 84 S. W. 625. Const. 1888, art. 281, limiting the tax to secure the payment of municipal bonds to "not exceeding five mills on the dollar in any one year." Town of Crowley v. Fulton & Co., 112 La. 234, 36 S. 334.

$9. Const. srt. 8, 10; Laws 1904, c. 629; act authorizing bonds in excess of ten per cent and running longer than twenty years was void. Cahill v. Hogan, 44 Misc. 360, 89 N. Y. S. 1022.

$9. The previous limit was 5 per cent and the City of Slovak Falls was already indebted nearly 15 per cent, and so was not authorized to incur the 10 per cent additional for water purposes, though the state courts had held otherwise. Farmers' Loan & Trust Co. v. Slovak Falls, 131 F. 890.

$9. At time of vote in 1871 the assessed valuation of county was $3,184,036; and the debt including proposed issue $430,000, the limit being 10 per cent; but the bonds were not issued until after the assessment for 1872 which 4 Cur. Law. Municipal Bonds $ 2. 709

debtedness for the aggregate sum of such payments within the meaning of the constitution, but contracts for the construction of a water or light plant," or the issue of warrants on the annual income to pay for a court house," do create a debt. Municipal corporations cannot evade the constitutional limitation of indebtedness by making their bonds payable from the proceeds of a special tax, or from the income of a water or light plant, or by buying property subject to liens, though they do not agree to assume the same, but provide that such liens shall be paid out of the income of the property, or by incurring liabilities through a dummy corporation;4 but in Kansas it was held that a city may purchase property subject to a lion payable in the future." When a city has reached the limit of indebtedness, it may continue to transact its business on a cash basis, and pay its current expenses."

\_Curative acts.\_4--If the charter under which bonds were issued is invalid, a subsequent legislative recognition of it will validate the bonds." An act legalizing certain county orders issued under an unconstitutional statute and authorizing the county to provide for their payment is constitutional, as the legislature has the power to require its public agencies to discharge imperfect legal obligations which rest upon value received." A constitutional amendment requiring laws as to municipal indebtedness to be passed in a particular manner does not affect the validity of previous laws or of bonds issued thereunder."

$ 2. _Conditions precedent; submission to vote; provision for payment._--Since bonds must rest on a valid debt, it is important in the case of improvement bonds that the procedure to authorize, contract for and make a public work or improvement have at least such validity as that it will support an indebtedness." Where by act a general law is made inapplicable to a special class, the case covered by the special law may be read as an exception to the general law." The estimate of cost by the city engineer," or the fixing of the rate of interest," are sometimes conditions precedent to the issue of special improvement bonds.

98. The first is an ordinary and neces-

sary expense, the latter is an extraordinary

one. Voss v. Waterloo Water Co. \[Ind.\] 71

and another granted with proviso that all

99. Where Issue will be enjoined at the

claims against the former town should be

sulted of a taxpayer, as it was a mere evasion

assumed by the new one. Muse v. Lexing-

of the debt limit. Johnson v. Board of

Com'rs of Norman County \[Minn.\] 101 N. W.

180.

001. The town was to be the main stock-

holder in a water company, which was or-

gainszed for the purpose, and which was to

issue bonds in excess of the town's debt

limit, the town pledging to it a certain sum

for 25 years for hydrant rentals, and issuing

bonds to its debt limit in payment for the

stock. Voss v. Waterloo Water Co. \[Ind.\] 71 N. E. 208.

2. Though the city cannot directly mort-

gage its property, it may make the most

advantageous contract of purchase of water-

works possible, and it will not be considered

an evasion of the debt limit. State v. To-

pekn, 68 Kan. 177, 74 P. 647.

**s.** But it cannot provide for the installation of waterworks as a reasonable and

necessary current expense, where there was

already a private company furnishing an

adequate service \[Sess. Laws 1903, p. 42\].

Helena Waterworks Co. v. Helena \[Mon.\] 78 P. 220.

4. See 2 Curr. L. 932.

1. The charter of 1889 was illegal, but

1. Constructing Burns' Law (Rev. St. $ 2702) and 94 Ohio Laws, p. 119. City of Mt.

Vernon v. State \[Ohio\] 73 N. E. 515.

**II.** Street Improvement bonds may be

solved by the city council upon the estimates of the city engineer that the cost of

the improvement will exceed one dollar a

front foot \[St. 1889, p. 38, c. 211. O'Dea v.

Mitchell, 144 Cal. 374, 77 P. 1020.

\_Assent of voters or taxpayers.\[13\]--It has been held that a municipality may issue bonds without an election when it is for a necessary expense, and there is no limitation in the charter and it can pay interest without exceeding the tax limit;\[14\] but where a municipality is authorized to issue bonds provided the question is submitted to the voters, such submission is a prerequisite, and such mode is the exclusive way in which the municipality may bind itself;\[15\] consequently special assessment bonds, issued without an election, are not binding on the municipality, though the land is still liable for the assessment.\[16\] An existing obligation is not in general a condition precedent to the power to vote on bonds for the purchase or construction of a public utility.\[17\] Where it is required that the resolution submitted should state the purpose of the issue or the number of instalments in which it is to be paid, it must be followed;\[18\] if they are to be issued for several purposes, the amount for each purpose must be stated;\[19\] and if it is required that the resolution submitted shall state the rate of interest, a statement that it is not to exceed a certain rate is not sufficient.\[20\] Several separate propositions may be submitted to the electors, and the failure of one to carry does not affect the validity of the others which carried.\[21\] Propositions must not be coupled together so that a voter is given no choice,\[22\] else the election will be rendered void.\[23\] The fact that the proposition submitted to the voters contains another and illegal proposition will not render the bonds issued thereunder absolutely void;\[24\] but an affirmative vote on a proposition to issue railroad aid bonds to an amount in excess of the debt limit does not authorize the issue of bonds to an amount within the limit.\[25\] The proposition may be submitted at a special election,\[26\] but a vote taken before the adoption of a constitutional amendment authorizing the bond * 4 Cur. Law. \*\*MUNICIPAL BONDS SS 2.\*\*711

- **issue is ineffectual.**\[27\] It is sometimes a condition precedent to the right to call an election on the question of issuing bonds that the municipality shall have a certain population.**\[28\] A majority or two-thirds vote of all the votes cast at the election is usually required to carry the proposition.**\[29\] The ballots found in the ballot box at the close of the polls upon which the voter has intelligently expressed himself control the question.**\[30\] Where it is required that two-thirds of the qualified voters of the municipality must assent, reference must be had to the registration list.**\[31\]
- **Notice of election.**\[32\]--The statutory procedure for calling an election must be followed,**\[33\] thus if the notice fails to specify all the particulars required by statute, it will not have the effect of calling a valid election**\[34\]; but the notice of an election to be held at the time of the annual election of municipal officers to vote on the question of issuing bonds is valid, though the notice failed to specify the place where the election was to be held.**\[35\] No notice is required where the election is required to be held in the same manner as elections for officers where no notice is given.**\[36\] If the notice of election refers to the statute, it is not necessary that it enumerate all the details of the proposed issue.**\[37\] Irregularities in publishing the notice of election does not always render the election void,**\[38\] and the bonds issued may be valid, though they do not conform exactly to the proposition adopted by the voters.**\[39\] An election is not rendered invalid because the officers who called it were only de facto officers.**\[40\] In some states it is required that the question shall be printed on the official ballot.\*\*\[41\]
- **Providing for payment of bonds.**\[42\]--Where the statute\*\*\[43\] or the constitution
- **27. Farmers' Loan & Trust Co. v. Sloux** boxes were used did not render it a special Falls, 131 F. 890. \*\*28. Act Cong. March 4, 1898, c. 35, 8 1 (30 Stat. at L. 252), requiring a population of not less than 1.000 persons; the require- lection of officers was directed to be held ment that a school census should be taken was sufficiently compiled with when a cen- \*\*while required no notice. City of Ashes- \*\*sus was taken of the entire district, and an assessor's census had been taken of the town therein. Territory v. Whitehall, 13 Ukl. 534, 78 P. 148. 148. 29. Where several propositions were submitted and one received two-thirds of the votes cast on it, but not two-thirds of all the votes cast, it failed. Law. W. San Fran'isco, 144 Cal. 384, 77 P. 1014. 30. Ballots which are illegally cast or which are defective should not be counted. State v. Topeka, 68 Kan. 177, 74 P. 647. 31. Or if there is no system of registration to the tally sheets of the last general election. Wilkins v. Waynesboro, 116 Ga. 359, 42 S. E. 767. 32. See 2 Curr. L. 934. 33. A petition asking the mayor to issue a proclamation for an election need not be submitted to the council (Laws 1887, c. 82, 101). State v. Topeka, 68 Kan. 177, 74 P. 647. 34. Amount, purpose, interest, and how much to be paid off annually required to be stated (Pol. Code, SSS 877-381); but stating that the overpins if any will be applied to sinking fund was not sufficiently definite. Wilkins v. Waynesboro, 116 Ga. 359, 42 S. E. 767. 35. The question might be submitted at an annual or special election, and the inference here was that the election was to be held at the same place as the election for officers, and the fact that separate ballot require provision to be made for the payment of the bonds by an annual tax, that is a condition precedent to their issue, and no other plan for raising the necessary revenue can be substituted.44 The amount of the tax must be specified in the resolution submitted.45 Debts incurred for current expenditures are valid, though no such provision is made.46 The power to issue bonds impliedly gives the power to tax therefor,47 and express provisions that the city have the power to impose a special tax for the payment of the bonds do not make the validity of bonds dependent on the imposition of such a tax.48

SS 3. _Execution.49--Where bonds have been duly authorized and duly sold to the highest bidder by the council, and the mayor without legal reason or having any discretion in the matter, refuses to sign or seal them, mandamus will issue to compel him to sign and seal the same.50 It is no defense that the seal of the clerk instead of the seal of the city is affixed to bonds, when they are in the hands of an innocent holder.51_

SS 4. \_Form and requisites.52--A bond is not made a conditional promise to pay by incorporating in its condition an obligation to pay interest according to its terms.58 The power to issue "bonds" authorizes the issue of negotiable bonds or bonds payable to bearer,54 and includes the power to make them payable in the gold coin of the United States.58 The bonds are negotiable, though the name of the payee and the word "bearer" are left in blank,58 and are valid, though they do not conform exactly to the authority under which they are issued.57

SS 5. \_Issue and sale.58--Where separate propositions for the issue of bonds for different purposes have received a majority of votes, separate bonds need not be issued for each purpose, but the total amount may be in one issue together.58 An act requiring public officers to issue bonds on the certificate of their necessity by other officers gives the former no discretion in the matter.50 An act authoriz ing the issue and sale of bonds or their issue in payment of property necessary for an irrigation system did not authorize their exchange for water right certificates or for warrants drawn for salaries of the officers of the district.\[61\] In Georgia a special proceeding by petition is provided by which a deerce of a court may be obtained validating the bonds before they are issued,\[62\] and such validation is good where there is a substantial compliance with the provisions of the statute.\[63\] Under the Nebraska refunding law a special proceeding is provided for determining the validity of the proceedings from which an appeal lies to the supreme court.\[64\] For a purchaser to rescind the contract and recover the consideration paid, he must return or be able to return all of the bonds.\[65\]

Rights and liabilities arising out of illegal issue.\[66\]--A resident taxpayer may enjoin the issue of bonds when the question of issuing them had not been fairly submitted to the voters,\[67\] unless they have already been validated by a decree of court.\[68\] In such an action the burden is on the plaintiff to establish their illegality.\[69\] A taxpayer may enjoin the levy of a tax to pay interest on bonds issued under an unconstitutional statute, without restoring to bona fide holders the consideration which they gave therefor,\[70\] or in a suit to collect taxes, he may defend on the ground of the invalidity of the bonds.\[71\] Where bonds have been delivered to the purchaser, a taxpayer cannot sue the town to have the bonds declared invalid and to restrain the levy of taxes therefor, without joining the purchaser\[72\] or the holders.\[73\] An adjudication that part of an issue of bonds was invalid does not annul the rest of the same issue sold to other persons and not parties to the action.\[74\] Where bonds have been illegally issued, but for a lawful purpose, the city is bound in equity to return the consideration.\[75\]

amounts required by the water commissioners, and mandamus issued on the relation of a water commissioner. People v. Trustees of White Plains, 93 App. Div. 599, 88 N. Y. S. 506.

## 7.2 610

The burden is on the county commissions to show that the bonds were enjoin the issue because the notice of election was published only twice by Rontree v. Rentre, 119 Ga. 855, 47 S. E. 328.

## 72 620

The monk * 7._Transfer._"--There is no implied warranty on the part of the seller of the validity of bonds," or of the truth of his statement that they will net a certain rate of interest." The fact that the seller guarantees the bonds does not prevent the buyer from being a bona fide purchaser."

- 86.\_"--A purchaser in the open market is a volunteer and is not subrogated to any equities existing in favor of the original holders."

- 87._"--Recitals._"--Recitals are binding only as to matters of fact, and not as to matters of law," and will not protect a purchaser where he has knowledge that they are in fact untrue." A recital showing a bond was issued for an unlawful purpose will be notice to all purchasers." A recital that bonds were issued in conformity with a designated act is in effect a certification that all provisions of law have been complied with." Where it is the duty of the mayor and clerk to sign and seal bonds, their recital that all requirements of law have been complied with is binding on the city." Bonds will not be void, though they recite that they were issued under an unconstitutional statute, if there was a general law authorizing their issue;" but where bonds recited that they were issued under an act where the preliminary steps required to be taken were entirely different from those required by the general law, they could not be sustained under the latter, though the former act was unconstitutional."

- 88.\_"--If the debt be under an unconstitutional law but the subject-matter be neither illegal, ultra vires nor prohibited, there may be an estoppel." Where bonds recited that they were issued for a lawful purpose," or in conformity with statutory authority, there is an estoppel, as against an innocent holder, to show that they were illegally issued." A purchaser of bonds will be charged with notice of conditions appearing of record, though not recited in the bonds." An innocent holder" of bonds illegally issued has the burden of proving that he ob-

- 90.\_"--The authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoring authoringing authoring authoring authoring authoring authoringing authoring authoring authoringing authoring authoring authoring authoringing authoring authoringing authoring authoringing authoring authoring authoringing authoring authoringing authoring authoringing authoringing authoring authoringing authoringing authoring authoringing authoringing authoring authoringing authoringing authoring authoringing authoringing authoringing authoring authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoring authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringinging authoringing authoringing authoringing authoringing tained the same for value and without notice." One does not have to rely entirely on the recitals of a bond to constitute one a bona fide holder, for that would be putting a premium on omission to inquire further." One who obtains title by descent, from one who is not a bona fide holder, is not a bona fide holder," but any subsequent transferee under an innocent holder is a bona fide holder," except the purchaser for a nominal consideration of a past due and dishonored municipal bond, which was fraudulently issued;1; he cannot recover their face value, though the seller, an innocent holder, might have." Payment of interest by itself will not prevent a bond from being held invalid,3 but where a municipality had compromised a suit on its bonds and paid interest for many years, it will not be allowed to repudiate them unless they were absolutely void when issued.4 Likewise long delay and laches and continued payment of interest on bonds in the hands of innocent holders will defeat an action of a taxpayer to restrain their payment.5 Where a purchaser acquires bonds after they have been held valid by a decision of the highest court in the state, his rights are not affected by a subsequent different interpretation of the law.6

Footnote 4: Cur. Law. Municipal bonds SS 8.

SS 8. Payment.7--The authority to issue bonds by necessary implication confers authority to levy the tax necessary to pay the debt.8 In Louisiana the tax that may be levied to pay municipal bonds is limited by the constitution.9 Where a city has no authority to make the interest on bonds a governmental and current expenditure, the fund raised therefor may be secured by a judgment creditor.10 After a judgment is obtained, no demand is necessary before filing a petition for mandamus to compel the making of an assessment,11 or the levy of a tax, where there is a statute authorizing the same.12 A writ of mandamus is properly directed to the mayor and city council to compel a tax levy,13 or to a sheriff, where it is his duty to collect the tax,14 or to county commissioners to compel them to take steps to provide for the payment of county orders.15 Where no fact is asserted against the validity of bonds, mandamus may be had by the holder of all, or of a part of the bonds, to compel a tax levy to pay the same, without first reducing them to judgment.16 The fact that a township has been transferred to another county after bonds are issued does not affect its obligation to pay.17 A state con-situual amendment abolishing the corporate existence of certain townships which had issued bonds impairs the obligation of contracts,18 but a Federal court cannot adjudge a county liable for the debts of a township included therein which has been dissolved.19 Where the boundary between counties has been changed, a portion of the debt of the county from which territory was taken may be apportioned by the legislature to that part added to the other county.20

Footnote 18: The authorized to leave a tax for the bonds were not deprived of that right and duty. Ex parte Folsom, 131 F. 496.

_Payment from special fund or tax.21_--Owners of street improvement bonds payable out of assessments may sue to enforce collection by foreclosure or otherwise, and an attorney's fee may be included in the judgment.22 Though the bonds are only payable out of assessments to be levied and collected by the municipality, the municipality will be liable for the amount lost by its negligence in failing to file and enforce the liens for the same.23 The bonds are still a valid charge on the special assessments, though there is a void provision that the city's credit was pledged.24 Mandamus will lie to compel the payment of interest out of a special fund raised for that purpose,25 but it will not lie to compel payment out of the general fund.26

Footnote 23: The authorized to leave a tax for the bonds were not deprived of that right and duty. Ex parte Folsom, 131 F. 496.

1897, p. 267, c. 189, $ 391. Board of Sup'rs of Riverside County v. Thompson \[C. C. A.\] 122 F. $60.

12. Ky. Laws 1868, p. 632, c. 548, authorizing the county judge to levy taxes for railroad aid bonds, was not repealed by Constitution of 1891 or Ky. St. 1894, $ 1882, which confers the power of levying taxes on the fiscal court except in the case of railroad bond indebtedness. Guthrie v. Sparks \[C. C. A.\] 131 F. 443.

01. Comp. Laws 1897, $ 2529, limiting tax levies to one per cent for all purposes, did not apply to cities organized under prior acts. Territory v. Socorro \[N. M.\] 76 p. 283.

01. It was proper to join the sheriff where it was his duty to collect the tax, and it was alleged that he had pledged himself not to do so. Guthrie v. Sparks \[C. C. A.\] 131 F. 443.

01. The fact that the language of the act imposing the duty on the county commissioners was not mandatory but permissive in form is not conclusive, as the rule is that where public or individual rights call for the exercise of a power the language is in effect imperative. State v. Gunn, 92 Minn. 436, 100 N. W. 97.

01. The only denial of their validity consisted of the erroneous conclusion as to the legal requirements of an ordinance directing their issue. Territory v. Socorro \[N. M.\] 76 P. 283.

01. Mandamus issued against officers of county to which township was transferred. Ex parte Folsom, 131 F. 496; Planters' & Sav. Bank v. Huiett Tp., 132 F. 627.

01. Consequently the county officers who 4 Cur. Law. MUNICIPAL BONDS \[Special Article\].

## 9 Scaling overissue

Bonds issued by a municipality in excess of the amount prescribed by statute are void only to the extent of the excess \[28\].

## 10 Enforcement of improvement bonds against abutters

In some states the person contracting to make local improvements or the holder of bonds for same is given a remedy direct or secondary against abutting owners \[29\].

## 11 Recitals of Law in Municipal BONDS.

\[Special Article\]

### Constitutional authority

A reetical that bonds are issued "in conformity with," "by virtue of, or under authority of," a constitutional provision, puts the purchaser upon inquiry as to the meaning of all those provisions, and at his peril he must ascertain whether they have been fulfilled. The earlier cases tried to make a distinction between a statutory and a constitutional provision, taking the ground that constitutional provisions were absolute in their nature, and that no recital could work an estoppel \[30\]. Dillon, in his work on Municipal Corporations (vol. 1, p. 607), makes the statement that there is "no estoppel by recital to set up defense of an overissue contrary to a constitutional limitation." And he cites Buchanan v. Litchfield, 102 U. S. 278, 26 Law. Ed. 138, and Dixon Co. v. Field, 111 U. S. 83, 28 Law. Ed. 360. The first case has no recital on the constitution. The second case contained the recital that the bonds were issued "under and by virtue of the constitution." But here the face of the bonds showed that they did not comply with the constitution. However, nearly all the cases involving constitutional authority have arisen on an issuance of bonds beyond the limit of indebtedness prescribed by the constitution. In all these cases a general recital has worked no estoppel \[51\]. But in later cases, where the bonds have expressly recited that the limitation of indebtedness prescribed by the constitution has not been exceeded, this recital has been held to work an estoppel to prove the contrary \[52\].

### Legislative authority

Recitals on legislative authority refer the purchaser to the statute, and put him upon inquiry as to all the terms and conditions of the same.\[33\] He is chargeable with and bound to know whether the legislative grant is valid or not.\[34\] Where the legislative act refers the purchaser to certain records to ascertain the fulfillment of certain prescribed conditions, the purchaser is put upon inquiry as to the contents thereof,\[35\] and in such cases no recitals will estop the defense of the facts shown by the public record.

_Legislative authority through ordinance of city._--Recitals in bonds that they are issued under legislative authority, and in compliance with an ordinance of the city, would, in accordance with the earlier cases, put the purchaser upon inquiry as to the terms of that ordinance, and would not estop any defense of lack of compliance with the same.\[36\] But the later decisions are to the effect that recitals in a bond that they are issued in pursuance of an act of the legislature and an ordinance of the city council passed in pursuance thereof does not put the purchaser upon inquiry as to the terms of the ordinances under which the bonds are issued.\[37\]

_Legislative authority through order of the county court._--In Post v. Pulaski Co., it is held that a recital in county bonds that they are issued pursuant to an order of the county court puts all persons dealing in the bonds upon inquiry as to the terms of the order.\[38\] This case was one where the defense was that bonds had been given as donation, and the records showed that fact, and it was held that the recital did not estop the facts of the record. This case, and the doctrine there laid down, will appear to be much modified by later cases, if in fact it is not overruled.\[39\]

_Where the legislature. has applied curative legislation._--The curative power of the legislature has been exercised in many cases. It has been held that a legislature has the power to subsequently ratify and give validity to an illegal bond issue, or to cure all irregularities in any issuance of bonds.\[40\]

_Lis pendens._--Bonds being negotiable paper, the his pendens does not act as constructive notice to the bona fide purchaser.\[41\]

39. Board of Com'rs v. National Life Ins. Co., 32 C. A. 591; Provident Life & Trust Co., 32 C. A. 592; Provident Life & Trust Co. v. Mercer County, 170 U. S. 593, 42 Law. Ed. 156; Wessonv, Salline Co., 20 C. C. A. 227; Evanvallville v. Dennett, 161 U. S. 434, 40 Law. Ed. 76; Orleans v. Platt, 99 U. S. 676, 25 Law. Ed. 404. Warren County v. Marcy, 97 U. S. 96, 97 Law. Ed. 977; Carroll County v. Smith, 11 C. S. 556, 28 Law. Ed. 517; Scotland Co. v. Hill, 132 U. S. 107, 33 Law. Ed. 261; Lytle V. Lansing, 147 U. S. 59, 37 Law. Ed. 78: State V. Wilthic County Comm's, 59 Kan. 512;
01. Ritchle v. Franklin County, 89 U. S. 67, 22 Law. Ed. 855; Lee County v. Rogers, 7U. S. 181, 19 L Law. Ed. 166; Campbell V. Kenosha, 72 U. S. 194, 18 Law. Ed. 610; Gelpecke v. Dubnugne, 68 U. S. 175, 17 Law. Ed. 520; Oto County v. Walborn, 111 U. S. 13, 28 Law. Ed. 331; Quincy v. Cook, 107 U. S. 549, 27 Law. Ed. 549; Thompson v. Perrine, 103 U. S. 86, 26 Law. Ed. 612; Jonesboro v. Cloro, 110 U. S. 192, 28 Law. Ed. 116; Rogers v. Keokuk, 154 U. S. 546, 18 Law. Ed. 74; Thompson v. Lee County, 70 U. S. 327, 18 Law. Ed. 177. State cases under curative legislation: Bass v. Columbus, 30 Ga. 845; Black v. Cohen, 52 Ga. 621; Keithburg v. Frick, 34 ill. 405; Gage v. Nichols, 135 Ill. 128; Williams v. People, 132 Ill. 574; Schneck v. Jeffersonville, 152 Ind. 204; State v. Osaww-Kee, 14 Kan. 418; People's Bank v. Pomona, 48 Kan. 351; McConnell v. Hammond, 16 Kan.

General recidals.Recitals that a bond was issued "by virtue of," "under the authority of," "in compliance with," cr "in conformity with," a specific legislative act were held in the earlier cases to import a full compliance with the precedent conditions of the legislative act; the only question then being, "What authority did those issuing the bonds have in making the recitals?"42 This question being answered that they possessed full authority to determine upon the precedent conditions, then the recitals acted as an estoppel to set up want of compliance with the conditions prescribed, but afterwards, when certain precedent conditions came to be recognized as absolute or nearly absolute, such as the constitutional limitations or statutory limitations in the creation of indebtedness, and when records became more and more of a public nature, the necessity arose of having express recitals on these quasi absolute conditions in order to raise an estoppel, so that a general recital at the present day covers only mere irregularities, and is often treated as a conclusion of law."43 This has been most apparent in the cases where the issuance exceeded the legal indebtedness. The late cases hold that a general recital does not create an estoppel, to prove by the assessment rolls a contrary fact,"44 but that an express recital does create an estoppel to prove the contrary of the fact recited."45 But a general recital that bonds are issued "under and pursuant to the laws and constitution" of a state, and referring to no specific authoritative legislative enactment, raises no estoppel whatsoever, and is treated as a mere conclusion of law."46

Where bonds are issued for an illegal purpose.It is clear, where bonds are issued for an illegal purpose, and there is no recital upon the purpose of the issuance, that the defense of a nonpublic purpose is available, and that the bonds are invalid."47 But where the statute granting the power to issues states the purpose for which bonds may be issued, and there is a recital in the bonds issued of due compliance with the precedent conditions of the statute, this recital acts as an estoppel to set up an issuance for an illegal purpose."48 Likewise, where there is an express recital in the bonds of the purpose for which they are issued, this acts as an estoppel to set up the contrary."49

228: Central Branch U. P. R. Co. v. Smith, \[118 Law. Ed. 190; Katzenberger v. Aberdeen, 23 Kan. 145; Smith v. Stephen, 66 Md. 881; 121 U. S. 177, 30 Law. Ed. 913.

Bradley v. Franklin Co., 65 Mo. 658; 47. Barnet v. Denison, 145 U. S. 135, 36 Stiens v. Franklin Co., 48 Mo. 166; Law. Ed. 652. It is certainly a reasonable Rogers v. Railway Co., 21 Hum \[N. Y. 44; requirement that the bonds issued shall Xin-In re Byrnes, 11 N. Y. 8. 113; Alexander v. press upon their face the purpose for which McDowell's Com'rs, 70 N. C. 208; Duke v.

Williamsburg Co., 21 S. C. 419; State v. Harper, 30 to take notice, and if it appeared upon their

Whitesides, 30 S. C. 586; State v. Neely, 30 S. C. 587; Knapp

face that they were issued for an illegal

V. Grant, 27 Wis. 147; Kimball v. Rosendale,

purpose, they would be void. If they were

42 Vis., 407; Baker v. Seattle, 2 Wash. St.

576: State v. Winter, 15 Wash. 407.

upon their face, the purchaser took the risk

42. Knox Co. v. Asplmwall, 21 How. \[U. S.\] S39, 16 Law. Ed. 208; Meerer County v.

pose, and, if that proved to be the case, they

Hackett, 68 U. S. 83, 17 Law. Ed. 548; Hum-

boldt Tp. v. Longz, 92 U. S. 64, 23 Law. Ed.

ceived them with express notice of their 1-

52; Marcy v. Oswego Tp., 92 U. S. 638, 23 Law. Ed.

Law. Ed. 748; Town of Coloma v. Eaves, 92 U. S. 86, 25 Law.

U. S. 484, 28 Law. Ed. 579.

43. Francis v. Howard Co., 4 C. C. A. 460.

01. Dixon County v. Field, 111 U. S. 83, 342, 26 Law. Ed. 1127; Evansville v. Dennett,

28 Law. Ed. 360; Suttul v. Board of Com'rs, 161 U. S. 434, 40 Law. Ed. 760.

147 U. S. 230, 37 Law. Ed. 147; Geer v. School

49. Hackett v. Ottawa, 98 U. S. 86, 25

Dist. No. 11. 38 C. C. A. 382.

45. Board of Com'rs. Sutlliff, 38 C. C. A. 45.

U. S. 342, 26 Law. Ed. 1127; City of Cadillac

167; Gunnison County v. Robillins, 173 U. S. V. Woonsocket Inst. for Savings \[C. C. A

## 7.3. Multiplal Corporations

### 7.1. Nature, Attributes and Elements (72x)

1. **A. Creation and Corporate Existence (72x).**

1. **A. Creation and Organization (721).**

1. **B. Consolidation, Succession, and Dissolution (722).**

1. **C. Classes and Classification (722).**

1. **D. Remonstrances; Quo Warranto (723).**

1. **S 2. The Charter; Adoption, Amendment, Repeal and Arborgent (723).**

1. **S 4. The Territory (724). The Procedure (724). Division Into Wards (724). ,Plats (724).**

1. **S 5. Officers and Employees (725).**

1. **A. In General (726).**

1. **B. Election or Appointment (725).**

1. **C. Term of Office or Employment (725).**

1. **D. Vacancies and Hold-overs (726).**

1. **E. Transfers on Amendment or Adoption of New Charter (726).**

1. **F. Removal, Reductions and Reinstate-**

1. **G. Compensation (727).**

1. **H. Pensions and Reilefs (727).**

1. **G. Municipal Records and Their Custody and Examination (728).**

1. **S 7. Authority and Power of Municipality (728).**

1. **A. Legislative Control (728).**

1. **B. Express, Implied, Custenary and Prescriptive Powers (729).**

1. **C. Delegation of Powers (730).**

1. **D. Exercise of Powers (730).**

1. **E. Mandatory and Directory (731).**

1. **F. Judicial Control Over Exercise of (731).**

1. **S 8. Legislative Functions of Municipalities and Their Exercise (731).**

1. **A. Nature and Extent of Legislative Power (731).**

1. **B. Meetings, Votes, Rules and Procedure (732).**

1. **C. Records and Journals (733).**

1. **D. Title and Ordaining Clauses (733).**

1. **Scope of title.** This article is designed to treat, as strictly as may be proper, the law of municipalities as distinguished from that of streets and other public ways,50 parks and public grounds,51 bridges,52 public utilities, works and improvements,53 health and sanitation,54 buildings and injuries therein and building regulations,55 the local taxing power,56 licenses and licensing,57 the granting of franchise,58 and the law of public officers generally.59 The particular applications of the general law of municipalities to these several subjects should be sought in the titles just cited. There also will be discussed cases under laws and regulations peculiar to streets and the like. The body of laws relating to each of these largely 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 those respective titles relating to the subject-matter of such powers and duties.

1. Highways and Streets, 3 Curr. L. 1593.\*\*

1. **S5. Buildings and Building Restrictions, 3 Curr. L.**

1. **C. Terr. L. 572.**

1. **S5. Public Works and Improvements, 2 Curr. L. 1328; Sewers and Drains, 2 Curr. L. 1628; Waters and Water Supply, 2 Curr. L. 2034.**

1. **S5. Officers and Public Employees, 2 Curr. L. 1069.**

1. **S5. Public Works and Public Provers, 3 Curr. L. 1786.**

1. **S5. Policies and Proving Definitions (734).**

1. **S6. Traces, 2 Curr. L. 1786.**

1. **S7. Licensees, 4 Curr. L. 428.**

1. **S8. Fernandes, 3 Curr. L. 1495.**

1. **S9. Officers and Public Employees, 2 Curr. L. 1069.**

1. **S10.** 4Cur. Law. MUNICIPAL CORPORATIONS SS 2$\\lambda$. 721 SS 1. _Nature, attributes and elements._\[60\]--The term municipal is appropriately applied to all corporations exercising governmental functions, either general or special.\[61\]

A municipal corporation, although a political division of the state, possesses two separate and distinct powers, one of which may be termed governmental or public,\[62\] and the other private, corporate or ministerial.\[63\] In the exercise of the first of these powers, the city or village is invested with delegated powers of sovereignty,\[64\] while in the second instance it occupies the same relation to the individual that any corporate body does.\[65\]

_Name._\[66\] SS 2. _Creation and corporate existence. A. Creation and organization._\[67\]--The creation, definition of boundaries and dissolution of municipal corporations, and the powers to be exercised by them are subject to the legislative control of the state creating them.\[68\] They may be created by special: enactment of the legislature,\[69\] but in most states the power to pass special acts of incorporation has been greatly restricted, or altogether abolished.\[70\] Under some laws incorporation may also be by an order of court.\[71\] Such an order having the full force and effect of a judgment,\[72\] and not being open to collateral attack.\[73\]

Incorporation is consumulated by acceptance, usually signified: by election,\[74\] or petition,\[75\] by the prescribed number of voters,\[76\] upon proper notice.\[77\]

\*\*60. See 2 Curr. L 911. 61. An irrigation district is a municipal corporation. Mechments' Nat. Bank v. Es. 68. Pepin Tp. V. Sage \[C. C. A.\] 129 F. condidor. Drl. Dist., 144 Cal. 829, 77 P. 937. 657. Placing in the hands of the governor But delimiting a specified district and cre-of the state the power to pass on the right ating a board to relieve certain natural to incorporate cities and towns is not re-streams from pollution detrimental to the bignnant to the Mississippi position as health of the neighboring population does submitting to the discretion of the executive not create a municipality. Van Cleve v. Pas. 54.5.

While an appellate court may not take judicial notice of the fact that a city was incorporated under a designated act, yet it may look to the act in order to support a judgment of mandamus against the city.\[8\]

(SS 2) \_B. Consolidation, succession, and dissolution.\[9\]--\_The legislature has plenary power over the dissolution and consolidation of municipalities,\[8\] though their subsisting obligations be impaired.\[8\] Upon the dismemberment, dissolution, or consolidation of municipal corporations, it is for the legislature to apportion their obligations\[2\] and assets, the proceedings of commissioners appointed for that purpose being subject to review by the courts.\[8\] The surrender of a city charter and the incorporation under a general law do not destroy the right of a city to collect taxes and other debts due it under the old charter, nor prevent the enforcement of debts due by the city.\[8\] In the absence of a statute, the courts, on the grounds of public policy, will refuse to annul the charter of a municipal corporation which has stood unchallenged for a period of ten or fifteen years, when the municipality has acquired property and assumed jurisdiction over the streets and alleys of the city.\[8\] A consolidation does not become effective under a law if some act as a proclamation remains to be done.\[8\]

(SS 2) \_C. Classes and classification.\[8\]--\_For the purposes of legislation municipalities may be classified, and, if the classification be proper, laws may be passed affecting only a single class.\[8\] The fact that at the time of a particular enactment

may be rescended by the board at any time

S. 259, 29 Law. Ed. 620. From note to 4 Columbia L. R. 596.

v. San Bernardino County Sup'rs, 142 Cal.

S13, 76 P. 253.

75. State v. Oakland \[Kan.\] 77 P. 694. See

2 Curr. L. 941, a. 17. Where the petition must state the population "as nearly as may be" an allegation that it states the population "as nearly as the same can be stated by your petitioners" is sufficient.

Borchard v. Ventura County Sup'rs, 144 Cal.

16, 77 P. 708.

76. It is essential that there be a sufficient number of signers having the requisite qualifications, else the petition is ineffectual to inaugurate the proceedings, and forms no valid basis for any subsequent step. West End v. State \[Aal.\] 36 S. 423.

01. See 2 Curr. L. 941, n. 18. A statute providing for the posting of "printed" notices of the presentation of a petition for incorporation is met by posting typewritten notices. State v. Oakland \[Kan.\] 77 P. 694.

Aud where the notice must be either by publication or by posting, it is sufficient, where the notice is given both ways, If it is properly given either way. Borchard v. Board of Sup'rs of Ventura County Sup'rs, 144 Cal.

10, 77 P. 708.

78. Territory v. Socorre \[N. M.\] 76 P. 283.

01. See 2 Curr. L. 942.

01. The Arkansas statute permitting the consolidation of municipalities within one mile of each other sustained \[Acts 1983, p. 148\]. City of Little Rock v. North Little Rock \[Ark.\] 79 S. W. 785.

01. Note! The dissolution of a municipal corporation by legislative action has been held valid, though contracts be thereby impaired. Meriwether v. Garrett, 102 U. S. 472, 26 Law. Ed. 197. This result has led to question and criticism. Ex parte Folsom, 131 F. 496. But no such criticism of the rule applies where one is changed into another corporate existence. Mobile v. Watson, 116 U.

S. 259, 29 Law. Ed. 620. From note to 4 Columbia L. R. 596.

82. Carpenter v. Central Covington \[Ky.\]

01. S. W. 919; City of Little Rock v. North Little Rock \[Ark.\] 79 S. W. 785: Pepin Tp.

V. Bage \[C. C. A.\] 129 F. 657: City Council of Denver v. Adams County Com's \[Colo.\] 77 P. 858. But in the absence of such legislation, the municipal corporations receiving the territory of the one dissolved will be severally liable for its then subsisting legal debts in the proportion that the taxable property within it falls within them respectively. Pepin Tp. v. Bage \[C. C. A.\] 129 F. 657. And the power of taxation to be exercised to pay such debts will extend to all the taxable property within their respective jurisdictions, and will not be restricted to the property and persons within the territory annexed. Id. Under the scheme of the Greater New York charter the liability of that city for debts of constituent municipalities is only the same as the liability of such municipalities would have been but for the consolidation. Kahrs v. New York, 90 N. Y. S. 793.

83. Washington Tp. v. Etna \[N. J. Law\]

01. Milster v. Spartanburg, 68 S. C. 26, 46 S. E. 538.

01. State v. Huff, 105 Mo. App. 354, 79 S. W. 1010.

01. The town of Argo did not become merged in the city and county of Denver until applicable thereto there is only one member of the class does not militate against the validity of the legislation." But an act which is limited to those cities which were within the class at the time of its passage, and which is not applicable to those which may thereafter come into the class, is unconstitutional."

(SS 2) \_D. Remonstrances; quo warranto."--\_The organization and existence of a municipal corporation cannot be challenged except in a direct proceeding at the instance of the state," \[92\] and for this purpose quo warranto is the appropriate remedy." While the municipality is a necessary party," an information will not lie against it in its corporate name." The inhabitants of the town need not be joined."

SS 3. \_The charter; adoption, amendment, repeal and abrogation."--\_The charter of a municipality is its constitution." A general incorporation act is the charter of all municipalities organized under it," and any attempt to amend the organic law can only result successfully by a strict compliance with the law governing the subject." A statute repealing the laws under which the charter of a municipality was obtained does not repeal the charters themselves." The constitutions of some states, notably California and Minnesota, provide that cities of a given class may frame their own charters, subject to the constitution and general laws of the state." Such a provision forbids only the adoption of charter provisions contrary to the public policy of the state as declared by general laws, or to its Penal Code," and does not forbid the adoption of charter provisions as to any subject appropriate to the orderly conduct of municipal affairs, although they may

consOfdate is proper classification, and does

90. In re Fagan, 70 N. J. Law, 341, 57 A. not violate constitutional prohibition against

01.

incorporation by special enactment. City of

191. See 2 Curr. L. 943.

Little Rock v. North Little Rock \[Ark.\] 79 **92**, Agner v. Com. \[Va.\] 48 S. E. 493; City of Topeka V. Dwyer \[Kan.\] 78 P. 417.

Population is a proper basis of classifica.

tion. State v. Policemen's Pension Fund

Testues \[VWs.\] 88 N. W. 564; State v. Tow.

94. Where the sole purpose of a quo warmer \[Mo.\] 84 S. W. 10; L'Hote v. Milford, 212

01. 418, 72 N. E. 399. Where cities of over

10,000 inhabitants have power to raise taxes,

validity of the city's incorporation, the city

a taxpayer, in a suit to recover such taxes,

in interest. State v. Huff, 105 Mo. App. 354,

cannot raise the question whether the city

has 10,000 inhabitants. City of Tyler v.

79. S. W. 1010.

Tyler Bagg. & Losan Ass'n \[Tex.\] 81 S. W. 2.

**95**. To save the city in Its name is to admit its existence. The suit must be against

action are stated to be these: (1) All classifica.

fraction must be based upon substantial disinctions which make one class really different from another; (2) the classification

96. West End v. State \[Ala.\] 36 So. 423.

adopted must be germane to the purpose of

the law; (3) the classification must not be

based upon existing circumstances only; it

must not be so constituted as to preclude

addition to the numbers included within a class; (4) to whatever class a law may be-

long it must apply equally to each member

thereot. To which may be added a fifth

rule, that the characteristics of each class

should be so far different from those of

other classes as to reasonably suggest at

least the propriety, having regard to the

public good, of substantially different legislation. State v. Policemen's Pension Fund

Trustees \[VWs.\] 98 N. W. 954. See, also, Van

Cleve v. Passale Valley Sewerage Com's

\[N. J. Law\] 58 A. 571.

88. State v. Policemen's Pension Fund

Trustees \[Ws.\] 98 N. W. 954: City of Little

Rock v. North Little Rock \[Ark.\] 79 S. W. 785; Hager v. Gast \[Ky.\] 84 S. W. 556.

90. In re Fagan, 70 N. J. Law, 341, 57 A.

01.

incorporation by special enactment. City of

191. See 2 Curr. L. 943.

Little Rock v. North Little Rock \[Ark.\] 79 **92**, Agner v. Com. \[Va.\] 48 S. E. 493; City

93. West End v. Shvet \[Kan.\] 78 P. 417.

Population is a proper basis of classifica.

tion. State v. Policemen's Pension Fund

Testues \[VWs.\] 98 N. W. 954: State v. Tow.

94. Where the sole purpose of a quo warmer

01.

differ in details from those of existing general laws.\[5\] The California constitution provides that a city charter may be amended at intervals of not less than two years by proposals therefor submitted by the legislative authority of the city at a general or special election. Under this provision it is discretionary with the city's legislature to call a special election on petition for submission of amendments, or to wait until the next general election,\[6\] and charter amendments need not be concurred in by the mayor, or presented to him for approval, as prerequisites to their submission to the electors.\[7\]

Judicial notice is. taken of municipal charters.\[8\]

SS 4. _The territory. Annexations and severances; wards and divisions.\[9\]_--The legislature having power to change the boundaries of a municipal corporation,\[10\] may impose conditions,\[11\] and determine the rights and liabilities of the respective jurisdictions,\[12\] and the power to fix territorial limits may be delegated,\[13\] Real estate situate in disconnected territory is. no longer subject to taxation by the municipality.\[14\]

_The propriety of annexation is often:_ proposed wholly or partly in discretion.\[15\] Whether a city is entitled to annex unincorporated adjacent territory pursuant to an ordinance passed to that end, or whether the inhabitants of the territory are entitled to incorporate as a town, pursuant to procedure to accomplish incorporation, depends on the priority of the initial step taken by the respective sides.\[16\]

_The procedure.\[17\]_--In Nebraska a judgment of a court in a proceeding to detach territory from a municipal corporation will not be impeached upon appeal in the absence of a showing that the trial judge committed an important mistake of fact or made an erroneous inference of fact or of law.\[18\]

_Division into wards.\[19\]_

_Plats.\[20\]_--A regulation that no plat of any addition shall be approved when any part of the land is subject to liens for city taxes is not unreasonable.\[21\] Where an act creating a village refers to a map thereof, shown to have been the only map in existence, and incorporates the village according to such map, the village agreeing to the same, all owning property in such village are bound thereby.\[22\] A statute

\[5\] The subject of city contracts for public improvements and bonds to secure perform- and of them and the payment of laborers and materialmen is such an one. Grant v. Town of North Little Rockr.\] 79 S. Berrisford.\[Minn.\] 101 N. W. 940.

6\] Const. art. 12, $. Labuliner v. Board of Supr. of San Francisco \[Cal.\] 78 P. 732.

7\] Harrison v. Roberts \[Cal.\] 78 P. 537.

8\] City of Polar Bluf v. Hill, 92 Mo. App. 417.

9\] See 2 Curr. L. 944.

10\] Laws 1895, p. 1314, c. 617, extending the boundary of Rochester, is valid. In re Hollister, 96 App. Div. 501, 89 N. Y. S. 518,

11\] It may make: It a. condition upon which the law shall take effect that the people or the council representing them shall assent to the proposed change. City of Little Rockr v. North Little Rockr \[Ark.\] 79 S. W. 785.

12\] Peplin Tp. v. Sage \[C. C. A.\] 129 F. 657: Kahns v. New York, 90 N. Y. S. 783: City Council of Denver v. Adams County Com'rta.\[Colo.\] 77 P. 858. Under a statute that a town annexing another shall be bound for all the debts of the annexed town, a town annexing unincorporated territory assumes no obligation. Carpenter v. Central Covlington \[Ey.\] 81 S. W. 912. The fact that a city from which territory has been detached is imposing a penalty for selling lots without first having a plat of the town or subdivision recorded should be construed to apply only to towns thereafter incorporated.28

Footnote 28: The author is grateful to the anonymous referee for his comments.

Footnote 29: The author is grateful to the anonymous referee for his comments.

Footnote 30: The author is grateful to the anonymous referee for his comments.

Footnote 31: The author is grateful to the anonymous referee for his comments.

Footnote 32: The author is grateful to the anonymous referee for his comments.

Footnote 33: The author is grateful to the anonymous referee for his comments.

Footnote 34: See 2 Curr. L. 948.

Footnote 35: The author is grateful to the anonymous referee for his comments.

Footnote 36: The author is grateful to the anonymous referee for his comments.

Footnote 37: A resolution is sufficient. Huey v. Jones, 140 Ala. 479, 37 So. 193. See 2 Curr. L. 951, 78.

Footnote 38: Failure to file because of pending judicial decision. Murdoch v. Strange \[Md.\]

Footnote 39: City of Oakland v. Snow \[Cal.\] 78 P. 1060.

Footnote 40: See 2 Curr. L. 951.

Footnote 41: Under the Texas constitution, limiting the terms of all officers not otherwise fixed to two years, a policeman holds for that term subject to removal for cause. City of Houston v. Estes (Tex. Civ. App.) 79 S. W. 848.

Footnote 42: Reduction of term on grant of new charter. Attorney General v. Shekell \[Mich.\]

Footnote 43: We thank the anonymous referee for his comments.

Footnote 44: See 2 Curr. L. 948.

Footnote 45: We thank the anonymous referee for his comments.

Footnote 46: The author is grateful to the anonymous referee for his comments.

Footnote 47: See 2 Curr. L. 948.

Footnote 48: We thank the anonymous referee for his comments.

Footnote 49: See 2 Curr. L. 951.

Footnote 41: Under the Texas constitution, limiting the terms of all officers not otherwise fixed to two years, a policeman holds for that term subject to removal for cause. City of Houston v. Estes (Tex. Civ. App.) 79 S. W. 848.

Footnote 42: Reduction of term on grant of new charter. Attorney General v. Shekell \[Mich.\]

Footnote 41: We thank the anonymous referee for his comments.

Footnote 43: We thank the anonymous referee for his comments.

Footnote 44: See 2 Curr. L. 951.

Footnote 41: Under the Texas constitution, limiting the terms of all officers not otherwise fixed to two years, a policeman holds for that term subject to removal for cause. City of Houston v. Estes (Tex. Civ. App.) 79 S. W. 848.

Footnote 42: Reduction of term on grant of new charter. Attorney General v. Shekell \[Mich.\]

Footnote 41: We thank the anonymous referee for his comments.

Footnote 43: We thank the anonymous referee for his comments.

Footnote 44: See 2 Curr. L. 951.

Footnote 41: Under the Texas constitution, limiting the terms of all officers not otherwise fixed to two years, a policeman holds for that term subject to removal for cause.

department created by ordinance could not survive as a bureau entrusted with like duties created by an amended charter which abolished the department.\[43\] The term of office is not limited to the term of the appointing power.\[44\] The tender and acceptance of an unqualified resignation terminates the term of office.\[45\]

(SS 5) _D. Vacancies and hold-overs.\[46\]_

(SS 5) _E. Transfers on amendment or adoption of new charter.\[47\]_--On the adoption of the charter of Greater New York, the office of water registrar of the former city of Brooklyn was abolished;\[48\] but a teacher in the schools of Brooklyn was continued in the same position when the city in question became a part of the city of New York, until removed for cause.\[49\] Under a statute changing the composition of common councils of cities of a given class, the council in existence at the passage of the act continued until the election of its succeeding members.\[50\]

(SS 5) _F. Removal, reductions and reinstatement.\[51\]_--The power to remove municipal officers is statutory.\[52\] As a rule ministerial agents or officers employed durante bene placito are removable at will.\[53\] But if the removal be for cause the act of removal is judicial,\[54\] and the person involved is entitled to a hearing.\[53\] Removal by police commissioner, the proofs having been taken before his deputy, is irregular.\[54\] Incompiency,\[57\] neglect of duty,\[58\] or misconduct,\[59\] are sufficient grounds for removal. Where a reclassification involves a quasi-judicial determination, mandamus will not lie to compel it.\[60\] A suspension being made after the term of office expired by limitation, it is immaterial that the suspension was not in accordance with city charter.\[61\] In Kentucky, peace officers being an arm of the state cannot be suspended a given number of days in each month in order to keep within an appropriation.\[62\]

_Reinstatement.\[63\]_--A relator is not entitled to reinstatement because of error in the notice of his suspension, his rights having been preserved in a communication to the civil service commission in pursuance of which he was appointed to the first vacancy thereafter occurring.${}^{64}$

(SS 5) \_G. Compensation.${}^{65}$--A municipality being an arm of the state, its officers derive their compensation by virtue of law and not contract.${}^{66}$ Unless restrained by constitutional provisions,${}^{67}$ the power authorized to fix the compensation${}^{68}$ may, even during the term of an incumbent,${}^{69}$ alter or amend his future compensation.${}^{70}$ Salaries of mere employees are subject to reductions,${}^{71}$ but where an officer has been unlawfully discharged and reinstated, he is entitled to his salary during the interim.${}^{72}$ Where the offices of auditor and assessor were combined, the declaration of the incumbent that he intended to claim commissions on the sums collected as assessor did not confer on him a right thereto,${}^{73}$ nor did the fact that he previously retained such commissions,${}^{74}$ nor that some of the city officials had approved of his act or consented thereto,${}^{75}$ nor the fact that it was a matter of common notoriety.${}^{70}$ Additional compensation for unanticipated or extraonerous services may be granted.${}^{77}$ Whether an architect's compensation was fixed at 5 per cent. of the estimated cost of the building was a question for the jury.${}^{78}$ One who by mandamus has compelled the payment of the principal of his salary cannot thereafter recover the interest thereon.${}^{79}$ Under the Greater New York charter an action to recover a teacher's salary was properly against the board of education and not against the city.${}^{80}$ It is against public policy to subject the salaries of public officers and employees to garnishee or trustee process.${}^{81}$

(SS 5) _H. Pensions and reliefs.${}^{82}$--In some municipalities policemen and firemen may, after expiration of their term, or when incapacitated from injuries received in the service, he retired on a pension,${}^{83}$ or assigned to nonactive duties;${}^{84}$ in some instances the pension extends to the benefit of the widow.${}^{85}$_

64. People v. Monroe, 90 N. Y. S. 907.

01. See 3 Carr. L. 955.

01. City of Louisville v. Gorley, 25 Ky. L. R. 2174, 80 S. V. 903.

01. Laws 1894, p. 1141, c. 543, making the city of New York Ilabe for the unpaid salary of a de jure officer, is unconstitutional. Stemmler v. New York \[N. Y.\] 73 N. E. 681.

01. Salaries of inspector and assistant in-sector of Brooklyn fire department are fixed by board of estimate and not by fire commissioners. Flynn v. New York, 174 N. Y. 621, 66 N. E. 1109, afg. without written opinion 69 App. Div. 432, 75 N. X. 8. 15. Likewise salaries of uninformed members of the department. People v. Scannell, 171 N. Y. 690, 44 N. E. 1124, afg. without opinion 71 App. Div. 491, 75 N. Y. 8. 904.

01. Where a city ordinance increasing the salary of an official was passed after the election of the official, but before his qualification, the increase was not during the term of office. Riggins v. Richards \[Tex Civ. App.\] 79 S. W. 84.

01. No vested right to salary. State v. Poliecmen's Pension Fund Trustees \[VWs.\] 98 N. W. 954. The compensation of officers or agents employed durante bene placeto may, with the consent of such officer, be lawfully altered or changed at any time. Carling v. Jersey City \[N. J. Law\] 85 A. 395.

01. See 2 Curr. L. 957, n. 58. Where the reduction of a salary rested with a deputy commissioner, the fact that the commissioner or directed the reduction is immaterial, the act being that of the deputy. Hartmann v. New York, 44 Misc. 272, 89 N. Y. S. 912.

01. City of Houston v. Estes \[Tex. Civ. App.\] 79 S. W. 848; City of Chicago v. People, 210 Ill. 84, 71 N. E. 816. The provision the New York law (Laws 1904, p. 1513, c. 637), that where a veteran has been unlawfully removed and restored his compensation shall date as though no removal had been made, is constitutional. People v. Grout, 44 Misc. 526, 90 N. Y. S. 122.

73, 74, 75, 76, City of Oakland v. Snow \[Cal.\] 78 P. 1060.

77. Congdon v. Nashua, 72 N. H. 468, 57 A.

01.

01. Withers v. New York, 92 App. Div. 147, 86 N. Y. S. 11 728 - MUNICIPAL CORPORATIONS SS 6. 4 Cur. Law.

the beneficiary to recover, decodent must at his death have been a member of the force."

SS 6. _Municipal records and their custody and examination."_--Where it appears that a person claiming office has received a certificate of election or appointment from the proper person, he is entitled to an order for the possession of the books and papers pertaining to that office."

SS 7. _Authority and power of municipality. A. Legislative control."_--Unless specially restricted, a municipal corporation possesses the general powers of a municipality at common law." But the right to have all matters of local concern intrusted to municipal corporations is not inherent." Within constitutional limits," the people of a state, acting through the general legislature, may delegate to municipalities," or to any particular boards thereof," such portions of political power as they may deem expedient, may withhold other powers," and may withdraw or resume the whole or any part of that which has been delegated." But the legislature, while free to grant such powers and impose such duties as it will, may not relieve the municipality of the liability to be sued for a breach of duty," nor may it compel a municipality or its inhabitants by taxation to establish a work of purely local concern." For the preservation of the public health, however, the state may exercise compulsory authority, and may enforce performance of local duties either by employing local officers or through agents of its own appointment." The legislature is powerless to authorize the expenditure of public funds by a municipal subdivision of the state, except for a public purpose."

**SS6.** Price v. St. Lotus Police Relief .Ase",

90 Mo. App. 213.

87. See 2 Curr. L. 964. See, also, post, SS 8C.

01. A certificate is not essential in every instance; it is only necessary to establish a prime facile title to office. In re Brearton,

44 Misc. 247, 89 X. T. 888.

89. See 2 Curr. L. 946.

01. Under such common law powers it may authorize and pay for special legal services. City of Moorhead v. Murphy

\[Minn.\] 102 X. W. 213.

91. Van Cleve v. Passale Valley Sewerage Com'rs \[N. J. Law\] 58 A. 571. The power to impose license taxes is not inherent in municipal corporations, and will never be held to exist unless it has been conferred by the state either in express terms or by necessary implication. Commissioners or Cambridge Water Co. (Mtd.):

58 A. 442.

92. The general assembly has no power to create a city court and provide for a direct writ of error therefrom to the supername court in any municipality other than an incporated city. White v. State, 121 Gu. 592, 48 B. E. 715. The constitutional problem of special legislation is absolute with respect to that which regulates the Internal affairs of municipalities. But the word "Internal" here means governmental, and not terrifically, internal. Van Cleve v. Passale Valley Sewerage Com'rs \[N. J. Law\] 58 A. 571. The general assembly of officers to administer the affairs of the city of New Orleans or to control the appration of its revenues. Act No. 57, 1992, is unconstitutional. Board of Com'rs

01. See 38. S. 571.

01. Construction of trunk sewers by state board. Van Cleve v. Passale Valley Sewerage Com'rs \[N. J. Law\] 58 A. 571.

01. We can Cleve v. Passale Valley Sewerage Com'rs \[N. J. Law\] 58 A. 571.

01. Van Cleve v. Passale Valley Sewerage Com'rs \[N. J. Law\] 58 A. 571. See 2 Curr.

01. Williams v. Port Chester, 97 App. Div.

01. S. N. 611.

01. Van Cleve v. Passale Valley Sewerage Com'rs \[N. J. Law\] 58 A. 571. But it is with- the power of the legislature to create special tax districts and to charge the cost of local improvements in whole or in your own the property in said districts by special assessments, either according to valuation, superspecial area or frontage. Ket-

01. V. Dallas \[Tex. City. App.\] 80 A. 571.

01. Meier v. St. Louis, 180 Mo. 591, 79 S. W.

01. Is unconstitutional. Board of Com'rs

01. Construction of trunk sewers by state of Jackson Square v. New Orleans, 112 La.

957, 86 So. 571. The California provisions

95. The reimbursement by the city coun
    Status affecting municipal corporations should be general,2 and when general clauses are followed by special clauses, the latter prevail.3 One dealing with the officers of a municipality is bound at his peril to take notice of the limitations upon their power and authority.4

(SS 7) \_B. Express, implied, customary and prescriptive powers.5--Incorporated cities and towns have only the following powers: Those granted in express words;6 those necessarily implied or incident to the powers expressly granted;7 those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.8 Grants of power are strictly construed, so as not to extend them beyond the purpose of the legislature.9 Yet the construction must not be so strict or technical as to defeat the evident objects and purposes of their creation.10 While power may be granted to municipal corporations to acquire water11 or lighting12 plants for municipal purposes, a city or town has no power to become a stockholder in a waterworks or other corporation, or to borrow money by

cfl of a defeated candidate for a public office, for expenses incurred in conducting an election contest is an expenditure of public funds for a private purpose and therefore, 92 Minn. 84, 93 Minn. 84, 93 N. W. 361.

B. To make the law general It is not necessary that it should operate upon all cities and towns of the state. It is suffix of the higher grade.

cient if it applies to all cities and towns within the class named in the statute. City of Little Rock v. North Little Rock \[Ark\]:

19 S. V. 785.

S. City of St. Louis v. Kainre & Bro. Real Estate Co., 180 Mo. 309, 79 S. W. 140.

Estate Co., 180 Mo. 209, 79 S. W. 140. See 2 Curr. L. 946, n. 7. In Smith v. Hights-

2 Curr. L. 946, n. 10. Removal of city mar-

3 shall. Christy v. Kingfisher \[Ock\]. 76 P. 135.

Co., 180 Mo. 309, 79 S. W. 140.

Provisions in a charter as to closing saloma

not abrogative of similar provisions of the

buy an existing plant and for an addition state law. Moore v. Kelley \[Mich.\] 98 N. W. 1959.

4. Bennett v. Mt. \[Towa\] 100 N.

5.14; Citizens' Bank v. Spencer \[Iowa\]

101 N. W. 643; Lowery v. Pekin, 210 Ill. 575.

11 N. E. 626.

5. See 2 Curr. L. 946.

1. Voss v. Waterloo Water Co. \[Ind.\] 71 N. E. 208. Fourth class cities in Washington

1. vonay grant franchises to erect and main-

tract for a water supply and to include in

tain electric light and power plants. State

v. Taylor \[Vwash.\] 79 P. 286. The power of

a municipal corporation to grant license for

the sale of spiritures liquours within its

-

issuing bonds to pay for such stock, unless expressly authorized.13 In absence of prohibitive charter provisions, a municipality has power to reimburse a police officer for expenses and attorney's fees incurred in the defense of an action for false imprisonment.14

_Extraterritorial powers.15--A municipal court may not try an offender for offense committed outside of the city.16_

_The power to legislate.17--The power to legislate upon local matters must be exercised consistently with general laws and fundamental rights.18_

(SS 7) _C. Delegation of powers.19--Functions or powers involving the exercise of judgment or discretion granted to legislative or administrative bodies cannot be delegated to an individual or committee thereof.20 Absolute, fixed, and purely ministerial functions, however, may be delegated,21 and the principle that delegated power may not be delegated is not violated where the delegation is expressly authorized.22 In cases of the delegation of a public authority to a committee, the authority conferred, if ministerial in character, may be exercised and performed by a majority of the whole number.23 But if the act to be done requires the exercise of discretion and judgment, the duty cannot be discharged by a majority unless upon notice to the minority and opportunity to be present.24_

(SS 7) _D. Exercise of powers.25--Where the mode of exercise of an express power is prescribed, it must be followed.26 If the manner of exercise is not prescribed, the power must be exerted in a manner that will not create a nuisance or cause injury.27 When a city or village council has acted, the presumption is that it has acted lawfully, and had before it sufficient facts to warrant it in acting.28_

12. Yoss v. Waterloo Water Co. \[Ind.\] _ers and water company a like number, whose determination as to value the city might accept or reject, in exercising an option to purchase the company's water plant, did not amount to a delegation of power. Liver-more v. Millville \[N. J. Law\] 59 A. 217. Matters requiring exercise of discretion are legislative in character and cannot be delegated to under officers. Draper v. Fall Rivier, 185 Mass. 142, 69 N. E. 1068._

_Pivilges, is not invested, either by statutory provisions or by the exercise of the authority necessarily incident to the discharge of its corporate rights and the performance of its duties, with the power to lay out and construct drains and sewers in such a manner as to impose any legal liability upon the city for a nuisance created thereby. Atwood v. Bilddeford \[Mc.\] 58 A. 417._

13. See 2 Carr. L. 947. The power to vacate streets may be delegated to the municipal corporation. Mariet-to-dategate a board appointed for the purpose a discretion in granting permits or licenses has been sustained. Fischer v. St. Louis, 194 U. S. 361, 48 Law. Ed. 1018; Schefe v. St. Louis, 194 U. S. 373, 48 Law. Ed. 1024. The board of trustees of a city may not by ordinance or otherwise divvest itself for any length of time of legislative and discer-tionary powers used in it by the general law. Submission of proposed public works to voters. Thompson v. Board of Trustees \[Wis. 611, 98 N. V. 550.\_

_The power to legislate.17--The power to legislate upon local matters must be exercised consistently with general laws and fundamental rights.18_

(SS 7) _C. Delegation of powers.19--Functions or powers involving the exercise of judgment or discretion granted to legislative or administrative bodies cannot be delegated to an individual or committee thereof.20 Absolute, fixed, and purely ministerial functions, however, may be delegated,21 and the principle that delegated power may not be delegated is not violated where the delegation is expressly authorized.22 In cases of the delegation of a public authority to a committee, the authority conferred, if ministerial in character, may be exercised and performed by a majority of the whole number.23 But if the act to be done requires the exercise of discretion and judgment, the duty cannot be discharged by a majority unless upon notice to the minority and opportunity to be present.24_

(SS 7) _D. Exercise of powers.25--Where the mode of exercise of an express power is prescribed, it must be followed.26 If the manner of exercise is not prescribed, the power must be exerted in a manner that will not create a nuisance or cause injury.27 When a city or village council has acted, the presumption is that it has acted lawfully, and had before it sufficient facts to warrant it in acting.28_

13. Yoss v. Waterloo Water Co. \[Ind.\] _ers and water company a like number, whose determination as to value the city might accept or reject, in exercising an option to purchase the company's water plant, did not amount to a delegation of power. Liver-more v. Millville \[N. J. Law\] 59 A. 217. Matters requiring exercise of discretion are legislative in character and cannot be delegated to under officers. Draper v. Fall Rivier, 185 Mass. 142, 69 N. E. 1068._

01. See 2 Curr. L. 947. The park department of the city of Buffalo may delegate the actual performance of the work of reinforcing and diverting sewers passing through a public square to the department of public works of said city. Locke v. Buffalo, 97 App. Dlv. 483, 90 N. Y. S. 550. Directing a city engineer to fix the grade of a severe does not constitute a delegation of power. Rich v. Woods \[Ky.\] 82 S. W. 578. The power to vacate streets may be delegated to the municipal corporation. Mariet-ta Chair Co. v. Henderson, 121 Ga. 399, 49 S. E. 312.\_

01. Statute authorizing common council to call upon a court to appoint excise board. Schwarz v. D 4 Cur. Law. MUNICIPAL CORPORATIONS SS 8A. 731

(SS 7) _E. Mandatory and directory._\[29\]--The rules for determination of this question pertain to the title statutes.\[80\] Several instances of statutory provisions declared to be mandatory are given in the notes.\[21\]

(SS 7) _F. Judicial control over exercise of powers._\[82\]--The power of the court to restrain city councils depends on the character of the business they are transacting. When they are considering matters of a purely legislative character, the court has no power to restrain them.\[33\] When their proposed action relates to the ordinary business affairs of the city, they are subject to the control of the court in the same way and to the same extent as other administrative officers or bodies.\[34\] The general principle that legislative acts within the power of the legislative body to pass are not subject to revision or control by the courts on the ground of inexpediency, injustice or impropriety applies to municipal legislatures as well.\[25\] But when there is a question of fraud\[34\] or want of power,\[37\] or where the power or discretion is being manifestly abused to the injury or oppression of the citizen,\[38\] the rule has no application.\[39\] A city council is a unit; it cannot be divided into parts one of which may be restrained as to acts pertaining to it as a whole.\[59\] Whether devoting a park to baseball purposes is a reasonable use of the premises, and whether the creation of structures incident to such use would be'any reasonable interference with the right of the public to use the park, are questions of fact.\[40\]

SS 8. _Legislative functions of municipalities and their exercise. A. Nature and extent of legislative power._\[41\]--Ordinances which have for their object the car- any particular street is reasonable or un- Kemp v. Des Moines \[Iowa\] 101 N. W. 474, reasonable, but it does have power to say Levy of money to meet current expenses. that the city do the work in a manner to Ward v. Piper \[Kan.\] 77 P. 699. It is for avoid unnecessary injury to private property. Kemp v. Des Moines \[Iowa\] 101 N. W. 474. Improvements shall be made and the time of making thereof. Destruction of shade evidence, and until overcome by other evidence it stands as proof of the fact in question. Dalrymple v. State, 5 Ohio C. C. (N. S.)

185.
001.

See 2 Curr. L. 947.

30.

See Statutes, 2 Curr. L. 1707.

31.

See 2 Curr. L. 947.

20.

Statute authorizing ordinances to prevent animals running at large. Huey v. Waldrop \[Ala.\]

37 So. 380. Requirement of Rochester character that warrant for the collection of taxes shall be issued under the hand of the mayor and the seal of the city. City of Rochester v. Bloss, 178 N. Y. 646, 66 N. E. 1105, aff. 77 App. Div. 28, 79 N. Y. S. 286. The provision of the San Francisco character (art. 16, 8 29), that when the supervisors shall determine that the public interest requires the acquisition of any land, the cost of which in addition to other expenses will exceed the revenue provided for in any one year, they must by ordinance submit a proposition to incur a bonded indebtedness for such purpose to the electors at a special election to be held for that purpose, Is mandatory, Law v. San Francisco, 144 Cal. 384, 77 P. 1014. Act providing for the publication of ordinances before time of taking effect. Carpenter v. Yeadon Borough, 208 Pa. 396, 57 A. 837.

32.

See 2 Curr. L. 947.

33.

Shephurne v. Portsmouth, 72 N. H. 539, 58 A. 38; Downing v. Des Moines \[Iowa\] 102.

99 N. W. 1066. The authority of a city to establish the grade of sidewalks is legislative in character, and when exercised with- in prescribed limits cannot be controlled.

732 MUNICIPAL CORPORTATIONS SS 8B. 4Cur. Law.rying into effect of the charter powers grauted to a city are legislative in character."

Power to legislate having been conferred and the method of its exercise not prescribed, ordinances passed in pursuance thereof must be in harmony with state statutes," and they must be reasonable, or courts will set them aside." This is upon the presumption that the legislature did not intend by the general terms of the statute to authorize the making of such an ordinance." Extraneous facts showing the motives for passing an ordinance cannot be inquired into." In respect to all matters legislative in character, a municipality has power to act only through the medium of an ordinance," whereas all acts that are done in a ministerial capacity and for a temporary purpose may be put in the form of resolutions." The necessity for an improvement may be declared and an order thereof made in the same resolution."

(SS 8) B. Meetings, votes, rules and procedure."When municipal officers or boards are called upon to perform acts requiring discretion or judgment in administering public affairs, they can only act at authorized meetings duly held," and authority to call special sessions does not emanate from ordinance; it springs from charter provision." To convene and transact business a legal quorum must be present," and less than a quorum have no power to adjourn," nor may a presiding officer arbitrarily declare an adjournment." A statutory requirement that

42. Village of London Mills v. White, 208

01. Tilly v. Mitchell & Lewis Co. \[Vis.\] III. 258, 70 N. E. 313. The granting of a franchise to use the streets, alleys and pub-

01. Taking private property for public lic places of a municipality to erect poles

use, Martin v. Oskaloosa \[Iowa\] 39 N. V. for lighting or lay pipes for gas, water or

57. Where the provisions of a city code contain authority for the election of a cap-

Meyer v. Boonville, 162 Ind. 165, 70 N. E. 146. But when the municipality enters into

tional ordinance is unnecessary. Huey v. a contract with a party having such tran-

chise to furnish it with such utilities, it exercises a business and not a legislative

by v. Burlington \[Iowa\] 101 N. V. 101. power. Id. The subject of contractors'

the granting of the right to use streets

bonds, to secure the performance of ccn-

tracts with a city, and the payment of labor-

tracts and materialmen, including the contents

of the bonds and conditions and limitations

such, 105 III. App. 146. Appropriations may

as to their enforcement, is germane to the

be made by resolution under the New Jersey

subject of municipal legislation. Grant v. state relating to cities governed by the

Aet of 1897, p. 46. Fox v. Clark \[N. J. Law\]

43. Under the Kentucky constitution, an

59 A. 254. It is not necessary to the validity

ordinance which fixes the penalty for violation thereof at less than that imposed by the

state statute is invalid. Penalty for un-

lawful sale of intoxicating liquor. Xehr v. Com. \[Ix.\] 83 N. V. 638.

44. Paving ordinance. Chicago Union

Traction Co. v. Chicago, 208 Ill. 187, 70 N. E. 234. See 2 Curr. L. 658, n. 73. An ordinance forbidding public meetings on streets without consent of municipal authorities not

vold for unreasonableness (Fitts v. Atlanta,

121 Ga. 867, 49 S. E. 793), nor is an ordinance

that no plant of any addition to city shall

be approved when any part of the land is

subject to lien for taxes (Hillman v. Seattle,

33 Vash. 14, 78 P. 791). But an ordinance

requiring that signal to be given to an approaching locomotive engine that street crossing is free from danger must be given by a member of the crew operating such

engine is unreasonable. Central R. Co. v. Elizabeth, 70 N. J. Law, 573, 57 A. 404.

45. Vefegend v. District of Columbia, 23

App. D. C. 559.

46. Tilly v. Mitchell & Lewis Co. \[Vis.\] III. 258, 70 N. E. 313. The granting of a

98 N. V. 969. See 2 Curr. L. 958, n. 82.

47. Taking private property for public

use, Martin v. Oskaloosa \[Iowa\] 39 N. V. for lighting or lay pipes for gas, water or

57. Where the provisions of a city code contain authority for the election of a cap-

Meyer v. Boonville, 162 Ind. 165, 70 N. E. 146. But when the municipality enters into

tional ordinance is unnecessary. Huey v. A contract with a party having such tran-

Jones, 140 Ala. 47, 87 No. 193.

48. Ordering repair of pavement. Shel-

cycles a business and not a legislative

by v. Burlington \[Iowa\] 101 N. V. 101. power. Id. The subject of contractors'

the granting of the right to use streets

bonds, to secure the performance of ccn-

tracts with a city, and the payment of labor-

than by ordinance is not illegal. Village of

ers and materialmen, including the contents

conditions and conditions and limitations

cut, 105 III. App. 146. Appropri appointments. by a council shall be by a viva, voice vote is complied with when a nomination is made and each member announces his vote for or against it by his voice.\[56\] While a city council is not bound by parliamentary law as recognized and applied in the state legislature or in congress,\[57\] it is nevertheless a legislative body, and its legislative acts, if valid, must be disclosed in a manner consistent with legislative procedure.\[68\] Where certain of the councilmen leave the chamber, the remainder may reorganize and proceed to business.\[50\] The fact that a temporary clerk was not sworn does not render proceedings void.\[60\]

(SS 8) _C. Records. and journals.\[61\]_-Judicial acts of boards which may result in taking for public use private property must be done with due formality and entered of record.\[62\] The record by presumption of law shows the full proceedings,\[63\] and parcel evidence of the proceedings of a municipal body required to be made matters of record is not admissible to supply, extend, modify or contradict the record.\[64\]

(SS 8) _D. Titles and ordaining clauses.\[65\]_-Statutes frequently provide that no ordinance shall contain more than one object which shall be clearly expressed in its title.\[66\] If a title, when taken by itself, relates to a unified subject or object, it is single in its subject, however much such unified subject is capable of division.\[67\] Such a provision has been held to be directory merely.\[68\] An ordinance is not rendered invalid, by the fact that an excepting proviso is found in the enact-the assembly ceases to be a deliberative.\[\]

ordaining clause in the instant case held to body, and whether the chairman is unable be title and not preamble. Silva v. Newport to preserve order, are questions of fact. Attorney General v. Remnick \[N. H.\] SS 8. VI. 741.

66. See 2 Curr. L. 959, n. 8. The title to adhere, Attorney General v. Remnick \[N. H.\] SS 8. VI. 8.3.

01. The nature and extent of the authoring of a mayor as the presiding officer of the council in the absence of rules of procedure adopted by the council and of statutory provisions upon the subject can only be determined by such principles of parliamentary usage as have been generally adopted or preserved in deliberative assemblies. Attorney General v. Remnick \[N. H.\] SS 8. VI. 8.1.

01. 50. 60. Attorney General v. Remnick \[N. H.\] SS 8. VI. 8.1.

01. See 2 Curr. L. 959.

01. Kidson v. Bangor \[Me.\] SS 8. A. 900. Resolutions of a council ordering the widening of a road do not prove acquisition of title in absence of evidence that any proceedings were taken under the resolution. Mott v. Eno, 97 App. Div. 580, 90 N. Y. S. 608.

01. Mott v. Eno, 97 App. Div. 586, 90 N. Y. S. 608. The record of a vote of a city council appointing an incumbent to office does not import a verity, so as to preclude attack in a proceeding by quo warranto on behalf of another candidate for such office. to try the incumbent's title thereto. Daniels v. Newbold \[Iowa\] 100 N. W. 1118.

01. Kidson v. Bangor \[Me.\] SS 8. A. 900.

01. Move v. Tacoma, 34 Wash. 434, 76 P. 73.

If the record of such proceedings shows that a meeting was adjourned to a particular day, parol evidence that it in fact was adjourned to a different day and proceedings then had its inadmissible. Chippwa Bridge Co. v. Durand \[Wis.\] 99 N. W. 603.

65. See 2 Curr. L. 959. All above the ing clause, or in some other clause, or that the offense is defined in one section and the proviso making the exception is found in another.\[99\]

(SS 8) _E. Passage, adoption, amendment, and repeal of ordinances and resolutions.\[70\]_--An ordinance may be taken up on its third reading and passed at a special meeting, though not specially mentioned in the call for the special meeting.\[71\] The reading of an ordinance by its title, where the title does not express the object, is not a compliance with a statute requiring the ordinance to be read three times before its passage.\[72\] Two or more ordinances may be voted on at the same time.\[73\] In the absence of any statutory or charter restriction, a majority of a quorum is sufficient for the adoption or passage of any resolution or order.\[74\] On an issue as to whether an ordinance was properly passed, parol evidence by a member of the council is admissible to show the actual vote by which it passed.\[75\] The approval or signature of the mayor is generally essential,\[76\] but where there is no charter provision granting him any veto or equivalent power, none can be accorded him by the courts.\[77\] The signing or attesting of an ordinance by the city auditor is not essential to its validity, the charter not requiring it.\[78\]

_Publication.\[70\]_--An act providing for the publication of ordinances before they shall take effect is mandatory.\[80\] But failure to publish an ordinance providing for an improvement for the required time after it became effective will not invalidate the assessment for the improvement in the absence of a showing that some property owner was thereby prejudiced.\[81\] Courts will not by mandamus compel a borough to publish an ordinance containing a contract by the borough with an individual so as to complete the contract.\[82\] Publication is presumed after the lapse of many years.\[83\]

_Amendment, suspension, and repeal.\[84\]_--An ordinance cannot be repealed save through the medium of a subsequent ordinance providing therefor in terms or by necessary implication.\[85\] One is not rendered amendatory by the fact that it contains a reference to a prior ordinance.\[86\] A resolution suspending during a

69. Bramley v. Euclid, 2 Ohio N. P. (N. S.) 508.

01. See 2 Curr. L. 960.

01. National Life Ins. Co. v. Omaha \[Neb.\]

102 N. W. 73.

72. Bill Posting Slim Co. v. Atlantic City

\[N. J. Law\] 58 A. 342.

73. City of Louisville v. Gast \[Ky.\] 81 S. W. 693.

01. Thurston v. Huston, 123 Iowa, 157, 98 N. W. 637. See 2 Curr. L. 960, n. 16. Where a statute requires the "unanimous vote of all the members of the council" to pass an ordinance, it is not satisfied by the unanimous vote of a quorum, or even of all the members present. Crickenberger v. Westfield

\[N. J. Law\] 58 A. 1097.

75. Gove v. Tacoma, 34 Wash. 434, 76 P.

01. See 2 Curr. L. 960, n. 18. Whether the signature of the mayor is indispensable to the validity of a municipal ordinance, and whether such signature may be affixed as well at one time as at another, depend upon the language of the charter under which he exercises his functions. Town of New Iberia v. Moss Hotel Co. \[La.\] 36 So. 552.

01. Mayor may not refuse to sign ordinances in fourth class cities in Washington. State v. Taylor \[Wash.\] 79 P. 286.

01. City of Portland v. Yick, 44 Or. 439, 55 P. 706.

01. See 2 Curr. L. 961.

01. An ordinance is wholly inoperative where such provisions have not been completed with. Carpenter, V. Yeadon Borough, 208 Pa. 396, 57 A. 837. Under the Indiana statutes an ordinance granting a franchise to establish a lighting plant is void where no publication is made. Meyer v. Boonville, 162 Ind. 165, 70 N. E. 146.

01. Burke v. Wapakoneta, 4 Ohio C. C. (N. S.) 482.

01. Carpenter v. Yeadon Borough, 208 Pa.

01. Cityman v. District of Columbia, 21 App. D. C. 241.

01. See 2 Curr. L. 961.

01. Gallner v. Jefferson \[Iowa\] 101 N. W.

01. A charter provision restraining the city from passing a later ordinance inconsistent with a general one already in force without expressly repealing the latter is valid and must be given effect. Asphalt & Grantioid Const. Co. v. Haeussler \[Mo. App.\]

01. A second valid ordinance bestowing a franchise by reference to a former invalid one grants all rights intended to be granted by the defective ordinance. Columbus v. Federal Gas Co., 2 Ohio N. P. (N. S.) 277.

-political campaign the operation of an ordinance relating to discharge of fireworks is not a repeal of the ordinance. \[87\]

_Suspension under a referendum._\[88\]

(SS 8) _F. Construction and operation of ordinances in general._\[89\]--Ordinances must be given a reasonable construction, \[99\] and this is a question for the courts, \[91\] although the presumption of reasonableness is always indulged. \[92\] Where a general municipal ordinance, applying to all citizens and property holders, provided for the granting of permits for the erection of buildings, the city council could not, during the life of the ordinance, cancel a permit duly granted in conformity with its provisions. \[98\] Part of an ordinance may be void without affecting the validity of the remaining portion. \[94\] An ordinance will not be given effect retrospectively unless the intent is clear. \[95\] Under a statute forbidding a city to grant any franchise for a longer period than 20 years, an ordinance granting a franchise for 20 years from the date of its taking effect is not rendered invalid by the fact that it was passed several months before that date. \[96\]

(SS 8) _G. Pleading and proving ordinances and proceedings._\[97\]--An ordinance may be pleaded by merely counting upon it and attaching a copy thereof as an exhibit. \[98\] Courts will take such judicial notice of ordinances and of such journals and records of the common council as affect their validity, meaning and construction as state courts take of public statutes. \[99\] The certificate of the clerk of the city council that an ordinance has been adopted affords prima facie proof that the ordinance was regularly adopted. \[1\] An extract from the minutes of a municipal corporation certified by a person described as "clerk of council" is admissible in evidence over an objection that the extract is not certified by the person holding the office of clerk to the corporate authorities, who are described in the charter as the "mayor and council" of the city. \[9\]

87. Landau v. New York \[N. Y.\] 72 N. E. \[matter or inseparable in their provisions as to warrant the conclusion that the council would not have passed the ordinance without the invalid portion, the valid part will be upheld and the invalid portion rejected.

necessary to facilitate drainage. \[98\] etc., the word "may" held to be equivalent to shall.

S.) 217. The incorporating of conditions, which may be unlawful in an ordinance \[98\] W. 556. Uncertainty as to boundaries to ordinance invalid where it does not appear be solved by a court by considering streets that the ordinance would not have been mentioned as boundaries, which do not meet, as if extended to the meeting point, and by regarding the first river on the west as intended, where a river in that direction is mentioned without naming it. Chitten-den v. Columbus, 5 Ohio C. C. (N. S.) 84. An ordinance providing that on petition of a designated per cent of the voters the board of trustees "shall" submit to the voters the subject-matter specified in the petlition, is not mandatory, but is a mere rule of procedure for the guidance of the board. Thompson v. Board of Trustees of Alameda, 144 Cal. 281, 77 P. 951.

91. City of Richmond v. Gallego Mills Co., 102 Va. 165, 4 S. E. 877; City of Passale v. Paterson Bill Posting, Advertising & Sign Painting Co. \[N. J. Law\] 85 A. 343.

01. City of New York v. Hewitt, 91 App. D1V. 445, 86 N. Y. S. 882.

01. Gallagher v. Flury \[Md.\] 57 A. 672.

01. Hillman v. Seattle, 52 Wash. 14, 73 P.

791; Imes v. Chicago, etc., R. Co., 105 Ill. App. 37. See 2 Cur. L. 562, n. 44. Where the parts are not so connected in subject-
(SS 8) _H. The remedy. against invalid legislation._"--The remedy to set aside a franchise irregularly or fraudulently granted, where the party to whom it has been granted is in the exercise of the privileges it confers, is by quo warranto at the suit of the state and not by an equitable action at the suit of private parties." Tax-payers may maintain an action to have an ordinance illegally appropriating money declared invalid, though no levy has yet been made for the tax provided by it." Where a street improvement is being made under a valid resolution adopted by the city, a general taxpayer cannot interfere, whether the work is repairs or reconstruction, though. it is provided that the cost of the work shall be paid out of the general fund." A municipal corporation has no power to sue out an injunction to prevent the collection of a tax claimed by the police jury of the parish from one of the residents of the town on property situated within the limits of the town." So far as a. writ of certiorari issued for the purpose of reviewing a municipal ordinance is a proceeding in rem, the governmental officers of the town, being custodians of the record, are the only necessary parties."

SS 9. _Administrative functions, their scope and exercise._"--The mayor," police," \[11\] clerical and other administrative officers," have such authority as the charter and ordinances confer. If modes of official procedure are prescribed, they must be followed." A rule forbidding the participation of members of the police force in a political caucus or canvass is a reasonable exercise of authority conferred to make rules for government of the police force." The power to license inss and taverns is administrative rather than judicial, and the right in New Jersey to

3. See 2 Curr. L 963.

1. \[1\] reports of the location of suspicious places, vests in such captains a discretion in determining what is a suspicious place. People v. Greene, 92 App. Div. 243, 87 N. Y. S. 172. See 2 Curr. L. 963, n. 74.

1. \[2\]. Park commissioners may sign petition.or proposed salon where frontage rule is criterion. Theurer v. People, 211 Ill. 296.

1. N. E. 997. A. statute authorizing park commissioners to make rules for government of park confers power to fix maximum rate of speed at which one may drive in such park. Commonwealth v. Crownshield (Mass). 17 N. E. 963. Under present New York civil service law, a veteran's fitness is conclusively determined by the cvlvll service commissioners. People v. Straton, 174 N. Y. 531, 66 N. E. 1114, ag without written opinion, 79 App. Div. 149, 80 N. Y. S. 263. See 2 Curr. L. 963, n. 75.

1. \[3\]. A board having power to make requistions must do so in proper form and at proper times. Commonwealth v. Pittsburgh, 299 Pa. 383, 85 A. 669. Report of commissioners of estimate and assessment in proceeding to acquire title to lands for street opening purposes held sufficient. In re City of New York, 178 N. Y. 421, 70 N. E. 924. The acts of a de facto government must conform to law. A. franchise granted must be approved by a board of public works \[Rev. St. 1545-195\]. Columbus v. Federal Gas de Fuel Co., 2 Ohio N. P. (N. S.) 277. See 2 Curr. L. 964, n. 79.

1. \[4\]. Brownell v. Russell, 76 Vt: 226, 57 A.

1. \[5\]. Violation by member of New York fire department by retaining membership in proscribed association justifies dismissal. People v. Croot \[Colo. App.\] 78. P. 310. New York police department rule 44, requiring police captains to transmit month-1406, 77 N. Y. S. 704.

impose it on the courts rests on long continued usage.\[15\] A sheriff may be reimbursed for expenses in attempting to recover poundage fees,\[19\] but a city attorney cannot at the expense of the city defend a policeman for inflicting personal injuries in making an arrest.\[17\] Ordinary repairs to streets required to keep them in a condition reasonably safe for travel are matters of administrative nature, and may be ordered by the mayor;\[18\] but specific repairs,\[19\] and changes of grade in streets, are for the legislative branch.\[20\]

\_Constabulary pocr.\[21\]--\_Under the Nebraska statutes the mayor and chief of police are charged with the duty to actively interfere to prevent open violations of the statutes,\[22\] and mandamus lies to compel the performance of this duty.\[23\] A de facto marshal of a municipal corporation may make an arrest.\[24\]

_Fire protection._--Municipalities are authorized to expend money and incur expense for fire protection,\[25\] and may impose reasonable restrictions on property owners to the same end.\[26\] A city may purchase land for a fire engine house without previously or at the time providing for the erection of the building,\[27\] and a city empowered to establish a fire department and to purchase material and equip the same may purchase coal necessary for such department and employ men to transport the same from coal docks to the place of use.\[28\] In the extinguishment of fires and in making arrangements therefor, a municipal corporation acts in a governmental capacity, and is not liable for the negligent construction, maintenance or use of its appliances.\[29\] But in maintaining a fire station, it performs a ministerial public duty, and is liable for injuries sustained from a neglect to furnish an employee a reasonably safe place to work.\[30\]

\_Polic power and public regulations. A. In general.\[31\]--\_In the absence of constitutional limitations, the legislature may invest municipal corporations with the police power of the state in whole or in part;\[32\] but municipal by-laws and ordinances are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of police power.\[33\] The enactment of an ordinance regulating the erection of poles does not exhaust the police power of the city and prevent it from afterwards prescribing other rules for the same object.\[34\] An ordinance making eight hours a day's work on any work of municipal construction is constitutional.\[38\]

(SS 10) \_B. For public protection.\[36\]--For public protection a city may regulate the speed of trains,\[37\] the operation of locomotives,\[38\] the storage of gasoline,\[39\] prohibit the carrying of concealed weapons,\[40\] compel the erection of fire escapes,\[41\] and provide for the inspection and cleaning of chimneys.\[42\] It may likewise forbid persons to let animals run at large and provide for impounding such animals.\[43\]_Buildings and other structures.\[44\]--The city may also in furtherance of the same purpose regulate the erection and repair of buildings,\[45\] cause removal or destruction of dangerous buildings,\[46\] make provision for the safety of theatres\[47\] and hotels,\[48\] and may control the erection of sign boards where the public safety requires it.\[49\]_

(SS 10) \_C. Health and sanitation.\[50\]--Everything which from its nature and surroundings is, or is liable to become, a menace to the public health, is a proper subject to be dealt with under the police power.\[51\] The removal of the carcass of a dead animal beyond the limits of the city and its sale does not violate an ordinance against selling it in the city,\[82\] but if the carcass be deposited so close to the border as to become a nuisance, a prosecution would lie.\[33\]\_The granting permission to action of a license fee for water plugs can- not be sustained as an exercise of police power. Cambridge Com'rs v. Cambridge Water Co. \[Md.\] 58 A. 442.

34. City of Ft. Smith v. Hunt \[Ark.\] 85 N. 163.

01. In re Broad \[Vash.\] 78 P. 1004.

01. See 2 Curr. L. 966.

01. Imes v. Chicago, etc., R. Co., 105 Ill.

Appl. 37. See 2 Curr. L. 966, n. 21. That president of council had no jurisdiction to punish violation of such ordinance. City of Winlosor V. Cleveland, etc., R: Co., 105 Ill. App. 46.

38. State v. Tower \[Mo.\] 84 S. W. 10. Central R. Co. of New Jersey v. Elizabeth, 70 N. J. Lawr, 578, 57 A. 404. See 2 Curr. L. 966, n. 22.

01. District of Columbia v. Weston, 23 App. D. C. 863.

01. Town of Orrick v. Akers \[Mo. App\]. 143.

38 S. W. 549.

41. Louisville Public Library Co. v. Louisville \[Ky.\] 80 S. W. 1163.

01. Cooper v. Lawson \[Mich.\] 12 Det. Leg. N. 34.

01. Crum v. Bray, 121 Ga. 709, 49 S. E.

636; Huey v. Waldorp \[Ala.\] 37 S. 380;

Williams v. Sewell, 121 Ga. 665, 49 S. E.

732. See 2 Curr. L. 966, n. 26.

001. See 2 Curr. L. 967. See, also, Buildings and Building Restrictions, 3 Curr. L. 672.

001. Under a statute giving a city power to regulate the construction of buildings, a city has no authority to prohibit the erection of a prlck church with slate root. Boyd v. Board of Councilmen of Frankfort, 25 Ky. L. R. 1311, 77 S. W. 663. See 2 Curr. L. 967, n. 27.

001. City of St. Louis v. Kraine de Bro. 94.

Real Sstate Co., 180 Mo. 309, 78 S. W. 140.

An elevated structure, containing several rooms, joining two houses, and built over an alley, which obstructed to some extent -crect stables where no reasonable objection is made thereto imposes a discretionary function, and mandamus will not lie.\[54\] Prohibiting the emission of dense smoke is a proper subject of municipal police control.\[58\]

(SS 10) \_D. Regulation and inspection of business.\[56\]--\_The sale of intoxicating liquons,\[57\] prescribing saloon limits,\[58\] the inspection and sale of milk,\[59\] the location of markets,\[60\] the regulation of weights,\[61\] and the licensing and regulation of hackmen,\[62\] liverymen,\[63\] hawkers,\[64\] and junk dealers,\[65\] requiring that only licensed persons shall enter into certain employers,\[66\] the fixing of gas rates,\[67\] are proper subjects of police power. The giving of "trading stamps" may be subjected to license tax,\[68\] and the sale of lottery tickets be prohibited.\[69\] Accommodating a neighbor with water does not constitute a business within the meaning of New York laws, giving commissioner of water supply discretion to require meters in all places where water is used "for business consumption."\[70\] The regulation of the business of supplying light and water to inhabitants and of service rates therefor is fully treated elsewhere.\[71\]

(SS 10) \_E. Control of streets and public places.\[72\]--\_Municipal corporations have no inherent power to regulate and control streets therein, since streets and highways belong to the state and are under its control.\[73\] Such power is only 54. Hester v. Thomson, 35 Vash. 119, 76 Louis, 194 U. S. 361, 48 Law. Ed. 1018; P. 734.

55. City of St. Louis, 194 U. S. 373, 48 Law.

01. City of St. Paul v. Haughro \[Minn.\]

100 N. W. 470, 66 L. R. A. 441. That such an ordinance ommits from its operation railroad locomotives does not render it objectionable to the Fourteenth Amendment.

61. City of New York v. Hewitt, 91 App.

State v. Tower \[Mo.\] 84 S. W. 10. An ordinance that the owner of premises on which an engine or locomotive is used shall not permit any enders, dust, gas or smoke to escape, is unreasonable and void as to a railroad company. Jersey City v. Abercrombie \[N. J. Law\] 58 A. 73.

56. See 2 Curr. L. 968. See, also, Licenses, 4 Curr. L. 428, and the topics treating or particular kinds of trades and occupations.

01. Town of New Iberia v. Moss Hotel Co. \[La.\] 46 S. 552. Not only sale, but the giving away, may be prohibited. Litch v. People \[Colo. App.\] 75 P. 1079. Ordinance making local agent of common carrier amenable to ordinance prohibiting sales of intoxicating liquons held unreasonable and void. Munsell v. Carthage, 105 III. App. 119.

A promissory note cannot take place of cash payment in procuring saloon license. Meyer-Marx Co. v. Ensley \[Ala.\] 37 So. 639.

In Georgia, jurisdiction to try violation of such ordinance is used in mayor and altermen. Robinson v. Americus, 121 Ga. 180, 48 S. E. 924. VWhile a city ordinance may not forbid a schoolkeeper to permit females to enter his place of business, it may prohiblt: it their entry for immoral purposes. State v. Nelson \[Glaho\] 78 P. 79; Walker v. McNelly, 121 Ga. 114, 48 S. E. 718. See 2 Curr. L. 968, n. 47.

58. Ex parte Levine \[Tex. Cr. App.\] 81 S. W. 1206.

01. Furnishing sample of milk to health department. Weigand v. District of Columbia, 22 App. D. C. 659. An ordinance forbidding the establishment or maintenance of a dairy or cow stable within city limits without a permit is not violative of the Fourteenth Amendment. Fischer v. St. Louis, 194 U. S. 361, 48 Law. Ed. 1018; P. 734.

01. City of St. Paul v. Haughro \[Minn.\]

100 N. W. 470, 66 L. R. A. 441. That such an ordinance ommits from its operation railroad locomotives does not render it objectionable to the Fourteenth Amendment.

61. City of New York v. Hewitt, 91 App.

01. City of New York v. Hewitt, 91 App.

01. City of St. Louis, 194 U. S. 361, 48 Law. Ed. 1018; Sp. 734.

01. City of New York v. Hewitt, 91 App.

74.58, 86 N. Y. S. 832. See 2 Curr. L. 968, n. 50.

65. Ordinance requiring an omnibus driv-per to wear in a permanent position on his clothing a number the same as that issued for his omnibus. Atlantic City v. Feretti, 70 N. J. Law, 489, 57 A. 259. Conviction for refusal to pay rate fixed by ordinance suis-tained. Bray v. State, 140 Ala. 172, 37 S. 250. See 2 Curr. L. 968, n obtained under statutes expressly conferring the power, and then only under the limitations and conditions -attached thereto.74 Municipalities charged with the duty of regulating the use of their streets may impose a reasonable charge in the nature of a rental for the occupation of certain portions of the streets by telephone and telegraph companies,76 and while they may require lot owners to keep the streets in front of their premises in repair and free from obstructions,76 an ordinance which requires a mere tenant so to do is invalid.77 In exercising control over streets and public places, they may also require the registration of automobiles78 and regulate the speed at which they may be driven;79 and may regulate public meetings and speaking.80 A city does not lose control of its streets by consenting or acquiescing in the planting of trees within the limits thereof.81 An ordinance providing that no person shall play any game of ten pins, ball, wicket, or other games in a street does not prohibit boys from merely running on a street.82

(SS 10) \_F. Definition of offenses and regulation of criminal procedure.83--\_I Municipal ordinances and regulations to support prosecution must be as definite and certain as penal statutes;84 but an ordinance prohibiting an act and prescribing a penalty for violation is not defective for not declaring the prohibited act to be a crime.85 An ordinance punishing one engaging in the bunco business by a fine of not less than $101 and not more than $500 is repealed by a subsequent ordinance against gambling providing a lesser fine.88 An ordense may be against the state and a municipal corporation at the same time; but before the municipality can prosecute, it must show a valid ordinance.87 The prosecution of one for violation of a city ordinance is a civil proceeding; therefore jurisdiction can be gained by

were not contemplated. Raynolds v. Cleve-land, 24 Ohio Circ. R. 215.

74. Raynolds v. Cleveland, 24 Ohio Circ. R. 215. See 2 Curr. L. 970, n. 70. A general state regulating the speed of automobiles throughout the state does not abrogate a Tel. Co. (Fla.) 37 So. 820; Village of London mowwealth v. Crownhsheld \[Mass.\] 72 N. IIIs. V. Fairview-London Tel. Circuit, 105 III. App. 146. The general police powers of cities of the first class in Kansas may be exercised by such cities over telegraph and telephone companies within their corporate limits. City of Wichita v. Missouri & K. Tel. Co. \[Kan.\] 78 P. 886. A statute granting to telegraph and telephone companies the right to construct lines in the public highways is not rendered nugatory by charter provision, giving cities the right to prevent the obstruction of streets by poles. State v. Red Lodge \[Mont.\] 76 P. 758. A contract between a city and an electric company prescribing terms for the creation of poles does not divest the city of its police power nor prevent it from exacting a license to defray the expense of regulating the use of such poles. City of Ft. Smith v. Hunt \[Ark.\] 82 S. V. 163.

01. Repair of sidewalk. Lentz v. Dallas, 96 Tex. 253, 72 S. W. 59. An animal tied to a stake in a public street for the purpose of grazing is an obstruction of such street, within the meaning of an ordinance authorizing the removal of obstructions. Williams v. Sewell, 121 Ga. 665, 49 S. E. 732. A carriage block is not an obstruction to street. V Wolff v. District of Columbia, 21 App. D. C. 464; Wolff v. District of Columbia, 25 S. Ct. 193.

01. Ford v. Kansas City, 181 Mo. 137, 79 S. W. 923.

01. People v. Schneider \[Mich.\] 12 Det. Leg. N. 32.

01. See 2 Curr. L. 970, n. 70. A general state regulating the speed of automobiles throughout the state does not abrogate a regulation as to speed in a city park. Commonwealth v. Crownhsheld \[Mass.\] 72 N. IIIs. V. Fairview-London Tel. Circuit, 105 III. App. 146. The general police powers of cities of the first class in Kansas may be exercised by such cities over telegraph and telephone companies within their corporate limits. City of Wichita v. Missouri & K. Tel. Co. \[Kan.\] 78 P. 886. A statute granting to telegraph and telephone companies the right to construct lines in the public highways is not rendered nugatory by charter provision, giving cities the right to prevent the obstruction of streets by poles. State v. Red Lodge \[Mont.\] 76 P. 758. A contract between a city and an electric company prescribing terms for the creation of poles does not divest the city of its police power nor prevent it from exacting a license to defray the expense of regulating the use of such poles. City of Ft. Smith v. Hunt \[Ark.\] 82 S. V. 163.

01. Repair of sidewalk. Lentz v. Dallas, 96 Tex. 253, 72 S. W. 59. An animal tied to a stake in a public street for the purpose of grazing is an obstruction of such street, within the meaning of an ordinance authorizing the removal of obstructions. Williams v. Sewell, 121 Ga. 665, 49 S. E. 732. A carriage block is not an obstruction to street. V Wolff v. District of Columbia, 21 App. D. C. 464; Wolff v. District of Columbia, 25 S. Ct. 193.

01. Ford v. Kansas City, 181 Mo. 137, 79 S. W. 923.

01. People v. Schneider \[Mich.\] 12 Det.

- 4Cur. Law. 4MUNICIPAL CORPORATIONS SS 11.
- 58. In re Jones, 90 Mo. App. 318.
- 59S. City of Hartford v. Maslen, 76 Conn.
- 50C. City of Billings v. Brown, 106 Mo. App. 240, 80 S. W. 322. Complaint for violation of ordinance fixing gas rates held sum-
- 59S. Wight v. Oberlin, 23 Ohio Circ.
- 50R. 50S. The legislature representing the Pomona \[Cal.\] 79 P. 364.
- 50O. City of Polar Bluff v. Hill, 92 Mo. App. 17.
- 51M. An oral notice therefore is sufficient to validate an appeal \[Comp. Laws 1887, $ 6177\]. City of Centerville v. Olson, 16 S. D.
- 526, 94 N. W. 414.
- 52R. Robinson v. Americus, 121 Ga. 180,
- 53S. E. 924; Williams v. Sewell, 121 Ga. 665,
- 54S. E. 72S.
- 55R. E. 1536-564 (violation of Beal Law). State v. Hahce, 4 Ohto C. C. (N. S.)
- 54I. Mayors of cities in Ohio are entitled to retain fees and costs collected in criminal cases tried before them, and a city ordinance requiring such fees and costs to be paid into the city treasury is invalid as in conflict with the statute (Rev. St. 1309). City of Piqua v. Cron, 2 Ohio N. P. (N. S.) 165.
- 594. Chicago, etc., R. Co. v. Salem, 162 Ind.
- 58. It is enough that they were de facto trustees. Town of Susanville v. Long, 144 Cal. 322, 7 P. 987.
- 50R. Bands v. Trenton \[N. J. Law\] 57 A. 267.
- 59T. See 2 Curr. L. 590. See also, Highways and Streets, 3 Curr. L. 1593; Parks and Public Grounds, 4 Curr. L. 1594.
- 50R. Bands v. Trenton \[N. J. Law\] 57 A. 267. See 2 Curr. L. 590. See also, Highways and Streets, 3 Curr. L. 1593; Parks and Public Grounds, 4 Curr. L. 1595.
- 51P. 526.
- 527. See 200. See also, Highways and Streets, 3 Curr. L. 1595.
- 528. Public Grounds, 4 Curr. L. 1596.
- 53C. 54I. 55R. Bands v. Trenton \[N. J. Law\] 57 A. 267. See 200. See also, Highways and Streets, 3 Curr. L. 1593.
- 53P. Public Grounds, 4 Curr. L. 1596.
- 54C. 55R. Bands v. Trenton \[N. J. Law\] 57 A. 267. See 200. See also, Highways and Streets, 3 Curr. L. 1593.
- 55R. Bands v. Trenton \[N. J. Law\] 57 A. 267. See 200. See also, Highways and Streets, 3 Curr. L. 1593.
- 56P. Public Grounds, 4 Curr. L. 1596.
- 57A. 267. See 200. See also, Highways and Streets, 3 Curr. L. 1596.
- 57B. 270. See also, Highways and Streets, 3 Curr. L. 1596.
- 57C. 57C. 580.
- 57C. 581.
- 582. 583.
- 584. 585. 586. 587. 588. 589. 589. 590. 591.
