copyright, 1996, 1996, 1996,

1996, 1996, 1996, 1996,

BY

KEEFE-DAVIDson CO.

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 sub-ject 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. ABANDONMENT, see the topic treating of that which is the subject of abandonment, e. g., Easemments, **5**, 1054; Highways, etc., **5**, 1658; Discontinuinance, etc. (of an action), **5**, 1011; Property, **4**, 1088; Shipping and Water Traffic, **4**, 1488; Infants, **4**, 52. ABATEMENT AND REVIVAL, **5**, 1. ABREVIATIONS, see Contracts, **5**, 698; Pleading, **4**, 980; Indictments, etc., **5**, 1790; Names, etc., **4**, 754, and the like. ABODUCTION, **5**, 9. ABETTING CRIME, see Criminal Law, **5**, 888. ABIDE THE EVENT, see Costs, **5**, 842; Payment into Court, **4**, 961; Stay of Proceedings, **4**, 1549; Stipulations, **4**, 1553. ABODE, see Domiele, **5**, 1041. ABORTION, **5**, 9. ABSCONDING DEBTORS, see Attachment, **5**, 803; Civil Arrest, **5**, 587; Bankruptcy, **5**, 367; Limitation of Actions, **4**, 445. ABESTTRES, **5**, 10. ABSTATSTATS OF TTLE, **5**, 11. ABUSE OF PROCESS, see Malicious Prosecution and Abuse of Process \[Sp. Art.\], **4**, 470; Process, **4**, 1084. ABUTTING OVNERS, see Highways and Streets, **5**, 1669, 1678; Eminent Domain, **5**, 1097; Municipal Corporations, **4**, 737. ACCETTANCE. Titles treating of the subject of an acceptance should be consulted. See Contracts, **5**, 670; Deceds, etc., **8**, 971, and the like. ACCESSION AND CONFUSION OF PROMETRY, **5**, 12. ACCESSORIES, see Criminal Law, **5**, 888. ACCDENT--in equity, see Mistake and Adcident, **4**, 674--resulting in legal injury, see Master and Servant, **4**, 533; Negligence, **4**, 764; Carriers, **5**, 529; Damages, **5**, 904; Insurance, **4**, 157. ACCCOMMATION PAPER, see Negotiable Instruments, **4**, 802. ACCCOMPICES, see Criminal Law, **5**, 888; Indictment and Prosecution, **5**, 1803, 1823; Evidence, **5**, 1301.

**AFFIDAVITS, 5, 60.**

**AFFIDAVITS OF MERITS OF CLAIM OR DEFENSE, 5, 61.**

**AFFIRMATIONS, see Witnesses, 4, 1943; Jury, 4, 358.**

**AFFRAY, 5, 64.**

**AGENCY, 5, 64; with Special Articles, Agency Implied From Relation of Parties, 3, 101; Revocation of Agency By Operation of Law, 4, 1295.**

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

**AAGISTMENT, see Animals, 5, 117; Liens, 4, 433.**

**AAGREED CASE, see Submission of Controversy, 4, 1582; Appeal and Review, 5, 121; Stipulations, 4, 1553.**

**AGRICULTURE, 5, 94.**

**AIDER BY VERDICT, ETC, see Indictment and Prosecution, 5, 1790; Pleading, 4, 1045.**

**AALIBI, see Indictment and Prosecution, 5, 1829.**

**AALIENS, 5, 96.**

**AALIONY, 5, 101.**

**AALTERATION OF INSTRUNENTS, 5, 110.**

**AMBASSABOIRS AND CONSULTS, 5, 113.**

**AMBGIUUTY, see those parts of titles like Contracts, 5, 698; Statues, 4, 1582; Wills, 4, 1898, which treat of interpretation.**

**AAMENDMENTS, see Indictment and Prosecution, 5, 1809; Pleading, 4, 1016; Equity, 5, 114, and procedure titles generally.**

**AMICUS CURLE, 5, 113.**

**AAMOTION, see Associations and Societies, 5, 292; Corporations, 5, 789.**

**AAMOTUN IN CONTROVERSAT, see Appeal and Review, 5, 121; Jurisdiction, 4, 324; Costs, 5, 848.**

**ANCIENT DOCUMENTS, see Evidence, 5, 1342.**

**ANALAS, 5, 113.**

**ANNUITIES, 5, 121.**

**ANOTHER SUIT PENDING, see Abatement and Revival, 5, 1; Stay of Proceedings, 4, 1459; Jurisdiction, 4, 324.**

**ANNSVERS, see Equity, 5, 1169; Pleading, 4, 1015.**

**ANTENUPTIAL CONTRracts AND SETTLE-MENTS, see Husband and Wife, 5, 1783.**

**ANTT-TRUST LAWS, see Combinations and Monopolies, 5, 594.**

**APPEAL AND REVIEW, 5, 121.**

**APPEARANCE, 5, 248.**

**APPELLATE COURTS AND JURISDICTION, see Appeal and Review, 5, 146; Jurisdiction, 4, 324.**

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

**APPOMINTMENT, see Offcers and Public Employes, 4, 857; Estates of Decedents, 5, 1191; Trusts, 4, 1741, and the like; Powers, 4, 1065.**

**APPORTIONMENT LAWS, see Elections, 5, 1065; Offcers, etc., 4, 854; States, 4, 1516.**

**APPRENTICES, 5, 250.**

**ARBITATION AND AWARD, 5, 250.**

**ARCRITECTS, see Bullding and Construcuation Contracts, 5, 467.**

**ARGUEMENT AND CONDUCT OF COUNSEL, 5, 253.**

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

**ARRIGNMENT AND PLEAS, see Indictment and Prosecution, 5, 1810.**

**ARREST AND BINDING OVER, 5, 264.**

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

**ARREST ON CIVIL PROCESS, see Civil Arrest, 5, 587.**

**ARRISON, 5, 268.**

**ARSON, 5, 268.**

**ARSSAULT AND BATTERY, 5, 269; with Special Article, liability of Master For Assault By Servant, 5, 275.**

**ASSIGABILITY OF LIFE INSURANCE POLICIES \[Special Article\], 4, 235.**

**ASSIGMENT OF ERRORS, see Appeal and Review, 5, 191; Indictment and Prosecution, 5, 1871.**

**ASSIGNMENTS, 5, 279.**

**ASSIGNMENTS FOR BENEFIT OF CREIDERS, 5, 286.**

\*\*ASSIGNMENTS, WHT OF,BETTERMENTS, see: Ejectment, etc., **5**, 1044.

BETTING AND GAMING, **5**, 417.

BIGAARY, **5**, 421.

BILL OF DISCOVERY, see Discovery and

Inspection, **5**, 1019.

BILLS AND NOTES, see Negotiable Instruments, **4**, 187; Banking and Finance, **5**, 847.

BILLS IN EQUITY, see Equity, **5**, 1144; and

the titles treating of special relief such

as Cancellation of Instruments, **5**, 500;

Injunction, **4**, 96; judgments, **4**, 287;

Quieting Title, **4**, 1167.

BILLS OF LADING, see Carriers, **5**, 515;

Sales, **4**, 1318; Negotiable Instruments, **4**, 787.

BILLS OF SALE, see Sales, **4**, 1323; Chattel

Mortigages, **5**, 574; Fraudulent Conveyances, **5**, 1556.

BIBTH REGISTERRS, see Census and Statis-

tles, **5**, 585; Evidence, **5**, 1344.

BLACKNAIL, **5**, 422.

BLENDED PROPERTIES, see Accession and

Confusion of Property, **6**, 12; Conversion

as Tort, **5**, 754; Conversion in Equity, **5**,

758; Trusts, **4**, 1739; Wills, **4**, 1904, 1937.

BOARD OF HEALTH, see Health, **5**, 1643.

BOARDS, see Offhees and Public Employes,

**4**, 854, also see various titles like Countiles, **5**, 863, 869; Municipal Corporations,

**4**, 725.

BODY EXECUTION, see Civil Arrest, **5**, 588.

BONA FIDES, see Negotiable Instruments,

4\*\*, 803; Notice and Record of Title, **4**,

829.

BONDS, **5**, 422. See, also, Municipal Bonds,

4\*\*, 706; Counties, **5**, 866; Municipal Corporations, **4**, 746; States, **4**, 1516.

"BOTTLE" AND "CAN" LAWS, see Commerce, **3**, 717.

BOTOTOMARY AND RESPONDENTIA, see

Shipping and Water Trufic, **4**, 1455.

BOUGHT AND SOLD NOTES, see Frauds,

Statute of, **5**, 1550; Brokers, **5**, 449; Factors, **5**, 1411.

\*\*BOUNDARIES, **5**, 430.

\*\*BOUNTIES, **5**, 455.

BOYCOTT, see Conspiracy, **5**, 617; Injunction, **4**, 96; Threats, **4**, 1679; Trade

Unions, **4**, 1696.

BRANDS, see Animals, **5**, 120; Commerce, **5**,

711; Forestry and Timber, **5**, 1489; Trade

Marks and Trade Names, **4**, 1689.

\*\*BREACH OF MARRIAGE PROMISE, **5**, 436.

BREACH OF THE PEACE, see Disorderly

Conduct, **5**, 1024; Surety of the Peace, **4**,

1505.

BRIBERY, **5**, 437.

BRIDGES, **5**, 439.

BROKERS, **5**, 445.

BUILDING AND CONSTRUCTION

Tractors, **5**, 455.

BUILDING AND LOAN ASSOCIATIONS, **5**,

478.

BUILDINGS AND BUILDING RESTRIC-

TIONS, **5**, 487.

BURDDEN OF PROOF, see Evidence, **5**, 1308.

BURGLAARY, **5**, 493.

BURT RECORDS, see Restoring Instruments and Records, **4**, 1295.

BY-LAWS, see Associations and Societies, **5**,

199; Corporations, **5**, 803.

BY-LAWS-AMENDMENT AS AFFECTING

EXISTING MEMBERSHIP CONTRacts

\[Special Article\], **5**, 496.

C.

CALENDARS, see Dockets, etc., **5**, 1039.

CANALS, **5**, 500.

CANRELATION OF INSTRUMENTS, **5**, 500.

CANAYS OF VOTES, see Elections, **5**, 1072.

CAPIAS, see Civil Arrest, **5**, 867; also (capulas

as a bench warrant), see Contempt, **5**,

650; V (coupon tickets), 5, 533; Corporations, 5, 826.

COUNT COMMISSIONERS, see Courts, 5, 870; Judges, 4, 280.

COURTS, 5, 870.

COVENANT, ACTION OF, 5, 875.

COVENANTTS, see titles relating to instruments, wherein covenants are embodied, e. g., Contracts, 5, 644; Deads of Conveyance, 5, 974; Landiord and Tenant (leases), 4, 389; Vendors and Purbanagers (land contracts), 4, 178; see Buildings, etc. (covenants restrictly), 5, 488.

COVENANTTS FOR TITLE, 5, 875.

COVERTURE, see Husband and Wife, 5, 1731.

CREDIT INSURANCE, see Indemnity, 5, 1777; Insurance, 4, 157.

CREDITORS' SUIT, 5, 880.

CRIMINAL CONVERSATION, see Husband and Wife (civil liability), 5, 1751; Audinery (crimp), 5, 45; Divorce (ground), 5, 1028.

CRIMINAL LAW, 5, 883.

CRIMINAL PROCDIRE, see Indemnity, 5, and Prosecution, 5, 1790.

CROPS, see Agriculture, 5, 95; Emblements and Natural Products, 1, 109; Landiord and Tenant (renting for crops), 4, 400; Chattel Mortgages (mortgages on crops), 5, 575.

CROSS BILLS AND COMPLAINTS, see Equilty, 5, 1166; Pleading, 4, 1015.

CROSSINGS, see Ethways and Streets, 5, 1665; Raifroads, 4, 1199.

CRUEL AND INUUSUIAL PUNISHMENTS, see Constitutional Law, 5, 646; Criminal Law, 5, 891.

CRUELY, see Animals, 5, 120; Divorce, 5, 1029; Infants, 4, 92; Parent and Child, 4, 873.

CUMULATIVE EVIDENCE, see Trial (reception and exclusion of evidence), 4, 1711; New Trial, etc. (newly discovered cumulative evidence), 4, 819.

CUMULATIVE PUNISHMENTS, see Criminal Law, 5, 891.

CUMULATIVE VOTES, see Corporations, 5, 764.

CUMATIVE ACTS, see Statutes, 4, 1522.

CUTRESY, 5, 893.

CUSTOMs AND USAGES, 5, 894.

CUSTOMs LAWS, 5, 897.

D.

DAMAGES, 5, 904.

DAMNUM ABSQUE INJURIA, see Causes of Action, etc., 5, 558; Torts, 4, 1682; compare Negligenc, 4, 764.

DAMS, see Navigable Waters, 4, 763; Ripman Owners, 4, 1314; Waters and Water Supply, 4, 1837.

DATE, see titles treating of the various instruments as to the necessity and effect of a date; see Time, 4, 1680, as to computation.

DAYS, see Holidays, 5, 1688; Sunday, 4, 1589; Time, 4, 1680.

DEAD BODIES, see Corpses and Burial, 5, 841.

4, 854, also titles relating to particular offices as Sheriffs, etc., 4, 1445.

**DECENT AND DISTRIBUTION, 5, 995.**

**DETECTIVES, see Municipal Corporations (pollec organizations), 4, 725; Officers and Public Employees, 4, 854; Licenses (private detectives), 4, 428, and as to their credibility as witnesses, see Witnesses, 4, 1958; Divorce, 5, 1026.**

**DETERMINATION OF CONFLICTING CLAINS TO REALITY, see Quileting TITe, 4, 1176.**

**DETINUE, 5, 1003.**

**DEVIATION, see Carriers, 5, 507; Shipping and Water Traffic, 4, 1450.**

**DILATORY PLEAS, see Abatement and Revival, 5, 1; Pleadling, 4, 1005, 1043, 1046,**

**DIRECTING VERDICT AND DEMURRER TO EVIDENCE, 5, 1004.**

**DISCLAIMERS, see Causes of Action and Defenses, 5, 555; Costs, 5, 847; Pleadling, 4, 850.**

**DISCONTINANCE, DISMISAL AND NONSULT, 5, 1011.**

**DISCOVERY AND INSPECTION, 5, 1019.**

**DISCRETION, see articles treating of procedure or relief resting in discretion. Review or control of discretion, see Appeal and Review, 5, 219; Mandamus, 4, 506; Prohibition, Writ of, 4, 1084; Certorari, 5, 659.**

**DISTRANCHISEMENT, see Elections, 5, 1065.**

**DISSMISAL AND NONSULT, see Discontinuous, ace, etc., 5, 1011.**

**DISCORDERLY CONDUCT 5, 1033.**

**DISCORDERLY HOUSES, 5, 1025.**

**DISSOLUTION, see Corporations, 5, 786; Partnership, 4, 922.**

**DISTRRESS, see Landford and Tenant, 4, 389.**

**DISTRICT ATTORNEYS, see Attorneys and Counselors, 6, 354.**

**DISTRICT OF COLUMBIA, see Territories and Federal Possessions, 4, 1678.**

**DISTRENANCE OF PUBLIC ASSEMBLAGES, 5, 1025.**

**DITTCHES, see Sewers and Drains, 4, 1429; Waters and Water Supply, 4, 1043, 1044; Ditch and Canal Rights \[Special Article\]**

**DIVIDENDDS, see Corporations, 5, 794; Bankruptcy, 5, 399; Assignments, etc., 5, 290; Insolvency, 4, 129.**

**DIVISION OF OPINION, see Appeal and Revew, 5, 237; Judgments, 4, 206; Stare Decisions, 4, 1612.**

**DIVORCE, 5, 1026.**

**DOCKERS, CALENDARS AND TRIAL LISTS, 5, 1039.**

**DOCCUMENTS IN EVIDENCE, see Evidence, 5, 1342; Indictment and Prosecution, 5, 1826.**

**DOMICLE, 5, 1041.**

**DOWER, 5, 1043.**

**DRAINS, see Sewers and Drains, 4, 1429; Waters and Water Supply, 4, 1834, 1836; Public Works, etc., 4, 1124.**

**DRUGIS: DRUGGISTS, see Medicine and Surgery, 4, 636; Polons, 4, 1060.**

**DRUNKENNESS, see Intoxicating Liquors, 4, 265; Habitual Drunkards, 2, 159; Incompetency, 5, 1775.**

**DUELING, No cases have been found during the period covered, see 3, 1147.**

**DUELING PROCESS, see Constitutional Law, 5, 840.**

**DUPLICITY, see Pleadling, 4, 980.**

**DURESS, 5, 1047.**

**DYING DECLARATIONS, see Homicide, 5, 1719.**

**E.**

**EASEMENTS, 5, 1048.**

**ECCLESIASTICAL LAW, see ReIlgious So-eties, 4, 1276.**

**EIGHT-HOUR LAWS, see Master and Servant, 4, 533; Constitutional Law, 5, 632: Public Works, etc., 4, 1124; Offeers and Public Employees, 4, 854.**

**EJECTMENT (and Writ of Entry), 5, 1056.**

**ELECTION AND WAIVER, 5, 1078.**

**ELECTIONs, 5, 1065.**

**ELECTRICITY, 5, 1085.**

\*\*ELEVATORS, see Buildings, etc., 5, 492; EXECUTORS AND ADMINISTRATORS, see Estates of Decedents, 5, 1183.

EXEXEMPLARY DAMAGES, see Damages, 5, 906.

EXEMPTIONS, 5, 1400. See, also, Home-Steads, 5, 1689.

EXEMPTIONS AND SHOWS, 5, 1405.

EXEHBINTS, see Pleading, 4, 951; Equity, 5, 1144; Trial (reception of evidence), 4, 1711; Appeal and Review (inclusion in record), 5, 161.

EXONERATION, see Guaranty, 5, 1598; Suretsh, 4, 1859; Indemnity, 5, 1777; Marshaling Assets, etc., 4, 531; Estates of Decedents, 5, 1229.

EXPERIMENTS, see Evidence, 5, 1365.

EXPERIEVDENCE, see Evidence, 5, 1353.

EXPLOSIVES AND INPLAMABLES, 5, 1405.

EX POST FACTO LAWS, see Constitutional Law, 5, 646; Criminal Law, 5, 892.

EXPRESS COMPANIES, see Carriers, 5, 507; Railroads, 4, 1181; Corporations, 5, 764.

EXTORION, 5, 1407. See, also, Blackmail, 5, 422; Threats, 4, 1678.

EXTRADITION, 5, 1407.

FORENTS OF ACTON, 5, 1517.

FORTRACTION, 5, 1518.

FORTRCOMING AND DELIVERY BONDS, see Attachment, 5, 311; Executions, 5, 1390; Replevin, 4, 1292.

FACTORS' ACTS, see Factors, 5, 1411; Pledges, 4, 1064; Sales, 4, 1363.

FALSE IMPRISONMENT, 5, 1412.

FALSE PERSONATION, 5, 1415.

FALSE PERSTENSES AND CHEATS, 5, 1416.

FALSE REPRESENTATIONS, see Deceti, 5, 954; Fraud and Undue Influence, 5, 1641; Estoppel, 5, 128; Sales (varranties), 4, 1334; Insurance (warrantes), 4, 177, 196, and all contract titles.

FALSEIFYING RECORDS, see Records and Files, 4, 1254.

FAMILY SETTLEMENTS, see Estates of Decedents, 5, 1281.

FEDERAL PROCEDURE, see Admiralty, 5, 35; Appeal and Review, 5, 121; Conts, 5, 870; Equity, 5, 1144; Jurisdiction, 4, 321; Removal of Causes, 4, 1271. Consult the particular titles treating of that matter of procedure under investigation.

FELLOWV SELEVANTS, see Master and Servant, 4, 532.

FENCES, 5, 1420. See, also, Adjoining Owners, 5, 33.

FERRIES, 5, 1422.

FIDEILITY INSURANCE, see Insurance, 4, 157.

FILLINGS, see Pleading, 4, 1048; Notlee and Record of Title, 4, 833; Records and Files, 4, 1254, and titles treating of matters in respect of which papers are or may be filed.

FINAL JUDGMENTS AND ORDERS, see Appeal and Review, 5, 130.

FINDING LOST GOODS, see Property, 4, 1088.

FIINDINGS, see Verdlets and Findings, 4, 1803.

FINES, 5, 1424.

FINES and GAME LAWS, 5, 1426.

FIXTURRES, 5, 1431.

FOLIONGAP PAPERS, see Motions and Orders, 4, 704; Pleading, 4, 980.

FODO, 5, 1486.

FORCLIDE ENTRY AND UNLAWFUL DETAINER, 5, 1437.

FOCELOSURE OF MORTGAGES ON LAND, 5, 1441.

FORERION CORPORATIONS, 5, 1470.

FREGION CORPORATIONS TO DO BUSI-NESS OUTSIDE OF DOMICILE \[Special Article\], 3, 1465.

FORERION JUDGMENTS, 5, 1483.

FORERION LAWS, see Conflict of Laws, 5, 610; Evidence, 5, 1301.

FORESTRY AND TIMBER, 5, 1489.

FORTRITURES, see Penalties and Forfeitures, 4, 958.

FORERITY, 5, 1498.

FORMER ADJUDICATION, 5, 1502.

FORMER CONVICICTION OR ACGUITIAL, see Criminal Law, 5, 889.

**GRAND JURY, 5, 1591.**

GROUND RENTNS, see Landord and Tenant, 4, 289.\*\*

GUARANTY, 5, 1596.\*\*

GUARDIANS AD LITEM AND NEXT FRIENDS, 5, 1601.\*\*

GUARDIANSHIP, 5, 1602.\*\*

H.

HABES CORPUS (AND REPLEGIANDO), 5, 1615.\*\*

HABITAL DRUNKARDS. No cases have been found during the period covered by volume 5. See 2, 159.\*\*

HABITAL OFFENDERS. No cases have been found during the period covered.\*\*

HANDWRITING, PROOF OF, see Evidence, 5, 1345.\*\*

HABOR MASTERS, see Navigable Waters, 4, 757; Shipping and Water Traffic, 4, 1450.\*\*

HARMLESS AND PREJUDICAL ERROR, 5, 1620.\*\*

HAVKERS AND PEDDLERS, see Pedding, 4, 962.\*\*

HEALTH, 5, 1641.\*\*

HEALRING, see Appeal and Review, 5, 209; Equity, 5, 1174; Motions and Orders, 4, 105; Trial, 4, 1708.\*\*

HEARSAT, see Evidence, 5, 1328; Indictment and Prosecution, 5, 1820.\*\*

HEIRS, DEVISTES, NEXT OF KIN AND LEGATES, see Descent and Distribution, 5, 995; Estates of Decedents, 5, 1183; Willis, 4, 1863.\*\*

HERD LAWS, see Animals, 5, 118.\*\*

HIGHWAYS AND STERESTS, 5, 1645.\*\*

HOLIDAYS, 5, 1688.\*\*

HOMETSEDAS, 5, 1689.\*\*

HOMICIDE, 5, 1702.\*\*

HORSE RACING, see Betting and Gaming, 5, 419.\*\*

HORSS, see Animals, 5, 120; Sales (warranty), 4, 1334.\*\*

HOSPITALS, see Asylums and Hospitals, 5, 301.\*\*

HOUSS OF REFUGE AND REFORMATOR- RIES, see Charitable, etc., Institutions, 1, 507.\*\*

**IUNSBAND AND WIFE, 5, 1731.**

I.

ICE, see Riparian Owners, 4, 1315; Waters and Water Supply, 4, 1882.\*\*

ILLEGAL CONTRACTS, see Implied Contracts, 5, 1756; Contracts, 5, 684.\*\*

IMMIGRATION, see Aliens, 5, 98; Domicile, 5, 1041.\*\*

IMPAIRING OBLIGATION OF CONTRACT, see Constitutional Law, 5, 637.\*\*

IMPEACHMENT, see Officers, etc., 4, 854; Witnesses, 4, 1959; Examination of Witnesses, 5, 1377.\*\*

IMPLED CONTRACTS, 5, 1756.\*\*

IMPLIED TRUSTS, see Trusts, 4, 1732, 1755.\*\*

IMPLIED WARRANTIES, see Sales, 4, 1335.\*\*

IMPOUNDING, see Animals, 5, 118.\*\*

IMPRISONMENT FOR DEBT, see Civil Arret, 5, 587; Constitutional Law, 5, 633.\*\*

IMPROVEMENTS, see Accession and Confusion of Property, 5, 12; Ejectment, etc., 5, 1064; Implied Contracts, 5, 1763; Landiord and Tenant, 4, 389; Partition, 4, 906; Public Works and Improvements, 4, 1124; Trespass (to try title), 4, 1706.\*\*

**INCEST, 5, 1774.**

**INCOPTETENCY, 5, 1775.**

**INCENCY, LEWDNESS AND OBCENTITY, 5, 1776.**

**IDDENITY, 5, 1777.**

**INCEDENT CONTRACTS, 5, 1782.**

**INCEDENT CONTRACTS UNDER EMPLOYERS LIABILITY ACTS \[Special Article\], 3, 1704.**

**INDIANS, 5, 1786.**

**INCITANT AND PROSECTION, 5, 1790.**

**INDORSING PAPERS, see Motions and Orders, 4, 704; Pleading, 4, 980.**

INYAMOUS CHIMES, see Criminal Law, 5, 886; Indictment and Prosecution, 5, 1795; Witnesses, 4, 1945, 1962.\*\*

**INFANTS, 4, 92.**

INFORMATIONS, see Indictment and Prosecution (accusation of crime), 5, 1795; Guo Warranto, 4, 1179.\*\*

INFORMERS, see Penaltes and Forfeitures, 4, 963.\*\*

\*\*INJ1202; Trusts, 4, 1744: also as to investment institutions, see Banking and F1-nance, 5, 347.

- IRRIGATION, see Waters and Water Supply, 4, 1824; Rliparian Owners, 4, 1314; also see Special Article, 3, 1112.
- ISLANDNS, see Boundaries, 5, 432; Navigable Waters, 4, 767; Waters and Water Supply, 4, 1824; Rliparian Owners, 4, 1310.
- ISSUB, see Wills (interpretation), 4, 1906, 1907.
- ISSUES TO JURY, see Equity, 5, 1144; Jury, 4, 358.
- J.
- JEOFAIL, see Harmless and Frejudcial Error, 5, 1630; Pleading, 4, 1038, and like titles.
- JEOPARDT, see Criminal Law, 5, 889; Incident and Prosecution, 5, 1810.
- JETTISON, see Shipping, etc., 4, 1487, 1488.
- JOINDER OF CAUSES, see Pleading, 4, 998.
- JOINT ADVENTURES, 4, 280.
- JOINT EXECUTORS AND TRUSTEES, see Estates of Decedents, 5, 1183; Trusts, 4, 1727.
- JOINT LIABILITIES OR AGREEMENTNS, see Contracts, 5, 710, and like titles; Torts, 4, 1682.
- JOINT STOCK COMPANIES, 4, 280.
- JOINT TENANCY, see Tenants in Common and Joint Tenants, 4, 1672.
- JUDGSMENT NOTES, see Confession of Judgment, 5, 608.
- JUDGSMENTS 4, 287.
- JUDGICAL NOTICE, see Evidence, 5, 1302; Pleading, 4, 985.
- JUDGICAL 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), 5, 602; Food (unlabeled food products), 5, 1436; Trade Marks and Trade Names, 4, 1689.
- LABOR UNIONS, see Trade Unions, 4, 1696; Associations and Societies, 5, 292; Conpiracy (boycotting), 5, 617; Injunction, 4, 96.
- LACHES, see Equity, 5, 1155.
- LAKERS AND PONDS, see Navigable Waters, 4, 757; Waters and Water Supply, 4, 1829.
- LANDLORD AND TENANT, 4, 389.
- LANDTANTS, see Public Lands, 4, 1106.
- LARCENY, 4, 410.
- LASCIVIOUSNESS, see Indecency, Lewdness and Obsentity, 5, 1779.
- LATERAL RAILROADS, see Eminent Domain, 1, 1002; Railroads, 4, 1184.
- LATERAL SUPPORT, see Adjoining Owners, 5, 34.
- LAW OF THE CASE, see Appeal and Review, 5, 242.
- LAW OF THE ROAD, see Highways and Streets, 5, 1668.
- LEASES, see Landiord and Tenant, 4, 389; Ballment (Hiring of chatlets), 5, 342; Sales (conditional sale and lease), 4, 1364.
- LEGACIES AND DEVISES, see Estates of Decedents, 5, 1262; Wills, 4, 1307, et seq.
- LEGAL CONCLUSIONS, see Pleading, 4, 980.
- LEGATERES, see Estates of Decedents, 5, 1262; Wills, 4, 1907.
- LETTERS, see Postal Law, 4, 1061; Evidence (letters as evidence), 5, 1342; Contracts (letters as offer and acceptance), 5, 673.
- LETTERS OF CREDIT, see Banking and Finance, 5, 5, 358; Negotiable Instruments, 4, 787.
- LEVEERS, see Waters and Water Supply, 4, 1836; Navigable Waters, 4, 762.
- LEWDNESS, see Indecency, Lewdness and Obsentity, 5, 1776.
- LIABILITY OF MASTER FOR ASSAULT BY SERVANT \[Special Article\], 5, 275.
- LIBER AND SLAMER, 4, 418.
- LIENSNES, 4, 428.
- LIENSNES TO ENTER ON LAND, 4, 432.
- LIENSNES, 4, 432. Particular kinds of liens usually accorded a separate treatment are excluded to topics like Chatel Mortgages, 5, 581; Judgments, 4, 314; Mortgages, 4, 593; Taxes, 163 M.
- \[M.\] MAMING; MAYHEM, 4, 470.
- \[MALLICB, see Criminal Law, 5, 885; Homelicide, 5, 1702; Torts, 4, 1682.
- \[MALLICIOUS ABUSE OF PROCESS, see Process, 4, 1084.
- \[MALLICIOUS MICCHIEF, 4, 470.
- \[MALLICIOUS PROSEUTION AND ABUSE OF PROCESS (Special Article and late cases), 4, 470.
- \[MANDANQUS, 4, 506.
- \[MANDATE, see Saifment, 5, 342; Appeal and Review, 5, 242.
- \[MARIINE INSURANC, see 2, 792, and topic Shipping and Water Traffic, 4, 1488.
- \[MARITIME LIENS, see Shipping and Water Traffic, 4, 1455.
- \[MARTETES, see Municipal Corporations, 4, 739.
- \[MARKES, see Animals, 5, 120; Commerce, 5, 599; Food, 5, 1436; Forestry and Timber, 5, 1485; Trade Marks and Trade Names, 4, 1689.
- \[MARIARIAGE, 4, 528.
- \[MARIAGE, SETTLEMENTS, see Husband and Write, 5, 1731.
- \[MARIALING ASSETS AND SCURITIES, 4, 531.
- \[MARIALING ESTATE, see Estates of Decedents, 5, 1183.
- \[MARTIAL LAW \[Special Article\], 2, 800.
- \[MARIAGE AND SERVANT, 4, 532. See Special Article, Liability of Master For Assult By Servant, 5, 275.
- \[MARTERS AND COMmissionERS, 4, 614.
- \[MARTERS OF VESSEL, see Shipping and Water Traffic, 4, 1451.
- \[MECHANICS' LIENS, 4, 615.
- \[M MEDICINE AND SURGERY, 4, 636.
- \[MARCANTILE AGENCIES. No cases have been found during the period covered by volume 4. See 2, 890.
- \[MERGER IN JUDGMENT, see Former Adjunctation, 5, 1502.
- \[MERGER OF CONTRACTS, see Contracts, 5, 714.
- \[MERGER OF ESTATES, see Real Property, 4, 1287.
- \[MILITY AND NAVAL LAW, 4, 640.
- \[MILLITIA, see Military and Naval Law, 4, 640.
- \[MILLLS AND DAMS, see Waters and Water Supply, 4, 1837.
- \[MINES AND MINERALS, 4, 649.
- \[MINISTERS OF STATE, see Ambassadors and Consuls, 5, 11.
- \[MINUTERS, see Judgments, 4, 296, 298.
- \[MISJOINDER, see Parties, 4, 888; Pleadling, 4, 998; Equty, 5, 1260, 1263, et seq.
- \[MISTAKE AND ACCIDENT, 4, 674.
- \[MONEY COUNTS, see Assumpult, 5, 297.
- \[MONEY LENT, see Implied Contracts, 5, 1764; Assumpult, 5, 297.
- \[MONEY PAID, see Implied Contracts, 5, 1764; Assumpult, 5, 297.
- \[MONEY RECEIVED, see Implied Contracts, 5, 1764; Assumpult, 5, 297.
- \[MONOPOOLIES, see Combinations and Monopoles, 5, 598.
- \[MORTALITY TABLES, see Damages, 5, 940; Evidence, 5, 1344.
- \[MORTAGES, 4, 77.
- \[MOTIONS AND ORDERS, 4, 704.
- \[MULTIFARIOUSNESS, see Equty, 5, 1163.
- \[MULTIFALICITY, see Equty, 5, 1151.
- \[MUNICIPAL AIDS AND RELIEEFS, see Murolcipli Bonds, 4, 706; Municipal Corporations, 4, 720; Railroad, 4, 1183.
- \[MUNICIPAL BONDS, 4, 706; with Special Article, Recitals of Law in Municipal Bonds, 4, 711.
- \[MUNICIPAL CORPorations, 4, 720.
- \[MUNICIPAL CORPorations, 5, 870; Judgments, 4, 287; Jurisdiction, 4, 324.
- \[MURDER, see Homicide, 5, 1703.
- \[MUTUAL ACCOUNTS, see Accounting, Action for, 5, OCCUPATION TAXES, see Llconsea, 4, 428; Taxes, **4,** 1655. OFFER AND ACCCEPTANCE, see Contracte, **5,** 670. OFFER OF JUDGMENT, see Confession of Judgment, **5,** 608; Judgments, **4,** 288. OFFICERS AND PUBLIC EMPLOYES, **4,** 854. OFFICERS OF CORPORATIONS, see Corporations, **5,** 802. OFFICAL BONDS, see Bonds, **5,** 422; Indeminity, **5,** 1777; Officers, etc., **4,** 869; Suretshjh, **4,** 1595. OPENING AND CLOSING, see Argument and Conduct of Counsel, **5,** 253. OPENING JUDGMENTS, see Judgments, **4,** 299. OPINIONS OF COURT, see Appeal and Review, **5,** 241; Former Adjudication, **5,** 1502; Share Decisis, **4,** 1512. OPTIONS, see Contracts, **5,** 674; Gambling Contracts, **5,** 1571; Vendors and Fundasers, **4,** 1772. ORDER OF PROOF, see Trial, **4,** 1711. Compare Examination of Witnesses, **5,** 1371. ORDERS FOR PAYMENT, see Non-Negotiable Paper, **4,** 827. ORDERS OF COURT, see Motions and Orders, **4,** 705; Former Adjudication, **5,** 1502. ORDINANCES, see Municipal Corporations, **4,** 781; Constitutional Law, **5,** 619. OYSTERS AND CLAMS, see Fish and Game Laws, **5,** 1428,\*\* 1430. P. PARDONS AND PAROLES, **4,** 872. PARENT AND CHILD, **4,** 873. PAARS AND PUBLIC GROUNDS \[Special Article\], **4,** 876. PARLIAMENTARY LAW, **4,** 888. PAROL EVIDENCE, see Evidence, **5,** 1319. PARTIES, **4,** 888. PARTITION, **4,** 898. PARTNERSHIP, **4,** 908. PARTY WALLS, **4,** 927. PASENINGERS, see Carriers, **5,** 528. PATENTS, **4,** 929. PAUPERS, **4,** 954. PAWNBROKERS, **4,** 955. PAYMENT AND TENDER, **4,** 955. PAYMENT INTO COURT, **4,** 961. PEDDIINGZE, **4,** 961. PEDDIIGREE, see Evidence, **5,** 1382. PENDALTIES AND FORFEITURES, **4,** 963. PENIONS, **4,** 970. PENOAGE, see Slaves, **4,** 1494. Compare Charitable and Correctional Institutions, **4,** 507; Convicts, **5,** 760. PERFORMANCE, see Contracts, **5,** 714; and other contract titles. PERJURY, **4,** 970. PERPETULATION OF TESTIMONY, see Equity, **5,** 1174. PERFITITIES AND ACCUMULATIONS, **4,** 976. PERSONAL INJURIES, see Highways and Streets, **5,** 1665,\*\* 1671; Master and Servant, **4,** 538; Negilgence, **4,** 764; Municipal Corporation, **4,** 747; Damages, **5,** 527; Carriers, **5,** 534; Railroads, **4,** 1200; Street Railways, **4,** 1556, and other Ilke titles. PERSONAL PROPERITY, see Property, **4,** 1087, and the titles dealing with transactions concerning personality, e. g., Ballment, **5,** 342; Sales, **4,** 1318. PETITIONS, see Equity, **5,** 1162; Motions and Orders, **4,** 704; Pleading, **4,** 996. PETTORY ACTIONS, **4,** 970. PEWS, see Religious Societies, **4,** 1275; Real Property, **4,** 1235. PHOTOGARPEHS, see Evidence, **5,** 1365. PHYSICIANS AND SURGEONS, see Medicine and Surgery, **4,** 636. PILOTS, see Shipping and Water Traffic, **4,** 1480. PIPE LINES AND SUBWAYS, **4,** 980. PIRACY, see Shipping and Water Traffic, **4,** 1493. PLACE OF TRIAL, see Venue and Place of Trial, **4,** 1737. PLANK ROADS, see Toll Roads and Bridges, **4,** 1681. PLEADING, **4,** 980. PLEAS, see Equity, **5,** 1168; Pleading, **4,** 10 Xii TOPICAL INDEX. PRESUMPTIONS, see Evidence (civil), 5, 1303; Indictment and Prosecution (criminal), 5, 1814. PRINCIPAL AND AGENT, see Agency, 5, 64. PRINCIPAL AND SURETY, see Suretyshlp, 4, 1595. PRIOR APPROPRIATION, see Waters and Water Supply, 4, 1829. PRIORITIES BETWEEN CREDITORRS, see Llens, 4, 435, and titles there referred to. PRISONS, JAILS AND REFORMATORIES, 4, 1067. PRIVATE INTERNATIONAL LAW, see Conflict of Laws, 5, 610. PRIVATE SCHOOLS, see Colleges and Academics, 5, 593. PRIVATE WAYS, see Easements, 5, 1048. PRIVILEGE, see Libel and Slander, 4, 418; Arrest and Binding Over, 5, 265; Civil Arrest, 5, 857; witnesses, 4, 1967. PRIVILEGED COMMVICATIONS, see Libel and Slander, 4, 418; Vitinesses, 4, 1963. PRIZE, see Var, 4, 1819. PRIZE FIGHTING, 4, 1070. PROATE, see Willis, 4, 1889. PROCESS, 4, 1070. PRODUCTION OF DOCUMENTS, see Discovery and Inspection, 5, 1019; Evidence, 5, 1315, 1351. PROPANTY AND BLASPHEXY, 4, 1084. PROFERT, see Pleading, 4, 991. PROHIBITION, WRIT OF, 4, 1084. PROPRITY, 4, 1087. Particular kinds, rights or transfers of property or subjects of property are excluded to separate topics. See headings describing them. PROSECUATING ATTORNEYS, seeAttorneys and Consoles, 5, 334. PROSITITUTION, see Disorderly Conduct, 5, 1024; Disorderly Rouses, 5, 1025; Fornication, 5, 1518; Indecency, Lewdness and Obsecuity, 5, 1776. PROSIMATE CAUSE IN ACCIDENT INSURENCE \[Special Article\], 4, 224. PRUSICATION, see Newspapers, 4, 107: Libel and Slander, 4, 182. PRUSIC CONTRacts, 4, 1089. PRUSIC LANDS, 4, 1106. PRUSIC POLICY, see Contracts, 5, 688; Constitutional Law, 5, 619. PRUSIC WORKS AND IMPROVEMENTS, 4, 1124. PRUS DARREIN CONTINUANCE, see Pleading, 4, 1016, 1029. PURCHASE-MONEY MORTGAGES, see Mortgages, 4, 677; Vendors and Purchasera, 4, 1769. QUESTIONS OF LAW AND FACT, 4, 1165. QUESTING TITLE, 4, 1167. QUESTING TITLE, 4, 1167. QUESTING WARARNATO, 4, 1171. R RACING. No cases have been found during the period covered. Compare Bettings and Gaming, 5, 419. RAILROADS, 4, 1181. RAPE, 4, 1231. RATEIFICATION, see Agency, 5, 70, 82. REAL ACTIONS, 4, 1234. REAL COVENANTS, see Covonants for Title, 5, 875; Buildings, etc., 5, 487; Easements, 5, 1052. REAL PROPERT, 4, 1235. Particular rights and states in real property and actions pertaining thereto are separate-ly treated in topics specifically devoted to them. See headings describing same. REASONAABLE DOUBT, see Indictment and Prosecution, 5, 1790. RECEIPTORRS, see Attachment, 5, 311; Excutions, 5, 1390. RECEIPURS, 4, 1238. RECEIPURS STOLEN GOODS, 4, 1253. RECEITALS, see Estoppel, 5, 1285; Municipal Bonds, 4, 714; Statutes, 4, 1532. RECEITALS OF LAW INUNCIPAL BONDS \[Special Article\], 4, 717. RECEOSIZANCES, 4, 1253. RECEORDARL, see Justices of the Peace, 4, 372. RECEORDING DEEDS AND MORTGAGES, see Notice and Record of Title, 4, 833. RECEORDS AND FILES, 4, 1254. REDEEDEDITION, see Executions (sales), 5, 1395; Forecleux of Mortgages on Land, 5, 1468; Judicial Sales, 4, 321; Mortgages, 4, 701. REEXCHANGE, see Negotiable Instruments, 4, 787; Banking, etc., 5, 347. REFERRENCE, 4, 1257. REFORMATION OF INSTRUMENTS, 4, 1264. REFORMATORIES, see Charitable and Correctional Institutions, 1, 507. REGISTERS OF DEEDIS, see Counties, 5, 859; Notice and Record of Title, 4, 8 RES ADJUDICATA, see Former Adjudication, **5**, 1502.
- RESCISSION, see Contracts, **5**, 722: Sales, **4**, 1323, 1343, 1555; Vendors and Purchasere, **4**, 1786; Cancellation of Instruments, **5**, 500: Reformation of Instruments, **4**, 1284.
- RESCUE, see Escape and Rescue, **5**, 1179.
- RESCSTATE, see Evidence (civil), **5**, 1332; Indictment and Prosceution (eriminal), **5**, 1823. Compare titles relating to that whereof the res res resstate is offered.
- RESIDENCE, see Absentees, **5**, 10; Aliens, **5**, 96; Citizens, **5**, 588; Domiclie, **5**, 1041; Attachment, **5**, 303; Process, **4**, 1070.
- RESPONDENTIA, see Shipping, etc., **4**,1455.
- RESTITUTION, see Forcble Entry, etc., **5**, 1437; Replevin, **4**, 1284.
- RESTORING INSTRUMENTS AND RECRDS, **4**, 1294.
- RETRAXIT, see Discontinuance, etc., **5**, 1013; Pleading, **4**, 1048.
- RECTURANABLE PACKAGE LAWS, see Commerce, **3**, 117.
- RECTURNS, see Process, **4**, 1079, and compare titles treating of mesn and final process, e. g., Attachment, **5**, 310; Executions, **5**, 1384. See, also, Elections (election, canvas and return), **5**, 1079.
- REYENUE LAWS, seeaxes, **4**, 1505; Internal Revenue Laws, **4**, 245; Licensees, **4**, 428.
- REVEERISIONS, see Life Estates, etc., **4**, 438; Willis, **4**, 1863.
- REVEIBW, see Appeal and Review, **5**, 121; Certiorari ("writ of review"), **5**, 559; Equity (bill of review), **5**, 1177; Judgments (equitable relief), **4**, 296.
- REVIVAL OF JUDGMENTS, see Judgments, **4**, 315.
- REVIVOR OF SUITS, see Abatement and Revival, **5**, 1; Equity, **5**, 1172.
- REVOCATION, see Agency, **5**, 71; also Special Article, **4**, 1295; Licensees, **4**, 428; Willis, **4**, 1885.
- REVOCATION OF AGENCY BY OPERATION OF LAW (Special Article), **4**, 1295.
- REVARDS, **4**, 1309.
- RIGHT OF PRIVACY, see Torts, **4**, 1682.
- RIGHT OF PROPEYTY, see Replevin, **4**, 1284. Compare Attachment, **5**, 131; Executions, **5**, 1391, as to claims by third persons against a levy.
- RIGHT OF STOCKOLDERS TO INSPECT BOOKS AND PAPERS (Special Article), **5**, 834.
- RIGHT, **4**, 1310.
- RIPARIAN OVNERS, **4**, 1310.
- RODBERY, **4**, 1317.
- RULES OF COURT, see Courts, **5**, 873. Compare titles treating of practice to which rules relate, e. g., Appeal and Review, **5**, 121.
- S. SAFE DEPOSITS, see Warehousing and Deposits, **4**, 1820; Banking and Finance, **5**, 356 et seq.
- SALES, **4**, 1188.
- SALVAGE, see Shipping, etc., **4**, 1484.
- SATISFACTION AND DISCHARGE, see Accord and Satisfaction, **5**, 21;Contracts, **5**, 714; Judgments, **4**, 318; Mortgages, **4**, 699; Payment and Tender, **4**, 955; Release, **4**, 1270.
- SAVING QUESTIONS FOR REVIEW, **4**, 1368.
- SAVINGS BANLS, see Banking, etc., **5**, 364.
- SCANDBAL AND IMPERTINENCE, see Equilty, **5**, 1161; Pleading, **4**, 980.
- SCHOOL LANDS, see Public Lands, **4**, 1107.
- SCHOOLS AND EDUCATION, **4**, 1401.
- SCIRE FACIALs, **4**, 1415.
- SEALS, see Names, Signatures and Seals, **4**, 157. Compare titles relating to instruments whereof seal is required.

STATE LANDDS, see Public Lands, 4, 1106,

STATEMENT OF CLAIM, see Pleading, 4, 991; Estates of Decedents, 5, 1217; Counties, 5, 866; Municipal Corporations, 4, 751.

STATEMENT OF FACTS, seeAppealand Review, 5, 171, 193.

STATE, 4, 1516.

STATUERS, 4, 1523.

STATUARY PROVISOS, EXCEPTIONS AND

SAVINGS (Special Article), 4, 1543.

STAT OF PROCEEDINGS, 4, 1549.

STAT, 4, 1551.

STATUARY, 4, 1552.

STATUARY, 4, 1553.

STATUARY, 5, 789; Foreign Corporations, 5, 1482.

STATUARY EXCHANGES, see Exchanges and

Boards of Trade, 5, 1383.

STATOPPAGE IN TRANSIT, see Sales, 4, 1344; Carrriers, 5, 516-519.

STATOREG, see Warehousing and Deposits, 4, 1821.

STATERETA RAILWAYS, 4, 1556.

STATERETS, see Highways and Streets, 5, 1645

STATERETS, see Conspiracy, 5, 617; Constitutional Law, 5, 619; Master and Servant,

4, 533; Trade Unions, 4, 1697. Compare

Buldling, etc., Contracts (impossibility of

performance), 5, 461, 484; Injunction, 4,

STATERETS, see Pleading, 4, 980; Trial,

4, 1716.

STATUICK JURY, see Jury, 4, 358.

SUBMISSION OF CONTROVERSY, 4, 1582.

SUBMISSION, see Witnesses, 4, 1970; Equity,

5, 1144; Process, 4, 1070.

SUBROGATION, 4, 1583.

SUBSCRIBING PLEDADINGS, see Pleading,

4, 980; Equity, 5, 1161.

SUBMISSION, 4, 1587.

SUBMISSION OF ATTORNBY, see Attorneys and Counselors, 5, 323.

SUBMISSION OF PARTIES, see Abate,

ment and Revival, 5, 8; Parties, 4, 895.

SUBBVAY, see Pipe Lines and Subways, 4,

980.

SUCCESSON, see Descent and Distribution,

5, 995; Estates of Decedents, 5, 1183; Texas (succession taxes), 4, 1651; Wills,

4, 1863.

SUBMISSION, 4, 1559.

SUBMISSION, 4, 1553.

SUBMIARY PROCEEDINGS, see Landlord and

Tennant, 4, 859.

SUMMARY PROSECTIONS, see Indlortment

and Prosecution, 5, 1876.

SUMMONS, see Process, 4, 1070.

SUMDAY, 4, 1589.

SUPERBEDEAS, see Appeal and Review, 5,

157.

SUPPLEMENTAL PLEDINGS, see Equity,

5, 1165; Pleading, 4, 1029.

SUPPLEMENTARY PROCEEDINGS, 4, 1591.

SUBMISSION AND FALSEYING, see Acounting, Action for, 5, 22; Estates of

Decedents, 5, 1260; Trusts, 4, 1727.

SURETY OF THE PEACE, 4, 1595.

SURETYSHIP, 4, 1595.

SURATECE WATERS, see Waters, etc,, 4, 1832; Highways, etc., 3, 1614; Railroads,

4, 1194.

SURPLUSAGE, see Equity, 5, 1144; Pleading,

4, 980.

SURROGATES, see Courts, 5, 870; Estates of Decedents, 5, 1183; Wills, 4, 1863.

SURVEYORS, see Counties, 5, 857; Boundaries, 5, 434.

SURIVIVORSHIP, see Death and Survivor-

ship (presumptions), 5, 944; Deceds, etc.,

(interpretation), 5, 973; Wills, 4, 1863.

SUSPENSION OF POWER OF ALIENATION,

see Perpetuities and Accunulations, 4, 975.

7.

T.

TAKING CASE FROM JURY, see Directing

Verdict, etc., 5, 1004; Discontinuinance,

Dismissal and Nonsuit, 5, 1011; Questions of Law and Fact, 4, 1165.

TALES, 4, 1605.

TOVER, see Conversion as Tort, 5, 753; Assumpsit (waiver of tort), 5, 298; Implied Contracts (waiver of tort), 5, 170. TRUST COMPANIIES, see Banking and Finance, 5, 356. TRUST DEBEDS, see Mortgages, 4, 686; Trusts, 4, 1727. TRUSTs, 4, 1727. TRUSTs, 4, 1727. TURNPIKES, see Highways and Streets, 5, 1645; Toll Roads and Bridges, 4, 1682. U. U. ULTRA VIRES, see Corporations 5, 778; Municipal Comparisons, 4, 745. UNDERTAKINGS, 4, 1760. UNDUE INFLUENCE, see Fraud and Undue Influence, 5, 1541; Willis, 4, 1873. UNFAIR COMPETITION, see Trade Marks and Trade Names, 4, 1691. UNITED STATES, 4, 1760. UNITED STATES COURTS, see Courts, 5, 870. As to procedure and jurisdiction, consult the appropriate title for the particular procedure under investigation. UNITED STATES MARSHALS AND COMMISSIONERS, 4, 1763. UNLAWFUL ASSEMBLY. No cases have been found during the period covered. USAGESS, see Customs and Usages, 5, 894. USE AND OCCUPATION, see Landlord and Tenant, 4, 89; Implied Contracts, 5, 1770. USES, 4, 1763. USURY, 4, 1764. V. VAGRANTS, 4, 1768. VALUES, see Evidence, 5, 1313; Damages, 5, 904, 937. VARIANCE, see Pleading, 4, 1050. VENDITIONN EXPONAS, see Attachment, 5, 308, 310; Executions, 5, 1400. VENDORS AND PURCHASERS, 4, 1769. VENUE AND PLACE OF TRIAL, 4, 1797. VENDICTS AND FINIDINGS, 4, 1803. VERIFICATION, 4, 1816. VIEW, see Trial, 4, 1708; Eminent Domain, 5, 1180; Mines and Minerals (statutory right of view), 4, 673. W. WAIVER, see Election and Waiver, 5, 1078. WAR, 4, 1818. WAREHOUSING AND DEPOSITS, 4, 1820. WARRANTS, see Arrest and Binding Over, 5, 264; Search and Suzure, 4, 1417, 1418. WARRANTST, see Covenants for Title, 5, 877; Sales, 4, 1334, 1362. WASTE, 4, 1823. WATERS AND WATER SUPLY, 4, 1824; with Special Article, 3, 1112. WAYS, see Easements, 5, 1048; Eminent Domain, 5, 1097. WEAPONS, 4, 1859. WEIGHTS AND MEASURES, 4, 1861. WHARVES, 4, 1862. WHITE-CAPPING, see Threats, 4, 1679. WILLS, 4, 1863. WINDING UP PROCEEDINGS, see Corporations, 5, 786; Partnership, 4, 922. WITHDRAWING EVIDENCE, see Trial, 4, 1708; Harmless and Prejudicial Error, 5, 1620. WITHDRAWING PLEADINGS OR FILES, see Pleading, 4, 1048; Records and Files, 4, 1254. WITNESS, 4, 1943. WOODS AND FORESTS, see Forestry and Timber, 5, 1489. WORK AND LABOR, see Assumpsit, 5, 299; Implied Contracts, 5, 1757; Master and Servant, 4, 533. WORKING CONTRACTS, see Building and Construction Contracts, 5, 455.

## Current Law.

(Copyright, 196, by Keefo-Davidson Company.)

Volume V. SEPTEMBER, IW05. Number I.

ABADONMENT, see latest topical index.

**ABATEMENT AND REVIVAL.**

**SS 1. Causes for Abatement (1).**

**SS 2. Raising Objection; Wulver (5).**

**SS 3. Survivability of Causes of Action (6).**

**SS 4. Revivai and Continuation (7).**

_The scope of this topic excludes criminal prosecutions,1 bills of revivor,2 revival of judgments3 or of statute-barred causes of action,4 and the abatement of various writs for defects therein.5_

**SS 1. Causes for abatement.58a.**_The pendency of another action_ between the same parties,6 for the same cause,7 and where a complete remedy can be secured in one action,8 is ground for abatement. But the action first commenced is not

Footnote 1: Curr. L--1.

Footnote 1: This is a typographical convention, but it is not clear whether the nameabated by an action commenced later, between the same parties, in relation to the same subject, in the same or any other court.9 The identity of the two actions must be made to appear, and is to be determined by an inspection of the records.10 It will not be inferred that the former action was based on testimony similar to that of the second one, but the evidence must be presented.11

If discontinued or otherwise terminated, the suit is no longer pending, and is no further impediment to the maintenance of a second action for the same cause.12 But, although voluntarily withdrawn, a former suit will prevent the commencement of another suit for the same cause, unless the accrued costs have been paid.13

The pendency of a suit in equity is not ground of defense to an action at law. Since the jurisdiction of equity is limited to cases where the law does not afford a complete and adequate remedy, two causes, one at law and one in equity, are ex necessitate, so dissimilar that the pendency of one cannot be pleaded in abatement of the other.14 But a judge may refuse to proceed with a changery case, while an action at law between the same parties, involving the same subject-matter, is pending on writ of error;15 and where a bill is pending in equity to regulate the crossing of a highway over a railroad, a party defendant therein cannot file a petition to regulate the crossing.16

The pendency of a suit in a state court is not a bar to one on the same cause of action in a Federal court,17 and it is immaterial that a counterclaim is set up in the state court, it not appearing that the same defense is not available in the Federal court.18 But where one of the courts has secured possession or dominion of specific property, the suit in the co-ordinate jurisdiction should be stayed until the wife, in which the husband filed a cross \[In re Miffinville Bridge, 209 Pa. 587, 58 A. complaint, praying for a divorce, does not preclude him from bringing an independent suit for divorce, after his cross complaint has been \[C. C. A.\] 135 F. 656; German Sav. & L. been stricken out, with leave to answer or take such other action as he might deem conval-Stanford Co. \[C. C. A.\] 137 F. 737. 1039. A plea in abatement of former suit in state courts for similar relief, all the paths being in persona and there being no by failure to promptly deliver telegram, is properly overruled where the two causes of summer's Gas Trust Co. v. Quibby \[C. C. A.\] action are based on the failure to deliver different telegrams. Test is would proof of one sustain other. Western Union Tel. Co. v. Crumpton \[Ala.\] 36 So. 517.

8. Becker v. Lebanon & M. St. R. Co., 25 Pa. Super. Ct. 367.

1. Flint v. Powell, 18 Colo. App, 425, 72 P. 60.

1. Becker v. Lebanon & M. St. R. Co., 25 Pa. Super. Ct. 367.

1. Conner v. Pozo \[La.\] 38 So. 454.

1. Discontinuueed by consent. Lowndes

v. Fishburne \[S. C.\] 48 S. E. 264. Dismil-sed

on motion of defendants and strlcken from the docket. Grubbs v. Ferguson, 136 N. C.

60, 48 S. E. 551.

13. Unless plaintiff files an afflavit of inability to do so, from property, and he cannot by an offer of payment, or by payment to the officers of the court, defeat defendants right to insist on his plea.

01. Jurisdiction of state courts over actions Wright v. Jett, 120 Ga. 995, 48 S. R. 345.

Compare Costs, 3 C. L. 940; Stay of Proceed-

ings, 4 C. L. 1549.

14. Risher v. Wheeling Roofing & Cornice

Co. \[W. Va.\] 49 S. E. 1016.

15. Schmid v. Bensie Circuit Judge

\[Mich.\] 101 N. W. 620.

16. Under Act June 7, 1901 (P. L. 531).

01. In re Miffinville Bridge, 209 Pa. 587, 58 A. complaint, praying for a divorce, does not preclude him from bringing an independent suit for divorce, after his cross complaint has been \[C. C. A.\] 135 F. 656; German Sav. & L. been stricken out, with leave to answer or take such other action as he might deem conval-Stanford Co. \[C. C. A.\] 137 F. 737.

01. A plea in abatement of former suit in state courts for similar relief, all the paths being in persona and there being no by failure to promptly deliver telegram, is properly overruled where the two causes of summer's Gas Trust Co. v. Quibby \[C. C. A.\] action are based on the failure to deliver different telegrams. Test is would proof of one sustain other. Western Union Tel. Co. v. Crumpton \[Ala.\] 36 So. 517.

01. Becker v. Lebanon & M. St. R. Co., 25 Pa. Super. Ct. 367.

01. Flint v. Powell, 18 Colo. App, 425, 72 P. 60.

01. Becker v. Lebanon & M. St. R. Co., 25 Pa. Super. Ct. 367.

01. Conner v. Pozo \[La.\] 38 So. 454.

01. Dis the proceedings in the court first obtaining jurisdiction are concluded, or ample time therefor has elapsed.\[19\]

_If the subject-matter of the controversy has ceased to exist,\[20\]_ as by the bar of the statute of limitations\[21\] or otherwise, the suit will be dismissed.\[22\] A suit pending to set aside the judgment on which an action is brought is good cause for the postpement of the latter action.\[28\]

_Death of a party\[24\]_ before judgment abates the action,\[25\] unless saved by statutory provisions.\[26\] If one of several joint defendants in an action at law dies, his death works a severance of parties defendant and an abatement as to the deceased defendant, and (unless plaintiff dismisses as to all but the administrator), the suit will proceed against the living defendants only;\[27\] or the plaintiff could maintain one action against the executors and another against the survivors;\[28\] but in equity proceedings, this technical common-law difficulty is avoided by separate decrees, in which, if it becomes necessary, the liability of the executors for costs can be adjusted in the same manner as if they had been sued in a separate action.\[29\] Generally, if the cause of action survives, the action is not abated by death,\[30\] nor in Tennessee by death, marriage, or other disability;\[31\] nor in Wisconsin by the occurrence of any event.\[32\] Proceedings in bankruptcy do not abate by the death of the alleged bankrupt after petition is filed and before adjudication;\[33\] nor does an action by a city on tax bills, against one who has conveyed her real estate in a mere dry or naked trust. and the trustee abate by the death of the trustee and a failure to revive against his successor.\[34\] But a cause of action for personal injuries abates at the death of the injured person, and merges in the cause of action for the death, which is then the only available remedy.\[33\] An order against a party deceased is not void but voidable, where at the time of entry the fact of the death did not appear of record.\[36\]

Where, after rendition of judgment against partners, one of them dies, an appeal may be prosecended against the surviving partner; \[37\] but the personal representative of the deceased partner is a necessary party appellant. \[38\] In Indiana, on the death of any party to a judgment before appeal, an appeal may be taken by and notice served upon the persons in whose favor and against whom the action might have been revived, if death had occurred before judgment, \[39\] but only when the cause of action survives. \[40\]

_Disability_ of a party, happening during the pendency of an action, is not ground for abatement, but the court should take necessary steps to protect the rights of such party. \[41\] An action brought by a female for damages for personal injuries is not abated by her marriage pending such action. \[42\]

The _dissolution of a corporation_, \[43\] or its consolidation\_ with another, \[44\] does not abate an action brought by or against it, but an action may abate for the failure of a foreign corporation to comply with statutory conditions precedent to maintaining actions in the courts of a state. \[45\]

A _misjoinder_ is ground for abatement. \[46\]

\_Jurisdiction. \[47\]--\_Lack of jurisdiction is ground for abatement, \[48\] the judgment on a plea to the jurisdiction being either that the writ abate or respondent ouster. Under the statute of Texas, providing for bringing an action against two or more railroad companies operating in the state in case of damage to property shipped over their lines, \[49\] a plea to the jurisdiction, alleging that no part of the damage occurred on the line on which the court was situated, and that the allegations of the petition in that respect were false and fraudulent, for the purpose of conferring jurisdiction on the trial court, is a valid plea. \[50\] It is not ground for abatement that an action was brought against a corporation in a county where it had no office or agent, when a co-defendant is properly usable in such county. \[31\] Under the Wisconsin statute, giving the circuit court jurisdiction of actions against executors, when the county court cannot afford a remedy as adequate or efficient, \[52\] the determination by the circuit court that, under the peculiar circumstances of the case, it has jurisdiction, will not be disturbed unless clearly erroneous. \[53\]

**37.** Rebertson v. Ford \[Ind.\] 74 N. E. 1. \[38\]. \[Under $ 246, Burns' Ann. St. 1901. \[Newman v. Gates \[Ind.\] 73 N. E. 638. \[39\]. Burns' Ann. St. 1901, $ 648. \[Rich Grove Tp., Pulinski County v. Emmelt \[Ind.\] 72 N. E. 638. \[40\]. Cooper v. Murphy \[Ind.\] 72 N. E. 638. \[41\]. Code v. Proc. $ 45. \[Simmons v. Kelsey \[Neb.\] 101 N. W. 1. See, aise, Posey v. Posey \[Tenn.\] 83 B. W. 1; Fleming v. Ellison \[VW1.\] 102 N. W. 398. \[42\]. Stevens v. Friedman \[Vw.\] 61 S. E. 132. \[43\]. In Michigan, after the annullment of its charter, a corporation continues in existence three years for the prosecution or defense of suits. Comp. Laws, $ 8, ch. 230, p. 267. \[Eau Claire Canning Co. v. Western Brokerang Co., 213 Ill. 561, 73 N. E. 430. See 3 C. L. 8. \[44\]. Where the petitioning corporation pending condemnation proceedings ls consolidated with another, the consolidated corporation succeeds to all the rights, tilts and estates of the petitioner, and can prosecute an appeal in Its own name from the award of damages. Union Traction Co. v. Basey \[Ind.\] 73 N. E. 263. \[45\]. See, 3, p. 235, ch. 125, Laws of 1901. \[Vickers v. Buckt Stove & Range Co. \[Kan.\] 79 P. 160. \[46\]. Code Civ. Proc. $ 484, subd. 9 does not abate an action brought by or against it, but an action may abate for the failure of a foreign corporation to comply with statutory conditions precedent to maintaining actions in the courts of a state. \[45\]

A _misjoinder_ is ground for abatement. \[46\]

\_Jurisdiction. \[47\]--\_Lack of jurisdiction is ground for abatement, \[48\] the judgment on a plea to the jurisdiction being either that the writ abate or respondent ouster. Under the statute of Texas, providing for bringing an action against two or more railroad companies operating in the state in case of damage to property shipped over their lines, \[49\] a plea to the jurisdiction, alleging that no part of the damage occurred on the line on which the court was situated, and that the allegations of the petition in that respect were false and fraudulent, for the purpose of conferring jurisdiction on the trial court, is a valid plea. \[50\] It is not ground for abatement that an action was brought against a corporation in a county where it had no office or agent, when a co-defendant is properly usable in such county. \[31\] Under the Wisconsin statute, giving the circuit court jurisdiction of actions against executors, when the county court cannot afford a remedy as adequate or efficient, \[52\] the determination by the circuit court that, under the peculiar circumstances of the case, it has jurisdiction, will not be disturbed unless clearly erroneous. \[53\]

**38.** Rebertson v. Ford \[Ind.\] 74 N. E. 1. \[38\]. \[Under $ 2 5 Cur. Law. ABatement AND REVIVAL SS 2. 5

**SS 2.**_Raising objection; waiver._\[54\]--The want of necessary parties must be pleaded in abatement;\[55\] and also extension of time of payment, when it was by a transaction extraneous of the instrument in suit.\[56\] In Wyoming, an answer seems to be considered the appropriate medium for presenting isusable facts either in abatement or bar of the action;\[57\] misjoinder of parties or causes of action cannot be raised by demurrer in Iowa, but by motion;\[58\] and in South Carolina an oral demurrer at the trial will not raise the objection that the action does not survive.\[59\] Variance between the claim stated in an afflavit for an attachment and the demand set up in the declaration need not be pleaded in abatement, and a plea in abatement in such a case will be treated as a motion to quash the attachment.\[60\] Where all the facts relied upon by defendant, to show that no jurisdiction was obtained by the process, appear on the record, his remedy is to move for dismissal and not by plea in abatement.\[61\] Under a statutory provision requiring an abatement of any summons issued in an action for trespass on lands outside of the county, where only one of the counts in a declaration contravenes the statute, a plea in abatement will be limited to quashing the summons as to such count only; and the plaintiff can amend by striking out such count.\[52\] An objection that a proceeding is prematurely brought is waived by counsel of respondent appearing and asking that his client's rights be adjudicated;\[53\] and so is the objection that a claim against decedent's estate was not presented by the proper person, by joining issue and going to trial without raising it.\[64\] Misjonider is waived by the defendant, if complaint be not seasonally made in the manner prescribed.\[65\] And matter in abatement is waived by a hearing of the case on its merits before an auditor, without objection, and not being brought to the attention of the court until the close of the evidence at the trial.\[66\] But the question of the jurisdiction of the court over the subject-matter\[67\] and of the person\[68\] may be raised at any time, and the objection of jurisdiction of the person, when once raised, is not waived by going to trial on the merits afterward;\[68\] and want of jurisdiction of the subject-matter cannot be waived by defendant, by filing a plea in bar.\[69\] The plea in abatement must be promptly filed,\[71\] and comply with the statutes and rules and the rules of good pleading as to form and requisites.\[72\] New and distinct grounds for abatement cannot be set up by amend.\[\]

\*\*SS.\*\*Lindemann v. Rusk \[Wis.\] 104 N. W. \[67\]. Harrigan v. Gilchrist, 121 Vis. 127, 99 119. \[54\]. See 3 C. L. 8; also Pleading, 4 C. L. 8; 68, 69. State Bank v. Thweatt, 111 Ill. App. 980. \[55\]. Donovan v. Twist, 93 N. Y. S. 990. \[56\]. The American Home Circle v. Schumm, 111 Ill. App. 316. \[57\]. A pleading regarded as an answer, though called a plea in abatement by the pleader. Tultry V. Ryan \[VWy.\] 78 P. 657. \[58\]. Code, $5 3547, 3548, 3561. Citizens' State Bank v. Jess \[Iowa\] 103 N. W. 471. \[59\]. Subd. 6, 15 165, Code 1902. Duke v. Postal Tel. Cable Co. IS. C.\] 50 S. E. 675. \[60\]. Simmons v. Simmons \[V. Va.\] 48 S. E. \[61\]. Hilton v. Consumers' Can Co. \[Va.\] 48 S. E. \[62\]. 859. \[63\]. Code 1886, $ 4205. Karthaus v. Nash- ville, etc., R. Co., 140 Ala. 433, 37 So. 268. \[64\]. State v. Weston \[Mon.\] 78 P. 487. \[65\]. In re Morgan's Estate \[Or.\] 78 P. 1029. \[66\]. Code. $2 2649, 2654. Harrigan v. Gilchrist, 121 Vis. 127, 99 N. W. 909. \[66\]. Chamberlayne v. Mazro \[Mass.\] 74 N. E. 674. \[67\]. A plea in abatement by the pleader. Tultry V. Ryan \[VWy.\] 78 P. 657. \[68\]. Rule 17 requires pleas in abate. State Bank v. Jess \[Iowa\] 103 N. W. 471. \[59\]. Subd. 6, 15 165, Code 1902. Duke v. Postal Tel. Cable Co. IS. C.\] 50 S. E. 675. \[60\]. Simmons v. Simmons \[V. Va.\] 48 S. E. \[61\]. Hilton v. Consumers' Can Co. \[Va.\] 48 S. E. \[62\]. Code 1886, $ 4205. Karthaus v. Nash- ville, etc., R. Co., 140 Ala. 433, ment at the trial term, unless the plaintiff has so amended his pleadings as, for the first time, to make available the new matters of defense.\[17\] After a plea has been heard on its merits and the action dismissed, it is too late for plaintiff, on a motion to vacate the judgment and reinstate the case, to raise objections to the plea, which he might have raised nt the hearing.\[18\] A cause erroneously dismissed for lack of jurisdiction in a county court was reinstated upon the discovery that the legislature, by special, act, had increased such jurisdiction.\[19\] An officer's return to a writ cannot be falsified by a plea in abatement.\[20\] In Illinois a plea in abatement is not a proper plea in a proceeding for partition.\[21\]

SS 3. _Survicibility of causes of action.\[22\]_--In Iowa all causes of action survive the death of the person entitled thereto.\[23\] So, also, in Indiana, save certain enumerated ones, not including an action for breach of duty by an attorney to his client.\[24\] Actions cx contractu, as a general proposition, survive, but this is due rather to the substance of the action than its form.\[25\] A divorced wife who is entitled to recover against her divorced husband for the maintenance of children, whose custody has been awarded to her, can maintain such claim against his estate after his death,\[26\] and where an action could have been maintained against a trustee for an accounting as to personalty in his possession, the remedy survives against his personal representatives.\[27\] But a cause of action to have defendant declared a lunatic does not survive the death of defendant;\[28\] nor a cause of action by the state to declare a nuisance and abate the keeping of a place for the sale of liquors.\[29\]

_Personinl actions\[24\]_ in tort do not survive at common law against the personal representatives of the tort fessor;\[21\] but this rule does not apply when the action has been prosecuted to final judgment in favor of the injured party, as then it becomes a debt owing by the injuring party to the party injured.\[29\] And where the right to bring an action for a conversion vested in a person before his death, it passed to his administrator.\[24\] A cause of action for personal injuries does not survive in case of the death of the injured person, but merges in the cause of action for the death, which is then the only available remedy,\[24\] and which survives to the administrator of the party in whose favor it accres.\[25\]

plea of garnishment in an action on a note\[21\] N. E. 143. An action by depositors of an should show its payment to the rightful holder, or a prior adjudication of his right.

Implied contract to see that the bank's as-Brown v. Fisher \[Ind. App.\] 74 N. E. 632.

A plea to the jurisdiction must contain a proper averment of facts, accurately and log- against representatives of deceased directors.

I only stated, excluding every interndentent of jurisdiction. Willard v. Zehr \[11\]. 74 N. E. 107.

73. Quillian v. Johnson \[Ga.\] 49 S. E. 801.

01. Wright v. Jett, 120 Ga. 985, 48 S. E. 345.

01. County court of Gollaud county; Laws of 1895, p. 57, 45; 10 Gammel's Laws, 787.

Gult, etc., R. Co., McCampbell \[Tex. Civ. App.\] 85 S. W. 1158.

76. McDanlenis v. De Groot \[V.\] 5 A. 166.

01. Sec. 21, ch. 1, 1 S. & C. Statutes, 258.

Monroe v. Milliken, 113 Ill. App. 187.

78. See 3 C. L. 10.

01. Code, 8 344. An administrator appointed in Iowa may prosecute for an injury resulting in death to a resident alle, although the sole heir of deceased is a non-resident alien. Romano v. Capital City Brick & pipe Co., 125 Iowa, 691, 101 N. W. 437.

01. Burns' Ann. St. 1901, 838-285. Newman v. Gates \[Ind.\] 72 N. E. 638.

01. Hedekin v. Gillesple, 33 Ind. App. 650, Real actions,\[92\] such as for injuries and trespasses to land,\[93\] a claim of damages for the obstruction of a right of way,\[94\] and the right to redeem from a deed absolute in form, but intended as a mortgage,\[95\] survive. But where the action is primarily to recover for injury to the person, and the injury to the property is merely an incident, the same does not survive.\[96\]

8 4. \_Revival and continuation.\[97\]--The motion for revivor in behalf of representatives of a deceased party must be made within the time limited by statute,\[98\] which is not a mere limitation but a condition of the very right to revive that must be strictly complied with.\[99\] In Arkansas the statutory provisions for the revival of actions in the name of the representatives, on the death of a party pending action,\[1\] apply as well to causes pending in the supreme court on appeal, as to those in the trial court; and the object of the statute is to fix a time within which it must be revived or abate.\[2\] Under the California statute providing that, in case of any transfer of interest other than by death or disability of a party, the action or proceeding may be continued in the name of the original party, a mortgage foreclosure may be continued in the name of the original plaintiff for the benefit of one who purchases his claim during the pendency of the proceedings.\[3\] In Alabama, under statutory provisions requiring that the action must be revived on motion, such motion may be oral and without notice.\[4\] Under the statutory provisions of Missouri, where plaintiff dies pending an appeal from a justice and defendant does not appear, the action cannot be revived on the mere suggestion of plaintiff's death, without an order for scire facias served on defendant.\[5\] An action cannot be revived where the suit was for personal injuries and the intestine died during the pendency of the suit,\[9; and a claim presented by petition within the jurisdictional period, under the Indian depredation act, by an attorney in ignorance of the death of the party, is not a cause pending and cannot be made the basis of revivor in the name of the administrator after the expiration of the jurisdictional period.\[7\] Where a mortgage is sought to be forc closed as against a subsequent grantee, it may be done without a reivivor of the action as against the deceased maker of the mortgage and notes, he not being a necessary party.8 Where, pending appeal from a justice's judgment, the successful plaintiff dies and the case is improperly revived, the defendant may limit his appearance in the circuit court for the purpose of objecting to the jurisdiction and may move to set aside the reivor.9

\_Substitution of parties.10--\_In case of the death of a party, if the cause of action survives, the court may, on motion, allow the continuation of the action against the representative or successor.11 In case of the death of one of several joint defendants, the administrator cannot be brought in and joined with the other defendants, because, in case plaintiff recovers he would be entitled to different judgments against the administrator and the other defendants.12 A suit in equity in the name of the committee of an insane person may be revived, upon his death, in the name of his administrator, on motion, without notice or scire facias.13 After sale, but before confirmation thereof, in an action for foreclosure of a mortgage, in case of the death of defendant, revivor of the action may be had against the heirs.14 A board whose members' terms of office expire at different times and appointments are made accordingly is a continuous body, and expiration of the term of one member and the appointment of a successor after the granting of a mandamus to compel certain action does not abate the proceedings, but relator may take proper steps to bring in the successor.15 But a cause of action to have defendant declared a lunatic and to have a guardian appointed for him and his property will not be revived against his administrator after his death.16 Where, by act of congress, a new district was created and pending actions transferred thereto, an action in which the sole plaintiff had died, being so transferred, was revived in the new district by the administrator.17 Where, pending a suit to redeem land from a sale on foreclosure, one of the defendants dies, the suit should be revived against his heirs;18 and also upon the death of one defendant partner, a revival should be had against his representatives, where essential to a complete determination of the issues.19 A writ of error in a personal action can be brought only by the personal representatives of the deceased, though in real actions an heir at law who shows that he is injured by an erroneous judgment against his ancestor may do so.20 After motion made to revive an action in the name of defendant's administrator, an appearance by the administrator and filing an answer, alleging that he is such administrator and that the cause has been revived in his name, operate as a waiver of summons and a formal order of reivor.21

8. Boatmen's Bank v. First Nat. Bank \[Kan.\] 79 P. 125. 9. Chicago, etc., R. Co. v. Woodson \[Mo. App.\] 85 S. W. 105. 10. See 3 C. L. 11. 11. New York Code Civ. Proc. 8 751. McGrath V. Weiler, 90 N. Y. S. 490. In Wiss-consin, in case of death or disability, within one year, or thereafter on a supplemental complaint. Rev. St. 1898, 8 2802. Fleming v. Ellison \[Wis.\] 102 N. W. 398. In South Carolina, an action against an ancestor for trespass was continued against the heir, under statutory provisions for such survival. Act 1892 (21 St. at Large, p. 18). Sims v. Davis \[S. C.\] 49 S. E. 872. And in Indiana. Burns' Ann. St. 1901, 8 272. Rich Grove Tb., Pulaski County v. Eminett \[Ind.\] 72 N. E. 543; Newman v. Gates \[Ind.\] 72 N. E. 638. But the court has no jurisdiction to revive the action 5 Cur. Law. ABDUCTION. ABORTION.

ABbreviations, see latest topical index.

ABDUCTION.

Criminal intent is essential, and this intent must be gathered from the facts in evidence,\[22\] and when a taking with such intent is accomplished, the offense is complete. That defendant soon returned prosecutrix to her home does not palliate the crime.\[28\] In a prosecution for abduction, evidence of bigamy on the part of the abductor is inadmissible.\[24\] A memorandum of the birth of prosecutrix made at the time of her birth is admissible to prove her age.\[28\] In New York the question whether the person having legal charge of the abducted female consented thereto is one of fact for the jury.\[28\]

ABETING CHEE; ABIDE THE EVENT; ABODE, see latest topical index.

**ABORTION.**

Placing a pregnant woman on an operating table, in a position to be operated on, coupled with evidence of the intent to produce an abortion, is sufficient to constitute an attempt to commit abortion.\[27\] In order that one may be guilty of administering or prescribing drugs, it is not necessary that he be present at the time they were delivered or taken.\[28\] In Colorado, malice is not an essential element of the crime,\[29\] and an indictment for causing the death of the woman need not negative the justifications for producing a miscarriage.\[30\] That the female consented to the abortion\[31\] or that she conspired with the police officials and lured defendant to make the attempt\[32\] does not constitute a defense.

As used in statutes relative to abortion, the word "child" is generally held to mean an unborn child so far developed as to be quick.\[38\] An intent to destroy such a child may exist without absolute knowledge that such child is "quick,"\[33\] and if defendant's purpose is to destroy the footus, and in so doing he kills a

**22, 23. State v. Nensby \[Mo \] $7 S. W. 468.**

so that it could not be said that he used them or caused them to be used. It is now now \[24\] People v. Ceraml, 91 N. Y. S. 1027.

25. So held where parents were unable to ever settled that the abortionist cannot swrite and memorandum was made by neighbors at parents' request. State v. Nensly \[Mo.\] $7 S. W. 468.

01. Prosecution under Pen. Code, $282,

Nebd. 1. People v. Ceraml, 91 N. Y. S. 1027.

27. Pen. Code, $34, 294. construed. People v. Conrad, $2 N. Y. S. 606.

01. Burris v. State \[Ark.\] $4 S. W. 723.

01. Under Mills' Ann. St. Rev. Supp. $ NOTE. The abortionist as an necessary be-

01. providing that any one malievously ad-

for the fact. The doctrine has been asserted that when the woman consents to, or so-

ing death, etc., and who shall use any in-

title, an abortion, the one procuring or at-

tempting to procure it, thereby causing her

does, is merely an accessory before the

fact, especially when he is not present when

the act is performed; and that being an

accessory before the fact, he cannot be prosecuted until after the conduction of the

principal, and since this is impossible because of

her death, he is entitled to immunity. See

Rex v. Russell, I Moody, C. C. 365; Reg.

Fretwell, 9 Cox, C. C. 152, Leigh & C. C. C.

161, 31 L. J. Mag. Cax. (N. S.) 145, 8 Jur. (N. S.) 466, 6 L. T. (N. S.) 333, 10 Week. Rep.

545. It is to be observed, however, that in

each of the above cases the woman herself

did the deed, and the accused merely pro-

cured the means, and in the latter case he

only procured the means under compulsion,

1

2

3
4\.

child which is "quick," the criminal intent will extend to the consequences of his act.\[25\] Under a statute making it a crime for any person to aid a pregnant woman in procuring an abortion or to aid any person so intending to procure an abortion, the word "person" as last used means some person other than the pregnant woman.\[96\]

_Evidence._"--Testimony tending to show illicit relations between the co-dc-fendant and the female, or proof of censpiracy to destroy the result of such relations, is admissible to show the motive of the crime.\[98\] Prior unsuccessful attempts to bring about the abortion may be shown.\[30\] To show knowledge of the fact of pregnancy, and that the child was quick, it is proper to show that the woman told defendant of her pregnancy and that the child had moved.\[40\] Testimony of the physician who treated the victim just prior to her death as to his opinion of her ailment, derived exclusively from her narration of the cause and history of her complaint, is incompetent.\[41\] Where the operation results in the death of the woman, testimony of her husband as to a conversation he had with his wife on her return from the visit to defendant during which the operation was performed is admissible.\[42\] There being evidence that defendant had given proscutrix instructions how to use the medicine, the testimony of those who carried it to her is admissible to show that defendant procured the medicine and asked them to so carry it.\[43\] It is competent, upon cross-examination, to ask an ap-prover if he expects to escape punishment because of his taking the witness stand.\[44\]

_Instructions._--The law declaring the offense to be murder, it is not error for the court to refuse to instruct as to the law of manslaughter.\[45\]

Abscording Debtors, see latest topical index.

Statutory proceedings to administer absentees' property after death is presumed from long absence, but irrespective of actual death, do not lack due process of law\[47\] if the period fixed as raising such presumption be reasonable\[48\] and the notice likewise,\[49\] and adequate remedy for the revocation of the proceedings, and assurance of the refunding to the absentee of what may have been distributed, is provided.\[50\] While numerous attempts to administer absentees' estates under the general law of decedents have proved abortive, it was because the ordinary administration depends for jurisdiction on the actual fact of death and because such administration is not due process of law for such a purpose,\[61\] The state has un-

**36. State v.**: 'Parm \[Del.\] $0 A. 977. An \[Ct. 721, 49 Law. Ed. --; aff. 206 Pa. 469, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 791, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 791, \[56 A. 16, 98 Am. St. Rep. 792, \[56 A. 16, 98 Am. St. Rep. 791, \[56 A. 16, 98 Am. St. Rep. 792, \[56 A. 16, 98 Am. St. Rep. 793, \[56 A. 16, 98 Am. St. Rep. 794, \[56 A. 16, 98 Am. St. Rep. 795, \[56 A. 16, 98 Am. St. Rep. 796, \[56 A. 16, 98 Am. St. Rep. 797, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 791, \[56 A. 16, 98 Am. St. Rep. 792, \[56 A. 16, 98 Am. St. Rep. 793, \[56 A. 16, 98 Am. St. Rep. 794, \[56 A. 16, 98 Am. St. Rep. 795, \[56 A. 16, 98 Am. St. Rep. 796, \[56 A. 16, 98 Am. St. Rep. 797, \[56 A. 16, 98 Am. St. Rep. 798, \[56 A. 16, 98 Am. St. Rep. 799, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 790, \[56 A. 16, 98 Am. St. Rep. 791, \[56 A. 16, 98 Am. St. Rep. 792, \[56 A. 16, 98 Am. St. Rep. 7 doubted power to confer such jurisdiction under a special statutory proceeding made to fit the situation${}^{\\underline{s}}$ and such power was recognized by the civil law and from it long since adopted into Louisiana. These proceedings must strictly follow the prerequisite conditions of fact laid down,${}^{\\underline{55}}$ and all these facts must be well pleaded in the petition for letters.${}^{\\underline{54}}$ Notice must be given of such proceedings${}^{\\underline{55}}$ and it must fully meet the mode of notice, if any, prescribed by statute.${}^{\\underline{50}}$ A trustee holding funds of the absentee which by such a proceeding would be transferred to administration is so aggrived as to be entitled to appeal.${}^{\\underline{57}}$

Receivership for an absentee's property is not warranted in the case of a bequest to him if living where because of more than seven years' absence unheard of, he was presumably dead before it vested.${}^{\\underline{58}}$

The designation of an agent to receive process for an absentee under the New York Code when made abroad need not be dated,${}^{\\underline{58}}$ and the consul taking it will be presumed to have acted within his jurisdiction, though the place of his residence is not stated.${}^{\\underline{59}}$

**ABSTRACT OF TITLE.**

A vendor's agreement to furnish an abstract showing a merchantable title is not complied with where the abstract shows a defect which the vendor says he has a release of.${}^{\\underline{61}}$ A statute requiring the county anditor to search records, and furnish a certificate of conveyances, mortgages, etc., does not make him a public abstractor required to make complete abstracts of specific tracts, but only requires him to search for such instruments as his attention is directed to.${}^{\\underline{62}}$ An abstract delivered by a mortgagor to a mortgage is regarded as part of the security for the loan and the mortgagor is not entitled to possession of it until the mortgage is paid.${}^{\\underline{63}}$ An abstractor is liable after his license to do business .has expired for damages occasioned by reason of a defective abstract made while his license was in effect;${}^{\\underline{64}}$ but for a defect which causes no injury, there is no liability.${}^{\\underline{65}}$ Where an abstract is made for the exclusive benefit of one party at the instance and expense of another, there is sufficient purity of contract between the abstractor and the person for whose benefit it is made to enable the latter to maintain action for damages suffered by reason of a defect.${}^{\\underline{66}}$ The measure of damages is such an amount as will compensate for injury resulting from loss of title or impairment

White in Cnnius v. Reading School Dist., 25 S. Ct. 721, 49 Law. Ed. , In this opinion a comparison of the common law and civil law jurisprudence on this subject is made and the cases bearing on the constituumality of such procedure either under general laws or special modes are analyzed and discriminated.

33, 54. In Maryland the petition must state (a) the time and place last heard of by family or friends, (b) that diligent inquiry was made among his family, relatives and friends, (c) that advertisement in and letters to likely last places of residence have produced no information since a date more than seven years prior to petition, (d) that petitioner believes the absentee is dead. Acts 186, p. 434, c. 246. Lee v. Allen \[Md.\] 59 A. 184.

35. Lee v, Allen \[Md.\] 59 A. 184.

01. Record showing grant of letters 17 days after petition makes it invalid. The statute requires publication once a week for four weeks 16 days before appearance day. 1896, p. 434, c. 246. Lee v. Allen \[Md.\] 59 A. 184.

01. Lee v. Allen \[Md.\] 59 A. 184.

01. Centuring Rev. Laws, c. 144, George v. Clark \[Mass.\] 71 N. E. 809.

01. It must be executed and acknowledged as a dead must be to be recorded. Pierce v. Martin, 89 N. Y. S. 434. Instrument dated 27th, the month being type-written "March", which word was stricken and "February" written, construed as of the earlier month where the later date would necessarily have been false. Id.

01. Pierce v. Martin, 89 N. Y. S. 434.

01. Spooner v. Cross \[Towal\] 102 N. W. 118.

01. Ball. Ann. Codes & St. 83 417, 418.

01. Equitable Trust Co. v. Burley, 110 Jul. App. 538.

01. Western Loan & Sav. Co. v. Silver Bow Abstract Co. \[Mont.\] 78 P. 774.

01. Denton v. Nashville Title Co. \[Tenn.\] 78 S. W. 79.

01. Western Loan & Sav. Co. v. Silver Bow Abstract Co. \[Mont.\] 78 P. 774.

of the ownership or enjoyment of the property purchased on faith of the abstract," and such injury must have been the direct result of the defect complained of."

Abuse of Process; Abutting Owners; Acceptance, see latest topical index.

**ACKESSION AND CONFUSION OF PROPERTY.**

As a general rule the wrongful confusion of goods operates as a forfeiture of the interest of the wrongdoer in all of the goods intermixed," provided that the resulting mass cannot be stably proportioned among the original owners in accordance with the quantities contributed by each."

It is the duty of a stranger to an execution, whose goods are so intermingled with those of the execution debtor that they cannot be readily distinguished, to designate them to the officer making the levy, and if he fails to do so, the latter may levy upon the whole." If he points out the goods not subject, no demand is necessary to enable him to maintain replevin or trover for those wrongfully seized;" but if not, a contrary rule prevails."

One does not lose title to personal property which can be identified by reason of the fact that he is a trespasser." A mortgagor of cattle cannot, by mixing other cattle of like description with them, defeat the mortgages, either in his own favor or that of a subsequent purchascr under him."

Where a lessee under a gas lease mingles the gas from the demised premises with gas belonging to others so as to constitute a confusion of goods, and in consequence is compelled to account to and pay the latter the value of the whole mass, the lessor is not entitled to collect from such other persons the royalty on the gas from his land so mingled with theirs."

_Right to recover value of improvements made on lands of another."_--As a general rule one in possession of land belonging to another, who, in good faith and under the mistaken belief that he is the true owner, makes permanent improve-

**67.** Denton v. Nashville Title Co. \[Tenn.\]

ber, amounting to 8,000 feet, which they in-

73 S. W. 789.

68. Where there is no causal connection

between the loss and the abstractors' fault,

plevin, the office seized 20,000 feet. HeId,

there can be no recovery. Denton v. Nashville Title Co. \[Tenn.\] 78 S. W. 789.

69. Evidence held to show that defendant willfully and indiscriminately intermixed certain logs belonging to plaintiff and the lumber he manufactured out of them with

logs and lumber owned by himself. St. Paul

Boom Co. v. Kemp, \[Wls.\] 103 N. W. 258.

Where one having the right to cut and re-

move trees from land within five years cuts trees both before and after a subsequent con-

vergence of the land, made subject to the con-

tract, and mingles and confuses them but

falls to remove them within the five years,

the grantee of the land may recover them all

under the doctrine of common of goods,

though those cut before conveyance were

personality, and hence did not pass there-

under. Mengal Box Co. v. Moore \[Tenn.\] 87

8. W. 415.

For a full discussion of this question, see

note, 101 Am. St. Rep. 913,

70. Even if the compmingling is malicious

and fraudulent, the innocent party is not entitled to the whole mass unless it appears

that it cannot be ratably apportioned among

the original owners in accordance with the

proportion contributed by each. Defendants

purchased certain logs stolen from plaintiff

and manufactured a part of them into lum-

71. See 3 C. L. 16.

ments thereon of a character beneficial to the estate, may recover their value when dispossessed.\[8\] This, however, does not apply to improvements made at a time when he has actual or constructive notice of the superior rights of another,\[70\] even though he in good faith believed his own title to be the better in point of law.\[80\]

The right to compensation is not cut off by a tax title, where the holder thereof subsequently acquires the title from the record owner before the expiration of the period for redemption.\[81\]

A statute giving compensation for improvements to any defendant against

- 78. Purchaser. Van Tassell v. Wrakefield, 214 Ill. 205, 73 N. E. 340. In M Mehigan an unsuccessful defendant in ejectment who has been in actual, peaceable occupancy of the premises for a period of six years before the non (Tex. Civ. App.) 86 S. W. 956, Purchaser period under color of title and in good faith, is entitled to compensation for improvements where residents because of the premises, Comp. Laws, $10,995. Bounce v. Tremblev \[Mich.\] 12 Def. Leg. N. P. 146. In an action for deceit and false representations brought by a vendee against his forced by one who has not been in possession for six years where his claim is not under color of title. Id. A widow who has without color of title occupied the land for six years prior to the commencement of the action is entitled to compensation for improvements v. Vermon \[Wash.\] 80 P. 559. Bounce v. Tremblev \[Mich.\] 12 Def. Leg. N. P. 146. In an action for deceit and false representations brought by a vendee against his verander for falsely representing that certain lots pointed out were the ones for which the parties were bargaining, held, that the vendee could recover the value of improvements made on the land which were consistent with the use for which he purchased it. Lawson v. Vermon \[Wash.\] 80 P. 559. Bounce v. Tremblev \[Mich.\] 12 Def. Leg. N. P. 146. In an action for deceit and false representations brought by a vendee against his verander for falsely representing that certain lots pointed out were the ones for which the parties were bargaining, held, that the vendee could recover the value of improvements made on the land which were consistent with the use for which he purchased it. Lawson v. Vermon \[Wash.\] 80 P. 559. Bounce v. Tremblev \[Mich.\] 12 Def. Leg. N. P. 184, 103 N. W. 819. No claim can be ensured for falsely representing that certain lots pointed out were the ones for which the parties were bargaining, held, that the vendee could recover the value of improvements made on the land which were consistent with the use for which he purchased it. Lawson v. Vermon \[Wash.\] 80 P. 559. Bounce v. Tremblev \[Mich.\] 12 Def. Leg. N. P. 184, 103 N. W. 819. No claim can be ensured for falsely representing that certain lots pointed out were the ones for which the parties were bargaining, held, that the vendee could recover the value of improvements made on the land which were consistent with the use for which he purchased it. Lawson v. Vermon \[Wash.\] 80 P. 559. Bounce v. Tremblev \[Mich.\] 12 Def. Leg. N. P. 184, 103 N. W. 819. No claim can be ensured for falsely representing that certain lots pointed out were the ones for which the parties were bargaining, held, that the vendee could recover the value of improvements made on the land which were consistent with the use for which he purchased it. Lawson v. Vermon \[Wash.\] 80 P. 559. Bounce v. Tremblev \[Mich.\] 12 Def. Leg. N. P. 184, 103 N. W. 819. No claim can be ensured for falsely representing that certain lots pointed out were the ones for which the parties were bargaining, held, that the vendee could recover the value of improvements made on the land which were consistent with the use for which he purchased it. Lawson v. Vermon \[Wash.\] 80 P. 559. Bounce v. Tremblev \[Mich.\] 12 Def. Leg. N. P. 184, 103 N. W. 819. No claim can be ensured for falsely representing that certain lots pointed out were the ones for which the parties were bargaining, held, that the vendee could recover the value of improvements made on the land which were consistent with the use for which he purchased it. Lawson v. Vermon \[Wash.\] 80 P. 559. Bounce v. Tremblev \[Mich.\] 12 Def.

- \[14\] 5 Cur. Law. whom a judgment or decree shall be rendered for land does not apply to a defendant in error on appeal who was plaintiff below.\[82\]

The right to compensation must be pleaded by defendant in order to recover it in the action by which he is dispossessed,\[83\] but failure to plead his equity in such suit does not estop him from asserting it in an independent suit for that purpose.\[84\]

Accessories; Accident; Accommodation Paper; Accomplices, see latest topical index.

## 1 The Aecerd (14).

- \[1\] 1. The Aecerd (14).
- \[2\] 2. Satisfaction. or. Discharge. (21). A. In General (14).
- \[3\] 3. Fleadings, Issues, and Proof (21). B. The Consideration (18). C. Fraud, Mistake and Duress (20).
- \[3\] 1. _The accord. $\\Lambda$. In general.\[86\]_-\_Accord and satisfaction is the acceptance\[87\] of something agreed upon\[88\] in settlement of a debt or obligation,\[89\] or the adjustment of a disagreement as to what is due from one party to another,\[90\] and \[82\]. Railroad company instituting suit to \[1\] 1. Paul, etc., R. Co., 11 St. Paul, 64, R. Co., 41 Minn. 169, 42 N. W. road company, not entitled to compensation on reversal of final judgment in its favor. Chesapeake & O. R. Co. v. Deepwater R. Co. \[10\] 1997, Va.\] 50 S. E. 890.
- \[11\] 1998. Defendant In an action to recover land may not give evidence as to improvements in the absence of a claim therefor in his answer. Carraway v. Moore \[1\] 1998 S. W. \[12\] 1999. \[13\] 1999. \[14\] 1999. \[15\] 1999. \[16\] 1999. \[17\] 1999. \[18\] 1999. \[19\] 1999. \[20\] 1999. \[21\] 1999. \[22\] 1999. \[23\] 1999. \[24\] 1999. \[25\] 1999. \[26\] 1999. \[27\] 1999. \[28\] 1999. \[29\] 1999. \[29\] 1999. \[30\] 1999. \[31\] 1999. \[32\] 1999. \[33\] 1999. \[34\] 1999. \[35\] 1999. \[36\] 1999. \[37\] 1999. \[38\] 1999. \[39\] 1999. \[39\] 1999. \[40\] 1999. \[41\] 1999. \[42\] 1999. \[43\] 1999. \[44\] 1999. \[45\] 1999. \[46\] 1999. \[47\] 1999. \[48\] 1999. \[49\] 1999. \[49\] 1999. \[50\] 1999. \[51\] 1999. \[52\] 1999. \[53\] 1999.
  the payment of the amount so agreed upon.\[91\] One executory agreement is not extinguished by the execution of another between the same parties, nor is a security for an obligation merged in another security of the same degree which is accepted for the same obligation.\[92\] Where there is a contest as to whether a payment made was by way of accord and satisfaction, or was a payment upon another claim, and there is a dispute as to the respectiye obligations of the parties and their adjustment and satisfaction, the questions are for the jury.\[93\]

The policy of the law is to enforce settlements and thereby prevent litigation.\[94\] Litigation over the settlement of an estate may be terminated by agreement among those interested and will be recognized by the courts.\[95\] But settlements are not to be inferred or presumed except upon substantial showing of facts indicating that the claim in dispute was embraced within the terms of settlement.\[96\]

The effect of an accord and satisfaction, when executed, is to "extinguish the and defendant. O'Connor v. Hogan \[Mich.\]

\[H. 423, 1 Am. St. Rep. 886; Crawford v. Krue-104 N. W. 29. The failure of a minor to re-ply to a letter proposing that defendants would continue to pay for her board and ..., St. Rep. 392-394.

\[H. 433\] Acceptance of renewal mortgage and she would make no further demand on account of injuries, did not constitute an accord and satisfaction. Hensler v. Stix \[Mo. App.\] 88, W. 108.

\[H. 433\] See 3 C. L. 17, n. 78, 79. Where an agreement is made for the payment of a fixed annual sum in lieu of damages to plaintiff's premises by defendants' blasting operations, such arrangement being optional with defendant, plaintiff cannot maintain action to recover the specified amount. Andrews v. Wellington, 136 N. C. 336, 48 S. E. 732.

\[H. 433\] NOTE Blackstone's definition (3 B1, 15) that "an accord is a satisfaction agreed upon between the party injuring and the party injured, which when performed is a bar to all actions upon this account," has been frequently approved. Mitchell v. Hawley, 4 Denio \[N. Y.\] 418, 47 Am. Dec. 260; Rorer Iron Co. v. Trent, 83 Var. 397, 2 S. E. 713, 15 Am. St. Rep. 285; Sleber v. Amunson, 78 Wis. 682, 47 N. W, 1126. Other definitions of practically the same import of that in the text are to be found in Perin v. Cathcart, 115 Iowa, 557, 89 N. W. 12; Pullian v. Taylor, 50 Miss. 257; Bull v. Bull, 43 Conn. 462.

A compromise is based upon a disputed claim, while an accord and satisfaction may be had as to a claim which is not disputed. Bellows v. Sowles, 55 Vt. 39, 45 Am. Rep. 291; Treitschke v. Western Grain Co., 10 Neb. 360, 6 N. W. 427.

A composition is defined as an agreement between an insolvent or embarassed debtor and his creditors, whereby the creditors in consideration of an immediate payment agree to accept a dividend less than the whole amount of their claims, to be distributed pro rata in discharge and satisfaction of the whole debt. Continental Nat. Bank v. McGroch, 92 Wis. 310, 68 N. W. 606. Whereas an accord and satisfaction is an agreement between the debtor and a single creditor, re-quiring an extraneous consideration, and which when applied to a liquidated debt will not operate as a discharge of it by a mere partial payment. See Wilson, Sarmuels, 100 Cal. 514, 35 P. 148; Bailey v. Boyd, 75 M. 125; Newell v. Higgins, 55 Minn. 82, 56 N. W. 577; White v. Kuntz, 107 N. Y. 518, 13 N.

\[H. 433\] E. 423, 1 Am. St. Rep. 886; Crawford v. Krue-104 N. W. 29. The failure of a minor to re-ply to a letter proposing that defendants would continue to pay for her board and ..., St. Rep. 392-394.

\[H. 433\] Acceptance of renewal mortgage and she would make no further demand on account of injuries, did not constitute an accord and satisfaction. Hensler v. Stix \[Mo. App.\] 88, W. 108.

\[H. 433\] See 3 C. L. 17, n. 78, 79. Where an agreement is made for the payment of a fixed annual sum in lieu of damages to plaintiff's premises by defendants' blasting operations, such arrangement being optional with defendant, plaintiff cannot maintain action to recover the specified amount.

antecedent liability; \[97\] but, in order that a settlement shall operate thus, it must be shown that the subject-matter of the subsequent contention was embraced within the purview of the settlement by the express action and contemplation of the parties. \[98\] An agreement that all rights of parties under a contract shall cease and determine releases a right of action growing out of such contract; \[99\] and it is not deprived of such effect by a further clause stating that the contract is abrogated "in consequence of the notice heretofore given," although such notice was of itself ineffectual to terminate the contract. \[1\]

Full satisfaction and compensation from one of several tort fessors releases them all, \[2\] unless such release expressly reserves the right to sue the others; \[3\] but partial satisfaction, not intended and not received as a full settlement, made by one tort fessor, does not release the others. \[4\] In case of partial satisfaction, however, the other tort fessors are entitled, in an action against them, to have the amount received by the injured party deducted from the whole amount to which he is entitled. \[8\]

An accord and satisfaction is implied from acceptance and retention of & sum tendered in full, as a draft for a sum less than that due; \[6\] or a check, knowing that it is sent as payment in full. \[7\] But the acceptance and deposit, or cash-

In a suit brought on a release of an attorney's llen, executed in consideration of an agreement to pay a certain amount, the question of services rendered or the terms of the original employment are immaterial. Burleigh v. Palmer \[Neb.\] 108 N. W. 1068. An agreement between parties to foreclosure proceedings held to extinguish the debt and lpos factor to cancel the llen. Moody v. Gas- ton \[Tex. Cliv. App.\] 87 S. W. 294. A compromise settlement with the car company for an election by the conductor of a Pulman ear, "of all the matters in controversy in this suit," and its payment, operates as a release of the railroad company, even if the conductor is an agent of both companies. Blake v. Kansas City Southern R. Co. \[Tex. Civ. App.\] 85 S. W. 430. \[88\]. McFerran's Case, 33 Ct. Cl. 441. A settlement of indebtedness by a cashier to the bank, by assigning stock, conveying land and giving a note, held to have reference only to the settlement of indebtedness as shown by the bank's books and not to include a claim against the bank arising from the sale by it of lands conveyed as security. Berner v. German State Bank, 125 Iowa, 438, 101 N. W. 156. In conveying a right of way of a 100-foot strip, the landowner released the company "from all inconvenience and damage incident to the construction and use of said railroad." Held, that the damages released were only such as resulted from the construction and operation of the railroad on the 100-foot strip, and not such as resulted from the company's works elsewhere; and that the release did not bar an action for damages resulting from the company's raising the grade of the highway five feet, for a distance of $,000 feet in front of plaintiff's lands. Perrine v. Pennsylvania R. Co. \[N. J. Law\] 61 A. 87. \[90\]. Swarts v. Narragansett Elec. Lighting Co. \[R. I.\] 59 A. 77. \[91\]. Swarts v. Narragansett Elec. Lighting Co. \[R. I.\] 59 A. 11. \[100\]. Swarts v. Narragansett Elec. Lighting Co. \[R. I.\] 59 A. 111. \[101\]. \[102\]. Jones v. Chism \[Ark.\] 83 S. W. 315; R Robertson v. Trammell \[Tex. Civ. App.\] 83 S. W. 258. \[103\]. Hirschfeld v. Alsberg, 93 N. Y. S. 617. \[104\]. Bailey v. Delta Elec. Light, Power & Mfg. Co. \[Miss.\] 38 S. Soc. 354. \[105\]. Robertson v. Trammell \[Tex. Civ. App.\] 83 S. W. 258. \[106\]. Brown-Ketcham Iron Works v. Hazen, & Ohio C. C. (N. S.) 582. \[107\]. McGregor v. Ware Const. Co. \[Mog.\] 87 S. W. 891; Richardson v. Taylor \[Mc.\] 60 A. \[108\]. Canton Union Coal Co. v. Paripin & Orendorf Co. \[Ill.\] 74 N. E. 143. Acceptance and retention of proceeds of check for disputed vages tendered with statement of computation and receipt in full to a certain date to be signed and returned or check returned. United States Bobbl & Shuttle Co. v. Thissell \[C. C. A.\] 137 F. 1. The accept-ane of checks in payment of author's royalties, based on a certain price, without objection, is an acquiescence in the publishers' interpretation of the contract and operates as ", an accord and satisfaction between the parties. In re McBride & Co., 127 F. 285. A remittance of the price of certain eggs purchased as payment in full, and a retention of the amount by plaintiff, there being a bona fide dispute as to the number of eggs purchased, constitutes an accord and satisfaction. Lightfoot & Son v. Edward Hurd & Co. \[Mo. App.\] 88 S. W. 128. The acceptance and retention by the creditor of a check sent by the debtor in payment of all demands, when there is an honest dispute between them as to the amount due ing of checks does not operate as an accord and satisfaction, where the circumstances of the transaction show that they were not received in full satisfaction,8 nor where the evidence fails to show any understanding between the parties to pay or to receive the amount paid in settlement.9 The appropriation by congress of a smaller amount of a judgment, in full payment of the same, does not compel claimant to accept the same, but, if he does so, his judgment is satisfied;10 and when there is a disputed claim, the plaintiff cannot be permitted to assert that he did not understand that a sum of money offered in full was not, when accepted, a payment in full. He is bound either to reject the check or, by accepting it, accede to the defendant's terms.11

Footnote 8: http://www.math.wisc.edu/~$

An attorney cannot settle or compromise a suit or claim without special authority; though in rare instances the nature of the business may be such that a power to compromise will be implied.12 Nor is a bookkeeper, as such, without

dated damage clause, until the release is im- -- with the amount on the books. Terry & penched. Uvalde Asphalt Pav. Co. v. Newr & Tench Const. Co. v. Leeson, 84 N. Y. S. 267. York, 93 App. Div. 327, 91 N. Y. S. 131.

Where defendant accepts part of the prop- -- or --.

special authority thereto, authorized in law to settle matters in dispute between his employers and others.\[14\] An agent may be specially authorized to settle.\[14\] A husband or father, who suffers injuries through another's negligence, cannot, by executing a release of damages, deprive his widow or children, in case of death from his injuries, of the right of recovery given them by statute.\[15\] Satisfaction by a landlord for injuries to a stranger, for which the tenant is solely liable, is no bar to a recovery against the tenant.\[16\] The board of county commissioners, in Oregon, is authorized to release any debt or damages arising out of the sale of lands to the county for delinquent taxes.\[17\] A settlement by an employe for a valuable consideration, for injuries afterward resulting in death, and a release of all liability therefor, bars an action therefor by his widow and child.\[18\] A settlement made by the parents for injuries to a child will, after the child's death from the same injuries, be presumed to have been made for their claim for nursing, care and medical bills, and will not bar an action by the child's administrator to recover for the suffering and anguish endured by the child, for which the parents had no right of action.\[19\] A contract of accord and satisfaction signed by a wife, after being signed and approved by her husband, is binding upon her,\[20\] and the husband cannot afterward sne for the loss of the services of his wife.\[21\] In case of a settlement of damages for injuries received by a minor, however, the burden of proof is upon defendant to show a ratification by the plaintiff, before such agreement can operate as an accord and satisfaction.\[22\] (SS 1) _B. The consideration.\[23\]_-\_Every accord must rest upon a sufficient consideration,\[24\] consisting either of benefit to the creditor\[25\] or detriment to the debtor.26 But an agreement to pay one liquidated debt is not sufficient consideration to sustain a release of another debt;27 nor is the forbearance of the collection of a valid indebtedness, merely as a matter of good will and encouragement, sufficient to make a legal and binding settlement of it.28 The settlement of a liquidated, undisputed liability, by payment of a sum less than that due, lacks consideration and is void,29 unless there be a new, binding agreement upon a sufficient consideration.30 But it has been held in Arkansas that an agreement to discharge a debt by the payment of a smaller amount, if fully executed and evidenced by a written receipt for the lesser sum in full satisfaction, constitutes a valid and irrevocable discharge.31 Courts are prone to uphold, when possible, an agreement to accept less than the debt due in satisfaction thereof, and a very slight consideration will be held sufficient,32 as a slight benefit to the creditor or slight detriment to the debtor.33 If the sum due or the debtor's liability34 is in dispute,35 or undiquidated,38 the payment of a sum less than that claimed, upon condition that it is to operate as full payment, is a good accord and satisfaction,37 even though the asserted claim is without merit or foundation.33 Where the dispute between the parties relates to the medium of payment, an agreement that payment in United States currency shall extinguish a claim for a larger sum estimated in Porto Rican currency is binding.39 Under the law of North Carolina, providing that, where an agreement is made for the payment of a less sum than the amount due, the payment of such sum shall be a complete discharge of satisfactory" to the employer, though vague --tain dredging machinery. Bowers Hydraulic and indefinite as to duration of employment, Dredging Co. v. Hess \[N. J. Err. & App.\] 60 constitutes a sufficient consideration for a release of right to see for damages for in- **33**. Tucker v. Dolan \[Mo. App.\] 84 S. W. juries. Forbs v. St. Louis, etc., R. Co., 107 Mo. App. 661, 82 S. W. 562. A note in settlement of a claim against an exector for **67**. Rep. 546; Komp v. Raymond, 175 N. Y. 102, shortage in accounts, given by his widow to secure dismissal of proceedings against a co-exector, and abandonment of claim against the husband's estate, held valid. Rohrbacher v. Aitken, 145 Cal. 485, 78 F. 1054. The discontinuance of legal proceedings already instituted is sufficient consideration for a compromise agreement between parties; and such agreements are favored by the courts. Rohrbacher v. Aitken, 145 Cal. 485, 78 F. 1054. 27. Siewing v. Tacke \[Mo. App.\] 86 S. W. 1103. Kinsey v. Meaney, 90 N. Y. S. 327. 28. Bostrom v. Gibson, 111 N. D. 457; Tucker v. Dolan \[Mo. App.\] 84 S. W. 1186; Chamberlain v Smith \[Mo. App.\] 85 S. W. 645; Hoidale v. Wood, 93 Minn. 190, 100 N. W. 1100. At common law, the acceptance by a creditor of the debtor's unsecured notes for a less sum than the original debt does not extinguish the debt. Frank & Sons v. Gump \[Va.\] 51 S. E. 358. 38. Goldsmith v. Lichtenberg \[Mich.\] 102 N. W. 627. 31. Dreyrus & Co., v. Roberts \[Ark.\] 87 S. W. 641. This case criticises the common-law doctrine as to the satisfaction of a debt by the payment of a lesser sum. **32**. Tucker v. Dolan \[Mo. App.\] 84 S. W. 1126, citing Jaffray v. Davis, 141 N. Y. 164, 11 L. R. A. T10. The court will not require into the adequacy or inadequacy of a compromise fairly and deliberately made. An agreement to settle, without litigation, a disputed claim of infringement for use of cer- **33**. Tucker v. Dolan \[Mo. App.\] 84 S. W. 1126, citing Jaffray v. Davis, 141 N. Y. 164, 11 L. R. A. T10. The court will not require into the adequacy or inadequacy of a compromise fairly and deliberately made. An agreement to settle, without litigation, a disputed claim of infringement for use of cer- **33**. Tucker v. Dolan \[Mo. App.\] 84 S. W. 1126, 1127, 1128, 1129, 1130, 1141, 1151, 1160, 1171, 1186, 1187, 1190, 1191, 1200, 1219, 1219, 1228, 1231, 1241, 1251, 1261, 1272, 128, 1290, 1229, 1232, 1291, 1242, 128, 1292, 1293, 1294, 1295, 1296, 1297, 1298, 1301, 1299, 1311, 1329, 1334, 1341, 1351, 1361, 1372, 1381, 139 the debt, a partial performance may suffice to make a valid and binding compromise, where the plaintiff is himself to blame for the lack of full performance.40 A mere payment, however, of what is due does not imply a settlement of disputed facts.41

(SS 1) _C. Fraud, mistake and duress.42_--An accord and satisfaction may, in a court of law or in equity, be set aside for fraud or misrepresentation in the execution or in the inducement to the execution of the contract.43 Only fraud in the execution of the release is available in an action at law.44 If a party does not intentionally and understandingly execute a release, and if his want of intention and understanding is purely by reason of mistake or misunderstanding on his part, then he has no remedy at law; his remedy, if any, is in equity to set aside the release.45 In composition contracts between an insolvent debtor and his creditor, the utmost good faith must be observed by all parties.46 A compromise agreement procured by the false and fraudulent statements of the debtor is void,47 and a release of a claim for damages, procured by promises of employment which the promisor has no intention to fulfill, is voidable for the fraud.48 Where a compromise settlement of a claim has been procured by fraud, the remedy, at least in the Federal courts, is in equity;49 also where one is induced to sign a release by a fraudulent representation, and knows what he is signing;40 but where he is deceived into signing it by the belief that he is signing something else, he may attack the instrument in an action at law.41 If the setting aside of a written compromise for fraud in drawing it up would leave the parties to further expensive litigation, and relief can be afforded by a reformation of the agreement to correspond with the real intent of the parties, that course will be taken.52 If parties act under a mistake, the accord and satisfaction may be set aside.53 If there was a mutual mistake or imposition through fraud, so that there has been included in the settlement an item for which no fair consideration in fact exists, the settlement ought to be held void pro tanto, if the issue is properly presented.\[54\] Settled or stated accounts can be opened or corrected only on the ground of fraud, accident, mistake or omission.\[56\]

SS 2. _Satisfaction or discharge.\[50\]_--An agreement for an accord and satisfaction, which has never been executed, is ineffectual as an accord and satisfaction.\[57\] The accord is sufficiently executed when all is done which the party agrees to accept in satisfaction of the pre-existing obligation.\[56\] Prior claims are presumed to be included in a settlement.\[59\] But claims not included in a settlement may be subsequently sued on.\[58\] A release in full for any claim of damages resulting in a suit pending can be filed in satisfaction of the judgment only upon defendant's paying the costs.\[61\]

SS 3. _Pleadings, issues, and proof.\[62\]_--Accord and satisfaction is a good plea by a debtor to the action of his creditor.\[63\] But an agreement to forbear suit on an obligation for a limited time after due, though founded on a sufficient consideration, cannot be pleaded in bar of an action brought within that time, the only remedy being in an action of damages for violation of the agreement.\[54\] To be good, this plea should state the facts constituting the satisfaction and that plaintiff accepted what was done or offered in satisfaction,\[58\] and it must show some consideration moving toward plaintiff, that plaintiff received something of value by the new agreement, or it will be bad after verdict.\[59\] The defense of accord and satisfaction cannot be added by amendment in the circuit court on appeal, when not pleaded in the county court;\[67\] nor, being a new and distinct defense, after the expiration of the time limited by stipulation for the filing of pleadings.\[68\] The burden of proving a settlement as an affirmative defense is on the person asserting it.\[69\]

The presumption of law is that a release is intentionally and knowingly made.\[70\] Fraud, accident, mistake or omission must be established by "clear and convincing" evidence, and the burden is on the party seeking to impeach the set-

54. Thayer v. Buchanan \[Or.\] 79 P. 343.

In a suit to set aside a compromise of claims to land, evidence held insufficient to sustain a finding of mutual mistake authorizing the relief prayed. Willingham v. Jordan \[Ark.\]

87 S. W. 424.

55. Chapman V. Liverpool Salt & Coal Co.

\[V. Va.\] 50 S. E. 601.

56. See S. C. L. 23.

01. Erie Forge Co. v. Pennsylvania Iron Works Co., 22 Pa. Super. Ct. 550; Bankers Union v. Favavida \[Web.\] 102 N. W. 1013.

An agreement never carried out by the payment of the money, surrender of the contract and delivery of the release contemplated does not amount to an accord and satisfaction, Bandman v. Finn, 92 N. Y. S. 1096. A compromise is no defense if not executed, Russell v. Cassidy, 108 Mo. App. 577, 84 S. W.

171.

001. Laughead v. H. C. Frick Coke Co., 209 Pa. 368, 58 A. 685.

001. Melton v. Rittenhouse, 111 III. App. 30.

001. Claims for extra work not considered in the settlement of the amount due on a contract. McFerran's Case, 39 Ct. Cl. 441.

A settlement of "all matters in dispute" embraces only such as are in dispute at the time of its execution, and not all matters that might be subjects of dispute thereafter. Hollahan v. Sovers, III III. App. 265.

61. Narettl v. Scully, 133 F. 828.

01. See S. C. L. 23.

01. Eric Forge Co. v. Pennsylvania Iron Works Co., 22 Pa. Super. Ct. 550.

01. Durbin v. Northwestern Seraper Co.

01. Karter v. Fields, 140 Ala. 352, 37 So.

01. Frank & Sons v. Gump \[Va.\] 51 S. E.

01. Bankers' Union v. Favadora \[Web.\] 102 N. W. 1013.

01. Insurance Co. of North America v. Leader, 121 Ga. 260, 48 S. E. 972.

01. Bray v. Bray \[Iowa\] 103 N. W. 477.

01. Action for board, room and personal attention. Barber v. Maden \[Iowa\] 102 N. W. 120.

01. A note given in full settlement of all demands and paid is admissible to prove that there was nothing owing and unpaid, in an action to recover money paid under protest, to secure release from arrest in a suit brought to extort further sums from plain-

01. Harbus v. Ferguson, 136 N. C. 60, 48 S. E. 551. Where, in an action on a replenvin bond, it was stipulated by counsel In open court that the only issue was whether the property had been returned, evidence was not admissible to show an agreement that the return of part of the property was to be accepted as a full discharge of all liability under the bond. Franks v. Matson, 211 III, 338, 71 N. E. 1011. A promise, to execute or perform at a future time would not support the plea of accord and satisfaction. Bankers' Union v. Favadora \[Web.\] 102 N. W. 1013.

01. Chicago & Alton R. Co. v. Jennings, 114 III. App. 622.

element of an account on such grounds."It may be shown to support the goal of faith of a settlement that services were rendered by one party as claimed."22

Parol evidence is not admissible to contradict, vary or add to a written contract in full settlement of all claims for damages, in the absence of fraud, dures. mistake or other vitiating cause;"3 nor to show an additional agreement for employment, besides the complete contract of release contained in a written agreement."4 But it may be resorted to to identify the subject-matter intended to be covered in a written release under the general word "claims," by showing the circumstances of the transaction;"5 and to explain a release under seal, purporting to have been signed by plaintiff by her mark."6 General words in a release are to be limited and restrained to the particular words in the recital."7 Where plaintiff refuses to accept a sum offered as a compromise or equitable settlement, and sues for the full amount of his claim, without any allegation of right to recover the sum offered, he cannot; on failure to establish his claim, recover judgment for the sum offered as a compromise payment."8 The jury is justified in regarding with suspicion the claim of settlement made by a physician with his patient, at which no third person was asked to be present."9

## 1 Nature of Remedy and Jurisdiction of 3

Fractlee and Procedure (23)

Courts (22)

4. Requisites, Substance, Form and

1. Persons Liable and Entitled to Ac-

Statement of the Account (25)

## 1 Nature of remedy and jurisdiction of courts

Whether in equity or at law under the codes the remedy is equitable at base, applying to mutual or long and complicated3 single accounts, because of the inadequacy of legal remedies to efficiently settle and adjust them," and especially where the accounts lie between parties standing confidentially or in trust to each other or who have a joint or

F1. Chapman v. Liverpool Salt & Coal Co. \[W. Va.\] 50 S. E. 601; Chicago & A. R. Co. v. Jennings, 114 Ill. App. 622. 72. Action against attorney to recover money collected on certain insurance policies. He admitted collection, and alleged performance of services prior to collection and settlement. Greenlee v. Mosnat \[Iowa\] 101 N. W. 1122. 73. Lanham v. Louisville & N. R. Co. \[Ky.\] 86 S. W. 680. 74. Rapid Transit R. Co. v. Smith \[Tex.\] 86 S. W. 322. 75. Perkins v. Owen \[Wis.\] 101 N. W. 415. 76. Clark v. Lehigh Valley R. Co., 24 Pa. Super. Ct. 609. 77. Texas & P. R. Co. v. Dashell, 25 S. St. Ct. 737. McGregor v. Ware Const. Co. \[Mo.\] 87 S. W. 981. 70. Bray v. Bray \[Iowa\] 103 N. W. 477. 1. This topic treats only of actions to obtain an accounting whether in equity or by means of legal remedies serving the same purpose. The accountability of fiducialers is pertinent to the topics treating of the rights and liabilities of such fiducialers. See Agency 3 C. L. 65: Brokers, & C. L. 635; Trusts, 4 C. L. 172, and like topics. The recovery by action of the amount due an account stated or open account, is a distinct proceeding. See the topic following this. 2 See 3 C. L. 24. 3. Account on a lumbering contract involving 45 reports each pertaining to eight kinds of lumber, covering 360 items and 5,000,000 feet. McMullen Lumber Co. v. Strother \[C. C. A.\] 138 F. 295. 4. Enforceability at law of single items does not oust equity. McMullen Lumber Co. v. Strother \[C. C. A.\] 138 F. 295. Where the remedy at law in an action for an accounting is not so complete and adequate as in equity, that alone is ground for equitable jurisdiction, Where the action involved contract, and mutual accounting and the entire transactions of two large merchante establishments must be examined, and accounts compared. Fechteler v. Palm Bros. & Co. \[C. C. A.\] 138 F. 462. Equity will not take jurisdiction of an accounting where there is no relation of trust and the accounting is not complicated, but is a mere basis for ascertaining damages. Plaintiff saved for an accounting, alleging that he had expert knowledge of the shoe business and a control of trade as traveling salesman; that he was employed by defendants as such and was illegally discharged; that as compensation he was to receive a commission on sales made by the defendants and that they failed to render correct monthly statements as agreed, and prayed an accounting. Holland v. Hallahan \[Pa.\] 60 A. 735.

common interest,5 or where there is fraud alleged.4 Though otherwise triple at law because of the few and simple items, equity may act because the accounts happen to involve a matter of equitable cogninance.7 The breach of a single contract is usually remediable in damages, though it involves numerous transactions in course of performance and discharge.8 In the Federal courts it is of persuasive force that in the local courts a reference would be ordered under the code if retained as a law case.9

###### Abstract

The first attempt to understand the nature of the formation of a "corporation" in the "corporation"the parties may be then ordered.\[89\] In proceedings before a referee, due objection and exception must be made before the referee in order to be available on review.\[94\] Unless the referee reports his evidence, the question whether items allowed were supported cannot be raised.\[85\] The court will not review questions of fact determined by the referee unless there is a showing that the entire evidence is before it.\[96\]

SS 4. _Requisites, substance, form and statement of the account.\[37\]_--The referee may only take into account such matters as are charged in plaintiff's specification.\[38\] An item covering a promissory note should not be allowed unless the note and title to it is proved and it is produced.\[39\] In a suit for an accounting for royalties due under a contract, the account should be taken down to the hearing, unless the petition limits the claim to the amount due when it is filed.\[40\]

## 10.1. **Accounts** stated and open accounts.

- 1. Nature and Elements of the Several **S 3. Remedies on Account Stated (28).** **Kinds of Accounts (25).** **Remedies on Open Accounts (28).** **Binding Effect, Rights and Linbili-** In Actions Upon Book Accounts in (27).\*\* **Illinois (29).** **In** **S 1.** _Nature and elements of the several kinds of accounts.\[41\]_--An account stated is a mutually approved casting up of the items of charge and credit arising from a transaction or transactions between parties, the balance shown by the result of which the one owing it expressly or impliedly promises to pay.\[42\] An account stated is distinct from an accord and satisfaction in that it settles accounts and promises payment.\[43\] The minds of the parties must meet upon the allowance of each item, and they must mutually concur upon the final adjustment,\[44\]

nized him as the proper party to settle with, and alleged that he was ready to make a settlement with proper parties, a case for an accounting and settlement on the merits was made. Williams v. Thweatt \[Ark.\] 83 S. W. 831.\*\* **Wicexon v. Wilcoxon, 111 Ill. App. 90.** **Wicexon** v. Wilcoxon, 111 Ill. App. 91.\*\* **Wicexon** a hearing before the referee, defendant did not object to any evidence on the ground that it was inadmissible under the statute of frauds, such objection was wavled. Holt v. Howard \[Vt.\] 83 A. 797.\*\* **See more fully Masters and Commissioners, 4 C. L. 614; Reference, 4 C. L. 1257.** **Wicexon** v. Howard \[Vt.\] 83 A. 797.\*\* **Wicexon** v. Wilcoxon, 111 Ill. App. 91.\*\* **Wicexon** v. Thweatt on a hearing before the referee, defendant did not object to any evidence on the ground that it was inadmissible under the statute of frauds, such objection was wavled. Holt v. Howard \[Vt.\] 83 A. 797.

so that at least no more than mere computation remains to ascertain what is due.\[45\] The admission of correctness must be by the person to whom credit was actually given.\[40\] An agent specially deputed thereto may orally settle an account despite a stipulation that it should be settled in writing only.\[47\]

The consideration is the original transaction between the parties.\[48\]

Assent may be shown by parol agreement or mere acquiescence from which a promise to pay will be implied by law.\[49\] Retention without objection is assent\[50\] but mere silence after repudiation is not.\[51\] Admissions of correctness disputing the rightfulness of charging the alleged debtor rather than another are not an assent.\[67\] The mere rendering of an account does not make it a stated one.\[53\] The statement rendered must be made with a view to settling and adjusting the claim.\[54\]

amount, and that she stated she would do so, is insufficient to show an account stated. Pavero v. Howard, 93 N. Y. S. 1115.

45. It is sufficient to constitute an account stated if the items constituting the account are settled upon so that nothing remains but a mere matter of computation. Wood v. O'Callaghan \[Mich.\] 104 N. W. 36.

01. Where an account had been stated for sale of rsh. After account was stated defendant claimed an offset thereto consisting of two items, which show plainrited to defendant. Defendant had kept the account rendered, without apparent objection for a month. Held to show a contract with him and not another. Gorman v. McGowan, 44 Or. 597, 76 P. 769.

01. Where contract provided that "settlement of accounts governed by it are to be consummatmed only by written approval of sald party of the first part from its home office," parties may make a valid settlement under such contract, although the settlement is not made or approved in writing, and is executed by an agent, who, however, was sent to make settlement. Dwaying, 93 N. Y. 464. Where liability had been long and persistently denied on the ground that the indebtedness, whatever it was, had been satisfied by subsequent transfer of property, the failure of the person charged to object to the correctness of a statement of account sent him, or to make any reply, does not imply a promise to pay or convert the account into an account stated. Columbia River Packing Co. v. Tallant, 132 F. 271. Proof of an acknowledgment by the defendant that a certain sum was due the plainrited at a certain time in settlement of the account is sufficient. Letters, part of correspondence between the parties, may be introduced, which may rebut by their statements any inference of an account statem.\[53\]

01. Where debtor objected, when account was rendered, that the account should be changed to a corporation of which he was manager, instead of to him individually, the creditor cannot claim an account stated on the ground that the debtor did not object to the amount. Love v. Ramsey \[Mich.\]

102 N. W. 279. Books of account showing goods originally charged to defendant are admissible, as to who was the debtor where there was testimony that defendant saw the entries and made no objection. Upon trial defendant conceded that the amount and price of goods were correct, and that they were delivered; the sole question being to whom was credit given. Id.

58. Gillett v. Chavez \[N. M.\] 78 P. 68.

01. The mere furnishing by one party to another of a statement of account will not raise the implication of an account stated, though such statement be retained without An open current account may embrace diverse kinds of transactions and items.\[66\]

Binding effect, rights and liabilities.\[50\]-An account stated, in the absence of fraud, error or mistake in its execution, is conclusive between the parties\[57\] as to all matters adjusted by it,\[58\] except as they stand in a different right or capacity from that wherein they accounted.\[59\] It is not an estoppel under all circumstances.\[60\] An item omitted by mistake, accident or fraud from a settled account may be recovered in an action of assumpsit,\[61\] but the burden of proving it is on him who claims it.\[22\] Account stated becomes a new obligation and takes the place of the prior account,\[63\] and bears interest from its date.\[64\] Where the amount is definitely ascertained by stating an account, the law implies a promise to pay.\[65\] The statute of limitation commences to run against an account stated from the time of its statement.\[66\] Where there was no assert in writing to the account and it is not an open, mutual, running account, limitations can be pleaded to statute-barred items of an account stated.\[67\] An account stated may be waived, and action brought and defended upon the original account.\[68\]

An account rendered may amount to admission,\[60\] but where items of an account have been incurred under different contracts at different times, separate actions may be maintained for the amount due under each single contract.\[70\]

A mutual account\_ carries simple interest on annual balances.71

SS 3. \_Remedies on account stated.72--\_Where the common law remains, as-sumpsit lies.73 In Connecticut what are denominated the "common counts" are a sufficient complaint, as against a demurrer, after plaintiff has filed a proper bill of particulars, if any count is a general statement of the cause of action.74$\\Lambda$Accordingly a complaint was sustained because the cause of action was thus pleaded, regardless of the propriety of a count on account stated added by amendment.75 It is discretionary to allow an amendment bringing in an additional account.76 Any counterclaim or defense is bad which in effect falsifies an item contained in the account as stated.77 If plaintiff tenders unnecessary issues, defendant may answer them.78 An account stated must be proved as alleged.79 It is for the jury to say whether particular items had a basis in fact.80 The verdict of the jury is erroneous on its face where it finds a disputed item due and ignores the only other one, admittedly due.81

SS 4. \_Remedies on open accounts.82--\_Most frequently the action as actually brought is grounded on the contract or contracts out of which the account grew.83 In that case it is not an action on the account.

The action on account is not one on a "contract" within code provisions for suit where performance was to have been.84

The assignment or copy which an assignee must file may be written on the bill of items.83 The items must be clearly stated,84 but need not be copied in the body of the declaration.85 One item insufficiently stated among many well stated does not open the petition to general demurrer.85 Vagueness of items cannot be first challenged at the trial;83 strict proof according to books of account will be refused if there was no notice to produce them.86

71. Holt v. Howard \[Vt\] 58 A. 797.

01. See 3 C. L. 29.

01. See Assumpult, 3 C. L. 348.

01. Gen. St. 1902, $ 627. Hoggson & P.

01. Hoggson & P. Mfg. Co. v. Sears \[Conn.\] 60 A. 133.

01. Harrison v. Henderson, 67 Kan. 202, $ 72. P. 878.

01. Deredand claimed overpayment in one credit and demanded judgment therreport under a counter claim. Aultima, Miller & Co. v. Connors \[Vis.\] 93 N. W. 904.

01. Where actlon was instituted by plain, 579.

01. If upon account rendered and stated for goods, wares, etc., and another paragraph

01. If a consumer is not a legal statement, then it is error not to be accepted.

01. If a consumer is not a legal statement, then it is error to be accepted.
    5 Cur. Law. ACKNOWLEDGMENTS SS 1.

When the account set forth in the complaint is not admitted, the entire business transactions between the parties are open to investigation, within reasonable discretion of the trial court.\[91\]

In some jurisdictions verification of the account makes prima facie proof if not denied on oath.\[92\] For this purpose it must be certain,\[98\] and must bear such internal evidence of authority or knowledge as the law requires.\[94\] The prima facie case made out by verification is rebutted, if the evidence shows credit to a third person and a transaction by him with defendant.\[96\] Verifying an account against the agent of an undisclosed principal has no force against the principal.\[98\]

It is error for court to instruct the jury in an action upon an open account that the plaintiff might recover such sum as the services rendered were reasonably worth.\[97\] The pleading alleging an open account, no recovery can be had on an account stated.\[98\] Where a plea was not sworn but might be amended by verifying, the entry of judgment on the pleadings was error.\[99\] If the account be long and the answer disputes it, the case may be transferred to the equity docket.\[100\]

_In actions upon book accounts in Illinois commenced before justices of the peace, there is no appointment of auditors, but the justice examines parties under oath. Where appeal is taken from judgment of justice, the trial is de novo.\[101\]_

Accentration; Accountulations, see latest topical index.

**SS 1. Nature, Office and Necessity (20).** SS 5. Authentication of Officers' Authority **SS 2. Officers Who May Take (30).** SS 3. Tracking and Making Acknowledge- **SS 6. Operation and Effect (31).** SS 7. Defects and Invalidities (32).\*\* SS 4. Certificate of Acknowledgment (30).\*\* SS 1. \_Nature, office, and necessity.\[1\]--As a general rule, acknowledgment is necessary to entitle an instrument to registration,\[2\] and if the acknowledgment is void, the registration of the instrument is also void.\[3\] In Florida, by statute, deeds executed outside the state in order to be entitled to record within the state must

91. Miller v. Carnes \[Minn.\] 103 N. W. 95. Plaintiff's evidence held to have rebutted it. Kennedy v. Price \[N. C.\] 50 R. E. held to admit proof that they were paid by money advanced. Manion v. Manion \[Ky.\] 85 S. W. 197.\*\* SS 92. In an action upon an open account, proved by the afflavit of plaintiff, it was error to allow defendant to introduce evidence in support of an unsworn plea over objection of plaintiff. Stafford v. Wilson \[Ga.\] 49 S. E. 800.\*\* SS 93. A verified account, attached as an exhibit to the petition, is properly excluded from evidence where it does not indicate the items thereof, nor their nature, so that it cannot be told therefrom whether it refers to matters that may be proved by a sworn account under the statute or not. Pittsburg Plate Glass Co. v. Roquemore \[Tex. Civ. App.\] 88 S. W. 449.\*\* SS 94. An afflavit served with the summons to the effect that defendants were justly indebted to the plaintiffs in a certain sum as a balance due for goods sold and dellvered was admissible, though it did not state that afflant was agent, attorney, or bookkeeper for plaintiffs. Hirsh v. Fisher \[Mih.\] 101 N. W. 48.\*\* SS 95. Plaintiff's evidence held to have rebutted it. Kennedy v. Price \[N. C.\] 50 R. E. 566.\*\* SS 96. Pittsburg Plate Glass Co. v. Roqueemore \[Tex. Civ. App.\] 88 S. W. 449.\*\* SS 97. Miller v. Armstrong, 123 Iowa, 86, 98 N. W. 561.\*\* SS 98. Allen-West Commission Co. v. Huddence in support of an unsworn plea over objection of plaintiff. Stafford v. Wilson \[Ga.\] 49 S. E. 800.\*\* SS 100. A ction on an account for money advanced and paid out and services rendered, embracing about 500 items, in which defendants answer denied he had ever received the benefit of part of the items and alleged that plaintiff had, while employed by defendant as manager, neglected detendants' business, etc. Manion v. Manion \[Ky.\] 85 S. W. 197.\*\* SS 101. Dickinson v. Morgenstern, 111 III.\*\* App. 543.\*\* 1. See 2 C. L. 31.\*\* 2. A tax ded is not entitled to registra- tion unless acknowledged or proven. State v. Harman \[W. Va.\] 50 S. E. 528.\*\* 3. Acknowledgement of deed taken by the grantee. Lance v. Tainter \[N. C.\] 49 S. E. 211.\*\* be acknowledged before an officer having an official seal.4 A deck by a married woman and her husband must be acknowledged by her on a privy examination,5 but a contract for the sale of land need not be,6 and in Illinois acknowledgment is not necessary to a release of dower,7 but a chattel mortgage must be acknowledged before a magistrate of the town where the mortgagor resides.8

Footnote 4: A deck is made by the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the 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of the manufacturer of the manufacturer of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the of the manufacturer of the manufacturer of the of the manufacturer of the manufacturer of the manufacturer to a valid certificate, the identity of the party executing the instrument, and his acknowledgment or admission that he did execute it, are apparent, it is sufficient.26 A mere clerical error,27 as a failure to fill in blanks,28 will not invalidate it, nor will the fact that surplusage is appended to the signature of the officer taking;29 but there must be a substantial compliance,30 though a material defect may be cured by conduct of the party making,31 or by a subsequent acknowledgment in due form.32 A certificate of an acknowledgment by a trustee need not certify that he is known to be such trustee,28 and under a statute providing that a notary of one county may take acknowledgments in another, a certificate of an acknowledgment taken in one county by a notary of another is not objectionable because not showing that he was notary of such other county in that state.34

Footnote 28: The author is grateful to the anonymous referees for their comments.

Footnote 29: Mutual Life Inc. Co., Cory, 135 N. Y., 326, though the fact that there was no acknowledgment as "justice and alderman" does not violate the certificate; the latter designation will be regarded as surplusage. Wilson v. Braden \[W. Va.\] 49 S. E. 409.

Footnote 30: A statute providing that in a certificate of acknowledgment executed by a corporation the officer taking must certify that the person making is the president or secretary, is not supplied with by a certificate relating that they are, known to be the vice-president and assistant secretary.

Footnote 31: A certificate of an acknowledgment by a trustee need not certify that he is known to be such trustee,28 and under a statute providing that a notary of one county may take acknowledgments in another, a certificate of an acknowledgment taken in one county by a notary of another is not objectionable because not showing that he was notary of such other county in that state.34

Footnote 32: A certificate of an acknowledgment by a trustee need not certify that he is known to be such trustee,28 and under a statute providing that a notary of one county may take acknowledgments in another, a certificate of an acknowledgment taken in one county by a notary of another is not objectionable because not showing that he was notary of such other county in that state.34

Footnote 33: A certificate of a acknowledgment to a contract by a trustee need not certify that he was notary of such other county in that state.34

Footnote 34: A certificate of an acknowledgment by a trustee need not certify that he was notary of such other county in that state.34

Footnote 35: A certificate of an acknowledgment by a trustee need not certify that he was notary of such other county in that state.34

Footnote 36: A certificate of an acknowledgment by a trustee need not certify that he was notary of such other county in that state.34

Footnote 37: A certificate of an acknowledgment by a trustee need not certify that he was notary of such other county in that state.

## 10.3 Actions.

5 Cur. Law.

presumption of due execution of the instrument to which it is attached," and is generally held conclusive as to the facts required to be certified to therein,\[88\] especially as against.strangers to the transaction.\[89\] It is not subject'to collateral attack,\[40\] and can be impeached only by satisfactory evidence,\[41\] so clear and convincing as to'amount to a moral certainty.\[43\] In Wisconsin the officer taking may testify as to the falsity of his own certificate,\[43\] but in the absence of a satisfactory explanation that the act was a mistake, such testimony is entitled to but little weight.\[44\] Evidence of the character of the officer who took an acknowledgment is inadmissible on an issue as to the genuineness of the instrument acknowledged.\[45\]

An acknowledgment of an authorized signature validates it.\[46\]

SS 7. \_Defects and invalidities.\[47\]--\_As between the parties to an instrument, a defective acknowledgment may be cured by legislation.\[48\] Such legislation has a retroactive effect,\[49\] and is not an exercic.e of judicial power by the legislature,\[50\] but cannot operate to defeat vested rights.\[51\]

## 10.4 Actions.

Only general questions relating strictly to Actions are treated. Causes of Action and Defenses and Forms of Action are distinct matters which are treated elsewhere.\[52\] In order to have an action there must be parties opposed or one party opposing all others in respect to a res in court.\[88\] A proceeding to obtain a license has been held to come within the purview of the term.\[34\] Actions are

- \[leftmargin=\*\]
  5 Cur. Law. ADJOINING OWNERS.

civil,${}^{58}$ criminal,${}^{58}$ or quasi-criminal${}^{57}$ in nature. Civil actions are either equitable or legal according to whether the case is cognizable at law or equity.${}^{58}$

_The manner of commencing${}^{58}$_ an action varies in the different states; in some it is commenced by the issuance of a notice${}^{58}$ or summons;${}^{51}$ in others by the service thereof.${}^{52}$

_Termination.${}^{58}$_

The independent and separate existence of an action may be terminated by consolidation.${}^{54}$

Act or God; Additional Allowances; Ademption of Lequacies, see latest topical index.

**ADJOINING OWNERS.${}^{65}$**

The owner of land may put it to any use which is reasonable, considering his interest and that of other persons affected by it.${}^{65}$ The test to determine whether a particular use is reasonable is to inquire whether it is such a use as the ordinary man would make of his premises;${}^{67}$ but no one has a right by an artificial structure of any kind upon his own land to cause the water which falls and accumulates thereon in rain or snow to be discharged upon the land of an adjacent proprietor,${}^{68}$ nor has one a right to heap up loose earth upon his own land in such manner that if proper precautions are not taken to confine it, it must necessarily escape upon the land of his neighbor.${}^{69}$ One who in tearing down his building injures the building of his neighbor is liable to him in damages.${}^{70}$

civil action. Bryan v. De Moss \[Ind. App.\]

50. See 3 C. L. 36.

01. Under the conformity act (Rev. St. # 914 U. S. Comp. St. 1901, p. 684) an action nicipal ordinances are civil suits. Fortune

v. Wilburton \[Ind. T.\] 83 S. W. 785: Unger

eral court in Virginia in accordance with v. FANwood TP., 69 N. J. Law, 548, 55 A. 42.

But see Noland v. People \[Colo.\] 80 P. 887,

vhere the action is spoken of as being quasi-criminal. See, also, Appeal and Review, 8

c. L. 167: Indictment and prosecution, 4

C. L. 1; and also topics where it is nec-essary to determine the civil or criminal character of the suit in order to determine matters of procedure; for instance, Bastards,

3 C. L. 496: Contempt, 3 C. L. 179: Habeses

Corbus, 3 C. L. 1576: Jury, 4 C. L. 358, etc.

56. Where the punishment prescribed for violating an ordinance is imprisonment to be imposed by a justice of the peace, the suit is in the nature of a criminal proceed-ing. Unger v. Panwood TP., 69 N. J. Law,

issued against the first co-defendant served.

548, 55 A. 42. A proceeding by a bankrupt's trustee to recover assets, alleged to belong to the bankrupt, from a third person, is not criminal in its nature because the person proceeded against may be punished for contemplited by the faults to comply with the court's order. In re Alphin & Lake Cotton Co., 134

F. 477.

57. An action brought by a city for the breach of an ordinance forbidding the erection of wooden buildings within fire limits is quasi-criminal. Noland v. People \[Colo.\]

80 P. 887. But see ante, Fortune v. Wilburton \[Ind. T.\] 82 S. W. 783, and Unger v. Panwood TP., 69 N. J. Law, 548, 55 A. 42, where such actions are spoken of as civil.

58. See Equity, 3 C. L. 1210. As the distinction is now mainly important in determining matters of procedure, the question is treated under the various practice titles, such as Jury, 4 C. L. 358; Trial, 2 C. L. 1907, etc.

5 Cur. L-s.

59. See 3 C. L. 166. Under the conformity act (Rev. St. # 914 U. S. Comp. St. 1901, p. 684) an action nicipal ordinances are civil suits. Fortune

v. Wilburton \[Ind. T.\] 83 S. W. 785: Unger

eral court in Virginia in accordance with v. FANwood TP., 69 N. J. Law, 548, 55 A. 42.

But see Noland v. People \[Colo.\] 80 P. 887,

v. Fine the action is spoken of as being quasi-criminal.

Notwithstanding a railroad may have been built and is operated by authority of law, an abutting owner may recover for an injury to his property without proof of negligence.\[71\]

An encroachment by one onto the domain of another, as by projecting the eaves of his building over the boundary, is remediable in equity.\[72\] One will not be compelled to abate a nuisance in a manner that will cause irreparable damage to his property, even though complete relief cannot be had in any other way.\[73\] The continuance of the blowing and drifting of the seeds of noxious weeds from the land of one owner to that of an adjoiner will not be enjoined,\[14\] and if one can recover damages because of such wrong he cannot recover the expense necessary to remove the weeds from his land until the amount is definitely ascertained.\[76\]

\_Lateral support.\[78\]--\_The right of lateral support is the right to have the land in its natural state supported by the adjacent land. It is an incident to the land, a right of property necessarily and naturally attached to the soil.\[77\] A landowner does not suffer damages recoverable at law for injury to lateral support of his property until it is so much disturbed that it slides or falls away.\[78\] One making an excavation on his own land, deeper than the foundation of a building on an adjoining lot, must notify the adjoining owner of the proposed excavation and afford him a reasonable opportunity to protect his property.\[79\] This rule is applicable to municipal corporations and their contractors,\[80\] and failure to give such notice is actionable negligence.\[81\]

\_Common ways and appurtenances.\[82\]--\_A right of way belonging to a railroad company is private property as to an adjoining owner and the latter has no easement thereon of light, air and view.\[83\] Where one has acquiesced in an interference with his light and air rights for a long period, equity will not grant relief if it will cause irreparable injury to his neighbor.\[84\]

\_Measure of damages.\[85\]--\_Where an excavation is made in a manner free from negligence, the measure of damages is the injury to the land without regard to buildings or structures thereon,\[86\] and for injuring an adjoining owner's build-

sand and was owned by lhs neighbor, the loose earth was washed by the rains onto the sand beds. American Security & Trust Co. v. Lyon, 21 App. D. C. 122.

70. McClelland v. Baum, 91 N. Y. S. 719, 71. Davenport, etc. R. Co. v. Shinnet, 111 Ill. App. 75.

01. May be enjoined as a continuing treaps. Huber v. Stark \[Wis.\] 102 N. W. 12.

01. Will not be compelled to remove a passageway over anley between his hotel kitchen and dining room which tends to retain in the alley odors from the kitchen which go into an adjoining owner's rooms when the wind is in a certain direction. Washington Lodge, No. 54, I. O. C., v. Frelinghuysen \[Mich.\] 101 N. W. 569.

74, 75. Harndon v. Stultz, 124 Iowa, 734, 100 N. W. 851.

76. See 3 C. L. 37.

Note: Liability for removal of lateral support by dredging the bed of navigable bodies of water, see White v. Nassau Trust Co., 168 N. Y. 149, 64 L. R. A. 276, and note.

77. Jones v. Greenfield, 25 Pa. Super. Ct. 315. The owner of land has an absolute right to the lateral support of his ground in its natural state. Ruppert v. West Side Belt R. Co., 25 Pa. Super. Ct. 613.

01. Kansas City & N. W. R. Co. v. Schwake \[Kan.\] 78 P. 431.

01. Not: It was contended that the original act of excavating which would cause. the subsidence of the land was itself the infringement upon the right of lateral support. Though the right of lateral support is a natural right (Schultz v. Bower, 57 Minn. 493, 47 Am. St. Rep. 630), until a man's ordinary enjoyment of his land is interpreted with, this right is not infringed (Backhouse v. Bonomi, 9 H. L. Cas. 503). The actionable wrong consists in allowing the land of the adjoining owner to fall, not in excavating on one's own land. Williams V. Kenney, 14 Barb. \[N. Y.\] 629.--5 Columbia L. R. 167.

79, 80. Gerst v. St. Louis \[Mo.\] 84 S. W. 34.

81. The publication of ordinances relative to sewers held not to be notice to an 'owner that an excavation dangerous to his property was about to be made. Gerst v. St. Louis \[Mo.\] 84 S. W. 34.

01. See 3 C. L. 39.

01. Osburn v. Chicago, 105 Ill. App. 217.

01. Washington Lodge, No. 54, I. O. O. F. V. Frellinghuysen \[Mich.\] 101 N. W. 569.

01. See 3 C. L. 40.

01. Jones v. Greenfield, 26 Pa. Super. Ct.

ing by making an excavation, it is the permanent depreciation in the value of the building,\[87\] less the amount such owner would have been obliged to expend to prevent injury to his building had he received timely notice of the proposed excavation.\[88\] Exemplary damages may be recovered for a malicious interference with property rights.\[89\]

AbAbjourments; Administration, see latest topical index.

This topic includes only admiralty jurisdiction and practice. The law of maritime traffic and navigation is treated elsewhere.\[90\]

**SS 1.**\_Jurisdiction and courts.\[91\]--\_The statutes of the United States giving the Federal courts exclusive jurisdiction in admiralty cases expressly save to suitors in all cases the right of a common-law remedy where the common law is competent to give it.\[92\] By admiralty cases is meant suits in rem against a vessel.\[93\] Hence a state court is not deprived of jurisdiction of a suit against a carrier for damages to and loss of goods, merely because the answer alleges that the carriage was by water and that the loss was due to dangers of navigation, from liability for which defendant was exempted by the bill of lading and a general average bond.\[94\]

A citizen of the United States who is a party to a suit of admiralty and maritime jurisdiction cannot be deprived of his right to have such suit adjudicated by a court upon which admiralty jurisdiction has been conferred pursuant to the constitution.\[95\] Hence the treaty between Germany and the United States, giving the consular officers of each country exclusive power to determine differences between the captains and crews of vessels of their own nation, and prohibiting the courts of the other country from interfering therein, does not deprive the courts of the United States of jurisdiction to determine the rights of an American seaman who enters and leaves the service of a German vessel within this country.\[96\] A seaman claiming wages for services is not to be deemed a member of the crew of a ship within such treaty, if he was never legally bound to serve as such for a specified voyage or for a definite period of time.\[97\]

A court of admiralty may, in its discretion, take jurisdiction of a suit by sea men to recover wages from a foreign ship,98 and will do so where libelants are Americans, and show a strong case for immediate relief,99 or where they invoke provisions of the statutes of the United States.1

\_Maritime contracts.\_2--In order that a court of admiralty may have jurisdiction of a suit on a contract, it must be maritime in character,3 but if maritime in character, the court will inquire into all its breaches and all the damages suffered thereby, however peculiar they may be and whatever issue-they may involve.4

Footnote 11: See 3.3 for a detailed discussion.

Footnote 12: See 4.1.

Footnote 13: The author is grateful to the anonymous referee for the support of this work.

Footnote 14: The author is grateful to the anonymous referee for the support of this work.

Footnote 15: The author is grateful to the anonymous referee for the support of this work.

Footnote 16: The author is grateful to the anonymous referee for the support of this work.

Footnote 17: The author is grateful to the anonymous referee for the support of this work.

Footnote 18: The author is grateful to the anonymous referee for the support of this work.

Footnote 19: The author is grateful to the anonymous referee for the support of this work.

Footnote 20: The author is grateful to the anonymous referee for the support of this work.

Footnote 21: See 3.3 for a detailed discussion.

Footnote 22: See 4.1.

Footnote 23: The author is grateful to the anonymous referee for the support of this work.

Footnote 24: The author is grateful to the anonymous referee for the support of this work.

Footnote 25: The author is grateful to the anonymous referee for the support of this work.

Footnote 26: The author is grateful to the anonymous referee for the support of this work.

Footnote 27: The author is grateful to the anonymous referee for the support of this work.

Footnote 28: The author is grateful to the anonymous referee for the support of this work.

Footnote 29: The author is grateful to the anonymous referee for the support of this work.

Footnote 20: The author is grateful to the anonymous referee for the support of this work.

Footnote 21: See 4.1.

Footnote 23: The author is grateful to the anonymous referee for the support of this work.

Footnote 24: The author is grateful to the anonymous referee for the support of this work.

Footnote 25: The author is grateful to the anonymous referee for the support of this work.

Footnote 26: The author is grateful to the anonymous referee for the support of this work.

Footnote 27: The author is grateful to the anonymous referee for the support of this work.

Footnote 28: The author is grateful to the anonymous referee for the support of this work.

Footnote 29: The author is grateful to the anonymous referee for the support of this work.

Footnote 20: The author is grateful to the anonymous referee for the support of this work.

Footnote 21: See 3.3 for a detailed discussion.

Footnote 22: See 4.1.

Footnote 23: The author is grateful to the anonymous referee for the support of this work.

Footnote 24: The author is grateful to the anonymous referee for the support of this work.

Footnote 25: The author is grateful to the anonymous referee for the support of this work.

Footnote 26: The author is grateful to the anonymous referee for the support of this work.

Footnote 27: The author is grateful to the anonymous referee for the support of this work.

Footnote 28: The author is grateful to the anonymous referee for the support of this work.

Footnote 29: The author is grateful to the anonymous referee for the support of this work.

Footnote 20: The author is grateful to the anonymous referee for the support of this work.

Footnote 21: See 3.3 for a detailed discussion.

Footnote 22: See 4.1.

Footnote 23: The author is grateful to the anonymous referee for the support of this work.

Footnote 24: The author is grateful to the anonymous referee for the support of this work.

Footnote 25: The author is grateful to the anonymous referee for the support of this work.

Footnote 26: The author is grateful to the anonymous referee for the support of this work.

Footnote 27: The author is grateful to the anonymous referee for the support of this work.

Footnote 28: The author is grateful to the anonymous referee for the support of this work.

Footnote 29: The author is grateful to the anonymous referee for the support of this work.

Footnote 20: The author is grateful to the anonymous referee for the support of this work.

Footnote 21: See 3.3 for a detailed discussion.

Footnote 23: The author is grateful to the anonymous referee for the support of this work.

Footnote 24: The author is grateful to the anonymous referee for the support of this work.

Footnote 25: The author is grateful to the anonymous referee for the support of this work.

Footnote 26: The author is grateful to the anonymous referee for the support of this work.

Footnote 27: The author is grateful to the anonymous referee for the support of this work.

Footnote 28: The author is grateful to the anonymous referee for the support of this work.

Footnote 29: The author is grateful to the anonymous referee for the support of this work.

A court of admiralty has jurisdiction of a libel in rem against a vessel for negligently running into and destroying, a beacon surrounded by water, though it is built upon piles driven firmly into the bottom.\[14\] It has jurisdiction to limit liability only in case it could take original cogninance of a suit in rem or in personam to recover the loss or damage upon which the claim is made.\[15\]

The right to sue in admiralty for wrongful death exists only by virtue of the statutes of the various states,\[16\] and any defense allowed by such statutes, if successfully maintained, will bar recovery under the libel.\[17\]

SS 2. _Remedies and remedial rights.\[18\]_--In the absence of statute, a suit in rem against a ship for personal injuries abates by the death of the libelant.\[19\] In states where the right of action survives, however, his representative may be substituted and the suit continued in his name.\[20\] In such case a bond executed to time nature irrespective of where made or where to be performed. Insurance Co. v. Dunham, 11 Wall. \[U. S.\] 1, 20 Law. Ed. 90; afg. De Lovivo v. Boit, 2 Gall. 397. In matters of tort, however, the locality rule was not called in question, since it was assumed that a tort, unlike the performance of a contract, to be of a maritime nature must be, committed upon the sea. The first decision on the question was in 1865, when mouth was decided, admiralty was looked the supreme court applied the locality test, and held that an injury to an object on the shore caused by a vessel constituted no restriction; otherwise it would seem that the maritime tort, since the wrong was consumed well as in the Virginia Statute of 1660, pre-Wall. \[U. S.\] 20, 18 Law. Ed. 126. As a matter of principle it is difficult to see in the case of a contract any more reason than in the case of a tort why the maritime nature of the transaction, rather than the locality test, should determine jurisdiction, whether the tort be to or by a ship. Attee v. Dunham Packet Co. 21 Wall. \[U. S.\] 389, 22 Law. Ed. 619; Philadelphia, etc., R. Co. v. Towboud Co., 23 Row. \[U. S.\] 209, 16 Law. Ed. 438. Though Mr. Justice Story assumed in De Lovivo v. Boit, 2 Gall. 397, that the locality rule would still determine the jurisdiction over torts, yet it has been held that admiralty would not take jurisdiction over torts occurring within the locality where the tort was not of a maritime nature, (Campbell v. Hackfeld, 125 F. 696), and if we assume that there may be torts of a maritime nature not happening technically upon the sea (compare Perry v. Haines, 191 U. S.\] 17, 38, 48 Law. Ed. 73), his argument in that case as to contracts would apply equally well to torts, and no other decisions than the cases following The Plymouth, 3 VAIL \[U. S.\] 10, 18 Law. Ed. 125, could be found against such a position. A recent case in the supreme court, where a vessel had injured a beacon, a fixture permanently attached to the land, seems to have assimilated torts to contracts and to have made the maritime nature of the offense determine jurisdiction, rather than locality. The Blackheath, 195 U. S.\] 361, 49 Law. Ed. -- Mr. Justice Holmes sees distinguishing factors, but Mr. Justice Brown gives it this full effect, practically overruling The Plymouth and making the jurisdiction in admiralty in the United States co-extensive with the enlarged statutory jurisdiction of the English admiralty, which extends to "claims for dImages by any ship." Admiralty jurisdiction Act 1861, SS 7. If this be the correct in relieve the ship will be continued to secure any judgment which such representative may recover.\[21\]

As a general rule courts of admiralty govern themselves by the analogies of the common-law limitations.\[22\]

## 8 Practice and procedure

### Pleading, process, etc.\[23\]

Corporations have the same right as a natural person to maintain a libel in admiralty, in rem or in personam, and a libel in admiralty will lie against a corporation.\[24\] The court may properly allow a number of libelants having similar claims to join in and together prosecute an action in rem against the vessel to recover damages alleged to have been sustained by them severally.\[25\] Courts of admiralty do not encourage litigation by mere volunteers, and therefore one to whom claims for damages have been assigned solely for the purpose of bringing suit thereon has no standing to prosecute them.\[26\]

In order to obtain leave to maintain a suit in forma pauperis, the Federal statute relating to such suits must be complied with as well as the rules of the admiralty court in that regard.\[27\]

A citation in a suit in personam must be personally served on the defendant.\[28\] In case he cannot be found, libelant should proceed by attachment of his property.\[28\]

It is not error to permit a libel in which a large number of persons join to be signed and verified by their proctor in behalf of those of them who are shown to be outside of the state.\[30\] On sustaining exceptions to a libel for want of jurisdiction, it is proper to grant leave to amend, if the case is such that facts may be alleged which will bring it within the court's jurisdiction.\[31\]

A petition to limit liability must state the facts and circumstances by reason of which exemption is claimed, in order to entitle the petitioner to contest the question of fault on the part of the vessel;\[32\] but a failure to do so cannot be taken advantage of by the adverse parties, where, by stipulation, such proceedings have been consolidated with cross suits between the two vessels, in which the question of liability has been put in issue by the pleadings.\[33\] In such a proceeding the petition and answer on the one hand and the claims of damages on the other present distinct issues, which are to be separately adjudicated in the order named.\[34\] The petition for limitation of liability must allege the facts necessary to entitle the sustained in unloading ship. The City of Coplanser district of Pennsylvania Insufficient, 135 F. 208.

### The City of Belfast, 135 F. 208.

The city of Belfast, 135 F.

5 Cui. Law. ADMIRALITY SS 3R.

The petitioner, under the statute, to the relici sought.\[45\] A claiman! contesting the right must take issue by answer, which must be full and explicit and distinct to each separate article and allegation as is required in answers to libels.\[46\] If the answer does not acknowledge the truth of the allegations of the petition, they must be proved." The proof required in support of the petition that any liability incurred was without the privity or knowledge of the petitioner does not reach the subsequent issue of liability of the vessel for the individual claims sought to be proved,\[47\] but that issue must also be prescnted by appropriate pleadings conforming to the general practice in admiralty, the claimant being required to allege and prove a cause of action as in an original suit.\[48\]

_Interrogatories\[49\]_ may be propounded touching any matter charged in the libel, or any matter of defence set up in the answer.\[41\] They must be as to material matters,\[42\] and must be definite.\[48\] Interrogatories annexed to an answer in a proceeding for limitation of liability, which are directed solely to the discovery of assets of the petitioner, are immaterial, and are subject to exception.\[49\]

(SS 3) _B. Evidence, proof, hearing, and decree.\[45\]_--The proof of the respective parties must conform to the issues tendered by their pleadings.\[49\] Where a large number of libelants having similar claims are permitted to join in a suit in rem against the vessel for damages for injuries from causes common to all, and which may be proved by the same evidence, it is not essential that each should testify, or that his damage be separately proved.\[47\]

The court may, when necessary, authorize the employment of a stenographer to take and transcribe the testimony before a commissioner on a reference, and direct that his fees shall be taxed as costs.\[49\]

In determining the measure of damages in case of death by wrongful act, the Federal courts will be governed by the decisions of the highest court of the state by virtue of whose statutes the suit is brought.\[49\]

As in the case of other judicial sales, a sale of vessel seized under proceedings in admiralty is not completed until confirmed by the court.\[50\] A sale not officially confirmed will be set aside and a new sale ordered on an offer of a materially increased bid, notwithstanding the fact that the first purchaser has deposited the amount of his bid in court, and incurred expense on account of his supposed purchase.\[51\]

36. Admiralty rules 56, 27. Answer held 137 F. 851. Where sought to hold district insufficient in certain respects. In re Davidisme permit by secretary of war authoring it to introduce current into river, an objection that secretary had no authority to issue permit because statute giving him such power was unconsontinutional, held outside the scope of, and repugnant to, the, libel. Id.

01. See 3 C. L. 43.

01. Admiralty rule 32, S. D., N. Y. In re Knlekerbocker Steamboat Co., 136 F. 956.

42, 43, 44. In re Knlekerbocker Steamboat Co., 136 F. 956.

45. See 3 C. L. 43.

01. Barber v. Lockwood, 134 F. 985. L1- belants are not entitled to recover on a theory outside of or repugnant to the scope of the libel. Where libel against sanitary district to recover damages to shipping was predicated on the introduction of any current into river which would render navigation more difficult and expensive than it previously was, libelants could not recover on account of the seed of the current on the day when the damages occurred. Corrilli gan Transit Co. v. Sanitary Dist. \[C. C. A.\] _Interest_\[52\] is recoverable as a matter of right on claims arising out of contract,\[58\] but the allowance of interest by way of damages, as in cases of collision and the like, is in the discretion of the court.\[54\] This rule does not, however, apply in actions for damages for personal injuries, and interest should never be allowed on the amount awarded in that class of cases.\[55\]

_Costs._\[56\]--The allowance of costs is discretionary with the court.\[57\] As a general rule they follow the decree, but the rule may be departed from in cases where circumstances of equity, hardship, oppression, or negligence render it proper to do so.\[58\] All costs necessarily or properly incurred may be allowed.\[59\] In the absence of fraud, the right thereto is not barred by reason of the fact that the amount recovered is less than that claimed.\[60\]

In a proceeding for limitation of liability, where there is an appraisal and a stipulation for value given, the petitioner may deduct from the fund the expenses of administration, not including the costs and expenses of procuring and giving the stipulation, nor the appraisal.\[61\] He is entitled to but one docket fee.\[62\] Each person recovering damages is entitled to a separate proctor's fee, payable by the stipulators for costs, and not out of the fund.\[63\]

Counsel fees may be allowed where there is a fund in court, irrespective of statutory provisions.\[64\] Proctors representing more than one petition are not entitled to separate docket fees.\[65\]

A defaulting respondent, who settles the case out of court, is not entitled to have a release, executed by the libelant on such settlement, filed in satisfaction of the judgment against him except on payment of the accrued costs.\[66\]

SS 4. \_Appeals and subsequent proceedings.\[67\]--An appeal lies from any final decree in admiralty,\[68\] and the case is tried de novo.\[69\] Findings of fact on conflicting evidence will not be disturbed unless clearly against the weight of the

52. See 3 C. L. 44.

at libelant's costs. May include those incident to bringing in new party under rule Mellor & Rittenhouse Co., 135 F. 445.

54. Bethell v. Mellor & Rittenhouse Co., be required to pay additional costs incurred 135 F. 445. Whether interest shall be allowed by the court of first instance, or by the appellate court, on account of damage in missioner to whom the assessment of dam-a collision case. Burrows v. Lownsdale \[C. C. A.\] 133 F. 250. On adjustment of con-misiomer's and stenographer's costs on acount of misstatements as to health and 132 F. 242. The allowance of interest on 4 damages for delay in the transportation of horses depends upon circumstances and rests in the discretion of the court. Libel in personam. Le Conner Trading & Transp. 129 F. 972.

Co. v. Widmer \[C. C. A.\] 136 F. 177.

See, also, The Cumberland, 135 F. 234.

55. Burrows v. Lownsdale \[C. C. A.\] 133 F. 250.

01. See 3 C. L. 44.

01. Bethell v. Mellor & Rittenhouse Co., 135 F. 445. Entirely under control of court. The Maurice, 130 F. 634. Are wholly with-in the control of the court, and are allowed upon equitable considerations. The Oregon \[C. C. A.\] 133 F. 609. Allowance of proc-for's fee of 10 in each case held proper, where large number of libelants appeared by same attorney, and cause of action of each was proved by substantially the same witnesses. Id. Allowance of deposition fees for examining witnesses approved. Id.

01. The Maurice, 130 F. 634.

01. Where vessel libeled for collision is held without fault and libel is dismissed 5 Cur. Law. ADOPTION OF CHILDREN SS 1.

evidence,70 where the trial judge saw and heard the witnesses.71 Where, however, he saw none of them, the entire record will be examined.72 Since the amount of a salvage award rests largely in the discretion of the trial court, it will not be readjusted where there has been no mistake of fact or application of an unwarranted rule of compensation in arriving at the award.73

Sureties on a stipulation for the release of a labeled vessel are not parties to the suit in such a sense as to require them to be joined in an appeal by the claimant from the decree therein, unless some question involving their rights or obligations has arisen in the suit.74 This is true though such decree is joint in form against the claimant and the stipulators.75

As in other cases, the right to review may be waived.76 Where cross suits between the same parties, one in the circuit court and one in the district court in admiralty, are by agreement tried together on the same evidence, but separate judgments are entered in each court, a subsequent order of the trial judge finding that the causes were consolidated into the admiralty case does not effect a nunc pro tunc consolidation, and the judgment remaining of record in the circuit court is not reviewable on an appeal taken in the admiralty suit.77

A general exception to the amount of a finding by a commissioner on a reference is sufficient, where all the evidence is attached to his report.78 A plain error in a computation by a commissioner may be corrected where it was called to the attention of the trial court, though no formal exception was taken to the commissioner's report on that ground.70

A rehearing will not be granted to enable a defeated party to introduce further evidence which was fully known to him and might have been introduced at the original hearing, but was not because counsel deemed it immaterial.80

Admissions, see latest topical index.

ADOPTION OF CHILDREN.

SS 1. Adeptive Acts and Proceedings (41). SS 2. Consequences of Adeption (42). SS 1. \_Adaptive acts and proceedings.81--\_The adoption of children is a statutory proceeding and all recials of the statute are mandatory.82 Thus failure to record the instrument of adoption may render the act of adoption void.83 But

70. As to salvage services. Perriam v. Pracfic Coast Co. \[C. C. A.\] 133 F. 140. 71. Unless there is a decided preponder-

cause of evidence against it. Collision. The Edward Smith \[C. C. A.\] 135 F. 32. Unless clearly unsupported by the evidence, where he saw most of the witnesses. Action for failure of ship to furnish proper treatment

the visceral Scanden. The Svealand \[C. C. A.\] 136 F. 109. Unless it clearly appears that it is contrary to the evidence. Collision. Jamenson v. Lewis \[C. C. A.\] 131 F. 728. 72. 72. 73. 74. 75. 76. 77. 78. 79. 80. 78. 77. 78. 79. 81. 78. 79. 82. 79. 83. 78. 79. 84. 79. 85. 86. 87. 88. 89. 87. 88. 89. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 81. 83. 84. 87. 89. 82. 84. 86. 88. 89. 87. 88. 89. 80. 81. 84. 89. 82. 85. 87. 89. 83. 86. 88. 89. 84. 88. 89. 85. 89. 86. 87. 89. 88. 89. 89. 81. 89. 82. 83. 84. 86. 88. 89. 88. 89. 89. 80. 81. 89. 82. 83. 84. 86. 89. 88. 89. 89. 80. 81. 84. 89. 81. 84. 89. 82. 85. 86. 87. 88. 89. 89. 81. 88. 89. 82. 89. 83. 84. 86. 88. 89. 89. 81. 89. 82. 83. 84. 86. 88. 89. 88. 89. 89. 80. 81.

while such statutes, being in derogation of the common law, should be strictly construed, their construction should not be so narrow as to defeat the purpose and intent of the legislature.\[84\] Some statutes provide for the adoption of both adults and minors.\[85\] The consent of the parent\[86\] or other person\[87\] who has or is entitled to the custody of a child is essential.

_A judicial order of adoption\[88\]_ need not specify the rights which the statute fixes. A jurisdictional finding omitted by the clerk may be supplied nunc pro func.\[89\] The right to attack a deeree may be barred by laches.\[90\] Whether there has been an adoption may be a question of fact.\[91\]\_

_Conflict of laws.\[92\]--An adoption under the laws of one state, and valid under those laws, will be recognized and enforced in another state, if not repugnant to its laws or policy.\[93\] The burden of proving such repugnancy is on the party attacking the deeree of adoption.\[94\]_

_Contracts of adoption.\[95\]--A contract to adopt is ineffective unless executed.\[96\] A deed in which the grantee is described as the grantor's adopted daughter cannot be regarded as an adoption of the grantee as the grantor's legal heir in pursuance of a special act of the legislature authorizing such adoption.\[97\]_

SS 2. \_Consequences of adoption.\[98\]--Generally, an adopted child has all the rights of a natural child,\[99\] including the right to inherit from the person adopting

- 84. Brown's Adoption, 25 Pa. Super. Ct. 258. Document signed by two brothers and their wives adopting a deceased brother's children, acknowledged and recorded as re-quired by statute, held a valid adoption, as to the men, under Missouri statutes, though 1840. Conrad v. Herring \[Tex. Civ. App.\] wives were not separately examined. Burnes v. Burnes, 132 F. 485.
- 85. So in Louisiana, as in Massachusetts. Succession of Caldwell \[La.\] 38 So. 140. Act No. 31 of 1872, p. 79, applies only to adoption of minors, has no repealing clause and did not abrogate the provisions of Civ. Code, art. 214, relative to the adoption of adults. Id.
- 86. In Washington consent of the mother of a child to its adoption by another is necessary only when she is living with her husband, or has custody and control of her child. James v. James, 35 Wash. 655, 77 P. 1082.
- 87. The Iowa statute does not authorize the adoption of an orphan grandchild, in the custody of its grandparents, by a collateral relative, over the protests of its grandparents. Constraining Code, SS 3250, 3254. Holmes v. Derrig \[Iowa\] 103 N. W. 973.
- 88. Order which strictly follows the statute is sufficient, though it does not in terms deprive the natural parents of "all legal rights whatsoever respecting the child." In re Sandon's Will \[Vis.\] 101 N. W. 1089.
- 89. Court had power to amend order of adoption from which clerk had omitted finding that child was a resident of the county and within the court's jurisdiction. Ward v. Magness \[Ark.\] 86 S, W., SS22.
- 90. The widow of a man who adopted a child previous to his marriage cannot, in the capacity of guardian of a child born 19 years after the deeree, maintain a pettition to revoke the adoption 21 years after the deeree and 1% years after her husband's death, on the ground that the record described him as a resident of Brooklyn, New York, without stating that he was a tem-
      **3**.: _Investigation and regulation._\[13\]\*\*-Legislation having for its object the 1. In Washington an adopted child is the 1.1 of his adopters to the same extent as though born to them in lawful wedlock. James v. James, 35 Wash. 655, 77 P. 1082. In Texas the only effect of a statutory adoption is to make the child the her at law of the person adopting him. Logan v. Lennix \[Tex. Civ. App.\] 88 S. W. 364.

**4**.: \_Property given to adopted daughter held to pass to next of kin and not to adopted mother. While v. Dotter \[Ark.\] 83 of the person adopting him. Logan v. Lennix \[Tex. Civ. App.\] 88 S. W. 364.

**5**.: _Histate of fact and of law held not to affect devolution of property. Id._

**6**.: \_Histate of fact and of law held not to affect devolution of property.

prevention of fraud in the sale of food containing impurities or extraneous substances is constitutional.\[14\] Oleomargarine containing a snuall quantity of a vegetable oil to give it the color of butter is subject to the full tax on artificially colored oleomargarine, under the Federal act.\[15\]

## 2 The offense

The sale of milk adulterated by adding thereto a substance containing poison is made a misdemeanor by the Nebraska pure food act.\[17\] The fact that the seller did not know that the substance added was poisonous is no defense to a prosecution under the act.\[18\] While it is not a violation of this act to sell a quantity of food for analysis upon demand, since the act makes refusal to comply with such demand a criminal offense,\[19\] yet a sale freely made in the ordinary course of trade without a demand therefor for the purpose of analysis, is a violation of the act, even though the purchaser intended to analyze it and the seller knew of his intention.\[20\] Under the Ohio statute it is held that a person who sells or delivers oleomargarine containing coloring matter to any person interested or demanding the same for analysis is guilty of a violation of the section of the statute making it a penal offense to "sell or deliver" oleomargarine so colored.\[21\]

## 3 Enforcement and prosecution

An information under the Nebraska pure food act, alleging in substance that defendant unlawfully and knowingly sold milk to which a poisonous substance had been added, as and for pure milk, an article of food, is sufficient without a special allegation of guilty knowledge.\[23\] Such information sufficiently alleges that the milk was sold as an article of food.\[24\] The sale of milk which does not conform to the standards provided by the statute is conclusive evidence of a violation of the statute.\[25\] Where a complaint alleged in topics Commerce, 3 C. L. 711; Food, 3 C. analysis to any one who demands the same and pays the price. In State v. Ripreth \[Ohlo\] 72 N. E. 298, the defendant delivered oleomargarine containing artificial coloring 1900, p. 187, c. 101, regulating sale of milk, same for analysis and paid the price and it was held that the defendant was guilty on an affidavit charging him with having unlawfully "sold and defulently". (Compare Lansing v. State \[Neb.\] 102 N. W. 254, supra.) An act to be punishable must come with: In the mischerf aimed at by the statute. State v. Wray, 72 N. C. 253. The aim is to be gathered from the whole statute. Com. v. Hadley, 11 Met. 66. In the principal case the statute is for the protection of the public against fraud and Injury to health. Waterbury v. Newton, 50 N. J. Law, 534: State v. Kelly, 54 Ohio St. 166, 180. One who receives pay from an officer for such a sample only under protest does not sell within the meaning of the act. Dinkelbilner v. State, 4 Ohio N. P. 312. Such a statute is not intended to prevent the sale of a sample in such a case, when it expressly commands it under penalty. Bates Ann. St #200; State v. Dairy Co., 62 Ohio St. 123. This decision may be supported on an indicitment charging the having in one's "possession with intent to sell." Bates Ann. St. #4200-5 Columbia L. R. 247. State v. Ripreth \[Ohio.\] 72 N. E. 298. See 3 C. L. 48. 23. 24. Lansing v. State \[Neb.\] 102 N. W. 354. 25.

5 Cur. Law. ADULTERY. ADVERSE POSESSION SS 1.

a sale of milk rendered impure by the addition of formaldehyde, the exclusion of evidence tending to show there was no formaldehyde on defendant's premises, and that none had been added to the milk by him or his employees was reversible error.\[26\]

ADULTERY.

SS 1. The Offense (45). SS 2. Evidence (45). SS 2. The Indeterment or Information (45). SS 4. Practice and Trial (45).

Only the criminal offense is included in this topic. SS 1. _The offense._"--Evidence that defendant had intercourse with his servant six times during seven months is insufficient to sustain an indictment charging habitual carnal intercourse without living together,\[28\] and the fact that during such time the servant lived in defendant's house does not render defendant guilty under an indictment charging them with living together and having carnal intercourse.\[29\]

SS 2. _The indictment or information._\[30\]--A husband is competent to make an information charging his wife's paramour with adultery.\[41\] The indictment alleging that defendant was lawfully married to another need not allege that he was not married to the party with whom the crime is alleged to have been committed.\[22\]

SS 3. _Evidence._"--Former acts of intimacy short of carnal intercourse may be shown if of recent date.\[34\] Cases dealing with the sufficiency of evidence are shown in the notes.\[35\]

SS 4. _Practice and trial._\[36\]--Newly discovered evidence that daughter-in-law of alleged paramour would testify that she slept with the latter the night the offense is alleged to have occurred warrants a new trial.\[37\] Where both participants were indicted and on separate trials one was convicted and the other acquitted, the one convicted is entitled to a new trial to obtain the testimony of the other, if it appears that such other will deny the acts of adultery.\[38\]

ADVANCEXENTS, see latest topical index.

ADVANCEXESSION.

ADVENESFOSSESION.

## 7 Duration (53).

- 1. Estates and Property Subject to AAdverse Possession (45).
- 2. Against Whom Available (46).
- 3. To Whom Available (47).
- 4. Definition and Essential Elements (47).
- 5. Hostility (48).
- 6. Continuity (51).
- 7. _Estates and property subject to adverse possession._\[39\]--As a general

8 We years before the commission of the laws of 1893 and 1900. People v. Bowen \[N. Y.\] 74 N. E. 489.

- 9. See 3 C. L. 48.
- 10. Surface of Possession (56).
- 11. Plending, Evidence and Instructions (58).
- 12. Plending, Evidence and Instructions (58).
- 13. Nature of Title Acquired (59).
- 14. _Estates and property subject to adverse possession._\[39\]--As a general rule' all private estates in land are subject to adverse possession; thus an easement may be acquired,40 but it does not operate as to public property nor as to property held in trust for the public,41 nor as to land granted by the United States for a particular purpose.42

where denied, adverse possession already begun is not interrupted by the acquisition of title,\[57\] and where such property is in the adverse possession of another, only an entry on behalf of the public is justified.\[58\] Title cannot be acquired against the right of creditors to subject lands devised for the payment of debts until the executor has been exhausted and a return of nulla bona made,\[59\] nor against persons under legal disability.\[60\] Thus title cannot be acquired as against a minor,\[91\] though it is competent for the legislature to provide otherwise,\[92\] or a married woman,\[93\] but disabilities cannot be tacked;\[94\] therefore as against a female minor it operates after marriage.\[65\]

SS 3. _To whom available.\[90\]_--\_Adverse possession runs in favor of the public\[97\] and of municipalities,\[98\] and of a corporation, notwithstanding the methods in which it may acquire title are prescribed.\[69\] An agent may acquire title as against his principal.\[60\]

SS 4. _Definition and essential elements.\[71\]_--\_Possession to be adverse must be hostile, actual, visible, notorious, and exclusive, continuous, and under a claim of title.\[72\] In some states, additional elements have been made essential in order **57**. Under Rev. St. 1893, # 4270, providing land for 40 years by tenants was the possession of a town. Id. property held for a public use if it began before a county acquired title, it is not interrupted by the fact that it subsequently from acquiring title by prescription. Monte-stokes 86. W. 236.

**58**. Where the public refrains for the statutory period from opening an alley dedicated to public use, during which period another in the care of land does not pre-the original owner has been in possession, a stranger to the title is not justified in making an entry. Haramon v. Krause, 93.

**59**. Brock v. Kirkpatrick, 69 S. C. 231, 48 S. E. 72.

**60**. Freedman v. Oppenheim, 92 N. Y. S.

**578**. Parker v. Ricks \[La.\] 38 So. 687; Vincent v. Blanton \[Ky.\] 85 S. W. 703. Under Code 1896, # 2807, the bar of the statute is not effective until three years after re-c-moval of the disability. Bradford v. Wilson, 140 Ala, 633, 37 So. 295. Adverse possession does not run against minors during minority where there was no outser of their ancestor or notice of an adverse holding to them. Nugent v. Peterman \[Mich.\] 100 N. W.

**59**. This is the effect of a statute contains no clause exempting them. Schauble 1028.

v. Schulz \[C. C. A.\] 137 F. 389.

**63**. Franklin v. Cunningham \[Mo.\] 86 S. V. 79. Adverse possession can be establish-ed as against a married woman only by proof that it commenced prior to marriage or has run since the disability of overturning has been abolished. Broom v. Pearson \[Tex.\] 85 S. W. 790.

**64**. Disability of marriage contracted during minority cannot be tacked to the disability of minority. Franklin v. Cunningham \[Mo.\] 86 S. W. 79.

**65**. York v. Hutcheson \[Tex. Civ. App.\] 83 S. W. 83.

**66**. See 3 C. L. 53.

**67**. May acquire a highway as against all lesions. City of Ft. Worth v. Cetitl \[Tex. Civ. App.\] 85 S. W. 826.

**68**. Murphy v. Com. \[Mass.\] 73 N. E. 524. Evidence held to show that possession of **69**. Once the history of the public is justified, it is not justified in making an entry. Haramon v. Krause, 93.

**69**. Brock v. Kirkpatrick, 69 S. C. 231, 48 S. E. 72.

**60**. Freedman v. Oppenheim, 92 N. Y. S.

**61**. Parker v. Ricks \[La.\] 38 So. 687; Vincent v. Blanton \[Ky.\] 85 S. W. 703. Under Code 1896, # 2807, the bar of the statute is not effective until three years after re-c-moval of the disability. Bradford v. Wilson, 140 Ala, 633, 37 So. 295. Adverse possession does not run against minors during minority where there was no outser of their ancestor or notice of an adverse holding to them. Nugent v. Peterman \[Mich.\] 100 N. W.

**62**. This is the effect of a statute containing no clause exempting them. Schauble 1028.

v. Schulz \[C. C. A.\] 137 F. 389.

**63**. Franklin v. Cunningham \[Mo.\] 86 S. V. 79. Adverse possession can be establish-ed as against a married woman only by proof that it commenced prior to marriage or has run since the disability of overturning has been abolished. Broom v. Pearson \[Tex.\] 85 S. W. 790.

**64**. Disability of marriage contracted during minority cannot be tacked to the disability of minority. Franklin v. Cunningham \[Mo.\] 86 S. W. 79.

**65**. York v. Hutcheson \[Tex. Civ. App.\] 83 S. W. 83.

**66**. See to give title under particular statutes, such as claim in good faith under color of title,\[73\] payment of taxes,\[74\] inclusive\[75\] and cultivation of the land.\[76\] The doctrine implies a possession commenced in wrong and maintained against right,\[77\] but is distinguished from trespass by the claim of title and right to possession,\[78\] and presupposes a defect in title and may be invoked where the defect is discoverable in character.\[79\] All of the essential elements must coexist.\[80\] The possession must be exclusive,\[81\] A mere claim of title is insufficient,\[82\] though coupled with payment of taxes.\[83\] A possession that has its inception in subordination to the legal title does not become adverse by a mere change in mental attitude.\[84\]

In some states the doctrine of adverse possession seems to have become confused with estoppel.\[83\]

**SS 5**. _Hostility.\[84\]_--Possession must be under a claim of right\[85\] inconsistent with rights of the true owner,\[86\] and hostile to any superior title,\[89\] whether known ownership with an intention to claim the land is in adverse possession. Swope v. Vard \[Mo.\] 84 S, W. 895.

color of title for the statutory period has title. Black v. Cox, 26 Ky. L. R. 599, 82 S. W. 278. Uninterrupted use and occupation title is no defense to such title. Severson under a claim of right for the statutory period gives title. Off v. Heinrichs \[Vis.\] 80. McCaughn v. Young \[Miss.\] 87 So. 102 N. W. 904. Where in electment there is 839; Chastang v. Chastang \[Ala.\] 87 So. 799: evidence that plaintiffs had been in posession under color of title for more than 20 years, it was not error to refuse to grant 853. There must be actual possession and a nonsuit. Lassiter v. Okeretce Club \[S. C.\] 49 S. E. 224. Evidence of actual possession under a claim of right for the statutory period is sufficient under City, Code 1895, 83248. Robson v. Shelmutt \[Ga.\] 50 S. E. 91. Where the owner of land grants a right to build a dam on it, the question of the proper location of the dam is settled by 20 years adverse user. Roe v. Redner, 46 Misc. 26, 93 N. Y. 85. 258.

**73**. Answer held to allege that defendant while in possession claimed title. Whitaker v. Jenkins \[N. C.\] 51 S. E. 104. One pur-chasing land with notice of a prior sale of 42. Under Code D. C. $ 111. Johnson v. growing timber thereon is not in adverse possession within 2 Ball. Amh. Codes & St. $ 5508. Brodack v. Morsbach \[Wash.\] 80 P. 275. One who has taken possession in bad faith cannot complain of mere stale demand. Messv. Frechede, 113 La. 679, 37 So. 600. 74. Evidence held to show payment of taxes by an adverse claimant. Jones v. Hodges \[Ca.\] 79 P. 869.

**75**. Evidence held to show that a fence was a substantial incisure within Code Civ. Proc. $ 233. Jones v. Hodges \[Ca.\] 79 P. 869.

**76**. Under the express provisions of Code Civ. Proc. $ 325, one whose possession is not founded on a written instrument must have been in continuous, uninterrupted possession, paid all the taxes and have fenced or cultivated the land. Nathan v. Drierssen \[Ca.\] 79 P. 739.

**77**. Swope v. Ward \[Mo.\] 84 S. W. 895. Where a father takes possession for his children, of land conveyed to another in trust for them, the children acquire title by adverse possession, though the convey-ance in trust was in fraud of creditors of the father. Coke v. Ikard {Tex. Civ. App.} 87 S. W. 869.

**78**. Dorlin v. Westervltch, 140 Ala. 283, 37 So. 382. One who enters under a claim of ownership with an intention to claim the land is in adverse possession. Swope v. Vard \[Mo.\] 84 S, W. 895.

**79**. The fact that one claiming adversely has constructive notice of a defect in his office is no defense to such title. Severson v. Gremm, 124 Iowa, 729, 100 N. W. 862.

**80**. McCaughn v. Young \[Miss.\] 87 So. 102 N. W. 904. Where in electment there is 839; Chastang v. Chastang \[Ala.\] 87 So. 799: evidence that plaintiffs had been in posession under color of title for more than 839. Chastang \[Ala.

or unknown;" therefore a possession which inures to the benefit of the possessor and the owner and is not inconsistent with ownership in either is not adverse." There seems to be a conflict of authority as to whether an admission of title in the United States will destroy the character of the possession as adverse. In Minnesota it is held that the possession is adverse notwithstanding such admission;" but a contrary conclusion was reached in Washington," and in Texas such possession depends on whether or not there is an intention to acquire title." Possession under a parol gift" or oral contract of sale is adverse." Permissive possession," possession under a license," pursuant to an agreement," or in subordination to the title of the true owner," is not adverse, and will not ripen into title however

rights of abutting owners. It was sub-, phy v. Roney, 26 Ky. L. R. 634, 82 S. W. 36.

an interference with the easemements of light, air nnd access. Held, the company did not hold adversely to those rights until such determination. Halley, V. Manhattan R. Co., was permissive possession," was permissive. Shattery v. McCaw, 44 Misc.

93 N. Y. S. 83. Where a widow conveys the entire community property to one who takes 426, 90 N. Y. S. 82. Evidence held to show possession, prescription commences immediately to run in his favor. Jordan v. Richards \[L4.\] 88 So. 206. A mere entry and the moving of a building held insuffient to

and use and not needed for immediate railroad show that one in possession was not hold-, purposes, and consistent with the company's ing adversely. West v. Webster \[Tex. Civ.\] right to reclaim the property when it is needed for the purposes for which it was

89. Use by the owner of a fee is not adverse to a dominant easement until the exercise of such easement is asserted. Tudor

(N. S.) 194. Whether the necessities of a Boller Mfg. Co. v. Greenwald Co., 5 Ohio C. C. (N. S.) 37. Possession by the public of a street does not give it title to the fee where

in makes no claim of ownership to the fee

interference therewith, are questions of fact.

adverse to that of the true proprior. Mott

10. Permission need not be by a contract

v. Eno. 97 App. Div. 580, 90 N. Y. S. 608.

One who closed up a street recognized it as

15ex. 186 S. W. 746. An instruction that

such, therefore his possession was not ad-, vermissible possession is not adverse should

verse. Heard V. Connor \[Tex. Civ. App.\] 84 also add that it was with recognition by the

8. W. 605. A payment by a street railway

possessor of title of the true owner. Murcompany to abutting owners for an interfere-,

ence with their easements of light, air and access, negatives the idea of hostility. Hind-,

ley v. Manhattan R. Co., 93 N. Y. S. 53.

90. Cass Farm Co. v. Detroit \[Mich.\] 102.

der whom he claims is erroneous when a per-, N. W. 848.

91. Where a manufacturer erects scales on a railroad right of way and the company

1018 a side track thereto and transports

ears to and from the scales for the bene-,

fit of both parties. Michigan Mill. Co. v.

Ann Arbor R. Co. \[Mich.\] 101 N. W. 574.

92. One taking possession under the be-,

lief that the premises are public land with

the intention of acquiring title under the

homestead law may acquire title as against

the true owner. Mass v. Eurdetzk, 93

Minn. 295, 101 N. W. 182.

93. An entry under the mistaken belief

that the land is a part of the public domain and subject to entry is not adverse

to the true owner. Yesler Estate v. Holmes

15Wash.\] 80 P. 851.

94. Persons who enter land believing it

to belong to the state and having no intention to acquire it from the state are mere

saturates as long as they continue in such

belief, otherwise if they intend to acquire it.

Whilaker v. Thayer \[Tex. Civ. App.\] 86 S.

W. 86.

95. Gives title after the statutory period.

Brown v. Norvell \[Ark.\] 86 S. W. 306; Mur-,

5 Curr. L--4.

by v. Roney, 26 Ky. L. R. 634, 82 S. W. 36.

36. Dean v. Gupton, 136 N. C. 141, 48 S.

01. Dean v. Gupton, 136 N. C. 141, 48 S.

E. 576.

not hold adversely to those rights until such determination. Halley v. Manhattan R. Co.,

the line, It being clear that the occupation

93 N. Y. S. 83. Where a widow conveys the

suring community property to one who takes 426, 90 N. Y. S. 82. Evidence held to show

that a possession was permissive. English

dately to run in his favor. Jordan v. Richards \[Utah\] 78 P. 476. Possession

ards \[L4.\] 88 So. 2 long continued.2 In order that a possession originating in the permission of the true owner may become adverse, notice of such a holding must be brought to his attention;3 but it is immaterial how he acquires such notice,4 and it may be presumed from circumstances.6 Adverse possession does not run as between husband and wife during coverture,6 nor as between co-tenants7 until ouster,8 nor as between landlord and tenant.9 The possession of the life tenant10 or those claiming under him is not adverse to the remainderman,11 nor is the possession of the wife of a life tenant under a tax deed adverse to him.12 The possession of a grantor after the execution of a deed is not adverse,13 nor is the possession of a vendee under an executory contract of sale until a repudiation of his vendor's title and notice thereof to him;14 but is adverse as to all except the vendor and is adverse to him from the date he is entitled to a deed.16 Possession under a mistake as to the boundary is not adverse if there is no intention to claim beyond the true boundary, wherever it may be;16 but is if one is in possession of and claims up to a certain line,17 and the mere fact that he does not know he is occupying his neighbor's land does not destroy the character of his possession.18

possession does not commence to run until weepudiates it. Olson v. Burk \[Minn.\] 103 N. W. 335. The possession of an abutter who knowingly encloses a part of the street but makes no claim to title is not adverse. Vornes v. Ackley \[Iowa\] 103 N. W. 998.

2. Doris v. Story \[Ga.\] 50 S. E. 348.

1. The acts of an abutter in accepting and recording a deed for an italing possession of disputed land cannot be construed as the conduct of a mere licensee, and a title by presumption in favor of such grantee is acquired by continuous, hostile, and adverse possession for twenty-one years.

Smith v. Pittsburg, etc., R. Co., 5 Ohio C. C. (N. S.) 194. Entry of widow held not to have been in aid of her right of dover and in subordination of the rights of her husband's heirs. Hooper v. Stuart, 23 App. D. C. 434.

4. Need not be derived from the hostile possessor and it is sufficient if he gets such notice from any source. Howatt v. Green \[Mich.\] 102 N. W. 734. Where one purchases land in the actual possession of another than his grantor, he is charged with notice of the extent of such possessor's claim of interest. Id. One purchasing land is charged with notice that one in actual possession thereof is claiming adversely. Kennedy v. Maness \[N. C.\] 50 S. E. 450.

1. Where one is in actual possession for 32 years and paying taxes on property only a few blocks from the residence of the true owner, it is presumed that such owner knows his holding is adverse. Black v. Cox, 26 Ky. L. R. 599, 82 S. W. 278.

1. Cervantes v. Cervantes \[Tex. Civ. App.\] 76 S. W. 790.

1. Woodlief v. Woodlief, 136 N. C. 133, 48 S. E. 583. A husband deeded property to his son and wife jointly; after the wife's death the husband entitled to curtesy in his wife's portion occupied it and that belonging to the son. City of Clinton v. Franklin, 26 Ky. L. R. 1053, 83 S. W. 142.

1. Answer held to allege ouster. White- lcr v. Jenkins \[N. C\] 51 S. E. 105. As to what constitutes an ouster, see Tenants in Common and Joint Tenants, 4 C. L. 1672.

Brigham v. Reau \[Mich.\] 102 N. W. 845; Broom v. Pearson \[Tex.\] 85 S. W. 790. Ad- logn continued.2 In order that a possession originating in the permission of the true owner may become adverse, notice of such a holding must be brought to his attention;3 but it is immaterial how he acquires such notice,4 and it may be presumed from circumstances.6 Adverse possession does not run as between husband and wife during coverture,6 nor as between co-tenants7 until ouster,8 nor as between landlord and tenant.9 The possession of the life tenant10 or those claiming under him is not adverse to the remainderman,11 nor is the possession of the wife of a life tenant under a tax deed adverse to him.12 The possession of a grantor after the execution of a deed is not adverse,13 nor is the possession of a vendee under an executory contract of sale until a repudiation of his vendor's title and notice thereof to him;14 but is adverse as to all except the vendor and is adverse to him from the date he is entitled to a deed.16 Possession under a mistake as to the boundary is not adverse if there is no intention to claim beyond the true boundary, wherever it may be;16 but is if one is in possession of and claims up to a certain line,17 and the mere fact that he does not know he is occupying his neighbor's land does not destroy the character of his possession.18

Footnote 13: We will not have to be confused with the fact that the name of the name The purchase of an outstanding title is an admission that one does not hold adversely to it,\[19\] and that one does not return the land for taxation is evidence that he does not hold adversely;\[20\] but the acceptance of a void lease is not a recognition of a superior title,\[21\] especially where at the time of accepting it he asserted title in himself.\[22\]

. $ 6. _Continuity.\[23\]_--Possession must be continuous and uninterrupted\[24\] for the statutory period,\[28\] except in a country where much of the land is unoccupied,\[29\] and the continuity must be such that the possessor could be sued as a trespasser at any time during the period.\[27\] A joint holding by the legal owner with the adverse claimant,\[28\] or an acknowledgment of the title of the true owner,\[29\] as by entering into a contract with him for the purchase thereof, breaks the continuity;\[30\] but a mere dispute as to a boundary,\[31\] the acceptance of a dead of an al-

17. Cuyler v. Bush \[Ky.\] $ 84 S. W. 579. of the possession. Broad v. Beatty \[Ark.\] Possession under mistake ls adverse if $ 83 S. W. 389. claim is made to the entire tract. Johnson 22. Broad v. Beatty \[Ark.\] $ 83 S. W. 339. v. Thomas, $ 23 App. D. C. 141. By reason of $ 23. See 3 C. L. 56. a mutual mistake a dead did not cover all the land intended to be conveyed. The continued, will not give title, Fuss v. grantee occupied up to a line pointed out Jacobos, $ 10 Pa. 145, $ 91; Moore v. by the grantor for the statutory period. Mobile \[Ga.\] $ 8. E. 351. Instruction held held held, he acquired title. Lougee v. Shuhart not erroneous as lacking the element of continuity. Campbell Real Estate Co. v. Wiley \[Tex. Civ. App.\] $ 83 S. W. 251. Possession for five years, and after an abandonment for several years a possession for six assess adversely a strip erroneously in-closed. Erickson v. Murlin \[Wash.\] $ 80 P. 853; Renner v. Shirk \[Ind.\] $ 72 N. E. 546. See 3 C. L. 55. a. 64.

Note: From the standpoint of ease of application, the decision furnishes a method of determination both convenient and practical. Its doctrine is adhered to in many jurisdictions. Woodward v. Farls, 199 Cal. 11; Tex v. Pflug, 24 Neb. 666, $ Am. St. Teb, 231; Seymour v. Carli, $ 11 Minn. 81; French v. Pearce, $ 8 Conn. 439, 21 Am. Dec. 680; Logson v. Dingg, $ 21 Am. Jap. 158; Metcalfe v. McCutchen, $ 60 Miss. 145. Other courts make the intention of the adverse claimant the basis of his right and hold Sherwood, $ 0ito Circ. R. (N. 8) $ 63. that if he has possession up to the boundary as located, claiming title to such boundary, even though it be incorrect, his possession for $ 20 years as required by is adverse. Preble v. R. Co., $ 4214, 4215. Hemmy v. 35 Am. St. Rep, 366; Bishop v. Bleyer, 105 Wis. 330; Beckman v. Davidson, 162 Mass. 347; Shovell v. Gordon, 121 Mo. 483; Mode v. Long, $ 43. N. C. 433. While not a few courts hold that if the intention is to claim to the boundary as located, only if it is the true boundary, the possession is not adverse. Willson v. Hunter, $ 59 Ark. 626, $ 43 Am. St. Rep. 63: Taylor v. Fowny, 116 Ala. 621, $ 67 Am. St. Rep. 149; Skinker v. Haagsma, $ 99 Mo. 208; Palmer v. Osborne, 115 Iowa, $ 714; Small v. Hamlet \[Ky.\] $ 88 S. W. 385. The difficulty of applying the tests necessary under these decisions is altogether obviated under the doctrine of the principal case, where the open, visible and continuous possession is the sole standard. But like all rigid rules of law, it must fail to effect justice in particular cases.--3 Mich. L. R. 402.

19. Woodlef v. Woodlef, 136 N. C. 133, 48 S. E. 583.

01. Doe v. Edmondson \[Ala.\] $ 37 So. 424. 21. It is merely evidence of the nature -leged outstanding interest,"" the mere fact that there are temporary breaches in an inclosure," an absence from the state of an adverse claimant of wild land," the bringing of an action," or a judgment in ejecent without dispossession," or an action to foreclose a vendor's lien," does not; nor is it broken by the fact that the claimant does not personally occupy." Whether an entry breaks the continuity depends upon the open and not the secret intention of the party making it," and under a statute providing that entry must be followed by possession or action, a mere disturbance of possession is insufficient." The act of the land commissioner of forfeiting land to the state for nonpayment of interest by the vendee on the purchase price while the land is in the adverse possession of another breaks the continuity." In Texas continuity can be interrupted only by the bringing of suit;" but a suit by the owner of an undivided interest, on his own behalf and not for the benefit of his co-tenants, does not break the continuity as to them." The levy of an execution against personal property breaks the continuity of possession thereof."

_Tacking."_--If the source of the title is of record, it is available to every person claiming under it who can connect himself with it," and where successive parties are privies, the possession of one may be tacked to that of the other;" thus the possession of an agent may be tacked to that of his principal," and that of one tenant who atorms to another may be tacked to the possession of such other," and that of a grantee to that of his grantee," if it be against some one to whom the grantor held adversely." Interrupted and discontinuous periods cannot be tacked," such as prior and subsequent periods where continuity has been broken." The possession of a trespasser cannot be tacked to that of a claimant under color of title," and the possession of the life tenant does not inure to the benefit of a remainderman."

32. York v. Hutcheson \[Tex. Civ. App.\] \[ qufres title after five years. Saulsberry v. Fitzpatrick \[KY.\] 86 S. W. 1118.

01. Jones v. Hodges \[Cal.\] 79 P. 869,

01. McCaughn v. Young \[Miss.\] 87 So. 46. One claiming under an unrecorded dead may tack his possession to that of his grantor whose dead was recorded. Roberson v. Downing Co., 120 Ga. 833, 48 S. E. 429.

01. A judgment in an action to foreclose a vendor's lien on land, through which a street has been dedicated, does not interrupt the adverse use of the street. City of Ft. Worth v. Cett \[Tex. Civ. App.\] 85 S. V. 826.

01. If another is in possession for him \[Cifthero v. Fenner \[Wis.\] 99 N. W. 1027\], or by an overflow causing vacation of the land for a year (Robinson v. Nordman \[Ark.\] 88 S. V. 592).

01. Murphy v. Commonwealth \[Mass.\] 78 N. E. 524.

01. Comp. Laws 1897, & 9721, provides that entry must be followed by possession for a year or that action be commenced on such entry within one year after the dispossession. Place v. Place \[Mich.\] 102 N.

01. 41. Lawless v. Wright \[Tex. Civ. App.\] 86 S. V. 1039.

01. Possession under a statute defining geneable possession as one not interrupted by any adverse suit to recover the land. Cobb v. Robertson \[Tex.\] 86 S. V. 746.

01. Cobb v. Robertson \[Tex.\] 86 S. V. 746.

01. Under Ky. St. 1903, & 1909, providing that a borrower of personal property ac-

01. 50. 51. 52. 53. 54. 55. 56. 57.

01. 57. 58. 59. 58. 59.

## 7 Duration

The possession must continue for the statutory period\[37\] prior to action commenced to recover the land,\[58\] but it need not have been the period immediately preceding the filing of suit.\[59\] The period is the subject of statutory regulation and varies in the several states,\[60\] and in some states is lessened if possession is under color of title.\[61\] Statutes fixing the period may be retroactive,\[62\] and do not deprive the owner of due process if a reasonable time is given him within which to recover possession.\[63\] Possession to avail under the Texas five-year statute must be under a genuine\[64\] and duly recorded dead\[65\] to the possession.\[66\] The Arkansas two-year statute applies only where possession is under a tax deed,\[67\] and the seven-year statute does not run against married women.\[68\]

The period for the acquisition of an easement corresponds with the local period for quieting title to lands.\[69\]

## 8 Color of title

Color of title
the title which serves to define the extent of the claim.\[71\] Thus, a void?\[2\] or a voidable deed,\[73\] a mortgage foreclosure certificate of sale,\[74\] or a quitclaim deed not showing that the grantor claimed any interest in the property at the date of its execution,\[75\] or a foreign will, insufficient to pass title.\[76\] A deed is color of title only to the land actually described in it,\[77\] and any description which, unaided by extrinsic facts, satisfies the mind that the land adversely occupied is embraced within it, is sufficient;\[78\] but a deed containing an insufficient description is not color of title,\[79\] nor do void condemnation proceedings constitute color.\[50\]

of title an essential element in the ac-quisition of title to land actually occupied. Dembits, Land Titles, $ 186. See Thompson v. Cragg, 24 Tex. 582: Finnegan v. Campbell, 74 Iowa, 158. This is especially common in statutes prescribing a comparatively short period of limitation. In some jurisdictions, indeed, the requirement appears to have been made even in the absence of expressmention in the statutes. Finally, a third of the main heads under which the discussions may be grouped comprises actions brought under legislative provisions permitting recovery for improvements to land made bona fide and under color of title (Doyer v. Garner, 11e N. C. 125). It is not unnatural that in applying the statutory requirements to an individual case the courts have used language so broad as to be capable of application to cases of a different class. Upon this ground some attempt has been made to explain the conflict of authority as to the necessity of an instrument in writing, the adequacy of a deed void upon its fice, and similar disputed questions. Unavailing though this attempt must in part be, it at least throws light upon points not yet hopelessly involved. It is, for instance, generally stated that bonds for title or executory contracts of sale will not give color of title. An examination of the decisions, however, discloses that many of them apply only to cases arising under short limitation statutes (Hardin v. Crate, 78 III. 533), a strict construction of which is not inappropriate. In other cases relied upon, the vendee under the executory contract claimed to have acquired a title as against his vendor by adverse possession (Brown v. Huey, 103 Ga. 448; Gromond v. Martin, 37 Ala. 585; Hart v. Bostwick, 14 Fla. 162). Here, plainly, the holding of the vendee was in subordination to the superior title of his vendor and not adverse to it. It does not follow that the written context should not give color of title as against a stranger, and for the purpose of giving constructive possession (State Bank v. Smyers, 2 Strob. \[S. C.\] 24; Jones v. Perry, 10 Yerg. \[Tenn.\] 58, 30 Am. 430), or of satisfying a special statutory requirement for lands actually occupied (Burdell v. Blain, 66 Ga. 109; Fain v. Garthwright, 5 Ga. 6), it seems that it should. An Arkansas decision has, however, gone so far as to hold that a bond for title does not give sufficient color of title to warrant a statutory recovery against a third party, the real owner, for improvements made upon land under the bona fide belief that the obligor on the bond had good title (Beasley v. Equitable Securities Co. \[Ark.\] 84 8. W. 24). It seems faire to construct such statutes founded, as they are, upon 5 Cur. Law. ADVERSE POSSESSION SS 10. 55

Color of title is not an essential element of adverse possession. \[91\]

SS 9. _Payment of taxes._\[52\]--Payment of taxes is, in some states, equivalent to possession of wild and vacant land, \[33\] and in other states it is only an element of adverse possession under particular statutes. \[84\] In Illinois payment of taxes must be under color of title made in good faith. \[85\] Under a statute providing for the payment of all taxes legally assessed, "legally assessed" means assessed under color of legal authority. \[86\] Actual payment of the taxes for the last year of the statutory period is not necessary. \[87\] Tax receipts are prima facie evidence that the land was rendered for taxation \[85\] and that taxes have been paid. \[88\]

SS 10. _Area of possession._\[90\]--One holding without color holds only to the extent of his actual possession, \[91\] but one holding under color holds within the boundaries called for in his color, \[92\] whether the color be of record or not; \[93\] but

79. Luttrell v. Whitehead, 121 Ga., 699, 49 S. E. 691; Pitts v. Whitehead, 121 Ga. \[v\] yes an entire interest, he must have paid 704, 49 S. E. 693; Crawford v. Verner \[Ga.\] all of the taxes for the entire five years. \[50 S. E. 558; Dorlan v. Westeritch, 140\] If. Failure to pay taxes for the last year Ala. 283, 37 So. 382; Aracher v. Behl \[C. C. \] of the period after they are due and prior to action brought is fatal to his claim. \[Id\].

A writing purporting to be an agreement to convey land but containing a description is insufficient to identify it is not, in the absence of evidence showing the description

85. The wife of a life tenant who purchase the property at a tax sale does not sense of evidence showing the description

have color in good faith nor does her applicable to a particular parcel, color of

grance with notice. Blair v. Johnson \[III.\]

title. Pfister v. Melton \[Ga.\] S1 E. 380. \[74 N. E. 747. Payment of taxes alone is in-sufficient. Chicago, etc., R. Co. v. Abbott \[III.\]

74 N. E. 412. \[84 N. E. 412. \[84 N. An absolute title claimed in good faith for the statutory period accompanied by actual adverse possession is sufficient to support an action to quiet title, though there was no color of title. Severson v. Gremm. 124 Iowa, 129, 100 N. W. 862. \[85 S. See S. C. L. 60. 83. Evidence of payment of taxes on land for seven years does not show that title was acquired thereby where it is not shown that they were vacant and unoccupied during all of that time or that possession was taken. Glos v. Miller, 213 Ill. \[22, 72 N. E. 714. Kirby's Dig. $ 5057, making payment of taxes on vacant and unimposed land equivalent to possession, apples only where the constructive possession so created is exclusive. Townson V. Dawson \[Ark.\] $ 8 S. W. 661. Kirby's Dig. $ 5067, does not require seven years payment of taxes before such payment will be equivra- lent to possession. Id. Tax receipts mis- describing the land are insufficient to support title by adverse possession under Klirby's Dig. $ 5057, providing that wild land

102 N. W. 691. \[85 S. Thomson v. Welsman \[TeX.\] $ 8. W. 691. \[85 S. W. 89. Where one has a tax receipt for one year and will testify that he thought he paid taxes until a certain time, it is some evidence that he has paid taxes. Weir v. Corda-Fisher Lumber Co., 186 Mo. $88, $ 85 S. W. 741. A general statement of payment of taxes for 13 years is insufficient to overcome a tax receipt for one of such years held by the opposite party. Boynton v. Ashabranner \[Ark.\] $ 8. W. 866. \[90 S. See S. C. L. 60. 84. In Texas possession and payment of taxes for five years. Under Rev. St. 1895, 799. A railroad company which does not art. 3342, one in possession may render for decanation in his own name or in the name of decanation acquires title by limitation to one for whom he is holding. Thomson v. No more than it has actual possession of Velsman \[Tex.\] $ 8. W. 503. The Texas St. Louis S. W. R. Co. v. Davis \[Ark.\] $ 8. three and five year statutes do not apply

92. Chastang v. Chastang \[Ala.\] $ 8. W. 761. Payment of taxes and pos- tract under an instrument purporting to session must concur under the Texas five- convey it all is coextensive with the calls year statute. WAll v. Club Land & Cattle of the instrument. Haggart v. Ranney Co. \[Tex. City. App.\] $ 8. W. 534. Where \[Ark.\] $ 8. W. 703. One who enters unece-one claiming under the Texas five-year stat- coupled land under a decanquires posses possession of a tract under one ded is not constructive possession of an adjoining tract held under another ded,\* and actual possession of one of two adjacent tracts described in a ded is not constructive possession of the other as against the true owner unless actual possession has been taken of a part of it,\* since the real owner in actual possession of a part of a tract has constructive possession of the remainder.\* Actual possession of one of two or more adjoining tracts of the same owner is possession of all of them.\* Constructive possession can only apply to land immediately adjacent to a part of that which is in absolute and uncontrolled possession,\* and where one conveys the portion of which he has actual possession, his constructive possession of the residue ceases.\* Possession by one of land which he owns is not constructive possession of that which he does not own.\*

_Sufficiency of possession_.*The sufficiency of acts to constitute adverse possession is governed by the facts of each particular case.* The ordinary

sion to all the land described. Cuyler v. Bush \[Ky.\] 84 S. W. 579. The possession of a tenant under a tense is coextensive with the terms of the lease, though he has actual possession of a part only. Murphy v. Commonwealth \[Mass.\] 73 N. E, 524. Actual possession of a part extends to the limits of the grant if the real owner is not in possession of any part. Boynton v. Ashabranner \[Ark.\] 88 S. W. 568.

**93.** Reeedation of a deed is not necessary to make it color coextensive with its description. O'Brien v. Fletcher \[Ga.\] 51 S. E. 405: Roberson v. Downing Co., 120 Ga. 833, 48 S. E. 429. But see Civ. Code 1895, SS 3587.

**Note:** In adverse possession actual and notorious possession of the entire land must be shown for the statutory period. Parks v. Mitchell, 78 Ala. 61; Silver Creek Cement Co. v. Union Lime Co., 138 Ind. 297. Under color of title, however, possession of part may be construed as possession of the whole tract described within the instrument that gives rise to the color. Smith v. Gale, 144 U. S. 509, 36 Law. Ed. 521; Dougherty v. Miles, 97 Cal. 568. Washburn on Real Property (6th Ed.) 89 1954, 1981. A deed need not be recorded to give color of title. Lea v. PoiK County Copper Co., 21 How. \[U. S.\] 495, 16 Law. Ed. 204; Cramer v. Clown, 81 Iowa, 255, 9 L. R. A. 772.--4 Columbia L. R. 605.

**94.** Broom v. Pearson \[Tex.\] 85 S. W. 790.

**95.** Haggart v. Ranney \[Ark.\] 84 S. W. 703. Where the holder of a junior title enters on land in the possession of the owner of a senior title, his possession is only to the extent of actual inclosure. Cuyler v. Bush \[Ky.\] 84 S. W. 579. One claiming under a ded to an overlap of a junior survey must show possession of at least a part of the overlap. It is not enough to show possession merely within the limits of his own deed. McLemore v. Lomax \[Tex. Civ. AJP.\] 86 S. W. 635.

**96.** Peden v. Crenshaw \[Tex.\] 84 S. W. 862.

**97.** State v. Harman \[V. Va.\] 50 S. E. 828.

**98.** Crist v. Boust, 26 Pa. Super. Ct. 543.

**99.** State v. Harman \[V. Va.\] 50 S. E. 828.

**99.** Crist v. Boust, 26 Pa. Super. Ct. 543.

**99.** State v. Harman \[V.

and customary use to which the premises are adapted is generally held sufficient,4 and neither actual occupation, cultivation nor residence is necessary to constitute "actual possession" of property so situated as not to admit of permanent useful improvement;4 but where there is no paper title, the possession must be actual so as to clearly acquaint the true owner with the fact that his rights are set at defiance and the extent thereof.6 There cannot be a constructive and an actual possession of the same tract at the same time.7 In some states acts which constitute a sufficient possession are enumerated by statute.8 Possession of wild and vacant land follows the record title,9 and possession to be adverse must be actual, visible, exclusive and notorious.10 Adverse possession of a coal estate secured by deed from the fee on the surface must be actual.11

Footnote 14: Pasturing the land, cutting timber from it and fencing it, held sufficient. Clith-en v. Frenner \[Vis.\] 84 S. W. 1927. Evidence of the sufficiency of possession held for the jury. Illinois Steel Co. v. Jeka \[Vis.\] 101 N. W. 1927.

Footnote 15: The author is grateful to the anonymous referee for the support of the author.

**SS 12.**\_Pleading, evidence and instructions.\_11--The facts constituting adverse possession must be pleaded.13 In pleading title the use of "adverse" is sufficient without the qualifying adjectives "continuous and exclusive."14 Where peaceable possession is not an element it need not be alleged.15 A party is not prejudiced by an allegation of adverse possession for a period greater than is necessary.16 A reply which puts in issue a plea of adverse possession cures a defect in the plea in not alleging adverse possession for the statutory period.17

Footnote 15: The author is grateful to the anonymous referee for the support of this paper.

\_Evidence.\_18--Adverse possession is usually a mixed question of law and fact to be left to the jury under proper instructions;19 but where the undisputed evidence shows adverse possession, it is proper to direct a verdict.20 There is no presumption that possession is adverse,21 and one asserting a title acquired in this manner has the burden of proving all the elements.22 He must prove continuity of possession,23 and that the true owner was not under legal disability;24 but where he has met his burden and want of capacity is set up, the party setting it up has the burden to show that it existed within the statutory period.25 The elements may be shown by positive acts without declaration of ownership.26 One holding adversely to the only persons who make any claim to title need not show that he holds adversely to all others.27 The degree of proof necessary to show that the possession of a co-tenant is adverse is greater than it is where the claimants do not occupy that relation.28 The cutting of timber29 or the payment of taxes is a circumstance;30 but tax recepts which do not identify the land are not evidence.21

Footnote 18: The author is grateful to the anonymous referee for the support of this paper.

**12.** See 3 C. L. 63. See, also, Limitation of Actions, 4 C. L. 45.

**13.** Rhodes V. Cooper, 113 La. 600, 37 So.

**14.** An allegation of a prior judgment lien

**15.** But an assertion of adverse title. Illinois

**16.** But an assertion of adverse title. Illinois

**17.** But an assertion of adverse title. Illinois

**18.** But an assertion of adverse title.

5 Cur. Law. ADVERSE POSESSION SS 13.

_What is admissible.${}^{\\text{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}}$--Where one claims through the possession of another, all evidence tending to show possession by such other is admissible;${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ but possession cannot be established by family repute,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ and an application by an administrator to sell land is not evidence of possession of his intestate.${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ Self-serving declarations of the possessor are inadmissible;${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ but declarations tending to show that possession is under a claim of right are.${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ Evidence tending to show that entry was under color of title,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ or to show or negative a claim of title,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ or that the possessor did not claim title,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ or that the real owner was under legal disability,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ or had made entry during the statutory period,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ is admissible._

_Instructions.${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$--In instructing, the court should define the elements.${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ Elements substantially charged need not be repeated.${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ Too great a burden of proof should not be required.${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$_

SS 13. \_Nature of title acquired.${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$--\_Adverse possession for the statutory period operates as a grant${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ and conveys to the possessor an indefeasible title,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ which is a defense to all claims whether known or unknown,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ unaffected by ad-missions inconsistent with ownership, which, however, are evidence of the character of his possession,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ or by a subsequent survey,${}^{\\text{\\tiny@@cite\[cite\]{\[@@bibref{}{Lavrett:2009}{}{}\]}}}$ or an abandonment of pos-

32. See 3 C. L. 64.

01. Evidence tending to show adverse possession by a claimants ancestor and his own possession as heir and successor improperly excluded. Dorlan v. Westervich

140 Ala. 283, 37 So. 382. Where one claims through the adverse possession of his ancestor, he may testify that he heard him say that he had paid taxes. Chastang v. Chastang \[Ala.\] 37 So. 79.

34. Luttrell v. Whitehead, 121 Ga. 699, 49 S. E. 691.

49 S. E. 691. Pitts v. Whitehead, 121 Ga. 699, 49 S. E. 693.

49 S. E. 691.

49 S. E. 693.

30. 37. Swope v. Ward, 185 Mo. 316, 84 S. V. 89.

session;84 but will not prevail against a bona fide purchaser from the holder of the record title under a sale made when the adverse claimant was out of possession.854

Advertising Contacts; Advice of Counsel, see latest topical index.

## 0.87 AFFIDAVITS.

_Who may make.85--Affidavits required by the rules of practice should be made by the party whose knowledge is material, therefore the moving affidavit on motion to amend a pleading,87 or an affidavit for a commission to take the testimony of witnesses absent from the state,84 should be made by a party and not by his attorney._

Footnote 85: The author is grateful to the anonymous referee for the support of this work.

_Who may take.86--The taking of an affidavit is a ministerial act and may be done by an interested person.80 In Georgia, by statute, an attorney cannot take_

owner is evidence that his holding is not adverse. Whitaker v. Thayer \[Tex. Civ. App.\] 86 S. W. 864.

S2. A title acquired by adverse possession cannot be prejudiced by a subsequent survey made by the owners' consent for the purpose of finding the true line. Fati v. Myer \[Ind.\] 72 N. E. 142. See 3 C. L. #4, n. 96.

53. Title is not lost by the fact that the owner states that he does not claim it, and offers to buy it and his possession ceases to be exclusive. Rennert v. Shirk \[Ind.\] 72 N. E. 546. The title acquired is not affected by a break in the continuity of possession. Off v. Heinrichs \[Wis.\] 102 N. W. 904.

01. Especially in a state where by statute the adverse claimant can' have his title established of record. Adams v. Carpenter \[Mo.\] 86 S. W. 445.

01. Includes only general rules. Necessity of affidavits in particular proceedings and their sufficiency in point of substance is treated in titles dealing with the proceeding in question.

01. See 3 C. L. #5.

01. Treadwell v. Clark, 45 Misc. 268, 92 N. Y. S. 166.

01. Fox v. Peacock, 97 App. Div. 500, 90 N. Y. S. 137.

NOTE. Afladavits may be made by the parties in the suit during the progress thereof of (1 Barbour, Ch. Pr. 599). The general rule is that an affidavit must be made by the person who has a personal knowledge of the facts, unless a good reason is shown for its being made by some other person (1 Barbour, Ch. Pr. 599; Barry v. Crane, 3 Madd. 472). Upon sufficient cause shown, a substituted affidavit by another person that a party will be allowed, as where the party is sick or absent, or where the suit is conducted by an agent or attorney in fact (1 Barbour, Ch. Pr. 599; Gricl v. Bucking, 114 Pa, 187, 6 A. 158). It is held that an attorney may make an affidavit for his client (Abbott v, Zeiler, 9 Ind. 511; McAlpin v. Finch, 18 Tex. 831). Whenever the affidavit relates to the proceedings in the cause, the affidavit should, in general, be made either by the solicitor or by his clerk who has had the principal management of the cause (1 Barbour, Ch. Pr. 599; The Harriet, Olocott, 5 Cur. Law. AFFIDAVITS OF MERITS. 61

an affidavit required of his client unless specially permitted by law, \[91\] but an affidavit which is the foundation of the proceeding to evict an intruder may be made before any officer authorized to administer an oath. \[82\] In Texas, by statute, the affidavit in lieu of a writ of error bond may be made before a notary in another state. \[83\]

_Form and requisites._\[94\]--It is necessary that the affiant be in the personal presence of the officer administering the oath, and it cannot be administered by the use of the telephone, though the officer is familiar with the voice of the affidant. \[85\] The venue \[66\] and jurat \[67\] are essential, but want of venue does not invalidate if it appear of what county the notary is an officer, \[68\] and the entire paper may be looked to for this purpose. \[69\] The official character of the officer taking must appear, \[70\] and in an affidavit made in a foreign state before an officer of such state it must appear in some legal way that the person attesting was in fact authorized to administer the oath, \[71\] and the fact that the seal of a probate court is affixed is insufficient to show that the person attesting is an officer of that court or is so authorized. \[72\]

_Admissibility of affidavit in evidence and effect thereof._\[88\]--An affidavit on information and belief is sufficient for some purposes \[73\] but not for others. \[74\] Where an affidavit of a subscribing witness to a will is taken in open court, the clerk's certificate thereto need not be authenticated by seal in order to render it admissible in evidence. \[75\]

**AFFIDAVITS OF MERITS OF CLAIM OR DEFENSE.**\[77\]

An affidavit of defense is purely a statutory requirement, \[78\] and where not re-

- 61. Under Civ. Code 1895, $ 4417, an affida-
- 63. Rev. St. $ 1895, art. 7, subd. 2. Latimer v. St. Louis S. W. R. Co. \[Tex. Civ. App.\] $ 8. W. 44.
- 64. See 3 C. L. 65.
- 65. Under Rev. St. 1895, arts. 3, 7. Sulivia v. First Nat. Bank \[Tex. Civ. App.\] $ 8. W. 421.
- 66. An affidavit of service of summons with notice, which is without venue, is a nullity. Trees v. Elyth, 99 App. Div. 541, 91 N. Y. S. 103.
- 67. An affidavit for publication to bring in a nonresident defendant to which is appended an unsigned and undated jurat, without evidence aliunde to explain the error, is insufficient. Rumell v. Tampa \[Fla.\] $ 8. So. 563.
- 68. Affidavit to a list of sales of delinquent lands. Hornage v. Imboden \[W. Va.\] 49 S. E. 1036. It is presumed that an affidavit was taken within the territorial juris-
- 69. Hornage v. Imboden \[W. Va.\] 49 S. E. 1036.
- 70. Rumell v. Tampa \[Fla.\] $7 So. 563.
- 68. Affidavit to a list of sales of delinquent lands. Hornage v. Imboden \[W. Va.\] 49 S. E. 1036. It is presumed that an affidavit was taken within the territorial juris-
- 69. Hornage v. Imboden \[W. Va.\] 49 S. E. 1036.
- 71. Rumell v. Tampa \[Fla.\] $7 So. 563.
- 68. Affidavit to the jurat is sufficient to designate
- 69. Hornage v. Imboden \[W. Va.\] 49 S. E. 1036.
- 72. Howell v. Simpson Grocery Co., 121
- 73. See 3 C. L. 66.
- 74. That facts stated In a motion for a new trial are "true to the best of affant's
- 75. Howled and belief" requires such facts
- 76. We have 77. As to showing of merits in appliea-
- 77. As to Zweinflea in motion for relief which rests in discretion, see
- 78. Such titles as Continuance and Postpone-
- 79. Under the Pennsylvania Procedure
- 70. Act a plaintiff is entitled to judgment for
- 71. want of an affidavit of defense only in ac-
- 72. Howled and the remaining on demands which are liquidated, and
- 73. An affidavit is not necessary in an action to recover damages for breach of contract.
- 74. Howled, Osborn Engineering Co., 132 F.
- 75. In an action of assumpatial on the off-
- 76. A shelf of a shelf where the action is
- 77. Howled on miscellaneous or negligence, no
- 78. Howled, 11.

quired, it is immaterial that one filed is insufficient;79 but where the declaration is supported by an affidavit of merits, all the pleas thereto must be also so supported.80 A statement setting forth a good cause of action is sufficient to require an affidavit of defense,81 and statements of material facts in the affidavit of claim are to be taken as true if not denied by the affidavit of defense.82

relation to the plaintiff's claim,\[91\] and what is not stated must be regarded as not existing,\[92\] and if it fails to do so, either from omission of essential facts\[93\] or manifest evasiveness in the mode of statement, it is insufficient to prevent a judgment.\[94\] Nothing must be left to inference,\[95\] and where it is not clear whether an averment is of a fact or of an inference of law from particular facts not set forth, it is bad for uncertainty.\[90\] Intimations and indirect statements are insufficient,\[97\] and mere conclusions of law are not to be accepted as established facts simply because so stated.\[98\] An afflavit restricted to certain allegations is insufficient to require proof of allegations which it does not place in issue.\[99\] Allegations of set-off must be as specific as those used in a statement of claim.\[1\] and allegations in general terms are not to be regarded.\[2\] Where a stranger's afflavit is put in, it must show upon its face sufficient reason why it was not made by the defendant.\[8\] If a defense is probably good but defectively stated, a supplemental and even a third afflavit may be allowed.\[4\] The extent of allowing sup-

**Held summelement to prevent judgment in an**

Pa. Super. Ct. 309; Brian v. Merrill, 23 Pa. action on a-check. Creery v. Thompson, 26

Super. Ct. 629; Tranter Davison Mfg. Co. v. Pa. Super. Ct. 511. Action to recover the price of Iiquora. Adulteration alleged.

46. In an action by an indorsee against the Rhheimstrom v. Wolf, 26 Pa. Super. Ct. 559.

indorsor of a promissory note. Bryan v. Afflavit and supplementary afflavit held

Harr, 21 App. D. C. 190. Action for the price sufficient in an action on certificates of a beneficial association. Mitchell V. Monumentan Co. v. Foley, 23 Pa. Super. Ct. 643. Action on a written contract. Slater v. Van der Hooft, 23 App. D. C. 417.

95. Held insufficient in an action for servocles by an officer of a corporation. Paine v. Berg, 33 Pa. Super. Ct. 577.

01. Held open to this objection in an action for breach of covenant to furnish gas. Boal V. Citizens' Nat. Gas Co., 23 Pa. Super. Ct. 339.

01. Held insinficient in an action by an attorney for professional services rendered. Whiting v. Davlidge, 23 App. D. C. 156.

01. Bryan v. Harr, 21 App. D. C. 190.

01. Held insufficient to require proof of appointment of a trustee in bankruptcy. Thompson v. First Nat. Bank {Miss.} 37 So.

01.

01. McFettdge v. Megargee, 26 Pa. Super. Ct. 501; Carnahan Stamping & Enameling Co. v. Foley, 23 Pa. Super. Ct. 643.

01. In this respect the defendant is an acctor, and averments must be as specific as those in a statement of claim. Penn Shoved Co. v. Phelps, 24 Pa. Super. Ct. 595.

01. That a disability existed and the circumstances giving rise to such disability. Horsuch v. Fry, 23 Pa. Super. Ct. 509. This rule is applicable to the sworn answer required by the rules of court of Allegheny county in sheirir's interplender proceedings. Id.

01. Loeper v. Haas, 24 Pa. Super. Ct. 184.

The affirmance of an order discharging rule for judgment for want of a sufficient afflavit with permission to plaintiff to move the court below for judgment for so much of his claim as to which the afflavit is deemed by the appellate court to be insufficient, does not abridge the discretionary power of the court below to permit a sup-plemental or even second and third afflavits, if the defense appear probably good. Kyler

5 Cur. Law. AFFIDAVITS OF MERITS.

- \[5\] **Cur. Law.**

**plemental affidavits**5 or amendments rests largely in the discretion of the court;\*\*6 but if a supplemental affidavit is not filed within a reasonable time, defendant cannot complain that the entry of judgment for want of a sufficient affidavit was premature.7

Footnote 5: The author is grateful to the anonymous referee for his comments on the manuscript.

To entitle a plaintiff to appeal from an order discharging a rule for judgment for want of a sufficient affidavit, he must except to the decision.\*

Affibrations, see latest topical index.

**AFFRAY.**

An affray is a mutual combat voluntarily engaged in by two or more persons in a public place.9

**AGENCY.10**

- \[5\] **S 1. The Relation Between the Parties (64).** **C. Partleular Kinds of Agencies (79).** **D. Ratification by Principal (82).** **A. Competency to Act as Agent or to Employ Agents (64).** **F. Notice to Agent (85).** **B. Creation and Existence of the Relation (65).** **G. Remedies, Pleading, Procedure and Proof (86).** **C. Implied Agency (66).** **S 2. Rights and Lababilities of Agent as to D. Evidence of Agency (67).** **E. Estoppel to Assert or Deny Agency (70).** **F. Termination of Relation (71).** **A. In General; Contract of Agency; Diligence and Good Faith (89).** **B. Accounting, Settlement and Relm- (80).** **D. Principal (73).** **C. Compensation of Agent (91).** **D. Remedies, Pleading, Procedure and Proof (82).** **D.** **F. Termination of Relation (71).** **A. In General; Contract of Agency; Diligence and Good Faith (89).** **B. Accounting, Settlement and Relm- (80).** **D.** **F. Compensation of Agent (91).** **D. Remedies, Pleading, Procedure and Proof (82).** **D.** **F. Compensation of Agent (92).** **A. Competency to act as agent or to employ agents.16--A married woman may act as agent of her husband17 and may appoint an agent.18 A rc- 5. Discretion held not abused. Loeper v.** **Hass, 24 Pa. Super. Ct. 184.** **G. Cranp v. Philadelphia Const. Co., 134 F. 690; Blizzard v. Epkens, 105 Ill. App. 117.** \*\*G. Kreftridge v. Megargee, 26 Pa. Super. Ct.

5 Cur. Law. AGENCY SS 1B.

ceiver has implied power to appoint such agents as are necessary to transact the business committed to him.\[19\]

(SS 1) \_B. Creation and existence of the relation.\[20\]--The contract of agency must have the elements essential to the validity of all contracts,\[21\] must be consistent with public policy,\[22\] and properly executed.\[23\] No express terms are required to define the agent's powers.\[24\] But no valid agency is created by the designation of a party to dispose of property in case of the death of the owner. An estate cannot be administered by an agent appointed in that manner.\[25\] Agency for a corporation may be conferred and proved as in the case of natural persons.\[26\] An agreement for the sale of real property, made by an agent, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.\[27\] But an agent to take an option to purchase real estate is not required to have written authority from his principal;\[28\] nor an agent to purchase property for his principal.\[29\]

Agency is a mixed question of law and fact\[30\] to be determined by the jury authority, express or implied, precedent or subsequent. Steffens v. Nelson \[Minn.\] 102

18. A married woman, her husband join-

01. When a railroad company goes into

66

AGENCY SS 1C. 5 Cur. Law.

under proper instructions,\[31\] when the agent's authority is not in writing.\[22\] But where there is no conflict in the evidence\[33\] or the evidence is such that the jury could not find otherwise,\[34\] the existence of the agency is a question for the court.\[35\] The extent of an agent's authority, under the power conferred, and what he may do as agent, when the appointment and authority, real or apparent, are admitted, or are not in controversy, are, also, questions of law.\[36\] But when the agent is in charge of an extensive district and there is no writing limiting his authority,\[37\] or where there is a dispute as to the authority conferred, the extent of such authority must be found by the trier of fact.\[38\]

\_Intermediaries.--\_A mere intermediary is not an agent and cannot be held liable as such when the capacity in which he acts is disclosed.\[39\] Dual agencies are void only when the fact of representation of both parties is not known to each.\[40\] And in the case of neglect of duties devolving upon an employee of two persons jointly, such neglect cannot be made the basis of recovery of damages by one against the other.\[41\] The master's possession of a vessel is as much for the benefit of the charterer as for the original owner.\[42\]

(SS 1) \_C. Implied agency.\[43\]--\_The fact of agency or its extent may be presumed from the conduct of the parties, or their usual course of business.\[44\] When

**31.** Delafield v. J. K. Armbsy Co., 90 N. **of its president was outside of its corporate Y. S. 998: Swindel Broa v. J. L. Gilbert &**

pro. \[Nd.\] 69 A. 102: Scull v. Skilton, 70 N. **bound as the made no representations. First J. Law, 782, 59 A. 45: Neppuch v. Oregon &**

Nat. Bank v. Commercial Nat. Bank \[Tex.\] C. R. Co. \[Or.\] 80 P. 483; Johnson v. Cate **87 S. W.** 1038. \*\*\[Vt1\] 59 A. 830. **\[A\]**

40. A real estate broker, who is negotiating a sale of property, cannot represent both parties without their knowledge and consent. Green v. Southern States Lumber Co. \[Ala.\] 37 So. 670. Where the agent of the vendor is also president or agent of the purchaser, the effect of the dual agency will authorize the principal to repudiate the presence of any proof of the agent's authority, transaction. Whilev. James, 121 Ga. 521, 49 S. E. 600. **\[A\]**

01. Complaint was made that cattle had not been sufficiently sated and watered, but it appeared that they had been in the care of a party employed jointly by plain-tiff and defendant. N. B. Brown & Co. v. St. John Trust Co. \[Kan.\] 80 P. 37. **\[A\]**

42.\*\* Brig Maria, 39 C. Cl. 39. **\[A\]**

43.\*\* See 3 C. L. 71. See, also, special article "Agency Implied from relation of parties," S. C. L. 101. Evidence of the management of certain business of a son by the father, with the son's knowledge and consent, held sufficient to warrant a finding that the son was estopped to repudiate the action of the father in executing a mining lease. Jordan V. Gregle \[Colo.\] 80 P. 1045. Where the payee of a note left it In the hands of her father, who attended to all the business connected therewith, it was error, in a suit to collect the note, to exclude evidence of a satisfaction of the dead of trust securing the note, which had been entered on the margin thereof by the father. Dawson v. Wombles \[Mo. App.\] 86 S. W. 271. **\[**\]\*\*

Where the employee of defendant was authorized to purchase a machine, which was obviously an experiment, defendant was found by his contract with the sellers for extra work done on the machine under the employe's direction. Benton v. Moss, 93 N. **\[A\]**

44.\*\* The relation of principal and agent a general agent is appointed by a receiver of a railroad company, he will be presumed to have the general powers of such an officer when acting for the railroad itself. \[45\] Where the stautes impose a legal duty upon the father to support a minor child, \[46\] the same agency to bind the father for necessaries is to be implied, where there is a total abandonment of a minor child, incapable of supporting itself, as implied in the wife on desertion by her husband. \[47\] Agency will not be presumed from the mere existence of the marital relation; \[48\] but, owing to the intimate relation of husband and wife, the agency of one for the other may be presumed upon slight evidence. \[49\] Once the agency is shown, the relation is presumed to continue. \[50\]

(SS 1) \_D. Evidence of agency. \[53\]--If an agent's authority is in writing, that is the best evidence, \[58\] and his powers must be ascertained from the instrument itself, which will be strictly construed; \[53\] and the authority conferred is never extended by intendment or construction, beyond that which is given in terms or is absolutely necessary for carrying the authority into effect. \[54\] A provision in a implies a grant of the powers necessarily incident to the purposes of the agency, or which, by established usage, may properly be employed in carrying out those pur. \[54\] Informed to the contrary. Lauer Brew. Co. Super. Ct. 396. An agent has not only the authority which is expressly given, but such as Is necessarily implied from the nature of the employment. Daniel v. Atlantic Coast Line R. Co., 186 N. C. 511, 48 S. E. 816. The purchasing agent of a corporation was known as a general officer of it and for 12 or 13 years had conducted transactions similar to those with plaintiff. Batavia Bank v. Shmneapolis, etc., R. Co. \[Vis.\] 101 N. W. 687. \[45\] Such agent has the power to make special contracts to forward a through shipment by the steamer of a connecting carrier, on a certain day. Northern Pac. R. Co. v. American Trading Co., 25 S. Ct. 84. The application clerk and counterman at the home office of an insurance company, who was authorized to accept risks and cancel policies, held to have prima facie authority to waive in writing a provision in a contract of reinsurance limiting the company's liability on such risks. Northern Ins. Co. v. Associated Mfrrs. Mut. Fire Ins. Corp., 90 N. Y. S. 14. Presumption of agency in giving consent for an abutter to the building of a street railway arises after council has acted upon the consent. Day v. Forest City R. Co., 5 Ohio C. C. (N. S) 393. \[46\] Comp. Laws Mitch. $ 449. Finn v. Adams \[Mich.\] 101 N. W. 538. \[47\] Finn v. Adams \[Mich.\] 101 N. W. 538. \[48\] McNemar v. Cohn, 115 Ill. App. 31. Francis v. Reeves \[N. C.\] 49 S. E. 213. \[49\] French v. Spencer, 23 Pa. Super. Ct. 428. \[50\] A party who described himself as the duly authorized agent for plaintiff in the afflavit attached to the cogrowit in the entry of judgment by confession under the terms of a lease, was the purchaser of the premises at shelring's sale. Held that he was still acting as agent and held the sheriff's certificate as agent and not as a third person; and an order denying a motion to quans the execution and cancel the certificate was reversed. Parker v. Crilly, 113 written contract of agency, forbidding its change unless such change was approved in writing by the principal, does not prevent the making of a separate verbal contract of agency with reference to another transaction.\[55\] If the written instrument creating the agency is lost, that fact must be shown, when its terms may be shown by parol;\[56\] and parol evidence is also admissible to explain terms in a written contract of agency.\[57\] Where the authority of an agent is not in writing, both the fact and extent of the agency can be proved by parol.\[88\] The authority of an agent appointed by county commissioners in Texas to contract in behalf of the county in the erection, etc., of public buildings, may be shown by parol, it not being necessary that an order be actually entered on the minutes.\[59\] Although the word "authority" is too much in the nature of a conclusion to use in a question to a witness, it is at least proper for him to testify that there was no instruction or nothing said or written in regard to the matter by the party claimed to be the principal, to the party claimed to be the agent;\[90\] and when the agent's authority is merely verbal, the language should be stated to the best of the witness' recollection.\[61\] .Neither direct proof,\[82\] nor affirmative evidence of a formal appointment,\[63\] is necessary; but the agency, or the authority, may be shown by facts and circumstances, or from the ratification of the agency.\[44\] Agency may be proved by circumstances and by the apparent relations and conduct of the parties.\[65\] Neither the extent,\[66\] nor the fact of the agency,\[67\] can be shown by the declarations of the alleged agent; nor by his acts\[68\] or admissions,\[69\] unless they

retles named in the power of attorney. \[\]

tween the agent and his principal, by tele-Stokes v. Dewees, 24 Pa. Super. Ct. 471. \[\]

phone, in regard to the transaction in ques-55. The principal's general agent agreed orally with the selling agent to pay a commission on the sale of a second-hand man-shallow on the sale of a second-hand man-shallow. Shook v. Marion Mfg. Co. \[Mleh.\]

101 N. W. 657. \[\]

56. Jos. Schlitz Brewing Co. v. Grimmon \[Nev.\] 81 P. 43. \[\]

01. Morrison Mfg. Co. v. Bryson \[Iowa\]

103 N. W. 1016. \[\]

58. Authority to represent the nonresident owner of a building. Lough v. John Davis & Co., 35 Wash. 449, 77 P. 732; Swin-dell Bros, v. J. L. Gilbert & Bro. \[Mld.\]

60 A. 102. \[\]

59. Jackson-Foxworth Lumber Co. v. Huthenison County \[Tex. Civ. App.\] 88 S. W. 412. \[\]

60, 61. Jos. Schlitz Brew. Co. v. Grimmon \[Nev.\] 81 P. 43. \[\]

62. Evidence in an action for goods sold held sufficient to establish the agency through which they were bought. Crosno v. J. W. Bowser Milling Co., 106 Mo. App. 236, 80 S. W. 275. \[\]

01. Roberson v. Clevenger \[Mo. App.\] 88 S. W. 512. \[\]

01. Swindell Bros, v. J. L. Gilbert & Bro. \[Mld.\] 60 A. 102: Roberson v. Clevenger \[Mo. App.\] 86 S. W. 512. \[\]

65 A. 102: Roberson v. Clevenger \[Mo. App.\] 86 S. W. 512. An allegation of agency in the pleadings can be sustained by showing any state of facts which the law recognize as establishing agency. Turner v. Turner \[Ga.\] 80 S. B. 965. \[\]

65. Russell V. Washington Sav. Bank, 23 App. D. C. 398. \[\]

01. White Sewing Mach. Co. v. Hill, 13. N. C. 128, 48 S. E. 575: Daniel v. Atlantic Coast Line R. Co., 136 N. C. 517, 48 S. E. 816: Dieckman v. Weirlich, 24 Ky. L. R. 2340, 73 S. W. 119; Jahren v. Palmer \[Kan.\]

79 P. 1081. Conversation overheard be-4. \[\]

68. White Sewing Mach. Co. v. Hill, 13. N. C. 128, 48 S. E. 575: Diekman v. Weirlich, 24 Ky. L. R. 2340, 73 S. W. 119; Jahren v. Palmer \[Kan.\]

79 P. 1081. Conversation overheard be-4. \[\]

88 B. W. 400: Blair-Baker Horse Co. v. First Nat. Bank \[Ind.\] 72 N. E. 1027. Not even in the case of husband and wife. McNemar v. Cohn, 115 Ill. App. 31. In a suit by a third person against an alleged undisclosed orphan. \[\]

67. Phillips v. Poulter, 111 Ill. App. 330; Sloan v. Sloan \[Or.\] 78 P. 893: Pederson v. Klessel \[N. J. Law\] 58 A. 1088: 5 Our. Law. AGENCY SS 1D.69

are brought home to the principal," nor can the powers of the agent be so extended.71 But declarations made by an alleged agent, against interest, as to the character of the business relations between him and the alleged principal, are as competent, when the agent is made plaintiff's witness, as they would be if he were himself the plaintiff and testifying in his own behalf.72 While agency cannot be proven by such declarations, they may be considered in connection with letters and subsequent acts;73 and they are admissible after it has been shown by competent evidence that one is authorized to act for another.74 The existence of the agency may be shown by the testimony of the agent himself to the fact;75 and he can testify to facts and circumstances tending to show agency.76 But as a witness to prove his authority he can testify only to facts, the instructions and directions given him and the sources from which they came, etc., but not to conclusions as to the extent of his authority.77 The admissions of the principal are competent evidence as to the extent of his agent's authority.78 Evidence of actual transactions between the parties, tending to show a course of dealing,79 or letters between the parties tending to show agency,80 are competent to prove the fact of agency.

Proof of the agency, whether express or implied, must be clear to bind the principal.81 The burden of proving an agent's authority to waive restrictions on his agency is upon the party setting up such waiver.82 The liability of the prin cipal can be shown only by proof of the agent's previous authority, or of subsequent ratification',**\[**33**\] and the burden of showing not only the fact, but also the extent of the authority of an assumed agent, is upon the persons dealing with him.**\[**45**\] Cases dealing with the admissibility\*\*\[**45**\] or sufficiency\*\*\[**46**\] of evidence as to agency in particular instances are grouped in the notes.

**(SS 1)** _E. Estoppel to assert or deny agency._\[**47**\]--Estoppel is to be distinguished from ratification.\*\*\[**48**\] Where a party avails himself of the acts and meth-

ment that no agreements with agents would be recognized, except such as were emparened in written orders, or were in writing and accepted at the company's office. While

**Sewing Mach. Co. v. Hill, 136 N. C. 128, 48 S. 12. 57.**

**S8. Daniel v. Atlantic Coast Line R. Co., 136 N. C. 517, 48 S. E. 816.**

**S8. Where defendant's agent took an order for machinery which defendant refused to accept, it appeared that the agent had authority only to take orders subject to defendants approval. T. H. Baker & Co. v. Kellett-Chathnan Mach. Co. (Tex. Civ. App.) 84 S. V. 661. In an action on a note where the defense is payment to one other than the payee, the burden is on the defendant to show the authority of such person to receive payment. Higley v. Dennis (Tex. Civ. App.) 88 S. W. 400. It not being within the apparent authority of an agent selling a pump to guarantee that a boiler which the purchaser owned and was using would furnish sufficient power to do the work it was then doing and also run the pump, the purchaser to hold the seller thereon, must show such authority. Lucile Min. Co. v. Fairbanks, Morse & Co. (IKy.) 87 S. W. 1121.**

**S8. The agency cannot be proved by the testimony of another party as to a conversation with the alleged agent, that being mere hearsay. Broadstrev. Hall, 32 Ind. App. 122, 69 N. E. 415. Where the agents' authority consists in a resolution adopted by an executive committee, in charge of a celebration arranging _for_ the procurring of photographic work for a souvenir, such resolution is not an independent writing determining the scope of the agency, but that must be determined by the conduct and acts of the parties. Galvano Type Engringing Co. v. Jackson \[Conn.\] 60 A. 121. Evidence that an alleged agent had in various transactions acted as attorney for the party sought to be held is not competent to prove agency. Keegan v. Roek \[Iowa\] 102 N. W. 805. Where the estate counterclaimed for money alleged to have been received by claimant, as intestate's agent, for sale of a farm, and claimant alleged that he had fully accounted therefor, a writing signed by intestine in which she stated that she had given claimant $1,000, and to make it equal she thereby gave her daughter the same sum, was admissible as tending to show that the sum given to the daughter was a part of the farm money and was given her by claimant at intestine's direction. Vltity v. Peaslee's Estate, 76 V. 402, 57 A. 967. Oral evidence that one of two parties, having authority to sell lands, authorized the other to sign for him an agreement to sell a certain tract, is not excluded by the statute of frauds. Roe v. Smith, 42 Misc. 89, 85 N. Y. S. 527.**

\*\*S8. Evidence held sufficient: Of a sale of goods to defendant's authorized agent on defendants' account. Engel-Heller Co. v. Di-

**S8. Evidence held sufficient: Of a sale of goods to defendant's authorized agent on defendants' account.** Engel-Heller Co.

5 Cur. Law. AGENCY SS 1F. %1

ods pursued by a mere volunteer in his behalf, he is estopped to deny the agency." A lessee, who enters into possession .of premises under a lease executed by an agent, cannot deny the authority of the agent on the ground of his having no written authority." If a principal by his course of dealing holds out one as his agent to receive and credit money on securities and thus induces his creditors to pay money to such person, he is certainly concluded thereby. To permit the principal in such a case to deny the authority of the agent would be to perpetrate a fraud upon the debtor."

(SS 1) _F. Termination of relation._\[92\]--An agency for an indefinite time is terminable at will," but when a client gives his attorney a written assignment of a claim, to enable him to settle and adjust conflicting claims as he deems best, it is too late to revoke the attorney's authority after settlements have been made by him." If the contract of agency be for a fixed period," or the agency be coupled with an interest," it is revocable, but the principal will be liable for the damages caused by wrongful revocation." For there is a distinction between the power

proper decision of the question thus present-

toppel (5th Ed.) pp. 456, 457. And see Reindepends upon consideration of a neglected distinction between ratification and estopped. Lord Coke said, "the name 'estopped' or 'conclusion' was given because a man's own

90. Gleadull v. Kenney, 23 Pa. Super. Ct. 576.

ment to allege or plead the truth." However much this definition may have been criticised as vicious (Everest & Strode on Estopped, 9-16; Elseview on Estopped, 5), it is a brief statement of the effect of the essential principle of estopped, viz., "that, whenever one of two innocent persons must suffer by the act of a third, he who enables

such third person to occasion the loss must sustain it." Liebkarrow v. Mason, 27 T. R.

63: 1 Smith Lead. Cas. 759; Ewart on Estopped, 9. Ratification, on the other hand, means confirmation. "To rtify is to give sanction and validity to something done without authority," Evans, Principal and Agent (Bedford's Ed.) 90. The underlying principle upon which liability for ratification attaches is that he who has commanded is legally responsible for the direct results and for the natural and probable consequences of his conduct, and that it is immaterial whether that command was given before or after the conduct. The substance of estopped is the inducement to another to act to his prejudice. The substance of ratification is connextion after conduct. "This is enough," said Mr. Bigelow, "to indicate that there may be danger in using the term 'estopped' freely. It is common enough at present to speak of acqulescence and ratification as an estopped. Neither the one nor the other, however, can be more than part of an estopped at best. An estopped is a legal consequence--a right-

arising from acts or conduct, while acqulescence and ratification are but facts presupposing a situation incomplete in its legal aspect, i. e., not as yet attended with full legal consequences. The most that acqulescence or ratification can do--and this either may under circumstances do--to supply an element necessary to the estopped, and otherwise wanting, as e. g., knowledge of the fact at the time of making a misrepresentation. But each stands upon its own ground, and must be made out in its own way, not necessarily in the way required by the ordinary estopped by conduct." Bigelow on Estopped (5th Ed.) pp. 456, 457. And see Reindepends upon consideration of a neglected distinction between ratification and estopped. "Faternal Army of America v. Evans, 114 Ill. App. 578.

90. Gleadull v. Kenney, 23 Pa. Super. Ct. 576.

01. Dawson v. Wombles \[Mo. App.\] 86 S. W. 271.

01. See 3 C. L. 75.

01. Macfarren v. Gallinger, 210 Pa. 74, 59

01. 435; John L. Rowan & Co. v. Hull, 55 W.

01. Va. 357, # E. 22. An agency created for the simple payment over of money may be revoked at any time before payment. Commowned v. Fois, 23 Pa. Super. Ct. 558.

01. Foot v. Smythe \[Coic. App.\] 78 P. 619.

01. The revocation of a contract of agency

01. A fixed period, if permissible, can have no legal effect between the parties, until notified to the agent. Spinks v. Georgia

01. A power of attorney to vote stock is given for a fixed time, for a valuable consideration

and as a part of a contract transaction which would not have taken place without the execution of such power, a revocation of such power will be enjoined by preliminary in-

98. Rider v. Rider, 114 Ill. App. 202.

The law presumes that all general employments are at will merely, and the burden of proving employment for a definite time rests upon him who alleges it. John L. Rowan & Co. v. Hull, 55 W. Va. 355, 47 S. E. 92.

99. More commission or reward for services by an agent does not alone make the agency one coupled with an interest. John L. Rowan & Co. v. Hull, 55 W. Va. 335, 47 S.

01. John L. Rowan & Co. v. Hull, 55 W. Va. 335, 47 S.

01. Dealings between the and the right of revocation. If the principal has expressly or impliedly agreed to retain the agent for a definite time, he has the power, but not the right of revocation;\*\* but where there is no express or implied agreement that the agent shall be retained for a definite time, the power and right of revocation coincide." Under the statutes of Wisconsin providing for the recording of a power of attorney and a revocation thereof, and defining the term "conveyance,"3100 a power to convey real estate is not a conveyance and the recording of a revocation thereof does not terminate the power without actual notice to the agent.1 As a general rule, agency is revoked by the death of the principal, when not coupled with an interest.2 And the attempted appointment of an agent becomes nugatory upon the death of the principal.3 But if a gift has been once completed, so as fully to transfer the beneficial interest, according to mutual consent and so as to make a third party a trustee for carrying out the original purposes of the donation, or the donor's agent, the death of the donor leaves the gift unimpaired; and when a deed is delivered by the grantor to a third person, to be held until grantor's death and then to be recorded, such third person is not a mere agent whose authority is revoked by the grantor's death, but he may act after the death of the grantor and carry out the directions given him.5 The interest which can protect a power, after the death of a person who creates it, must be an interest in the thing itself; the power must be grafted on the estate. An interest in the proceeds of the property does not constitute an interest in the thing, the subject-matter of the power.8 A continuous violation of a stipulation in the contract of agency is good cause for discharge of the agent.7 The withdrawal of the subject of the agency by the principal terminates the agency.8 Where factors become * 5 Cur. Law. AGENCY SS 2A.

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where he acts contrary to instructions.\[41\] If an agent exceeds his powers by contracting for a price beyond his authority, the party contracted with may nevertheless recover a reasonable price within such authority.\[22\] The agent has the authority of the principal in all matters within the scope of the agency,\[23\] and so long as the agent acts merely as such, his acts, legally speaking, are the acts of his principal.\[24\] A third party cannot repudiate a contract made by an agent in behalf of his principal, when the latter has fulfilled the same in good faith, merely on the ground of a misunderstanding with the agent.\[28\] When the principal carries on business under an assumed name, he is liable to third persons for the acts of agents within the scope of their authority, to the same extent as if the business had been done in his actual name.\[29\] Implied powers may arise from a course of dealing\[27\] or conduct of the parties.\[28\]

Declarations or admissions of the agent, made without authority, or as to matters outside the scope of his authority,\[29\] do not bind the principal, but decla-self from the liability by any language put into the deed from his agent to him. Gage v. Cameron, 212 Ill. 146, 72 N. E. 204. An allegation, in pleading, of a settlement and opacity. Pease v. Francis, 25 R. L. 226, 55 A. accounting with a party, is supported by evf. \[68\]. Plaintiff represented by an agent to dence of an accounting with his agent. I dok after his interests in the division of Hayes v. Walker \[S. C.\] 48 S. E. 898. One who pays money to an authorized agent is entitled to credit therfore; he is not required to trace it into the hands of the principal, and the latter is bound by such payment, even though the agent fails to account for it. Helat, that an association was bound by payment made to its secretary, who was in -effect its general manager. Indiana Trust Co. v. International B. & L. Aksa(Ind. App.) \[74 N. E. 633. Where an officer of the government, having authority, appropriates private by public, admitting it to be private property, an implied contract with arise: and where, in the construction of vessels, a patented process of calling was used, the patented had a claim against the government. Brook's Case, 39 Ct. Cl. 494. Where an agent, having authority to do so, purchases goods for his principal, the latter is liable to the seller therer, although the agent wrongfully converts them to his own use. Austin v. Elk Mercantile Co. \[Vash.\] 80 P, 525. A retailer is responsible for the action of a clerk in delivering to a customer an article different from the one the customer desired to purchase. Block Light Co. v. Tappaponorn, 2 Ohio N. P. (N. S.) 553. The mere fact that an agent fails to report to his principal, in accordance with his authority, will not release the principal from liability on the contract made by the agent. Galvano Type Engraving Co. v. Jackson \[Conn.\] 60 A. 127. Where the suriety on an executor's bond authorized his attorney in fact to execute for him, as one of the sure-ties, "the bond required by the court." and the bond as executed, so far as valid, contained no provision in excess of the statute, although it was informal in certain respects, it was held that the surty was bound by it. Yost v. Ramev \[Va.\] 48 S. E. 862. Although a contract provides that all settlements of accounts under it are to be consummated only upon approval in writing from the home office, yet a settlement may be made without such approval, by an agent duly authorized to make a settlement in a particular cause its agent for the sale of lands, during * Cur. Law. AGENCY SS 2B.

- rations and admissions within the agent's authority are binding.\[20\] But the agency must first be shown.\[31\] Where the proof is conflicting as to when the agency of the person representing another actually terminated, evidence of all material and relevant declarations of such person, made during the entire period as to which there is evidence tending to show the existence of the agency, should be received.\[32\] And declarations of the agent as to the extent of his authority are admissible to show the inducing cause of the contract, when followed by independent proof of such agency.\[38\] Where one authorizes another to speak for him, he may be confronted by testimony as to what his representative said within the scope of his authority; but where the employment is purely mechanical, the master is not bound by what his servant says while at work.\[34\]
- _Evidence and proofs.\[35\]_--The admissions or declarations of the agent are received in evidence against the principal, not as admissions or declarations merely, but as parts of the res gestae.\[36\] The provisions of the Code of Georgia that the declarations of an agent "as to the business' transacted by him are not admissible against his principal, unless they were a part of the negotiation and constituting the res gestae, or else the agent be dead," are merely declaratory of the law existing when the code was adopted.\[37\]
- (SS 2) _B. Apparent authority and unauthorized or wrongful acts of agent; torus.\[38\]_--Acts of an agent within the apparent scope of his authority are binding on the principal,\[30\] and limitations of the agent's authority not brought to the knowledge of third persons do not affect them,\[30\] though binding as between a transaction, states that a particular tract \[Bank \[Ind.\] 72 N. E. 1027; Turner v. Turner does not belong to his principal, but was \[Ga.\] 50 S. E. 698; Prussian Nat. Ins. Co. of swamp 1ands. Iowa Railroad Land Co. v. Fehring \[Iowa\] 101 N. W. 120. And a separate agreement, signed by special agents in their individual capacity, is not admissible in evidence to bind the holder of an unconditional promissory note; as an agreement that, if the maker is unable to pay it, he may surrender the life insurance policy for which it was given. Thomas v. H. C. Bagley & Co., 119 Ga. 778, 47 S. E. 1177.
- 30 An admission made by an officer of a corporation, in the performance of his duties and acting within the scope of his authority, binds the corporation; and the presence or absence of the plaintiff, or any one representing him, is immaterial. And the admissions of the vice-president, in the absence of the president and while acting in his stead, will bind the corporation. Vincent v. Soper Lumber Co., 113 III. App. 483. Declarations of an agent in the nature of entries made in the regular course of the principal's business are, after the agent's death, admils-sible against the principal. Turner v. Turner \[Ga.\] 50 S. E. 698.
- 31 Sloan V. Sloan \[Or.\] 78 P. 893; Brittain v. Westall \[N. C.\] 49 S. E. 54, elting Francis v. Edwards, 77 N. C. 271; Gilbert v. James, 88 N. C. 244; Daniel V. Atlantic Coast \[Line R. Co., 136 N. C. 517, 48 S. E. 816; Fred W. Wolf Co. v. Galbraith \[Tex. Civ. App.\] 87 S. W. 390.
- 32 Porter v. Adams, 115 II. App. 439.
- 33 Singer Mtg. Co. v. Christian \[Pa.\] 60 A. 1087.
- 34 King v. Atlantic City Gas & Water Co., 70 N. J. Law, 679, 58 A. 345.
- 35 See 3 C. L. 78.
- 36 Blair-Baker Horse Co. v. First Nat.

principal and agent. \[41\] But if such limitations are known to the third party, the principal is not bound beyond the authority actually conferred, \[42\] and persons dealing with agents of limited powers must generally inquire as to the extent of their authority, \[43\] especially when dealing with an agent for the first time. \[44\] Persons dealing with agents are warranted in deducing the scope of the agent's apparent authority from the business he is permitted to conduct, \[45\] or the manner in which he is permitted to conduct it, \[46\] or from the nature of the agency. \[47\] Agency may, under some circumstances, be inferred in favor of a

tor !is bound by any contract which that other may make on his behalf, with a third party who has no knowledge of the secret arrangements between them. Ruane v. Murray, 26 Pa. Super. Ct. 187.

44. Maryland Casualty Co. v. Peoples, 26 Pa. Super. Ct. 142.

01. The principal has the unqualified right as between himself and the agent, to define or limit the agent's authority. Cullinan v. Bowker \[N. Y.\] 72 N. E. 911. If a person dealing with an agent knows that he is acting under a circumscribed and limited authority, and that his act is in excess of, or an abuse of the authority actually conferred, then, manifestly, the principal is not bound, and it is immaterial whether the agent is a general or a special one. Id. Where defended, ant knew that plaintiff's agent was a mere hired man employed only to look after cattle, he could not defend against an action for injury to cattle that plaintiff's agent authorized him to put his hulls in the feeding pens with plaintiff's cattle. Tramnell v. Turner \[Tex. Civ. App.\] 82 S. W. 325. When a third party has notice of the agency of the party with whom he deals, he must regard the property which is the subject of their transactions, as the property of the prin- cipal, and must confine his dealings strictly within the scope of the agent's authority. Merchants' and Mrfs.' Nat. Bank v. Ohio Val.

Fornitive Co. \[N. V. Va.\] 50 S. E. 880. A general agent cannot survive conditions, etc., in an insurance policy, which, by the very terms of the policy, can he waived only by certain officers of the Insurance company. Hutson v. Prudential Ins. Co. of America \[Ga.\] 50 S. E.,1000.

43. Tibbs v. Zirkle, 55 V. Va. 49, 48 S. E.

701; T. H. Baker & Co. v. Kellett-Chatham Mach. Co. \[Tex. Civ. App.\] 84 S. W. 661: Sulivant v. Jahren \[Kan.\] 79 P. 1071. A special power must be strictly pursued, and whoever deals with an agent constituted for a special purpose deals at his peril, when the agent passes the precise limit of his power. Stokes v. Dewees, 24 Pa. Super. Ct. 471. The law presumes that one dealing with an agent knows the extent of his authority. Cobb v. Glenn Boom & Lumber Co. \[W. Va.\] 49 S. E.

1005. A customer of a bank who is credited by the cashier, in his passbook, with sums of money owing him by such cashier, is bound to Inquire Into the authority of the cashier to do so. Hier v. Miller, 68 Kan. 258.

75 P. 77. One paying a debt, secured by a mortgage, to a supposed agent of the owner of the mortgage, must ascertain the scope of the agents' authority to receive the money. Cornish v. Woolverton \[Mont.\] 81 P. 4.

44. Lauer Brew. Co. v. Schmidt, 24 Pa. Super. Ct. 396.

01. Ruane v. Murray, 26 Pa. Super. Ct. 187: Lauer Brew. Co. v. Schmidt, 24 Pa. Super. Ct. 396. Powers habitually exercised by a cashier of a bank with its knowledge and consent. Third Nat. Bank v. Laboring-man's Mercantile & Mfg. Co. \[W. Va.\] 49 S. E. 544. Where plaintiff had for a long time transacted its business, of a nature similar to the transactions sued on, with a particle representative of defendant. Sloss Iron & Steel Co. v. Jackson Architectural Iron Works, 92 N. Y., S. 1056. Where a person had been represented as the superintendent and general manager of a firm, and had transacted its business from the start, including its financial affairs, and where defendant, for whom the money was borrowed, got it on the vote signed by such agent, held, as a matter of law, that he was the legally authorized 'zed agcnt of defendant. Fordsville Banking ?0. v. Thompson, 26 Ky. L. R. 534, 82 S. W.

01. Where one has been held out to the world as a general agent, a third party may deal with him as such and bind his prin- cipal until notice of revocation of authority by through home to him. Cranwell v. Clinton Realty Co. \[N. J. Eq.\] 53 A. 1030. Where

01. Jim permits an employee to transset business on his own account, under the name of a company, and holds him out as such company, it is estopped to deny his author- tying to take notes and transfer them to others dealing with him, in reliance upon his apparent authority. Gardner v. Wiley \[Or.\]

01. B. 341. Where the apparent manager of a business refers a party, inpainting as to matters connected with pending transactions, to others for his information, the principal is bound by the representations of such parties. Harer v. Northern Pac. R.

third party from proof of ownership.\[48\] An agent having negotiable paper in his possession for sale, indorsed in blank or otherwise by his principal, so as to permit transfer of title by delivery, may be regarded, by those having no notice of the agency, as the owner of such paper.\[49\]

_Evidence and questions of fact.\[50\]_--Apparent authority may be shown by showing a custom.\[51\] While the board of directors or trustees is the usual governing body of all private corporations and entitled to direct and control all its business and to direct its other officers, yet the president and other officers are those who are usually brought into contact with third parties in the conduct of the business of the organization; and custom and usage and the necessities of the social order demand that these executive officers should be regarded as entitled to bind the organization in all matters which such organizations are accustomed to transact through such officers.\[52\]

_Unauthorized and tortious acts.\[54\]_--Acts of an agent without the scope of his authority will not bind his principal unless ratified by him;\[54\] and where the principal repudiates a transaction as soon as it comes to his knowledge, notifying the other party, he cannot be said to have ratified it.\[58\] The principal cannot be held liable for the unauthorized acts of his agent simply because those acts were done with the intent to benefit or serve the principal.\[56\] A person to the performance of the duty required of him by his principal. American Tel. & T. Co v. Green \[Ind.\] 73 N. B. 707. As to third parties, the liability of the principal for the acts of his agent is measured not merely by the authority actually given, but by the authority essential to the business of the agency. Laner Brew. Co. v. Schmidt, 24 Pa. Super. Ct. 396. It rests with the principal to determine what character he will impart to his agent, and having determined and imparted the character, he is held to have intended, also, the usual and legal attributes of that agency. T. H. Baker & Co. v. Keller-Chatham Maech. Co. \[Tex. Civ. App.\] 84 S. W. 661. A shipper may rely upon the authority of a station agent to make a special contract of shipment by a particular train, and need not prove any such authority, it being within the scope of his authority as a station agent. Pacific Exp. Co. v. Needham \[Tex. Civ. App.\] 83 S. W. 22.

48. As between the owner of hansman cabs and the drivers. Connor v. Pennsylvania R. Co., 24 Pa. Super. Ct. 241; Walton v. Ensign, 6 Ohio C. C. (N. S.) 300.

01. Merchants' & Mfrev. Nat. Bank v. Ohio Val. Furniture Co. \[Vv. Va.\] 50 S. E. 880.

01. See 3 C. L. 81.

01. As a custom among carriers and warehousmen to construre a consignment, under an agreement to hold until freight charges are paid, as creating an agency for collection only. Lembeck v. Jarvis Terminal Cold Storage Co. \[N. J. Eq.\] 53 A. 560.

01. Russell v. Washington Sav. Bank, 23 App. D. C. 388.

01. See 3 C. L. 82.

01. Jos. Schlitz Brew. Co. v. Grimmon \[Nev.\] 81 P. 48; Quale v. Hazel \[S. D.\] 104 N. W. 215. Unauthorized agreement by super-intendent that company would pay for phy-eiclan's services to employe. King v. Forbes Lithograph Mfg, Co., 183 Mass. 301, 67 N. E. 330. Unauthorized acts of its officers not is not bound by the unauthorized acts of another, done without his knowledge,"" unless he has permitted the alleged agent to hold himself out as such; but the party dealing with him as agent must be deceived to his prejudice by the false representation." The agent cannot bind his principal by fraudulent contracts entered into with full knowledge and connivance of the party who seeks to recover on the contract."

Fraud, misrepresentation or tortious acts by the agent may 'be imputed to the principal." but the burden of proving the agency is on the plaintiff." And where the agent is guilty of an independent fraud for his own benefit, the law does not impute to the principal notice of such fraud." Where the consideration for a note and mortgage, negotiated by an agent, is contrary to public policy, the obligee therein, if he claims the benefit of it, is bound by the acts of his agent in negotiating it." Under the statutes of Washington forbidding usury, the acts of the agent in loaning money bind the principal and he is held thereby to the same extent as if he had acted in person," and where a broker loaned defendant's money at illegal rates of interest, the transaction was held usurious as against defendant, although he received no part of the commissions and had no knowledge of it." Before a master can be held responsible for the torts of his servant, it must be clearly shown that the latter had express or implied authority to commit the wrong," and the agent must have been at the time engaged in the principal's business and the tort must have been committed while the agent was carrying out such business." Where the wife acts as the agent of the husband, he is responsible for her negligent acts, in the course of her employment, to the injury of a third person." Under the Code of Louisiana, masters are responsible for damages occasioned by their servants only in the "exercise of the functions in which they are employed," and are not liable for collateral torts committed by servants while attending to the duties of their employment." A creditor who employs an attorney only to attach his cred itor's goods is not liable for the unauthorized act of the attorney ir causing the debtor's arrest.\[70\] A government is not responsible for the tortious acts of its officers without previous authorization or subsequent ratification.\[71\]

(SS 2) \_C. Particular kinds of agencies.\[72\]--\_The powers of a general agent are to be determined by the scope of his agency,\[73\] while a special agent has only such power as is expressly conferred,\[74\] or necessarily implied from authority expressly given;\[75\] and he cannot depart from his strict instructions and bind his principal.\[76\] The general principles are further illustrated by the cases grouped

70. West v. A. F. Messick's Grocery Co., 24 Pa. Super. Ct. 396. A deputy is regarded as a general agent of a sheriff, being general- \[N. C.\] 50 S. E. 565.

01. Washington L & T. Co.'s Case, 39 Ct.

if in all the duties' confided to the latter, \[Tifany, Real Prop. 937; subscription of corporate stock by agent, see Helliwell, Stock & Stockholders, SS 70. L. 83. 513. But in Pennsylvania a America (Ga.) 59 S. E. 1000; Cullinan v. Bowker (N. Y.) 72 N. E. 911. The general agent of a railroad company will be presumed to have authority to make a contract for carriage beyond its lines. Northern Pac. R. Co. v. American Trading Co., 25 S. Ct. 84. The president of a bank or the vice-president acting in his stead is its chief representative and entitled to act as its general agent in the transaction of its business. He can employ counsel to appear for it and defend its interests in pending or prospective litigation. Russell v. Washington Sav. Bank, 23 App. D. C. 398. Where a broker is employed to transact all the business of a particular kind of his principal, he is a general agent. Maryland Casuality Co. v. Peoples, 26 Pa. Super. Ct. 143. An instruction that "a general agent is defined under the law to be one empowered to transact all his principal' business" is sustained by the authorities, and cannot mislead a jury, as they must understand it to refer only to the kind of business transaction by the principal. Aetna Indemity Co. v. Ladd (C. C. A.) 135 F. 636. It a party holds out his agent to the world as a general agent in the transaction of his business, any contract made by him, within the scope of that business, will bind the principal, although there may be, as between principal and agent, a restriction upon the agent's general authority. Maryland Casuality Co. v. Peoples, 26 Pa. Super. Ct. 142. The powers of a general agent extend to the doing of all acts connected with the business of his principal, and his authority will be deemed to include all usual means for the effective performance of his duties, in the employment of clerlexs, or of subordinate agencies, for the performance of acts, where an exercise of the agent's judgment or discretion is not demanded nor presumed. Cullinan v. Bowker (N. Y.) 72 N. E. 911. The general agent of a quartics company, having powers co-ex- 1ensive with the business of the company, can bind his principal in a contract of release of claim for damages by an employee. American Quarries Co. v. Lay (Ind. App.) 73 N. E. 608. A general agency in a particular branch of the principal's business implies no power in connection with any other branch. Lauer Brew. Co. v. Schmidt, in the notes.71 An _insurance_ solicitor is an agent of the insurer, notwithstanding-

- 77. Power to sell reality: Power of ex-

vertices of will to make a valid contract for

the principal, with notice of the facts, rati-

sale of land. Cooloughy R. Ransberry, 23 Pa.

See the transaction; but when the authority

Super. Ct. 97. A broker employed to sell

lands has no implied authority to sign a

contract to sell on behalf of his principal.

Sullivan v, Jahren \[Kan.\] 79 F. 1071. A

written power to sell land does not In itself

not given, but he is authorized to buy and

include the power to option. Thibs v. Zirkle,

65 W. Va. 49, 46 S. E. 701. A power of at-

pay cash, he is by implication authorized to

forney authorizing the sale, by quiclaim

does for such price, upon such terms of

V. Westfall \[X. C.\] 49 S. E. 54. Where a per-

credit and to such terms as the attorneys

saw ft, of the whole or any part of certain

promises, did not authorize the conveyance

ducting his business independently, he la in

of a part of the land in consideration of

money expended in the defense of a certain

called "agency" for the sale of products.

suit to recover a part of the land. Brown v.

Lauer Brew, Co. v. Schmidt, 24 Pa, Super. Ct.

Orange County \[Tex. Civ. App.\] 13 Tex. Ct. 396.

Rep. 138, 85 S. W. 247. A power of attorney,

General sales agents: Construction of con-

authorizing the sale of lands for cash or

tract of agency for sale of goods within a

notes, does not confer the authority to exce-

cate a feed without consideration. Rogera v.

Mfg. Co. v. Bryson \[Iowa\] 103 N. W. 1016.

Tompkins \[Tex. Civ. App.\] 87 S. W. 379.

Contract to give plaintiff the right to sell

Where the terms of a power of attorney can

ill the company's product for five years, at

not by any construction be said to author-

a commission of 51 per car, for Joe shipped

ize the execution of a feed, it will not be

from its plant, held to be an employment to

presumed that the deed was executed there-

end; nor will the proof of such a power

of attorney be in itself sufficient to sustain

a finding that the deed was executed without

authority. Brown v. Orange County \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 133, 88 S. W. 247.

A sales agent whose duties are to take orders

Pover to buy or sell personality: Contract

held to be one of agency and not of condi-

v. Draey & Avery Co. \[Ohio\] 73 N. E. 468.

the process of a person's product for five years, at

14 \[C. C. A.\] 137 F. 802. An agency for a

fixed period where It is stipulated that the

agent is to receive commissions for his services

is in the nature of a contract of letting

and Ihrling. Spinkv, Georgia Quilney Grant

tic Co. \[La\] 83 No. 824. Authority to

change goods as agent cannot be implied from

subentity to sell goods and devote

the proceeds to a particular purpose. Kelly

v. Tracy & Avery Co. \[Ohio\] 73 N. E. 468.

A contract which empowered an agent to sell

personal property at any price he saw ft,

and to pay the owners a fixed price when

sold and to retain the balance as his com-

mission, held to be an agency contract.

Briggs v. Foster \[C. C. A.\] 137 F. 773. Authority to sell does not confer authority to

mortrigge. Wycoff, Seeman & Benedelt v.

Davis \[Iowa\] 103 N. W. 349, Authority to

sell horses does not imply authority to deal

with them in any other way, as to exchange

them for other property. Roberts v. Francis

\[VWs.\] 100 N. W. 1076. An agent authorized

to conduct purchases and sales cannot, in the

course of such transactions, obligate his principal

cipal to pay the debt of another by the

purchase of lumber at a price sufficiently above

the market price to cover the indebtedness

owing to the vendor by an insolvent corporation. Pacific Lumber Co. v. Morfat \[C. C. A.\]

134 F. 826. Where an agent had authority

to take notes of responsible parties for

chines sold. held, that he had no power to

bind his principal by the indorsement of

such notes. Natuional Fence Mach. Co. v.

Eligheyman \[Kan.\] 80 P. 668. When an

agent is supplied with funds, he cannot purchase on credit, unless, perhaps, such is the

Terminal Cold Storage Co. \[N. J. Eu.\] 89 ing a clause in the policy to the effect that he should be the agent of the insured as to all statements and answers made in the application.\[78\]

A. $60. An authority to collect and settle a claim involves the exercise of a personal discretion, which cannot be delegated, and does not imply authority to submit the claim to arbitration. Allen V. Confederate, but he claims of the first claim a note and mortgage on which the latter has failed to negotiate a loan does not give rise to an agency to borrow small- or sums of money for a wholly different purpose than that for which the original note and mortgage were executed. Keegan v. Rock \[Iowa\] 102 N, W, 805. Mortgages employed an attorney, before taking a mortgage, to see that it was a first item, and he certified falsely that it was such, whereupon they gave their check to the attorney, payable to the mortgage. The latter is endorsed the check to the attorney to pay out the first mortgage, and he emphasized the money. Held, that the attorney was agent for the mortgage and he must bear the loss. Trustees of Synod of Reformed Pres. Church V. Livingston \[Fz.\] 60 A. 154. Powers with reference to commercial paper: Power given to sign one's name to any note or "like instrument" necessary in the management of an estate held to authorize the signing of his name to the renewal of a note in connection with the business of the estate. Stone v. McGregor \[Tex. CIV. App.\] 84 S. W. 399. Corporate and Insurance agents: Lensees of hansom cab and horse held ballee and not agent of railroad company, Connor v. Pennsylvania R. Co., 24 P. Super. Co. 241. A corporation can act only by agents, and its duly elected officers are, within the scope of their respective duties, its agents to deal with third parties. Russell v. Washington Sav. Bank, 23 App. D. C. 398. The president of a bank has no inherent authority, by virtue of his office, to enter into contracts or agreements which will bind the corpora. Third Nat. Bank v. Laborinmann's Mercantile & Mfg. Co., Vv., 49 S. E. 544. citing Stokes v. N. J. Pottery Co., 46 N. J. Law, 237. The secretary of a corporation has no power merely as secretary to make contracts binding the corporation. Cobb v. Glenn Boom & Lumber Co. \[W. Va.\] 49 S. E. 1005. The cashfer of a bank has no implied authority to pay his individual debts by crediting them upon the passbook of a customer of the bank and allowing him to check out the full amount, the bank receiving nothing in the transaction. Elfer v. Miller, 68 Kan. 258, 75 P. 77. Authority of station agent to accept and hold cattle, intended for transportation, as a depositary during a short delay in shipment. Flint v. Boston & M. R. Co. \[N. J.\] 59 A. 938. A railroad agent, authorized to place cars along the line at points other than stations, to receive freight, has authority to make agreements in behalf of the company to receive such freight to await the arrival of cars, so as to make the company liable to an action for damage to cotton seed by exposure to the elements, while 5 Curr. L.--6.

**AGENCY $\\lx@sectionsign$ 2D.** 5 Cur. Law.

($\\lx@sectionsign$ 2) _D. Ratification by principal."_--One may ratify a previously unauthorized act, done in his behalf which he himself might have and may still lawfully do or might and may still lawfully delegate to another.${}^{\\aleph}$ Ratification may be by mere acquiescence or failure to act,${}^{\\aleph}$ for a considerable length of time,${}^{\\aleph}$

Co. \[Ga.\] 51 S. E. 290, citing Brooke v. W. U. Tel. Co., 119 Ga. 694. Where a party individually, and as trustee under her husband's will, appoints agents to manage her personal property or that of the estate, the relation between them is simply that of principal and agents and they do not become trustees of any property to which their principal is entitled. Myer v. Abbett, 94 N. Y. 8. 238. A mortgagor prouring insurance on mortgaged premises for the mortgage as his interest may appear, in accordance with an agreement to do so, is not in any sense the agent of the mortgage. Agner v, Firemen's Ins. Co., 2 Ohio N. P. (N. 8.) 254. A party who obtains money on chantler mortgage, upon property already so mortgaged, is not the agent of the first mortgage, so as to bind the latter by his representations to the second mortgage in negotiating the loan. Citiens' State Bank V. Smith, 125 Iowa, 505, 101 N. W. 172. Where it is not alleged or shown that a co-defendant, in a suit to restrain interference with certain ditches, was the agent of the owner of the land, who is plaintiff, or authorized to represent him, and the other defendants are not connected with his statements, the defendants are not estopped to deny plaintiffsight to the use of the ditch, by any representations of such co-defendant. Campbell v. Flannery \[Mont.\] 79 P. 702. An agency to purchase a certain execution does not imply an authority to purchase the land upon which such execution has been leveld. Hood v. Hendrickson \[Ga.\] 50 S. E. 994. Under a power of attorney contained in a lease but one judgment in election can be condensed. Philadelphia v. Johnson, 23 Pa. Super. Ct. 591. The occupancy of premises, after the expiration of a lease, by an unauthorized officer of the United States, will not have the effect of continuing such lease. Smoot's Case, 38 Ct. Ct. 413. It is a general principle that officers of the United States, in their official capacity, are special agents only and must act within their legally prescribed limitations, and a subordinate officer has no authority to bind the government beyond his delegated powers. Houser's Case, 39 Ct. Ct. 508. Where the charter party provided that war risks should be borne by the United States and marine risks by the owners, a quartermaster had no authority, by oral assurances, to make the government liable for any further risks than the charter party provided, attendant upon the delivery to the transport fleet of a cargo of fresh water during a strong wind and a high sea. Donald's Case, 39 Ct. Ct. 357. A statute giving holders of claims against the state the right to sue thereon in the superior court does not render the state liable for negligence of its officers or agents but merely waives its former immunity from suit. Act Wash. March 20, 1895 (Sess. Laws, p. 188). Billings v. State, 27 Wash. 288, 67 P. 583. The words "agency" and "agent," in connection with or by positive acts, such as the adoption,"33 acceptance,"44 execution of a contract made through the alleged agent,"85 or the acceptance of benefits resulting from the unauthorized act.86 The principal must have full knowledge of all material

81. Where the maker of a note signed -- East Tennessee Tel. Co. \[Ky.\] 86 S. W. tho names of two relatives without authority, and the latter, after notice of the fact by acknowledgment of the same when by the payee, did not repudiate the same -- facts at the time of ratification;" and his act must also be voluntary." Ratification cannot be partial." Ratification is equivalent to an original grant of authority;" and cures any defect in the execution of a power." Ratification is usually a question of fact for the jury."

(SS 2) \_E. Undisclosed agency."--\_An undisclosed principal may avail himself of a contract made by his agent." Although a mining lease may be so executed by an agent as to bind himself only, yet his principal is entitled to ratify it and sue thereon." An agent contracting in his own name for an undisclosed principal may sue on the contract in his own name."

87. Third Nat. Bank v. Laboringman's \[ tion made in his behalf, which is beneficial, Mercantile & Mfg. Co. \[W. Va.\] 49 S. E. 544; and repudiate the rest. Shafer v. Rue. Bank of Commerce v. Miller, 105 D. All. App. 224; Sullivant v. Jahren \[Kan.\] 79 P. 1071; Kalophringman's Mercantile & Mfg. Co. \[W. Stefrens v. Nelson \[Minn.\] 102 N. W. 871; Va.\] 49 S. E. 544. The contract ratified Stewart v. Harris, 91 N. Y. 8. 485: Prichard v. Stigafus, 91 N. Y. S. 152; Quale v. Hasel \[Pa.\] 60 A. 1087. If a principal elects to affirm a sale made by his know that he would not be bound without needs thereof. Stewart v. Harris, 91 N. Y. Super. Ct. 64, citing Pittsburg & Steuben. 8. 488.

ville R. Co. v. Gazzam, 32 Pa. 340; Moore's Ex's v. Patterson, 28 Pa. 605; Zoechisch v. Rauch, 133 Pa. 532. Acts relied on as a ratification must be shown to have been done with full knowledge of all the material facts relating to the transaction. Facts not sufficient to show ratification of agency so as to render principal hide for agent's commission. Downing v. Buck \[Mich.\] 98 N. W. 388. The principal cannot be held to have acquessed in or ratified any unauthorized understanding with his agent, in the absence of any showing that he had actual knowledge of such understanding. As a statement made by the vendor of a horse, to the agent sent to get it, that the title to the horse was to remain in the vendor until payment was made. Schenck v. Griffth \[Ark.\] 86 S. W. 850. The acceptance of part of the purchase price of property sold by an agent will not operate as a ratification of an unauthorized transaction, where the principal is not aware of the illegal acts of the agent. Chase v. Basker-ville, 93 Minn. 402, 101 N. W. 950. Although a collector has endorsed checks payable to his principal and paid over the money, his principal cannot be held to have authorized the practice when he had no knowledge, and no means of knowing of it. Goodell v. Sinclair & Co., 112 411, App. 594. A petition setting up a ratification by the principal of a contract made with his agent must allege full knowledge by the principal of all the facts in order to show ratification. Butler v. Standard Guaranty & Trust Co. \[Ga.\] 50 S. E. 132.

SS. Munis v. Oliver, 24 Pa. Super. Ct. 64, citing Thrall v. Wilson, 17 Pa. Super. Ct. 876; Third Nat. Bank v. Laboringman's Mercantile & Mfg. Co. \[W. Va.\] 49 S. E. 544.

SS. Autlmann Threshing & Engine Co. v. Knoll \[Kan.\] 79 P. 1074; Shinn v. Guyton & H. Muhle Co. \[Mo. App.\] 83 S. W. 1016.

A ratification of part of an unauthorized transaction of an agent is a confirmation of the whole. Downaglac Mfg. Co. v. Trelek-son \[N. D.\] 100 N. W. 117. One cannot adopt a part of an unauthorized transaction of an unauthorized transaction. The current state of the art is the same as the one of the other.

5 Cur. Law. AGENCY SS 2F.

(SS 2) \_F. Notice to agent."\_Notice to an agent in the course of his employment is notice to the principal." But the knowledge of an agent's agent, the latter not being also an agent of the principal, is not imputable to the principal." And knowledge or notice not gained by the agent in the course of his employment cannot be imputed to the principal.1 Nor is there a presumption that the agent has communicated to the principal facts coming to his knowledge as agent, when he has interests in the transaction adverse to those of his principal.2

wife's land. Simons v. Wittmann \[Mo. App.\]

Insurance. Agent's knowledge of the use of Intoxicating liquor by the Insured. Mutual Life Ins. Co. v. Allen, 113 III. App, SS9.

98. Pursley v. Stahley \[Ga.\] 60 S. E. 139; Metropolitan Life Ins. Co. v. Sullivan, 112

Where a medical examiner is an agent of a Metropolitan Life Insurance company, notice.to, or knowl-III. App. 500; Mack Mfg. Co. v. Smoot &

edge possessed by, him of matters material to the risk is notlee to the company with respect to something material to the and prevents forfeiture of the policy for business in which the agent is employed.

World v. Troutman, 113 III. App. 84. Knowl-Marah v. Wheeler \[Conn.\] 69 A. 410. Where one directs another to aperiale land offered as security for a loan, procure an abstract and determine whether the title is good, he is charged with notice of a recorded provision in the policy voiding it, in such case. Johnson v. Aetna Ins. Co. \[Ga.\] 61 S. E. 260. Notice to an agent who purchases a note that it is tainted with unity. Byul thence of notice in this case held insuffu-clent. Haynes v. Gay \[Vwash.\] 79 P. 74.

Service of a notice, provided for in the ordinary granting a franchise to a water company, upon the superintendent, held suffient. Illinois Trust & Sav. Bank V. Pon.

ground of contributory negligence in rid-tiac, 112 IIL App. 545. Where the president of a corporation purchases goods of it for his individual business and had them shipped to his place of business, the knowledge of his agents and clerks as to the terms of the sales made to him was held to be his knowledge. Consolidated Fruit Jar

Co. v. Wisner, 103 App. Div. 453, 93 N. Y.

S. 128. The knowledge of agents of a bank that a party is insolvent, and that certain transactions with him are intended to give the bank a preference over other creditors, is knowledge of the bank. Jack: man v. Bau Claire Nat. Bank \[Wis.\] 104 N. W. 98. Where an agent had knowledge of a simulated conveyance of a homesetad by a husband and wife, but elected to loan his principal?'s money on the security of the island, the agent's knowledge was imputable to the principal and she was stopped there by. Morril v. Bosley \[Tex. Civ. App.\] 13

Tex. CL. Rep. 529, 88 S. W. 519. One who, through an agent, joins In the redemption of property, is bound by the knowledge which the agent has of the equities in the property. Coomb v. Barker \[Mont.\] 79 P.

1. Knowledge of a servant or agent of an animal's vicious propensities will be implemented to the master, when such servant or agent has charge or control over the animal. Lynch v. Kineth, 36 Wash. 368, 78 P. 923. False statements made in an application for insurance, with the knowl-edge and at the suggestion of the agent, will not affect the company's liability on the policy issued thereon. American Ins.

World v. Troutman, 113 III. App. 84. Knowl-Marah v. Wheeler \[Conn.\] 69 A. 410. Where one directs another to aperiale land offered as security for a loan, procure an abstract and determine whether the title is good, he is charged with notice of a recorded provision in the policy voiding it, in such case. Johnson v. Aetna Ins. Co. \[Ga.\] 61 S. E. 260. Notice to an agent who purchases a note that it is tainted with unity. Byul the knowledge and without the pro-clent. Haynes v. Gay \[Vwash.\] 79 P. 74.

1. Service of a notice, provided for in the ordinary granting a franchise to a water company, upon the superintendent, held suffient. Illinois Trust & Sav. Bank V. Pon.

ground of contributory negligence in rid-tiac, 112 IIL App. 545. Where the president of a corporation purchases goods of it for his individual business and had them shipped to his place of business, the knowledge of the agents's build-edge of his agents and clerks as to the terms of his Insurance terms of the sales made to him was held to be his knowledge. Consolidated Fruit Jar

v. Union Stock Yards Co. \[Key.\] 87 S. W. 285.

1. Notice by the attorney of a city, given to the attorney of claimant for damages from a defective sidewalk in another suit brought against the owner of the walk, is not such notice as can be made the basis of an action by the city against the own-ran v. Chair Claire Nat. Bank \[Wis.\] 104 N. W. 98. Where an agent had knowledge of a simulated conveyance of a homesetad by a husband and wife, but elected to loan his principal?'s money on the security of the island, the agent's knowledge was imputable to the principal and she was stopped there by. Morril v. Bosley \[Tex. C (SS 8). _G. Remedies, pleading, procedure and proof._"_Third persons_ contracting with the agent of an undisclosed principal may, on discovery of the real principal, elect to pursue either principal or agent,_" but cannot hold both._" The appropriation, otherwise than by attachment or execution, of furniture or other property found on demised premises, does not amount to an election by the landlord to hold the agent rather than the principal for the balance of unpaid rent,_"_ nor does the rendering of an account to an agent for rent due, or the charging of the account against the agent._" When suit is brought against the agent of an undisclosed principal and the agent discloses the principal, who is then brought in as a party defendant, plaintiff, upon establishing his case against them, must elect against which he will take judgment._" It is always competent for a person dealing with an agent to show that the latter's acts, in excess of his express authority, are nevertheless within the scope of the authority which the principal has permitted him to assume, or which, by a course of dealing or otherwise, he has been held out by the principal, either to the public in general or to the person dealing with him, as possessing._" In an action against an agent of an undisclosed principal and the principal, when disclosed, the testimony of the agent that he bought the goods in his own name, but really for the principal whom he did not disclose, is admissible and sufficient to make a case against both agent and principal._" An agent may be contradicted, after proper foundation laid, by showing that he has made contradictory statements as to the matters in issue, even though his statements were no part of the res gestae._" It is always competent for the principal to show the scope and extent of the agent's authority._"\_

_pointed to carry out the designs of the cor-_laws. City Trust, Safe Deposit & Surety_ _poration or its officers, such receiver is to be deemed the agent of the adversaries of the creditors. Harrigan v. Gilchrist, 121 Wis. 127, 98 N. W. 909,_"_

_1. **See 3 C. L. 90.**_

_4. \*\*Where guano was sold to a married man and the vendors used his wife as a concealed principal, the finding of the jury for the plaintiffs on the facts, where the evidence was conflicting, was not disturbed. Holbrook v. Hodgson Cotton Co. \[Ga.\] 50 S. E. 916. An undisclosed principal is bound by the acts of his agent, within the scope of his authority, although the party dealing with him may have known the principal under another name. Phillips v. International Text Book Co., 26 Pa. Super. Ct. 230. Where a stockbroker orders the purchase or sale of stocks through a firm of stockbrokers for a client of his, such firm has a right of action against the client, as an undisclosed principal. Kinser v. Meas-ney, 98 App. Div. 420, 90 N. Y. S. 327. Where a husband ordered materials for a house built on his wife's lot, without stating to whom they were to be charged, and the wife directed alterations while the work was in progress, she was held liable as an undisclosed principal. Whipple v. Webb, 44 Misc. 332, 89 N. Y. S. 900. Where the authorized agent of an undisclosed principal procures a bond from a surety company, to enable him to procure a liquor tax certificate, the principal is liable to the surty company for a judgment and costs which it is required to pay on account of the agent's violation of the liquor laws. City Trust, Safe Deposit & Surety_

_1. \*\*See 4 Misc. 334, 89 N. Y. S. 900. Where the authorized agent of an undisclosed principal procures a bond from a surety company, to enable him to procure a liquor tax certificate, the principal is liable to the surty company for a judgment and costs which it is required to pay on account of the agent's violation of the liquor laws. City Trust, Safe Deposit & Surety_

_1. \*\*See 4 Misc. 335, 89 N. Y. S. 900. Where the authorized agent of an undisclosed principal procures a bond from a surety company, to enable him to procure a liquor tax certificate, the principal is liable to the surty company for a judgment and costs which it is required to pay on account of the agent's violation of the liquor laws._"\_

_2. \*\*See 4 Misc. 336, 89 N. Y. S. 900. Where the authorized agent of an undisclosed principal procures a bond from a surety company, to enable him to procure a liquor tax certificate, the principal is liable to the surty company for a judgment and costs which it is required to pay on account of the agent's violation of the liquor laws._"\_

_3. \*\*See 4 Misc. 337, 89 N. Y. S. 900. Where the authorized agent of an undisclosed principal procures a bond from a surety company, to enable him to procure a liquor tax certificate, the principal is liable to the surty company for a judgment and costs which it is required to pay on account of the agent's violation of the liquor laws._"\_

_4. \*\*See 4 Misc. 338, 89 N. Y. S. 900. Where the authorized agent of an undisclosed principal procures a bond from a surety company, to enable him to procure a liquor tax certificate, the principal is liable to the surty company for a judgment and costs which it is required to pay on account of the agent's violation of the liquor laws._"\_

_5. \*\*See 4 Misc. 339, 89 N. Y. S. 900. Where the authorized agent of an undisclosed principal procures a bond from a surety company, to enable him to procure a liquor tax certificate, the principal is liable to the surty company for a judgment and costs which it is required to pay on account of the agent's violation of the liquor laws._" 5 Cur. Law. AGENCY SS 3.

Where one ratifies a broker's sale upon the latter's erroneous statement as to the price received and in ignorance of the truth, he may disaffirm or affirm the sale upon discovery of the facts.\[13\]

A party to a written contract cannot have it rescended on the ground that certain representations, not embodied in the contract, were made by the agent of the other party to induce him to sign, when the contract has printed on its back a warning that the company will not be bound by any statements not contained in the contract and that no agent has any authority to bind the company by any other representations or statements than such as are contained in the contract.\[14\]

In seeking to charge the principal with the knowledge of an agent, if the relationship is such that actual knowledge by the principal would be imputed to the agent, such relation should be set out, or knowledge should be alleged in the principal and no mention made of the agent.\[15\] Actual knowledge should be alleged, and not the facts from which it might be inferred.\[16\] An allegation that materials were furnished through a specified agent, for which defendant was obligated to pay, is good on general demurrer, inasmuch as it authorized proof of the agent's authority.\[17\] The fact of estoppel to deny the agency of one who has been permitted to hold himself out as an agent, to the prejudice of a third party, must be both pleaded and proved.\[18\] A verified account, attached to the petition in an action against an agent of an undisclosed principal, is evidence against the agent only and cannot be used against the principal when disclosed by the agent.\[19\] Proof of ratification includes proof of agency and authority and may be made under a pleading charging the ratified act to be that of the principal.\[20\]

SS 3. _Rights and liabilities of agent as to third persons.\[21\]_--An agent acting within his authority and disclosing his principal is not personally liable.\[22\] An agent who undertakes to bind his principal but fails to do so because of want of authority binds himself.\[23\] But this rule needs qualification and cannot be said to be universally true or correct.\[24\] The great weight of modern authority is that the agent is not personally bound by the contract itself and cannot be held liable in an action thereon.\[25\] But the party who is misled, or who parts with something of value, or otherwise acquires legal rights, can maintain a special action on the case, under the common-law procedure, or an action upon an implied assumpsit, under the code practice, when the agent has received the con sideration, or an action for damages.26 And the measure of damages is what plaintiff lost, or the amount of money paid out, or the value of services rendered, or special damages sustained on account of the agent's wrong.27 In Iowa, an insurance agent who effects insurance for an insolvent foreign company, without procuring a certificate from the state auditor, is liable to the insured for the loss, although he did not know of the company's insolvency.28 The agent is personally liable when he purports to act as principal, the other party having no knowledge of the agency,29 or when purporting to act as agent, he does not disclose the name of his principal.30 But the general statement should not be construed as requiring the agent under all circumstances to expressly declare his agency and the name of his principal, regardless of whether the person dealing with him knows the facts or is chargeable with knowledge thereof from circumstances brought to his attention. Where one deals with the agent of a known principal in the regular course of conducting the principal's business by such agent, the presumption, in the absence of any evidence to the contrary, is that the credit is extended to the principal.81 Under the express provisions of the Mississippi Code, if a party conducts a business as "agent," "factor," "and company," or the like, without conspicuously disclosing by a sign the name of his principal, the property used in his business is liable for his debts.32 He is personally liable to persons injured by his negligence.33 An agent who receives money paid on a contract for the purchase of real estate, made by his principal, cannot be held liable in an action by the purchaser to recover the money back on proof of facts which would entitle the purchaser to rescind the contract.34 But, under some circumstances, the agent having received the money, as long as it is in his possession, an action may be maintained against him to recover it back, if the principal is not authorized to receive it, or if he originally obtained it wrongfully.38 Although an agent executes an instrument in his own name, he will not be personally bound unless the language clearly shows such intent.39 Where a shipper contracts with a railroad company to carry a certain number

25. Hall v. Crandall, 29 Cal. 567, 89 Am. Dec. 64: Reinhard, Ag. $ 307: Clark on Contracts, 274. 26. Le Roy v. Jacobosky, 136 N. C. 443, 48 S. E. 796, citing Delius v. Cawthorn, 13 N. C. 59. 27. Where the action proceeds, in pleadings and evidence, on the theory of the agent's personal liability, there can be no recovery on the theory of damages for a false assertion of authority. Le Roy v. Jacobosky, 136 N. C. 443, 48 S. E. 796. 28. Hartman v. Hollowell \[Iowa\] 102 N. V. 524. 29. When an agent makes a lease under seal in his own name, evidence is inadmissible to show that he executed only as agent and in behalf of his principal. Anderson v. Connor, 87 N. Y. S. 449. 30. And this is so, although the person contracting with the agent knew that he was acting as agent, if the name of the principal is not disclosed. Hunter v. Adobe \[Tex. Civ. App.\] $ $ $ $. W. 622. Parties who sign a lease to a fictitious corporation, as its president and vice-president, are individually liable. for rent on the lease, although it is under seal. Schenkberg v. Treadwell, 94 N. Y. S. 418. But the rule does not apply where to contract relation to the agent's opinion, but it is not the case.

of cattle, it is immaterial to the company whether the shipper acts for himself alone or as agent for another also."

_Evidence, proof and procedure._\[88\]--When a contract is made with an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it." An agent guaranteeing an account for his employer, and being compelled by agreement to pay the same weekly, becomes in law the assignee of the account and is entitled to sue in attachment in his own name." Money paid by the agent upon the fraudulent representation that the principal had not paid for certain purchases, may be recovered under the common count for money had and received."

**SS 4**. _Mutual rights, duties and liabilities. A. In general; contract of agency; diligence and good faith._\[42\]--The agent must use reasonable care and diligence in the business of his principal," \[43\] act in good faith," \[44\] and keep his principal informed as to facts regarding the subject of his agency," \[45\] and is liable

**37**. Quif, etc., R. Co. v. Brown & William-

**a gift of lands by her to him, was the free,**

**son \[Tex. Civ. App.\] 86 S. W. 53.**

**38**. See 3 C. L. 94.\*\*

**39**. A lease made by partners, "essors,\*\*

\*\*agents of the 8. heirs," binds them person-

**so confidential a character as to require a.**

**Adoue \[Tex. Civ. App.\] 86 S. W. 622.**

**40**. McLane v. Colburn, 2 Ohio N. P. (N. S.) 257.\*\*

**41**. Johnson v. Cate \[Vt.\] 69 A. 830.\*\*

**42**. See 3 C. L. 94.\*\*

**43**. In the employment of an agent, the\*\*

**principal bargains for the disinterested skill,**

**missing and recalf the agent for his own**

**exclusive benefit. The presumption is, that the**

**the principal knows his own interests and**

**object better than the agent; and the agent is bound to carry out the principal's plans.**

**Dazey v. Roleau, 111 11, Arp. 867. A request to an agent from his principal for action in the line of the agency is equivalent to a command. A letter from the principal to a preference held to be in the nature of instructions. British American Ins. Co. v. Wilson \[Conn.\] 60 A. 293.**

**Where a party is made an agent for the payment of money to another, it is his duty to use it as directed or return it to the principal. Commonwealth v. Folz, 23 Pa. Super. Ct. 558. Bankers are held to the exercise of ordinary care in making loans as agents for the lender. Watson v. Fagner, 105 11. App. 62.**

**44**. Dazey v. Roleau, 111 11. App. 867.\*\*

**Whether a corporation be treated as an enlarged and amplified form of partnership,**

**and the director as managing partner, or whether he is called an agent or trustee,**

**elected by the stockholders to represent**

**them in the management of the concern, he occupies a fiducary position and is essentially within the rule which requires agents,**

\*\*attroversy, bailies, partners, trustees or other fiducaries, to exercise the highest degree of good faith as to all matters con-

**were of**

**found in**

**the property committed to their care. Oliver v. Oliver, 118 6a. 362, 45 S. E. 232.**

**Purchase of unimproved farm lands,**

**etc., by an agent in charge thereof.**

**Van**

**Dusen v. Bigelow \[N. D.\] 100 N. W. 723.**

**Where the**
**ed**
**son of an aged woman**

**has a her general agent, in the**

**himself he must make full disclosures to transaction of her business, the burden of**

**proof was held to be on him to show that**

\*\*ceals such facts the conveyance is void for damages resulting from default in either respect.40 An agent cannot make a profit for himself in the business of his agency.41 A party cannot act as the agent of another in making a contract for himself.48 But he may, upon the failure of his principal's negotiations and the termination of his fiduciary relation, make negotiations on his own account in the same matter.49 And an agent for the collection of rents and the care of lands, who occupies lands adjoining those of his principal, is not estopped by the relationship from acquiring title by adverse possession to a parcel of land near the common boundary.50 A co-agent under a power to sell is not bound by an unauthorized option given by the other agent, if not given or ratified by himself, and if he purchases the land for himself, he cannot be held as a trustee for the claimant under the option.51 Where plaintiff, in making a loan to defendant to take up certain other debts, did not act as defendant's agent in purchasing such debts, he was entitled to demand from defendant the full amount of the debts, although he secured them at a discount.52

(SS 4) B. Accounting, settlement and reimbursement.53--All profits and benefits resulting from acts of an agent, whether in accordance with, or in violation of, his authority, belong to the principal.54 The contract of an agent for his principal is the contract of the principal.56

When the principal and agent go over the agent's account as submitted by him, and the principal agrees that the charges are satisfactory and the account correct, the agent is entitled to recover the balance shown in his favor.56 Where

## 5 Cur. Law. AGENCY SS 4C.

no suggestion is made by the agents that money remitted is in excess of the proceeds of sales, the principal's appropriation of it in partial settlement of accounts is conclusive \[57\]. In case of the death of the agent who has received money for investment, the burden of showing either payment or accounting rests on his representatives \[58\].

(SS 4) _C. Compensation of agent_\[59\]--The right to compensation and the amount thereof is usually determinable from the contract between the parties \[60\]. Where the agent sues for commissions, the burden rests upon him to prove an agreement to pay the commissions \[61\]. Where an agent relies upon a custom as part of his contract of employment, he must show it to be so certain, continuous, uniform; well-known and of so long standing, that it can be said that the parties contracted with reference thereto \[62\]. Performance by the agent is a condition precedent to the right to compensation \[63\] but modification of a contract,

paid note sold by prinendpal to agent. Hoskins' Adm'x v. Morton \[Ky.\] SS 8. W. 742.

S7. Cushman v. Snow, 186 Mass. 169, 71

N. E. 529.

S8. In re Brown's Estate \[Pa.\] 60 A. 149,

Arlinstruction that if money, for which the estate counterclaimed, was shown to have

finding of a purchaser of land at $100 an come into claimant's hands, the burden was

on him to account for it as having been

who agrees to take the land at that price, paid to intestine or disposed of according

either in cash or on such terms as the

to her directions, approved. Vitity v. Peas-

lee's Estate, 76 V. 402, 57 A. 967.

59. See SS 5. L. 97.

01. Claim of agent for commission on

rie v. Bright, 26 Ky., L. R. 1021, SS 8. W. direct sales made by prinend within agent's

$85. Evidence held insufficient to establish

district; contract construed. McCay Engin-

nerring Co. v. Crocker-Wheeler Elee. Co.

(Md.) 60 A. 443. A contract providing for

mathematical work of the original work of made by the agent,"4 or groundless refusal of the principal"6 to carry it out, will not defeat the agent's right to coinmissions or reasonable compensation for services rendered."60 Fraud on the part of the agent destroys his right to commissions.61 If an agent employs a subagent to do the whole or any part of that which he is employed to do, without the knowledge or consent of his principal, inasmuch as there is no privity between the principal and the subagent, the latter will not be entitled to claim compensation from the principal.62 The rights as to commissions, of subagents appointed by an agent of limited powers acting under special agreement as to compensation, are controlled by the terms of the actual contract made by the agent with the principal.63

(SS 4) _D. Remedies, pleading, procedure, and proof.64_--In case of complicated transactions characterized by mistake, oversight or fraud, the court of chancery has jurisdiction of proceedings by the principal to effect a settlement with his agent.65 But the principal cannot support a bill for recovery of money for an injunction and for a receiver on illegal contracts and dealings by an agent in his behalf.66 An agent, who fraudulently takes title in his own name to real 92 N. Y. S. 917.

66. Although the prIncipl may revoke mislions, evidence held sufficient to show that the sales were made within his territory and that he was entitled to commissions under the terms of his contract. McGehem v. Gaar, Scott & Co. \[Wis.\] 100 N. W. 1072.

01. Where an agent, who was working on a monthly salary, upon receiving notice that his compensation would thereafter depend upon a commission, immediately replied by letter declining to continue under such terms, which letter defendant claimed not to have received, but continued the services of the agent, the finding of the jury that the original contract had not been modified was sustained. Lee v. Huron Indeminty Union \[Mich.\] 97 N. W. 109.

01. Where a company arbitrarily and wrongfully terminates a partially performed contract for the sale of machinery, the agent may sue the company for the breach of contract or for the value of his services rendered. Richardson Machinery Co. v. Swartzel \[Kan.\] 79 P. 660. Where the prIncipl repudiates all that the agent has done under a definite contract of employment, the agent is not bound by the compensation named in the agreement, but is entitled to whatever his services are worth, to be recovered in an action against the principal. Foot v. Smythe \[Co. App.\] 78 P. 619. Where the principal reslends his contract for the sale of real estate and revokes the agency before the expiration of the time allowed for the consummination of the sale, the agent is entitled to the commission agreed to be paid and can recover the same. Harrison v. Auggerson, 115 II. App. 236. Where a contract, made with an attorney for five per cent commission to collect claims against the United States for excessive duties charged was violated by the prIncipl's failing to furnish the attorney with the necessary data, and by the employment of another attorney to prosecute the claims, the plaintiff attorney was held entitled to recover the percentage stipulated without proof of services rendered or their reasonable value. Carlisle v. Barnes, 92 N. Y. S. 917.

01. Although the prIncipl may revoke mislions, evidence held sufficient to show that the agency, he cannot thereby escape liability for a reasonable compensation for any work done by the agent before the revocation. New Kanawha Coal & Min. Co., \[Wis.\] 100 N. W. 1072.

01. Where an agent was employed to take charge of and rent real estate, under a contract revocable at the Will of the principal, receiving a percentage of the rents as compensation, and the agency was revoked after property had been rented but before any rent had been collected, it was held that the agent was entitled to a reasonable compensation. Id. When an agent was his principal for damages for nonfulfillment of orders on which commissions were to be paid, he must prove by competent evidence that such sales were made, or liabilities resulting therefrom have been paid by the agent. Telegrams and letters received from a representative of a witness in Europe are incompetent evidence of such sales, being mere hearsay. Kirby Lumber Co. v. Cummings & Co. \[Tex. Clv. App.\] 87 S. W. 231. In case of a contract of agency for a fixed time, upon commissions, alleged want of due diligence, not complained of or acted upon during the period of employment, Is no defense against the agents's claim for commissionless. Spinks v. Georgia Quiney Granite Co. \[La.\] 88 So.

01. Where an agent has by contract the exclusive right to sell certain goods, for a specified time, within a particular territory, and the principal violates the contract by the sale of such goods in the territory specified, and refuses to allow the agent anything therefor, the agent can recover only such actual damages as he can show that he has sustained. LaFavorite Rubber Mfg. Co. v. H. Channon Co., 113 II. App. 411.

01. A real estate broker who attempts to represent both parties in a transaction, without their knowledge and consent, forfeits all right to compensation or commissions from either. Green v. Southern States Lumber Co. \[Ala.\] 37 So. 670.

01. Bond v. Hord \[Mont.\] 78 P. 579.

01. Brown, Chipley & Co. v. Haigh, 113 La, 563, 87 So. 478.

5 Cur. Law. AGENCY SS 4D.

estate which he was authorized to purchase for his principal, repudiates the agency, violates the terms of the agency and seeks to speculate off his principal, will be held to be a trustee ex maleficio, as to the real estate so secured.\[12\] And as to any property purchased as agent, in his own name, he will, in equity, be held to be the trustee of the principal, even though he pays the price himself; and, upon repayment of the money so advanced, he will be required to transfer the property so acquired to his principal.\[14\] If the agent disposes of his principal's property without authority, the act may be disavowed and set aside by the owner, even in the hands of an innocent purchaser. And if the agent purchases property with his principal's funds, the latter may follow it into the hands of a third person who purchases it for value, though that person be innocent and has no notice of the rights of the principal.\[16\] The principal retains title to goods in the hands of his agent until sold, and then to the proceeds, at least until paid by the agent, and may pursue both agent and purchaser until he has obtained satisfaction of his debt.\[17\] The principal may repudiate an unauthorized transaction by his agent and replevy property transferred in such transaction;\[18\] and he may replevy personal property, pledged by the agent as security for a loan, when unauthorized by himself, without repaying the loan.\[17\] Princi-pals can pursue both the original buyers and del credere factors for payment, where the latter become indebted to their principals for goods designed to them and sold on credit.\[19\] The relation of principal and agent does not prevent an action of tort by the principal against the agent,\[20\] and in such case the measure of damages is the same as if the relation did not exist.\[21\] The mere fact that defendant assumed to act as plaintiff's agcnt would not entitle plaintiff to recover in an action of deceit. The agency must be proved,\[22\] and the fact that the agent, in ease of deviation from his principal's instructions, intended it as a benefit to the principal, is no defense.\[23\] Among other available remedies, as between principal and agent, illustrated in the notes, is an action for money had and received,\[24\] for conversion of property of the principal,\[25\] and for breach

70. See 3 C. L. 59.

01. Charlesworth v. Whitow, Lake & Co. \[Arl.\] 85. S. W., 423.

01. Where a money loaner established an agency for the negotiation of loans at extortionate rates, and on contracts void as against public policy, and his agent claimed the business as his own and refused to account. Woodson v. Hopkins \[Miss.\] 37 So. 1000.

01. Harrison v. Craven \[Mo.\] 87 S. W., 962.

01. Morris v. Reigel \[S. D.\] 101 N. W., 1086.

01. Gussner v. Hawks \[N. D.\] 101 N. W., 898.

01. Cushman v. Snow, 186 Mass. 169, 71 N. E. 599; Gussner v. Hawks \[N. D.\] 101 N. W., 895.

01. Where an agent without authority exchanged his principal's horses for other property and the principal notified the third party of his repudiation of the trade, he was relieved from tendering a return of the property received before commencing repelvin. Roberts v. Francis \[Wis.\] 100 N. W., 1076.

01. Wycoff v. Davis \[Iowa\] 103 N. W., 849.

01. Cushman v. Snow, 186 Mass. 169, 71 N. E. 529.

01. An action based on agent's fraud and deceit. Miller v. John, 111 Ill. App. 56.

01. The damages must be such as are a probable and natural result of the breach. Harrison v. Craven \[Mo.\] 87 S. W. 962.

01. Action for false and fraudulent representations as to value of lands and concealment of an offer for the same. Brinson v. Exley \[Ga.\] 49 S. E. 810.

01. Dazey v. Roleau, 11 Ill. App. 367.

01. A right of action accretes to the prin-cipal to recover money, collected by his agent, whose duty is to remitt without an accounting, as soon as the money is paid to him, and the statue of limitations begins to run then. Jewell v. Jewell's Estate \[Michel.\] 102 N. W. 1059. But by prin-cipal against agent to recover an item of compensation claimed to have been a dupli-cate payment: claim not established. Phelps, Dodge & Co. v. Miller \[Tex. Civ. App.\] 83 S. W. 218. An agent for the collection of rents is liable to his principal's grantee for rents collected after the recording of the deed. Dempsey v. Zittel, 90 N. Y. S. 1064.

Where long continued dealings between principals and agents have existed, during which assignments have been made to the agents and remittances made by them, with of the contract of agency.**\[89\]** The profits of an agent's transactions can be recovered by the principal;**\[**88**\]** and where the profit has been made by a fraudulent violation of the agent's duties, the principal may waive the tort and recover for money had and received, or may counterclaim in an action by the agent for compensation.**\[**90**\]** The principal can recover moneys paid out by his agent without authority.**\[**91**\]** A bank holding stock claimed by different persons and willing to account for and deliver it to the parties entitled thereto, is entitled to bring a bill of interpleader.**\[**92**\]**-**The existence of the relation of principal and agent may operate as evidence that acts done by the latter are done in behalf of the former.**\[**93**\]\*\* An allegation that defendant made and executed a written contract may be supported by evidence that it was executed in his behalf by his duly authorized agent previously empowered to do so, or that, although the contract was authorized in the first instance, it was nevertheless ratified subsequently by the principal.**\[**94**\]** AAGICULTURE.1\*\*\*\*

**SS 1. Regulation (94).** **SS 2. Agrieultural Societies (96).** **SS 2. Cropping Contracts, Products and Crop Llens (95).**\*\*

**SS 1.** _Regulation._\*\*\*\*\[**88**\]**-**As the pursuit of agriculture affords peculiar opportunity for imposition and fraud, the subject has become largely regulated by statutes whose validity is sustained as an exercise of the police power.**\[**89**\]** Among others are regulations concerning purchase and sale of seeds,**\[**89**\]** and the growth or suppression of weeds.**\[**89**\]**

**out a final accounting, the agents being largely indebted to the principals during the entire time, and the agents finally become resolved.**\[**89**\]\*\* **So. An action based on disobedience of** **could not establish a defense against a suit by the principals, by selecting an arbitrary date to establish an overpayment by the agents, based simply upon the agents' method of bookkeeping. Cushman v. Snow, 186 Mass. 169, 71 N. E. 529. An agent who agrees to pay over a certain sum of money, upon the collection by him of certain notes held, is not liable to his principal, as for a collection of all the notes, when he has allowed a renewal of the balance of the notes after the collection of a part of them. Dickinson v. Motley Co., 80 N. Y. S. 286. Where an agent has made profits by a fraudulent violation of his duties, the principal may waive the tort and sue him for money had and received. Schick v. Suttle \[Minn.\] 102 N. W. 217.** **SS3. Where a sales agent illegally obtains possession of property and sells it violation of the specific terms upon which sales were authorized by the owner, an action of conversion will lie against him. Chase v. Baskerville, 93 Minn, 402, 101 N. W. 950. And where lumber was received by agents, under such circumstances that their failure to discover and account therror would amount to gross negligence, they are liable for its value, unless they can show that they still have the lumber and can account for its loss, whether they are remunerated by the agents' actions.**\[**89**\]\*\* **So. An action based on disobedience of** **the principals, by selecting an arbitrary date to establish an overpayment by the agents, based simply upon the agents' method of bookkeeping. Cushman v. Snow, 186 Mass. 169, 71 N. E. 529. An agent who agrees to pay over a certain sum of money, upon the collection by him of certain notes held, is not liable to his principal, as for a collection of all the notes, when he has allowed a renewal of the balance of the notes after the collection of a part of them. Dickinson v. Motley Co., 80 N. Y. S. 286. Where an agent has made profits by a fraudulent violation of his duties, the principal may waive the tort and sue him for money had and received. Schick v. Suttle \[Minn.\] 102 N. W. 217.** **SS3. Where a sales agent illegally obtains possession of property and sells it in violation of the specific terms upon which sales were authorized by the owner, an action of conversion will lie against him. Chase v. Baskerville, 93 Minn, 402, 101 N. W. 950. And where lumber was received by agents, under such circumstances that their failure to discover and account therror would amount to gross negligence, they are liable for its value, unless they can show that they still have the lumber and can account for its loss, whether they are remunerated by the agents' actions.**\[**89**\]\*\* **So. An action based on disobedience of** **the principals, by selecting an arbitrary date to establish an overpayment by the agents, based simply upon the agents' method of bookkeeping. Cushman v. Snow, 186 Mass. 169, 71 N. E. 529. An agent who agrees to pay over a certain sum of money, upon the collection by him of certain notes held, is not liable to his principal, as for a collection of all the notes, when he has allowed a renewal of the balance of the notes after the collection of a part of them. Dickinson v. Motley Co., 80 N. Y. S. 286. Where an agent has made profits by a fraudulent violation of his duties, the principal may waive the tort and sue him for money had and received. Schick v. Suttle \[Minn.\] 102 N. W. 102 N. W. 217.** \*\*SS3. Where a sales agent illegally obtains possession of property and sells it in violation of the specific terms upon which sales were authorized by the owner, an action of conversion will lie against him. Chase v. Baskerville, 93 Minn,

**5** Cur. Law.\*\*

**AGRICULTURE SS 2.**

**In order to claim the protection of the "fertilizer" statutes of Kentucky, one must have complied therewith.**

**SS 2.**_Cropping contracts, products and crop liens._**--The main distinction between a tenant and a cropper is that the former has an estate in the land while the latter has not." Some courts make a further distinction holding that a cropper is a mere servant of the landlord and has no right of ownership in the crop until it is divided;" but this distinction is not universal, many courts holding that he has an interest in the crop," which interest has been held sufficient to entitle his widow, after her year's support has been allotted out of it, to maintain conversion against the lessor.**11** The relation existing between the parties,**12** and the rights of each,**12** are governed by the terms of their contract. In those states where the cropper has an interest in the crop, if he dies before it is gathered his personal representatives are entitled to recover his interest, less the loss or damage caused by his death,**14** and the fact that a part of the crop has not been gathered cotton is grown. Bazemore v. State, 121 Ga.**

**119.** 49 S. E. 701.\*\*

**5.** Under Acts 1901, p. 283, e. 117, making it unlawful for a railroad company to per-lit Johnson grass to go to seed on its right of way and allowing adjoining owners to recover $26 if it so does, authorizes a re-coverry of such sum each time the railroad estate in the land for the term, and consume and go to seed on its right of way. Quil, etc., R. Co. v. Henderson for Tompkins \[Tex. Civ. App.\] $8 & W. 371. Put under the express provisions of such act, such owner cannot recover if the allows the grass com-munulated to his land to mature and go to seed. San Antonio & A. P. R. Co. v. Burns \[Tex.\] 13 Tex. Ct. Rep. 250, $7 & W. 1144.\*\*

**Such act is not unconsutriational as depriv.**

**using the railroad of property without due**

**per his share. Harrison v. Ricks, 71 N. C. 7: son & Tompkins \[Tex. Civ. App.\] $8 & W. 712: Haywood $71. Unless there is a nuisance or height.**

**erence ln permitting weeds to grow and**

**by. Rommersfeld \[Wis.\] $8 Am. St. Rep. 951, spread seed on adjacent lands, no action will lie except under statute. Harmon v. Stultz, 124 Iowa, 734, 100 N. W. $51. See, also, Ad-joining Owners, 6 C. L. 33; Nuisance, 4 C. L. 839.**

**6.** Where, in a suit for the purchase price of fertilizers, the plainified failed to show that he had complied with Ky. St. 1903, $ 1822, subsec. 8, the testimony of farmers was held competent, though there was no analysis by the director of the state experimental station. Hardy Paeking Co. v. Sprigg \[Ky.\] $4 & W. 532.\*\*

**7.** See 3 C. L. 137.\*\*

**8.** Taylor v. Donahoe \[VWs.\] 103 N. W. 109. See Landlord and Tennant, 4 C. L. 389.\*\*

**NOTE. Distinction between eropper and tenant: It is oftentimes quite difficult to determine whether a person who works the land of another on shares is a tenant or a mere cropper. This is a question determinable only by the agreement in each particul-lar case. Johnson v. Hoffman, 53 Mo. 504.**

**It appears from the authorities that the question to be determined in every case of cultivation of land on shares is: Does the contract give the landowner his share as**

\*\*and the fact that a part of the crop has not been gathereddoes not justify the owner of the land in refusing a demand, by the cropper's representatives, for a portion of the crop.\[18\] A cropper having the right to use the buildings, farm implements, stock and other personal property of the landlord, his contract is a personal one and is not assignable without the owner's consent.\[19\] That a cropper's husband lives with her on the farm and devotes his time and labor to raising the crop does not overcome the presumption of ownership by the wife.\[17\] A cropper holding over after the expiration of his contract becomes a trespasser.\[18\]

In some states statutes govern the right of a tenant to remove the crop without satisfying all liens.\[19\]

In some it is a misdemeanor for a cropper to desert.\[20\]

Cases dealing with the sufficiency of evidence in the various actions are shown in the notes.\[21\]

\_Liens.--\_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.\[22\]

A cropper having defaulted, the landlord must prove his damage, and the amount thereof is the extent of his lien on the cropper's share,\[23\] and this, or any lien of the landlord, is waived by allowing the cropper to remove his portion of the crop.\[24\] The lien for money furnished to gather a crop is subordinate to the landlord's lien for rent,\[25\] and does not extend to other crops growing on the leased premises.\[26\] One can enforce his lien only against the property subject thereto, or the proceeds thereof.\[27\]

## 3 Agricultural societies.\[28\]

Aider BY VEDICIC, ETO.; ALIBI, see latest topical index.

ALIENS.

**SS 1.** **Who are Allens (90).**

**SS 2.** **Disabillites and Privileges (97).**

**SS 3.** _A Agricultural societies.\[28\]_

Aider BY VEDICIC, ETO.; ALIBI, see latest topical index.

ALIENS.

**SS 3.** **Immigration, Exefusion and Exqui-alon (95).**

**SS 4.** **Naturalization (101).**

**SS 5.** \*\*Who are aliens.\[29\]--\*\*Native born children of alien parents are citizens.\[30\]

The political status of an alien is presumed to continue, and the mere fact of long residence in this country is insufficient to overcome this presumption.\[31\]

**15.** The representative is entitled tosue for conversion. Parker v. Brown, 186 N. C. 280, 48 S. E. 657. 21. In an action by a landowner to recover possession of a cropper's share of grain raised by him pursuant to a contract for Co. \[N. D.\] 101 N. W. 892. The owner of the land releasing all right to the crops crops, held, the evidence was insufficient to constrain of a cancellation of the contract, the title to the crop pests in the cropper and her husband has no title thereto. Id. 18. Kenney v. Apley .\[Mfch.\] 102 N. W. 854. 10. North Carolina: Under Code, $ 1759, providing that a tenant shall not remove the crop until satisfying all liens or giving the lesser 5 days' notice, it is no defense to a violation of this section that defendant had been damaged by a failure of the landlord to comply with the contract, and that such damage amounted to more than the rents and advancements. State v. Bell \[N. C.\] 49 S. E. 163. 20. A cropper leaving the land without returning is not guilty of a violation of Acts 1900, p. 140, c. 101, which deals with such croppers who have made a second contract, and being arrested, is entitled to a 5 Cur. Law. ALIENS SS 2. 97

SS 2. _Disabilities and privileges._\[32\]--Except as to personal property,\[33\] an alien, under the common law, has no inheritable blood,\[34\] and, if he takes at all, he must do so under the statutes of the state where the property is, or by the provisions of treaties,\[35\] treaties being regarded as part of the law of every state.\[26\] Aliens, whether resident or nonresident, are generally allowed the benefit of statutes allowing damages for wrongful death.\[37\] A question of preferring a resident over a nonresident claimant will not be considered in an inquiry as to the right of property.\[38\] Under Rev. St. SS 1068, aliens, whose government accords the same privilege to citizens of the United States, may prosecute claims against the United States in the court of claims and this right extends to aliens residing in the colonies of foreign governments,\[39\] and to corporate as well as to natural persons.\[40\] In Illinois the conservator of a nonresident alien lunatic may remove his ward's property from the state without showing that it is for the best interests of his ward,\[41\] and this right is not precluded by the fact that such property is in the hands of a resident conservator whose management is above criticism,\[42\] nor is such right to be considered as against public policy because if denied the property would escheat to the state upon the death of the alien.\[43\] Under the Spanish law, aliens may acquire and possess real property, exercise the industries and take part in all enterprises not reserved, by existing laws and regulations, to Spanish subjects.\[44\] The Maura decree was an administrative law for the benefit of the state. It did not abrogate nor regulate civil rights, but pertained solely to the acquisition, classification and tenure of state lands.\[45\]

31. Ehrlich v. Weber \[Tenn.\] 88 S. W. proceeds of the action will go to a nonresident alien, the laws of the allen's country authorising a similar recovery in favor of an an alien next of kin. Cleveland, etc., R. App.17 N. E. 255. This common-law rule case apparently overlaps the former ruling in 70 N. E. 829.

01. Ehrlich v. Weber \[Tenn.\] 88 S. W. Iowa may maintain an action in the state for an injury resulting in death to a resident alien, when it affirmatively appears that in-testates' sole helr was at the time of said death, and still is, a nonresident alien. Romano v. Capital City Brick & Pipe Co. Ibenko 101 N. W. 437.

01. Ohio: Nonresident aliens are entitled to claimed by alien heirs. State v, Ellis \[Kan.\] 79 P. 1066.

Tennessee: Code 1858, SS 1998-2000 are re-pealed by Acts 1875, p. 4, c. 2 (Shannon's Code, SS 3659, SS 3660), and hence the heir or heirs of an alien may take land by descent or otherwise as citizens of the United States. Ehrlich v. Weber \[Tenn.\] 88 S. W. 188. Acts 1875, p. 4, c. 2, and Acts 1888, p. 330, c. 250, SS 1, 2 construct, and latter held only to apply in a case in which all of the heirs are aliens. Id.

36. Where complainant bases his claim upon the provisions of a treaty, it is unnecessary for him to make a formal claim of his rights thereunder. Ehrlich v. Weber \[Tenn.\] 88 S. W. 188.

01. Indians: Under Burns' Ann. St. 1901, SS 285, as amended, providing an action for wrongful death, an administrator appointed in Indiana may sue in the courts of such state for the wrongful death of a resident, although the ultimate distribution of the 5 Curr. L--7.

SS 2. _Disabilities and privileges._\[32\]--Except as to personal property,\[33\] an alien, under the common law, has no inheritable blood,\[34\] and, if he takes at all, he must do so under the statutes of the state where the property is, or by the provisions of treaties,\[35\] treaties being regarded as part of the law of every state.\[26\] Aliens, whether resident or nonresident, are generally allowed the benefit of statutes allowing damages for wrongful death.\[37\] A question of preferring a resident over a nonresident claimant will not be considered in an inquiry as to the right of property.\[38\] Under Rev. St. SS 1068, aliens, whose government accords the same privilege to citizens of the United States, may prosecute claims against the United States in the court of claims and this right extends to aliens residing in the colonies of foreign governments,\[39\] and to corporate as well as to natural persons.\[40\] In Illinois the conservator of a nonresident alien lunatic may remove his ward's property from the state without showing that it is for the best interests of his ward,\[41\] and this right is not precluded by the fact that such property is in the hands of a resident conservator whose management is above criticism,\[42\] nor is such right to be considered as against public policy because if denied the property would escheat to the state upon the death of the alien.\[43\] Under the Spanish law, aliens may acquire and possess real property, exercise the industries and take part in all enterprises not reserved, by existing laws and regulations, to Spanish subjects.\[44\] The Maura decree was an administrative law for the benefit of the state. It did not abrogate nor regulate civil rights, but pertained solely to the acquisition, classification and tenure of state lands.\[45\]

31. Ehrlich v. Weber \[Tenn.\] 88 S. W. proceeds of the action will go to a nonresident alien, the laws of the allen's country authorising a similar recovery in favor of an alien next of kin. Cleveland As a general rule aliens are amenable to the laws of the country into which they may come, and may be prosecuted for violations of its criminal laws.\[46\] A citizen of Austria accused of crime in this country may be proceeded against by information.\[47\]

SS 3. _Immigration, exclusion and expulsion.\[48\]_--The power to exclude and deport aliens is inherent to government.\[49\] The statutes providing a penalty for bringing in diseased immigrants apply only to a case where the diseased person is brought in by the vessel as a passenger or voluntarily.\[50\] The constructions placed upon particular statutes are shown in the notes.\[51\]

The Chinese exclusion acts are assisted but not controlled by the treaty with China,\[52\] and have no application to Chinese persons, other than laborers, who were domiciled in this country prior to their adoption;\[53\] but they do apply to a Chinese person who is a native of and emigrates from Hongkong, a British possession.\[54\] Recent decisions as to the constitutionality of these acts are given in the notes.\[55\] One's status as a merchant or laborer is largely to be determined by the work in which he engages after his arrival in this country\[56\] or, if a minor, after his parents have permanently returned to China.\[57\] To be a merchant within the meaning of such laws, one must be engaged in buying and selling merchandise in his own name and at a fixed place of business.\[58\] A propriator of laundries who incidentally works for himself is not a laborer.\[59\] A Chinese merchant domiciled in the United States has the right to bring into this country minor children legally adopted by him in China, it being shown that the adoption was bona fide.\[60\] Placing a Chinese laborer in a detention shed is not a "landing" within the meaning of the law forbidding the master of any vessel from knowingly permitting any Chinese laborer to land,\[51\] and such Chinese laborer escaping from such confinement without the permission, convinance, knowledge or negligence of such master, the latter is not guilty of violating the statute.\[62\] The deportation of a

**46, 47. State v. Neighbaker \[Mo.\] 83 S. W.**

**56. A Chinese person entering on a merchant's certificate, but only continuing that occupation for fifteen months, after which to became a laborer, will be deported. Cheung Him Nin v. U. S. \[C. C. A.\] 133 F.**

**56. A Chinese person entering under a certificate granted by Chinese authorities and immediately upon his arrival here and continually thereafter engaging in work as a laborer, is liable to deportation. Ch'n Chio Fong v. United States \[C. C. A.\] 133 F.**

**57. United States v. Joe Diek, 134 F.**

\*\*58. A Chinese person who at the time of his arrest was working as a servant in a boarding house, and who since coming to this country had worked as a cook and as delivery man in a store in which he had no interest, is not a merchant within the meaning of the Chinese exclusion laws. Mar

**59. United States \[C. C. A.\] 133 F.**

\*\*59. United States v. Kol

\*\*50. Children admitted where it was shown that they had lived as members of his family and been supported by him in China for several years. Ex parte Fong

**51.** Act Cong. May 6, 1882, c. 126, $ 2 (22

**51.** 59), as amended by Act July 5, 1884, c. 120 (23 Stat. 115), considered. United States

**52.** 53. United States v. Seabury, 133 F. 983.

5 Cur. Law. ALIENS SS 3.

Chinese woman will be ordered, though to do so is equivalent to remanding her to perpetual slavery and degradation.\[83\] A Chinese woman unlawfully in this country does not by her marriage to a Chinese laborer, lawfully here, become entitled to remain here.\[94\]

Shipowners who have wrongfully brought aliens to this country and have received them back for deportation are not made absolute insurers of the return of the immigrants to the port from whence they came but are simply required to use a faithful and careful effort to carry out the duty so imposed.\[95\] In a prosecution for violating this duty a stipulation of ultimate facts is as binding on the courts as the specific evidentiary facts set out in such stipulation.\[96\]

\_Exclusion.\[97\]--\_The power to exclude and deport aliens resides in the Federal government,\[68\] and congress may entrust the duty of enforcing the laws on this subject to executive officers, acting either alone or in connection with the courts.\[99\] The Federal courts have no jurisdiction to review by habeas corpus proceedings the decision of a collector denying a Chinaman, claiming to be a citizen, the right to enter, unless an appeal is first taken to the Secretary of Commerce and Labor,\[96\] and in such a case a decision of affirmance by the latter is no less conclusive on the Federal courts than when the ground on which admission is claimed is domicile or belonging to a class excepted from the exclusion acts.\[71\] A petition for babeas corpus ought not to be entertained unless the court is satisfied that the petitioner can at least make out a prima facie case.\[72\] The decision of the board of inquiry that an alien is entitled to land is not res judicata of the question.\[73\]\_Registration.\[74\]--\_The Chinese exclusion act of 1893, as amended, requiring all "Chinese laborers" then within the United States to register, did not apply to Chinese merchants,\[73\] nor did it authorize the deportation of a Chinese merchant who continued in such business until after the time for registration had expired and then became a laborer through failure of his business, and was not provided with a certificate of registration.\[76\] As to the duty of registration, the test is capacity, not merely age.\[77\] Sickness may excuse a failure to register.\[78\]\_Certificate.\[79\]--\_A merchant's certificate not stating the estimated value of his business carried on in China, nor fully establishing his status as a merchant, does

63. United States v. Ah Sou \[C. C. A.\] ships be the ground upon which the right of entry is claimed. 28 Stat. at L. 372, 390, c. 301, construed. United States v. Ju Toy, 25 S. Ct. 644.

01. Especially where it was questionable whether the parties regarded the marriage as bona fide is no defense and the alleged husband has applied for a certificate of departure. United States v. Ah Sou, 138 F. 776 revg. 132 F. 878.

01. 26 Stat. at L. 1084, c. 551, construed. Hackfeldt & Co. v. United States, 25 S. Ct. 456.

01. So held in regard to a stipulation that escape of immigrants from ship was without fault on the part of defendant. Hackfeldt & Co. v. United States, 25 S. Ct. 456.

01. See 3 C. L. 142.

01. United States v. Foong King, 132 F. 107. See, also, United States v. Hung Chang \[C. C. A.\] 134 F. 19, and cases cited.

01. United States v. Hung Chang \[C. C. A.\] 134 F. 19, and cases cited. The constitutional guaranty of due process of law is not infringed by a statute making the decision of executive officers on the right of a Chinese person to enter this country conclusive on the Federal courts in habeas corpus proceedings in the absence of any abuse of authority, and this is true though. citizen-

01. This is a contradiction with the fact that the author is not a member of the Federal courts.\[73\] A.

01. The author is not a member of the Federal courts.\[73\] A.

01. The author is not a member of the Federal courts.\[73\] A.

01. United States v. Ah Sou \[C. C. A.\] ships be the ground upon which the right of entry is claimed. 28 Stat. at L. 372, 390, c. 301, construed. United States v. Ju Toy, 25 S. Ct. 644.

01. Mok Chung v. United States \[C. C. A.\] 133 F. 166.

71, 72. United States v. Ju Toy, 25 S. Ct. 644.

73. Does not prevent the Secretary of Commerce and Labor from instituting new proceedings within a year thereafter for a retrial of the question. 32 Stat. 1218, 1219, 1220 and 825, construed. Pearson v. Willems \[C. C. A.\] 136 F. 734.

01. See 3 C. L. 143.

75, 76. United States v. Leo Won Tong, 132 F. 190.

77. The fact that a Chinese laborer was a minor 19 or 20 years old held not to exempl him from registering. United States v. Joe Dick, 134 F. 88.

01. Evidence held insufficient to show that Chinese laborer failed to register because of sickness. Yee Yuen v. United States \[C. C. A.\] 133 F. 222.

01. See 3 C. L. 143.

not entitle him to enter or remain here.\[80\]

_Deportation; procedure.\[81\]_--A proceeding for the deportation of a Chinese person under the exclusion acts is civil in its nature,\[82\] and a plea of not guilty puts in issue two questions: First, is defendant a Chinese person or a person of Chinese descent? Second, if so is he entitled to be and remain in the United States?\[ss\] The burden of proving the first issue is on the United States;\[ss\] the burden of proving the second one on the defendant;\[s5\] but upon either issue proof to the satisfaction of the commissioner or court is all that is required,\[ss\] and in a few exceptional cases the facts have been held to raise a presumption that the defendant was entitled to remain.\[s7\] In determining whether defendant is a Chinese person or a person of Chinese descent, his color, dress, language, and manner of wearing his hair may be considered,\[ss\] and government inspectors and interpreters who state their ability to identify Chinese persons may testify, though they have no theoretical knowledge of the science of ethnology.\[ss\] Admissions or statements of a defendant made to the officers by whom he is arrested in answer to questions put by them either before or after his arrest are admissible against him,\[ss\] and the government has the right to call and examine him as a witness.\[s7\] A stipulation that the respondent has the petitioner in his custody and control confers jurisdiction on the court in the same manner as though the petitioner were produced in court.\[s7\] Chinese testimony must generally be corroborated by credible white witnesses,\[ss\] and if to the effect that defendant was born in this country and is a merchant, it is sufficient if supported by the testimony of credible white witnesses that they have seen and known defendant, since he was young, as the child of a resident Chinaman, and that defendant was for years employed in a store as a merchant and was reputed to be a partner therein.\[ss\] After a final order of deportation a Chinese person is not entitled to bail as a matter of right, and an application therefor is addressed to the sound discretion of the court.\[ss\] This discretion should be exercised with careful regard to the evidence and the special circumstances of the case.\[ss\] _New trial and appeal.\[ss\]_--As a general rule, a Chinese person, after exhausting.\[ss\] So held where defendant was designated as "Assistant Accountant in Kwong Yu Wing Shop, No. 47 Bonham Strand, Hong Kong." Cheung Pang v, United States \[C. C. A.\] 133 F. 392. 81. See 3 C. L. 143. 82, 83, 84. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 85. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 124 F. 19. 125. 86. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 87. 19. 88. Evidence that defendant was born in this country held insunMeient to sustain the burden resting on him in view of a previous statement made and signed by him after arrest that he was born in China. United States v. Wong Du Bew, 133 F. 236. 87. Where a proprieter of laundries had resided in this country for 19 years, had lost his certificate and in good faith had obtained a worthless duplicate, it was held that, in view of his apparent good faith and reputable character, the facts raised a presumption that he was entitled to remain.\[s7\] A.J. 133 F. 136. 88. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 89. 80. 81. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 81. 82. 83. 84. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 85. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 86. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 87. 19. 88. 89. 88. 89. 80. 81. 89. 81. 82. 83. 84. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 88. 85. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 86. United States v. Hung Chang \[C. C. A.\] 134 F. 19. 87. 19. 88. 89. 88. 89. 80. 81. 89. 81. 82. 83. 84. 85. 86. 87. 88. 89. 81. 88. 89. 81. 89. 82. 84. 88. 89. 80. 82. 84. 89. 83. 85. 86. 87. 88. 89. 88. 89. 89. 80. 81. 89. 81. 82. 84. 89. 81. 83. 84. 85. 86. 87. 88. 89. 89. 81. 88. 89. 82. 84. 89. 83. 85. 87. 89. 88. 89. 89. 80. 81. 89. 82. 84. 89. 85.

- 5Cur. Law. ALIMONY SS 1.

- 6The 1988 1. Nature and Purpose of the Allowance.\*\* (100).

- 7The 1988 1. The Decree; Its Enforcement and Discharge (107).

- 8S. Suits for Annimment and Actions for Separate Maintenance (100).

- 98So held where members of the family of a Chinese merchant domiciled in this country were denied admission. Ex parte Fong Yim, 134 F. 938; EX parte Ng Quong Ming, 135 F. 378. Appeal had not been dismissed nor anything done in reliance on the agreement. Ah TaI v. United States \[C. C. A.\] 135 F. 513.

- 109An TaI v. United States \[C. C. A.\] 135 F. 513.

- 1United States v. Hung Chang \[C. C. A.\] 134 F. 19.

- 2Mar Sing v. United States \[C. C. A.\] 137 F. 875.

- 3See 3C. C. L. 145.

- 4One foreign born appearing before a state court while yet a minor and making oauth that it is his bona fide intention to become a citizen of the United States and re-nouncing allegiance to all foreign sovereigns port allowed her in a judgment of divorce.11 The right to the former arises from a marriage not permanently dissolved; while in the case of a judgment of divorce an amount is allowed in the nature of support or pension.12 Alimony for the maintenance of the wife and support money for children are separate and distinct.13 Hence acceptance of a gross sum in discharge of a claim for alimony does not preclude application for and allowance of support money for children.14 In jurisdictions where a wife can claim alimony only when she is plaintiff,15 she may claim it in a suit by her husband for divorce when she becomes a plaintiff in reconvention by demanding separation from bed and board.16 Suit money and alimony may be allowed in a suit in equity by the wife relating to reality, where the husband puts in a cross bill praying for divorce.17

A court, in granting a divorce, has power to order the payment of alimony to the wife so long as she shall live, and require security therefor, and in such case the obligation, considered personal while defendant lives, is imposed on the security after his death.18 Though the former wife of a minor under guarianship, who has obtained a divorce with a decree for alimony, be regarded as a creditor of the ward, yet if she has not brought suit against the guardian, nor attached the ward's estate, nor levied an execution, she is not a party aggrieved entitled to appeal from a decree settling the guardian's accounts.19 In Louisiana, the recording of a judgment for alimony obtained by a wife against her husband in an action for separation from bed and board or for divorce creates a judicial mortgage.20

11. State v. Judge of Civ. Dist. Ct. for Parish of Orleans, Division C \[La.\] 38 So, 14.

01. The first is recovered in Louisiana under Civ. Code, art. 148; the second under art. 160. State v. Judge of Civ. Dist. Court for Parish of Orleans, Division C \[La.\] 38 So, 14.

01. Kontzer v. Kontzer, 112 Ill. App. 326.

01. Kontzer v. Kontzer, 112 Ill. App. 326.

Where the divorce decree awards the custody of minor children to the mother, but makes no provision for their maintenance, the fact that alimony in a gross sum is awarded the mother does not prevent her from recovering from the father, or his estate, for the expense of maintaining the children. Lokowski v. Lukowski, 108 Mo. App. 204, 83 S. W. 274.

15. As in Louisiana. Landreaux v. Landreaux \[La.\] 38 So. 442.

01. Landreaux v. Landreaux \[La.\] 38 So. 442.

01. Suit by wife to enjoin alleged fraudulent transfer and to cancel deed, and cross-bill by husband for divorce. Moiseley v. Larson \[Miss.\] 38 So. 234.

01. Wilson v. Hinman, 90 N. Y. S. 746.

01. Note! Cmmenting on Wilson v. Hinman, supra, a writer in the Michigan Law Review says: "The courts generally hold that the allowance of alimony payable in-stalments ceases upon the death of either the divorced husband or wife. Francis v. Francis, 31 Grat. \[Va.\] 283: Wallingsford v. Wallingsford, 6 Har. & J. \[Md.\] 485: Casteel

01. Casteel, 38 Ark. 478. And this is so even though the allowance is made to the wife during her life. Johns v. Johns, 44 App. Div. \[N. Y.\] 583; Lockwood v. Krum, 34 Ohio St. 1; Lennahan v. O'Keefe, 107 Ill.

01. In some states the court, in granting for Parish of Orleans, Division C \[La.\] 38 So. 14.

01. Kontzer v. Kontzer, 112 Ill. App. 326.

01. Kontzer v. Kontzer, 112 Ill. App. 326.

01. Where the divorce decree awards the custody of minor children to the mother, but makes no provision for their maintenance, the fact that alimony in a gross sum is awarded the mother does not prevent her from recovering from the father, or his estate, for the expense of maintaining the children. Lokowski v. Lukowski, 108 Mo. App. 204, 83 S. W. 274.

01. As in Louisiana. Landreaux v. Landreaux \[La.\] 38 So. 442.

01. Suit by wife to enjoin alleged fraudulent transfer and to cancel deed, and cross-bill by husband for divorce. Moiseley v. Larson \[Miss.\] 38 So. 234.

01. Wilson v. Hinman, 90 N. Y. S. 746.

01. Note! Cmmenting on Wilson v. Hinman, supra, a writer in the Michigan Law Review says: "The courts generally hold that the allowance of alimony payable in-stalments ceases upon the death of either the divorced husband or wife. Francis v. Francis, 31 Grat. \[Va.\] 283: Wallingsford v. Wallingsford, 6 Har. & J. \[Md.\] 485: Casteel

01. Casteel, 38 Ark. 478. And this is so even though the allowance is made to the wife during her life. Johns v. Johns, 44 App. Div. \[N. Y.\] 58 5 Cur. Law. ALIMONY SS 3. .

01. _Jurisdiction and power to award_.\[21\]--Though the court of the domicile of the marriage may, at suit of the wife, render a decree of divorce against the nonresident husband on constructive service, yet such court is without jurisdiction to render a decree for alimony or costs against the nonresident husband, not served with process and not appearing in the cause.\[22\] In granting a divorce, the chancellor has also full power to settle and adjust the property rights of the parties.\[23\] But unless as incidental to divorce or other relief, alimony can be decreed only in cases within the statute.\[24\] Thus the New Jersey statute, providing that a husband who has abandoned his wife without justifiable cause may be compelled to maintain her, does not warrant an allowance where husband and wife are living apart by mutual agreement.\[25\] Under New York statutes, where there is no abandonment by the husband, but the wife has been forced to leave him on account of cruel and inhuman treatment, the wife is entitled to temporary alimony in a separation action, without instituting criminal proceedings for abandonment before a magistrate.\[26\] In Arkansas, an independent action for alimony irrespective of divorce proceedings may be sustained, or alimony may be awarded in a suit for divorce, though a divorce is denied.\[27\] Under the Texas statute, a court has no authority to order payment of a monthly sum for the maintenance of children as a part of the final decree of divorce.\[28\] In Kansas where action is brought for divorce and division of property, the court may decree a division of property, though a divorce is refused.\[20\]

_Stage or condition of the divorce proceeding_.\[50\]--A decree of absolute divorce, with alimony, being obtained by a wife, the alimony allowed becomes a vested property right, and the decree is an adjudication of all questions relating to alimony which were or might have been litigated.\[31\] Similarly, after an order granting temporary alimony and attorney's fees has been duly passed, the court is without jurisdiction to revise or set it aside on any ground except one based on a change of circumstances subsequent to the granting of the order.\[35\] A change of circumstances being made to appear, the court has power to make such order, changing the original order, as will be just and equitable.\[33\] The dismissal of a complaint and counterclaim in a divorce action does not affect an order previously made for the payment of alimony, though payment was to be in monthly installments and none was due at the time of such dismissal.\[34\] In New York where final judgment fails to provide for support and maintenance of children, custody of whom has been awarded to the wife, and fails to reserve power to modify the order, the court has no power thereafter to modify its final decree by incorporating a provision as to support of children.\[35\] The same rule is applied in Missouri.\[36\]

The court has power to require the husband to pay the wife alimony for her support pending an appeal by her from a judgment of divorce.\[37\] Whether such alimony should be allowed in a particular case rests in the sound discretion of the trial court.\[38\] The denial of a motion for alimony pending an appeal made before the appeal was perfected is not res judicata precluding the granting of $\\varepsilon$ renewed motion after perfection of the appeal.\[39\]

**SS 4.**\_Reasons for and against. Provisional allowances.\[40\]--\_The purpose of allowing alimony pendente lite is to enable the wife to live meantime and to employ counsel who can properly present her case.\[41\] The allowance of such alimony is largely discretionary,\[42\] the respective financial conditions of the parties\[43\] and the conduct of each\[44\] being usually the determining factors. Usually the allowance will be made, if the necessary facts be made to appear,\[45\] whether the wife be

**34.**\_Shepard v. Shepard, 90 N. Y. S. 582._not one within the court's discretion. Lawrence v. Lawrence \[Ala.\] 37 So. 379._

**35.**\_Salomon v. Salomon, 101 App. Div. 43.\_Temporary alimony and counsel fees

**36.**_Where decree of divorce was entered,_

_not_ 5 Cur. Law. ALIMONY SS 4.

plaintiff or defendant.\[46\] Alimony may be granted for the payment of past expenses if such payment is necessary to enable the wife to further prosecute or defend her case.\[47\] The spouses must be living separately during the pendency of the suit for divorce in order to warrant alimony pendente lite.\[48\] But where suit has been instituted by the wife in good faith, a subsequent reconciliation with her husband and resumption of cohabitation is no bar to an allowance of fees for the attorney's services already rendered.\[49\] It is held in some states that the merits of the case will not be considered on an application for temporary alimony\[50\] further than is necessary to determine that the wife is proceeding in good faith, and not for the mere purpose of obtaining money from the husband.\[61\] But if the answer denies that there ever was a marriage, and that averment appears to be true, no alimony should be allowed.\[52\]

_Permanent allowances.\[53\]--A court should not decree permanent alimony to a wife living separate and apart from her husband, in the absence of facts showing an obligation of the husband to support her under those conditions.\[54\] That separation was induced by insanity of the husband is not a defense to a claim for alimony, the wife not being at fault.\[55\] Refusal of the wife to return to the husband is no bar to her claim for alimony if the causes justifying the original separation remain.\[56\] Wrongdoing of the wife is a defense against her claim.\[57\]_

SS 5. _Amount, character and duration.\[58\]--The amount to be allowed rests in the sound discretion of the court,\[59\] the husband's means and ability to earn,\[50\]_

- **16. In a suit for divorce and alimony,** **16. Where jealousy of husband causing or for alimony alone, the court may order an allowance to the wife to insure her an efficient preparation of her case, whether** **16. That she refused to return to him, she be defendant or plaintiff. Day v. Day \[Kan.\] 80 P. 974.**

- **17. Though an order for $300, and $100 monthly, recited that the first sum was for previous unpaid instalments under a former order, held, this was only a reason, and the amount could be regarded as an award for present and past expenses. Gay v. Gay \[Cai.\] 79 P. 885.**

- **18. Where wife returned to husband a month after filing motion for alimony and thereafter lived with him, she was not entitled to alimony. Fullhart v. Fulihart (Mo. App.) 88 S. W. 541.**

- **19. Fullhart v. Fullhart (Mo. App.) 83 S. W. 541.**

- **19. It is the general rule that alimony pendente lite will be granted without inquiry into the merits. Reed v. Reed \[Miss.\] 37 So. 642.**

- **19. In action for divorce for cruelty, fact that husband offered use of home to wife pending action was immaterial on application for temporary alimony, since it involves ed merits. Kolvalsky v. Kowalsky, 145 Cal. 834, 78 P. 877.**

- **20. Defendant could show in defense to application for alimony that at time of al-leged marriage defendant was the undivored wife of another. Reed v. Reed \[Miss.\] 37 So. 642.**

- **21. See 3 C. L. 149.**

- **22. Order for permanent alimony unwarranted where parties lived apart but there was no finding of desertion by the husband or offer by the wife to live with him. Volkmar v. Volkmar \[Cai.\] 81 P. 413.**

- **23. Moseley v. Larson \[Miss.\] 38 So. 234.** * the wife's lack of means and station in life, \[61\] the children to be supported, \[62\] and the source of the property owned by the parties \[63\] being among the considerations by which the court will be guided. Upon division of the property, one-third is ordinarily held a liberal allowance to the wife in the absence of special circumstances, \[64\] but under the Washington statute, the awarding of all the community property to one of the parties is authorized. \[65\] A claim of the husband for personal injuries sustained after separation from his wife is community property, one-half of which may be set aside for the wife on her obtaining a divorce. \[66\]

- 6. _Procedure and practice._"--Notice of application for alimony pendente lite is not necessary where the husband has left the state for the purpose of defeating the wife's claim. \[68\] It is not necessary to make proof of the value of services of counsel where an allowance is made at the close of the trial, since the court may determine the matter from its own experience and the circumstances as disclosed by the record. \[69\] It is not necessarily error to dismiss a bill, leaving stand until further order an order for alimony. \[70\] The committee of a lunatic defendant must be made a party to proceedings to fix alimony or adjust property rights. \[71\] Where permanent alimony allowed an insane party is insufficient owing to the negligence of the defendant's guardian ad litem, who was appointed to make proof of complainant's property on complainant's nomination, a rehearing should be granted. \[72\] Where the parties agreed upon a sum payable in lieu of the amount awarded, and thereafter a reference was ordered to determine defendant's ability to pay, the court would not pass upon question whether defendant was guilty of contempt pending the reference. \[73\] A receiver appointed under the New York statute to take charge of the husband's personality on his refusal to comply with a decree for alimony may properly be required to give bond. \[74\] An order granting

- quate, and husband's income $250 or $300 | sets held proper. Heyman v. Heyman, 110 per month, alimony of $70 per month held

- not excessive. Read v. Read \[Utah\] 78 P.

- 675. Where husband's income consisting of salary, rents, and legal interest on investments

- amounts mounted to $2925, one-third that amount, $23 per week, was held reasonable

- alimony, defendant being credited with $8 for rental of premises occupied by plaintiff

- Bennett v. Bennett \[N. J. Eq.\] 59 A. 245.

- Alimony allowance of $1,300 per year not disturbed where it appeared that husband had income of $4,000, Edgar v. Edgar, 23

- Pa. Super. Ct. 220.

- 61. Read v. Read \[Utah\] 78 P. 675.

- 62. Where wife was given custody of

- 4 minor children, and it appeared she had assisted in accumulating property, a life estate in half the reality and half the personalty absolutely was held not excessive

- alimony. Crabtree v. Crabtree \[Ky.\] 85 S. W. 211. In suit by wife, allowance of rents

- of $45 per month as alimony held reasonable, she having two children, and the husband having taken with him on separation

- certain property. Baker v. Baker \[Ky.\] 85 S. W. 729. Husband's property being worth $75,000 and wife being awarded custody of two minor children, award of $5,500 to defendant wife for their support held justified, and made a lien on plaintiff's property. Taylor v. Taylor \[Or.\] 81 P. 367.

- 63. Where wife contributed to partner-ship business, allowance to her of what she contributed and one-half remainder of as-

- 64. Where wife was capable, intelligent and in good health, and husband was broken

- 65. Where wife was capable, intelligent and in good health, and husband was broken

- 66. Ligon v. Ligon \[Tex. Civ. App.\] 87

- 67. See 3 C. L. 152.

- 68. Barker v. Barker, 136 N. C. 316, 48 S. E. 733.

- 69. Cochran v. Cochran, 93 Minn. 284, 101

- 70. Kozacek v. Kozacek, 105 Ill. App.

- 71. Frazer v. Frazer, 25 Ky. L. R. 883,

- 72. Frieske v. Frieske \[Mich.\] 101 N. W.

- 63. Goodsell v. Goodsell, 94 App. Div. 443,

- 74. Failure to require bond would not excuse husband for refusal to turn over property, and judgment committing him for contempt was therefore proper. In re Spies,

- 75. App. Div. 175, $6 N. Y. S. 1043.

Alimony pendente lite is appealable in some states,\[76\] but not in others.\[76\] A refusal to grant permanent alimony is reviewable on appeal in Kentucky, though the court's action in granting a divorce may not be reviewed.\[77\]

SS 7. \_The decree;\[78\] its enforcement and discharge.\[70\]--An order directing counsel fees to be paid "to the plaintiff or to her counsel" is inaccurate, but not so irregular as to warrant interference by the appellate court.\[80\] In an action for divorce and alimony, the court has power to order that the plaintiff retain possession of personal property belonging to the husband until the alimony allowed should be paid;\[81\] and where a judgment so provides, that part of it which further provides for a specific lien on such personal property may be regarded as immaterial and surplusage.\[82\] A decree for alimony does not become dormant by failure to issue execution thereon for more than five years.\[88\] An appeal from a judgment allowing a pension does not suspend the effect of .a judgment for alimony before a final decision in the divorce case. If pension be decreed in the final judgment for divorce, it will then succeed the decree for alimony.\[84\]

_Consent decrees; contracts.--A_ decree for alimony is entered by consent if valid; but if the consent is obtained by coercion or fraud, a court of equity has power to purge the decree of the fraud.\[85\] One who consents to a decree obligating him to pay certain rents to his divorced wife is bound by the decree though the obligation assumed was not covered by the pleadings or prayer for relief." Since a wife cannot be barred of her potential right of dower in the lands of her husband by a verbal contract, such a contract between the parties to a divorce suit, attempting to settle the question of alimony by obligating the husband to pay the wife a certain sum, is void as to the land, and hence void in toto."

\_Enforcement."a--\_The trial court has authority to compel obedience to its orders granting alimony pending an appeal of the case." An allowance of alimony is a judgment for debt," and an action of debt will lie on a decree in equity for the payment of alimony rendered by a chancery court of another state." Such action will lie though the sum adjudged is not a single, stated amount, but an accruing allowance, the decree being enforceable to the amount accrued at the time the action is brought." The statutory powers of a chancellor to enforce a decree for alimony are not affected by a previous agreement, unsanctioned by the chancellor." Where such agreement is not embodied in the decree and is inequitable, it is no defense to a proceeding to show cause for nonpayment of alimony under the decree." In New York execution cannot issue on an order for support of the wife and care and maintenance of the children, pending a suit for separation or divorce." Since an execution is not authorized, supplementary proceedings are also without authority."

Failure of a divorced husband to comply with a decree directing the payment of alimony is prima facie evidence of contempt," and if he seeks to show that the cause of such failure to pay is his inability to do so, the burden is upon him to establish that fact." He must show with reasonable certainty the amount of money he has received, and that this money has been used in paying obligations and expenses, which, under the law, he should pay before making payments on the decree for alimony." The court may discharge one committed for contempt on a showing of actual inability to comply with the decree." That one entitled to alimony under a decree receives assistance from others does not affect the liability of the one against whom the decree is rendered." It is the duty of one ordered to pay alimony, who is unable to comply with the order of the court, to protect himself by applying for a revocation or modification of the decree." Though an allowance is for the wife's maintenance from year to year, the court will enforce payment, by commitment for contempt, for a period greater than one year." A proper demand for payment of alimony is not a prerequisite to a commitment for contempt for failure to pay, when defendant has had an opportunity to pay, notice having been served upon him that contempt proceedings would be

**86.** Connellee v. Wereenskold \[Tex. Civ. App.\] 87 S. W. 747.

**87.** Shammell v. Carper's Adm'r \[Ky.\] 87.

**88.** By 71.

**88.** Seste v. Second Judicial Dist. Court

**89.** By Pub. Laws 1902. c. 971, $ 5, suits may be brought or executions issued on an allowance for amounts from time to time due and unpaid. Wagner v. Wagner \[R. L\] 57 A. 1058.

**90.** Viagner v. Wagner \[R. L\] 57 A. 1058.

**92.** ViBberschmidt v. Bilberschmidt, 112 Ill. App. 58.

**94.** Such order is enforceable by sequestration or contempt proceedings under Code Clv. Proc. $ 1772. 1773. Weber v. Weber, $ 3 App. Div. 149, 87 N. Y. S. 519.

**95.** Code Civ. Proc. $ 2435, relative to supplementary proceedings, inapplicable.

**87.** Shammell v. Carper's Adm'r \[Ky.\] 87.

**88.** S19.

**96.** By 97. Shafner v. Shafner, 212 Ill. 492, 72 N. E. 447.

**98.** Showwing by attorney as to income and living expenses of himself and family held insufficient. Shaffner v. Shaffner, 212 Ill. 492, 72 N. E. 447.

**99.** Decree for support. Perry v. Pernet

**99.** \[Ind.\] 74 N. E. 609.

**99.** Shaffner v. Shaffner, 212 Ill. 492, 72 N. E. 447.

**99.** State v. Second Judicial Dist. Court

**99.** \[Mont.\] 79 P. 13.

**99.** Shafner v. Shaffner, 212 Ill. 492, 72 N. E. 447.

5 Cur. Law. ALIMONY SS 8.

instituted on a certain day.4 An order adjudging a husband in contempt for refusal to pay alimony should not include the costs of the divorce proceeding.5

Property fraudulently transferred by defendant in a divorce suit is subject to claims for alimony in the hands of the transferee;6 and where the transferee executes a mortgage securing the payment of alimony he is not a mere surety, but as to the mortgage stands in the shoes of the transferor.7 Money in the hands of an administrator belonging to an heir against whom an award of alimony has been made can be reached by the wife in whose favor the decree for alimony was rendered only by garnishment.8

Footnote 4: Noncompliance with the decree must in such case be regarded as willful. Sharfner v. Sharfner, 211 Ill. 492, 72 N. K. 647.

_Discharge.--A decree for alimony not being a claim provable in bankruptcy, it is not discharged by a final discharge in bankruptcy._

SS 8. \_Suits for annulment and actions for separate maintenance.10--Where both husband and wife reside outside the state, the court has no jurisdiction of suit for support brought by wife.11 A wife may apply for separate maintenance, though she has previously entered into a contract with her husband by which he agrees to support her in a state of separation.12 A judgment for defendant in a suit by the wife for divorce and alimony on the grounds of cruelty and drunkenness is not a bar to a suit for separate support on the ground of desertion and failure to provide because of habitual drunkenness.13 In 'a suit by wife for support under the New Jersey statute, it is proper to require of her a bond for costs.14 Since the Rhode Island statute denominates a suit for the setting aside of a void marriage a proceeding for divorce, a woman petitioning for such relief may be granted allowances for temporary support, counsel fees and expenses.15 The supreme court of the District of Columbia has power to grant alimony pendente lite and counsel fees in a suit by the wife for support and maintenance.16 Counsel fees may be awarded in New York in a suit by the wife for annulment of the marriage.17 In suits for maintenance and support under the California statute, a periodical allowance should be awarded, rather than a lump sum, in the absence of special circumstances.18 In a suit for separate maintenance in Indiana, the court may order the payment of a weekly allowance instead of a gross sum,19 and may authorize the wife to lease or mortgage the husband's realty and "pply the proceeds on the decree for alimony.20 Where in an action for maintenance a wife obtained a decree for a monthly allowance, and thereafter the husband procured a divorce and a discontinuance of the payments at a certain date, but a new trial was granted in the divorce case, the decree for the monthly allowance was enforceable according to its original terms.21 Hence the allowance of 4 Noncompliance with the decree must in such case be regarded as willful. Sharfner v. Sharfner, 211 Ill. 492, 72 N. K. 647.

Footnote 18: Constrating Cen. Laws 1896, c. 195, SS 1, and Pub. Laws 1902, c. 971, SS 5, in a case where woman petitioned for divorce, husband having been previously married. Leek-ney v. Leek-Leekrey \[R. L.\] 59 A. 311.

Footnote 19: Inherent right to do so not di- vested by Code D. C. SS 980, Lesh v. Lesh, 21 App. D. C. 475.

Footnote 20: By express provisions of Burns' Ann. St. 1901, SS 6850. Smith v. Smith \[Ind. App.\] 74 N. E. 1008.

Footnote 5: 32. Smith v.

alimony to the wife in the suit for divorce by the husband is improper.\[22\] Under a general denial to a complaint for separate support on the ground of desertion and failure to provide because of drunkenness, defendant may put in proof denying drunkenness, desertion and mistreatment, and may prove that plaintiff lived apart from defendant of her own will and did not offer to return nor ask for money.\[23\] A general allegation of desertion admits proof that the desertion was without cause.\[24\]

**ALTERATION OF INSTRUMENTS.**

**SS 1. Definition, Distinctions, and What**

**SS 4. Pleading and Evidence (112).**

**SS 2. Particular Instruments (110).**

**SS 5. Curing or Ratinging Alternations**

**SS 6. Effect of Material**

**& Rights of Particles (111).**

**SS 1.**_Definition, distinctions, and what constitutes.\[25\]_--An alteration which makes an instrument speak a language different in legal effect from that which it originally spoke is material, and when made by one not a stranger to the paper, it is sufficient to avoid the contract as to all parties not consenting thereto;\[26\] but this does not apply where the party has the power to annul the provision attempted to be altered, irrespective of whether he is consciously and intentionally making such alteration.\[27\] It is not every alteration of an instrument that will defeat recovery thereon. It must be such an alteration as will materially change the contract of the parties.\[28\] A mere attempted alteration is not sufficient.\[29\]

**SS 2.**_Particular instruments.\[30\]_--Changes in a negotiable promissory note after delivery which alter the time of payment,\[31\] place of payment, when none is stated,\[32\] specie of payment,\[33\] amount and name of payee,\[34\] cutting a note from a **23**, **24**. Smith v. Smith \[Ind. App.J 74 N. E.\] "with exchange" were printed in the note: before it was executed the maker erased these words, but after its delivery the payee without knowledge or consent of the maker rewrrote the words "with exchange." This was not a material alteration. First Nat. Bank v. Nordstrom \[Kan.\] 78 P. 804.

**25**. See 3 C. L. 154.

**26**. As adding to a promissory note a place of payment, which imports negotiability, whereas, under statute, without words designating place of payment, would not have been negotiable, is a material alteration. Carroll v. Warren \[Ala.\] 37 S0: 687; Bed-good-Howell Co. v. Moore \[Ga.\] 51 S. E. 420. An alteration of a check by the holder, consisting in a change of the name of the bank on which it is drawn, is a material alteration. Morris v. Beaumont Nat. Bank \[Tex.\] City. App.J 83 S. W. 86. A material alteration of a contract is a destruction of a provision thereof and an attempt to folsat a new provision on the other party. American Bonding & Trust Co. v. Baltimore, etc., R. Co. \[C. C. A.\] 124 F. 866. Erasure of the word "truste" in a deed by the grantee. Filterat v. Commonwealth Title Ins. & Trust Co. \[Pa.\] 60 A. 557. Insertion after execution in a building contract, the time for completion is a fraudulant alteration. Bolter v. Kozlowski, 211 Jill 79, 71 N. E. 858. Addition of an unnecessary certificate of acknowledgment is not material. Canfield v. Orange \[N. D.\] 102 N. W. 313.

**27**. Provision that engineer of railroad might annul one portion of a construction contract without releasing contractor as to others. American Bonding & Trust Co. v. Baltimore, etc., R. Co. \[C. C. A\] 124 F. 866.

**28**. Note was executed at Lyons, Kan., and payable at Marshalltown, Iowa; the words memorandum, limiting its effect as a negotiable instrument,\[35\] are material alterations. Insertion in building contract, after execution, the time for completion of contract,\[36\] or the change of name of the bank on which a check is drawn,\[37\] or the erasure of the word "trustee" in a deed, are material alterations.\[38\]

SS 3. _Effect of material alteration; rights of parties.\[39\]_--A material alteration avoids the instrument because, as altered, it no longer represents the agreement among the parties.\[40\] In general, the other party is released thereby,\[41\] but parties may be estopped from asserting a material alteration in a written instrument by their conduct.\[42\] Alterations may be impliedly authorized.\[43\] Where an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.\[44\] Here negligence, however gross, is not sufficient to deprive a party of the character of a _bona fide_ holder; proof of bad faith is essential.\[45\]

\*\*35. A school order for articles for school use was signed by the officers of the district, and recited "Issued by authority of officers of said district and payment guarantee for concurrent signed by the land-anted by them." Beneath the order was a printed certificate by the payee that it had received from the school district an official voucher, containing a recital that the matter was to be left to a vote of the district at an annual meeting, but the matter below the signature was detached, and the order with it detached, was transferred. This removal of the lower portion of the instrument was a material alteration. First Nat. Bank v. Carter \[Mich.\] 101 N. W. 585. **36.** Bolter v. Kozlowski, 211 III. 79, 71 N. E. 858. **37.** Morris v. Beaumont Nat. Bank \[Tex. Civ. App.\] 83 S. W. 36. **38.** Filterst v. Com. Title Ins. & Trust Co. \[Pa.\] 80 A. 557. **39.** See 3 C. L. 156. **40.** Alteration in a note so as to make it payable after maker's death, instead of one year after date, is a material alteration and no recovery can be had thereon. Bowers v. Rineward, 209 Pa. 546, 58 A. 912. Where property was conveyed to a grante as trustee, and such language appeared in the deed, subsequent erasure of the word "trustee" by the grante was a forgery, rendering the deed vold. Filterst v. Com. Title Ins. & Trust Co. \[Pa.\] 60 A. 557. Where brokers, without the consent of their customer, altered a written contract so as to give them a greater commission, the alteration rendered the entire contract void. Harrison v. Lakeman \[Mo.\] 88 S. W. 53. **41.** American Bonding & Trust Co. v. Baltimore, etc., R. Co. \[C. C. A.\] 124 F. 866. **42.** The written contract between plaintiff and defendant for the construction of a building cast upon the latter the duty of procuring the Insurance upon the building during construction. The insurance was to be for their joint benefit. By the acts and statements of plaintiff they were to procure the insurance, which they failed to do. They were estopped from complaining that the defendant had not procured the same. Franken v. Regents of Education of South Dakota \[C. C. A.\] 133 F. 24. In a contract for the sale of real estate a clause relating to Incunbrance provided "that the north walls of the buildings on the above described \_Pleading and evidence.\_46--A fraudulent alteration of the note used upon may be shown under the general issue.47 The answer must allege that the material alteration was made after the execution of the note, which includes both signing and delivery.48 The burden of proof of a defense of subsequent material alteration of an instrument is held in some states to be on the party asserting it, though the decisions are conflicting.49 The party claiming an alteration in an instrument is only bound to establish it by a preponderance of the evidence.50 If, however, there are suspicious circumstances apparent on the face of the instrument, the burden of proof rests upon the party producing it to account satisfactorily for any interlineation which operates a substantial change in the effect of such instrument.51 Evidence of alteration of an instrument is not admissible until proper foundation therefor has been laid,52 nor can rate of interest be fixed by a note which has been destroyed by alteration.53 The fact that an erasure, which does not vary or alter the effect of a negotiable instrument, appears on its face, does not render it inadmissible in evidence.54

## 5. \_Curing or ratifying alterations.\_55

\*\*AMBASSADORS AND CONSULS.\*\*56

Treaties conferring consult jurisdiction are to be reasonably but not liber-

46. See 3 C. L. 157.

authority. Hagan v. Ins. Co., 81 Iowa, 321.

47. Gundy v. Bissell's Estate \[Neb.\] 100 N. W. 803. A general plea of non est factum will authorize the party interposing it to prove that after the execution of the instrument in question it was altered without his consent. Fudge v. Marquel \[Ind.\] 72 N. E. 565.

01. In an action on a note, an answer admitting that defendant "signed" the note used on, but averging that thereafter, without his knowledge or consent, the note was materialally altered, is insufficient as a statement of defense, as the averment of signature is not equivalent to an allegation of execution, as defendant may have consented to the alteration after signature but before delivery. Bowen v. Woodfield, 33 Ind. App. 687, 72 N. E. 162.

01. Fudge v. Marquel \[Ind.\] 72 N. E. 565. Evidence not sufficient to establish the defense of alteration by a change in the rate of interest from 7 to 8 per cent. Mathews v. De Worr \[Ark.\] 83 S. W. 327. The evidence of a party that he does not remember that it contained any provision for a commission, though he read it before signing, is not sufficient to overthrow the plain terms of a contract. Busby v. Compton \[Mo. App.\] 87 S. W. 109.

Note: The civil-law rule is that alterations in the substantial part of an instrument are presumed to be false and must be accounted for. 4 Measured Conc. 1561, 1.2-41. Pipes v. Hardesty, 9 La. Ann. 152. In England, such alterations, In the absence of suspicious circumstances, are presumed to have been made contemporaneously with the instrument's execution. Greenleaf on Evidence, 856. The American decisions seem for the most part to conform to the civil-law rule. Smith v. U. S. 69 U. S. 219, 1.2 Law. EQ. 788; Jackson v. Osborn, 2 Twond. \[N. Y.\] 555. Policy would demand that such a principle be applied to negotiable paper. Ely v. Elly, 6 Gray \[Mass.\] 439: Kennedy v. Moore, 17 S. C. 464. Other American courts presume that the change was made with 5 Cur. Law.AMBASSADORS.AMICUSCURIAE.ANIMALS.SS1.

ally construed."The power of consuls given jurisdiction over the internal order of vessels of their nations, to require the arrest of seamen, is limited to requiring a United States marshal, through requisition presented to his court or judge, to make the arrest."An arrest made by a state officer is a mere irregularity, when being brought on habeas corpus to the court, which on proper requisition would have ordered a marshal to make the arrest it is found that a ground for consular jurisdiction exists."United States consuls are usually authorized to take and conclusively certify acknowledgments made abroad."The consul of a nation may be authorized by our courts to receive a nonresident alien's distributable share of an estate for transmission."A consul will be presumed to have acted within his jurisdiction, though he does not so state."

AMBSUITY;AMENTENTS, see latest topical index.

AMICUSCURIAE.

A court has power to hear persons appearing as amici curiae and to receive their evidence in aid of the exercise of the court's discretion and to advise the court of the real facts of the case."An amicus curiae has no power to represent a party in giving a notice of appeal."

AMBSUITY;AM a domestic animal is liable for personal injuries inflicted by it only when he has notice of its vicious traits!\* or is negligent.\[76\] The notice must be actual,\[76\] but circumstances often render the question one of fact.\[77\] But one who undertakes to keep animals ferae naturae in a place of public resort is liable for injuries inflicted on a person who is not negligent,\[78\] unless the keeping of such animals is his lawful duty and obligation.\[79\] One guilty of contributory negligence\[89\] or who wantonly irritates an animal cannot recover for injuries resulting.\[81\] One seeking to recover for an injury by a domestic animal must allege\[82\] and prove the scienter,\[83\] and also that the animal possessed a particularly dangerous habit which caused the injury,\[84\] but a complaint under a remedial statute need not mention the statute,\[85\] nor allege scienter or facts dispensing with the necessity of it.\[88\] Scienter may be proven by evidence of the reputation of the animal.\[84\] The reputation

**Note:** **Bees are not ferae naturae and their** **man and had been prevented by the watchkeeper is not liable absolutely and at all** **man from biting others, held to raise a questeurs for injuries they may inflict. Earl v.** **then for the jury as to the owner's knowledge, atual or imputed. Grissom v. Hofus Manser, 119 Iowa, 88, 93 N. W. 86, 97 Am.** **\[Vwash.\] 80 P. 1002. On a prosecution for St. Rep. 283. But the owner must be held to a knowledge of their vicious propensities, and manage them accordingly with due re- less gambols, when it shows a propensity to gard to the rights of others. In placing the hives in any particular place, he must exer- give ordinary prudence for the avoidance of unnecessary danger to those likely to make lawful use of the premises or highway neur by. Tellier v. Pellant, 5 Rev. Leg. 61; O'Gorman, 2 Ir. K. B. Div. 573, 58 Cent. L. J. 283.**

**As a unlussee:** **The keeping of bees is not of itself a nuisance and whether it becomes so in any given case is a question to be determined judicially. Town of Arkendalphia v. Clark, 52 Ark. 23, 11 S. W. 857, 27 Am. St. Rep. 154; Olmsted v. Rich, 6 N. Y. S. 826-From note to Parsons v. Manser \[Iowa\] 97 Am. St. Rep. 29. See, also, note to the same case, 62 L. R. A. 133.**

**72. The owner of premises on which a dog is kept by another with his permission is not necessarily the keeper of the dog. McCosker v. Weatherphone \[Mc.\] 99 A. 1019.**

**73. Under Ball, Ann. Codecs & St. 4949, an allegation that plaintiff was bitten by a dog belonging to defendant is sustained by proof that he belonged to a partnership of which defendant was a member. Grissom v. Hofus \[Vwash.\] 80 P. 1002.**

**74. That a officer of a corporation that owned a dog said to a witness "Look out for the dog or it will bite you" is insufficient to show the owner's knowledge. Bogdonov V. New York Lumber & Storage Co., 91 N. Y. S. 331.**

**75. The owner of a horse which kicks a traveler on the street is not liable in the absence of negligence. Miller v. Atlantic Refining Co., 91 N. Y. S. 846. A servant does not assume the risk of viciousness on the part of an animal furnished him by the master, unless he has knowledge of such viciousness. Hagen v. Ice Delivery Co., 2 Ohio N. P. (N. S.) 692.**

**76. Must have actual notice of the vicious traits of a dog. Fettman v. Hencken & Wilhelmbrock Co., 91 N. Y. S. 773.**

\*\*77. Evidence that a dog had blitten persons in the presence of his owner's watch- 187 Mass.

of an animal for viciousness may be shown by evidence of specific instances when it exhibited vicious traits \[; 88\] but proof of the vicious character of a class of animals is not proof that a particular animal of that class is vicious \[89\].

SS 3. _Injuries to property by animals trespassing or running at large._\[90\]--One who does not know of the vicious traits of an animal he allows to run at large is not liable for an injury which is not the natural consequence to be anticipated from allowing an ordinary animal to run._\[91\] In many of the western states no trespass is committed unless cattle break through a fence \[92\] sufficient to turn cattle of ordinary disposition \[93\] under ordinary circumstances \[94\] but an owner may not willfully drive his cattle on another's land \[95\], and this rule does not apply to sheep or swine._\[96\] In some states failure of adjoining propriators to maintain a division fence precludes a recovery \[97\] but in Iowa the common-law rule applies as to adjoining owners without a partition fence._\[98\] An agreement with the holder of an invalid title to adjoining property to build a division fence does not preclude a recovery by the true owner,_\[99\] and a coterminous owner who fails to keep up his portion of the division fence is liable if his cattle trespass as a result of his negligence._\[\]_ The right to recover is not affected because the injury is slight,_\[2\] _but one seeking to recover must prove damage,_\[3\] _and nominal damages may be recovered though no actual damage is sustained._\[\] _The measure of damage is the injury caused to the crops or freehold._\[_6_\]_ Where several dogs belonging to respective owners injure cattle, each owner\_ \_\[_6_\]\_\__A horse. Palmer v. Cogle, 187 Mass._ _a landowner to fence against sheep or swine._ \_\[_6_\]\_\__Speer v. Morgan \[Idaho\] 79 P. 459._ \_\[_6_\]\_\__Speer v. Morgan \[Idaho\] 79 P. 469._ \_\[_6_\]\_\__Speer v. Morgan \[Idaho\] 79 P. 479._ \_\[_6_\]\_\__A general statement by a dog dealer division fence if pracatable precludes the recovery of damages for a trespass by an ad-itizer bitch, Cook v. Levintan, 94 N. Y. S. 396._ \_\[_6_\]\_\__Weak v. Cunningham \[WWs\] 101 N. W. 996._ \_\[_6_\]\_\__Where there has been no legal division of a partition fence, the owner of animals which escape onto adjoining land is liable. DeMers v. Rohan \[Iowa\] 102 N. W. 413._ \_\[_6_\]\_\__Holder of an invalid tax little agreed to build his portion of a division fence._ \_\[_6_\]\_\__Hammond v. Tuttle \[Mich.\] 103 N. W. 178._ \_\[_6_\]\_\__Where coterminous owners agree that each shall keep up a part of the division fence and by reason of the failure of one to keep up his portion the hogs of one enter onto the land of the other, the one at fault is liable for damage caused. Collins v. Cochran, 121 Ga. 785, 49 S. E. 771._ \_\[_6_\]\_\__B. Peterson v. Lacey \[Iowa\] 102 N. W. 153._ \_\[_6_\]\_\__Where coterminous owners agree that each shall keep up a part of the division fence and by reason of the failure of one to keep up his portion the hogs of one enter onto the land of the other, the one at fault is liable for damage caused. Collins v. Cochran, 121 Ga. 785, 49 S. E. 771._ \_\[_6_\]\_\__B. Peterson v. Lacey \[Iowa\] 102 N. W. 153._ \_\[_6_\]\_\__Where cottling broke through a fence--partly on account of plaintiff's and partly on account of defendants' fault and there is no evidence as to what part of the damages was the result of either, there can be no determination of the damages by a jury._ \_\[_6_\]\_\__Hightower v. Henry \[Miss.\] 37 So. 745._ \_\[_6_\]\_\__Holder held insufficient to show that trespassing cattle did any damage._ \_\[_6_\]\_\__Co. v. Burk \[Neb.\] 102 N. W. 74._ \_\[_6_\]\_\_\_Trammell v. Turner \[Tex. Civ. App.\]\_\__82 S. W. 325._ \_\[_6_\]\_\__Evidence of sickness of a plaintiff's family is admissible to show why cattle were not driven off as soon as discovered._ \_\[_6_\]\_\__Mers v. Rohan \[Iowa\] 102 N. W. 413._ \_\[_6_\]\_\__Holder of an invalid tax little agreed to build his portion of a division fence._ \_\[_6_\]\_\__Hammond v. Tuttle \[Mich.\] 103 N. W. 178._ \_\[_6_\]\_\__Where coterminous owners agree that each shall keep up a part of the division fence and by reason of the failure of one to keep up his portion the hogs of one enter onto the land of the other, the one at fault is liable for damage caused. Collins v. Cochran, 121 Ga. 785, 49 S. E. 771._ \_\[_6_\]\_\__B. Peterson v. Lacey \[Iowa\] 102 N. W. 153._ \_\[_6_\]\_\_\_Where cottling broke through a fence--partly on account of plaintiff's and partly on account of defendants' fault and there is no evidence as to what is liable for the damage done by his dog.6 Admissions made by the owner of a sheep-killing dog are admissible against him.7 In Pennsylvania a dog tax is levied to remunerate owners of sheep killed by dogs,8 and in Rhode Island the town pays the owner his damages and recovers from the owner of the dog8 in an action in tort.10 The remedy being statutory must be strictly pursued.11

Footnote 23: Evidence held to show no negligence of the author.

Footnote 24: The author is grateful to the anonymous referees for their comments.

Footnote 25: The author is grateful to the anonymous referees for their comments.

but he cannot wantonly injure them,24 and in some states he is required to properly guard "attractive nuisances."25 Railroad companies are liable for injuries to animals resulting from negligent operation or defective construction of their road,28 as are also municipal corporations for negligent use or defective construction of highways.27

them without the agister's consent," nor affected by the fact that the pasturing was done under an express contract as to price,\[41\] and its superiority over a prior chattel mortgage is not affected where the cattle are taken from the agister without his consent and shipped to a state where a different rule as to priority prevails\[42\] and the agister may recover in conversion against an innocent purchaser.\[43\] Though the lien continues after he has parted with possession, he has a right to retain the animals under it,\[44\] and where they are taken from him without his consent, he may recover them;\[45\] but if he has no lien, he has no right to retain possession as against one entitled thereto.\[46\]

SS 6. \_Estrays and impounding.\[47\]--Cattle breaking through a division fence cannot be retained damage feasant.\[48\] One who agrees to the retention of his animals pending ascertainment of the damage and refuses to submit to arbitration according to his agreement to do so is liable for the expense of caring for them in the meantime.\[49\] Municipal corporations have power to make effective ordinances forbidding the running at large of animals, by provisions for impounding and sale,\[50\] and such legislation is not illegal as providing for the forfeiture of animals impounded.\[51\] An ordinance providing for the sale of impounded animals unless redeemed by payment of a fine is unconstitutional as to the fine owing to the absence of judicial investigation.\[52\] But the purchaser's title is not affected because of the invalidity of the provision relative to the fine.\[53\] Payment of poundage fees\[54\] and expenses incurred in caring for the animals is a condition precedent to a right to recover them.\[55\]

SS 7. _Regulation as to care; keeping and protection and health.\[50\]_--It is not negligence per se to lead an animal ferae nature on a public street\[57\] and in the absence of negligence there is no liability for an injury not the probable consequence of the act.\[58\] The keeping of live stock is under the police regulation of the state\[69\] and such police regulation extends over the public lands of the United States within the state.\[60\] The legislature may regulate the keeping of animals with respect to adjacent property.\[61\] The general welfare clause of the charter of a municipal corporation authorizes it to prevent the running at large of animals.\[62\]

**39, 40, 41, 42, 43.** Everett v. Barse Live Stoek Commission Co. \[Mo. App.\] 88 S. W. 165.

44. Under Ky. St. 1903, SS 2500-2502. Speth Clarke'sville \[Ark.\] 87 S. W. 1149.

01. Form of judgment held proper. Speth v. Brangman \[Ky.\] 84 S. W. 1149.

01. A guaranty of a note by a mortgage procured as a condition of surrendering them is void. Tandy v. Elmore-Cooper Live Stock Commission Co. \[Mo. App.\] 87 S. W. 614.

01. See 3 C. L. 163.

01. Where an adjoiner's cattle broke through that part of a division fence which it was his neighbor's duty to maintain, they could not be retained by his neighbor until the owner had compensated him for damages suffered. Cotton v. Huston \[Mo. App.\] 84 S. W. 97.

01. Collins v. Cochran, 121 Ga. 785, 49 S. E. 771.

50, 51. Crum v. Bray, 121 Ga. 709, 49 S. E. 686.

52, 53. Shook v. Sexton \[Wash.\] 79 P.

1089.

0001. Owner of cattle Impounded by a de facto officer is liable for poundage fees notwithstanding the inability of the officer to 5 Cur. Law. ANIMALS SS 7.

Where municipalities are required by statute to adopt ordinances to prevent animals running at large, mandamus will issue to compel such action.\[63\] Dangerous animals may be discriminated against.\[64\] Laws relative to the regulation of cattle running at large may be special,\[65\] but have no extraterritorial effect.\[86\] In some of the southern states stock law districts, to prevent cattle running at large therein, may be created upon the requisite vote of freelholders,\[67\] or upon a petition of a certain number of them,\[68\] and the fact that municipal authorities may prevent stock running at large does not deprive the freeloders of their right to petition.\[69\] Under the Mississippi statute the stock law cannot be put in force in a part of a county on a petition to put it in force in the entire county,\[70\] and where such action is taken, it is void and the petition is still before the board as if unacted upon and no appeal lies until such action is taken.\[71\] The petition for an election under the Texas Local Option Stock Law must specify the animals it is desired to restrain,\[72\] and describe the territory affected.\[73\] The petition must be acted upon as required by law,\[74\] and the election must conform to the petition,\[75\] and notice thereof be posted as required.\[75\] Violation of these laws is a criminal offense,\[76\] and subject to prosecution under the provisions of the general penal code, though a justice is also given jurisdiction.\[78\] A statute prohibiting the running at large of cattle and providing for a lien and enforcement thereof for its violation, provides a civil remedy, and no criminal action can be predicated upon it.\[70\]

\_Interstate transportation; quarantine; inspection.\[80\]--\_A state may prescribe conditions under which cattle infected with a contagious disease shall be admitted,\[81\] and the bringing in of such cattle in violation of such conditions may be

63. Act Oct. 1, 1903, SS 1 (Acts 1903, p. SS65)

1s mandatory. Huey v. Waldrop \[Ala.\] 37 So. 880.

64. Cattle with horns. Rev. St. 1899, SS 1559. City of Donighuan v. White \[Mo. App.\] 38 S. W. 812.

01. Under Const. art. 16, SS 22, SS 23, my

he made applicable to parts of a county other than a political subdivision. Ex parte

remains \[Tex. Cr. App.\] 83 S. W. 379

Countles may be classified on the basis of population for the purpose of enacting statutes relative to cattle running at large. Acts 1903, p. 1342, c. 499, is not special legislation. Murphy v. State \[Tenn.\] 86 S. W. 711.

66. A resident of one state is not guilty of an offense against the laws of another because his c+title stray across the state line. Beattie v. State \[Ark\] 84 S. W. 477.

01. Under Code 1882, SS 2056, 2060, 2063. Stockton v. Caldwell \[Miss.\] 88 So. 880. Code

1892, SS 2055, 2059, providing for the establishment of stock law districts, is constitutional. Ormond v. White \[Miss.\] 37 So. 834.

68. Stockton v. Caldwell \[Miss.\] 38 So. 369.

01. Stockton v. Caldwell \[Miss.\] 38 So. 369. Freeholders not given an opportunity to sign the petition will be counted against. Id.

01. Under Rev. Code 1892, SS 2056. Bowles v. Board of Sup's of Leflore County \[Miss.\] 37 So. 707.

01. Bowles v. Townes \[Miss.\] 38 So. 354.

01. Ex parte Kimbrell \[Tex. Cr. App.\] 88 S. W. 882.

01. A petition for a stock law election under Acts 26th Leg. p. 220, c. 128, SS 3, must give the boundaries of the preient in which it is to be held. Cox v. State \[Tex. Cr. App.\] 88 S. W. 812.

01. Under Acts 26th Leg. p. 220, c. 128, SS 3, providing that the commissioner's own; shall act upon a petition for a stock-law election "at the next regular term thereof," a petition filed during a regular term cannot be acted on at that term. Cox v. State \[Tex. Cr. App.\] 88 S. W. 812.

01. F6. Ex parte Kimbrell \[Tex. Cr. App.\] 88 S. W. 882.

01. W. 88.

01. Indictment for permitting a hog to run at large held sufficient under Acts 1898-99, p. 683, as amended by Acts '90-1901, b.

01. Davis v. State \[Ala.\] 37 So. 454. In-diment for permitting a hog to run at large in violation of Acts 1898-99, amended by Acts 1900-1901, not affected by Acts 1903. Sept. 38, Id.

01. Acts 1898-99, p. 683, amended by Acts 1900-1901, p. 170, enjoined." The Federal statute prohibiting the exportation of diseased animals out of quarantined districts applies only to diseased or infected animals," and gives the secretary of agriculture no jurisdiction over animals not affected." Railroads are generally required to furnish cattle yards to restrain cattle offered for transportation prior to being loaded," and are liable for injuries resulting to them because of the defective condition of the yard."

SS 8. \_Marks and brands."--In California, by statute, it is a crime to mark or deface a mark with intent to steal, or prevent identification by the owner." The mark placed on the animal need not be a conventional one, indicative of ownership," and it is immaterial that it is not one calculated to accomplish the purpose intended." Under the Arizona statute providing for the seizure and sequestration of certain unbranded or freshly branded cattle, the ownership of which is questioned, seizure cannot be made unless the ownership is questioned in some reasonable manner," and forfeiture to the territory cannot be declared unless the provisions of the statute as to notice of sale are strictly complied with."

SS 9. _Cruelty to animals."--Under the police power the time, place and manner of killing animals may be prescribed," and authority to pass ordinances against cruelty to animals may properly be conferred upon municipal corporations, and such authority may be included in powers given in general terms." In some states a willful act, omission or neglect which causes unjustifiable physical pain, suffering or death to an animal is a misdemeanor." A statute making it a crime to so drive a horse as to cause its death is not violated if death results from some other cause."_

SS 10. \_Crimes against property in animals.--\_Theft of animals is either covered by the general law of larceny or by statutory crimes of the same nature." There are various statutory crimes directed against fraudulent dealings." One does not violate a penal statute against driving cattle from their accustomed range unless he does so purposely and willfully."

SS2. State v. Missouri Pac. R. Co. \[Kan.\]

SS3. Slitting the ear is sufficient. People v. Stromeck, 145 Cal. 110, 78 P. 472.

SS3. Under 23 Stat. 31 the Secretary of Agriculture cannot prohibit the taking of a horse out of the quarantined district if it is not diseased. United States v. Hoover, 133 F. 950.

SS4. United States v. Hoover, 133 F. 950.

SS5. The Federal statute providing that the Secretary of Agriculture may establish rules relative to the transportation of diesel-sed cattle does not empower him to est-'bish rules relative to cattle not diseased. 32 Stat.

791. Id.

SS5. It is their duty to do so under Pub. St. 1911, e. 160, $ 1. requiring them to furnish facilities for transportation of property.

Fllnt v. Bos'on & M. R. Co. \[N. H.\] 59 A.

938. A station agent with general authority to transact the business of the company at his station has authority to bind the carrier as a depositary by accepting cattle subject to a brief delay in shipment. Id.

SS6. Cattle escaping from a carrier's yard onto its racks are not tresprespressors as to the earrfer. Fllnt v. Boston & M. R. Co. \[N. H.\] 59 A. 938. Evidence held for the jury as to whether cattle temporarily restrained in a railroad company's yard were in the control of the shipper or company. Id.

87. See 3 C. L. 165.

SS. Pen. Code, & 357. People v. Strombeck, 145 Cal. 110, 78 P. 472.

SS8. Slitting the ear is sufficient. People v. Strombeck, 145 Cal. 110, 78 P. 472.

SS9. People v. Strombeck, 145 Cal. 110, 78 P. 472.

SS10. Lacey v. Parks \[Aritz.\] 80 P. 367.

SS9. Tours 149A. 8. 36. 5. Lacey v. Parks \[Aritz.\] 80 P. 367.

SS4. United States v. Hoover, 133 F. 950.

SS5. The E. Telecs.

SS9. State v. Davis \[N. J. Law! 61 A. 2. It is not a curriculum of a property right to prevent a person from using his ar-imals or cattle does not empower him to est-'bish rules relative to cattle not diseased. 32 Stat.

791. Id.

SS5. It is their duty to do so under Pub. St. 1911, e. 160, $ 1. requiring them to furnish facilities for transportation of property.

SS11. V. Bos'on & M. R. Co. \[N. H.\] 59 A.

SS9. A station agent with general authority to transact the business of the company at his station has authority to bind the ear-ter as a depositary by accepting cattle subject to a brief delay in shipment. Id.

SS6. Cattle escaping from a carrier's yard onto its racks are not trespressors as to the earrfer. Fllnt v. Boston & M. R. Co. \[N. H.\] 59 A. 938. Evidence held for the jury as to whether cattle temporarily restrained in a railroad company's yard were in the control of the shipper or company. Id.

87. See 3 C. L. 165.

SS. Pen. Code, & 357. People v. Strombeck, 145 Cal. 110, 78 P. 472.

5 Cur. Law. ANNUITIES. APPEAL AND REVIEW. ANNUITIES.1

The language employed by a testator must control in construing a clause of a will creating an annuity.2 One who derives his rights under a compromise agreement between the contestants and proponents of a will, under which a consent decree is entered sustaining the will, except as modified, is not entitled to the benefit of a statute providing that a life tenant or annuitant under a will shall receive his income or annuity from and after the testator's death;3 nor does a reference to the statute in the compromise agreement give him such right.4 Trusts to pay annuities, consisting of legacies or payments of successive sums in gross, do not occasion suspension of the power of alienation, the annuities being releasable or assignable.5 Where executors were authorized by a will to invest such sums as should be necessary to secure payment of annuities, and the will further provided that when a fund ceased to be necessary for that purpose it should be disposed of as residuary property, the annuities could be paid out of the general estate, or by the setting apart of specific sums.6 On the sale of land under judicial decree for arrearages due under an annuity, the sum due is pay. able out of the proceeds, but for future arrearages the annuitant must look to the land itself.7 A corporation not organized to grant, purchase or dispose of annuities, may legally contract to pay in annual instalments during the lives of the vendors for property which it has corporate authority to buy, although corporations not organized to deal in annuities are expressly forbidden to do so,8 since such a transaction is not a dealing in annuities within the meaning of such a prohibition.9

Footnote 54
A General Nature and Mode of Practice(148). B Time for Instituting and Perfecting(148). C. Afflavits and Oaths(151). D. Notice, Citation or Summons(151). E. Application for Leave to Appeal(153). F. Alloatur: Order for or Allowance of Appeal; Certificate(153). G. Bonds: Security; Payment of Costs(154). H. Entry Below(157). S 7. Transfer of Jurisdiation; Snpersedens and Stay(157). S. Appearance, Entry, and Doecketing Above(160). S 9. Perpetration of Proceedings and Evidence For the Reviewing Court. Scope and Terminology(161). A. What the Record Proper Must Show(161). B. What is Part of Record Proper; Necessity of Secondary Record(153). C. Form, Requisites and Settlement of Secondary Record(166). 1. The Bill of Exceptions(166). 2. The Settled Case or Statement of Facts(171). 3. Abstracts(173). D. Sufficiency of Entire Record to Present Particular Questions(174). E. Conclusiveness of Record and Effect of Conflicts Therein(184). $ 10. Transmissions of Proceedings and Evidence to Reviewing Court(186). A. Form and Contents of Transcript or Return(186). B. Certification and Authentication(187). C. Transmission, Filing, and Printing(187). D. Amendment and Correction(188). $ 11. Practice and Proceedings in Appealate Court Before Hearing(190). A. Joint and Several Appeals; Consolidation; Severance(190). B. Original and Cross Proceedings(190). C. Amendment of Parties(190). D. Calendars; Trial Dockets; Terms (191). E. Forming Issues; Pleading, Assigning and Specifying Error(191). 1. In General(191). 2. Proper Parties to Assign Error(192). 3. Cross Errors(192). 4. Specifications and Averments(193). 5. Demurres, Pleas, and Replication(197). F. Briefs and Arguments(197). G. Grounds for Dismissing or Striking out Appeal(201). H. Ralsing and Waiver of Defects(208). $ 12. Hearing(209). $ 13. Review(209). A. Mode of Review; Review Proper or Trial De Novo(209). B. General Scope and Objects of Review(211). C. Restriction of Review to Rulings and Issues Below(214). D. The Extent of the Review and the Questions Reached is Measured by the Character and Effect of the Order or Judgment(215). E. Restriction to Contents of Record(218). F. Rulings Peculiar to Province of Trial Court(219). 1. Disretionary Rulings in General(219). 2. Questions of Fact(224). G. Rulings and Decisions on Intermediate Appeals(233). H. Effect of Decision on Former Review in The Same Case(234). $ 34. Provisional, Ancillary, and Interlocutorsle 5 Cur. Law. APPEAL AND REVIEW SS 1B. 123

The right is favored in the law,19 but, being purely statutory,20 cannot be extended21 or denied22 by the courts.

(SS 1) \_B. Waiver, election, transfer or extinguishment.23--A waiver24 or election26 to treat a proceeding as valid, or to pursue another remedy for relief,26

dred (Kepler v. Rinehart, 162 Ind. 504, 70 explored does not authorize a review. Id. N. E. 806), and unless it is evident from the terms of the statute which gives, modifies or order allowing one not a party to the suit takes away the right that it was intended to have a retrospective effect, it has no application to cases in which final judgment was rendered prior to the time such act (Id.). It retroacts on cases pending but in which no final judgments have been rendered. See 3 C. L. 168, 36.

18. The method prescribed by the legislature is exclusive and mandatory. City of Greenwood v. Henderson, 84 Miss. 802, 37 So. 833.

01. Section 6495, relating to appeal of motion to dissolve attachment, is not unconn-stitutional because it gives to defendant the right to appeal which is not given to plain-tiff. Cecil v. Grant, & Ohio C. C. (N. S.) 65.

01. See 3 C. L. 168, 38. In re Hunts WIII \[Wis. 100 N. W. 874. An appendix\]. Applying with the law is entitled to have his rights directly passed on. McMichael v. Davis, 112 N. 807, 37 So. 763.

01. Is a strictly statutory right. McMough v. Hol Holiday \[Ala.\] 7 So. 395. Appeals from municipal court. Smith v. Elg, 92 N. Y. S. 310. Does not exist unless expressly provided for. Capual v. Railway, 26 Ohio C. C. (N. S.) 262. See 3 C. L. 168, n. 32. In Alabama an appeal from a decree overruling a motion to dismiss a cross bill for want of equity is not authorized by statute. McGough v. Holiday \[Ala.\] 37 So. 925.

01. Right is wholly of statutory origin and the statutory requirements must be strictly compiled with. Appellate court has no jurisdiction unless appeal perfected in manner required by law. Arkansas & O. R. Co. v. Powell, 104 Mo. App. 362, 80 S. W. 336.

01. The right is absolute to appeal from a habeas corpus in a district court to the supreme court if a constitutional question be involved, even though it seems without merit. In re Marmo, 138 F. 201.

01. See 3 C. L. 168.

01. A stipulation by a Chinaman waiving his right of appeal from a commissioner's decision will not be given effect where the appeal was duly perfected and before dismissal he appeared and demanded a trial. An Tai v. U. S. \[C. C. A.\] 135 F. 513.

01. What a husband does not imputable as recognition and acquiescence by appointment write. Succession of Theriot \[La.\] 38 So. 471. A judgment against a town confirming the validity of a sale of bonds will not be re-viewed at the instance of a ministerial officer, the corporate authorities having acquiesced in the judgment. Defenderrer v. State \[Wyv.\] 80 P. 667. Where a judgment against a town has been acquiesced in by the corporate authorities and compiled with as for as possible and are prevented from doing so fully only by the refusal of ministerial officers to do their duty, the fact that such officers have been allowed to give a superse-deas bond and the fact that their terms have

## 124 Appendix and review SS 2A.

5 Cur. Law.

or agreement to abide the event,\[27\] will deprive the party of his right of review. An existing matter of controversy is essential to any form of review,\[28\] hence the transfer\[29\] or extinguishment\[30\] of the aggrieved party's right is ground of dismissal.\[31\] The right of review may concur with an action to declare the invalidity of the judgment for facts dehors the record.\[32\]

(SS 1) _C. Pendency of a former appeal.\[33\]_--There can be no review while a former proceeding for one identical in scope and operation is pending,\[34\] unless the pending one be thereby abandoned.\[35\] After the reversal of a decree in his favor, the appellee or defendant in error may maintain error or appeal to review questions not decided on his adversary's appeal.\[36\]

SS 2. _The remedy for obtaining review. A. Appeal and error\[37\]_ are the common remedies, the former to review equitable causes,\[38\] the latter judgments at law,\[39\] but a writ.of error will also lie to review a decree in chancery.\[40\] The char acter of the controversy and the relief, not the mode of trial, determines what is legal or equitable,\[41\] and the main judgment gives character to all which is inseparable from it.\[42\] An act providing a particular method of appeal is generally exclusive,\[43\] and must be strictly pursued.\[44\] Ordinarily if an "appeal" is given error will not lie\[45\] and vice versa.\[46\] The suing out of a writ of error is the beginning of a new suit.\[47\] Proceedings by a court reviewing acts of a commissioner finding a party guilty of contempt is not an original proceeding but a review.\[48\]

Appeal and not exceptions is the proper remedy where the case was tried below on an agreed statement of facts containing no clause authorizing the court to draw inferences of fact.\[49\]

Bankruptcy proceedings are specially reviewable under the act.\[50\]

Sometimes a case wrongly brought may be redocked as if brought by the proper mode.\[51\]

(SS 2) _B. Certification or reservation\[52\]_ of doubtful or disputed questions\[58\] is a mode of review in some states.

settlement of decedents' states, Huffman v. \[of taking an appeal and a writ of error to Rhodes \[Neb.\] 100 N. W. 159. The judgment of a district court In habeas corpus proceeded:missible but commendable in cases in which hags. In re Greaser \[Neb.\] 101 N. W. 235. the requreset to doubt which is the proper proceeding to give jurisdiction to bringing the suit without authority, is an ancillary proceeding and not a civil action. A.J. 132 F. 1. Where parties Injuriously af-Capau v. Toledo & W. R. Co., 6 Ohio C. C. (N. S.) 262, 26 Ohio C. C. 578. An order in a pending suit adjduging one not a party guilty of contempt In violating the preliminary injunction therein. Bessette v. Conkey Co. \[C. C. A.\] 133 F. 165. To review in the suing-prepure court of the United States a judgement of the court of appeals of the District of Co-lumba in condemnation proceedings. Metromet of a country court but it may be review-politan R. Co. v. MacFarland, 25 S. Ct. 28. To review the judgment of a territorial supreme court in an action at law. Comstock v. \[S23, and Mills' Ann. St. 1091, a final judge-Ragetton, 25 S. Ct. 210. Conduction of coment of the county court in a proceeding to tempt. Bessette v. Conkey Co., 24 S. Ct. 665. Same rule applies where the respondent is a party. In re Christiensen, 24 S. Ct. 729. Error lies to the ninth circuit court of appeals from the district court of Alaska In an action to recover an interest in a mining claim tried to the court without jury. Act relating to territorial appeals and prescribing appeal does not apply. Shields v. Mongalion Exp. Co. \[C. C. A.\] 137 F. 539.

40. Woodard v. Gloss, 113 Ill. App. 353.

01. That an action at law was tried by the court without a jury does not make appeal the proper remedy for review. Oklahoma City v. McMaster, 25 S. Ct. 324.

01. Taxation of costs is not severable so that a writ of error will be sustained to re-vlew it when appeal is the proper remedy to bring up the case. Jackson v. Butler \[Tex. Civ. App.\] 86 S. W. 772.

01. Act 1903, p. 577, C. 248, SSS 1 and 4 contrived. Lindsay v. Allen \[Tenn.\] 82 S. W. 171.

01. Arkansas & O. R. Co. v. Powell \[Mo. App.\] 80 S. W. 336.

01. Order denying an application tosue a receiver finally disposes of the rights of the parties and is appealable. State v. Superior Court of Spokane County \[Vash.\] 80 P. 195. The remedy in a contested election case is appeal and not error. Jackson v. Butler \[Tex. Civ. App.\] 86 S. W. 772. The practice of the Supreme court, must be certified to
    (SS 2) _C. The common remedies_\[54\] appeal\[55\] or error\[58\] must, if adequate\[57\] or applicable,\[58\] be invoked and not extraordinary and special modes of review.\[50\] Otherwise certiorari\[60\] prohibition,\[61\] mandamus\[62\] injunction, or other equitable remedy\[63\] or habeas corpus\[64\] may avail.

the appellate division for decision. Barlow v. Tierney \[R. I\] $9 A. $30. Where defend-ant appears by attorney after default and moves so set it aside, which motion is denied, he can "allege exceptions in writing" and have them transferred to the supreme court. Laws 1901, p. 563, c. 78, $. Hutchinson v. Manchester St. R. Co. \[N. H\] 60 A. 1011.

53. A question not raised by the pleadings, or ruled upon by the trial court and not presented to court of civil appeals cannot be certified by the latter court to the supreme court. Nabours v. McCord \[Tex\]. Civ. App.\] $2 S. W. 153.

01. See 3 C. L. 171.

01. Necessity of expropriation (eminent domain) may be reached by appeal. Mandamus, certiorari and prohibition denied. State v. Ellis \[L.A\] $7 So. 209.

Injunction is appealable. State v. Leehe \[La.\] $6 So. 868, citing State v. Sommerville \[La.\] $6 So. 864. In the District of Columbia an error of a justice of the peace in everything a plea to the jurisdiction may be corrected by an appeal to the supreme court. On ground that defendals is not a resident of the subdistrict. Anderson v. Morton, 21 App. D. C. 444.

What is an "appenil" The filling of exceptions for a review of the award in proceedings to take land for a railroad under the Indiana law is substantially an appeal. Burns' Ann. St. 1901, $ 510. Cleveland, etc., R. Co. v. Hayes \[Ind. App.\] $7 A. E. 531.

56. Refusal of lower court to make proper order: Refusal of court below to vacate dismissal of appeal to it from inferior court. Mandamus wrong remedy. Lemon v. Oakland Circuit Judge \[Mich.\] 103 N. W. 843.

01. Mandamus will issue if the remedy by appeal is not plain, speedy and adequate. Under Ball. Ann. Codes & St. $756. State v. Hatch \[Wash.\] $7 P. 796.

01. An appeal In Geerfa is a matter of purely statutory right, and lies only when provision is made therefor. Fontano v. Mozley & Co. \[G.\] $8 E. 707. An appeal to the superior court from the judgment of the ordinary setting apart or refusing to set apart a homestest lies only when the objections interposed by creditors are those provided for in Civ. Code 1896, $ 2836. When other objections are interposed, the remedy is by certiorari. Id.

01. Appeal if it exists and not certiorari or prohibition. State v. Leche \[La.\] $6 So. 868. Where producurs are courts of record and are given original jurisdiction in certain matters, their orders and judgments relative to such matters are not subject to collateral attack, but the remedy for one aggrieved is by appeal. Clark v. Rossier \[Idab!\] $7 B. 358. An improper ruling on application for change of venue is error re-viewable by appeal rather than some remedy going only to jurisdiction. Eudaley v. Kan- sas City, etc., R. Co. \[M.o.\] $5 B. W. 366: State v. Evans \[Mo.\] $3 B. W. 447. Certiorari

will not lie if there is an appeal. State v. Justice Court of Tp. No. 1 \[Mont.\] $7 B. 498.

178. C. 444. Will not lie in Minnesota to review personal property tax judgments; the proper remedy being appeal in the manner provided by law for the review of real estate tax judgments. State v. District Court of Ramley County \[Minn.\] $7 B. 498.

sey County \[Minn.\] $7 B. 498. To settle one to a writ of review from the district court under Code Civ. Proc. $ 1941, it must appear that the inferior tribunal was performing some judicial act, that itexceededits jurisdiction, and that there is no appeal or other speedy and adequate remedy. cause v. Justice Court of Tp. No. 1 \[Mont.\] $7 B. 498.

A wit of mandamamus cannot be made to take the place of an appeal or writ of error. On mandamamus to compel signing of bill of exceptions, merits of relator's claim of error will not be considered. State v. Gibson \[Mo.\] $3 B. W. 472. The remedy for refusal of a court to transfer a cause from the law to the equity rocket is by appeal or writ of error, and not by mandamus. Horton v. Gill \[Ind.\] $2 S. W. 718. Mandamus cannot be re-sorted to if remedy by appeal is adequate.

178. C. 444. Centermo v. Ionia Circuit Judge \[Mich.\] 102 N. W. 13; Skutt v. Wolcott \[Mich.\]

001. N. W. 405: Wells v. Montaclin Circuit Judge Judge \[Mich.\] 102 N. W. 1001.

Prohibition will 5 Cur. Law. APPEAL AND REVIEW SS 3A.

Concurrent modes of review may present an election."

In Rhode Island a party attacking a finding of fact which the statement shows was on conflicting evidence by the district court should claim a jury trial and not file exceptions."

A judge should not sit to review the mere exercise of judgment by his predecessor, but should leave the parties aggrieved to their remedy by appeal."

A special term order is properly reviewable by appeal to an appellate court and not by a motion made at another special term presided over by another justice to vacate the former order."

SS 3. _The parties. A. Persons entitled to review_" include only those who are parties," of record," aggrieved," by the decree or judgment, or their successors

Appeal and certiorari are concurrent reme-

66. Cavanaugh v. Grady \[R. L.\] 52 A. 1027.

dies to review judgments of the district court

67. Harrigan v. Gilchrist \[Wis.\] 99 N. W.

in New Jersey (Marcus v. Graver \[N. J.\] 58 A. 909.

64); but in Michigan appeal rather than certiorari is the more appropriate remedy to

68. In re White, 91 N. Y. S. 513.

review errors occurring at trials in justice

70. Must be parties to the action. Hous-

court (Computing Scale Co. v. Tripp \[Mich.\] 101 N. W. 803). Where the trial court did

788. Petitioners held proper parties and en-

reted an administrator to pay himself a titled to appeal from order in county seat

certain compensation for services and attor-

removal contest either under original order.

ney's fees, and also certain expenses of al-

or order amended ununc pro tune under which

leged distributes and refused to fix the

they were granted an appeal after the finding

amount for a superseedes bond on appeal and

was made and thereafter ordered made par-

declined to recognize a superseedes bond in

in ample amount, which was filed; held, that

which was set for a future day. Reese v.

the distributes had not an adequate remedy

78. P. 945.

**Held to be "partites" having the right to**

writ of review. In re Bullivan's Estate

appeal: Under Mansf. Dig. 1167 (ind. T. Ann.

78. 1899, $ 769), providing that appeals shall

01. Will not issue to review an order not

appealable because the subject-matter of the

controversy has ceased to exist. State v.

modifying his report and ordering a distribution of the estate in a manner contended by

62. Mandamus and not writ of error the

remedy for erroneous refusal of an appeal or

supersedes. Gutierrez v. Territory \[N. M.\] 79 P. 299; Albright v. Territory \[N. M.\] 79 P. 179. The proper remedy of appellant in case

a lower court dismisses as for want of ap-

Iinability. Bennett v. Thorne \[Wash.\] 78 P.

paleability an appeal to it is by mandamus

936.

to compel a hearing. Whether such order

was a final one within Code, $ 30, not decided

because in any case the appeal could not be

very v. Anderson \[Ind. T.\] 82 S. W. 716. WIt-

entertained. Robertson V. Southerland, 22

App. D. C. 595. Where there is no review by

appeal or error, mandamus will not lie to re-

view an order of an intermediate court.

Smith v. Connor \[Tex.\] 84 S. W. 815. Where

the refusal of a judge to vacate an order is

not reviewable on appeal, mandamus will

issue to compel him to consider the motion.

Code Civ. Proc. $ 1085. Cahill V. Superior

Court of San Franisees \[Cal.\] 78 P. 467.

63, 64. A suit in equity to vacate a default

judgment will not lie where there is an ade-

quate remedy at law by an appeal from an

order denying the motion to set aside the

judgment. Stewart v. Snow \[Ind. T.\] 82 S. W.

696. An appeal is not the proper remedy to

obtain relief from a judgment taken through

mistake, surprise, etc. Johnston v. Callahan

\[Cal.\] 79 P. 870.

65. After an appeal under the oleomargar-

ine act has been dismissed for want of prosecution, the remedy by certiorari is no longer

available. P. L 1886, p. 107. Maguire v.

Goldberger \[N. J. Law\] 58 A. 167. See 1 C. L.

90, n. I.

66. Cavanaugh v. Grady \[R. L.\] 52 A. 1027.

01. Harrigan v. Gilchrist \[Wis.\] 99 N. W.

in New Jersey (Marcus v. Graver \[N. J.\] 58 A. 909.

68. In re White, 91 N. Y. S. 513.

01. See 3 C. L. 172.

01. Must be parties to the action. Hous-

court (Computing Scale Co. v. Tripp \[Mich.\] 101 N. W.

in interest:"1 and in proceedings not inter parties, or which may affect other than parties,"14- persons having a litigable interest"4 affected detrimentally may appeal."46 All parties impleaded by appellant are conclusively regarded as in interest."47

made a nominal party to a bill by having his \[Stoddard Co. v. Stickney \[N. D.\] 103 N. W. humane inserted in the caption thereof but not properly interpleaded may appeal from a decrease - overruving his demurrer thereto and Stern \[Wis.\] 101 N. W. 1093. Any party to a granting the relief asked as to the subject-matter.in controversy, which it appears from the other pleodings that he claims. Necessary party, Preston v. West \[V. Va.\] 47 S. E. 152.

**72.** Persona that will in no way be affected by a judgment and which was neither for nor against them cannot prosecute an appeal therefrom. Demarest v. Holdeman \[Ind. App.\] 73 N. E. 714. A party suffering no loss by reason of a decree. Heldberger v. Superior Ice & Cold Storage Co. \[Mo.\] 83 S. W. 469. While, prima facie, the original parties on a record may answer, the supreme test as to whether an appeal statue is satisfied as to an appellant, or party aggrived, or adverse party, is the possession of some substantial interest adverse to the judgment, a revision of which is sought on appeal. Rev. St. 1893. # 3049. Harrigan v. Gilchrist \[Wis.\] 9 N. W. 509. Where, in an action for wrongful death which could be brought by the widow alone, the children were joined and a non-sult was entered, an appeal by the children separately was quashed. Haughey v. Pittsburg R. Co. \[Pa.\] 59 A. 1112. Appeal does not lie from a judgment in appellant's favor. In an action to foreclose a trust feed, plain-stiff had judgment for the amount of his debt but was denied foreclosure. Murto v. Lemon \[Colo. App.\] 76 P. 541. One who secures by a judgment or decree all the relief he seeks. Guarantee Co. of North America v. Phenyl Inc. Co. IC. C. A.\] 124 F. 170. Defendant may not appeal from a judgment dismissing the petition in condemation proceedings, though such dismissal is had on petitioner's motion and for unsound reasons, and after a refusal of the court to act on defendants' motion to dismism. Roby v. South Earth Corns \[III.\] 74 N. E. 125. In a joint and several appeal it is not necessary that both the appellants be agrived. Mills' Ann. St. # 400, construed. Strutton's Independence v. Midland Terminal R. Co. \[Colo.\] 77 P. 247.

**Held to be parties aggrived:** An executor by an order directing partial distribution of the estate, where there is an issue as to the sufficiency of the estate to meet the distribution without loss to creditors. In rurbury's Estate \[CaL.\] 78 P. 960. Benefcaleries of a trust created by a will, by an order refusing probate of the will. In re Fay's Estate \[CaL.\] 78 P. 340. Parties claiming an interest in the subject-matter, by a judgment purporting to determine that they have no rights therein. New York Life Ins. Co. v. Brown \[Colo.\] 76 P. 799. Remonstrants by an order granting a permit to sell liquor. In re Smith \[Iowa\] 101 N. W. 875. Under Cole Pub. Gen. Laws, art. 5, # 60, a trustee holding funds belonging to an absentee, by a decree of the "orphans" court appending an administrator for the absentee. Lee v. Allen \[Md.\] 59 A. 184. One against whom judgment went has an appealable interest. Milburn- 5 Cur. Law. APPEAL AND REVIEW SS 3B.

Appellee by stipulation may waive the question of appellant's appealable interest.${}^{\\ref{eq:1}}$

(SS 3) _B. Necessary or proper parties to be joined${}^{\\ref{eq:2}}$_ or brought in${}^{\\ref{eq:3}}$ include all persons who may be affected by a reversal.${}^{\\ref{eq:4}}$ Among them are all co-defendants${}^{\\ref{eq:5}}$ who are joint in interest,${}^{\\ref{eq:5}}$ and co-parties${}^{\\ref{eq:6}}$ who decline to join in the review.${}^{\\ref{eq:7}}$ Successors in title and interest${}^{\\ref{eq:7}}$ may be substituted,${}^{\\ref{eq:7}}$ or brought in.

the absentee with a view to distributing his \[to appeal from refusal to quash a writ of property among his helrs. Lee v. Allen \[Md.\] assistance and restore the claimant. Forec-59 A. 184. An het at law and next of kin closure purchaser and claimant apellant are who was not cited and did not know of or appear in a will contest in the orphans' court \[582. Where a judgment of foreclosure has is a person aggrieved by a decree admitting a been entered, and a sale thereunder made to will to probate and may appeal therem to the prerogative court. In re Young's VIII \[N. J. Eq.\] 59 A. 154. Where a referee foreclosure suit, notice of appeal from an or master commissioner presents a claim \[or refusing such writ need not be served for fees and expenses in the matter of the examination of a complicated guardian's \[Y. Smiley \[Idaho\] 76 P. 783. On appeal from account, and the claim is disallowed, the an order distributing an insolvent's estate, right of appeal extends to such referee or creditors whose claims have been proved and master. In re Guardianship of Edith K. \[Allowed are necessary parties. Bloomingdale Gorman, 2 Ohio N. P. (N. S.) 667, 15 Ohio \] , Watson \[C. C. A.\] 18 F. 268. Where, in Dee. 204. Judgment in repelvin in favor of the administrator of a widow, against that the assets of an insolvent corporation administrator of her husband, \[a\] adverse can in no case discharge the liabilities, and to all parties interested as distributes of his estate. Hinn v. Gersten \[V'Is.\] 99 N.

The suing out of a writ of error is the beginning of a new suit which must implead those who stand as parties at that time.88 One not cited is not necessary.89

posed to matters of discretion\* such as cost awards,\*\* and it must have reached a finality,\*\* became of record,1 and been against appellant's consent or not due to his default.2 Doubts as to appealability will be resolved favorably to the appeal.2 It is sometimes said that motion for a new trial is necessary to appeal. This usually means that otherwise certain matters will not be reviewed4 or that the appeal must be taken to the order on such motion and not from the judgment if certain matters would be reviewed.5 Decisions other than the foregoing are reviewable under varia
133

APPEAL AND REVIEW SS 4B. 5 Cur. Law.

ous statutes if they determine the "merits."?" "principles of the cause,"?" deny a rightful mode of trial," "in effect discontinue the cause?" or "prevent judgment,"?" or if they "change possession"?" or "affect property rights," or if they would have been "final if rendered as claimed."?" In some jurisdictions any interlocutory order is appealable by leave of court," and as to some of such orders, even this is needless."

Error will not lie to a judgment rendered pursuant to directions given on remand," but a judgment resulting from election to pursue one of two courses held open by the mandate is appealable;" and where a judgment is affirmed with directions, the lower court must construe the same, and, if error is committed in so doing, the judgment is not void but subject to correction on review."

Decisions by nonjudicial tribunals or boards are reviewable only by statute," and statutory remedies are confined to such awards as their terms cover."

Rulings relating to pleadings" and process" and matters of practice before

**6.** Intermediate decree upon the merits. **11.** An appeal lies from a decree appoint-Cauthen v. Cauthen \[S. C.\] 49 S. E. 321. An order granting a change of venue in a civil session or control of the property is required. action involves the merits. Robertson Lumber Co. v. Jones \[N. D.\] 99 N. V. 1082.

**7.** An interlocutory decree that is appealable as one adjudiating the principles of the cause is one which adjudiates all the questions raised, and determines the principles and rules by which relief is to be administered so that it is only necessary to apply them to the facts in order to decree the relative rights of the parties in the subject-matter. Hill v. Cronin \[W. Va.\] 49 S. E. 132.

A decree in a suit by an executor against devises to convene creditors and administer the assets for their payment, made on a report of debts by a commissioner, decreeing debts against the estate and subjecting its lands to their payment, is appealable, since it is finsai, and adjudiates the principles of the cause. Trall v. Trall \[W. Va.\] 49 S. E. 431.

Appeals are allowable in chancery wherein there is a decree or order adjudiating the principles of the cause. Code 1899, c. 135, 1. Armstrong v. Toss \[W. Va.\] 48 S. E. 746.

Not from an order of reference, rounded on the expressed opinion of the judge, without adjudiating the principles involved. Id.

**8.** An order referring or recommitting a cause to the master to take and report testi-mony is not appealable unless it operates to deny a Hitsant a mode of trial to which he is entitled or is coram non judice. It is discretionary. Davidson v. Copeland \[S. C.\] 48 S. E. 33.

**9.** Transfer to another court does not do so. Womack v. Connor \[Ark.\] 85 S. W. 783.

**10.** An order in a mandamus proceeding denying relator's application for an order prescribing what particular questions arising in an action shall be tried by a jury is not an order affecting a substantial right determining the action and preventing judgment. Flannigan v. Lindgren \[Wis.\] 100 N. V. W. 818. Rulings on motions to amend pleadings do not ordinarily affect any substantial right, nor have appealable finality. Wlessmann v. Shanley \[VWs.\] 102 N. V. W. 932. An order denying plaintiff's motion to correct a verdict and enter judgment for him is not appealable as the error may be reviewed on appeal from the final judgement. Wolfgram v. Schoepke \[VWs.\] 100 N. W. 1054.

**11.** An appeal lies from a decree appoint-Cauthen v. Cauthen \[S. C.\] 49 S. E. 321. An order granting a change of venue in a civil session or control of the property is required.

Virginia Passenger & Power Co. v. Fisher

\[Va.\] 51 S. E. 198. Order authorizing sheerf to release sequestered property on bond being furnished. Boimare v. St. Geme \[La.\] 37 So., 770.

**12.** A judgment overruling a demurrer to a petition is proper matter for direct exception, as a ruling which would have been final "if it had been rendered as claimed" by defendant. Code 1895, 1 5526. Ramey v. O'Byrne

\[Go.\] 49 S. E. 595. Except in the case of fast writing, the supreme court has no jurisdiction to consider a writ of error until after a final judgment in the court below, or one which would have been final had it been rendered as claimed by the plaintiff in error. Johnson v.

Battle \[Go.\] 48 S. E. 128.

**13.** Overruling demurrer. Code D. C. SS 226. Starkweather v. Bank, 21 App. D. C. 281.

**14.** Allowance of temporary alimony, Lesh v. Tesh, 21 App. D. C. 475.

**15.** Chiles v. School Dist. of Buckner. Jackson County \[Mo. App.\] 85 S. W. 880.

**16.** Where a cause is reversed and re-manded, the opinion indicating that complain-ant may take one of two courses, and he elects to take a dismissal, an appeal the trial22 are not generally reviewable in the absence of statute unless their effect is to finally determine the action22 or involve "substantial rights," "merits," etc.24

Dismissals,25 nonsuits,28 orders to strike cause27 and the like,28 are reviewable

Union Tel. Co. \[S. C.\] $1 S. E. 117. Unless posed of before the justice. United States there has been a final termination of the v. Barnard, 24 App. D. C. 8. Where a coverage in the lower court, a writ of error will portion defendant pleads to the jurisdiction at no order striking a plea, even tion and files exceptions pendente lite to a though its effect may be to entitle plaintiff judgment overrolling the plea, and where, to a verdict or judgment as a matter of more than 60 days thereafter, the issue aris-course. Johnson v. Battle \[Ga.\] 48 S. E. 128. The program a traverse to the return of service Defendant is not entitled to appeal from an order overrolling his plea in abatement in attachment proceedings, but can only appeal that there had been no final disposition of on the whole case. Rev. St. 1839, & 407. American Nat. Bank v. Thornwurf \[Mo.\] App.\] $3 S. W. 771.

Demonstrares and rulings thereon: Shannon's Code, $489, providing for the allowance of appeals from orders on demurrer applies to equity cases only. Payne v. Satterfield West \[Ga.\] 48 S. E. 693. An order quash-separate denurrer of two defendants, no dis-position of the case being made as to another defendant, is not a final order. Houston v. Brown \[Ind. T.\] $2 S. W. 775. Order sustaining demurrer to special pleas is not final while case is at issue on a general plea. Wenour v. Fossick, 115 Ill. App. 605.

Order sustaining a demurrer to the complaint is not appealable. State v. Fleming

\[Vwash.\] 79 P. 1115; New Jersey Bldg. Loan & Investment Co. v. Lord \[N. J. Err. & App.\] $8 A. 185; Ernest v. Grand Trunk Western R. Co. \[Ind. App.\] $2 N. E. 1136; Livingston County Bldg. & Loan Asf'n v. Keach \[Ill.\] 72 N. E. 169; People v. Severson, 113 Ill. App. 496.

An order overruling a demurrer is not appealable. Belding v. Washington Corine Co. \[Vwash.\] 78 P. 37; Wenom V. Fossick

\[Ill.\] 72 N. E. 732; Taft v. Mossey \[Vl.\] 59 A. 166; Wright v. Creamery Package Co. \[VI.\] $8 A. 803; Gates v. Solomon \[Ark.\] $8 B, W. 348; Vaughn v. Minner \[Ga.\] 49 S. E. 287; Niles v. United States Trust Co., 22 App. D. C. 255; Starkweather v. Bank, 21 App. D. C. 281.

Amendments: A ruling on motion to amend not determinative of the cause will not go up on direct exception in Georgia

even if final judgment has been since rendered; the writ must go from the final judgment. A direct bill of exceptions to a ruling made pendente lite, which does not assign error upon any final judgment, though such judgment was rendered, will not be entertained. Kibben V. Coastwise Dredging Co. \[Ga.\] 48 S. E. 330. The refusal of an amendment on the ground of want of power is appealable. To complaint, Lassiter v. Norfolk & C. R. Co. \[N. C.\] 48 S. E. 649. Appeal from order refusing leave to file supplementary petition. Swift & Co. v. Koutsky \[Neb.\] 103 N. W. 436.

21. An order overruling a motion to vacate an order of publication against a non-resident defendant is not appealable. Not a final decree disposing of case, nor such an interlocutory order as a appealable under Code, $276. Chappell v. O'Brien, 22 App. D. C. 190. An order of a justice of the peace quashing a writ of attachment is inadvertency and not appealable to the supreme court while the action remains undie- when determinative of the action," otherwise not," and refusals to make such orders are not reviewable.\[31\]

Directed verdicts,\[32\] orders directing or arresting judgment or orders for new trial\*\*\[32\]\*\* and others of similar operation\[34\] are not reviewable at common law, since they are often discretionary and are not final. In some states, however, they are made directly appealable.\[35\]

A reviewable final judgment or decree must be finally determinative\[36\] of the controversy to the aggrievement of the person claiming review.

not be dismissed for want of jurisdiction. not appealable; hence an order refusing to Price v. Davis Coal & Coke Co. \[Pa.\] 57 A. \[Ca.\] 79 P. 171.

The refusal of * motion to dismissment is not appealable. Length v. White \[N. D.\] 100 N. W. 1084. Where a bill sets up distinct causes of action, a decree dismissing it as to certain of them and retaining it as to the others is final in so far as the dismisssal is concerned. Serven v. North \[C, C. A.\] 13 F. 566.

2G. A judgment of nonsult which neither provided that plaintiffs take nothing by their writ and that defendant go hence without day, nor dismissed the case with costs to plaintiffs, is not appealable. Lyons v. Rollinson \[Mdo. App.\] 82 S. W. 845. A refusal to grant a compulsory nonsult is not appealable, Snowman v. Mason \[Me.\] 59 A. 1019; Cox v. Wilson, 25 Pa. Super. Ct. 685; Queen Anne's R. Co. v. Reed \[DeL.\] 59 A. 860.

2T. Refusal to quash a writ of foreign attachment is not a final judgment and is, therefore, not the subject of appeal. Demp-sey v. Petersburg Sav. & Ins. Co., 26 Pa. Super. Ct. 633.

2S. A writ of error will lie to review the overruling of a motion to reinstate the case after the petition has been dismissed on denumer. Van Dyke v. Van Dyke \[Ga.\] 18 S. E. 850. An order vacating and setting aside a verdict and not in terms but in effect granting a new trial is appealable. Ekades v. Trowbridge \[Ca.\] 76 P. 714. Where a state court orders the removal of a case to the Federal court on an Insulin client petition. the party aggrieved may appeal to the state appellate court. Illinois Cont. R. Co. v. Jones' Adm't \[Ky.\] 89 A. 484. An order quashing a writ of garishment and releasing the garnishes is in effect a final judgment in the garnishment proceeding and reviewable by the supreme court. Record v. 8t. Clark Circuit Judge \[Mich.\] 102 N. W. 643. An order of discharge upon a writ of habense corpus in not a final order in the sense that an appeal or writ of error may be prosecuted thereon. Magerstadt V. People, 105 III. App. 316.

29. Where a bill in equity was dismissed and an order entered discharging a receiver and providing for the payment of costs, every question having been disposed of in so far as the trial court was concerned, it was a final decree. Viquesney v. Allen \[C. A.\] 121 F. 51.

01. An order vacating an attachment is not appealable. Feldman v. Siegel, 87 N. Y.

01. An order refusing to direct a verdict in favor of a cross defendant as to whom the cause was continued is not appealable. Bussell v. Ft. Dodge \[Iowa\] 101 N. W. 1126.

01. Jefferson Hotel Co. v. Warren \[C. C. A.\] 128 F. 565; Foster v. Murphy & Co. IC. A.\] 135 F. 47; Clement v. Wilson \[C. C. A.\] 135 F. 749.

01. A motion to vacate a verdict is a motion for new trial and not appealable. Stern v. Bennington \[Md.\] 60 A. 17. Rules to show cause in cases tried in the district court in New Jersey cannot be brought before the supreme court by appeal. Haag \[V. Elizabeth, etc., R. Co. \[N. J. Law\] 60 A. 515. An order allowing one not a party to the suit to file an original bill in the nature of a bill of review is not appealable. Leggett v. Detroit \[Mich.\] 100 N. W. 566. No appeal lies from an order of the municipal court opening a default and vacating the judgment founded thereon. Candelore v. Benvenna, 88 N. Y. 857.

01. Direct bill lies to directed verdict. Webb v. Hicks \[Ga.\] 43 S. E. 788. Order overrulings motion to reject findings made by a party is not enumerated in Code Civ. Proc. $ 1722, amended by Bess. Laws 1899, p. 146, and is not appealable. Johns v. Barnes \[Mont.\] 78 P. 703. An appeal lies from an order setting aside a verdict and granting a new trial for a supposed error of law. Johnson v. Grand Fountain of United Order of T. R. \[N. C.\] 47 S. E. 463.

The denial in vacation of a motion to dismissment was a motion for new trial is cause for a separate and independent writ of error. Sumner v. Sumner \[Ga.\] 48 S. E. 727.

36. A final decree in a changerry case, such as will support an appeal, is 5 Cur. Law. APPEAL AND REVIEW $ 4B.

Orders and adjudications in interlocutory\* or provisional,\*\* extraordinary\*\*\[30\]

v. Littleton \[\[Md.\] 60 A. 22. A final judgment is one which puts an end to the section by declaring that the plaintiff has either entitled himself, or has not, to re-cover the remedy for which he guess. Tipton v. Harris \[Ky.\] 82 S. W. 858.

Final: Dismismising a petition for failure to amend as directed. Egan - v. New York, \[Neb.\] 100 N. W. 159. An application for etc., R. Co., 6 Ohio C. C. (N. S.) 482, 26 Ohio C. C. 616. A decree for complainant on electorically full to redesign from a mortgage and order-, and decision by the judge of the superior 37 So. 859. A decree dismissing a bill "out of court" for want of equity is- final within-, in Code 1896, $ 426, authorizing appeals in chancery. Schwarz, Rosenbaum & Co. v. Barley \[Ala.\] 38 So. 119. Where partners agree upon liquidators to wind up the business and they proceed by rule to re-, require creditors to show cause why inscriptions purporting to operate as privileges and mortgages should not be canceled, a judgment dismissing such rule, as showing no cause of action. Fisher v. Noullet \[La.\] 38 So. 94. Final decree enjoining defendant from entering land, though de-, and special\*" proceedings, are not reviewable except as provided by statute,41 and

erty pending litigation is Interlocutory only able as an interlocutory decree granting an and unappeatable. Columbia Ave. Trust Co. v. MaxAfee Co., \[C. C. A.\] 136 F. 402. An order making absolute a rule, granted under the Pennsylvania statutes, to bring an action of electment within six months, in interlocutory and an applicable. Gabiev, chareter and dissolving the injunction to Black \[Pa.\] 60 A. 257. Order discharging a rule to show cause why an attorney should not enter appearance for a lien claimant and strike off the lien according to agreement. Kurrie v. Cottingham \[Pa.\] 57 A. 1106. Order appointing receiver. Town of Vanadla V. St. Louis, etc., R. Co. \[Hill\] 70 N. E. 62. The code in Maryland authorizes an applicable from an order appointing a receiver. \[Code, art, & 8 25\] (Manumental Mut. Life Jusin. Co. v. Wilkinson \[Md.\] 59 A. 125), but an order refusing to resend their appointment is not final in its nature and is not appealable (Id.). Neither an order of a circuit court approving monthly reports of the order only as dissolves the injunction. expenses incurred by him, made before the coming in of his final account, is final. Helenze v. Butte & B. Consol. Min. Co., \[C. C. A.\] 129 F. 337. In New York an appeal from an interlocutory judgment of the coun- to court will be considered on its merits where the parties have stipulated that it may be regarded as a motion for new trial on exceptions. Russ v. Maxwell, 87 N. Y. S. 1077. Interlocutory orders dissolving injunctions are appealable In Alabama, but this applies only to cases where an injunction has been dissolved by order of decrease, and not by the act of complainant. Code 1896, & 428. Robertson v. Montgomery Base Ball Ass's \[Ala.\] 37 So. 241. The deliverance of the chancellor that the filing of an amendment by complainant operated as a dissolution of the injunction is not such a dissolution as will support an appeal. Id. The appeal from a refusal of an application to translate an injunction, under chanceiry rule in Alabama, applies only where the injunction was dissolved by order or decreer, and not by the act of a party. Code 1896, p. 1224, rule 101. Id. Appeal does not lle to a proceeding ancillary to the main action. Capault v. Toledo & W. R. Co., & Ohio C. C. (N. S.) 262, 26 Ohio C. C. 578. \[S8. Injunctional orders: The dissolution of injunction and sequestration writs on bond adequately large to cover the claim of appellant made in terms reducible to money is not appellable since irreparable damage is not threatened. State v. Brunet \[La.\] 38 So. 481. In New York the discretion of the supreme court in issuing or refusing an injunction is not unlimited, and facts may be proved which will raise a question of law reviewable by the court of appeals. Penny State Co. v. Granville Elec. Light & Power Co. \[N. Y.\] 73 N. E. 566. Under Pierce's Code $ 104$, subd. 8, not from an order vacating a temporary injunction unless it appears that the party enjoined is insolvent. Anderson v. McGregor \[VWash.\] 78 P. 776. A degree on the merits finding infrinement of a patent, awarding a permanent injunction, and directing a reference to ascertain damages and profits is appealable.

then must be finally determinative,\[42\] work irreparable injury,\[43\] or affect substantial rights.\[44\] Orders punishing for contempt\[45, 46, 47\] are not reviewable except as provided by statute.

Orders after judgment\[48\] are not reviewable separately from the judgment if merely a part or continuation\[49\] of it; otherwise if they newly\[40\] determine rights\[51\]

granting or refusing a liquor license is not reviewable by appeal. Halverstadt v. Berger \[Neb.\] 100 N. W. 934. No appeal or writ of error lies to review a decision of the imstatance commasco commission denying or awarding reparation for an alleged violation of the intrastate commasco act. Western tion is not appealable. People v. Ann Arbor New York & P. R. Co. v. Penn Refining Co. R. Co. \[Mich.\] 100 N. W. 832. An order in an equity suit adjudging defendant guilty of a guardian's annual settlement is appealable. Under Sens. Laws 1899, 146. In be reviewed except on appeal from the final decree in the cause. Christensen Engineer- 41. Cohen v. Ridgewood Shirt Co., 84 N. T. S. 188. In West Virginia, a decree over- 45, 46, 47. An order refusing to punish as ruling a motion to quash an attachment is an Interlocutory, but appealable, decree. Code 1899, c. 135, 8. L. Elkins Nat. Bank v. Everable (Bessette v. W. B. Conkey Co., Simmons \[V. V.\] 49 S. E. 893. \[48\], and the same rule applies to the commitment of a party (In re Christen- junction on a complaint alleging irreparable \[88\], San Engineering Co., 24 S. Ct. 729). Injury, after notice and hearing both sides, purview of a statute making appealable ft, but the only method of review possible final orders after judgment which affect sub- ils In accordance with the statute requisantial rights. Smith v. Palmer \[Wash.\] lasting appeals (Code 535). Jordan v. Willson \[S. C.\] 48 S. E. 37. An order made on application of counsel for a penalty. Order denying motion, after judg- receiver, without notice to the creditors, making an allowance for their services to him is not final and, therefore, not appealable. Wilfer v. Reed \[Or.\] 78 P. 1027. The determination of a Justice of the distret court deciding when one may take the poor debtor's path is not reviewable on bill of exceptions. It is incident to some other proceeding and not directly reviewable. In re Harless \[R. I.\] 60 A. 1067. Order apointing a curstore is not appealable. Not a final decision. Looney v. Browning \[Mo.\] 86 S. W. 564. An order in proceedings supplementary to execution requiring a person indebted to the judgment debtor to pay over the fund to apply on the judgment li final and reviewable on error at the suit of the judgment debtor where he opposed it on the ground that the debt was exempt. Duffey v. Reardon \[Ohide\] 71 N. E. 712. \[43\]. An order requiring a bond for the release of a sequestration does not. State v. St. Paul \[La.\] 37 So. 964. \[44\]. An order disallowing a chatted mortgage on a bankrupt's property is appealable to the circuit court of appeals under section 24a of the bankrupt act. In re First Nat. Bank \[C. C. A.\] 135 F. 62; Dodge v. Norlin \[C. C. A.\] 133 F. 368. No appeal lies from an order of the appellate division affirming an order of the county court refusing to strike from its records a presentment of the grand jury ensuring the board of supervisors for remissness in keeping their records. In re Jones \[N. Y.\] 74 N. E. 126. An order punishing a witness for contempt for failure to answer questions in proceedings to discover property of a decedent is final and appealable to the court of appeals. King v. Ashley \[N. Y.\] 72 N. E. 106.

or vacate,52 modify,53 or deny vacation or modification54 of the judgment as distinguished from a default55 and on some ground not resting in discretion.56

Decisions of lower appellate or intermediate courts are reviewable in cases usually prescribed by statute57 if they possess finality.58 A judgment of a state

Coey v. Cleghorn \[Idaho\] 77 P. 331. A without notice to one who had appeared judgment vacating a judgment and which also determines all questions which could be tried on a retrial is appealable though no by motion to set aside, Walton v. Hartman formal order of dismissal of the action was made. Nolan v. Arnot \[Wash.\] 78 P. 463. An order refusing to vacate # prior an order confirming a sale by a commissioner or for foreclosure is final and appealable. Cooper v. Ryan \[Ark.\] 83 S. W. 328. An appeal will lie from an order awarding a writ of assistance in a foreclosure proceeding after the sale has been confirmed and dead ordered, subject to the conditions of an appeal from an order confirming the sale. Esceritt v. Michaelson \[Neb.\] 103 N. W. 300. An order discharging a rule to set aside a writ of execution is a final order on which an appeal will at once life. Long v. Lebanon Nat. Bank \[Pa.\] 60 A. 556, citing Packer v. Owens, 164 Pa. 185. Final order appeal lies from an order allowing or disallowing costs for or against a guardian or his ward. In re Gorman, 2 Ohio N. P. (N. S.) 667, 15 Ohio Dec. 204. 52. Ordismary an order vacating a judgment is not appealable but if it is a final order affecting substantial rights, an appeal will lie. State v. Tallman \[Vwash.\] 80 P. 272. An order resetting a prior order of discontinuance and vacating it is appealable. Cameron v. White, 92 N. Y. S. 381. 58. An order of the probate court which vacates in part a previous order is appealable. In re Phelps' Ekate \[Minn.\] 101 N. W. 496. Order amending judgment already entered. Code Civ. Proc. $ 1722, amended by Sess. Laws 1899, p. 146. State v. District Court of Second Judicial Dist. \[Mont.\] 79 P. 410. 54. Order denying a motion to vacate a judgment of dismissal is not appealable. \_Alpers v. Bilas \[Cal.\] 79 P. 171. An order refusing to vacate a decree of distribution of a decedent's estate made by a district court is an order after judgment and is not appealable. Code Civ. Proc. $ 445 (Comp. St. 1887, div. 1). In re Kelly's Ekate \[Mont.\] 79 P. 244. Under the Connecticut statute, a refusal to set aside a judgment of non-suit is appealable. British American Ins. Co. v. Wilson \[Conn.\] 60 A. 293. 55. Statute does not include refusal to set aside decree pro confesso (Montgomery Traction Co. v. Harmon \[Ala.\] 37 So. 371), but as to other decrees than those confessed an appeal lies directly from a decree reversing them upon motion. Motion to reverse required by Code 1899, c. 134, applies only to cases upon a bill taken for confessed. Morrison & Co. v. Leach \[W. Va.\] 47 S. E. 287. Opening default is not the grant of a new trial from which appeal lies. Breed v. Hobart \[Mo.\] 86 S. V. 108. An appeal from a default judgment on the ground that defendant had not been properly served, defendant appearing specially for that purpose, is premature. Houston v. Greensboro. Lumber Co. \[N. C.\] 48 S. E. 738. An appeal from a default judgment. Irregularly entered supreme court reversing and remanding an equity case is not final.\[59\] Such minor court decisions are appealable as provided by statute.\[60\]

Parts of judgments may be reviewed if severable and complete in themselves.\[61\] As costs are part of the judgment, the taxation of them is not separately reviewable.\[62\]

(SS 4) _C. Reviewableness may depend on character or value of action, subject-matter, or controversy.\[63\]_--The action must be civil in its nature\[64\] to be reviewable by civil remedies. It must involve questions of laws or of fact to be reviewable by the remedies appropriate to each, e. g., error or appeal. In determining whether such an amount is involved as to make appeal or certiorari the proper remedy, the pleadings alone determine.\[66\]

The case may go either to an intermediate or to the highest court or may or may not be subject to further appeal from the former to the latter if any of the criteria hereafter referred to exist,\[67\] and the rights on which they stand have not a recordari granted as a substitute for an appenal from a justice, while not appealable. Garfinkel v. Sullivan \[Wash.\] able, is, when excepted to, reviewable on 80 P. 188. Judgment on an appenal from the court's action in getting aside a verdict and granting a new trial on the ground of an error of law. Refusal as it is. State v. Cox \[La.\] 38 So. 456: State not a final judgment. Johnson v. Grand Fountain of United Order of True Reformers \[N. C.\] 47 S. E. 483. Order of the district court overvilling a motion to dismiss an appeal from the justice court is not a final judgment appenalable under Code Civ. Proc. $ 1722, as amended by Sess. Laws 1899, p. 146. Raymond v. Raymond \[Mon.\] 179 P. 1056. Order of the district court overvilling a motion to dismiss an appeal from a justice court is not within Code Civ. Proc. $ 1722, as amended by Sess. Laws 1899, p. 146. Id. Judgment entered by the district court on direction of the court of appeals pursuant to Mills' Ann. Code $ 398, is a judgment of the court of appeals so far as concerns review by the supreme court. Tay.lor v. Colorado Ironworks \[Colo.\] 80 P. 129. Stattues in some states provide for an appenal from the clerk to a judge of the superior court; the decision of the question by the judge, and the transmission of his decision to the clerk, after notice of which the parties may proceed according to law. N. C. Code $ 254, 255. Alfred v. Smith \[N. C.\] 47 S. E. 597. A decision of the judge of the superior court on reversing a ruling of the clerk sustaining a demurrer is not a final judgment, but operates to remand the case, so far as it is before the judge, to the clerk. Under N. C. Code, $ 254, 255. Id. 58. Schlosser v. Hemphill, 25 S. Ct. 654. 66. A judgment of the county court directing the removal of a county seat is appealable to the circuit court. Reese v. Steele \[Ark.\] $ 38 S. W. 385. 61. Code Civ. Proc. $ 1300, distinctly allows appeals from specified parts of orders or judgments. Ziadi V. Interurban St. R. Co., $ 38 N. Y. S. 606. 62. State v. District Court of Second Judgial Dist. \[Mon.\] 79 P. 410. An order refusing to allow costs is reviewable only on appeal from the judgment. Musigbrod v. Hartford \[Mon.\] 76 P. 563. 68. See 3 C. L. 158. 69. Order for the discharge of a pris- to the court of the judge, and the rights on which they stand have not a recordari granted as a substitute for an appenal from a justice, while not appealable. Garfinkel v. Sullivan \[Wash.\] able, is, when excepted to, reviewable on 80 P. 188. Judgment on an appenal from the court's action in getting aside a verdict and granting a new trial on the prosecution and is appealable only as it is. State v. Cox \[La.\] 38 So. 456: State not a final judgment. Johnson v. Grand Fountain of United Order of True Reformers \[N. C.\] 47 S. E. 483. Order of * 140 APPEAL AND REVIEW SS 4C. 5 Cur. Law.

been waived. \[68\] Thus if a decision is allowed to become a finality when it might be appealed, the appellate jurisdiction ex ratione materiae is ended, and an appeal from an injunction against execution for costs is governed solely by the amount. \[69\] Unless they exist, no error, however gross, opens the decision of an intermediate court, otherwise the last resort, to further appeal. \[70\] In Louisiana a reconventional judgment \[71\] or one dependent on a preceding judgment \[72\] is attracted to the nature of the principal one and goes where it would. Jurisdiction because of the subject-matter usually prevails over that dependent on the amount, \[73\] and the existence of one jurisdictional predicate makes others needless. \[74\] _Particular jurisdictional facts. \[75\]_--Among the criteria prescribed by various statutes to determine appealability are the existence \[76\] of a constitutional \[77\] question particularly pointed out, \[78\] set up, \[79\] necessary to decision, \[80\] and adversely \[78\] **Cases originating before justices of the** the\*\* appealability of order made before or peace: Under B. & C. Comp. $ 548, providing that any party to a judgment may appeal, amount involved. Sierra Water & Min. Co. appeal lies from a judgment in forcible en- \[71\] **7** P. 1038. In Kansas destroy and unlawful detainer appealed from a\*\* **fendant in forcible entry and detainer may justice of the peace. Dechenbach v. Rima** \*\*appeal regardless of the amount involved. \[70\] **7** P. 391. \[72\] **68. Though a judgment after rendition cannot be so abated as to render it unapacunity. Order requiring corpora-pealable, waver before judgment of a** **lion counsel of a city to approve a cost bill.** **which would have resulted from the judgment is not such an abatement (Rhodes v. \[73\] **74**. In cases involving construction of** **Frankfort Chair Co. \[69\] **75** S. W. 768),** **revens laws, the supreme court of Mis- and may destroy the character or quality** **worth has apelle jurisdiction, even though** **who confers appealability (Id.).** **no constitutional question is Involved. City of St. Joseph v. Metropolitan Life Ins. Co. \[70\] **81** S. W. 7080.**

- 70\*\*. Where an intermediate court is the court of last resort where not exceeding a certain amount is involved, a judgment in which an action, though void, will not be previously decided by the supreme court, it viewed by the supreme court. State v. \[78\] **with** **teria jurisdiction if the appeal was** **perior Court of Lincoln County \[78\]. 77 P. 33. The Colorado supreme court has no jurisdiction to review by error a judgment of the court of appeals where it has no jurisdiction to review by appeal. Taylor v. Colorado Iron Works \[80\] **80** P. 129. \[79\] **71**. Judgment in reconvention is appealable where the main case would go. Judgment for imploded third party establishing title held to have been on conventional demand.** **Netter v. Reggio \[78\] **30**. **620. \[79\] **72**. The supreme court will not entertain appeal of a suit for nullity of a judgment not appealable to it (Strain's Heirs v. Lyons \[78\] **(La.) 38** S. 483), and coupling with it a demand for collateral relief or damages does not aid the matter (Id.).** **73**. Title to land controls value. Illinois** \*\*Cent R. Co. v. Ross \[69\] **83** S. W. 635. Under Const. art. 4, $ 4, and 2 Ball. Ann. Codes & St. 4,450, giving jurisdiction where validity of a statue is involved, the supreme court has jurisdiction of an appeal involving validity of a city ordinance regardless of the amount. Shook v. Sexton \[78\]. 79 P. 1032. The Washington supreme court has jurisdiction of appeals in equitable actions regardless of the amount in controversy. Injunction. Trumbull v. Jefferson County \[79\] \*\*79 P. .1105; Bennett v. Thorne \[78\] **78** P. 936. In cases where the supreme court has appellate jurisdiction of the matter in controversy in the lower court, or prejudicially decided,81 the construction82 of statutes or public regulations, a question83 or conflict of jurisdiction, or a conflict with,84 or overruling of,85 a decision of a co-ordinate court of intermediate appeal,86 a case involving the revenue87 or taxes,88 a case involving freeholds,89 titles,80 boundaries,81 or franchises, or the

stons claimed to have been violated must be pointed out. Clty of St. Joseph v. Metro-pollatan Life Ins. Co. \[Mo.\] 81 S. W. 1080; Shaw v. Goldman \[Mo.\] 81 S. W. 1223.

76. The constitutional question must have been raised below. State v. Blend \[Mo.\] 85 S. W. 561. Where judgment was rendered against planfitter for failure to comply with a statute and he asked a declaration of law that such statutes was unconstitutional and exceeded to its refusal, a constitutional question is involved. Haag v. Ward \[Mo.\] 85 S. W. 391. To authorize review in the supreme court on the ground that a constitutional question is involved, such question must be squarely raised, saved by exception, and either embodied in the bill of exceptions or presented, by the record. Clty of Tarkio v. Clark \[Mo.\] 85 S. W. 329. Fairly preserved in the record. More assertion of counsel is not sufficient. Grivacu v. South Chicago City R. Co. \[II.\] 73 N. E. 309. If question clearly appears from the plendings, it is immaterial that the original bill does not expressate that the statute drawn in question is unconstitutional. Wolf v. Hope \[II.\] 70 N. E. 1082.

01. Where the case may be decided without reference to the statute whose constitutionality Is attacked, no constitutional question is involved. State v. Blend \[Mo.\] 85 S. W. 561. The Colorado supreme court has no jurisdiction to review a district court judgment in a matter appelined from the action of the county commissioners refusing relief against an assessment where the determination of the case may rest on the violation of a statute without invoking a constitutional provision to the same effect. Board of Com's of Teller County v. Independence Consol. Gold Min. Co. \[Co.\] 79 P. 1012, following Pilgrim Con. M. Co. v. Board of County Com's of Teller Co. \[Co.\] 76 P. 846.

01. Supreme court has no jurisdiction on constitutional ground, where instructions authorized a verdict by three-fourths of the jury, but the verdict in fact returned was unanimous. Kimble v. St. Louis & S. R. Co. \[Mo.\] 81 S. W. 887; Meng v. St. Louis & S. R. Co. \[Mo.\] 81 S. W. 907; Portwright v. St. Louis Transit Co. \[Mo.\] 81 S. W. 1091; Shareman v. St. Louis Transit Co. \[Mo.\] 85 S. W. 358; Hensler v. Stix \[Mo.\] 84 S. W. 894.

01. In an action for land decoupled by the way of a railroad and defended by a plea of prescription, questions of taking, corroboration and the statutes thereon are involved. Scovell v. St. Louis S. W. \[La.\] 85 So. 582.

01. Appeal goes direct to V. S. supreme court if jurisdiction of a Federal court "ae such" is questioned. See post, "Federal review."

01. To allow review in supreme court, the court of appeals need not expressly reverse Its own former decision; it is enough that the decisions are in conflict. Red River,
    142 APPEAL AND REVIEW SS 4C. 5 Cur. Law.

validity thereof when involved,92 or title to office,98 or questions involving civil or political rights,94 a minimum95 or maximum amount as prescribed by statute98 or constitution,97 "demanded,"98 "involved,"990 "in controversy,"11 or "recovered,"92

expired involves a freehold. Glos v. Stern \[III.\] 72 N. E. 1057. The final determination on a traverse bond, the court of appeals has of a suit resulting in the gain or loss of an one qualification. Calafwell V. McVean \[Ky.\] estate, involves a freehold. Kellogg News-82 S. W. 992. Action on forthcoming bond held to involve more than $200. Brady v. 105 Ill. App. 62. A suit to set a residue. "Fraley's Admi" \[Ky.\] 84 S. W. 756. Under veyance between the parties as obtained by fraud involves a freehold. Hursen v. Hur-sen \[III.\] 70 N. E. 904.

90. A suit to enjoin the collection of tells on the ground that the toll road company's \[Ky.\] 83 S. character had expired or been forefied does not involve title to land. State v. Louisiana, B. G. & A. Gravel Road Co. \[Mo.\] 86 S. W. 170. Action by an unsuccessful defendant in ejectment to recover the value of improvements made by him on the land. Bris-tol v. Thompson \[Mo.\] 83 S. W. 780.

**Ldens:** A suit to impress reality with a line or to cancel and set aside a need there, to involves title to reality, and supreme court has jurisdiction of appeal. Chrisman v. Linderman \[Mo. App.\] 81 S. W. 461. Where the line on land created by the suing out of an attachment is waived before judgment, the title to land is not involved. Rhodes v. Frankfort Chair Co. \[Ky.\] 78 S. W. 768.

**Judgment involving a homesetead or one incidental to such a judgment goes to supreme court. Duke v. Crane \[La.\] 36 So. 306. Whether a homeset set of to minors may be sold during the minority because it has increased in value beyond the amount allowed involves title to land. Brewington v. Brewington \[Mo. App.\] 85 S. W. 640. Supreme court of Missouri, not court of appeals, has jurisdiction of appeal from order quashing execution levy on reality claimed to be exempt as homesetead. Lawson v. Hammond \[Mo. App.\] 81 S. W. 856.**

**Condemannian proceedings involve title to real estate. City of Turkish v. Clark \[Mo.\] 85 S. W. 329. In re Topping Ave. \[Mo.\] 86 S. W. 190. Where plaintiff claims land occupied by defendant under alleged condemation and a claim of adverse possession, an appeal lies from a judgment in plaintiff's favor for $132 under a special finding of tenancy, since it settles rights relative to the land. Illinois Cent. R. Co. v. Ross \[Ky.\] 83 S. W. 635.**

**91. No appeal from Texas court of civil appeals to supreme court in boundary cases. Smithers v. Smith \[Tex.\] 81 S. W. 283.**

**92. A defense of ultra vices does not involve a franchise. Clark v. Assets Realiza-tion Co., 115 Ill. App. 150; Rostad v. Chicago Suburban Water & Light Co. \[III.\] 71 N. E. 978.**

**93. Office of school director is an office under the state within Const. art, 6, 12, 6, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 82, 84, 87, 89, 91, 83, 85, 87, 89, 92, 93, 94, 95, 96, 97, 98, 99, 99, 98, 99, 99, 100, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, including* or excluding* costs,\* interest, and other items,\* according to the terms of the statute.

the amount involved is the amount of the --Judgment plus the amount of the set-off --Qedade (Merechanics' Loan & Trust Co. v. Bradley, 210 Ill. 128, 71 N. E. 843); but where --Plaintiff's cause of action is not wholly defined and plaintiff has judgment, the amount involved cannot be greater than the amount of the judgment --(Id.). Where an action involves claims and offsets, the amount that determines the jurisdiction of the appellate --Qedade of this --Qedade of this --Qedade of this --Qedade of this --Qedade of this --Qedade of that -- No appeal lies in Kentucky from the grant of a divorce.7 Bankruptcy orders8 and as a rule _probate_ and administration orders,10 and January or curatorial proceedings,11 are appealable according to terms of statutes regulating such matters.

Eminent domain proceedings11a are covered by statute, as shown below.11b \_Federal review_12 of state or territorial decisions, or the right to a further appeal from the circuit court of appeals to the United States supreme court, or the right of direct appeal to it, depends on the existence of a real, meritorious, Federal question13 set up14 and necessarily involved, and finally15 decided adversely to ap-

the amount of the judgment actually ren-

supreme court has jurisdiction to review the dered. Waid v. Waid \[Iowa\] 99 N. W. 720.

finding of the circuit court on appeal from Where the damages are susceptible of direct proof and the judgment does not exceed 68 of an attorney of an executor and 81,000, no appeal lies from the appellate to the supreme court without a certificate of importance. Amount remaining after ren-

subsubstanful rights affected: In a proceedings to compel an accounting by an executor of an administrator, the denial of a motion to refer on the ground that the answer did not set up a valid plea in bar, when in fact it did do so, is appealable, since it involved a substantial right of plaintiffs. Jones v. Suss \[N. C\] 48 S. E. 675. Under Gen. St. 1901, & 1994, no appeal lies to the district court from an order of the probate court refusing to revoke letters testamentary or of administration. Graves v. Bond \[Kan.\]

78 P. 851. Supreme court has only such jurisdiction as is conferred by law under Const. art, 6, & 4, conferring such appellate jurisdiction as may be provided by law. In re Cahill's Estate \[Ca.\] 76 P. 383. An order denying a motion to vacate an order setting aside a homested out of the es-

state of a decedent is not enumerated in Code Civ. Proc. $ 963, subd. 3. Id. See, also,

and Interest exceeds $6,000. No appeal where judgments on sustaining demurrer to complaint is affirmed, though damages are laid at $10,000. Crum v. North Vernon Pump & Lumber Co. \[Ind.\] 72 N. E. 587; Leonard v. Whtestone \[Ind.\] 72 N. E. 1045.

5. The commissioner's fees are excluded under a statute fixing the amount in controversy "euclusive of interest and costs,"

Rhodes v. Frankfort Chair Co. \[Ky.\] 79 B. 78.

6, T. Steele v. Steele \[Ky.\] 84 S. 57, & 616.

8. Disallowance of more than $500 of claim for franchise tax against bankruptcy corporation is appealable under Bankruptcy act. In re Cosmopolitan Power Co. \[C. C. A.\] 137 F. 858. A judgment confirming a composition is reviewable by appeal under section 25a. In re Friend \[C. C. A.\] 134 F. 778. See, also, Bankruptcy, 3 C. L. 434.

1. See, also, Wills, 4 C. L. 1863.

1. An order refusing to vacate a decree of distribution and settlement of final account and an order denying an application to vacate an order settling an administrator's account and discharging him are not enumerated in Code Civ. Proc. $ 1732, subd. 2, amended by Sess. Laws 1899, p. 146, providing what orders may be appealed from the district to the supreme court in probate matters, and are therefore not appealable. In re Kelly's Estate \[Mont.\] 78 P. 679. The pellant!\*6 in the decision below. Review is direct in the supreme court if there is a question of construction of the Federal constitution\[17\] or of treaties,\[18\] or of the jurisdiction of a United States court "as such."\[19\] Appeal grounded on a constitutional question goes from the district to the Federal supreme court even in habeas corpus cases.\[20\] The provision for direct appeal to the supreme court applies to proceedings to compel the production of papers before the Interstate Commerce Commission.\[21\]

W. 646. Refusal of mandamus to enforce a right claimed under the Federal constitution

Federal constitution must be speed-rivents a Federal question. Detroit, etc., R. Ed. 214.

Co. v. Osborn, 189 U. S. 383, 47 Law. Ed. 860,

15. Reversal and remand of equity case

A finding that a conveyance left no estate

in the grantor which would pass by a sale in

C. 654. See, also, ante, $ 4B.

bankruptcy of his interest in the land presents no Federal question. Ex parte Re-

decided in appellant's favor, it confers no public of Columbia, 25 S. Ct. 107. A case

involving title under a patent from the United States is not appelable from the circuit court of appeals. Bonin v. Gulf Co., 25 S. Ct. 608.

**Denil of equity by one state:** Whether

a corporate contract was ipso facto volid

because Im contravention of statutes governing foreign corporations and hence unen-

forceable in another state, held not to in-

volve the full faith and credit clause of the Federal constitution. Allen v. Alleghany

Leo does not involve the construction of the Co., 25 S. Ct. 311. Whether the courts of one state should sustain an action upon

principles of comtry between the states is a question within the exclusive jurisdiction of the state court. Action on corporate contract in contravention of state regulating foreign corporations. Allen v. Alleghany

Co., Id. A decision of a state court that a pleading does not disclose the defense that a note was given in course of business

by a foreign corporation without complying

with the state statutes involves only a local

question. Id.

**Where Federal jurisdiction depends only**

on diversity of citizenship, there is no appeal from the circuit court of appeals. A suit between citizens of different states involving land grants of their respective states is such a case. Stevenson v. Fain, 25 S. Ct. 6.

What constitutes a Federal question is fully treated in the topic Jurisdiction, 4

C. L. SS24.

**14. When set up below:** Federal question first raised by petition for rehearing in

highest state court too late to support appellate jurisdiction of Federal supreme court,

where state court made no reference to it

in deonying petition. McMilin v. Ferrum

Mim. Co., 25 S. Ct. 533. A request for a directed verdict asserting rights under the Federal constitution which, If they exist,

entities the party to such direction, properly

saves the Federal question. National Mut.

Bidg. & Loan Ass'n v. Graham, 24 S. Ct. 532.

Highest state court may decline to reopen,

on second appeal, question of service of

summons, which it has unbled on first appeal, without thereby making case for writ

of error from Federal supreme court, where

claim that service was invalid under Federal constitution was first set up on second

hearing in trial court. Western Electrical

Supply Co., v. Abbeville Elec. Light & Power

Co., 25 S. Ct. 481.

& Curr. L=-10.

Appeals and writs of error from district courts of Alaska are governed by Alaska Civil Code (31 Stat. 414, c. 51), and not by the Territorial Courts Appeals Act (18 Stat. pt. 3, p. 27, c. 80)."2

(SS 4) _D. Reviewableness may depend on the parties,23_ as where states or their political subdivisions24 stand as litigants.

(SS 4) _E. Certifiable or reserved questions and reported cases25_ usually are predicated on questions of jurisdiction,25 importance, doubt, or conflict,27 or several of these.28 The question29 and not the case is certifiable, and must be a question of law,30 and be clearly31 and concretely put, and be necessary22 or material to a decision. Reports in Maine are intended to take up the whole case; hence the reporting of questions stipulating for final determination of all others by the trial judge is bad.38

Footnote 3 $5$ Cur. Law. $5$

APPEAL AND REVIEW $8$ 5.

organic law, \[88\] and consent of parties will not confer jurisdiction. \[37\] Therefore, an appeal from a tribunal that was without jurisdiction confers none; \[28\] but since an appeal affords opportunity for a hearing anew before an impartial tribunal, the fact that one of the members below was disqualified is not a jurisdictional defect so as to prevent jurisdiction from attaching on appeal. \[88\] As between courts of primary and final appeal, \[88\] the jurisdiction nearly always depends on the existence of one or more of the criteria mentioned in the previous section. \[89\]

Appellate jurisdiction must be supported by a sufficient original or antecedent appellate jurisdiction to pronounce the judgment being reviewed, \[90\] and by orderly procedure efficient to bring up the cause, \[88\] else it can do naught but dismiss. \[88\] The appellate jurisdiction of the Federal courts in ordinary litigation is divided between the circuit court of appeals and the supreme court. \[88\]

- writ is to compel inspection of the books of a corporation. Neubert v. Armstrong Water Co., 26 Pa. Super. Ct. 608,
- 36 The general assembly has no power to create a city court and provide for a direct writ of error therefrom the supreme court in any municipality other than an in- or-, as well as the supreme court. In re Pe-, the court is established in a named "city" is not binding on the courts when the municipality is not in fact a city. White v. of Illinois cannot pass upon the validity of state \[60\]. \[48\] S. E. 715. Municipality of Sylvester being a town at the time of the establishment of a city court therein (Aets Aug. 11, Aug. 13, Aug. 15, 1944, Acts 1904, pp. 207, 240, 644, 645) such court is not a constitutional city court, and no writ of error lies therefrom to the supreme court. Watts v. Sangamon County Id. It is beyond legislative power to change the constitutional courts or their jurisdiction. See Constitutional Law, 3 C. L. 730; Curts, 3 C. L. 790; Jurisdiction, 4 C. L. 324. Under a constitution providing that the supreme court shall have appellate jurisdiction throughout the state and such original jurisdiction as the general assembly may confer, the legislature cannot confer both original and appellate jurisdiction on the supreme court in cases brought before it by appeal from an Infer court. Parkli son v. Thompson \[70\]. \[71\] N. E. 109.
- 37 Midler V. Lese. 91 N. Y. S. 148. There being no authority for consolidating common-law and admirality cases, consent of parties to such consolidation and an appeal from the admirality case will not bring up the action at law. Shotter Co. v. Larsen \[C. A.\] 134 F. 705.
- 38 Bickford v. Franconis \[N. H.\] 60 A.
- 39; Chleago, etc., R. Co. v. Salem \[Ind.\] 70 N. E. 530. An appeal from a pretended judgment rendered by a person having no judicial powers confers no jurisdiction on the appellate tribunal. City of Windsor v. Cleveland, etc., R. Co., 105 III. App. 46. An appeal does not lie from a decree by the probe court fixing the mode of use of the streets by a telephone company under $8$ 3461 Rev. St., such court having no authority to fix such mode. Cincinnati v. Queen City Tel. Co., 2 Ohio N. P. (N. S.) 349.
- 39 Bickford v. Franconis \[N. H.\] 60 A.
- 40 Where a decree of the orphan's court following the petition adjudiateates matters over which the circuit court has no jurisdiction on appeal, the appeal lies not to the court, but to the court of appeals. Store-specific v. Shriver \[Md.\] 59 A. 139. Appeals from final orders of the county court under the level act lie to the circuit court and not to the appellate court. Where confirmation of special assessments is involved the appeal is to the supreme court. In re Pe-, the court is established in a named "city" is not binding on the courts when the municipality is not in fact a city. White v. of Illinois cannot pass upon the validity of a state. Village of Morgan Park v. Knopf, 111 III. App. 571. An appeal in a mandsamus castle as in other cases lies to the appellate court rather than to the supreme court unless some constitutional or other question is involved authorizing appeal to the supreme court. Watts v. Sangamon County \[N. H.\] 72 N. E. 11. The appellate term in the constitutional courts or their jurisdiction to entertain a motion for a new trial upon exceptions ordered to be heard by it in the first instance before judgment. Dickson v. Manhattan R. Co., 91 N. Y. S. 36.
- 42 Appellate judgment held void. WV1-, bourn v. Hurt \[Ala.\] 36 So. 768. On determining that the court below had no jurisdiction, the appellate court has no further power. Texas & P. R. Co. v. Walter Hunt & Co. \[Tex. City, App.\] 85 S. W. 1168. See, also, ante, 5 4B, that the judgment must have been made in at least the semblance of jurisdiction to be revlewable.
- 43 See post, 8 G. If the return day be too early, no jurisdiction even to amend the writ is gained. Was returnable to pending term. Barnett v. Hickson \[Pa.\] 37 So. 310.
- 44 An appeal taken when not authorized confers no jurisdiction on the appellate court a case from one division of the court to another is not fatal to the jurisdiction." The action of a Federal court vacating a decree rendered therein is not reviewable in a state court."47

A question of the jurisdiction of the appellate court.may be raised at any time."8 In Louisiana the court may decide any questions of fact, affecting its own jurisdiction, from the record if they sufficiently appear there or from facts found on a remand for that purpose."9 If an appeal might lie to either of two courts there may be a binding election by going to the lower one."10

Footnote 10: The author is grateful to the anonymous referee for the following reasons.

SS 6. \_Bringing up the cause. A. General nature and mode of practice.\_83--The appropriate remedy for review is discussed in another section,"9 as is the transmission and filing of the record on appeal."11 An appeal where applicable is generally matter of right on compliance with the statutes granting it,"12 while writs of error,"13 certiorari,"14 and the like, are grantable within the judicial discretion of the court or judge to whom application is made, depending on the showing in the petition, assignments, or other necessary application. The suing out of a writ of error is a new suit,"15 while an appeal is a continuance of the action, and pending suits are not affected by legislation relating thereto."16 Separate writs lie to separate judgments though pronounced in a consolidated trial and combined by consent in one bill of exceptions."17

5 Cur. Law. (APPEAL AND REVIEW SS 6B.)

The time ordinarily runs from the date when an appealable judgment or order68

Lynch v. Herrig \[Mont.\] 80 P. 240. No \[ Saturday after clerk's office had closed. exception in case of death of counsel. Farm- Gray v. Cooper \[Kan.\] 78 P. 812. Gen. St. ers & Traders' Nat. Bank v. Willis \[Ga.\] 1901, SS 6053, prescribing the time within 50 S. E. 366. The time and manner of taking an appeal to the court of appeals of the discharging an attachment or temporary in-District of Columbia is governed entirely junction must be commenced, has no appli- \[ cation to proceedings to reverse final judg.- D. C 440. An appeal from a decree of fore- \[Kan.\] 78 P. 446. The time (30 Acts 1899, P. 111, c. 60 Appel from de- \[days\] given to appeal supersively from di- \[vore does not apply to separation from bed order confirming sale in time. Cooper v. and board. Knoll v. Knoll \[La.\] 88 So. 523. Ryan \[Ark.\] 83 S. W. 328. Appeal taken within 50 days from entry of an order re- \[vore for the ground that it was not supported by fusing prostate of a will is in time. Code Civ. Proc. 1 363, subd. 3. In re Fay's Eskate until 20 days after the decision and tate \[CaI.\] 78 P. 340. Ten days from judg.ment or filling of findings of fact by the judge; but, under a rule requiring the clerk of \[Kan.\] 78 P. 1091. Ap- \[days\] given to appeal supersively from di- \[vore does not apply to separation from bed order confirming sale in time. Cooper v. and board. Knoll v. Knoll \[La.\] 88 So. 523. Ryan \[Ark.\] 83 S. W. 328. Appeal taken within 50 days from entry of an order re- \[vore for the ground that it was not supported by fusing prostate of a will is in time. Code Civ. Proc. 1 363, subd. 3. In re Fay's Eskate until 20 days after the decision and tate \[CaI.\] 78 P. 340. Ten days from judg.ment or filling of findings of fact by the judge; but, under a rule requiring the clerk of \[Kan.\] 78 P. 301. Ap- \[days\] given to appeal supersively from di- \[vore for the reading of the finding after ap- \[vore for the reading of the finding after ap- \[vore for the reading of the finding after ap- \[vore for the reading of the pattern of application to correct, an appeal within ten days from such refilling is seasonable. Bos- \[on Furniture Co. v. Thomas \[Conn.\] 60 A. Peable to said courts, to grant an appeal 689. Under Mills Ann. St. 2 423, the provision also to time within which order allow- \[nig appeal in Irrigation cases is mandatory, appeal is already pending when the applica- \[nig the supreme court cannot grant an extension. Barer Bros. Land & Catte Co. v.\] 83 S. W. 73. The Nebraska statute of 1901 \[Colo.\] 77 P. 245. A certificate of shortening the time within which appeals a \[vore for the Federal circuit court during the term \[vore for the \[Neb.\] 100 N. W., 813. Under Comp. Laws, SS 3425, must be taken within one year from rendition of judgment. Candler v. der Judeljcarj Actor Aech A 1891, SS 6. Cham- \[Vashoo Lake Reservoir & G. C. Dieth Co. (Nev.) 80 P. 751. Time for filing in an at- \[nohment suit is not extended by the filing of a bill of exceptions after a ruling on the \[noth to dissolve the attachment. CecI v. just and proper, does not reserve the right \[Ghio C. C. (N. S.) 65. Petition in to grant such certificate after the term. Id. (The jury and dismissal of suit must be filed miss a motion for a new trial, no writ of the judgment. McCallen v. Lake Shore & M. terdendente lite, it is too late, after the expiration of thirty days from the date of the decision, to bring the question to the \[nurpen court. Summer v. Summer \[Ga.\] 48 S. E. 727. An appeal from an interlocutory judgment not taken within 60 days from judgment entered as provided by Rev. St. 1887, SS 4807, will be dismissed on motion. Richardson v. Ruddy \[Idaho\] 77 P. 912. Unless taken within 60 days after entry of judgment, the supreme court is precluded from reviewing the evidence to ascertain its \[vore for the findings of fact. (The idan) 79 P. 228. Appeal must be taken at same term. Finch v. Finch, 111 III. App. 481. Five years from final decree is allowed for writ of error in mechanand's lien cases. Gordon v. Borg, 113 III. App. 522. In an equity cause tried on depositions, a certification of the evidence must be filed within six months to be reviewed on appeal. National Surety Co. v. Walker \[Iowa\] 103 N. W. 492. Under Gen. St. 1801, SS 5850, proceeding to reverse a judgment
Decomes a finality(tm) on the record(tm)(tm) and is computed according to the rules applicable to other procedure.(tm) Under the Federal procedure, the writ of error must

sented no additional matters, appeal there-

that it was sufficient to object to, and pray

from must be within the time limited for ap-

for an appeal from, such order on that day.

real from the judgment. Moore v. Henderson

Fristco v. Gillen \[Ky.\] 80 S. W. 823. Time

\[Ark.\] 85 S. W. 237. The year allowed in

Holians excludes the day on which judgment. Orleans & J. R. Co. v. Internament was rendered and includes the last

load Const. Co. \[La.\] 37 So. 10. Within ten

days from the signing and notification of

Co. \[Ind. App.\] 73 N. E. 195. An order sus

taining a demurrer to one defense where

date of the judgment, if rendered in prese-

trial proceeded on the others must, in order

ence of the parties, and within three days

to be reviewed, be taken to the supreme

sort within one year from the sustaining

sence or on default of one party. Code Prac.

of the demurrer. Corum v. Hubbard \[Kan.\] 74. 1131. Simonton v. Mitchel \[La.\] 37 So.

77 P. 589. In Massachusetts where the court

sustains a demurrer to the declaration and

serving notice within ten days after ad-

does not direct judgment, the right to ap-

journment of court. Code, $ 549. Houston

peal is in abeyance until the judgment

v. Greenbreno Lumber Co. \[N. C.\] 48 S. E.

rendered. Cummings v. Ayer \[Mass.\] 74 N.

783. An appeal is premature if brought

E, 336. The time for an appeal on the

for a final determination is had or if the

its cannot be counted from the date of over-

ruling an objection to the cost bill. Wad-

hans v. Allen \[Or.\] 78 P. 362. See, also,

Lemmons v. Huber \[Or.\] 77 P. 836. Limitat

5071, 5075, a judgment in an equity case

tion as to right to appeal from a decree

writing a motion to dissolve an attachment

begins to run at the date of overvinting the

motion. Elkins Nat. Bank v. Simmons \[V. Va.\] 49 S. E. 893. A nonappealable decree is

carried forward to the date of a later ap-

pealable decree, and is revivable upon an

appeal from it. Trail v. Trail \[V. Va.\] 49 S. E. 431. An appeal from a later decree will

not review a former apapaleable decree, an

appeal from which is barred by limitations,

nor can the later decree be reversed for

rors therein arising from the former appeal.

ld. Under Rev. St. # 4262, as amended by

Laws 1901, p. 28, c. 28, and Sup. Ct. Rule 13

(28 P. 12), the time within which proceedings in error on motion for a new trial

gins to run on the date action is taken on

such motion and not from the date of entry

of judgment. Conrad v. Lepper \[IWyo.\] 78

P. 1.

67. The judgment is not final while the judgment is still under control of the trial

court by reason of a motion for new trial.

Clarke v. Eureka County Bank, 131 F. 145.

Date when judgment was entered within

meaning of Code Civ. Proc. $ 393, determined.

In re More's Ekate \[Ca.\] 77 P. 407. If an

exception to an order allowing an amendment and retaining the case, made after a

judgment sustaining a demurrer has been

sustained with directions to allow defects in

the petition to be cured, be to a ruling which

would have been final, the bill of exceptions

should be made returnable to the next term

of the supreme court. Cordele Ice Co. v.

Sims \[Ga.\] 48 S. E. 12. An order overvinting

a motion for a new trial in whole or in part

Is a final order and proceeding to review

the same must be commenced within one

year. City. Code, $ 556. Citye Mill. & Ele-

vator Co. v. Buoy \[Kan.\] 80 P. 591. An

order entered in the minute book on the last

day of the term allowing an attorney's fee

to plaintiff's attorney held not to have

becoming complete until spread on the order

book and approved and signed by the court

on the first day of the succeeding term, so

the time within which an appeal from dec issue in time notwithstanding the time of its allowance.78 In North Dakota the right to appeal from an order denying a motion for a new trial may be exercised after the time for appealing from the judgment has expired, provided the appeal is taken within the time limited for appealing from such orders.71 The appellate court has no jurisdiction if an appeal is prematurely taken,72 and it is premature if brought before performance of any of the necessary conditions.78 "Fast" or "accelerated" appeals or writs of error are allowed in some jurisdictions and for certain classes of cases.74 The taking of an appeal is jurisdictional and the court has no power to extend the time therefor or to cure any defect therein.75

(SS 6) _C. Affidavits and oaths,78 either of good faith77 or to verify the grounds of appeal, are required in some states. The appellate court has no power to make any order respecting the amendment of the affidavit for appeal or the substitution of one conforming to statute for a defective one.78 A clerical error however will be disregarded.79_

(SS 6) _D. Notice, citation or summons.80_-Timely81 and regular82 service by

sions of the commissioner of patents must ( the appellant\*\* on the opposing parties**44 (or such of them as have appeared**45 **by counsel**46 **or whose rights will be affected by a reversal**47 \*\*of such notice of appeal, citation, or summons as the practice requires, in due form,\*\*48 \*\*properly signed,\*\*49 \*\*adressed to the party to be notified,\*\*40 \*\*is usually requisite,\*\*41 **and the notice with**

**Jurisdieltional to the extent that it must be**
return of service is usually required to be filed."2 Failure to serve one party does not ordinarily affect the appeal as to his co-parties who are properly served."3 Notice in open court to a party who has appeared obviates necessity of written notice,"4 and appearance cures failure to serve notice."5 A notice of appeal stating that the parties joining therein severally and separately appeal is equivalent to a separate notice by each appellant."6

(SS 6) \_E. Application for leave to appeal7 or for a writ of error8 made within the time90 and in the manner required by law1 is necessary in some jurisdictions, but not in others.2 When required, this need does not yield to the pendency of a rehearing.8 Practice also varies as to the necessity of an accompanying assignment of errors.4 When required, such assignment must be filed in time.\_6

(SS 6) \_F. Allocatur; order for or allowance of appeal; certificate.\_6--An allowance of the appeal is necessary in all practices where appeal does not go as of right,7 and in cases where it is doubtful if an appeal of right would lie, one may be appeal being complete, the appellate court may dismiss it if appellant fails to give the statutory notice to appelee, or fails to prosecute it. Robinson v. Arkansas Loan & III. App. 563.

Trust Co. \[Ark. 81 S. W. 609. A term time\]. A prayer for an appeal made to a appeal from an order refusing to dissolve an injunction granted at a previous term will not bring up any of the proceedings at the previous trial where no notice of appeal is given. Slusser v. Palin \[Ind. App.\] 74 N. E.

Footnote 17: The appeal is perfected by the filling of any copyright with the proper assignments of error,

###### Abstract

In this thesis we present a new approach to the study of
Where several appeals are taken, a bond must be given in each,23 and a bond can be considered as that only of the appellant recited in its body as bound to prosecute with effect, and not of all persons signing it.24 An undertaking in form to answer in a certain sum for the defaults of several defendants constitutes one obligation.25 In some states the bond is allowed to stand as security on a further appeal.26 Timeliness in filing and approval is essential.27 Additional28 or substituted security may be required to cure inadequateness or defects,29 but total failure to give a bond is usually deemed so fundamental to jurisdiction as to be incurable.30 Fixing21 and approval of the security is primarily for the trial court52 or other officer

Darlington v. Turner, 24 App. D. C. 573.

**Payment of costs within the specified pe-Bond may not be filed for the first time in**

**rich is necessary in Michigan. Fees of resp-the appellate court. Schrot v. Schoenfeld, 23**

**sister for return must be paid within 30 days. App. D. C. 421.**

**23. Under Code Civ. Proc. SS 1724, 1725, 1731, where appeals are taken from the**

**s**adres the security on an appeal bond as in judgment and from any other appellable or additional security. Durham v. Straight \[Ky.\]\*\*

**ratle undertaking must be filed for each un-less all are included in the same paper and proper reference made. Pirrie v. Moule**

**sister for return must be paid within 30 days. App. D. C. 421.**

**23. Under Code Civ. Proc. SS 1724, 1725, 1731, where appeals are taken from the**

**sister for return - to the**
designated by the statute.33 Amount,34 sureties,25 and terms and conditions of the bond, are largely regulated by statute.36 An appellant to the superior court must

to approve an appeal bond which, though ject but there is no finding that claim was filed before the expiration of twenty days, interposed for delay. In such case may be is not submitted to it for approval within that time. Mulvhill1 v. Clabaugh, 21 App. 1.4.4.

S3. Under Gen. St. 1901, **SS** 1640, 1641, the bond must be filed and approved by the jerk of the board of county commissioners; approval by and filling with the clerts of the district court is insufficient. Board of Com's of Trego County v. Cross \[Kan. 17 g, 1084.

S4. Texas Rev. St. 1835, art. 1400, requires the appellant to file a bond in double the probable amount of the costs in the trial court, the court of civil appeals, and the supreme court, such amount to be fixed by the clerk of the trial court. Rev. St. 1895, art. 1400. Horstman v. Little \[Tex.\] 83 S. W. 679. The giving of a bond in double the amount so fixed establishes the right of appeal, and such right is not affected by the fact that the costs afterwards appear to be greater than the clerts supposed they would be. Id. The court of civil appeals has no authority to review the action of the clerts, or to require a bond for a larger amount. Rev. St. 1895, art. 1025, empowering court, on motion to dismiss appeals, to allow defects in substance or form in such bonds to be amended by the giving of new ones, applies only when they are defective, and not where merely insufficient in amount. Id. If the amount be fixed in the order of allowance, it may suffice devolutively when too small to suspensively appeal. Knoll v. Knoll \[Lal. 38 S6, 523.

S3. Sureties on a claimant's bond are competent sureties on an appeal bond for the same parties. McClelland v. Barnard \[Tex. 137. App.\] 80 S, W. 841. A surety company properly certified may be surety. Eichorn v. New Orleans & C. R. L. & P. Co. \[Lal. 38 So. 526. If the sole security on the appeal bond is the same person as the security on the claim bond, the plaintiff in execution has obtained no additional security. McMurria v. Powell Bros. & Chason \[Ga.\] 48 S. E. 354. Appellant should be clearly and without abbreviation named in the bond as principal. "New Orleans & Carrollon Rd. L. & P. Co." held defective but harmlessly so. Eichorn v. New Orleans & C. R. L. Light & Power Co. \[La.\] 38 So. 526. The security on any statutory bond for the payment of the eventual condemnation money or to produce the property saved for or leveld on cannot be security on a new bond required in a proceeding seeking a review of a judgment adverse to the principal in the first bond since the also is bound by such judgment. Appeal or certiarrl is as much for his benefit as for that of principal. Applies where damage bond is given in claim case and judgment is rendered finding property subject and awarding damages on ground that claim was interposed for delay. Woodllur v. Bloodworth \[Ga.\] 49 S. E. 289. But this does not apply where the effect of the judgment is to relieve the surety from liability on the original bond as where damage bond is given in claim case, and verdict finds property sub- 104, conditioned on the payment of taxes, 5 Cur. Law. APPEAL AND REVIEW SS 7. 157

put the clerk under obligation to forward a proper transcript by paying or tendering his fees.\[87\] Where a judge requires a bond in an unwarranted amount, as a condition of an appeal, appellant is entitled to mandamus to compel him to accept a bond in a proper amount though such a bond has not been tendered him for approval.\[88\]

(SS 6) _H. Entry below.\[90\]_--Where a verbal order for an appeal is given, not in open court, the entry of the appeal must be made within the time limited by statute.\[40\] An entry stating that the appeal is taken to the "January term" sufficiently indicates that the return day is the first day of the term as the statute prescribes.\[41\] The requirement in Louisiana that every receivership petition, motion, etc., shall be entered by the clerk in his order book has no application to appeals by or against a receiver.\[42\]

SS 7. _Transfer of jurisdiction; supersedeas and stay.\[43\]--The transfer_ is not accomplished until the appeal is fully perfected\[44\] by legally sufficient procedure\[45\] and according to the appropriate remedy.\[46\] An unappelable order can support no jurisdiction to be transferred.\[47\]

_Supersedeas\[47\]_ of the judicial power of the lower court results with the transfer of jurisdiction,\[48\] except as necessary to preserve rights pending appellate review.\[49\]

etc. against the property and that the ap- and 1s filed in the superior court. Robinson v. peal will be prosecuted with effect. Nolan Arkansas Loan & Trust Co, \[Ark.\] $1 B. W. v. Arnot \[Wash.\] $7 B. 463. Supersedens 609.

bond given on appeal from decree holding testator to have been trustee for complain- and 1s and referring case to an auditor for an accounting, when taken in connection with 1s the time fixed by the statute. Loek- stipulation that appeal should not be heard until andidtor made his report and should be heard in connection with appeal then to be taken, held sufficient to sustain the entire appeal. Darlington v. Turner, 24 App. D. C. 573. An omission from an undertaking, on appeal from a justice of the peace to the supreme court, of a provision that the Judge- ment might be rendered against both the principal and the surrely is a radical departure from Code, $20, 31. Schrot v. Schoen-feld, 23 App. D. C. 421. So is an undertaking to pay damages and costs, instead of one to pay the judgment. 1d.

37. Does not take an appeal within meaning of statute by merely praying an appeal and filing a bond. Appeal from action of county commissioners in altering public road. Blair v. Coakley \[N. C.\] 48 S. E. 804.

01. Fleming v. Kirby .\[IMich.\] 100 N. W. 371.

01. See 3 C. L. 200.

01. Hays v. Philadelphia, etc., R. Co. \[Md.\] 58 A. 419.

01. Swain v. London & L. Fire Ins. Co. \[Fla.\] 38 So. 3.

01. In re New Iberia Cotton Mills Co. \[La.\] 37 So. 43. See 3 C. L. 200.

01. Proceedings on the merits held not stayed until bill of exceptions was filed to the trial of plea in abatement in attachment to proceedings. Under Rev. St. 1899, $ 407.

When he appeals from whole case the bill of exceptions includes exceptions on the trial of plea in abatement, and makes one ofll. American Nat. Bank v. Thornbrow \[Mo. App.\] $8 S. W. 771. Cause is removed \[Mo. App.\] $20, 31.

when an authenticated copy of the record plication for a rehearing must be made in
But ordinarily the judgment continues valid, binding, and efficient, so that it may be enforced,30 and is in all respects operative unless51 and until52 the appellant gives a bond or security to abide by it if unsuccessful on the appeal, or unless a special order of supersedeas in such matters be allowed,53 or the necessity thereof be abrogated by statute.54

Footnote 54: The _H_-based _H_- pensive\* is discretionary with the court,\*\* the exercise of the right being usually founded on the safeguarding of a right of property,\*\* or on the perishable nature of the subject-matter,\*\* or precariousness of rights affected, and though a supersedeas has been denied, chancery will grant an injunction preserving the status quo pending decision of an appeal where appellee is proceeding to render nugatory any reversal that may be had.\*\* The bond must show who and what are affected by it,\*\* must undertake to do what the statute prescribes,\*\* and must be properly !xecuted, though failing in this regard a supersedeas may be obtained on filing a sufficient bond in the appellate court.\*\* If the amount of the bond is fixed by statute and is jurisdictional, the bond must be in such amount.\*\* If the review is de novo, as in equity, the decree or judgment,\*\* as well as the jurisdiction, is superseded by the taking of an appeal.\*\* But usually in such cases the bond or undertaking to obtain the appeal is made large enough to cover the judgment\*\*4 as well as costs.

The effect of a supersedeas is simply to suspend the judgment,\*\* the lower court losing its power only in respect to those things which might trench on the appellate functions,\*\*70 or when the judgment is also stayed which might change

v. Norrle \[C. C. A.\] 128 F. 896. Pending appeal from the grant of a preventiative in-junction defendants is not entitled as a matter of right to supersede the order. State v. Superior Court of Pierce County \[Wash.\] 80 Courtney \[Cal.\] 76 P. 653. P. 1108. Pending appeal from denial of an application to use a receiver, the applicant is entitled to a stay of proceedings. State v. Superior Court \[Wash.\] 80 P. 195. 62. Supersedeas will not be granted where it appears that before a hearing can be had on the appeal the patent which is the subject of the suit will have expired. Timolat v. Philadelphia Pneumatic Tool Co., 130 F. 903. 63. There is no necessity for suspensive appeal when appellant has by his voluntary action made impossible judicial execution of the order appead from. Albert Mackie Grocery Co. v. Pratt \[La.\] 38 So. 250. 64. Timolat v. Philadelphia Pneumatic Tool Co., 130 F. 903. 65. An injunction against sale of property by a city granted on behalf of a subordinate public corporation claiming title involves title to property and to its proceeds, and from the dissolution of it on bond a suspensure appeal is allowable. State v. Sommerville \[La.\] 37 So. 476. 66. Li+bility to fluctuations in value is not perishability. Code Proc. $ 576. Hannay v. New Orleans Cotton Exch. \[La.\] 36 So. 831. 67. People+s Traction Co. v. Central Pass. R. Co. \[N. J. Eq.\] 58 A. 597. 68. Supersedeas bonds given by several defendants being each in excess of double the amount of the respective judgments, and appearing to have been given in the action in which the judgment was rendered, the appeal will not be dismissed on the ground that the bonds do not properly describe the judgment and are insufficient in amount. Internal or 69. Under Ky, St., 1903, $ 1596, a bond for appeal in an election case covennting that appellant will pay the damages adjudged against him on the appeal is insufficient.

the status quo, for a supersedeas working a stay preserves the status quo?? of the parties only?\* existing just before the judgment was entered,?\* suspending all proceedings except those necessary to safeguard such status quo,\* and it is contempt to disobey or transgress it.\* Self-executing judgments are not stayed by the giving of a supersedeas bond.\* A supersedeas bond can only stay so much of the judgment as it can affect.\* Rights dependent on the outcome of the appeal are not suspended but are merely immature.\* A supersedeas should be modified to meet changing conditions or rights.\* The application or motion for a special supersedeas must conform to the status.\* should be severally docketed or if docketed together are still regarded as several." An appearance for any other purpose than to dispute jurisdiction of appellee's person is general to the appeal and admits validity of its entry." An appeal may be entered by an attorney at law without written authority to do so." In Colorado a mistaken appeal may be dismissed and redocketed as on error" even when it is too late to newly bring error," but not after the reviewing court has decided the case and it has been appealed again." It follows that when appeal is heard without objection and argued to the merits, the error in the mode of review is naught." In Florida if entry be tardy as to some of several interlocutory decrees, it may still avail for those as to which it was timely."

SS 9. _Perpetuation of proceedings and evidence for the reviewing court. Record on appeal."_"_Scope and terminology._--The "record proper" sometimes designated as the "fundamental record," "judgment roll" or "common law record" includes those matters which are at common law of record ex propria vigore. The "secondary record" includes the various means by which matters not part of the record proper are made of record, by bill of exceptions, settled case, abstract, approved motion for new trial, etc. The "entire record" or record on appeal comprises all that is transmitted to the reviewing court, including both record proper and secondary record.

(SS 9) _A. What the record proper must show._"--That which is a part of therecord proper below must appear by such record and its omission cannot be supplied by the secondary record." As a general rule, the jurisdiction of the court below is presumed if it is of general," but not if it is of limited jurisdiction." But the facts necessary to appellate jurisdiction must always appear." On appeal from an in-

such practice, see post, SS 11.

90. It is too late to assert that a cause should have been redocked.on error when the action of the county commissioners in the cause comes a second time to the subjecting a public road should be taken and preme court from a judgment of a district returned to the next term of court, whether

court entered pursuant to the mandate of criminal or civil. Code 2039 and Acts 1901,

the court of appeals. Taylor v. Colorado p. 175, c. 28, SS 2, construed. Blair v. Coalley

\[N. C.\] 48 S. E. 804. Rules relating to "speak from justice court (Code, SS 875-883,

565. requiring return to be made to the appellate court and the papers to be filed with the celerk within 10 days after the appeal is taken, etc., apply. Id.

91) Where both parties appeal, the appeal of each must be separately docketed.

Orion Knitting Mills v. United States Fidelity & Guaranty Co. \[N. C.\] 48 S. E. 652. Under Sup. Ct. Rule 30 (64 S7 P. 15) appeals in three cases cannot be docketed as one appeal and the celerk paid for a single cause.

Rachofsky v. Benson \[Code. App.\] 71 P. 862.

92. Ray v. Tric \[Fla.\] 37 S. So. 582.

01. Under Civ. Code 1895, SS 4417,

quircment of such authority by $ 4457 applies only to attorneys in fact. Friar v. Curry, Arrington & Co. \[Ga.\] 47 S. E. 206.

94. Under express provisions of Mills'

Ann.-Code, SS 388a, if the appellate court has no jurisdiction to review a cause on appeal but would have on writ of error, the appeal will be dismissed and the cause re-en-

tered on the docket as pending on error.

Murto v. Lemon \[Code.\] 76 P. 641.

95. This should be doughough such a length of time has elapsed since the rendition of judgment that a writ of error could not be sned out. Bowling v. Chambers \[Colo.\] 77 P. 16.

6 Curr. L.--11.

96. It is too late to assert that a cause should have been redocked.on error when the cause comes a second time to the su-

attering a public road should be taken and returned to the next term of court, whether

court entered pursuant to the mandate of criminal or civil. Code 2039 and Acts 1901,

the court of appeals. Taylor v. Colorado p. 175, c. 28, SS 2, construed. Blair v. Coalley

\[N. C.\] 48 S. E. 804. Rules relating to "speak from justice court (Code, SS 875-883,

565. requiring return to be made to the appellate court and the papers to be filed with the celerk within 10 days after the appeal is taken, etc., apply. Id.

91) Where both parties appeal, the appel of each must be separately docketed.

Orion Knitting Mills v. United States Fidelity & Guaranty Co. \[N. C.\] 48 S. E. 652. Under Sup. Ct. Rule 30 (64 S7 P. 15) appeals in three cases cannot be docketed as one appeal and the celerk paid for a single cause.

Rachofsky v. Benson \[Code. App.\] 71 P. 862.

92. Ray v. Tric \[Fla.\] 37 S. So. 582.

01. Under Civ. Code 1895, SS 4417,

quircment of such authority by $ 4457 applies only to attorneys in fact. Friar v. Curry, Arrington & Co. \[Ga.\] 47 S. E.

intermediate court, the steps by which it acquired jurisdiction must appear.6 The record proper must also show the pleadings7 and judgment below,8 the motion for new trial and order thereon,9 the making of objections,10 taking of exceptions,11 the making of the secondary record12 and the timely taking of all steps necessary to bring up the case for review.13 The appealable interest of appellant, especially

of one not a party to the record, must appear.14 The rule in equity differs from that which prevails at law, and the complainant to whom relief is granted must preserve in the record the evidence upon which it is based, either by a certificate or evidence or by recitals in the decree finding the specific facts proven on the hearing.15

Footnote 14: The author is grateful to the anonymous referee for his comments on the manuscript.

(SS 9) _B. What is part of record proper; necessity of secondary record.16_ --The office of the bill of exceptions or other secondary record is to make of record that which is not part of the record proper, and it is necessary except to review errors apparent on the face of the judgment roll.17 The record proper consists of the summons, pleadings, and judgment,18 and orders made with reference to the record.19 Proposed pleadings and amendments which have never become pleadings in the action are no part of the record.20 Other proceedings had below, in order to be reviewed, must be brought into the record by a bill of exceptions,21

Footnote 14: The author is grateful to the anonymous referee for his comments on the manuscript.

show that amount of an appeal bond had count, trying an issue of fact, are made a bent fixed by the trial court as required by part of the record when, on request, they are reduced to writing, signed by the judge, and filed. Shannon's Code, $ 4684. Tennessee \[Vwash.\] 77 P. 785. The record need not show how it was transmitted by the clerk to the judge, any safe mode of transmission being sufficient, Davies v. New Castle & L. R. Co. \[Ohlo\] 73 N. E. 213.

14. Delaware County Trust, etc., Co. v. Lee, 24 Pa. Super., Ct. 74.

01. Wilcoxon v. Wilcoxon, 111 Ill. App. 90.

01. See 3 C. L. 206.

01. Lethbridge v. Lauder \[VWyo.\] 76 P. 682; Poor v. Cudlhee \[Wash.\] 79 P. 1105; Stone v. McCellan \[Tex. Civ. App.\] 81 S. W. 751; Ball v. O'Keefe \[Wash.\] 77 P. 832; State v. Justice Court of Tp. No. 1, Gallatin County \[Mon.\] 78 P. 498; Johnston v. Calain han \[Cal.\] 78 P. 705; Hecht v. Carey \[VWyo.\] 78 P. 705; Ivanovich v. Weilenman \[Cal.\] 78 P. 268; Miller v. Head Camp \[Or.\] 77 P. 83; Miller v. Enterprise Canal & Land Co. \[Cal.\] 79 P. 439; Woovieron v. Johnson \[Kan.\] 77 P. 569; Burnett v. Kirk \[Wash.\] 80 P. 855; Johnson v. Staley \[Ind. App.\] 70 N. E. 641; Manley v. Wheeling & Lake Erie R. Co., 4 Ohlo C. C. (N. S.) 834, 24 Ohio C. C. 70.

01. Cressler v. Asheville \[N. C.\] 51 S. E. 53. &ffidavit of defense. Brainerd v. Davis, 21 Pa. Super, Ct. 599. Demurrer to the evidence. Chesapeake & O. R. Co. v. Pierce \[Va.\] 48 S. E. 534. an order on a motion to strike a pleading. Gaston v. Marengo Imp. Co. \[Ala.\] 36 So. 788. Order for publication of summons is not. McHarden v. Rhodes, 143 Cal, 276, 17 P. 1086. A practice for a summons is no part of the record. Palmer v. Palmer, 5 Ohlo C. C. (N. S.) 242, 26 Ohio C. C. 660, Papers of which plaintiff makes profert in his declaration and attaches as exhibits. United States v. Bell \[C. C. A.\] 135 F. 336. Notices of trial are no part of the judgment roll. Sweeny v. Kellogg, 89 N. Y. S. 314. An interlocutory order to become part of the judgment roll must be one which in some way involves the merits or necessarily affects the judgment. Goldstein v. Michelson, 91 N. Y. S. 82. A petition to intervena and become a party in the main case is part of the record. Brannan v. Baxter & Co. \[Ga.\] 50 S. E. 45.

01. By statute in Tennessee the findings of fact and conclusions of law of the trial court, trying an issue of fact, are made a part of the record when, on request, they are reduced to writing, signed by the judge, and filed. Shannon's Code, $ 4684. Tennessee \[Vwash.\] 77 P. 785. The record need not show how it was transmitted by the clerk to the judge, any safe mode of transmission being sufficient, Davies v. New Castle & L. R. Co. \[Ohlo\] 73 N. E. 213.

01. Delaware County Trust, etc., Co. v. Lee, 24 Pa. Super., Ct. 74.

01. Wilcoxon v. Wilcoxon, 111 Ill. App. 90.

01. See 3 C. L. 206.

01. Lethbridge v. Lauder \[VWyo.\] 76 P. 682; Poor v. Cudlhee \[Wash.\] journal entry,\[22\] or equivalent proceedings,\[23\] except in the case of certain proceedings subsequent to the judgment.\[24\] In chancery cases and some special statutory proceedings,\[25\] the record includes all proceedings and files below,\[26\] including the testimony, if taken by deposition,\[27\] or as settled if taken in open court.\[28\] Stipula-

exceptions. Mahoney v. State \[Ind. App.\] \[23\] Pa. Super. Ct. 583. Where the Instructions are incorporated in the bill of excep-

transferled by a stenographer is not a part of the record unless made so by a proper bill of

to sign marginal exceptions therein. Avery exceptions. When and under what conditions

a "skeleton bill of exceptions" is allowable.

Tracy's Adm'x v. Carver Coal Co. \[Vv. Va.\] \[50\] \[51\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[50\] \[51\] \[50\] \[51\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[50\] \[51\] \[53\] \[54\] \[57\] \[59\] \[50\] \[51\] \[54\] \[58\] \[59\] \[50\] \[51\] \[52\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[51\] \[59\] \[50\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[51\] \[59\] \[52\] \[54\] \[55\] \[57\] \[59\] \[58\] \[59\] \[50\] \[51\] \[50\] \[52\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[51\] \[59\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[59\] \[50\] \[53\] \[54\] \[55\] \[57\] \[59\] \[51\] \[52\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[59\] \[50\] \[51\] \[52\] \[54\] \[55\] \[56\] \[57\] \[59\] \[51\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[51\] \[59\] \[52\] \[54\] \[55\] \[57\] \[59\] \[58\] \[59\] \[50\] \[51\] \[52\] \[54\] \[55\] \[59\] \[51\] \[52\] \[56\] \[57\] \[59\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[59\] \[51\] \[52\] \[54\] \[55\] \[56\] \[57\] \[59\] \[58\] \[59\] \[50\] \[51\] \[52\] \[59\] \[53\] \[54\] \[55\] \[56\] \[57\] \[59\] \[58\] \[59\] \[51\] \[59\] \[52\] \[54\] \[55\] \[57\] \[59\] \[53\] \[58\] \[59\] \[54\] \[55\] \[59\] \[56\] \[57\] \[59\] \[58\] \[59\] \[59\] \[50\] \[51\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[59\] \[58\] \[59\] \[59\] \[51\] \[52\] \[54\] \[55\] \[59\] \[52\] \[56\] \[57\] \[59\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[59\] \[51\] \[52\] \[54\] \[55\] \[57\] \[59\] \[52\] \[56\] \[58\] \[59\] \[51\] \[53\] \[54\] \[55\] \[57\] \[59\] \[58\] \[59\] \[59\] \[50\] \[51\] \[52\] \[54\] \[55\] \[59\] \[52\] \[56\] \[57\] \[59\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[59\] \[51\] \[52\] \[59\] \[53\] \[54\] \[55\] \[ * 5 Cur. Law. **APPEAL AND REVIEW SS 9B.** 165

tions,${}^{29}$ interlocutory motions and orders thereon,${}^{30}$ agreed statement of facts,${}^{31}$ depositions,${}^{32}$ proceedings at the trial,${}^{38}$ motion for new trial and order thereon,${}^{34}$ affidavits;${}^{35}$ the opinion of the trial court,${}^{36}$ and the evidence,${}^{37}$ are no part of the record proper, and statutes providing for the filing of the reporter's transcript of the evidence does not make it of record,${}^{38}$ nor do recitals in the motion for new trial make of record the matters recited.${}^{30}$ Statutes sometimes provide that instructions may be made of record by order,${}^{30}$ but unless so authenticated

trial judge, though contained in the record, III. App. 636; Burt-Brabb Lumber Co. v. cannot be considered on appeal in the absence of a stipulation that it is the evidence heard on the trial, Darrin v. Hort \[Xd.\] 58 V. People, 111 III. App. 200; Paducah R. & A. 195. Where the statement of the evidence and rulings is neither allowed by the justice who tried the case, substantiated by affidavits, nor asserted to by the appelle, the case is not properly before the supreme court. Rice v. Union R. Co. \[R. I.\] 68 A. 629. Zumpelman v. Power \[Tex. Civ. App.\] 85 B. V. 69.

30. A motion to quash condemnation proceedings, City of Tarkio v. Clark \[Mo.\] 85 S. W. 846; Hamilton v. Saunders \[Tex. Civ. App.\] 84 S. W. 829. A written motion to exclude evidence and an order denying the same. Holt \[Ca1\] 77 P. 904; Soder v. Adams Hardware v. Cave \[Tex. Civ. App.\] 85 B. V. 309. Order for transfer to another division. Stripling v. Maguire \[Mo. App.\] 84 S. W. 164. A petition for certiferal. Tompkins v. Newman \[Ga.\] 852; Anderson v. McGregor \[Wash.\] 75 B. E. 557. Order striking pleas. Lynn v. 775; Cressler v. Asheville \[N. C.\] 51 S. E. Bean \[Ala.\] 37, So. 515. A motion for judg. ment on the pleadings. Grubbs v. Needles \[Ind. T.\] 82 B. W. 873. Denial of continu.

since. S=with v. Hughes \[Tex. Civ. App.\] 86 S. W. 836. Under rule 29 (64 P. 12), pro-viding that on appeal the papers used on the hearing of a motion must be authenticated by incorporating them into the bill of ex-ethasmenting conditions, an unauthenticated affidavit printed in the transcript on appeal is no part of the record. People v. Wrin \[Ca.\] 76 P. 646. Rulings upon motions are not deemed saved for review unless the motion and ruling are made a part of the bill of exceptions. Grubbs v. Needles \[Ind. T.\] 82 S. W. 873.

31. Smith v. Smith \[Mo. App.\] 86 S. W. 586; Taylor v. Brotherhood of Railroad Trammen \[Mo. App.\] 80 S. W. 306; Woodver.

ton v. Johnson \[Kan.\] 77 P. 559. A bill of exceptions is not necessary where the case was tried below on an agreed statement of facts signed by the respective parties, and submitted to the court and made a part of its record. American Security & Trust Co. v. Walker, 23 App. D. C. 583.

32. Western Union Tel. Co. v. Kuykendall \[Tex. Civ. App.\] 86 S. W. 61. Deposition not used below cannot be considered, though included in record. In re Imboden's Estate \[Mo. App.\] 86 S. W. 263. In a changer case, where the evidence is taken by depositions, they become a part of the record, and there is no necessity for a bill of exceptions, since the chancellor has the whole record before him and all legal issues are thereby raised for his consideration. Western Coal & Min. Co. v. Hollenbeck \[Ark.\] 80 S. W. 145.

01. Froman v. Wilson \[Colo. App.\] 78 P. 615. Rulings on evidence at trial of equity case where evidence was taken by a commissioner must be in III of exceptions. Jennings v. Wyzanski \[Mass.\] 74 N. E. 347. Argument of counsel. Preston v. Davis, 112

01. Williams v. Hawley \[Ca.\] 77 P. 762; Power v. Fairbanks \[Ca.\] 80 P. 1075. It is not necessary to incorporate into bill of ex-ceptions & copy of the journal entry over-ethasmenting a motion for a new trial. Conrad v. Lepper \[Wy.o\] 81 P. 307.

01. Eubank v. Eastman \[Ga.\] 48 S. E. 425; Bravey-Velles they must be embodied in the bill of exceptions."

Recital in the record proper of matters which are no part of such record are unavailing to supply omissions from the bill of exceptions."

(SS 9) _C. Form, requisites and settlement of secondary record._ 1. _The bill of exceptions."_--In order to preserve exceptions to the action of the trial court in relation to any matter not a part of the record, a bill embodying it must be ten-altered, authenticated by the trial judge, and filed in the case before the adjourment of the term of court at which the action complained of occurred." This rule applies to any proceedings had in the progress of the case as well as to the action of the court upon trial and judgment."

The bill of exceptions in some jurisdictions embraces all matters not part of the record proper," while in others it is confined to specific errors, being used concurrently with other forms of secondary record," while in some separate bills are settled to each alleged error; each

41. Will ignore charge preserved in record but not in bill of exceptions, Southern R. Co. v. Yancy \[Ala.\] 87 So. 341.

01. Order disposing of motion for new trial must be shown in bill of exceptions and omission is not cured by recital in record proper. Fisher v. Lederer, 115 III. App. 289.

Date of motion for new trial omitted from the bill of exceptions may be supplied by reference to the record. Lambert v. Lambert \[Mo. App.\] 84 S. W. 203. Charge must be in bill of exceptions. Southern R. Co. v. Yancy \[Ala.\] 37 So. 341. Inclusion in the transcript of a petitlon to make certain papers part of the record and a stipulation that such petitlon was granted will not take the place of a bill of exceptions. Metropolitan R. Co. v. MacFarland, 25 S. Ct. 28. Objection and exception must appear by the bill and omission is not cured by rectilts in record proper. Dupuis Co. v. Cobb, 113 III. App. 421.

43. See 3 C. L. 208.

01. Louisville & N. R. Co. v. Fort \[Tenn.\] 88 S. W. 429. Questions not arising on the record cannot be reviewed without a bill of exceptions. State v. Beimfohr \[Mo.\] 81 S. W. 162. The office of the bill of exceptions is to set forth those proceedings which are not required to be entered" in the record proper. McCord Rubber Co. v. St. Joseph Water Co. \[Mo.\] 81 S. W. 189. The bill of exceptions becomes a part of the record when signed by the judge, ordered by the court to be filed, and filed. Bill held sufficiently identified by order of court. Id. It is never spread on the record of the court, and no order of the court property calls for it to be so spread. Id. A bill of exceptions to the remarks of counsel, being properly filed, becomes a part of the record of the case. Colorado Canal Co. v. Slims \[Tex. Civ. App.\] 82 S. W. 521.

01. Bill of exceptions must be filed at term at which proceedings are had, if previous to one at whlch final judgment is enter-ed, or exceptions are waived. Louisville & N. R. Co. v. Fort \[Tenn.\] 80 S. W. 429.

Laws 1899, p. 857, c. 275, authorizing judge to allow time to file bills after final judg-ment, does not apply to wayside bills of this character. Id. Petituin and bond for removal to Federal court held not part of record, and assignment predicated on refusal \[48 S. E. 970. The disallowance of an amend 5. Cur. Law. $\\Lambda$Appeal and Review SS 9C1. 167

bill must in such case be in the form appropriate to bring up the particular error,48 and each complete in itself.49 The bill of exceptions is ordinarily required to be embraced in one document,50 and should include all matters essential to the question involved,51 which were presented to the trial court, and nothing that was not so presented.52 Unnecessary or immaterial matters should not be included.53 Papers referred to therein must be annexed or identified beyond doubt.54 Skeleton bills, that is bills which provide for the subsequent copying by the clerk into and as a part of them of some paper or document, are allowed in some states.55 Appellant must see that record or abstract contains everything necessary to review,50 and its omissions will be construed against him87 and the

ment cannot be properly excepted to in a 70 N. E, SS8. It is not necessary that the cvi-motion for a new trial. Raleigh & G. R. Co. (a). 60 S. E. 1008. A ground of a motion for a new trial which explains that the verdict is contrary to a given charge of the court is in effect a complaint that the verdict is contrary to law. Spearman v. Sanders (Ga.) 49 S, E. 298. The surface theory of the evidence to sustain the verdict will not be considered upon a direct bill of exceptions. Question may be made in lower court by motion for new trial and decision brought up. Mulherlin v. Kennedy (Ga.) 48 S. E. 437. Rulings of court in excluding evidence must be preserved by bill of exceptions and not by statement of facts. Home Circle Soc. No. 1 v. Shelton \[Tex. Civ. App.\] 81 S. W, 84.

48. Affirmative charge will not be review-ed on evidentifary bill of exceptions. Atlanta Coagel Into the transcript. Newton v.tie Coast Line R. Co. v. Calhoun \[Fla.\] 85 S. W. 407. An exhibit not 361. In respect to a charge given or refusal, it must be set out in the ordinary bill of exceptions with the evidence or substance thereof to which it related and the charge that was given thereon. Daytna Bridge Co. v. Bond \[Fla.\] 86 S. 445.

01. Eychiatry and ordinary bills must be separately made up (Daytona Bridge Co. v. Bond \[Fla.\] 36 So. 445), and each must be sufficient in itself (Id.). An exception referring to another exception for its objection will be overruled. Miller v. Southern R. Co. \[S. C.\] 48 S. E. 95. The court will not refer from one bill of exceptions to another to aid defects claimed on either. Evidence and ordinary bills. Daytna Bridge Co. v. Bond \[Fla.\] 36 So. 445. In reviewing charge it will not look to evldence outside the ordinary bill of exceptions. Maultsby v. Boulware \[Fla.\] 36 So. 713.

01. Leave to file a bill of exceptions authorizes the films of as many separate bills as appellant desires. One embracing the evidence and another the ruling directing a verdict. Davis v. Mercer Lunber Co. \[Ind.\] 73 N. X. 899. A party can have but one bill of exceptions in the same case. Gray Lnm-ber Co. v. Gaskin \[Ga.\] 50 S. E. 164. When the judge has signed a bill of exceptions, he has exhausted his statutory power, thereto, so far as the party tendering the exceptions is concerned. Id.

01. The bill of exceptions must contain the evidence objected to. A mere reference to the official transcript which is not furnished to the court is not sufficient. Hathathaway v. Gosulant \[Vt.\] 89 A. 835. The evidence may properly be stated in narrative form. Avery v. Nordyk & Marmon Co. (Ind. App.) 168

APPEAL AND REVIEW SS 9CL. 5 Cur. Law.

court will of its own motion refuse to consider a bill not conforming to the rules.\[88\] As a general rule deficiencies in matters which belong to the bill of exceptions cannot be aided by other parts of the record.\[89\] A stipulation that objections and exceptions need not be taken at the trial does not dispense with the necessity of inserting them in the bill of exceptions precisely as if they had been so taken.\[89\] The office of the bill of exceptions is not only to verify the recitals, but to authenticate itself, and to show all facts, including the signature, within the proper time, needed to give the reviewing court jurisdiction.\[91\] The bill of exceptions must show on its face that it was signed in due time.\[92\] A defective bill cannot be aided by extrinsic evidence, except in cases expressly provided by statute.\[64\] In making up statements or bills of exceptions, litigants are not required to use transcripts of the record of the official stenographer.\[64\]

\_Settlement, signing, and filing.\[65\]--The bill must be settled by the judge who tried the case\[66\] unless provision is made for settlement by his successor.\[67\] It must be presented during the term\[68\] or within the time limited by statute or rule,\[99\] or an extension of such time duly allowed\[20\] before the expiration of the

SS8. District of Columbia v. Frazer, 21 App. \[ vision, a bill of 'exceptions will not be re-\] D. C. 154; Brown v. Insurance Co., 21 App. D. \[ garded as sealed unless it is Identified by the certificate of the trial court. Bostwick v. \[50\], Jamison v. Dooley, \[Tex.\] 82 S. W. \[78\], 67. Trial Judge cannot as his own successor.\[67\] 68. The Fairbank Co. v. Nicolal, 112 Ill. App. 261. \[ G1, 62. Atkins v. Winter \[Ga.\] 48 S. E. \[71\], 63. Supreme court cannot consider an af-\] davit setting up reasons why a corrected bill was not presented until the return of the judge to the county where the trial was had. Atkins v. Winter \[Ga.\] 48 S. E. 717. A motion to dismiss will be overrated where it affirmatively appears from the record that the bill of exceptions was tendered in time, though such fact is not reeded in the bill itself. Where judgment rendered Oct. 13, and bill signed Nov. 12, 1908. Green v. Val-\] dosta Gauon Co. \[Ga.\] 48 S. E. 984. The fact that a demurrer to the evidence is unnecessary made a part of the bill of exceptions does not prevent a review of the ruling thereon. Is part of record proper. Chesson-\] peake & O. R. Co. v. Pierce \[Va.\] 48 S. E. \[ G1, 62. Though Code Civ. Proc. $37. 377 require the official stenographer to attend all settings and file with the clerk full notes of the proceedings. York v. Steward \[Mon.l.\] 76 P. 756. Under Code Civ. Proc. $37. 370, 377, which provides for an official stenographer and makes his notes prima facle correct, litigants in making up statements or bills are not required to obtain transcripts from him. Id. \[ G1, 62. See 3 C. L. 210. \[ G1, 63. Kelly v. Moore, 22 App. D. C. 1; Burch v. Goodenough, 110 Ill. App. 603. Where the case was tried by the judge of another country acting specially be is the proper person to settle the bill of exceptions a-\] he may do so in his own county. Supreme Court of the Independent Order of Foresters v. Knowles, 113 Ill. App. 64L. The clerk's certificate cannot authenticate a bill not signed by the judge until after the certificate was made. Nurpenpen v. Daniels \[Ind.\] 71 N. E. 859. In the absence of some statutory pro time originally limited.\[11\] Relief in case of accident, mistake, or other excusable neglect, is generally provided.\[12\] The bill must be approved,\[13\] and stipulation will not dispense with such approval.\[14\] Approval must be by the judge, as such,\[15\] within the time allowed by law,\[10\] and the approved bill must be filed\[17\] in the court below after signature,\[18\] within the time allowed by law;\[19\] and in some jurisdictions

oring Co. \[Ga.\] 49 S. E. 782. Civ. Code 1895, 80 S. W. 582. Agreeing to postpone settle-$ 5539. Jossev W. Brown \[Ga.\] 47 S. E. 2560. ment beyond ruling on new trial motion in Smith v. Emerson \[Mo.\] 80 S. W. 922; a postponement past the beginning of the Hayes v. Woodham \[Ala.\] 36 S. 645; Dodds "next term," the new trial motion being set v. Greenson \[Wash.\] 77 P. 791; Firmann's for then. Practice rule 30 (Code p. 1200). Fund Ins. Co. v. Finkelstein \[Ind.\] 73 N. E. Birmingham R. & El. Co. v. James \[Ala.\] 814; Halstead v. Sigler \[Ind.\] 74 N. E. 36 So, 464. Under a rule limiting agreements \[257; Stock v. Lucbe \[Neb.\] 100 N. W.\] 807; to extend time of settlement of a bill (Code Dodds v. Greenson \[Wash.\] 77 P. 791. Where p. 1200), one settled by agreement after be-the last day allowed fails on Sunday, the pinning of next term will be ignored. Id. till of exceptions may be presented on Monday. Duncan v. Moloney, 115 Ill. App. 622. ment because tarfully settled may be good as When the bill is returned for correction, a new starting point is fixed, and hence what is a reasonable time for making the corrector.

it is required to be served on the adverse party.\[80\] The duty of the trial court to approve a truthful bill presented in time\[51\] will be enforced by mandamus;\[82\] but an appellate court will not, on mandamus, overrule the statement of the trial judge as to what were the facts.\[83\] In some states provision is made for authentication by affidavit of bystanders if the judge refuses to sign.\[84\] A bill duly settled is a record and can only be corrected as such.\[85\] Every reasonable intend-

judge signed the bill, the presumption arises that he did his duty and filed it after he had his to compel the trial court to make incompassed it. Neighbors V. Davis \[Ind. App.\]

73 N. E. 161; Pichon v. Martin \[Ind. App.\]

73 N. E. 1009. Where a bill was signed and filed on the same day it will be presumed that signature preceded tiling. Toledo, etc., but the bill of exceptions defendant can-

79. Cooper v. Lazarus \[Ga. 47 S. E. 500: Simpson v. Scroggins \[Mo.\] 81 S. W. 1129.

01. An acknowledgment of service upon a bill of exceptions does not relate to or bind any person not actually named or suffi-

826, 25 Ohio C. C52. What shall be conclently designated as a defendant in error

when the acknowledgment is entered. Sears

v. Jeffords \[Ga.\] 47 S. E. 185; Green v. Sharron \[Ga.\] 47 S. E. 188. Such an acknowledgment will not be construed as an acknowledgment by one thereafter made a party by amendment to the bill of exceptions. Sears

v. Jeffords \[Ga.\] 47 S. E. 186. Objection that the bill of exceptions was not properly served is valued by presenting amendments to

it. Fordham v. Northern Pa. R. Co. \[Mon.\]

76 P. 1040. Court rules requiring the submission of bills to the adverse attorney and

whenever it is not a defendant, the bill of exceptions has been found on

73 N. E. 611.

81. Must be presented in time. Civ. Code

1895, $ 5658. The only exceptions in the state are the judge's absence from home or

his failure by casualty to certify the bill of exceptions. Farmers' & Traders' Nat.

1896. Bank v. Willis \[Ga.\] 50 S. E. 866. Where an ex parte order extending the time for settling a bill of exceptions has been found on

83 N. W. 529.

the Judge may set it aside and refuse to

settle the bill because not presented in time. State v. Sornberger \[Neb.\] 101 N. W. 241.

82. In Massachusetts the prevailing party

is entitled, after exceptions by his adversary have been amended, to petition to have

the exceptions allowed as filed. Dorv v. Schenck \[Mass.\] 73 N. E. 532. Mandamus is

the remedy when the circuit court improper-

17 refuses to sign a bill of exceptions. State

v. Jarrett \[Mo.\] 81 S. W. 876. Mandamus will lie to compel the judge to sign the bill of exceptions. State v. Gibson \[Mo.\] 83 S. W, 472. Rev. St. 1889, $ 27-736, providing the procedure when the court refuses the

filling of exceptions, applies only where the judge refuses to sign a bill on the ground

that it is not a true statement of the matters excepted to, and not where he refuses

because a bill in an equity case does not contain all the evidence, where the only

question intended to be raised is that of

jurisdiction. Id. The contention that there

is no merit in relator's claim of error will not prevent the issuance of the writ.

Change of venue. The question must be brought before court in regular way, by

83 N. W. 529.

84. In this case, the judge is not a defendant, and the judge is not a defendant.

85 N. W. 530.

86. In this case, the judge is not a defendant, and the judge is not a defendant.

87 N. W. 540. On mandamus by a plain-

nent arising from the record of settlement supports the court's action therein.86 It may be vacated for defects which vitiate the settlement below.87

(SS 9C) 2. \_The settled case or statement of facts.88--\_The case must be settled and approved,89 unless a statute provides for an agreed case,90 by the judge who tried the case,91 within the district,92 within the time limited by law,93 rule,94 or stipulation of parties,95 or an extension thereof July granted,96 and must be

as is a part of the record and on file in the _terial_ and necessary fact in the state of the office of the clerk. Jones v. Gill \[Ga.\] 48 S. \[case is no ground for reversal. If appellant is dissatisfied with the statement he should suggest diminution. Van Vechten v. McGuire exceptions is not dated, the certificate will be presumed to have been made on the day of the acknowledgment of service by counsel for the defendant in error. Under Civ. Code 1895, $ 5566, providing that writ of error shall not be dismissed unless it made to will not confer authority to sign and seal time required by law. Porter v. Holmes \[Ga.\] 50 S. E. 923. It will be presumed that the acknowledgment of service was made after the bill was certified and within ten days thereof. Bill of exceptions will not be dismissed on ground that it does not affirm-atively appear that it was served after the signing of the certificate by the trial judge. Thompson V. Hays \[Ga.\] 51 S. E. 32. Where the date of the certificate, the date of the acknowledgment of due and legal service, and the date of the filling of the bill of exceptions, are the same, it will be presumed that these steps were taken in their proper chronological sequence. McCain v. Bonner \[Ga.\] 51 S. E. 26.

87. A motion to strike a bill of exceptions from the files on the ground that it does not contain all the evidence will be overruled where the determination of the errors assigned does not depend upon the weight of the evidence. Determination depends upon construction of will. Union Sav. Bank & T. Co., V. Smith, 4 Ohio C. C. (N. S.) 237, 26 Ohio C. C. 317.

01. See 3 C. L. 213.

01. A statement of facts signed by the parties, but not introduced in evidence or signed or approved by the judge cannot be considered as a statement of facts on appeal. Stone v. McClellan \[Tex. Civ. App.\] 81 S. W. 751.

01. A written agreement as to facts is not an agreed case provided for by Mills' Ann. Code $ 278, and must therefore be made part of the record by bill of exceptions. Wagner-Stockbridge Mercantile & Drug Co. v. Goddard \[Colo.\] 80 P. 1088. A statement signed by the judge but not by counsel, without a certificate that counsel failed to agree, and not purporting to contain all the facts, cannot be considered as a statement of facts on appeal. Sloan v. Schumpter \[Tex. Civ. App.\] 81 S. W. 1005.

01. An appellant in New Jersey is not entitled under the act of 1902 to have the steganphrer's notes certified as the state of the case, but there should be a statement agreed upon, or in default of agreement the case should be settled and signed by the judge. Boland v. Kaveny \[N. J.\] 58 A. 99; Esler v. Cadden & S. R. Co. (N. J.) 58 A.

113: Van Vechten v. McGuire \[N. J. Law\] 68 A. 331. An omission to set out a ma- 68 A. 331.

flcd in the court below." The date that exhibits are attached to the statement is immaterial so long as they are sufficiently indorsced and marked for identification." Mandamus will lie to compel a judge to settle and sign a properly presented case-made." Provision is usually made for settlement in case of the death or retirement of a judge." The judge may correct his certificate after the expiration of the time to settle the case." It is generally provided that the proposed case, with notice of settlement," be served on the adverse party," who may present amendments or accept the case as proposed," at the time of settlement." Cases dealing with the necessary contents of a settled case are discussed below."

script has gone up. Watkins v. Hale \[Tex. \] given of the proposed settlement of a state-

Civ. App.\] 84 S. W. 386. A case made completed within the time extended under ch.

When time to time, further formal notice is

$80, p. 583, Laws 1903, is not invalidated

because the order extending the time was

not filed with the ejerk, the provision re-

4. Case made must show that it has been

quiring such filling being directory, not man-

served within the statutory period or a

datory. Kansas City-Lexvenworth R. Co. v.

valid extension thereof. Zinkelsen v. Lew-

Langley \[Kan.\] 78 P. 588. In Michigan an

extension of time to settle a case on appeal

may be granted by the supreme court beyond

the 40 days specified in supreme court

rules 8 and 15, and the extension may be

Cressler v. Asheville \[N. C.\] 51 S. E. 53.

conditional. Sherman v. Sherman \[Mieh.\] In Kansas though a statute prescribes the

102 N. W. 630.

97. Appellant's counsel agreeing that the

statement of facts need not be filed within

the statutory time contributes to the delay

with the meaning of Sayles' Ann. Civ. St. 1897, art. 1382, and hence cannot have the

statement considered. Wilson v. Yryler Cofin Co. \[Tex. Civ. App.\] 82 S. W. 644. Where

appellant's counsel might have compiled

the filling of a statement of facts within

the statutory time, but failed to do se, and

the statement is filed after the expiration

of such time, it will be stricken on motion.

Where mandamus could have been resorted

to compel the filling of the statement with-

in the prescribed time. Id. A statement in

an opinion that an order extending the time

for filling a statement of facts must there-

after be upon written motion only does not

have the effect of a regularity adopted rule

of practice. Ft. Worth & D. C. R. Co. v.

Roberts \[Tex.\] 81 S. W. 25. An order

s granting leave to file a statement of facts

within 10 days after adjournment may be

entered nune pro tune upon oral evidence

and the recollection of the judge. Id.

98. Suksdorf v. Humphrey \[Wash.\] 17 P.

01.

01. Cadillae State Bank v. Wexford Cir-

cut Judge \[Mich.\] 102 N. W. 667. But not

when presented after expiration of the

time fixed by stipulation of parties. State

v. Kelly \[Minn.\] 103 N. W. 15.

1. In Kansas, a trial judge has jurisdiction after the expiration of his term, to

sign and settle a case until the time "fixed"

for serving, suggesting amendments or set-

tiling and signing has expired, and no longer.

Robbins v. Mackle \[Kan.\] 79 P. 170.

2. Under Ball. Ann. Codes & St. $ 5060,

a judge may correct or supplement his certificate either after the statement has been

settled or after the expiration of the time allowed by statute within which to file

amendments. In re Halburto's Estate

\[Wash.\] 80 P. 294.

3. Where notice has once been regularly

\[Kan.\] 79 P. 170.

2. Under Ball. Ann. Codes & St. $ 5060,

a judge may correct or supplement his certificate either after the statement has been

settled or after the expiration of the time allowed by statute within which to file

amendments. In re Halburto's Estate

\[Wash.\] 80 P. 294.

3. Where notice has once been regularly

\[Kan.\] 79 P. 170.

4. Case made must show that it has been

verted within the statutory period or a

valid extension thereof. Zinkelsen v. Lew-

\[Kan.\] 80 P. 44.

5. The appelle may accept the appelle

lants case, or if he adds or rejects any-

thing, the judge settles the case on appeal.

Cressler v. Asheville \[N. C.\] 51 S. E. 53.

In Kansas though a statute prescribes the

time, after service of a case made, within

which amendments may be suggested, the

court may with consent of the parties limit

to a shorter period. Robbins v. Mackle

\[Kan.\] 79 P. 170. The trial judge should

not settle a statement until it Is corrected

so as to state the truth as to all matters

it purports to contain. Humbird Lumber Co. v. Kootenal County \[Idaho\] 79 P. 398.

Where a proposed statement of case * 5 Cur. Law. 4.4.

need not be set out in full, but the fact that each was duly had or served must be shown.18 In South Dakota, failure to serve and file the abstract within the time limited is no reason for striking it from the record.19

_Supplemental or counter abstracts.20--Where an appellee is not satisfied with appellant's abstract, he is entitled to file one supplying the omissions.21 In some jurisdictions, the abstract must be approved,22 but where the practice of counter abstracting prevails, approval is usually unnecessary.23_

(SS 9) _D. Sufficiency of entire record to present particular questions.24--Every presumption favors the correctness of the rulings below,25 and accordingly_

- 949: Martin v. Castle \[Mo.\] $1 S. W. 426. \_such circumstances the abstract as made by An abstract containing the pleadings, ex-"respondent" must be taken as true, which hilbits, motions, and judgment in full, and the testimony principally in narrative but it does not say so. Appellant by treating an additional abstract as filed within the proper not too full. New York Store Mercantile (time valves the defect. So held where ob-Co. v. Thurmond \[Mo.\] $5 S. W. 333. Where the supreme court rules as to condensing the evidence in the abstract are not observed, the costs of the abstract will not be taxed (Chicago & A. R. Co. v. Bell \[III.\] $10 N. E. 754), and in a flagrant case pro for affmance may follow (Olson v. Lund \[Iowa\] $10 N. W. 1128). The abstract on appeal must be sufficiently full to enable the court to determine therefrom whether or not the errors assigned are well taken and the court will not search the record to determine whether technical objections were well taken, Chaloupka v. Bohemian Roman Catholle First Cent. Union, 111 III. App. $58. \_18. Abstract must contain an allegation that notice of appeal has been duly served. In re Long's Estate \[Iowa\] $102 N. W. 501. \_19. Juckett v. Fargo Mercantile Co. \[S. D.\] 100 N. W. 742. \_20. See 3 C. L. 216. \_21. The correctness of translations of letters in the abstract cannot be put in issue on appeal by a mere denial though there is no proof of their genuinness. Schneider Y. Schneider \[Iowa\] $8 N. W. 159. Where appellee claims anything has been omitted from appellant's abstract, the must supply the deficiency, unless the omitted evidence is in possession of appellant. Downs v. Downs \[Iowa\] $102 N. W. 431. A supplemental abstract the filling of which was unnecessary will be stricken on motion and the cost of printing it taxed to the party filling it. Wunderlin \[Iowa\] $100 N. W. 37. An additional abstract consisting of a brief and opinion of a master in a case where there is no authority for proceedings before a master is no part of the record. Preliminary injunction granted by the court. Anhuser-Busch Brewing Ass' v. Rahilf, 218 III. $49, 73 N. E. 414. Appellant's abstract will be taken as found; where he fails to specify his objections to respondent's additional abstract in writing so that the clerk may order a certified transcript of the part of the record in dispute in accordance with Rev. St. 1899, $13, but instead cites the bill of exceptions to show that respondent's abstract is incorrect, to which the court has no access, the appeal being by the short form. Leedy Elekvator Mfg. Co. v. Mertz \[Mo. App.\] $0 S. W. 684. The syllabus in this case states that under \[E. 907. Error not presumed to avoid effect the record, to present an alleged error, must not only show the ruling complained of, \[26\] and objection and exception thereto, \[27\] but so much of the evidence \[28\] and of error shown. Talbott v. Donaldson \[Kan.\], \[Va.\] 48 S. E. 857. No exception taken. Southern R. Co. V. Bievins \[C. C. A.\] 130 F. 685; Marsh v. Keating \[Conn.\] 60 A. 689; Co., 110 Ill. App. 238. After verdict it will be assumed in the absence of legal evidence to the contrary that all claims for consequential damages not legally recoverable were disallowed at the trial. Karnuff v. Peari v. Benton Tp. \[Mich.\] 100 N. W. 188, appeal in a partition suit, the record being silent, the court will presume that the rights of the parties have changed so that a former suit will not operate as a bar. Miller v. Lanning \[Ill.\] 71 N. E. 1115. Presumed that questions party refused to an answer were proper and that he was properly committed for refusing. Fenn v. Georgia R. & Elec. Co. \[Ga.\] 50 S. E. 103. In the absence of a case or bill of exceptions, it will be assumed that the question of all-money in a divorce case was voluntarily ill-gated, though the pleadings do not raise the question, Conklin v. Conklin \[Minn.\] 101 N. W. 70. Where an order granting a motion for a nonsuit on the ground of variance was passed, but was not entered until after an amendment adjusting the pleading to the proof was allowed, after which the order was filed, it will be presumed that the subsequent filing of the order was under the direction of the judge, nothing appearing to the contrary, and such order will be deemed a judgment that.plaintiff has failed to prove his case as laid in the amended petition. Fenn v. Seaboard Air Line R. Co. \[Ga.\] 48 S. E. 141. Referlin v. Karlman \[Mont.\] 76 P. 757; Ridley v. Mobille & O. R. Co. \[Tenn.\] 86 S. W. 606; Smith v. Hughes \[Tex. Civ. App.\] 86 S. W. 936; Land Tite & Trust Co. v. Fulmer, 24 Pa. Super. Ct. 260. An un-disclosed ruling will be presumed to have been in favor of the successful party. Hillman v. De Rosa, 92 N. Y. E. 67; Hickert v. Pollock, 92 N. Y. E. 89; Gairner v. Tate \[Ga.\] 48 S. E. 907. Though exceptions to rulings are not necessary in chaincery cases, the record on appeal must show that questions presented for review were involved below and adverse rulings made. Ortmeier v. Ivory \[Ill.\] 70 N. E. 665. Error cannot be assigned in New Jersey on an order striking out a pleading, unless the order is entered on the record at the request of the party against whom it is made. Bowers Hydraulic Dredging Co, v. Hess \[N. J. Err. & App.\] 60 A. 362. Rulings on motions to strike out pleadings cannot be considered when the bill of exceptions preserves neither the motion nor the ruling thereon. Hatcher v. Branch, Powell & Co. \[Ala.\] 37 So. 690.

27. Objection, ruling and exception must appear. Saenz v. Mumme & Co. \[Tex. Civ. App.\] 85 S. W. 59. Ground of objection must appear. Missouri, etc., R. Co. v. Jarrell \[Tex. Civ. App.\] 86 S. W. 632; Kaestner v. Farmers & Meelennants State Bank, 112 Ill. App. 158. A ruling on demurrer will not be reviewed where the grounds thereof are not copied into the record, according to Code, $ 3271, as amended by Acts 1899-1900, c. 100. Lane Bros. & Co. v. Bauserman 1020.

proceedings below as to exclude every fair intendment in support of such ruling,\[10\] and the record must be certified to contain all such matters.\[59\] This rule has been

2S. If evidence is to be reviewed it must' plaintiff's motion to require its production, appear from bill of exceptions that it is in untenable where the record does not show all there. Grand Lodge, Independent Order affirmatively that had no opportunity. of Free Sons of Israel v. Ohnstein, 110 Ill. Jenner v. Brooks \[Conn.\] 59 A. 508. An App. 312; Kansas City, etc., R. Co. v. Jos. - objection that the limitations pleaded were in \[Ark.\] 85 S. W. 455; Duysman v. Ryan \[Ill.\] 71 N. E. 848; Young v. Irwin \[Kan.\] - able where the amended answer setting 79 F. 678; Bryant v. Nelson-Frey Co. \[Min.\] - them up is not made a part of the record. 102 N. W. 855; Ersendine v. Goltsting \[OK1.\] - Falls Branch Jellico Land & Improvement 71 P. 45; Wade v. Mitchell \[Ok1.\] 79 F. 95. Case made must show that It contains all the evidence. Frame v. Ryel \[Ok1.\] 79 P. certified to contain it all. Lumbard v. 97. Rulings on sufficiency not reviewed unless record contains all the evidence, and such fact appears. Crooks v. Harmon \[Utah\] - by 95; Landt v. Schneider \[Mon.\] 71 F. 207; Merk v. Bowyer Min. Co. \[Mon.\] 78 P. 519; Froman v. Wilson \[Colo. App.\] 78 P. 618. When It is clear that all the evidence is in the record, it will be so treated, through there is no express statement to that effect. Fisher v. Chicago City R. Co., 114 Ill. App. 217. A reeital In the record from which it fairly appears that all the evidence has been preserved is sufficient. Young v. Irwin \[Kan.\] 79 P. 678. A bill of exceptions approved and signed by the trial judge will be presumed to contain all the evidence, it not indicating on its face the omission of any part thereof. Murphy v. Roney \[Ky.\] 82 S. W. 396. It cannot be assaalled by affidavits. Id. "Testimony" is not a proper word to use in a bill of exceptions to show that it contains all the evidence. Crooks v. Harmon \[Utah\] 80 P. 95.

2B. It is not sufficient that the reasons given by the court below are shown to be erroneous, San Antonio & A. P. R. Co. v. Lester \[Tex. Civ. App.\] 84 S. W. 401. The appellant must so overcome all reasonable inferences on the record favorable to appelle as to make out a material issue of law wrongly decided. Heath v. Sheetz \[Ind.\] 74 N. E. 505. Record must show error affirmatively and directly and not merely by way of presumption. Swain v. McMillan \[Mont.\] 76 P. 943; Powers v. Fairbanks \[Ca.\] 80 P. 1075; Skinner v. Horn \[Cal.\] 78 P. 597; Struck v. Massillon Stonerv Co. 4 Ohio C. C. (N. S.) 536, 26 Ohio C. C. 73. Objection to deposition on ground that plaintiffs had no notice that it was to be taken will not be considered where bill of exceptions does not state as a fact that they had no notice. Ward v. Cameron \[Tex.\] 80 S. W. 69. The rights of the respondent cannot be prejudoted by failure of the appellant to furnish the reviewing court with papers required to be furnished by him. Skinner v. Horn \[Cal.\] 77 P. 904. An objection that an allowance against a bankrupt's estate was erroneous because not proved within one year after the adjudication of bankruptcy cannot be maintained, where the record does not show the date of the adjudication. Buckingham v. Estes \[C. C. A.\] 128 F. 684. A contention that the court erred in ordering defendant to produce a deced, on the ground that he had no opportunity to plead, answer or demur to use the court.

The author's main contribution to the work presented here is to thank the anonymous reviewers for their comments.

## References

- \[1\] A. A. M. 1984. _The Journal of Mathematical Physics_, 19:239-242, 1984.
- \[2\] A. A. M. 1984. _The Journal of Mathematical Physics_, 19:239-243, 1984.
- \[3\] A. A. M. 1984. _The Journal of Mathematical Physics_, 19:239-246, 1984.
- \[4\] A. A. M. 1984. _The Journal of Mathematical Physics_, 19:239-246, 1984.
- \[5\] A. A. M. 1984. _The Journal of Mathematical Physics_, 19:239-249, 1984.
- \[6\] A. A. M. 1984. _The Journal of Mathematical Physics_, 19:239-246, 1984.
- \[7\] A. A. M. 1984. _The Journal of Mathematical Physics_, 19:239-246, 1984.

applied to rulings relating to jurisdiction,31 process32 and pleading,32 entry and

by the person transcribing his testimony.

By the person transcribing his testimony.

Avery v. Nordyke & Marmon Co. \[Ind. App.\]

defect in the jurisdiction of the court. In 70 N. E. 888. In order to review alleged

such case, whether an appearance is general error in refusing instructions, it is not necessary that the record expressly state that

or special is to be determined by the record

as it stands at the time the motion is made, no instruction given is omitted therefrom

Fisher. Sons & Co. v. Crowley \[W. Va.\] 50

where those given and refused are numbered

S. E. 422.

consecutively and it is apparent that all

S3. The meaning imported by pleadings

those given are set out. Siegel, Cooper & Co. v. Norton \[ILL\] 70 N. E. 636.

S3. On a silent record it is presumed

that the trial court acted within its juris

diction. Snider v. Badere \[Wash.\] 81 P.

Presumptions as to suffeciency: Rulings

S02. Record and supplement thereto held

upon the sufficiency of pleadings will not not not to show that the trial court acted be

be reviewed unless the pleadings attacked

yond its jurisdiction. Id. Where the amend-

are in the record. Consol. Stone Co. v.

ed petition claims a sum within the juris

Stagrams \[Ind.\] 73 N. E. 695; Gooding v. Rosa-

diction below and the original does not

sister \[Colo. App.\] 77 P. 194. Where a por-

appear, it will be presumed that it claimed

tion of a plea is stricken on motion and

the same amount. St. Louis S. W. R. Co.

such portion does not appear in the tran-

v. Dolan \[Tex, City, App.\] 84 S. W. 393. Ob-

script, the ruling cannot be reviewed. Muller

jection to jurisdiction of county commis-

V. Ocula Foundry & Mach. Works \[FIu.\] 38

sioners to establish a road, not pleaded,

So. 64. Plea as originally made must ap-

cannot be considered unless the entire pro-

pear to test its sufficiency. Northern Ala-

ceedings relative to the establishment of

numa R. Co. v. Mansell \[Ala.\] 36 So. 459.

the road appear in the record. Carlson v.

The record must preserve the pleadings in

Board of Comrs of Spokane County \[Wash.\]

exact identity if exceptions referring there

80 P. 795. Where the district court is given

to by line and pares are to be considered.

original jurisdiction in probate matters, the

Maultby v. Boulware \[FIu.\] 36 So. 713. If

presumption of regularity applies to its pro-

the sole exception is that there was no cause

eedings in such matters. Lethbridge v.

of action stated, nothing is necessary but

Lauder \[Wyo.\] 76 P. 683. It will be

the pleading or motion ass?!led, the exception

sumed that facts authorized the appointment

tion thereto, and the judgment thereon.

of a special administrator under Rev. St.

Necession of Begue \[La.\] 36 So. 848. The

1899, s 4542, providing that orders need not

rectificate must unequivocally show that

rectific jurisdictional facts. Id. Error does

not lie to review a judgment rendered

-pen which the case was tried. Consididid-red

against a nonresident minor on the ground

that no guardian ad Item was appointed

for him or requisite answer filed, where the

fact of his minority appears only in the

plastic contains a good paragraph where it

pracipe for a summons and not in the record. Palmer v. Palmer, 25 Ohio C. C. 680,

basis of the judgment or verdict. B-1dimore

$ Ohio C. C. N. 8.) 242. In the absence of

proper evidence as to when a term of the

trlal court adjourned, it will be presumed

that it continued as long as the judge took

Jurisdiction of matters which could only be

considered in term. Southern R. Co. v.

S02. In Arkansas a recital in a decree

that "defendants were duly served with

summons herein as required by law" is prima

facie evidence of that fact and must be taken

as true on appeal in the absence of any

thing to the contrary in the record. Sand.

& H. Dilg. $ 4191. Love v. Kaufman \[Ark.\]

80 S. W. 884. Presumed that granting an

amendment of summons was in furtherance

of justice under Mills' Ann. Code, 75.

Slaughter v. Strause \[Colo. App.\] 79 P. 972.

Error in dismissing an action on the ground

that summons had not been served cannot

be considered where the motion to dismiss

the affladvit in support thereof and the ex-

ception to the ruling of the court are not

made a part of the record. Bowling v. Chambers

\[Colo. App.\] 77 P. 16. It is not necessary for a defendant, in appearing in a court of record to quash a defective writ

commemencing an action, to cause the record

to recite that his appearance is for that pur-

$ Curr. L--12.

opening of defaults,34 motions and affidavits,35 proceedings at trial in general,36

sumed that proof of the omitted fact was made at trial. Ashland & C. St. R. Co. v. Lee \[Ky.\] 82 S. W. 368. When a demurrer is overruled and then withdrawn, the decision on it cannot be reviewed on error; but if the final judgment appears by the record to- rest solely on the pleading demurred to, or if a ruling at the trial on the question raised by the demurrer is presented in a bill of exceptions, that can be reviewed on error. Montelair Military Academy v. North Jersey St. R. Co. \[N. J. Err. & App.\] 67 A. 1050.

**Presnnnptions as to amendments or addi-**

**tensnptions** as to amendments or addi-\*\*

**tensn pleadings:** On a silent record it is presumed that a complaint was amended to correspond to the proof. Weber v. Snhodo-

\*\*mish Shingle Co. \[Vwash.\] 79 P. 1126. In Washington, amendments to pleadings which might have been made below on motion will be deemed to have been made. Hodges v. Price \[Vwash.\] 80 P. 202. Amendment offered and disallowed must be brought up. Raleigh & G. R. Co. v. Pullman Co. \[Ga.\] 50 S. E. 1008. Grounds of amendment and proposed amendment not in record. Bulte v. Jeleheart Bros. \[C. C. A.\] 137 F. 492. Refusal to grant leave to amend a complaint before answer filed will not be reviewed unless error appears from the record. Stewart v. Winner \[Kan.\] 80 P. 934. In an appeal from an order sustaining a demurrer, it is presumed that permission to amend was given. Turner v. Hamilton \[Vw.\] 80 P. 664. On an appeal from a judgment for plaintiff in an action of conversion for a policy of Insurance or its value, an amendment eliminating the prayer for possession will be presumed to have been made before a tender of the policy. First Nat. Bank v. Cleveland \[Tex. CIV, App.\] 82 S. W. 337. On a silent record alleged error in allowing defendant to file a cross complaint is not reviewable. Bell v. Southern Pac. R. Co. \[Ca.\] 77 P. 1124. Refusal of leave to further phenol sustained where no real intention to avail of such leave and no proposed plea was shown in record. Maults v. Boulware \[Fla.\] 36 So. 713.

**Presnnptions as to pleadings not in the record:**

**Presnptions** as to pleadings that the case was tried below on the assumption that the answer was put in issue, it will be so treated on appeal, though no reply appears. Allen v. Avlor \[Mo. App.\] 86 S. W. 904. Where the original petition stated a cause of action and the amended petition was not in the record, it will be presumed that it is sufficient. H-ess v. Trumbo \[Ky.\] 84 S. W. 1153. Pless will be presumed to have m?=de the general? Issue when the record does not show what they were and when the bill of exceptions does not aid it. Bradford v. Bonz-

**Presnptions** as to amendments or addi-\*\*

**tensn pleadings**: On a silent record it is presumed that a complaint was amended to correspond to the proof. Weber v. Snhodo-

\*\*mish Shingle Co. \[Vwash.\] 79 P. 1126. In Washington, amendments to pleadings which might have been made below on motion will be deemed to have been made. Hodges v. Price \[Vwash.\] 80 P. 202. Amendment offered and disallowed must be brought up. Raleigh & G. R. Co. v. Pullman Co. \[Ga.\] 50 S. E. 1008. Grounds of amendment and proposed amendment not in record. Bulte v. Jeleheart Bros. \[C. C. A.\] 137 F. 492. Refusal to grant leave to amend a complaint before answer filed will not be reviewed unless error appears from the record. Stewart v. Winner \[Kan.\] 80 P. 934. In an appeal from an order sustaining a demurrer, it is presumed that permission to amend was given. Turner v. Hamilton \[Vw.\] 80 P. 664. On an appeal from a judgment for plaintiff in an action of conversion for a policy of Insurance or its value, an amendment eliminating the prayer for possession will be presumed to have been made before a tender of the policy. First Nat. Bank v. Cleveland \[Tex. CIV, App.\] 82 S. W. 337. On a silent record alleged error in allowing defendant to file a cross complaint is not reviewable. Bell v. Southern Pac. R. Co. \[Ca.\] 77 P. 1124. Refusal of leave to further phenol sustained where no real intention to avail of such leave and no proposed plea was shown in record. Maults v. Boulware \[Fla.\] 36 So. 713.

**Presnptions** as to pleadings not in the record:\*\*

**Presnptions** as to attempt that the case was not covered. Where it appears that the case was not covered, the proof is not yet * 5 Cur. Law. **APPENDIX AND REVIEW $ 9D.**

admission,${}^{\\rm 47}$ exclusion,${}^{\\rm 38}$ and sufficiency of evidence,${}^{\\rm 39}$ instructions,${}^{\\rm 40}$ findings,${}^{\\rm 41}$

will be affirmed where only a part of the \[Tex. Civ. App.\] $1 S. W. 714. Evidence not deposition is in the record. Shannon v. In record. Wilson v. Huguenin \[Ga.\] 43 S. Marchanchanks \[Tex. Civ. App.\] $0 S. W. 860. An assignment of error that plainff's motion for a new trial. Hunting for a new trial, on the ground that she had been restored sufficiently to enable her to attend court or to give her deposition, will also be overruled for the same reason. Id. **36.** The rules of the trial court will not be regarded on appeal unless they are before the court in the particular record involved. Edwards v. Warner, 111 III. App. **32.** Bill of exceptions must show rules of court for noncompliance with which ruling was made. Dahms v. Moore, 110 III. App. **223.** In the absence of proof to the contrary, a court is presumed to have compiled with its own rules respecting short-cause calendars. Union Book Co. v. Robinson, 105

If all, App. 236. Where the record fails to show that a special judge presided, the pre-sumption is that the trial was before the regular judge. Arkadelphia Lumber Co. v. Asman \[Ark.\] $3. W. 1060. Remark of court in limiting evidence will not be re-viewed unless it appears from the record to house & Banking Co. \[Ga.\] 47 S. E. 341. have been made in presence of jury. Burridge \[Ky.\] $6 S. W. 702. Where the record shows that at-torneys' fees were allowed "on hearing." it will be presumed that there was evidence sustaining the allowance. Dills v. Auxler \[Ky.\] $5 S. W. 743. A bill alleging error in accepting disqualified yurors but failing to clearly show the disqualification is insufficient. San Antonio & A. P. R. Co. v. Lesser \[Tex. Civ. App.\] $4 S. W. 401. Where the record does not show that a juror actually sat in the case or that apellant exhausted his pernitory challenges, error in overruling a challenge for cause is not available. Simonds v. Cash \[Mich.\] $9 N. W. 754. A decision that a juror challenged for actual bias is not incompetent may be reviewed, though all the evidence as to his competency is not incorporated in the bill. If sufficient evidence to show that the was biased is contained. State v. Miller \[Or.\] $1 P. 363. It will be presumed on appeal that the court ruled correctly in overruling defendant's motion to set aside the swearing of the jury or continue the case on the ground of surprise, in that the court had indicated a different ground of liability in ruling on a previous demurrer to the petition from that on which he proposed to sub-mit the case to the jury, where there is nothing in the record to show that defendant was misled by the ruling on the denurrer. Illinois Cent. R. Co. v. McIntosh \[Ky.\] $0 S. W. 496. **37.** A contention that certain evidence was not admissible because not within the issues cannot be considered in the absence of the complaint. Gottesman v. Heiden, $8 N. Y. S. 557. **Record must show evidence ruled on** Davenport V. Lines \[Conn.\] $9 A. 603; Carlson v. Hall \[Iowa\] $9 N. W. 571; Carhart v. Oddenkirk \[Colo. App.\] $7 P. 303. Agreed statement of facets did not contain tensiony. St. Louis S. W. R. Co. v. Burke **38.** The rules of the trial court will not be regarded on appeal unless they are below the court. Heiden v.

## Appendix A Appendix and Review SS 9D. 5

1.1 The $\\alpha$-ray $\\beta\\

## 5 Cur. Law

APPEAL and REVIEW $ 9D.

R. Co. v. Greb \[Ind. App.\] 73 N. E. 620. such order without a bill of exceptions. Facts not disturbed unless affirmatively Jos. Schlitz Brewing Co. v. Washburn Brew-shown to be wrong. Selberling & Co. v. Ing Co. \[TWis.\] 100 N. W, 832. On appeal Porter \[Ind.\] 74 N. E. 516. Proof will be from a nonsuit whatever the evidence ends presumed of a material fact of which a to prove will be taken as established, but record not returning all the evidence is to justify reversal the record must contain silent. Hog v. Hersherberg \[Ala.\] 37 No. 591. evidence fairly tending to prove the allegs-Whether a deed was voluntary or for valuetions. In a personal injury action, the neg-cannot be determined unless a copy or suff-licence of defendant or that it was the deen description thereof is embraced in proximate cause must not be left to con-the record. West v. Wright \[Ga.\] 49 S. E. 285. Where the trial court treats a deed as a voluntary one and plaintiffs in error fail to show that he erred in so doing, the supreme court will also so treat it. Id.

Where no evidence is brought up the court cannot assume that a freight lurakeman act-ed without the scope of his authority in ejecting an intruder from the train, the evidence is in record. Abner Dobie Co. v. rules of different companies differing in that respect. Setoboard Air Line R. v. Rich-ard \[C. C. A.\] 136 F. 409. An assignment that a verdict is contrary to the evidence cannot be considered unless all the evidence \[A.\] 71 F. 160; Neumann v. Moretti \[Ca.\] 72 F. 510; Bressler V. Kelly \[Ind. App.\] 72 is in the record. Neder v. Jennings \[Ut=b\] 78 P. 482: Whitehead v. Hogt \[Ind.\] 58 A. 196; Hill-T.\] 82 S. W. 698. Direction of a verdict will not be reviewed where it was based on cer-tain by-laws which are not in the record. Klesewetter v. Supreme Tent, etc., 112 Ill. App. 48. App. 48. Applant's defensive evidence not being In record, court could not say that it did not eure weakness of plaintiffs case. Todd v. McLeod \[Mass.\] 74 N. E. 344. To present for review a ruling sustaining a deed-murrer to the plaintiff's evidence, the case made need not contain all the pleadings at any time in the case. It is sufficient if it contain the pleadings upon which the trial was had. John Deere Plow Co. v. Jones \[Kan.\] 76 P. 750. In the absence of an agreed statement of facts, nothing short of the testimony itself will enable the court to form its conclusions as to the facts that are to control its decision. Stipulation that plaintiff's evidence tended to prove certain facts and defendant's tended to prove certain tin other inconsistent facts is insufficient. Reid v. Forsythe \[Md.\] 58 A. 204. Evidence in the record will be considered notwithstanding the record also shows a statement by counsel of his purpose to withdraw it, where no order permitting its withdrawal appears. Chicago Terminal Transfer Co. v. Vandenberg \[Ind.\] 73 N. E. 930. Where the record does not show that it contains all the evidence on which a nune pro tune order is sought, no question is presented for review on appeal from the overvelling of a motion for such entry. Crystal Ice & Cold Storage Co. v. Marion Gas Co. \[Ind. App.\] 74 N. E. 15. Exhibits used for a collateral purpose by witnesses whose testimony is complete without them and which were not introduced in evidence are not evidence, and questions depending on the evidence can be considered in their absence. White v. Cincinnati, etc., R. Co. \[Ind. App.\] 71 N. E. 276. A report of the evidence heard by a commissioner may be considered where considered below, though the court below only required the commissioner to report the facts. Page v. Melrose \[Mass.\] 71 N. E. 787. The determination of a controversy upon evidence closed by an order cannot be reversed upon the merits upon appeal from the lack of the evidence.

The author is grateful to the referees for the support of the author.

ings will not be set aside because of special findings, unless unreconcidable therewith. Kupke v. Polk \[Neb.\] 103 N. W. W21. In the absence of evidence as to the nature and character of the injuries sustained by plaintiff, it will be presumed that a default judgment in his favor was supported by the evidence heard by the trial judge when it was rendered. El Paso & S. W. R. Co. v. Kelly \[Tex. Civ, App.\] 83 S. W. 855. Where the evidence is not in the record and the statement of facts in the special findings does not show that as to the defendant moving for a new trial the judgment is excessive, the overruling of the motion on that ground is not cause for reversal. Coy v. Druckamiller \[Ind. App.\] 73 N. E. 195.

- 40. Presumption as to regularity and sufficiency of instructions: That charge was in writing. Johnson v. Melhousin, 105 III. App. 367. That charge was free from error, Graves v. Norfolk & S. R. Co. \[N. C.\] 48 S. E. 502. That instructions were based on testimony. Pryor v. Walkerville \[Mon.l\] 79 P. 240. Instructions to which no objection is made on appeal will be treated as correct. St. Louis, etc. R. Co. v. Brown \[Ark.\] 83 S. W. 332. Record being silent, presumed on appeal that request for submission of special issues was made. Stahl v. Askey \[Tex. Civ. App.\] 81 S. W. 79. Failure to object to a verbal charge, in a motion for a new trial, warrants the inference, on appeal, that a written charge was waived. Schwartzalose v. Mehlitz \[Tex. Civ. App.\] 81 S. W. 85. Where no instructions were given or refused in a case tried by the court, it will be presumed that the court made a proper application of the law to the facts. Manch v. Hornback \[Mo. App.\] 83 S. W. 536. Where the record contains an agreement that there was evidence to justify the giving of every instruction given, the instructions cannot be reviewed. Forsee v. Hurd \[Mo.\] 84 S. W. 878. An unchallenged statement by respondent that certain instructions were given, and if given were correct, will be taken as true, nothing being in the record to the contrary. Griffith v. Ridpath \[Wash.\] 80 P, 820. Where the record does not show that instructions were requested before the commencement of the argument, the presumption is that they were refused because not requested in time. White v. Sun Pub. Co. \[Int. App.\] 73 N. E. 890. The failure of the court to instruct in a particular manner cannot be assigned as error, where the record does not show that he was requested to rule upon the question. Childs v. Bolton \[S. C.\] 48 S. B. 618. The record to review refusal of special instructions must show that they were requested after the main charge was delivered. Galvetson, etc. R. Co. v. McAdames \[Tex. Civ. App.\] 84 S. W. 1076. Where a requested charge appears to have invited an error in the general charge, the error will not be reviewed unless it affirmatively appears that the request was not made until the general charge had been delivered. Texas & N. O. R. Co. v. McDonald \[Tex. Civ. App.\] 85 S. W. 483.
- \*\*The givlug or refusal of instructions cannot be reviewed unless the record contains the entire charge. Michigan City v. Philipps \[Ind.\] 71 N. E. 205: Frank Bird Transfer Co. v. Morrow \[Ind. App.\] 73 N. E. 189: Knickerbocker Iee Co. v. Gray \[Ind.\] 73 N. E. 869: Stevenson v. Levinson \[Va.\] 49 S. E. 974: Tucker V. Central of Georgia R. Co. \[Ga.\] 50 S. E. 125; Lunsford v. Bailey \[Ala.\] 38 S. 362. Instructions not in the abstract will not be reviewed. Detriting v. St. Louis Transit Co. \[Mo. App.\] 85 S. W. 140. Rec-ord must contain whole charge to question refusal of a request as one already given. Netcher v. Bernstein, 110 III. App. 484. If instructions given are not in the record they are presumed proper. Swope v. Seattle \[Wash.\] 78 P. 607; Griffith v. Ridpath \[Wash.\] 80 P. 820. Where instructions refused are not in the record it is presumed that they were covered by those given and contained in the abstract. Slausher v. Strouse \[Colo. App.\] 79 P. 972. The action of the court in setting aside a verdict for misdirection of the jury cannot be reviewed on appeal, where the instructions given are not contained in the record. Rocky Mount Loa & Trust Co. v. Price \[Va.\] 49 S. E. 73. Only affirmative errors can be considered by reviewing court, where a part of the charge is omitted from the record. Sharp v. Cinemint, 4 Ohio C. C. (N. S.) 19, 26 Ohio C. C. 59.
- \*\*Record must contain evidence to which instructions asked or refused relate. Newport News & O. P. R. & Elec. Co. v. Yount \[C. C. A.\] 136 F. 589; Pryor v. Walkerville \[Mon.l\] 79 P. 240. Instructions presumed proper in absence of evidence unless erroneous under any state of facts. Pryor v. Walk- orfiles \[Monl.\] 79 P. 240. Where the record does not contain the evidence, * \[15\] \[16\] \[17\] \[18\] \[19\] \[20\] \[21\] \[22\] \[23\] \[24\] \[25\] \[26\] \[27\] \[28\] \[29\] \[30\] \[31\] \[32\] \[33\] \[34\] \[35\] \[36\] \[37\] \[38\] \[39\] \[40\] \[41\] \[42\] \[43\] \[44\] \[45\] \[46\] \[47\] \[48\] \[49\] \[50\] \[51\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[60\] \[61\] \[62\] \[63\] \[64\] \[65\] \[66\] \[67\] \[68\] \[69\] \[70\] \[61\] \[60\] \[63\] \[65\] \[67\] \[68\] \[69\] \[71\] \[72\] \[73\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[80\] \[81\] \[82\] \[83\] \[84\] \[85\] \[86\] \[87\] \[88\] \[89\] \[90\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[90\] \[91\] \[92\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[91\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[90\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[91\] \[92\] \[94\] \[95\] \[97\] \[99\] \[91\] \[93\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[97\] \[99\] \[91\] \[92\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[97\] \[99\] \[91\] \[92\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[90\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[90\] \[91\] \[92\] \[94\] \[95\] \[96\] \[97\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[99\] \[98\] \[99\] \[99\] \[99\] \[99\] \[90\] \[91\] \[92\] \[9 (SS 9) \_E. Conclusiveness of record and effect of conflicts therein.44--\_The record imports absolute verity,47 and cannot be impeached by affidavits48 or by

the absence of pleadings or findings of fact, specified in the motion a new trial was the supreme court cannot reverse the judgg- granted, the order will be affirmed if it ment. Winans v. Grable \[S. D.\] 99 N. W. W. 1110. Where the findings in the record are insufficient to support the judgment and the judgment does not purport to be based on "unless grounds of motion appear. Peoria findings it will be presumed there were none to support it. Thomas v. Issenhuth \[S. D.\] 100 N. W. 436. Where on appeal from a judgment of the circuit court affirming a judgment of a magistrate the case does not show on what ground the magistrate based bills, Weed v. Reed \[Cal.\] 76 P. 652. Under his judgment, nor the exceptions on appeal to the circuit court, nor on what ground the circuit court based its judgment, the decision of the circuit court will not be on \[Mon.\] 77 P. 519. The granting of a reviewed. Moore v. Dean \[S. C.\] 49 S. E. 840. Where a statute provides that the conclusions and judgment of a municipal court, in a trial without a jury, may be presented for review by bill of exceptions to the supreme court, such judgment cannot be reviewed when the bill discloses no exception to the judgment and what the judgement was. Morey v. Monk \[Ala.\] 38 So. 265. In reviewing certain to a Justice's judgment, the present, the presumption is indudged that the court below construed the return in such way as to support the decision which was made. Faulkner v. Snead \[Ga.\] 49 S. E. 747. In Alabama, where the conclusions and judggment of a municipal court, in a case tried without a jury, may be reviewed on a bill of exceptions, such judgment will not be reviewed unless the bill discloses what the judgment was and exceptions there; but the rulings on admissibility of evidence are reviewed. Morey v. Monk \[Ala.\] 38 So. 265. The terms of the law under which the plaintiff association was chartered not being in the record, and it having failed to show the amount of damages arising from the breach of the bond sued on, a judgment based on the admissions of defendant's pleas was not error of which plaintiff can complain. National Bldg. Assn'v. Quinn \[Ga.\] 49 S. E. 312. An objection, in an action to determine the title to land, that a previous judgment dismissing a caveat against the issuance of a patent therefor was a bar to the action cannot be sustained, where the transcript does not contain the record of such previous proceedings. Combs v. Duff \[Ky.\] 80 S. W. 165. Where on appeal it appears that plaintiff's cause of action was based on written exhibits offered in evidence but not attached to the record and it does not appear on what judgment in favor of plaintiff is based, the judgment will be reversed. United States Title Guarantee & Indemity Co. v. Royal, 87 N. Y. S. 457. 44. Presumption favors grant of new trial, Starer v. Stern, 91 N. Y. S. 821. It is presumed that an order granting a new trial was properly made. That motion for new trial was made on affidavits used at hearing and that such affidavits were sufficient to justify the order appealed from. Skinner v. Horn \[Cal.\] 77 P. 904; Wyekoff v. Pajaro v. Valley Consol. R. Co. \[Cal.\] 81 P. 17. If the record does not show on which ground the record is not "in".

The author is grateful to the author. This work was supported by the National Science Foundation (NSFSF) under grant agreement No. 10

## 5 Cur. Law.

APPEAL AND REVIEW SS 9E.

the statement of counsel.\[49\] In case of conflict, that part of the entire record whose appropriate function it is to present that particular matter prevails.\[60\]

D. C. I. In the absence of statute the su-

preme court has no authority to try a

traverse to a return of service of a bill

of exceptions, or to refer to the trial court

the issue of fact as to the truth or falsity

of such return. Cly. Code 1385, # 4988, al-

lowing a traverse to a false entry of serv-

ice does not apply. Georgia, etc., R. Co. v,

v

Leasser \[Ga.\] 51 S. E. 16. The signature

of the trial judge to a bill of exceptions

im-

ports verify in the absence of anything in

the bill to the contrary. Control v. Lepper

\[Wyo.\] 81 P. 807. The certificate of the trial

judge in setting a case made imports the

truthfulness of the statements contained

and nothing more, Exendine v. Goldstine

\[Okl.\] 77 P. 45. The record is conclusive

on the reviewing court and the parties, and

cannot be questioned or corrected. Thomp-

von v. Cade \[Okl.\] 79 P. 96. A recalit in

a judgment that certain parties appeared is

conclusive. In re Pendergara's Estate \[Ga.\]

76 P. 962. Stencographer's report of charge

as corrected and certified by the trial judge.

Toddes v. Harer, 25 Pa. Super. Ct. 78. _As_

to instructions given. Southern R. Co. v,

v. Flannister \[Ga.\] 48 S. E. 160. But the

State \[Ind. App.\] 78 N. E. 174. Cases p-

pealed must be heard and decided upon

the traid or in the conduct of the business

appeal is taken, rather than upon claims

of counsel. Spacek v, Schaub \[Mich.\] 103

file. Where clerk certified that no entry

N. W. 546. Incompetent evidence admitted

without objection becomes evidence in the

case and cannot be taken out by the trial

judge's certificate that if it had been called

to his attention he would not have admitted

and an averment in a duly verified bill of

it and did not have it in mind when he

made the ruling complained of. Rapson v.

term, will control. Id. On a, question as

Lelgthon \[MAss.\] 78 N. E. 540. On appeal

the certified transcript of the record imports

proper prevails over a recital in the bill of

absolute verity and statements of the parties

in a verified petition are not available either

29. The statement of facts controls the bill

to dispute the record or to supply anything

not therein disclosed. Whisler v, Whisler

\[Tac. Clv. App.\] 84 S. W. 695. A

\[Ind.\] 70 N. E, 182. The return of the trial

justice of the municipal court is conclusive

'geation of incompleteness not accompanied

as to what occurred at the trial. Bunke v.

by a showing that what was omitted was

New York Telephone Co., 91 N. Y. B. 390.

permitent. Succession of Therolt \[La.\] 38

The appellate court will not interview with

the case as settled by the trial judge on

his recollection after considering affairs

are in conflict. Finding of judge as to when

by counsel as to the happening of a matter

not shown by the stenographer's minutes.

Burke v, Baker, 93 N. Y. B. 215.

48. Afflavits cannot be received in the

supreme court to correct the record as certified by the

iffled by the clerk. Wm. James-Sons Co. v,

v. Gott \[Vv. Va.\] 47 S. E. 649. In an inter-

ference case afflavits will not be received

by the court of appeals in contradiction or

correction of the record of the proceedings

in the patent office. May be received to show

or explain material changes which may have

occurred in an exhibit after its transmiss-

slon. Blackford v, Wilder, 21 App. D. C.

1. Record on appeal cannot be impeached

by afflavit. Allen v. Aylor \[Mo. App.\] 86

S. W. 904. The record imports absolute

try and cannot be contradicted by allund

proof. Transcript and bill of exceptions.

Supreme court has no jurisdiction to hear

\[Mich.\] 86 S. W. 904. In

case of conflict the record proper controlsThe presumption of absolute verity will not be indulged to prohibit correction of an obvious clerical mistake,\[51\] and the rule does not apply in a case where the official term of the judge who tried the case expired between the rendition of the judgment and the perfection of an appeal and his successor in office caused amendments to be made thereto by writ of diminution.\[52\] Neither does the recital of the clerk in the record that a particular day was the second day of the term control.\[53\]

SS 10. \_Transmission of proceedings and evidence to reviewing court. A. Form and contents of transcript or return.\[54\]--Where both parties appeal, there must be a separate transcript in each case.\[65\] The rule cannot be waived by consent of counsel.\[58\] The "transcript or record on appeal" consists of the "record proper," and the "secondary record,"\[57\] and generally all of such records should be included,\[58\] though in some states parties indicate by praecipe what shall be included.\[59\] No praecipe is necessary in Indiana,\[60\] but where one is filed,\[61\] papers incorporated in the record but not requested by the appellant in his praecipe are no part of the record.\[62\] The rules usually require an index to be sent up with the bill of exceptions as to the character : order appealed from. Wolf v. Board of Sup'rs of the judgment. Vickers v. Chisholm \[Colo. App.\] 79 P. 302. When order book entries made by the clerk as to matters not essential to the judgment are in conflict with the bill of exceptions, the latter will control. Johnson v. Staley \[Ind. App.\] 70 N. E. 541. The statement in a bill of exceptions as to the dates of trial controls where there is a discrepancy between it and the record made by the clerk, Avery v. Nordyke & Marmon Co. \[Ind. App.\] 70 N. E. 888. Bill of exceptions may supply date of passing order where it is not shown by the order. Triton, etc., R. Co. v. Chastalm \[Ga.\] 50 S. E. 105.

SS1. Substitution of plaintiff for defendant in statement as to who excepted to ruling. Pichon v. Martin \[Ind. App.\] 73 N. E. 109.

SS2. Hays v. Philadelphia, etc., R. Co. \[Md.\] 58 A. 439.

SS3. Edwards v. Warner, 111 Ill. App. 32.

SS4. See SS C. L. 217.

SS5. Orion Knitting Mills v. United States Fidelity & Guaranty Co. \[N. C.\] 48 S. E. 652.

SS6. Orion Knitting Mills v. United States Fidelity & Guaranty Co. \[N. C.\] 48 S. E. 652.

If only one transcript is filed, the cause will be remanded to enable the parties to comply with the rule. Court will not determine to which party the one filed belongs. Id.

SS7. Cressler v. Asheville \[N. C.\] 51 S. E. 53. The entries of continuances and other docket entries, interlocutory judgments, incidental matters, as judgments nisi against witnesses, prayers for instructions, and the charge though in writing and required to be diled, are not a part of the record on appeal unless presented for review by proper exception. Though they are parts of the record of the action. Id.

SS8. Under Laws 1901, p. 28, c. 31, SS 2, providing that any bill of exceptions or statement of facts on file when the record is sent up shall be sent up as a part thereof, such statement or bill properly certified constitutes part of the record in the appellant.\[60\] A. Jahnston v. Gerry \[Vwash.\] 76 P. 358. A transcript must contain the complete record. Wade v. Mitchell \[Okl.\] 79 P. 55. The transcript must contain a copy of the the record and to be printed, and marginal references to be made."11 Copies, not the original files, should be sent up,"12 unless the statute provides for the inclusion of certain original papers,"13 but certification of original papers as transcript confers jurisdiction."14 Irrelevant matter should not be included in the record on appeal,"15 but a transcript will not be stricken out because it contains documents not properly embraced therein, but appellant will be taxed with the resulting costs."16 In Georgia any part of a record contained in a transcript transmitted to the appellate court, material to a clear understanding of the errors complained of, will be considered, though the specification was not broad enough technically to require its transmission."17

(SS 10) \_B. Certification and authentication.\_18--The transcript must be authenticated by certificate19 of the clerk,"19 under seal, showing its completeness."19 The record itself must be signed by the trial judge,"19 but signature of the constituent parts thereof is unnecessary."19 Amendments to the certificate may be allowed if applied for before final hearing."19

(SS 10) \_C. Transmission, filling, and printing.\_19--The transcript must be

nal bill is part of record where called for ing v. Perrin Nat. Bank \[Ind. App.\] 72 N. E. by praceep and included in transcript. Bal-147.

timore & O. R. Co, v. Ray \[Ind. App.\] 73 N. E. 942; Baltimore, c., R. Co, v. Reynolds \[Ind. App.\] 71 N. E. 250. The original bill v. Members \[Colo. App.\] 77 P. 16.

of exceptions containing the evidence con-stitutes and ls considered a part of the tran- certificate is invalid if it receives the omission of any requested papers. Anderson v. Long v. Nordyke & Marman Co. \[Ind. App.\] 70 N. E. 885; City of Vincennes v. Spees \[Ind. App.\] 582.

1988. Rules 19(2), 19(3), and 28, 27 S. E. \[If the record otherwise shows it. Henline v. Vil, vili, Sigman v. Southern R. Co. \[N. C.\] Brady, 110 Ill. App. 75. In order that the 47 S. E. 420.

0001. Original statement of facts should not be sent to appellate court except on order of the trial court and then only in special cases.

true copy of all the proceedings in the Shirylev v. Conner \[Tex.\] 81 S. W. 284.

65. Ind. Act March 9, 1993. Avery v. Nor-Dust C. Rule 94 (67 S. W. xxivi), construed. djoko & Marmon Co. \[Ind. App.\] 70 N. E. 88.

01. Appeal from county to circuit court. Armstrong & Brown \[Tex. Civ. App.\] 83 S. Estate of Shields v. Michener, 133 Ill. App. 18, W. 28.

01. Supreme court rule 22, 27 S. E. Wil-thenticated unless the clerk's certificate

Culy enough of the record should be ln-cluded to show that the case is properly con-procedenings in the case. Walcher v. Stone stituted, and this, with the summons, plead-inges, verdict, and judgment, and the case on the statement to which it is attached did not appeal, setting out so much of the pro-conditions at the trial are with throw light on the exceptions, as all that is necessary. Sig-from considering such statement, In re man v. Southern R. Co. \[N. C.\] 47 S. E. 420.

Original papers filed In. the court below 74. A signature pasted thereon will not should remain there for the benefit and se-survey of all parties concerned, the court of the appeal acting upon a transcript and not up- on the record itself. Martin v. Todd \[Ill.\]

71 N. E. 852.

88. Motion for continuance and reply thereto and order overcurting it, in regard

01. Ray v. Tric \[If.\] 70 S. 852.

## Appendix A Appendix and Review SS 10D.

5 Cur. Law.

filed in the appellate court\* within the time prescribed," or an extension thereof

duly granted.\[80\] Failure to file in time is not jurisdictional,\[81\] but is ground for dismissal.\[82\] Only so much of the proceedings as is material to some question on which the appeal is predicated should be printed.\[83\] Original papers made part of the record on appeal cannot be withdrawn for other use even by consent of parties.\[84\]

(SS 10) \_D. Amendment and correction.\[85\]--\_The party presenting a case for review is chargeable with all errors and omissions that the record discloses,\[88\] and can take no advantage of its omissions.\[87\] Until the record is actually sent up, the lower court may correct it,\[88\] and the record on appeal may be corrected in some states in the lower court,\[89\] especially if leave be granted by the appellate court.\[90\]

78. The law does not fix the time within
    5 Cur. Law. APPEAL AND REVIEW SS 10D. Certiorari is often granted to bring up corrections made below." In other jurisdictions the practice is to make corrections in the appellate court," upon suggestion of diminution. In most states the trial court's power over the' record ends when an appeal is taken, and no amendments thereof are proper except upon permission first had of the appellate court." Papers not a part of the record, but copied therein by mistake, will be disregarded if such fact is apparent from the record itself or on the clerk's certificate of the fact." Amendments are not allowed after submission." The time for making amendments is usually regulated

material matter has been omitted from the the court of appeals to correct a record transcript, a supplemental one may be filed on order made allowing it. Baer Bros. Land & Cattle Co. v. Wilson \[Colo.\] 77 P. 245. An appellant filing a transcript which is insuff- record as it' stood was not correctly copied. client to confer jurisdiction on the appellate court should be allowed to withdraw the same on request. Paris & G. N. R. Co. v. Armstrong & Brown \[Tex. Civ.\] 83 S. S. spondent was entitled to have certain desired matter inserted therein. Jones v. of the appell bond and indorsements, show- in the description in the bill of exceptions placed by supplemental transcript, showing that the bond was filed and approved within the time limited. Stratton's Independence v. Midland Terminal R. Co. \[Colo.\] 77 P. 247.

Eallure of a judgment to declare that the complaint was dismissed without prejudice & Ass"." Ramsey v. O'Byrne \[Ga.\] 49 S. E. must be remedied by amendment in the trial court. Electrical Equipment Co. v. Feuerlicht, 90 N. Y. S. 467.

90. If error in the record is discovered after transmission to the appellate court, the proper practice is to apply there for a con- tinuance and to the trial court for an amend. Wolf v. Hope \[Th.\] 70 N. E. 1082.

VWhere material matter has been omitted from the transcript, permission may be obtained to withdraw it for correction by the trial court. Baer Bros. Land & Cattle Co. v. Wilson \[Colo.\] 77 P. 245. Upon timely re--, quest, the record may be returned to the trial court to correct a jurisdictional defend. State v. Washington & Terr. Co. \[Wash.\] 80 P. 803.

91. An order to "remand for correction" is in the nature of a certiorari to complete the record and does not divest the jurisdicdiction of the court of appeal. Simondon v. Mitchell \[La.\] 37 So. 877. Certiorari will Issue to commel the incorporation into the case of appellants exceptions and assignsment of errors in so far as they relate to the instructions given or refused. Cameron-, error charmed with costs. Matthews v. \[N. C.\] 49 S. E. 76. The mistake of appellant's counsel in sending up the stenophar-, or's notes, instead of a properly settled case, below, formulated after reapparent ordered does not entitle appellant to a certiorari.

Cressler v. Asheville \[N. C.\] 51 S. E. 53.

Onlissions of the clerk in copying the record (by the record) may be supplied by vertiorari. Wm. James'

unless sent up at the request of the court. Sons & Co. v. Gott \[V. Va.\] 47 S. E. 649.

Certoriari is the remedy to correct a record (by the record). Err. & App.\] 60 A. 47.

not showing the bond correctly. Succession 84. Wm. James' Sons & Co. v. Gott \[V. of Theriot \[La.\] 38 So. 471. Mansf. Dig. & Va.\] 47 S. E. 649.

1273 (Ind. T. Ann. St. 1899, $ 775), providing 85. The abstract cannot be amended after for the issuance of certiorari to complete a petition for a rehearing has been granted. the record, does not require notice to the Martin v. Martin \[Iowa\] 99 N. W. 719. No opposite party of an application for the writ. amendment of the record after submission Privacy-Welles Const. Co. v. Terry \[Ind. T.\] of the case without objection will be granted.

82 S. W. 846. Certiorari will not lie from \]ed, the time for correction being at the by statute,96 and in the absence of statute the decisions are conflicting as to whether the doctrine of laches applies.97

**SS 11.**\_Practice and proceedings in appellate court before hearing. A. Joint and several appeals; consolidation; severance.98--Where both parties appeal, the appeal of each constitutes a separate and distinct case in the supreme court.99 A joint motion for a new trial will not support separate petitions in error, but where it appears from a fair interpretation of the record that separate motions for a new trial by both defendants were denied, the court will not decline to consider separate petitions in error merely because the order reads as though it overruled a joint motion.1 Where two or more join in a petition in error, no error, can be availed of that is not prejudicial to both or all of them." Several claimants in bankruptcy may unite in an appeal from an order affecting them all alike, though their interests are 'several and distinct.' A separate appeal cannot be maintained by a single property owner in a special assessment case where the order allowing the appeal is joint.4 Several interlocutory orders in the same case may be brought up by a single appeal in Indiana.5

(SS 11)\_B. Original and cross proceedings.9--The cross assignment of errors is elsewhere treated.7 The appellee is not entitled to have the judgment reversed where there is no cross appeal.8 An appellee may, by complaint in the nature of a cross appeal, be relieved from erroneous or unjust conditions imposed by the decree appealed from.9 Where an appellee in Connecticut files a bill of exceptions under the statute, he cannot by such bill raise the question of the overruling of a demurrer.10 Since an equity appeal opens up the whole record, a cross-appeal is not essential to entitle an appellee to a reversal of a prejudicial decree.11

(SS 11)_C. Amendment of parties.12--Amendment and substitution may be allowed in case of the death of a party13 or a change of incumbency where the hearing in the trial court when the transfer is made up. Olney v. Boston & M. R. Co. \[N, H.\] 59 A. 387._

**96.**_Amenmenments must be made within the statutory period allowed. Under 2 Ball. Ann. Codes & St. $ 5058, the court has no power to permit a proposed statement, filed and served, to be withdrawn for the purpose of amendment though the time for amending has not expired. State v. Linn \[Wash.\] 76 P. $ 113. In Washington, by statute, the record may be supplemented at any time prior to the hearing of the appeal. Under Laws 1901, p. 28, c. 31, $ 2, may be supplemented so as to show filing, service, and settlement of statement of facts notwithstanding a motion to strike the statement for want of such matters. Johnston v. Gerry \[Wash.\] 76 P. 258._

**97.**_A delay of two years in moving to withdraw the record for the purpose of having the bill of exceptions amended in the trial court is unreasonable. Freeburgh v. Lamoreaux \[Wyco.\] 81 P. 97. As no time is fixed by Mansf. Dig. $ 1273 (Ind. T. Ann. St. 1899, $ 775), laches cannot be imputed to a party applying thereunder for a certainor to perfect the record. Bracey-Weiles Const. Co. v. Terry \[Ind. T.\] $ 82. W. 846._

**98.**_See S C. L. 220._

**99.**\_Orion Knitting Mills v. United States Fidelity & Guaranty Co. \[N. C.\] 48 S. E. 652. Where an execution is level against two separate tracts of land and two different claims are filed by different persons, party is an officer or representative.14 Where a writ of error is sued out by one entitled to except, all parties in the court below whom the record shows could have united in suing out the writ may be made co-plaintiffs in error by amendment in the supreme court.15 No notice need be given to the parties so added.16 Parties added by amendment in the supreme court may unite with the original plaintiff in error in his assignments of error, or they may sever and seek to uphold the judgment.17

Footnote 15: The author is grateful to the anonymous referee for his constructive comments.

(SS 11) _D. Calendars; trial dockets; terms.18_--An appeal cannot be docket-ed before the term to which it was taken19 or before the transcript is filed.20 If a case is erroneously21 or prematurely docketed, it will be stricken.22 Hearing may be postponed to await the event of a suit which will control the decision.28 Provision is usually made for expediting certain classes of cases.24

(SS 11) _E. Forming issues; pleading, assigning and specifying error. 1. In general.25--The assignment of errors is appellant's pleading tendering an issue of law. Errors not assigned will not be considered,26 and when required to be filed below they will not be considered unless so filed and set out in the record27_

jonder in error of a deceased party does |testing it. Order discharging garnishee re-not affect the right to prosecute the pro-ceeding when his sole heirs are named as wards & Co. \[Minn.\] 103 N. W. 709. parties, but his name will be stricken from A local "ntion contest" not within a state-the title on motion. Johnston v. Little Horse tree providing for the advancement of election contests. Erwin V. Benton \[Ky.\] 84 N. provision that no appeal or writ of error W. 533. Where the judgment is for money shall abate because of the death of either of the parties, but may be revived, applies only to actions on causes of action which survive.

Shannon's Code, SS 4575, construed, and held that, though appellants are entitled to prefer-not to apply to action to have defendant de-cancel inuncise, Pose v. Peyes \[Tenn.\] 83 E. 316. An appeal taken within 30 days from an interlocutory decree granting an injunc-the record unless executors come in is not the remedy where a party dies before appellants. There must be revived below. Ropes v. McCabe \[Fla.\] 86 N. 715.

14. In mandamus against a judge his successor in office may be substituted on appen, Territory of New Mexico v. Baker, 25 S. Ct. 375.

01. Administrator. Ramsey v. O'Sprime \[Ga.\] 49 S. E. 595. If it appears from the record that one who should have been joined as a defendant in error to the bill of exceeding has not been named as such therein, he may be made a party by amendment, provided he waives service and consents that the case he heard on the merits, Sears v. Jeffords \[Ga.\] 47 S. E. 186.

16, 17. Ramsey v. O'Sprime \[Ga.\] 49 S. E. 595.

18. See 3 C. L. 231.

01. Erwin V. Benton \[Ky.\] 84 S. W. 532.

01. Hamilton v. Kentucky Title Co. \[Ky.\] 179 S. W. 1183; People v. District Court of Denver \[Col.\] 80 P. 1069.

01. Farmers' & Merchants' Bank v. Burwell \[Ga.\] 48 S. E. 145.

01. Garcia v. Brown \[Ca.\] 79 P. 590.

01. Where a suit is pending to expunge an order of the court below from the record, hearing of an appeal will be postponed until the suit is determined. Texas & N. O. R. Co. v. Walker \[Tex. Civ. App.\] 87 S. W. 194.

01. An appeal will not be advanced because of the magnitude of property rights involved if because of the want of a super-sedeas the judgment may be enforced re-in in the same form as that in which they were so filed.28 Errors first assigned in the reply brief are not reviewable,29 and a stipulation in the reviewing court allowing the filing of a supplemental brief "citing additional points and authorities" does not authorize a new assignment of error.20 Fundamental or jurisdictional error appearing on the face of the record will be reviewed, though not assigned.31 The court may in its discretion review errors not assigned.32 Assignments must name all parties,33 and be signed by the appellant or his counsel.34 Assignments cannot be amended after submission except on notice and leave applied for in writing.35

Footnote 28: http://www.citing.com/ 5 Cur. Law. **APPEL AND REVIEW SS 11E4.**

cross appealed,\[43\] and when he does so he is bound by the usual rule as to saving of the question below;\[44\] but in cross assigning, he may go beyond the errors assigned.\[45\] Cross errors are not assignable in the Federal courts.\[46\]

(SS 11E) 4. _Specifications and averments.\[47\]_--Assignments of error must be definite and specific,\[48\] and distinct errors must not be grouped in one assignment,\[49\]

sion of Thomas \[La.\] 38 So. 519, following **Ware v. Couvillon**, 112 La. 43, 8 So. 220. A **r**n nor must co-parties join in assignments not affecting all alike\[50\] unless the exception was joint.\[51\] Each specification must be complete in itself.\[52\] Reference to the record for verification is usually required.\[58\] In New Jersey an assignment of error in fact must conclude with a verification,\[54\] and an assignment which contradicts the record in matters of fact is improper.\[35\] In Indiana, matters which are causes for new trial cannot be assigned as independent errors,\[56\] and only matters properly assignable as grounds for such motion can be considered without independcnt assignments.\[57\] In the notes are applications of the rules of definiteness and certainty to assignments respecting pleadings,\[58\] admission and exclusion

109: Godshalk's Estate, 24 Pa. Super. Ct. 410; Moore v. Bischoff, 25 Pa. Super. Ct. 1; Wabash Ave., 26 Pa. Super. Ct. 305; Masterson v. Heitmann & Co. \[Tex. Civ. App.\] 87 S. 8; W. 227; Peck v. Peck \[Tex. Civ. App.\] 83 S. 8; W. 257; International & G. N. R. Co. v. Boykin \[Tex. Civ. App.\] 85 S. W. 1163; Western Union Tel. Co. v. Waller \[Tex. Civ. App.\] 84 S. W. 695. On charge as to fraud in procurving release and on charge as to mistake therein. Chicago, etc., R. Co. Vain \[Tex. Civ. App.\] 84 S. W. 682. Grouping of assignments of error based on different reasons why the verdict is contrary to the evidence is improper. Fort Worth & R. G. R. Co. v. Robinson \[Tex. Civ. App.\] 84 S. W. 410. Assignment complaining of refusal to give requested charge and of failure to submit issue suggested in requested charge is bad. Metelec v. Lowenstein \[Tex. Civ. App.\] 81 S. W. 362. An assignment on the overriding of several exceptions, presenting more than one question, will not be considered. Ft. Worth & D. C. R. Co. v. Hagler \[Tex. Civ. App.\] 84 S. W. 692. All the assignments of error may be copied one after another no matter to how many subjects they may relate, but practice is not commandable. Neal v. Galyeston, etc., R. Co. \[Tex. Civ. App.\] 83 S. W. 402. Assignments of error relating to the same subject may be grouped, with propositions under them. Id.

50. Leader v. Mattingly \[Ala.\] 37 So. 270. A joint assignment by several parties presents no question if the ruling was right us to either of them. Vansell v. Carithers \[Ind. App.\] 71 N. E. 158. A joint assignment not good as to all the persons joining is good as to none. City of Lincoln v. Bailey \[Neb.\] 99 N. W. 830; Kupke v. Polk \[Neb.\] 103 N. W. 321.

01. Copy v. Druckamuller \[Ind. App.\] 73 N. E. 195. Where a joint and several demurrer is overruled and exception taken jointly, no question is raised by separate assignments of error. Whitesell v. Strickler \[Ind.\] 73 N. E. 153. Specifications of error must apply accurately to the ruling complained of, separate assignments to a joint exception not being sufficient. Id.

01. Spitzer v. Miller \[Ind. App.\] 73 N. E. 833. Reference to page elsewhere is not sufficient. Vanderslice v. Donner, 26 Pa. Super. Ct. 319; Winkler v. Hawkes \[Iowa\] 102 N. W. 418.

01. Winkler v. Hawkes \[Iowa\] 102 N. W. 418. Errors in record not referred to by page as required. Butte Min. & Mill. Co. v. Kenyon \[Mont.\] 76 P. 696.

54.55. Karnuff v. Kelch \[N. J. Err. & App.\] 60 A. 364.

56. Assignment that facts as found are contrary to law and not supported by sufficent evidence. Leedy v. Capital Nat. Bank \[Ind. App.\] 73 N. E. 1000. Refusal of jury trial. Abbott v. Inman \[Ind. App.\] 72 N. E. 284.

01. Fireman's Fund Ins. Co. v. Finkelstein

01. An assignment that the court erred in overruling demurrer to several paragraphs of the complaint cannot be sustained if one paragraph be good. Cambridge Lodge No. 9, K. P. v. Routh \[Ind.\] 71 N. E. 148. An assignment questioning the sufficiency of a complaint in its entirety is unavailing if it contain a good count. Nickey v. Dougan \[Ind. App.\] 73 N. E. 288. An assignment questioning the overruling as to one paragraph, a demurrer addressed to two paragraphs presents nothing. Pittsburgh etc., R. Co. v. Wilson \[Ind. App.\] 72 N. E. 666. Sep.arate assignments based on a joint exception to the overruling of separate demurrers to several paragraphs of a complaint raise no question. Johnston Glass Co. v. Lucas \[Ind. App.\] 72 N. E. 1102; Perry-Matthews-Buskktr Stone Co. v. Speer \[Ind. App.\] 73 N. E. 933. Where after the overriding of a separate demurrer to each of the two paragraphs of a complaint plaintiff of evidence,5 instructions,60 sufficiency of evidence,61 verdicts,62 findings,68 judgment6 and rulings on motions for new trial.68

kins Land Morris. Co. v. Campbell \[Tex. Clv. App.\] 81 S. W. 560. Assignment of error that court below "erred in sustaining apples" general and special denumerrs" to the petition, and in dismissing the action, and rendering judgment against apapellant for costs, held not too general to prevent consideration of action of court on the general demurrer, though his action on the special denumerr is not assailed. Stark v. J. M. Gufrey Petroleum Co. \[Tex. Civ. App.\] 80 S. W. 1080.

50. The question of competency cannot be considered on a specification that evidence was insufficient to prove a fact. Williams v. Hawley \[Cal.\] 77 P. 762. Refusal to strike out testimony received without objection will not be considered if not assigned as error. Dawson v. Proctor \[Colo. App.\] 79 P. 803. An assignment of error upon the refusal of the court to allow a witness to answer a specified question propounded by the party calling him must state what evidence was thus sought to be elicited and that the court was informed thereof at the time of the ruling. City of Macon v. Humphries \[Ga.\] 50 S. B. 886. In order to properly present for review the question whether or not error was committed in addressing given evidence, the complaining party must make it appear not only that it was admitted over his objection but also what grounds of objection he urged when it was offered. Powell v. Georgia, etc., R. Co. \[Ga.\] 49 S. E. 759. Where the ruling is proper as to one item of evidence excluded and erroneous as to another, and a single objection was taken to both, the overruling is not well assigned as error. Appeal of Spencer \[Conn.\] 60 A. 289. An assignment to a ruling on evidence must set forth the evidence admitted or offered and rejected. Teddes v. Hager, 25 Pa. Super. Ct. 87; Bacher v. Lehigh Coal & Navigation Co. \[Pa.\] 57 A. 765. It is not enough that the text of the assignment be supplemented by reference to the evidence set out in extenso in the appendix. Pizzi v. Nardello, 23 Pa. Super. Ct. 535. Assignment that court erred in over-ruling motion to strike out answers to two direct and two cross questions held too general. Bell v. Bates \[Tex. Civ. App.\] 81 S. W. 551. An assignment on the admission of evidence must state the ground of objection. Altlet v. Elmendorf \[Tex. Civ. App.\] 86 S. W. 41. An assignment of error in allowing questions without showing any objection to the answers is insufficient. Altegelt v. Elmendorf \[Tex. Civ. App.\] 86 S. W. 41. An assignment that the court erred in admitting evidence, "which evidence is fully set forth in the bill of exceptions" is too inadequate. Steen v. Swadley \[Ind. T.\] 82 S. W. 871. 60. Errors must be specifically assigned. Bowles v. Wicker \[Ga.\] 50 S. E. 476: Kauffman van V. Pittsburg, C. & W. R. Co. \[Pa.\] 60 A. 2; Roth v. Sloboden \[N. J. Law\] 60 A. 59; Jacksonville & St. L. R. Co. v. Wilthille \[III.\] 70 N, "B. 583. An assignment of error to the failure to charge is unavailing when the
    4.2.2.

5 Cur. Law. **APPEL AND REVIEW SS 11F.** 197

(SS 11E) 5. \_Denurvers, pleas, and replication.60--An appellee may file in

the supreme court a plea in bar of the appeal, based on the statute of limitations.67 In a proceeding in error it is proper for the defendant in error by way of answer

to set up such facts subsequent to the judgment as are claimed to be a waiver of

the error complained of.68 Upon the filing of a plea of prescription by the defendant, the case will be remanded for, trial of that plea, the appeal remaining

otherwise in statu quo.69 An answer to appeal under Louisiana practice,

paying an amendment to increase the claim of damages, must be filed at least three

days before argument.70

(SS 11) \_F. Briefs and arguments.71--Briefs are generally required by rule of court.72 The prescribed time of filing and serving is peremptory73 unless extended.74 It is generally required that they be printed75 and served.78 Statutes

and court rules prescribing the form and contents of briefs are insisted on.77 Among the common requirements is a summary of so much of the record as presents the errors relied on,78 with references to the record for verification,79 a separate

ruling appellant's motion for a new trial be-

for leave to file a brief in the court of ap-

cause of the errors herein assigned and which

pears notwithstanding a failure to file it in

were duly presented therein" is too general.

the lower court within the prescribed time

Harris v. Matthews \[Tex. Civ. App.\] 81 S.

will be denied where no excuse for such

W. 1198. An assignment of error in re-

fusing a new trial for four specific reasons

is not multifarious, there being but one error, I. e., that of refusing the new trial. Mix

W. North American Co. \[Pa.\] 59 A. 572. Un-

der Sup. Ct. Rule 12 (4 Pac. x.), that

no error will be considered unless clearly

defendant did not contest, but court ap-

pointed out in appellant's brief, an assign-

by such attorney, on appeal by compilantant

tion for a new trial, though too indefinite,

did not preclude consideration of error dis-

tributed pointed out which might be reviewed

without a motion for a new trial. Rowe v.

Northport Smelting & Refining Co. \[Twash.\]

76 P. 529.

68. See 3 C, L. 229.

01. Farmer v. Allen \[Miss.\] 88 So. 38.

01. Charles P. Kellogg & Co. v. Spargur

\[Neb.\] 100 N. W. 1025.

69. Myers v. Lansing \[La.\] 38 So. 85.

01. Bonnin v. Crowley \[La.\] 38 So. 842.

01. See 3 C. L. 229.

01. A failure to file a brief is a waiver

of the right to be heard. Le Breton v.

Swartzel \[Obl.\] 78 P. 328. A case submitted

without oral argument by consent will not

be considered unless a printed argument or

brief is filled by counsel for each of the parties. Sup. Ct. Rule 10, 39 S. E. vl. Where

both parties appeal, must be separate ones

in each case, when different questions are

involved. Orion Knitting Mills v. United

States Fidelity & Guaranty Co. \[N. C.\] 48 S.

E. 652.

73. Court of Appeals rule 3 (75 S. W. v.)

providing that an appellee failing to file his

brief on time will be required to pay the

costs up to the date of filing will not be

enforced In the absence of a motion by ap-

pellant prior to the submission of the cause.

Schnabel v. Waggener \[Ky.\] 80 S. W. 1125.

74. Showing by counsel for plaintiff in

error held insufficient to warrant an exten-

sion of time for filing briefs as against a

motion to dismiss. Cook v. South Omaha

Nat. Bank \[Vy.\] 79 P. 18. An application

for leave to file a brief in the court of ap-

cause of the errors herein assigned and which

pears notwithstanding a failure to file it in

were duly presented therein" is too general.

the lower court within the prescribed time

Harris v. Matthews \[Tex. Civ. App.\] 81 S.

will be denied where no excuse for such

failure is offered. Booker v. Anderson \[Tex. Civ. App.\] 80 S. W. 385.

75. A typewritten brief the imprint being

bluered and illegible will not be considered.

V. North American Co. \[Pa.\] 59 A. 572. Un-

dowick Lumber Co. v. Taylor \[Tex. Civ. App.\] 87 S. W. 358. In divorce case where

no error will be considered unless clearly

defendant did not contest, but court ap-

pointed out in appellant's brief, an assign-

by such attorney, on appeal by compilantant

from decree dismissing bill, for leave to file

dot not preclude consideration of error dismissing bill, denied. Lenoir v. Lenoir,

tinctly pointed out which might be reviewed

without a motion for a new trial. Rowe v rate assignment or statement of the contentions or alleged errors," a distinct

ed as admissions made at the trial. Terri-

tory v. Board of Com'rs of Bernanillo County

\[N. M.\] 79 P. 709. If rululians on pleading

\[Nd.\] 79 P. 709. If rulians on pleading

\[Nd.\] 79 P. 709. Objects are objected to a concise statement of their

\[Nd.\] 79 N. E. 1983. Likewise rulians on pleading
argument addressed to each," \[82, 83\] and the citation of authorities." Though the court may consider jurisdictional questions not discussed," all matters not

charge ignored a defense, the statement in the brief must show that there was evl- \[that, except for a settlement by plaintiff ther belief must show that there was evl- \[that, defendant would have been entitled dence to sustain such defense. Internation.\] to an action over against it, was not aul & G. N. R. Co. v. Reeves (Tex. Civ. Appl.) \[thatized by an assignment of error that the 79 S. W. 1099. The statement in appellants' \[ther intsupers\] brief must show reservation of a bill of ex- \[on account of the insufflicency of the evl- \[Cepelens. Saenz v. Mumme Co. \[Tex. Civ. App.\] & 85 N. W. 59. An assignment of error \[ther of accord and satisfaction. Id. complaining of the refusal of a charge will \[ther of record\] that he considered unless the evidence relied on to warrant it is set out in the brief. Burke v. Holmes \[Tex. Civ. App.\] & 80 S. W. 564. The statement under an assignment of error that, even if a error in a charge should contain the charge \[ther of the rec- \[request to charge was not correct, it was ord for verification. International & G. N. Sufficient to the issue involved, and to require the giv- \[ther of a proper charge on the subject, can- \[ther of the complaining party not be considered in the absence of an assignment alleging that the court should reviewed. Hallwood Cash Register Co. v. Daveley \[Kan.\] & 79 P. 158. Briefs must be full and explicit enough to enable the court to decide the case without reference to the transcript. Kricke v. Dovr (Tex. Civ. App.\] & 84 S. W. 245. An assignment to the exclusion of evidence will not be considered where the statement under it does not show what the evidence was. Id.

**Proposition:** An assignment which is not a proposition of law in itself and is not accompanied by a proposition will not be closedered. Taylor v. Houston & T. C. R. Co. \[Tex. Civ. App.\] & 80 S. W. 260; Taylor v. San Antonio & A. P. R. Co. \[Tex. Civ. App.\] & 83 S. W. 785; El Paso Elec. R. Co. v. Davis \[Tex. Civ. App.\] & 83 S. W. 718; City of San Antonio v. Marshall & Co. \[Tex. Civ. App.\] & 85 S. W. 315. An assignment of error not accompanied by a proposition of law will not be considered. El Paso Elec. R. Co. v. Aldereere \[Tex. Civ. App.\] & 81 S. W. 1246. A proposition that "a verdict without evl- \[ther of the \[C. R. Co. v. Daveley \[Kan.\] & 82 S. W. 735. A program \[ther of the \[C. R. Co. v. Daveley \[Kan.\] & 83 S. W. 735. A program \[ther of the \[C.

urged by argument in the brief are deemed waived." New points presented by the reply or supplemental brief will not be considered."

A party has no absolute right to amend his brief, except by the citation of additional authorities,\[87\] and no other amendment will be allowed unless it appears that it will not involve injustice or inconvenience to the other party.\[88\]

A scandalous brief will be stricken from the files,\[89\] and counsel filing them

liams v. Peeples \[Fla.\] 37 So. 572, Lack \[E. 925\]. Points raised by the motion not of argument will not deprive the court of power to base reversal on exceptions not discussed. Purcell v. Hoffman House, 89 N. The refusal of instructions. Spring Valley forring jurisdiction the trial judge certifies that a constitutional question is in- volved, but no such question in the argument or brief, it will be assumed that if such a question existed it has been waived. Sophia V. Williams \[Kan.\] 76 P. 384. 858. Leader v. Mattingly \[Ala.\] 87 So. 270; Birmingham R. Light & Power Co. v. Brantley \[Ala.\] 87 So. 698; Blingham v. Da. Vidoson \[Ala.\] 87 So. 738; Bell v. Southern Pac. R. Co. \[Cl.\] 77 P. 1124; Cole v. Jernan \[Conn.\] 59 A. 425; Daytona Bridge Co. v. Raden \[Fla.\] 86 S. 445; MacFarlane v. V. Southern Jumber & Supply Co. \[Fla.\] 36 S. 1029; Jones v. Nolan \[Ga.\] 48 S. E. 166; Yyler v. Justice \[Ga.\] 48 S. E. 328; New England Morte. Sec. Co. v. Anderson \[Ga.\] 48 S. E. 396; Sweeney v. Sweeney \[Ga.\] 48 S. E. 984; Brantley v. Taylor \[Ga.\] 49 S. E. 262; Town of Douglassville v. Skinner \[Ga.\] 49 S. E. 287; Fronk & Co. v. Horkan \[Ga.\] 49 S. E. 800; Illinois Life Ins. Co. v. Lind-ley, 110 Ill. App. 161; Sauter v. Anderson, 110 Ill. App. 574; Sanitary Dist. of Chicago v. Pearce, 110 Ill. App. 592; O'Neill v. Rogers, 110 Ill. App. 622; Melton v. Huttenhouse, 111 Ill. App. 30; Conkey v. Rexl, 111 Ill. App. 121; Sanks v. Chicago & A. R. Co., 112 Ill. App. 385; Illinois Cent. R. Co. v. Burke, 112 Ill. App. 415; McIlansson v. Melanson, 113 Ill. App. 81; Botwinis v. Algood, 113 Ill. App. 185; Barnes v. Huffman, 113 Ill. App. 286; Pickett v. People, 114 Ill. App. 188; Illinois Central R. Co. v. McMillan, 115 Ill. App. 600; Springer v. Jeps \[Ill.\] 70 N. E. 641; Dunn v. Crichfield, 214 Ill. 892. 73 N. E. 384; Spring Valley Coal Co. v. Buzs \[Ill.\] 78 N. E. 1060; Welch v. State Inf.\] 72 N. E. 1043; Johnston Glass Co. v. Lucas \[Ind.\] 78 N. E. 1102; People v. Chicago & E. I. R. Co. \[Ill.\] 73 N. E. 315; Wodohams v. Jennings \[Ind.\] 73 N. E. 1088; Michigan City v. Phillips \[Ind.\] 71 N. E. 205; Storer v. Markley \[Ind.\] 73 N. E. 1081; Parkinson v. Thompson \[Ind.\] 73 N. N. E. 109; Peden v. Scott \[Ind.\] 73 N. E. 1099; Hough v. Turbush \[Mass.\] 70 N. N. E. 49: Wright v. Perry \[Mass.\] 74 N. E. 328; Jaroasewski v. Allen, 117 Iowa, 632. 81 N. W. 941; Illinois Steel Co. v. Jets \[Vis.\] 101 N. W. 399; Pitz v. Kentucky & N. Distilling & Castle Feeding Co. \[Minn.\] 101 N. W. 1974; Patt v. Hastings \[Neb.\] 95 N. W. 866; Sayre v. Johnson \[Mont.\] 81 P. 889; Incorporated Town of Tahelguah v. Quinn \[Ind.\] 82 S. V. 885; Krollov v. Felsti, 91 N. Y. S. 27; Jones v. Brinsmade, 95 N. Y. S. 674. Assignments of error in the bill of exceptions. Jones v. Lingo \[Ga.\] 48 S. E. 190. Grounds of a motion for a new trial not argued. Brice v. Sheffield \[Ga.\] 48 S.

5 Cur. Law. APPEAL AND REVIEW SS11G. 801

punished." Statements in the briefs as to matters shown by the record, if not questioned, will be taken as true, \[91\] but statements of facts not appearing of record should not be made, \[92\] and appellant should not insert a large number of pages of testimony which he deems favorable to his case. \[93\] The several counsel in a case in Illinois must unite in a single brief. \[94\]

\_Refining briefs from other courts. \[95\]--\_Under the supreme court rule in Indiana certified copies of the briefs and argument used in the appellate court may be filed to show what questions were there raised and affidavits are inadmissible for that purpose. \[96\]

(SS 11) \_G. Grounds for dismissing or striking out appeal. \[97\]--\_An appeal will be dismissed for want of jurisdiction, \[98\] want of litigable right, \[99\] or real controversy, \[1\] properly saved below, \[2\] as where the appeal is for delay only, \[3\] abstract-

courteous language. Coats v. Seattle Elec. \[C. A.1 129 F. 582. In Pennsylvania, the 90. Steoll v. Pearl \[Wis.\] 100 N. W. 1054. Case begins erroneously appealed to the supred court, it will be certified to the supred court for decision. Neubert v. Arm-

811; Lake Eride V. W. R. Co. v. Shelley \[Ind.\] 71 N. E. 151; Aria Cattie Co. v. Burk \[Neb.\]

102 N. W. 74.

92. Himrod Coal Co. v. Beekwith, 111. App. 379.

01. The Fair v. Hoffmann \[III.\] 70 N. E. 622.

01. Rule 15. Thomas v. First Nat. Bank

(III.) 72 N. E. 801.

95. See 3 C. L. 231.

01. Gunning v. Borg \[III.\] 73 N. E. 870.

01. See 3 C. L. 232.

01. Where amount involved is less than jurisdictional sum. Sears v. Carpenter

(Ind.) 74 N. E. 244; Crum v. North Vernon

(S.) Pump e L. Co. \[Ind.\] 72 N. E. 857; Leonard

v. Whetstone \[Ind.\] 72 N. E. 1045; Court-

ney v. Rigmiden \[La.\] 86 No. 704; Stat v.,

Board of Assessors \[La.\] 37 So. 878; Wagner

91 N. Y. S. 64. Cause of action extinguished

Co. v. Monroe \[La.\] 87 So. 974; State

v. Sewerage & Water Board \[La.\] 37 So. 881 N. Y. S. 386. Where the time for issu-

878; Williamson v. Payne \[Va.\] 49 S. E. 186; Chapman v. Hraley \[Ky.\] 80 S. W. 190.

So held there being no freehold, franchise

(In \[Fla.\] 37 So. 876.) 86.2 Case involving right or constitutional question involved. Beam v. to an office dismissed where term of office

Harrington \[Colo.\] 79 P. 1013. Appeal in-

volving less than $50 will be dismissed in App. 84 S. W. 1091; Hamilton v. Ammons superior court. Johnson v. Perry \[Ga.\] 48 (Va.) 48 S. E. 128; Riggins v. Richards

S. E. 686. Sutt should not be dismissed,

(Pac.) 80 S. W. 524. Dismissal was without only appeal. Id. The appeal will not be

displayed, where the jurisdiction depends

(Pac.) 88 S. W. 524. Dismissal was without only appeal. Id. The appeal will not be

displayed, where the jurisdiction depends

in part upon the amount claimed as dam-

mandamus to inspect corporate books.

ages, unless the claim is clearly fictitious. State v. New Orleans Maritime & Merchants'

Tieman v. Johnston \[La.\] 38 So. 75. And

(Pac.) 86 No. 760. Estepped to deny

the appellate court will take notice of the

interest in those brought in as parties by

fact exprprito mout. Succession of Fuller-

nonviecesion of Carbajal \[La.\] 36

ton \[La.\] 38 So. 151.

Appeal from nonequelable order will be

the expiration of the term of office in-

dismissed. Thornburg v. Gutridge \[Or.\] 80

P. 109; Helnze v. Butte & B. Consolidated

appeal from a judgment of ouster in quo

Min. Co. (C. C. A.) 129 F. 337; Griswold v. Smith, 214 Ill. 323, 73 N. E. 400; In re

fine and costs. Albright v. Territory \[N.\] 79 P. 719. Appeal in habeas corpus

for 92 N. Y. S. 795; State v. McKellar ness of the question involved,4 for abandonment of the prosecution,5 or, unless the defect is waived6 or excusable,7 for substantial8 defect in time or manner of pro-

Footnote 4: The _Flat_ is a \_F cedure in bringing up the case,9 or in filling19 a proper record11 assigning error.12

204

\[Fla.\] 36 So. 715. Failure to make personal 78 P. 1078: Kootenal Val. R. Co. v. Kootenal representatives of a decedent parties to a Coutry \[Idaho\] 78 P. 1080. The appeal writi of error to review a judgment against should not be dismissed for mere irrespa- such decedent. Smith v. Stillwell \[Ariz.\] halrites in the bond, curable by amendment, 80 P. 333. Name of one appearing on its face ase- knowledging himself bound as security was ware County Trust, etc., Co. v. Lee, 24 Pa. not signed thereto. McDermmid v. Judge Super. Ct. 74; Wright & Valley v. Cream- \[Ga.\] 49 S. E. 800. Digheton that bond does erv Package Co. \[Vt.\] 58 A. 803: Jabine v. Short \[C. A.\] 131 T. 440: Haussell v. 126; Vaqhin 1999:

## 5 Cur. Law.

APPEL and REVIEW $11G.

Ferrell \[Mo. App.\] $1 S. W. 1183), or where it is not directly due to the fault of appelants attorney and has not caused respondent expense or embarrassment (Dean v. Oregon R. & Nav. Co. \[Vdash.\] $0 P., $42). Tardiness in bringing up the transcript will not be regarded as acquenced in when appellant was not cited. Chambiliss v. Wood \[Miss.\] $6 So. 246.

11. An appeal will be dismissed where the record fails to show the essential facts necessary to give the apellate court jurisdiction. Texas & P. R. Co. v. Jordan \[Tex. Civ. App.\] $3 S. W. 1105. Indiniteness and uncertainty will not cause dismissal where it would result in great injury to appellant. Didler v. Leeso, $1 N. Y. S. 148.

The appeal will be dismissed on motion before the case comes up on the merits in its original order where the record is so imperfect that no other disposition could be made of it at that time. Lanfill v. Morist, $23 App. D. C. 451.

Defects In transcript or paper book: Failure to set forth names of parties, nature of proceedings, short abstract of bill, and testimony on which auditor's findings are based. O'Donnell v. Clements, 23 Pa. Super. Ct. 447. No statement of question involved as required by rule 17. Roush's Estate, 23 Pa. Super. Ct. 652: Denvers v. Solenberger, 25 Pa. Super. Ct. 64. Nothing in record to connect appellant with case. Delaware County Trust, etc., Co. v. Lees, 24 Pa. Super. Ct. 74. Exceptions not printed toddem Verbis. Moore v. Blischoff, 25 Pa. Super. Ct. 1. Failure to follow rule 27 regarding arrangement of matters in paper book, Id. Appeal from the landford and tenant act of 1862, the record of the Justice's proceedings not being printed in appellant's -.Desper book. Cunningham V. Eyeret, 24 Pa. Super. Ct. 469. Signature of trial judge pasted on record instead of record itself being signed. Yost v. Clark, 25 Pa. Super. Ct. 144. Paper book in which statement of question involved is two pages in length. Rule 26. H- v. T. \[Pa.\] $7 A. 562. Failure to show judgment. Wubbash R. Co. v., Baskerville, 111 . App. 9: Rooes v. Lansing \[Fla.\] $8 So. 177; J. T. Gabbart v. Bauer \[Miss.\] $8 So. 548.

Verdict and judgment. Earlier v. Camden & S. R. Co. \[N. J. Law\] $8 A. 118. Judgment and bill of exceptions. Sherman v. Butcher \[N. J. Law\] $9 A. 115. Recident of a judgment in the notice of appeal will not supply the lack of it from the record. Smith v. Elly, $9 N. Y. S. 210. No certificate of judgment roll and many Improper and irrelevant proceedings incorporated. Goodhue v. Bohen \[Vis.\] $9 N. W. 216. Transcript not certified. Hiser v. Baker, 115 . App. 12.

Certification of transcript insufficient. Paris & G. N. R. Co. v. Armstrong \[Tex. Civ. App.\] $3 S. W. 28. Where it failed to state that it contained a copy of all the proceedings in the case. Id. Record on appeal from order not containing all motion papers. Hunter v. Campbell, $9 N. Y. S. 311. No index or marginal notes. Whinrey v. Starr \[Ind. App.\] $7 A. 52. In such a case it is optional with the court to dismiss the action, or to postpone its consideration and refer the record to the eierk for the purpose of having it put in the prescribed shape, appellant to pay the costs and an
Failure to file briefs\[13\] within the time specified\[14\] may lead to dismissal,\[15\] affirmance,\[16\] or continuance,\[17\] at appellee's option. Substantial compliance with the statute or rule is all that is generally required,\[18\] nonprejudicial\[19\] or excusable\[20\] delay not being fatal. Appellee's failure to file a brief does not necessarily lead to reversal.\[21\] Defects not attributable to appellant are not ground for dismissal.\[22\] Correction of a nonjurisdictional defect before motion for dismissal cures the error,\[23\] and where the statute is recent and the practice not well settled, the court in the absence of objection will waive the error and look into the merits.\[24\] In the memeft. McCormick v. Fromme \[Kan.\] 77 had been prejudicial to appellee, and the p. 89. The writ of error will be dismissed appeal was dismissed. Dodd v. Presley where the question made by the assignment of error necessarily involves a consideration of evidence not properly brought up. Eubank v. Eastman (Ga.) 48 S. E. 426. N. E. 180. Appellant failed to file brief as That the transcript does not contain a paper which was part of the record, evidence of the respondent is not ground for dismissal. A certified copy should have been furnished by the party introducing it. Coey v. Cleghorn \[Idaho\] 77, p. 331.

Failure to bring to the reviewing court exhbits not introduced in evidence nor kept with the files of the case as exhibits is not ground for dismissal. Gehves v. Wallace \[Wash.\] 80 P. 273.

12. Failure to assign errors is ground for dismissal (Lockman v. Lang \[C. C. A.\] 128 F. 279), as is the failure to set forth exceptions and ruinhers (O'Donnell v. Clements, 23 Pa. Super. Ct. 447). A statement in the bill of exceptions that "plain-tiff excepts to said verdict and judgment as being contrary to law is ineffectual. Newr - Terry v. Tenant \[Ga.\] 49 S. E. 621. Assignments of error being infeffectual to present any question 'except their own still ciency, the appeal will be dismissed. Spitz- er v. Miller \[Ind. App.\] 73 N. E. 833. Embadying several matters, Moore v. Bischoff, 25 Pa. Super. Ct. 1. On an appeal from the judgment a motion to dismiss on the ground that the statement in the motion for the new trial did not contain a specifica- tion of errors is properly denied. Bond v. Hard \[Mon.\] 78 P. 579.

01. Miller v. Collier \[Ind. App.\] 73 N. E. 925; Union Casualty & Surety Co. v. Hileev, 112 III. App. 363; Henion v. Pohl, 113 III. App. 100; PT. Worth & D. C. R. Co. v. Haggler \[Tex. Civ. App.\] 84 S. W. 692; N. Nigro & Co. v. Hodges \[Tex. Civ. App.\] 85 S. W. 756.

116s. Failure to present so much of record as is essential to review exceptions. Rule 22. Todd v. Cage \[Ind. App.\] 73 N. E. 925; Chicago Terminal Tr.C. v. Walton \[Ind.\] 72 N. E. 646. It is not the duty of the court to search the record. A judgment is presumptively correct, and in the absence of a brief in support of the petition in error the apellee court will dismiss the appeal. Le Breton v. Swartzel \[Ookl.\] 7 P. 333.

14. Stallard v. Hagar \[Ookl.\] 78 P. 323; Le Breton v. Swartzel \[Ookl.\] 78 P. 323; Couts v. Coats \[Cal.\] 80 P. 694; Wade v. Perival \[Ind. T.\] 82 S. W. 679. Where less than twenty days elapsed between the time of thing of appellant's brief and notice thereof to appellee, and the submissions of the case, appellee not having filed a brief, it was held that appellant's delay certain states the appeal will not be dismissed if within a specified time after the hearing of the motion the appellant moves for its correction;\[35\] but in all such cases the merits are examined, and unless appellant has good grounds of appeal the dismissal is absolute.\[28\] All questions essential to a decision must be certified.\[27\] A motion to dismiss a writ of error will not lie on the ground that no motion for a new trial was made,\[28\] and on appeal on the judgment roll the question whether it presents reversible error is to be considered on the merits and not on a motion to dismiss.\[29\] An appeal from a judgment alone will not be dismissed because a former appeal in the same action was dismissed, where it does not appear from what the former appeal was taken.\[30\] The circuit court of appeals will not dismiss an appeal on motion of the appellant and remand the case with directions to permit the amendment of a pleading on a showing that facts were inadvertently omitted therefrom which was not known to appellant until after the appeal was taken.\[31\] The dismissal of an appeal removes the case from the appellate court and places the parties in the same condition as they were before the appeal was taken, no directions as to further proceedings below being proper.\[32\] Where it appears aliquots the record that the judgment appealed from is void for want of jurisdiction, the better practice is to dismiss the appeal and remit the parties to a motion in the court below to rid themselves if need be of the void judgment in that court.\[33\] Where an appeal from an order is dismissed, it is conclusive on all questions raised thereunder.\[34\] Pro forma affirmance is sometimes ordered instead on the same grounds.\[35\] In order to confer jurisdiction and authorize affirmance on

01. Esler v. Camden & S. R. Co. \[N. J.\] and recover the costs of the appeal. Acts 1899, p. 423, c, 443. Blair v. Coakley \[N. C.\] 58 A, 226.

01. Thirty days allowed. Goodhue v. Boehne \[Wis.\] 99 N, W. 216.

01. Milivaukee Trust Co. v. Sherwin \[Wis.\]

none of the assignments of error can be decided without reference to the evidence.

27. Where a question certified cannot be correctly answered either in the affirmative or negative and the court cannot determine without deciding questions not certified whether the judgment should be affirmed or reversed, the appeal will be dismissed.

Adlone v. Tits. Peter & Paul's Church, Brooklyn, 172 N. Y. 269, 54 N. E, 961.

28. The supreme court will examine the record in such a case to see whether the pleadings sustain the judgment. Eccles v. United States Fidelity & Guaranty Co. \[Neb.\] 100 N. VY. 942.

01. Collins v. Gladiator Consol, Gold Min. & Mill. Co. \[S. D.\] 103 N. W. 385.

01. Collins v. Gladiator Consol. Gold Min. & Mill. Co. \[S. D.\] 103 N. W. 385.

01. Strand v. Griffith \[C. C. A.\] 135 F.

01. Ine e Silverman's Estate \[Wis.\] 102 N. W. 891.

01. Disqualification of judge. Elima.

01. Muekenfuss v. Fishburns \[S. C.\] 46 S. E. 537.

01. Failure to file abstract of transcript in accordance with the rules of court. Ross v. Frick Co. \[Ark.\] 83 S. W. 343. Failure to file certificate of judgment within required time. Smith v. Frick \[Mo. App.\] 83 S. W. 73. In appeals from Justice courts, if apellant falls to docket his appeal in time, the appelle may docket the case, and, upon motion, have the case affirmed, certificate for nonprosecution of the appeal, the certificate of the clerk must contain or be accompanied by a copy of the judgment, as well as a copy of the appeal bond, if one has been given.\[36\] In such cases the judgment of affirmance is generally held to be equivalent to a dismissal\[37\] and vice versa.\[38\]

(SS 11) $H$. _Raising and waiver of defects.\[39\]_--An appeal does not abate ipso facto on failure to file transcript in time but continues till dismissal is ordered.\[40\] Defects are ordinarily raised by motion in the appellate court\[41\] to dismiss or affirm,\[42\] after it has acquired jurisdiction,\[43\] which motion should as in other cases be made specifically\[44\] on notice.\[45\] Affidavits aliunde the record are not usually allowable,\[46\] though the court may, in investigating its own jurisdiction, examine a transcript not a part of that originally set up.\[47\] Nonjurisdictional\[48\] defects,\[49\] but not jurisdictional ones,\[50\] are amendable\[51\] and are waived by delay in object-

100 N. W. 345. Filing abstract not conforming to rule. Olson v. Lund \[Iowa\] 101 N. W. 1123.

36. Supreme Council A. L. H. v. Anderson \[Tex. Civ. App.\] 83 S. W. 207.

01. Where on appeal from Justice court appelle pockets the case, the judgment of affirmance is equivalent to a dismissal of the action, and the appellate court is not required to look into the record for the purpose of passing upon the merits of the exceptions, Blair v. Coakley \[N. C.\] 48 S. S. S04.

01. In Montana, by statute, the dismissal of an appeal effects an affirmance unless expressly made without prejudice. Coak Civ. Proc. $ 1741. McIntosh Hardware Co. v. Flatthead County \[Mont.\] 80 P. 239.

01. See 3 C. L. 238.

01. Louisville & N. R. Co. v. Lucas' Adm'r \[Ky.\] 86 S. W. 682.

01. After return filed, an appeal can only be dismissed in accordance with the rules and practice of the supreme court. Jordan v. Wilson \[S. C.\] 48 S. E. 87. Motion to dismiss must be filed within three days after filing transcript. Savon v. South-western Brick & Tile Mfg. Co. \[La.\] 37 So.

01. A single justice in Massachusetts has power to determine a motion to dismiss a creditor's appeal from a probate decree allowing a guardina final account. Leyland v. Leyland \[Mass.\] 71 N. E. 794.

01. A motion to affirm on the ground that the appeal is for delay cannot be heard without dedeciting the case. Hamilton v. Kentucky Title Co. \[Ky.\] 79 S. W. 1182.

01. Motion based on incompleteness of record must show what was omitted and that It was pertinent. Succession of The-riot \[La.\] 38 So. 471. It must specify where-in the appeal bond "is not such as the law requires." Id.

01. Selbert v. Grier \[Ky.\] 86 S. W. 970. By opposing motion, appellant waives right to object to insunfficiency of notice. Bruce v. Myers \[Ind. App.\] 73 N. E. 710.

01. Change of ownership in the subject-matter after appeal cannot be shown by aff-davit in the appellate court. Gordon v. Sorg, 113 Ill. App. 522. A motion to dismiss a writ of error as to certain appellants, who appeared and filed briefs in the appellate court, on the ground of want of interest, and based on ex parte affidavits ing,52 or by proceeding in the case without objection.58 Jurisdictional defects are fatal irrespective of the manner in which they are called to the court's attention,54 and the court will sua sponte notice its want of jurisdiction.55 Where an extensive examination of the record is involved, the decision of the motion is usually reserved until hearing of the merits.56 Appellants are generally entitled to dismiss as of course at any time before hearing upon payment of the costs.37

Footnote 58: The author is grateful to the anonymous referee for his constructive comments.

Footnote 59: The author is grateful to the anonymous referee for his constructive comments.

## Appendix A Appendix and Review 13a

### 13a.

### 13b.

The _b_-value of the \_b

## 5 Cur. Law.

appeal and review SS 13B.

usually abides where it was.\[70\] On such a retrial, an issue of fact not pertinent to the original proceeding but within the ordinary jurisdiction of the reviewing court and necessarily determinative of the rights of the parties may, it seems, be decided when tried below without objection.\[71\]

(SS 13) _B. General scope and objects of review.\[72\]_--Unnecessary points\[73\] or abstract questions will not be decided. nor any futile review be made.\[74\] Accordingly errors which may not arise or may be cured on a retrial,\[75\] questions eliminated by a settlement or change of facts or by other collateral matter,\[76\] or cured\[77\]

title before the commissioners cannot be altered by complaint filed In the district court. Board of Com's of Arapahoe Coun- try v. Denver Union Water Co. \[Colo.\] 76 P. So. 743. Where a judgment is clearly barred

70. On appeal from establishment of high-way, petitioner must prove necessity and demonstrates their damages. Heath v. Sheetz \[Ind.\] 74 N. E. 505.

01. Where the clerk in a boundary proceeding under the North Carolina Act exceeding hurdle by trying title but we need his jurisdiction by trying title but no objection was made, an appeal will en- able the superior court to try the fact of title. Smith v. Johnson \[N. C.\] 49 S. E. 62.

01. See S C. L. 241.

01. Horst v. Lewis \[Neb.\] 103 N. W. 460.

W. L. Watkins & Co. v. Guthrie & Co. \[Miss.\] 28 So. 370. Where the evidence requires the verdict, errors in instructions are immaterial. Creary v. Wefeel \[C. C. A.\] 135 F. 304. Where the exception to the conclusions of law presents the same questions as those arising on demurrers to the complaint, a determination of the sufficiency of the complaint is unnecessary. Ross v. Van Natta \[Ind.\] 74 N. E. 10. Questions argued may be decided where effective to avoid further mitigation though their decision is not necessary to a determination of the case. Sargent v. Little \[N. H.\] 58 A.

44. In Connecticut a bill of exceptions filed by an appellece calls for consideration only when a new trial is advised and not where a new trial will be of no avail. Gen. St. 1902, $ 804. Andrews v. Platt \[Conn.\] 58 A. 468. Assignments of error relating to a count on which appellead had judgment need not be consided-red. McAllin v. McAllin \[Conn.\] 59 A. 413. Where an answer to a crossbil sets up the same facts as the original bill, and the general finding is for plaintiff, the court on defendant's appeal will not consider an error in overruling a demurrer to the answer to the cross bill. Bowen v. Gerhold \[Ind. App.\] 70 N. E. 546.

01. Smith v. Wenz \[Mass.\] 73 N. E. 651.

Scept v. Sheehal \[Cal.\] 79 P. 353; Littelten v. Burgess \[Vyo.\] 79 P. 922. The appellate court will not decide which was the legal and which the illegal ballot box in an election district when it appears that a decision either way would not change the result. Schuman v. Sanderson \[Ark.\] 83 S. W. 940. Judgment satisfied pending appeal.

Turnbull v. Jefferson County \[Vwash.\] 79 P.

1105. The giving of a supersedeals bond does not authorize the review of a merely abstract question. Diefenderfer v. State \[Vyo.\] 80 P. 687. The charge will not be reviewed where all the errors claimed will be covered by a review of the evidence de novo. In a civil case where there is no\* 913 .

- or merged in a later and final decision," will be ignored. The same matter will not be twice considered merely because twice assigned." That which is necessarily subject to pendency of the appeal cannot make a question or destroy one," nor can mere inability to rectify an error be so regarded as to oust the power of review." When a cross bill of exceptions presents a question which is controlling upon the case as a whole, that question will be first considered and disposed of." No question not properly saved below," preserved and presented in the record," properly assigned," and briefed and argued," will receive attention, and only such as harm the person appealing or objecting." In some states review extends only to so much of the case as involves the question conferring jurisdiction," and will not extend to the merits unless appellant's contention on the question on which the court's jurisdiction depends is sustained." Fundamental errors and jurisdictional defects on the face of the record are reviewed at any stage though never before claimed nor urged." An appellate
- from order, without bond, operated as supersedeas, where appeal bond was after- wards given within prescribed time in second appeal. Daney V. Clark, 24 App. D. C. 487. If ""-"id findings be accepted by a party as ""-"idlished facts, objections based on the admissibility of evidence to establish them will not be considered. Aultman Thresholding & Engine Co. v. Knoll \[Kan.\] 79 P. 1074.
- 78. Where the trial court on final hearing makes perpetual a preliminary injunction previously granted, the supreme court will not examine Into the regularity of the order granting the preliminary injunction. City of Leavenworth City & FL. Water Co. \[Kan.\] 76 P. 451.
- 79. Assignments to rulings on pleadings were covered by assignment to conclusions on special findings presenting same questions. Chaplin v. Leapley \[Ind. App.\] 74 N. E. 546.
- 80. Enforcement of a judgment pending appeal is no bar to appellant's right of re- view. New York Store Mercantile Co. v. Thurmond \[Mo.\] 85 S. W. 383. If, before appeal, apelle transfers the judgment to his attorney, the appeal will not reach the question whether the transfer is void as being illegious. If void title continued in plain-tiff, the appelle and appellant had no interest to support such a question. Kuck v. Johnson \[La.\] 88 S. 559.
- 81. Where, on trial of an issue to deter-mine whether a debtor arrested under a writ of capis ad satisfactionum has made a fraudulent conveyance to hinder and delay the payment of his debts, the trial court directs a verdict for defendant, quashes the writ, and discharges him from custody, it cannot be contended on appeal that the question there raised is purely an academic one, on the theory that the debtor, having once been discharged, cannot be rearrested. Is are an argument that erroneous decision below ousts apelleure court of jurisdiction. Bickel, Gwynn, McKenney Co. v. Costello, 22 App. D. C. 81.
- 82. Hill v. Georgia State B. & L. Ass'n \[Ga.\] 47 S. E. 887. When a case is absolutely controlled by the decision of the assignments of error in the cross bill of exceptions, the writ of error in the main bill will be dis-missed, the effect of such dismissal being to * 5 Cur. Law. APPEAL AND REVIEW $ 13B. 213

court may inquire into the jurisdiction of the court below in order to determine its own jurisdiction,91 but whether a lower appeal should have been allowed is not reviewable.92 Questions peculiar to the scope of review in particular courts are treated in the footnotes.93

necessary parties: Wasserman v. Metzger $ 5 Ohio C. C. (N. S.) 313. The supreme court \[Va.\] 47 S. E. 820. \*\*Fundamental sufficiency of a pleading always an open question under Rev. St. 1899, things in a highway constitutes, as a matter of law, a defect. Upham v. Boston 777. Under Manst. Dig. Ark. $ 5054 (Ind. T. \[Mass.\] 72 N. E. 946. Oral proceedings in a Ann. St. 1899, $ 2559), one filins a demurrer municipal court are not so closely scrutinally with his answer and falling to present it for mixed as proceedings of a court of record. consideration may object to the jurisdiction **C**ossel v. Atschul, 91 N. Y. S. 1. **In New York** where the appeal Is taken \[Ind. T.\] 82 S. W. 908. Under B. & C from the judgment only under Code Civ. Comp. $ 73, providing that objections to the problem. $ 1346, sub. 2, the appellate division complaint not taken by demurrer or answer are deemed waived, except jurisdictional objections, objection to the jurisdiction of the court may be first made on appeal. Kalyton V. Kalyton \[M.\] 78 I. 323. Only fundamental defects in pleading may be first questioned. Indiana Natural Gas & Oil Co. v. Beales \[Ind. App.\] 74 N. E. 551. Where it does not appear that the petition was attacked in the lower court, a judgment in the favor of plaintiff must stand unless the petition wholly fails to state a cause of action, even defectively. Fence v. Mercantile Town Mut. Ins. Co. \[Mo. App.\] 80 S. W. 746. **The fact that an issue is defective in that** but also of any and all exceptions appear- it fails to directly present the causal connection between the negligence of defendant and the damages sustained is not a cause for reversal by the court on its own motion, where both parties acquiesed in the form of the issues, and no exception was taken. Hunter v. Western Union Tel. Co. \[N. C.\] 47 S. E. 745. \*\*Total failure of evidence on a material is- sure: Entire absence of aught but hearsay to support verdict may be examined though not as hearsay no objection was made. Esstlic v. Sonthe=" R. Co., 116 Ga. 48, 42 S. E. 498. The rule that ground for a nonsuit not specified in the motion there cannot be considered on appeal in support of the court's action in granting it does not apply where the defect in plaintiff's case is inherent and cannot be cured. Warner v. Warner \[Cal.\] 78 P. 24. **Verdict** excessive in law, because depart- ing from measure and data of damages as prescribed by law. McDonald v. Champion from & Steel Co. \[Mich.\] 103 N. W. 829. **The rule that ground for a nonsuit not specified in the motion there cannot be conf- sidered on appeal in support of the court's action in granting it does not apply where the defect in plaintiff's case is inherent and cannot be cured. Warner v. Warner \[Cal.\] 78 N. E. 922. The court of appeals is not precluded by a statement in the order of the applicative division that the reversal was on the law and the facts where the record shows that there were no disputed facts. From & Steel Co. \[Mich.\] 103 N. W. 829. **The ruling** v. Manchester Assur. Co. \[OkI\] 78 P. 558. **The finding on a question of title confirmed by the appellate division cannot be reviewed in the court of from a justice judgment in forcible entry** appeals on the theory that the question is determined by plaintiff's title deeds where no objection was made to their admission. Kennedy v. Mincola, H. & F. Traction Co. \[Or.\] 77 P. 391. **The rule** 93. An appeal to the circuit court of appals does not bring before that court the question of the jurisdiction of the circuit or the court of that
(SS 13) _C. Restriction of review to rulings and issues below."_--Review proper is of course strictly confined to the rulings made95 and issues joined and decided** below." The general rule is that the theory of the case acquiesced in below will be adhered to,"85 and that a correct ruling will be sustained without regard to the wrong or deficient reasons given below."96

62, 73 N. E. 392; Kehl v. Abram, 210 Ill. 218, \[Ga.\] 49 S. E. 746. Where a demurrer and I1 N. E. 347; Anthony Itter Brick Co. v. a motion to dismiss for want of equity are Ashby, 198 Ill. 562, 64 N. E. 1109; Ewen v. Wlibor \[Ill.\] 70 N. E. 576; Chicago City R. appeal does not reach the demurrer. Jones Co. v. Gemmill \[Ill.\] 71 N. E. 43; Henrietta Coal Co. v. Campbell \[Ill.\] 71 N. E. 863; or of a mixed question of law and fact (Hart-ford Fire Ins. Co. v. Peterson \[Ill.\] 70 N. E. 157), by the appellate court is not review-, but no a further appeal to the supremes court. Where the appellate court finds the facts differently from the trial court and incorporates its findings in its judgment the only question open for review on further appeals is whether the facts found support the judgment: Craver v. Acme Harvey Co. \[Ill.\] 70 N. E. 1047. It is the duty of the appellate court, on an assignment that the verdict is against the weight of the evidence and determine that question. Illinois Cent. R. Co. v. Smith \[Ill.\] 70 N. E. 628. Where the supreme court is not a issue below. Riverside Land Co. v. reverses a case because the findings of fact are not sufficiently specific and remands it to the appellate court for specific findings, based on below will not be considered on rings are conclusive. Martin v. Martin \[Ill.\] 72 N. E. 418.

94. See 3 C. L. 244.

01. New England Merchandise Co. v. Min-cr \[Conn.\] 58 A. 4; Joseph Joseph Bros. Co. v. Schonth Iron & Steel Co. \[Md.\] 58 A. 205; Bakshian v. Hassanoff \[Mass.\] 71 N. E. 555; Chicago City R. Co. v. Mathieson \[Ill.\] 72 N. E. 443; Inhabitants of Verona v. Briddges \[Md.\] 57 A. 197; Mackey v. Northern Milling Co. \[Ill.\] 71 N. E. 448; Hayward v. Schonth-Dist. No. 99 of Hope Tp. \[Mich.\] 102 N. W. 99; Bryant v. Nelson-Frey Co. \[Minn.\] 102 N. W. 859; McCook Irrigation & Water Power Co. v. Crews \[Neb.\] 102 N. W. 248, \[Mollineaux V. Clapp. 90 N. Y. S. 880; Boden citing Cobey v. Buchanan, & Neb. 391; v. Schonth, 91 N. Y. S. 437; Birkett v. Nichols, Hyde v. Hyde, 60 Neb. 502; Hayward v. Schonth-Dist. No. 99 of Hope Tp. \[Mich.\] 102 N. W. 99; Smith v. McDonald \[Mich.\] 102 N. W. 102; N. W. 738; Adelton v. Williams \[Mich.\] 102 N. Thompson v. Erie R. Co. 89 N. Y. S. 92; W. 763. Code Pub. Gen. Laws, Md. art. 5, \[Branburg v. Solomon, 92 N. Y. S. 506; Poe-5. Home Friendly Soc. v. Roberson \[Md.\] 95 v. Chicago, etc., R. Co. \[Ill.\] 73 N. E. 59 A. 279; Cole v. Jerman \[Conn.\] 59 A. 425; 315; Davenport v. Lines \[Conn.\] 59 A. 603; Buckingham v. Estes \[C. C. A.\] 128 F. 584; Daily v. Sagainw B. & L. Ass'n \[Mich.\] 95 Anderson v. Dees \[Neb.\] 94 N. W. 961; Bativ N. W. 326, 10 Det. Leg. N. 226; Battles v. v. Hastings \[Neb.\] 95 N. W. 866; Barker v. Roberts \[Towa\] 95 N. W. 247; Mallory v. Citizens' Mut. Fire Ins. Co. \[Mich.\] 95 N. W. 601; 866; Getchell & Martin Lumber & Mfg. Co. \[Tow\] 99 N. W. 763.

v. Peterson & Sampson \[Towa\] 100 N. W. 850; Spiter v. Kalamazoo \[Mich.\] 101 N. W. 846; Canton Co. of Baltimore v. Baltimore & O. R. Co. \[Md.\] 67 A. 687; Bray v. Bray \[ 5 Cur. Law. (SS 13) _D. The extent of the review and the questions reached is measured by the character and effect of the order or judgment._\[1\]--A case not otherwise reviewable but certified for review because of a constitutional question will be reviewed on that alone;" but where a direct appeal from the circuit court to the Federal supreme court is authorized, the entire case comes up and not only the question on which jurisdiction is founded." A matter incident to an order is reviewable, though an appeal to another order which would have reached it was lost."

Generally speaking, the main or final judgment takes up all intermediate orders and proceedings," but not those subsequent to it" or separate parts not only.

will be sustained, though he may have given an insufficient or even a wrong reason therefor. Barksdale v. Security Inv. Co. (Ga.) 47 S. E. 948. Wrong theory below disregarded if result right. Stark v. Kirchgrader (Mo. Sup.) 85 S. W. 868. The reasons given by the court for its action in granting a new trial are immaterial. Powers v. Fairbanks (Cal.) 80 P. 1075. A general order denying a motion for a new trial after entry of judgment of dismissal for want of prosecution should be sustained on any view which will support it. Fant v. Jones (Tex. Civ. App.) 81 S. W. 338. See no more fully Harmless and Prejudicial (Emeror. 3 S. C. 1579. 1. See 3 C. L. 247. Merits are not re-viewable on appeal from dismissal for want of capacity to sue. Thompson v. First Nat. Bank (Mias.) 87 So. 645. 1.

appealed.\[7\] Appeals from the grant or refusal of a new trial\[8\] or other order made in course of trial reach only that which entered into the order itself, and matters not presented thereon cannot be considered on such appeal,\[9\] but only on appeal from final judgment.\[10\]

In some states appeal from the order on a motion for new trial and not one from the judgment reaches the facts\[11\] or the rulings during trial,\[12\] but a judgment op the pleadings may be reviewed without a motion for a new trial,\[13\] and on appeal from the judgment only, the record may be examined to determine whether there was any evidence to support the findings.\[14\] The merits of an appeal from a debate order can ordinarily be fully reached on a bill of exceptions to the order itself. Motion for new trial and appeal therefrom is not necessary.\[15\]

An appeal from an interlocutory order brings up only the order itself as it stood at the time of the making thereof\[18\] and nothing subsequent.

**7. Smith v. Smith \[Ky.\] $5 S. W. 1094.**

An appeal from specified parts of a decree which are set out in a written notice stating that no other part will be appealed from by appellant, and which are independent and involved only the rights of the appeales named therein, does not bring up for adjudication the whole decree. W. & T. Allen & Co. v. Maxwell \[W. Va.\] 49 S. E. 242.\*\*

**8. Bashore v. Parker \[Ca.\] $0 P. 707.**

**Order denying an new trial reaches only errors of law occurring at the trial. Green v. Duvergev \[Ca.\] $0 P. 324.**

Only those arising on the specifications of Insuffieciency of evidence and errors of law conditioned in the bill of exceptions. Williams v. Hawley \[Ca.\] $7 P. 762. Only those relating to alleged errors of law and whether the findings are supported. Holmes v. Warren \[Ca.\] $7 P. 954. Granting a nonsuit upon the opening statement of counsel, if Improper, is an error of law which may be reviewed on appeal from an order denying new trial. Green v. Duververgev \[Ca.\] $0 P. 34. Where objection to the introduction of evidence was made at the outset of the trial on the ground that the complaint does not state a cause of action, the sufficiency of the complaint is re-viewable on appeal from an order denying a new trial. Ayotte v. Nadeau \[Mont.\] $1 P. 145.\*\*

**Not questions arising from the conclusions of law to be deduced from facts found cannot be, nor can questions arising on the sufficiency of the complaint to state facts constituting a cause of action. Williams v. Hawley \[Ca.\] $7 P. 762.**

**Not the sufficiency of a pleading. Green v. Duvergev \[Ca.\] $0 P. 234.**

**Runings made in the course of the turrer. Holmes v. Warren \[Ca.\] $7 P. 954.**

**Compilation. Frey v. Vignler \[Ca.\] $7 P. 78 P. 783.**

**783: Green v. Duvergev \[Ca.\] $0 P. 324.**

**Technical objections to the sufficiency of a pleading which might have been raised by special demurrer. Bashore v. Parker \[Ca.\] $0 P. 707.**

**80 P. 707.**

**Not the sufficiency of a pleading. Green v. Duvergev \[Ca.\] $0 P. 324.**

- 5 Cur. Law APPEAL AND REVIEW SS 13D.

On appeal from nonsuit or directed verdict, every fact which the evidence tends to prove must be considered as proved.\[17\] In reviewing a ruling on a demurrer, facts not alleged cannot be considered, though admitted.\[18\] On appeal from the grant of a preliminary injunction, the bill is treated as on demurrer.\[19\] Disallowance of claim in bankruptcy brings up with it the rank or security of the debt.\[20\] Proceedings before referee do not ordinarily come up on petition to revise in matter of law.\[21\] On appeal in equity, the trial being de novo,\[22\] errors in admitting or excluding evidence are not reviewed,\[23\] and a decision correct on the merits or supported by sufficient legal evidence will be affirmed regardless of such errors.\[24\] Thus incompetent evidence heard by the chancellor will be presumed to have been disregarded unless it affirmatively appears to have affected the finding.\[25\] But where it appears that the improper evidence was given weight, the decree must be reversed.\[26\] In equity appeals the findings must stand or fall upon the pleadings contained in the record,\[27\] and errors at the trial in re-

pointing a receiver, after the issuance of a rule to show cause, the demurrer and order cannot be considered as before the court ex-

and only certain ones are appended from, as-

cept in so far as the demurrer is a return to

sphemts of error based upon those not the rule and an admission of the allegations

papelled from cannot be considered. Camp

of the bill for the purpose of the rule. Niles Phosphate Co., v. Anderson \[Fla.\] 37 So. 722, 17, Allen V. Bell \[Mont.\] 79 P. 583, Dryr-

The appeal will be considered only in so far as it has reference to the allowance of an

S. W. 262. The question is not whether the injunction and the appointment of a re-

evidence is sufficient to go to the jury, but

ceiver. Id. On appeal by beneficiaries of a

, whether it is sufficient to entitle the plain-

trust created by will from an order refus-

tiff to judgment. O'Connor v. Simpson

ing the probate of the wifi, the validity of

, the trust clause as to them will not be de-

R. Co. v. Campbell \[Colo. App.\] 78 P. 1072. A

termined. In re Fay's Estate \[CaI.\] 78 P. 1072.

, judgment in favor of demurree on conflict-

340. Appeal from interlocutory order does

ing evidence will not be disturbed unless

not open up whole record and does not reach

upon a plain legal ground, sufficient to pre-

other orders now barred from appeal. Dekle

v. Barkley \[Fla.\] 37 So. 581. The setting

surface of a nonsuit to permit plaintiff

the output is discretionary and the

, and the output could not review the evidence

, while the output would not have sus-

, to find an alleged abuse of such direction

, in that the evidence would not have sus-
ceiving or rejecting evidence or upon questions arising on the pleadings\[38\] and errors merely affecting the verdict are not subject to review, the verdict being merely advisory.\[28\] Error in decreeing on a verdict is no ground for new trial.\[39\] In Pennsylvania the appeal in wife desertion cases brought on the statute has the effect merely of a common-law certiorari and brings up only the regularity of the proceedings below,\[31\] and on appeal in road proceedings the merits are not examinable, and reversal will be had only for defects apparent on the record, jurisdictional errors and errors of law.\[32\]

(SS 13) \_E. Restriction to contents of record.\[33\]--\_Sufficiency of record to permit review of particular questions is elsewhere treated.\[34\] Except as to matters judicially noticed,\[35\] appellate review is ordinarily confined to the record, and matters aliunde will not be considered,\[36\] though some matters arising after the app-

20. First Nat. Bank v. McCarthy \[S. D.\] Y. S. SS1. Afflavits In support of a motion 100 N. W. 14. Error in instructions. Id. \[M.\] for a new trial, not embodied in a bill of excontont of counsel in argument and the \[C.\] or statement of facts, cannot be conducted of the jury. Id. \[M.\] R. J. Booth & Co. v. L. Mohr & Sons Pacific Reality Co. \[Wash.\] 77 P. 839. On \[Ga.\] 50 S. E. 173. \[M.\] Commowealth v. Mills, 26 Pa. Super. \[M.\] 6.4. \[M.\] 6.4. \[M.\] 7. \[M.\] 8. \[M.\] 9. \[M.\] 10. \[M.\] 11. \[M.\] 12. \[M.\] 13. \[M.\] 14. \[M.\] 15. \[M.\] 16. \[M.\] 17. \[M.\] 18. \[M.\] 19. \[M.\] 19. \[M.\] 19. \[M.\] 20. \[M.\] 21. \[M.\] 22. \[M.\] 23. \[M.\] 24. \[M.\] 25. \[M.\] 26. \[M.\] 27. \[M.\] 28. \[M.\] 29. \[M.\] 28. \[M.\] 29. \[M.\] 29. \[M.\] 29. \[M.\] 29. \[M.\] 29. \[M.\] 30. \[M.\] 31. \[M.\] 32. \[M.\] 33. \[M.\] 34. \[M.\] 35. \[M.\] 36. \[M.\] 37. \[M.\] 38. \[M.\] 39. \[M.\] 39. \[M.\] 38. \[M.

## 5 Cur. Law. APPEAL AND REVIEW SS 13F1.

Apel may be so presented.${}^{\\rm 37}$ Records and opinions on former appeals,${}^{\\rm 38}$ and rules and opinions of the trial court, are no part of the record.${}^{\\rm 39}$ The rule of restriction to the regularly made and transmitted record has no application to original powers of inquiry into facts necessary to decide objections to its own jurisdiction or motions to dismiss,${}^{\\rm 40}$ or to decide applications for interlocutory or provisional relief.${}^{\\rm 41}$

(SS 13) _F. Rulings peculiar to province of trial court. 1. Discretionary rulings in general.${}^{\\rm 42}$_--The discretion of a trial court is not absolute but is subject to review in case of abuse,${}^{\\rm 48}$ but discretionary rulings will not be disturbed unless an abuse of discretion clearly appears.${}^{\\rm 44}$ This rule has been applied to

is insufficient. Jones v. Milford \[III.\] 70 N. Callahan \[Cal.\] 79 P. 870. Though opinion R. 598. A statement in the condition of an appeal bond filed and approved by the clerk show findings of fact unless so ordered it that a decree was entered dismissing the may be examined on petition to revise pro-bill does not show that any such decree was actually entered. Livingston County B. & L. Assu v. Keach \[III.\] 72 N. E. 769. The supreme court cannot, from statements in the relief of counsel and the attached counsel's brief draw any inference of fact amflavit of a justice, explaining what he opposed to the findings of the trial judge. Ineffman v. Silverhorn \[Mich.\] 100 N. W. 184. Ambiguous stipulation as to the effect of which parties do not agree will not be considered. Barnard v. Lawyers' Title Ins. Co., 91 N. Y. S. 41. In determining question of fact, court cannot consider what purports to be a transcript of the evidence not made part of the return. Singer v. Poloeck, 91 N. Y. S. 755. A paper purporting to be a brief of the evidence, but which is not approved by the trial judge as correct, cannot be considered by the trial court. De Loach v. Planters' & People's Mut. Fire Ass'n \[Ga.\] 50 B. E. 141.

37. An appellate court has jurisdiction to determine the effect of a discharge in bankruptety set up by supplemental petition pending an appeal. Boyd v. Agricultural Ins. Co. \[Colo. App.\] 76 P. 986. An appellate court may avail itself of authentic evidence outside the record before it of matters occurring since the decree of the trial court when such course is necessary to prevent a miscrative of justice, to avoid a useless circuity of proceeding, or to preserve a jurisdiction lawfully acquired, or to protect itself from imposition or further prosecution of litigation where the controversy between the parties has been settled or for other reasons has ceased to exist. Ridge v. Manfiker \[C. C. A.\] 132 F. 599.

01. Record on former appeal not considered. Inaibnett v. St. Louis, etc., R. Co. \[Ark.\] 86 B. W. 293. The memorandum of the trial court, though not a substantive part of the findings may be resorted to interpret them. Johnson v. Johnson \[Minn.\] 99 N. W. 803. A memorandum of the trial judge attached to but not made a part of the order granting a new trial cannot be considered in determining upon what ground the order was granted, the order being explicit by its own terms (Holland v. Great Northern R. Co. \[Minn.\] 101 N. W. 608), and may be looked to to ascertain the grounds on which a verdict was set aside (Fox v. Metropolitan St. R. Co., 87 N. Y. S. 754).

01. A rule of the trial court not in the record cannot be considered. Johnston v. Milford \[III.\] 70 N. Callahan \[Cal.\] 79 P. 870. Though opinion R. 598. A statement in the condition of an appeal bond filed and approved by the clerk show findings of fact unless so ordered it may be examined on petition to revise pro-bill does not show that any such decree was actually entered. Livingston County B. & L. Assu v. Keach \[III.\] 72 N. E. 769. The supreme court cannot, from statements in the relief of counsel and the attached counsel's brief draw any inference of fact amflavit of a justice, explaining what he opposed to the findings of the trial judge.

220

APPEL AND REVIEW $ 13F1.

5 Cur. Law.

rulings on motions for a change of venue,\[45\] motions for continuance,\[46\] orders relating to pleadings, motions with reference to pleadings\[47\] or for a bill of particulars,\[48\] to the granting or refusing to grant a temporary injunction,\[49\] the refusal of a rule to correct omissions in the transcript on appeal from a justice's judg-

of plaintiff. Wilson v. Pfafre \[Iowa\] 103 N. court and remanded for new trial. Central W. 952. Grant of new trial held not abuse of discretion. Clifford v. Latham \[S. D.\] 280. Greater liberality is allowed in amendation of the court's abuse of its discretion in Plaintiff.

In answers than complaints. Murphy v. to of the court's abuse of its discretion in Plaintiff. Bank \[S. D.\] 100 N. W. 614. passing upon the application it is the ap-

After verdict, when material to the case public courts duty to injure into the facts

which has been defectively stated. Code and if after due consideration, an abuse ap-

Civ. Proc. 1902, $ 194. Sutton v. Catawba pears, to correct it and grant a new trial.

Power Co. \[S. C.\] 49 S. E. 863. After the

Attempts to influence jury, misconducted of introduction of evidence. St. Louis S. W.

jury and officers, and after-discovered evi-

R. Co. v. Hengst \[Tex. Civ. App.\] $1 S. W.

dence. Miv. North American Co., 70(8): 59

S2. So as to allege vene. Standard Fur-

A. 372. The action of the trial court, on

intro Co. v. Anderson \[TWs.\] 89 P. 813. motion for a new trial, will be reviewed in

Rule not changed by fact that amendment

some cases where the motion is based on

may relate to withdrawal of plea in bar and

the misconduct of the jury or those cons-

substitution of one in abatement, or vice

needed with it, and the trial court has re-

versa. Chunn v. City & S. R. Co., 23 App. D. C.

D. C. 551.

sidered, the application on an uncontested

Motionas to make more specifies: Under state of facts. Kelly v. Moore, 22 Ap. D. C.

"ConoL." 78 P. 1068. More definite. Berg v.

the evidence, finds that the charges are not

Humptills Boom & River Imp. Co. \[TWs.\]

sustained, a judgment on the verdict will

not be disturbed. Id.

Grants leave to file a cross complaint as

45. Pittsburgh v. Nicholas \[Colo. App.\] 77

P. 1992. Refusal to remove a cause to the

pers, by Bliss \[Calo.\] 79 P. 171.

count in which the essential evidence upon

which it depends is located. Zames v. Arm-

nell v. E. C. King & Son \[R. J.\] 59 A. 926. strong \[N. C.\] 48 S. E. 768.

Grants of leave to withdraw a plea and

48. Colorado Trading & Transfer Co. v.

interpose a denumter. People v. McDonald

Oliver \[Colo. App.\] 78 P. 308: Banzier Min.

& Milli Co. v. Allen \[Colo. App.\] 78 P. 1070:

Motionas to strike out: Refusing to strike

Robertson v. Moore \[Idah\] 77 P. 218. De-

nut a part of nil of a pleadine. Woodmans

nal of motion. Richardson v. Ruddy \[Idah\]

no) 77 P. 972: Hutchinson v. Manchester St.

strike amendments to a petition filed after

Ry. \[N. H.\] 60 A. 1011: City of Elgin v. Nors.

the taking of testimony and while the case

312 in \[N. H.\] 62 N. E. 43: Southern R. Co. v.

state \[Ind. App.\] 72 N. E. 174: Crouch v.

conform to proofs. Johnson v. Farmers'

Dakota, etc., R. Co. \[S. D.\] 101 N. W. 772:

Tas. Co. \[Iowa\] 102 N. W. 782:

Chambers v. Modern Woodman of America

To compel eletein between counts: De

\[S. D.\] 19 N. W. 1197: A. C. Fultoner Coil.

nial of motion to compel an election be-

v. Morgantown & K. R. Co. \[V.\] 50 S. E. 866. To permit the production of evi-

trial is discretionary: but when the Incon-

dence. Knapp v. Order of Pendo \[TWs.\]

wistency appears on the face of the

79 P. 209.

47. Allowance of or refusal to allow

fore answering, a denial of his motion may

amendments Adams v. Hopkins \[Cal.\] 77 P.

be reviewed. Pfafre v. Alabama, etc., R. Co.

712: Schrot v. Schoen ment, \[50\] the denial of a motion to dismiss, \[51\] or for a nonsuit, \[52\] the nonsuiting of a party for failure to answer interrogatories, \[53\] permitting plaintiff to dismiss, \[54\] the granting of a jury trial when not demanded \[55\] or the calling of a jury in a law case after a jury trial has been waived, \[56\] rulings in regard to the selection of a jury, \[57\] rulings relating to trial, \[58\] rulings in regard to the qualification of experts, \[59\] the allowance of leading questions \[60\] and cumulative evidence, \[61\] the order of proof, \[62\] motions to strike evidence; \[63\] the action of the court in regard to misconduct of

Shea v. Nilima \[C. C. A.\] 133 P. 209; Coram \[Montecelo \[Iowa\] 103 N. W. 488. In Penn-v. Ingersoll \[C. C. A.\] 133 F. 216. Order fixing the amount of the bond. Crown Cork & Seal Co., v. Standard Stopper Co. \[C. C. A.\] 136 F. 184.

50. Hager v. Knapp \[Or.\] 78 P. 671.

01. In equity. Lilly v. Biklund \[Wash.\] 79 P. 1107. Denial of leave to dismiss bill with, out prejudice after set down for hearing.

01. McVeigh v. Ripley \[Conn.\] 58 A. 701; George L. Storms & Co., v. Horton \[Conn.\] 59 A. 421; Norman Printer's Supply Co., v.

01. 421; Norman Printer's Supply Co., v.

01. 495; Snowman v. Mason \[Mc.\] 59 A. 1019; Pierce v. Barnes \[Pa.\] 58 A. 152; Cavananugh v. Grady \[R.\] 52 A.

01. 1027, The rule is particularly appliance to the rulings in courts where no provision is made

nesses, not under examination, from the for preserving an accurate report of the evl-

55. 107. The denial of a motion to within-
01. 108. 109. 820. Under Code Civ. Proc.

draw a juror because of counsel's improper

57. 111. Finen v. Heinze \[Mont.\] 80 P. remarks in summing up. Cut. Cv. Metro-
01. 108. 111. 563.
01. 111. 563. 606.

counsel,${}^{94}$ the reference of a case to an auditor${}^{85}$ and rulings on exceptions to an auditor${}^{86}$ or master's report,${}^{97}$ the matter of submitting special interrogatories to the jury,${}^{88}$ allowing documentary evidence to be taken to the jury room,${}^{89}$ the allowance of costs on appeal from a justice's judgment,${}^{70}$ the refusal to direct a verdict,${}^{71}$ rulings on motions to set aside judgments${}^{72}$ or to vacate default judgments,${}^{73}$ the allowance of alimony${}^{74}$ or the discharge of an order requiring its payment,${}^{75}$ the granting${}^{76}$ or denial of a motion for a new trial,${}^{77}$ settlement of exceptional

64. Improper remarks. McKee v. St. Louis Transit Co. \[Mo. App.\] 83 S. W. 1013. Refusal to grant new trial because of Improper remarks where counsel was admon- reshaped and apologized. Parker v. St. Louis Transit Co. \[Mo. App.\] 83 S. W. 1016; Conrad v. Cleveland, etc., R. Co. \[Ind. App.\] 72 N. E. 489.

01. Refusal to appoint auditor. Teasley v. Bradley \[Ga.\] 47 S. E. 925. Refusal of the court to recommit the report of a master. Bakshian v. Hassanoff \[Mass.\] 71 N. E. 555.

01. Refusal to approve an exception of fact therefore in equity. Fowler v. Davis \[Ga.\] 47 S. E. 951.

01. An order of the circuit court overnight exceptions to the'report of a master for the reason that the record was not printed as required by the rules. Du Bois v. New York \[C. C. A.\] 128 F. 418.

01. Under Rev. St. 1901, par. 1427. Gila Val., etc., R. Co. v. Lyon \[Ariz.\] 80 P. 337. Form of special interrogatories. Zimmer v. Fox River Val. Elec. R. Co. \[VWs.\] 95 N. W. 957.

01. Under Code CIV. Proc. 8 1083. Carmen v. Montana Cent. R. Co. \[Mont.\] 79 P. 690.

01. Flewelling v. Lent, 90 N. Y. 817.

01. Refusal to direct a verdict will not be disturbed. Sikes v. Norman \[Ga.\] 56 S. E. 134.

01. Granting motion under B. & C. Comp. $ 103. Nye v. Bill Nye Gold Min. & Mill Co. \[Or.\] 80 P. 94. An application to revoke a final decree of divorce is in the nature of an application to a chancellor. Given v. Given, 25 Pa. Super. Ct. 467.

01. Klepfer v. Keokuk \[Iowa\] 102 N. W. 815: Carver v. Seevers & Bryan \[Iowa\] 102 N. W. 815: Carver v. Seevers & Bryan \[Iowa\] 102 N. W. 815, citing Briggs v. Coffin. 91 Iowa.

329; McQuade v. C. R. & P. Ry. Co., 78 Iowa, 688: Meade County Bank v. Decker \[S. D.\] 102 N. W. 897: Stoll v. Pearl \[WWs.\] 99 N. V. 906: El Paso, etc., R. Co. v. Kelly \[Tex. Civ. App.\] 83 S. W. 855. Refusal to set aside, Germania Fire Ins. Co. v. Muller. 110 Ill. App. 190. Setting aside and granting new trial. Wilson v. Pfaffe \[Iowa\] 103 N. W. 892. Conclusive when attacked only on ground of power, the reasons urged for setting it aside being not disputed. Harkness v. Jarvis \[Mo.\] 81 S. W. 446. The power given by statute to set aside a judgment by default or by mistake is discretionary. Opple v. Clancy \[R. I.\] 60 A. 635. Granting or denving a motion and the terms upon which relief will be granted. Walton v. Hartmann \[Wash.\] 80 P. 196. Vacating judgment for mistake, surprise, etc. Hoyt v. Lightbody \[Minn.\] 101 N. W. 304. An order opening a default without condition will be considered as made on the theory that the party was tions, extension of time to settle bills of exceptions and move for new trial,78 the

Wait v. Robertson Mortig, Co. \[Wash.\] 79 P. \[Is some evidence to support the verdict and 926. Discretion of trial court in granting \[the trial court is satisfied with it. Black-one new trial, if supported by substantial evidence, unless the case is such that no verdict in favor of the party to whom the new trial is granted could stand. Fitzjohn \[Minn.\] 101 v. St. Louis Transit Co. \[Mo.\] 81 S. W. 907. It will be presumed, when the contrary is not shown, that the court acted within its discretionary power. Eggen v. Fox \[Wils.\] 102 N. W. 1054. Where the verdict is sustained by the evidence and it does not appear that a new trial was granted on dis-retionary grounds, the order will be re-reduced. Briggs v. Rutherford \[Minn.\] 101 N. W. 954. Where a motion for a new trial and the -ground of errors at the trial and its insufficiency of evidence is granted generally and there is suff- \[the findings of the jury unless there was some error will be reversed. Owens v. Savage \[Minn.\] 101 N. W. 790. An order granting a new trial generally, one of the grounds of 198. Being no complaint that any error of the motion being the insunfficiency of evidence, will not be disturbed if the evidence verdict. McGowen v. warrants a more favorable verdict for the \[Minn.\] 78 E. 217; Weil v. Carswell moving party. Weed v. Weed \[Co.\] 78 P. \[Go.\] 47 S. E. 217; Underwood v. Underwood 652. The appellate court will look with less scrutiny on an order granting a new trial than on one refusing to do so (Bloch Queens-ware Co. v. Smith \[Mo. App.\] 80 S. W. 592), and is much more reluctant to interfere (overthman v. Mason City, etc., R. Co. \[Towards 103 N. W. 135; Louisville & N. R. Co. v. Wade \[Fla.\] 38 So. 49; Kunz & Dinneen 18. \[catalog 104 N. W. 165\]).

18 284

APPEAL AND REVIEW SS 13F3. 5 Cur. Law.

appointment\* and removal of court officers,\* and the allowance of fees,\* though there appears to be some conflict in regard to this proposition.\* The rule does not, however, apply to a case where the court has failed or refused to exercise his discretion,\* or where his decision was in fact based on the law rather than on discretion,\* or where from the nature of the case he could have no better knowledge of the circumstances than the reviewing court.\*

(SS 13F) 2. _Questions of fact.\*_--Generally speaking, questions of fact are not reviewed\* unless the decision below is wholly unsustained by the evidence,\*

78. Bishop & Babcock Co. v. Schleuning

mlt the film of an answer after time on \[S. D.\] 103 N. W. 387.

n misconception of the statute will be reviewed. Edwards Loan Co. v. Skinner \[Iowa\] sell property under deed of trust. Wood v.

102 N. W. 828. Under Code $ 412, providing Grayson, 29 Apr. D. C. 432. Appointment of

that the trial judge may entertain a motion a receiver for an insolvent corporation.

United States Shipbuilding Co. v. Conklin \[C.

C. A.\] 126 F. 132. That a receiver was necessary and his charges reasonable. Cruch

the ruling may be reviewed. Abernethy v. Dakota, etc., R. Co. \[S. D.\] 101 N. W. 722.

Yount \[N. C.\] 50 S. E. 696. Generally un-

The appointment of a receiver and the ap-

less the order shows on its face or from its pointment of an attorney for a party, as re-

reature or the circumstances that it was

ceiver, where it is not claimed that the ap-

pointed is unif or that he will neglect the

dules of his position. Fisher V. Southern

L. & T. Co. \[N. C.\] 50 S. E. 592. An order

setting aside an order approving a receiver's

Banal report and discharging him will not be

disturbed. Williams v. Des Moines L & T.

N. Y. S. 478. Where motion is made on all

Co. \[Iowa\] 101 N. W. 277.

80. The removal by the probate court of

does not state the grounds on which it is

a collector of an estate, to whom letters ad

granted, but no costs are imposed, it will

coliffendum have been issued. Guthrie v.

Welch, 24 App. D. C. 662.

81. An allowance to the attorney of an

language, made by the chancellor who tried

the case and was familiar with the extent

and character of the services, though it appears small under the circumstances. Thum

v. Kentucky Citizens' B. & L Assn's Recovel-

g 478. Where there is sufficient evidence for

er \[Ky.\] 80 S. W. 790. To master in chan-

cerry. Symms v. Chicago, 115 Ill. App. 164.

82. The allowance of attorney's fees by

the chancellor is subject to review. Callen-

der's Adn't v. Callender \[Ky.\] 82 S. W. 372.

83. Refusal of new trial ignoring discre-

tionary grounds. McIntyre v. McIntyre

\[Ga.\] 47 B. S. E. 501. Where falls to do so

through misconcentration of statute, Ed-

wards Loan Co. v, Skinner \[Iowa\] 102 N. W. 828. Where his action is based on

grounds other than discretionary ones, as

where he refuses to act for want of power

rather than in the exercise of discretion.

Refusal of compulsory reference for lack of

power. Hart v. Godkin \[Wls.\] 100 N. W. 1057.

84. Unless the grounds are discretionary,

the order may be reviewed as any other.

Abernethy v. Yount \[N. C.\] 50 S. E. 696;

Robinson v. Lampel, 89 N. Y. S. 853: Badanes

v. Feder, 89 N. Y. S. 478. Granting or refusal

of a preliminary injunction where it appears

that the court regarded as of controlling im-

volume a view of the law that is erroneous.

court thought that denial would not be re-

vlevable. Northern Securities Co. v. Harri-

man \[C. C. A.\] 134 T. 331. Where an order

\[G.\] 135 A. 593: L.

5 Cur. Law. -- _APPEAL AND REVIEW $ 13F8._ 225

the wording of this rule varying somewhat in the various jurisdictions." _Applonada_ \[Mas.\] 71 N. E. 546; Morrill & W. von 56. \_Finding on motion for .new trial that jury did not miscon-Const. Co. v. Boston \[Mass.\] 71 N. E. 565; \_d_ent itself or ignore charge. White Sewing Curran V. Paul Whitin Morg. Co. \[Mass.\] 74 N. E. 600. _A motion for leave to_ _93 N. W. 788; _William Barle Dry Goods Co._ open a default so far as grounded on acel v. Casler \[Mich.\] 101 N. W. 215; _Fairfeld v._ dent, mistake or misfortune presents a ques-Hart \[Mich.\] 102 N. W. 641; _Cannon v. McIn-type \[Mich.\] 103 N. W. 630; _Shipley v._ Beldire_ peror court. Hutchinson v. Manchester St. \[Mim.\] 101 N. W. 955; _Gould v. Alton \[Mim.\]_. R. Co. \[N. H.\] 60 A. 1011. The question wheth-101 N. W. 985; _Hutzel v. Leach \[Neb.\]_ 99 N. _Fur the consideration for a note transferred_ _W. 256; _Malone v. Garver \[Neb.\]_ 93 N. W. by _ab husband to his wife was so inadequate 726; _Cruse v. Hrolatien Lumber Co. \[Neb.\]_ 97 as to suggest fraud cannot be considered_ _N. W. 295; _Gore v. Herring \[N. J. Law\]_ 60 A._ in the face of the verdict of the jury that it 1110; _Vail v. Goodman \[N. J. Law\]_ 63 A. 692; _was transferred for a valuable considera-Cosgrove v. Metropolitan Conat. Co. \[N. J.\]_ 64 tion and not in fraud of creditors. Trust Law\]_ 58 A. 82; _McLaughlin v. Beck \[N. J. Co. v. Bendow \[N. C.\]_ 47 S. E. 435. _Finding Law\]_ 58 A. 1081; _Lapat v. Erle R. Co. \[N. J.\]_ of existence of partnership relation reasona-Law\]_ 58 A. 1084; _Isetti v. Bilwins N. J. Law\]_ ably sustained. Cassidy v. Saline County 60 A. 200; _Morgenthu v. Beaton_, 88 N. Y. S. 58; _Bank \[Okl.\]_ 78 P. 324. _Whether an act of a_ \_359; \_Vogel v. Hawthorne, so N. Y. S. 1044; _Partner in excess of authority was ratified. Tom Sweeney Hardware v. G. Gardner \[S.\]_ 104. _Whether a partner acted within the scope D.\]_ 99 N. W. 1105; _State v. Coughran \[S. D.\]_ of his authority. Id. _Facts stated in affda-103 N. W. 31; _Peterson v. Christiansen \[S. D.\]_ 101 N. W. 40; _Klitve v. Willey \[Viss.\]_ 99 N. _missing a case for want of prosecution. Bond V. 337; _Hutchins v. Bautch \[Vis.\]_ 101 N. W. 679; _Firls possession under a mortrage of the_ _359_ _F. Nordin \[C. C. A.\]_ 131 F. 238; _Lopez v. Collet_._ line of its conversion was fraudulent. _Ald-Iier \[C. C. A.\]_ 139 F. 104; _San Fernando Opper Mining & Reduction Co. v. Humphrey \[C. C. A.\]_ 137 F. 398; _West Virginia N. R. Co. \[C.\]_ 138 F. 198. _Ex-cept to ascertain that there is evidence to support them. Dllks v. Kelsey (N. J. Law\]_ 59 A. 897. _Can be reviewed only when they are essential elements in the determination of questions of law. Kepler v. Lackawanna_ 611; _State v. Jermann V. 101 N. W. 679; _Dodge v. North \[C. C. A.\]_ 138 F. 363; _Burns subject-matter of an action of trover at the_ _359_ _Furns \[C. C. A.\]_ 131 F. 238; _Lopez v. Collet_._ line \[C. C. A.\]_ 139 F. 104; _San Fernando Opper Mining & Reduction Co. v. Humphrey \[C. C. A.\]_ 137 F. 398; _West Virginia N. R. Co. \[C.\]_ 139 F. 198. \_Ex-cept to ascertain that there is evidence to support proval by the trial court on motion for a new trial,"0 or the concurrence of several

$2 $. W. 126; Bond v. Chicago, etc., R. Co.

\[Mo. App.\] 84 S. W. 124; Reed v. Goldneck

\[Mo. App.\] 84 S. W. 114; Woodard v. Cooney

\[Mo. App.\] 85 S. W. 114; Woodard v. Cooney

\[Mo. App.\] 85 S. W. 128; Reed v.

\[Mo. App.\] 85 S. W. 588; Keller v. Schwartz,

Chicago & A. R. Co. \[Mo. App.\] 87 S. W. 65;

93 N. Y. S. 620; White v. Powell (Tex. Civ. App.\] 84 S. W. 836. The fact that there is

\[Mo. App.\] 84 S. W. 836. 111; Estex v. Missouri Pac. R. Co.

\[Mo. App.\] 84 S. W. 84; 111. 111.

5 Cur. Law. APPEAL AND REVIEW $ 13F2. 227

verdicts on successive trials, strengthens the presumption in favor of the finding

ence Harness Co, \[S. C.\] 50 S. E. 556; Thach \[ turbed merely because incompetent testimony v. Continental Traveler's Mut. Acc. Ass'n was admitted if there is sufficient competent \[Tenn.\] 87 S. W. 255; Citizen's R. Co. v. evidence to support the findings. Cooke v. Blackman \[Tex. Civ. App.\] 84 S. W. 242; Canin \[Vwash\]. 77 P. 682. Appellate court Echols v. Jacobs Mercantile Co. \[Tex. Civ. App.\] 84 S. W. 1082; Missouri, etc., R. Co. v. dence reasonably sufficient to support the Hooten \[Tex. Civ. App.\] 84 S. W. 1095; Young findings of the jury. If so, verdict must be v. Meredith \[Tex. Civ. App.\] 85 S. W. 32; Houston Land & Trust Co. v. Hubbard \[Tex. Civ. App.\] 85 S. W. 474; Houston, etc., R. Co. v. Gordman \[Tex. Civ. App.\] 85 S. W. 492; Civ. App.\] 85 S. W. 735. Wills set aside the Pickett v. Gled \[Tex. Civ. App.\] 86 S. W. 1050; V. Crosby & Beck-ley Co. \[Vu.\] 79 P. 556; Fulton v. Crosby & Beck-ley Co. \[Vu.\] 94 S. E. 1012, Under Code \[Vu.\] 94 S. E. 1012, Under Code \[Vu.\] 84 S. W. 1013, Under Code \[Vu.\] 84 S. providing for instructions as to how evidence is to be considered. Sarraille v. Calmon \[Cal.\] 76 P. 497. Setting aside codicial in will contest v. French \[Ill.\] 74 N. E. 403. Party sustained by probabilities contradicted by two witnesses-verdict not disturbed. West Chicago St. R. Co. v. Dean, 112 Ill. App. 10. As to whether removal of a telephone instrument was a discrimination against a sub-scriber. Crouch v. Arnett \[Kan.\] 79 P. 1086. A conflict cannot be said to arise simply because one witness has testified contrary to another. Moulton v. Sanford, etc., R. Co. \[Me.\] 59 A. 1023. In Montana if the conflict is trifling or the evidence preponderates against the findings, the facts will be examined. Under Acts 1903 \[2nd Ex. Sess. p. 1\], making it the duty of the supreme court to determine questions of fact in certain cases. Bordeaux v. Bordeaux \[Mont.\] 80 P. 6. An amendment by a judge, of a record name pro tunc, to speak the truth, on conflicting evidence as to the facts. Kerr v. Hicks, 131 N. C. 90, 42 S. E. 532. Cannot determine the facts though the findings will not support a judgment for either party. Scott v. Ford \[Or.\] 80 P. 899. Wills be examined only to determine whether there is profuctive evidence to sustain the verdict. Charles E. Bryant & Co. v. Arnold \[S. D.\] 102 N. W. 303. Decision of state court on conflicting evidence will not be reviewed in Federal court. Gleason v. White, 25 S. Ct. 782. The rule does not apply where all the material evidence is documentary. Talcott v. Mastin \[Colo. App.\] 79 P. 973. Such evidence raises a question of law, and findings thereon are not conclusive. Sullivant v. Jahren \[Kan.\] 79 P. 1071. Where the trial was had entirely upon depositions may consider the same as if originally heard there. Roby v. Roby \[Idaho\] 77 P. 213. The rule is not changed by a statute providing that the reviewing court "shall examine the evidence and render such" judgment as shall be just and propo-er." Board of Railroad Com's of Kansas v. Missouri Pac. R. Co. \[Kan.\] 80 P. 53. Where there is sufficient evidence to support It: Carpenter v. Lindauer \[N. M.\] 78 P. 57. A judgment overriding a motion for a new trial where the evidence is conflicting. Wynn v. J. N. Pease & Co. \[Ga.\] 48 S. E. 143. Evidence need only tend to prove essential facts. Indianapolis, etc. R. Co. v. Hubbard \[Ind. App.\] 74 N. E. 535. On a trial de novo, findings of the trial court will not be dis-

227 below." The presumption in favor of findings of fact in the lower court operates

Improper cause. Harrigan v. Glichrist Holmes \[Mass.\] 74 N. E. 364. Though the findings below are presumptively right, it is the court's duty to review the evidence

Howard v. Perrin \[Ariz.\] 76 P. 460: Illinois Cent. R. Co. v. Haecker, 110 Ill. App. 102; Chicago, R. I. & P. R. Co. v. Nelson, 115 Ill. App. 102; App. 442: Lamm V. Metropolitan St. R. Co.

90 N. Y. S. 390: Curtis V. Oregon R. & N. Co.

\[Wdash.\] 78 P. 133. If the evidence of applicant, sustained by the undisputed facts and circumstances, plainly premodertates over that of the appellee, as shown by the records.

Furst v. Galloway \[W. Va.\] 49 S. E. 146. Finding for plaintiff on demurrer to evidence by defendant will not be disturbed unless it is against the plain and decided

preponderance of the evidence or is wholly without evidence to support it. Barrett v.

Raleigh Coal & Coke Co. \[W. Va.\] 47 S. E. 154. The finding of the trial court upon a question of fact, as to which there is conflicting evidence, will be reversed when there is a decided preponderance of evidence against it, and the finding itself is inconsistent with what the evidence, on the whole, shows was intended to be the relation of the parties toward one another. Pearson v. West Virginia Lime & Cement Co. \[W. Va.\] 49 S. E. 418. Refusul of new trial (s not disturbed unless allowing all presumptions the preponderance is so decided as to carry a conclusion that the verdict was unjust and wrong. Birmingham R.y., Light & Power Co. v. Lindsey \[Ala.\] 37 So. 289. Unless so against the weight of evidence as to indicate, clearly, want of proper consideration of the evidence, mistake by overlooking material evidence, or prejudice, or some other improper cause. Harrigan v. Glichrist \[VVis.\]

99 N. W. 909.

Every presumption in favor of finding of trial court is St. Louis, etc., R. Co. v. Hill

\[Ark.\] 86 S. W. 303; Dick v. Zimmerman, 105

III. App. 615; Chafre v. Baratain Canning Co.

\[La.\] 36 So. 943; McSalar v. Moore \[S. C.\] 50

S. E. 197. Only in the absence of substantial evidence will they be disturbed. Bank of Willows w. Small \[Ca.\] 78 P. 258. In reviewing the weight of the evidence, the fact that the jury were instructed too favorably for the unsuccessful party will be considered.

Colonal Mut. Fire Ins. Co. of Philadelphia v. Ellinger, 115 Ill. App. 302. Though the proof be doubtful, the judgment will not be disturbed. Controversy involving title to real property. Black V. Cox \[Ky.\] 82 S. W. 278. All conflicts resolved in favor of prevailing party. Lacklund v. Lexington Coal Mln. Co.

\[Mo. App.\] 85 S, W. 397. A judgment for plaintiff in a street railroad crossing accident case should not be reversed for failure to give a preparitory instruction for defendant, unless after giving plaintiff the benefit of the most favorable construction of all the evidence, and every reasonable inference in his favor that may be drawn therefrom, no other reasonable conclusion can be arrived at than that plaintiff was guilty of such contradictory negligence as to preclude recovery.

Asphalt Granitoid Const. Co. v. St. Louis

Transit Co. \[Mo. App.\] 80 S. W. 741. Where

under this set aside on law alone, facts will not be resolved in favor of appellee. Johnson v.,

\[Mons.\] 74 N. E. 364. Though the findings below are presumptively right, it is the court's duty to review the evidence whenever its sufficiency is presented to ascertain whether there is a preponderance against the finding. First Nat. Bank v. McCarthy \[S. D.\] 100 N. W. 14. Presumption

is stronger where the court below acted on

\[Wdash.\] 78 P. 133. If the evidence of appellee, sustained by the undisputed facts and circumstances, plainly premodertates over

\[C. A.\] 136 F. 585: Melton v. Rittenhouse, 111

III. App. 30: Heas v. Killebrew \[Ill.\] 70 N E.

675; Bartholomev W. Green \[Iowa\] 102 N. W.

777; Johnson v. Farmers' Ins. Co. \[Iowa\] 702 N. W. 603; Hespan v. Heymann \[Ill.\] 71

N. E. 591: Columbia Theatre Amusement Co.

v. Adsit \[Ill.\] 71 N. E. 868; Williams v.

Mouthon \[Mass.\] 71 N. E. 808; Evans v.

Woodsworth \[Ill.\] 72 N. E. 1082. Whether

injury resulted to reversion by cutting time-

her. Anderson v. Cowan \[Iowa\] 101 N. W.

92. To overcome the presumption a premoderance of evidence against facts must

clearly appear. Clarke v. Conners \[S. D.\] 101 N. W. 883; Morris v. Relief \[S. D.\] equally in favor of verdicts,"22 findings by the court in law"8 or equity cases,94 in finding having been approved by the pre- \[If evidence to support it. Watson v. Faggiding judge. Buchanan v. Ellison \[Ga.\] 49 \] 19 \] 105 III. App. 52; Nichols v. Shaw, 105 \] 111. App. 114; Minneapolis Thereshing Mach. though did not preside at trial. Does not \[Co. V, Burton \[Minn.\] 103 N. W. 335. When carry same force as that of trial judge. \[the tenthmosty if true justifies it. State v. Spearman v. Sanders \[Ga.\] 49 S. E. 296.\] 19. Vanasant v. Miller \[Ky.\] 80 S. W. 1091; and orthologs on evidence were proper. Ver Atwood \[Minn.\] 103 \] 103 \] 104 \] 105 \] 106 \] 107 \] 108 \] 109 \] 109 \] 108 230

APPEL AND REVIEW $ 13F2. 5 Cur. Law.

the absence of a statute to the contrary,95 or by referees,95 masters,97 auditors,98

Co. \[W. Va.\] 50 S. E. 601. In reviewing the evidence the court must recognize the existence of certain facts controlled by phys-

Glasascock v. Des Moines Ins. Co. \[Iowa\]

sical laws and disregared testimony in con-

fliet therewith. Quigley v. Naughton,91

N. Y. S. 491. Where plaintiff testings that

he looked for an approaching car and did

Rotun v. Fornock \[Mo. Appl.\] 81 S, W. 513: not see it, the alleged physical fact that had

Meuch v. Hornback \[Mo. Appl.\] 83 S, W.

he looked he must have seen it is not con-

536: Downgate Mtg, Co. v. Heileskon \[N. D.\]

rolling on the apellate court. Chicago City

R. Co. v. Barker \[Ill.\] 70 N. E. 624. A

Verdict in a will case stands on the same

Hodges v. People's Bank \[S. C\] 50 S. E.

ground as a verdict in any other jury case.

Floore v. Green \[Ky.\] 83 S. W. 133. Ca-

pacity and undue Influence. In re McKean

137 F. 124; York V. Washburn \[C. C. A.\] 129

na's Estate \[Call.\] 77 F. 461; Bailey V. Bailey

\[Ky.\] 82 S. W. 387. Refusal to grant a new

trlal based on finding of the jury on conflict

Camden Interstate R. Co. \[C. A.\] 135 F.

ing evidence. Stowve v. La Comner Trading

832. Unless it appears that an obvious er-

& 'Transportation Co. \[Vash.\] 80 P. 856.

vwhere jury has viewed premises: Though

law, or a serious mistake has been made

the evidence for plaintiff is weak, the verdict

in the application of the law. Dodge v.

dict will not be disturbed, the jury having

Norlin \[C. C. A.\] 133 F. 363. Where the

by consent of parties personally inspected

only error assigned is that the Judgment is

the place where the tort was committed.

Athanta, etc., R. Co. v. Mims \[Ga.\] 50 S. E.

137: St. Louis & O. R. Co. v. Union Trust &

who record there is sufficient competent

Sav. Bank \[Ill.\] 70 N. R. 651: Dowie v. Chie-

cago, etc., R. Co. \[Ill.\] 73 N. E. 354.

"Amount of damages" Xuck v. Johnson

"James" Xuck v. Johnson

\[La.\] 38 S. 559: Gorham v. St. Louis, etc.,

R. Co. \[Mo. Appl.\] 86 S. W. 574: Duke

v. Potsal Tel. Cable Co. \[S. C\] 50 S. E. 675.

Nichols v. Oregon Short Line R. Co. \[Utah\]

78 P. 866. Though the verdict is for the

of proof without further specification, his

highest amount justifiable under the evidence. Jennings v. Ingram, 111 III. App.

261. A verdict for damages in condemn-

tion proceedings will not be disturbed as

excessive where it is less than half what

it might have been under the evidence.

Board of Levee Com's of Yazoo-Mississippi

Delta v. Lee \[Miss.\] 37 S. 747. Objection to the verdict as excessive is not an error

in point of law which can be reviewed under the act of 1992. P. L. 1902, p. 568. Both

v. Shobolcin \[N. J. Law\] 60 A. 59. On con-

filtering evidence as to the amount of damages, the verdict, though high, cannot be

set aside where within the scope of plaintiff's testimony. Zelley v. West Jersey &

S. R. Co. \[N. Y. Law\] 53 A. 9. St.atory authoricity to grant a new trial on the ground

of excessiveness of verdict will not be ex-

ercised unless the injustice is so apparent

as to show great abuse of discretion in the

trlal judge in authorizing the verdict to

stand. Act May 20, 1891. P. L. 101. Stauffer

v. Reading \[Pa.\] 67 A. 829. Will not be set

aside as excessive unless so excessive as to

shedk the court's sense of Justice. Quigley v. Pennsylvania R. Co. \[Pa.\] 59 A. 858.

Vill not be set aside because damages seem

too large. Normille v. Wheeling Traction Co.

\[W. Va.\] 49 S. E. 1030. Verdict conclusive

where no error of law appears on the re-

ord. Southern Pac. Vo. Maloney \[C. C. A.\] 136 F. 171; Walker Mtg, Co. v. Knox

\[C. C. A.\] 136 F or auditing judges," or special tribunals," especially where declared by statute to

\[Cal\] 79 P. 970; Atkins v. Boyle \[Colo.\] | tradicted evidence supporting it (Coleman

80 P. 1067; Hereford v. Benton \[Colo. App.\] | v. White \[Miss.\] 38 So. 386), the supreme

80 P. 499; Pearesell Mfg. Co. v. Jeffreys \[Mo.\] | court must accept it unless it is clearly and

81 S. W. 901; Bankers' Union of the World

manifestly wrong (Melchior v. Kahn \[Miss.\] ). v. Pickens (Kan.) 178 P. 148; Ortiz v. First 38 So. 347). Under the new equity rules in Nat. Bank \[N. M.\] 78 P. 529; Olda v. Traders' Pennsylvania the findings of the court are Bank of Kansas City, Mo. \[Col.\] 78 P. 93; like the findings of a master under the old

Flever v. Reagan, 24 Pa. Super. Ct. 110; Wolfe

v. Second Nat. Bank \[TW. Va.\] 47 S. E. 243. \[Ct. 116. That fraud has not been proven.

The decision of the judge as to the compe-

Holt v. Murphy \[Okl.\] 78 P. 265. \[Unless an

cency of a witness, when such competency

obvious error has intervened in the appli-

depends on the determination of a question

tion of the law, or some grave mistake has

of fact, Carroll v. Barber \[Ga.\] 47 S. E.

been made in the consideration of the facts.

181. In an election contest if there is evidence

Manhattan Life Ins. Co. v. Wright \[C. C.

dence legally sufficient to sustain it, though

A.126 F. 82.

there may be a preponderance of evidence

On conflicting evidence: R. Dinwiddie &

against it. Sand. & H. Dig. $ 2898, providing

Co. v. Nash \[Ky.\] 86 S. W. 517; F. Weikel

that evidence is to be taken by depositions,

Char Co. v. Napper \[Ky.\] 86 S. W. 528;

and that court shall determine the same as

Flever v. Moorman & Hill \[Ky.\] 86 S. W.

a summary proceeding, does not change rule.

Sekuman v. Sanderson \[Ark.\] 83 S. W. 940.

does not deprive petitioner of a remedy by

The court's finding as to the residence of

decedents, in a suit by an administrator,

puted Issue may be submitted to a jury in

where it is sustained by a preponderance of

a trial in which both parties have the right

the evidence. Sommer v. Franklin Bank

\[Mo. App.\] 83 S. W. 1025; Watt v. Amos

\[Okl.\] 79 P. 109.

Will be supported unless clearly erroneous.

Counting evidence: Larsen v. Allan

Jennings v. Wyramski \[Mass.\] 17 N. N. E. 347.

Line S. S. Co. \[Wash.\] 80 P. 181; Dee V.

Under Code Civ. Proc. $ 21, amended by

Ettlessen \[Twash.\] 80 P. 437; Wheeler v. Watson \[Colo.\] 81 P. 269; Farmers' Irr. Ditch

viding that on appeal in equity cases ques-

Co. v. Consolidated Hillsborough Ditch Co.

tion of fact arising on the evidence pre-

\[Colo.\] 81 P. 872; In re Glanelli's Ekate

\[Cal.\] 79 P. 841; Columbia Copper Min. Co.

r. Duches Min., Mill. & Smelt. Co. (Vy.):

the preponderance of evidence. Finlen v.

79 P. 285; Sheehan v. Scott \[Cal.\] 79 P. 850;

Lake v. Owens \[Cal.\] 79 P. 589. That rep-

court should not reverse on the facts unless

resentations were false and known to be so.

there is a reasonable probability that the

Willey v. Clements \[Cal.\] 79 P. 850. A

result will be different on a new trial.

judgment overruling defendant's motion for

A new trial on the ground that the verdict

N. Y. 89. 940. An apellate court will be

was contrary to law and the evidence will

be affirmed, where the evidence, though

on the facts in a personal injury case, where

conflicting, is sufficient to sustain a finding

for plaintiff. Johnson v. Harley \[Ga.\] 48

mony of plaintiff. Harman v. Interurban

S. E. 685. Action on motion to open default.

St. R. Co., 88 N. Y. 852. Where a case

Sawings Bank of Santa Rosa v. Schell \[Cal.\] 18 reported to the law court with a stipa-

76 P. 250.

\[Ga.\] 80 S. E. 248;

\[Ga.

be prima facie correct;' but in equity\* and other cases which are reviewable de novo they are not conclusive.\*

73 N. E. 109; Chicago, etc., R. Co. v. Wood-Vard \[Ind.\] 73 N. E. 810. The statute does not contemplate a trial de novo, upon the evidence, nor require the court to weigh from. Haye's Estate, 23 Pa. Super. Ct. 570. conflicting oral testimony; the judgement of counsel fees, when confirmed, will not be dis-turned to be correct and will not be disturbed in the absence of clear error. Case-turbed unless it is affirmatively shown not 19% Estate, 23 Pa. Super. Ct. 646. to be sustained by the evidence, or clearly against the weight thereof. Parkinson v. Thompson \[Ind.\] 73 N. E. 109. An assignment of error in a cause triabble by a jury that the court erred in overturning a motion for new trial does not present the question of the sufficiency of the evidence as contemplated by the act. Hooisier Const. Co. v. National Bank of Commerce \[Ind. App.\] 73 N. E. 673. Where a cause tried by the court is submitted on appeal on all the evidence preserved by the bill of exceptions, the court is required by the statute to determine what is right on the whole case. Acts 1903, p. 341, c. 193, $ 8. Sargent Glass Co. v. Matthews Land Co. \[Ind. App.\] 72 N. E. 474. In Washington, findings by the court are not, like a verdict, binding upon the supreme court, but are rather advisory. Garhakle v. Sullivan \[Twash.\] 80 P. 188.
96\. Clitzens' Coal Min. Co. v. McDermott \[Mo. App.\] 84 S. W. 459. Shpported by competent evidence. Stephens v. Parvin \[Colo.\] 78 P. 688. When based on sufficient evidence and confirmed by the court. Chancellor v. Teel \[Ala.\] 37 So. 665; Curnen V. Reilly, 90 N. X. S 974; Fenn V. McCamell \[Pa.\] 57 A. 1108; Bierbrauer V. Khunel \[VWs.\] 99 N. W. 1018; In re Lawrence \[C. C. A.\] 134 F. 843; United States Fidelity & Guaranty Co. v. Hampton \[C. C. A.\] 134 F. 734. Of commissioninge. Page v. Melrose \[Miss.\] 71 N. E. 787; Poling v. Conden-Lane Boom & Lumber Co. \[V. Va.\] 47 S. E. 273; W. & T. Allen & Co. v. Maxwell \[V. Va.\] 49 S. E. 242; Wolfe v. Second Nat. Bank \[W. Va.\] 47 S. E. 424. Reference in bankruptcy. In re Shults, 135 F. 623; In re Royce Dry Goods Co., 133 F. 100. 97. Joslin v. Goddard \[Mass.\] 73 N. E. 845. When confirmed, Approved by chancellor. Aetna Ins. Co. v. Jacobson, 106 Ill. App. 283; Torrey v. Dickinson, 111 Ill. App. 524. Though the evidence is such that an opposite finding if found would have been sustained. Joslin v. Goddard \[Mass.\] 72 N. E. 948. On conflicting evidence. Last Chance Min. Co. v. Bunker Hill & S. Min. & Concentration Co. \[C. C. A.\] 131 F. 579. In the absence of manifest error. Buckingham v. Estates \[C. C. A.\] 128 F. 684.
98\. When confirmed: Relating to compensation of an assignee for benefit of creditors. In re Powvel's Estate \[Pa.\] 57 A. 981. Finding that building for which llem is claimed is a "substantial addition." Dunbar v. Wash-N. \[Po.\] 59 A. 434. Based on sufficient evidence. In re Powvel's Estate \[Pa.\] 57 A. 981.
99\. Hayes's Estate, 23 Pa. Super. Ct. 570; Cassely's Estate, 23 Pa. Super. Ct. 646; Hortz's Estate, 26 Pa. Super. Ct. 489. Findings in a complicated accounting based on sufficient evidence. Jackson v. Smyth, 24 Pa. Super. 891.
100\. 114. Though the verdict of a jury in an 5 Cur. Law. APPEAL AND REVIEW SS 13G. (SS 13) _G. Rulings and decisions on intermediate appeals._"--Where an intermediate appeal is had, the findings of fact therein made are usually final\* or at least will be reluctantly disturbed;" review in the court of last resort being confined to questions of law.\* The judgment only of the appellate court and not its opinion is reviewable," and the review is limited to the questions there litigated.\*

On appeal from district court of a case originating before a justice, the review is of what the district court did and not what the justice did.11 A party voluntarily assuming a position in the appellate court cannot shift it on further appeal.12

(SS 13) \_H. Effect of decision on former review in the same case.13--In case of reversal everything decided,14 and in case of affirmance everything that might have been raised,15 unless decision thereon is pretermitted,16 is the law of the case on subsequent review of the same case.17 Whether right or wrong,18 the

can the supreme court consider an assign--V. Littleton \[\[Md.\] 60 A., 22; New Omaha Thomson-Houston Electric Light Co. v. Romweigh or consider the evidence on control--bold \[Neb.\] 102 N. W. 475; Parrotte v. Dryden v. \[Neb.\] 102 N. W. 610; Illinois Central R. Co. court for its decision. Illinois Cent. R. Co. v. Smith \[III.\] 70 N. E. 628.

10. The supreme court of Illinois con-siders only such questions as were litigated in the appellate court irrespective of wheth. \[Md.\] 60 A., 22; City of \[Md.\] 60 A., 22; New Omaha Thomson-Houston Electric Light Co. v. Rom-weigh or consider the evidence on control--v. \[Neb.\] 102 N. W. 475; Parrotte v. Dryden v. \[Neb.\] 102 N. W. 610; Illinois Central R. Co. v. Edits. \[Neb.\] 102 N. W. 610; Illinois Central R. Co. v. Edits. \[Neb.\] 103 N. W. 6111; Oil. App. 242; Bostwick v. Mutual Life Ins. Co. \[Neb.\] 1042; Bokl-ton v. Coddington, 93 N. Y. 840; Heyman v. siders only such questions as were litigated in the appellate court irrespective of wheth. \[Md.\] 60 A., 22; City of \[Md.\] 60 A., 22; New Omaha Thomson-Houston Electric Light Co. v. Rom-weigh or consider the evidence on control--v. \[Neb.\] 102 N. W. 475; Parrotte v. Dryden v. \[Neb.\] 102 N. W. 610; Illinois Central R. Co. v. Edits. \[Neb.\] 103 N. W. 6111; Oil. App. 242; Bostwick v. Mutual Life Ins. Co. \[Neb.\] 1042; Bokl-ton v. Coddington, 93 N. Y. 840; Heyman v. siders only such questions as were litigated in the appellate court irrespective of wheth. \[Md.\] 60 A., 22; City of \[Md.\] 60 A., 22; New Omaha Thomson-Houston Electric Light Co. v. Rom-weigh or consider the evidence on control--v. \[Neb.\] 102 N. W. 475; Parrotte v. Dryden v. \[Neb.\] 102 N. W. 610; Illinois Central R. Co. v. Edits. \[Neb.\] 103 N. W. 6111; Oil. App. 242; Bostwick v. Mutual Life Ins. Co. \[Neb.\] 1042; Bokl-ton v. Coddington, 93 N. Y. 840; Heyman v. siders only such questions as were litigated in the appellate court irrespective of wheth. \[Md.\] 60 A., 22; City of \[Md.\] 60 A., 22; City of \[Md.

principle applies, however, only to the decisions on points necessary to a determination of the case,\[19\] and cases in which the evidence is the same.\[29\] And where now evidence was introduced on the second trial, the court will examine as to its effect,\[21\] and the court will always look into the record on the former appeal to ascertain what facts were then before it in order to determine the extent of the application of the rule.\[22\] Where the constitutionality of proceedings for a local assessment has been fully considered and confirmed, appellant cannot on a subsequent appeal gather additional facts and frame additional reasons to secure a revision on the ground of the unconstitutionality of the proceedings.\[28\] Where there has been no change in the status of parties and no property right has vested under the ruling, the court will reverse its first ruling, if clearly erroneous, especially when a constitutional question is involved.\[24\] The binding effect of the decision on a retrial in the lower court\[25\] and the effect of appellate decisions as precedents in other cases are elsewhere treated.\[26\]

## 14 Provisional, ancillary, and interlocutory relief\[27\]

necessary or proper to the due administration of appellate jurisdiction, may be allowed by the reviewing court.\[28\] The issues appealed will not be decided in advance of hearing in order to protect the property pendente life.\[30\] In Louisiana where a bonded release of a judicial sequestration pending appeal is sought, the matter will be remanded for

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## 236 Appeal and Review SS 15a.

5 Cur. Law.

full proofs of conditions,\[30\] and the appellate court cannot pass a sentence of nullity on a judgment if the grounds for it are not in the record.\[31\] Relief ancillary to a concurrent remedy before the trial court may be granted by it though it accomplishes that which the reviewing court withdrew.\[32\]

SS 15. \_Decision and determination. A. Affirmance or reversal.\[38\]--Assuming the existence\[34\] and the proper acquisition of appellate power,\[38\] the revision of the record in the manner and bounds already pointed out\[36\] will ordinarily lead to an affirmance or reversal according to the absence or presence of error. A profitless reversal\[37\] or one to allow recovery of nominal damages\[38\] will not be granted, nor will a judgment be reversed for errors which in no way prejudiced the party complaining;\[39\] but where the record shows a mistrial, reversal and new trial must follow.\[40\] Pro forma affirmance is sometimes allowed for failure to properly prosecute the appeal, such affirmance being governed by the same considerations as dismissal and treated with it.\[41\] It has been said, however, that dismissal rather than affirmance should be ordered where further proceedings on the merits are possible.\[42\] Pro forma reversals are authorized in some jurisdictions.\[43\] Reversal or affirmance is usually entire,\[44\] though a reversal in part of a severable judgment is husband. Roby v. Roby \[Haho\] 71 P. 213, **29**, **30**, Jennings Heywood Oil Synd. v. Houssiere Latvelle Oil Co. \[La.\] 38 So. 458. **31**. State v. Sommerville \[La.\] 36 So. 864. **32**. Injunction in ald of action of nullity **after dismissal** of suspensive appeal. State v. Sommerville \[La.\] 36 So. 864. **33**. See 3 C. L. 286. **34**. See ante, SS 4, 5. **35**. See ante, SS 6-11. **36**. See ante, SS 6-11. **36**. See ante, SS 13. **37**. Garlington, Davison \[Ga.\] 56 S. E. **36**. **67**. Where effect would be to direct a decrease having the same effect. Buster v. Wright \[C., C. A.\] 135 F. **94**. Dere dismissing bill showing lack of jurisdiction on its face. Chamberlin v. Peoria, D. & E. R. Co. \[C. C. A\] 118 F. 32. **21**. Erroneous order fixing time to file append both will not be reverse on error where the case is affirmed on the merits. Day v. Davis, 213 Ill. 53, 72 N. B. 682. \*\*Exceptions will not be sustainated in any event if the executant must ultimately fall on the undispated facts. Orr v. Oldtown \[Me.\] 68 A. 914. Where the Judgment is the only one possible under indisputable evidence, errors at the trial will not be looked for. Hawke v. Kerr \[Neb.\] 101 N. W. 1028. On appeal from man proper,"8" but the benefits of reversal will be limited to plaintiffs in error who complained of the judgment.46 When contradictory verdicts in favor of two several parties are returned, the one which is sustained by the evidence, if either, will be affirmed and the other disposed of as the case may require.47 The reversal of a final order dismissing summary proceedings carries with it the reversal of a judgment for costs thereafter entered.48 Reversal in the absence of error is occasionally ordered in the interests of justice.49 Where the justices are equally divided in opinion, the judgment stands affirmed by operation of law.50 In Florida a majority is constitutionally required for decision, hence the common-law rule of affirmance by a divided court is abrogated but if the division seems permanent on a full attendance51 all should vote for affirmance which will be binding only in the instant case and will constitute no precedent.52

(SS 15) _B. Transfers and removals and certifications and reservations.53_--The Missouri court of appeals will certify cases involving constitutional points to the supreme court.54 The court will of its own motion transfer a case of which it has no jurisdiction to that court which has.55 Certification back will not be made where the matter was once decided in the intermediate court and might 238 APPEAL AND REVIEW SS 15C. 5 Cur. Law. have been further appealed but was not.56 Where a case is pending on appeal in the superior court, the judge has no power to remand the same for trial to the court from which it was appealed.57 The losing party in the appellate court after the overruling of his motion for a rehearing is entitled to a transfer of the case to the supreme court in certain cases,58 but one who procured reversal and a mandate for new trial does not lose merely because he deems himself entitled to a final judgment, and a motion to modify the mandate to direct final judgment is not a motion for a rehearing.59 On an equal division of judges in the appellate court of Indiana, the cause will be transferred to the supreme court.60 (SS 15) \_C. Remand or final determination.61--\_On reversal, the ordinary practice is to remand for a new trial,62 but if the error is clerical63 or a mere matter of computation,64 or if the pleadings show want of jurisdiction or complete lack of merits,65 or if the appellate court has all the facts before it and can do complete justice,66 the error will be corrected and the judgment affirmed as rehearing.

56. What the court of appeals has dis-

erroneously entered for defendant it was re-

missed for supposed want of jurisdiction un-

versed and remanded with instructions to

appealed further cannot be certified back to

ter decree for plaintiff in accordance with

it by the supreme court where it has come

his claims on appeal. Meffert v. Dyer \[Mo. on appeal direct from the trial court. Munts \[Appl.\] 81 S, W. 643.

v. Jefferson R. Co. \[La.\] 38 So. 586.

64. St. Louis, etc., R. Co. v. Honea \[Tex. Civ.\]. 84 S. W. 267: Brooks v. Master-

58, 59. Standard Pottery Co. v. Moody

\[Ind.\] 74 N. E. 242.

60. Haughton V. Aetna Life Ins. Co. \[Ind.\]

01. Z. N. 652.

01. On reversal of a judgment non ob-

01. Aeree opening an-interlocutory or-

01. Aeree opening an-interlocutory or-

topelle to perfect his motion for new

trial where such a motion was made in con-

stances will be reversed unless the bill shows

nection with his motion for judgment. Nelson v. Grondahl \[N. D.\] 100 N. W. 1093.

Masterlane v. Dorsey \[Fla.\] 38 So. 612. Dis-

Where plaintiff, in deference to an adverse

missed for want of equity on face of bill.

intimation from the court, submits to a non-

Florida Packing & Ice Co. v. Carney \[Fla.\] 38, it is not entitled to a reversal to a

38 So. 602. Remand will be made where a

judgment in his favor but must undergo a

curative act affecting rights and status of

trial de novo. City City of Hickory v. Southern

parties was passed after judgment. Curing

R. Co. \[N. C.\] 50 S. E. 658. Where the rec-

charters and organization of municipalities.

ord on appeal in a suit for Infringement of

In re Lindner \[La.\] 38 So. 610. Remand with

patient fails to show any connection between

direction to dismiss. Bill showing no equity.

defendant and the act of infringement prov-

Floradry v. Whilden \[Fla.\] 37 So. 671. Bill

ed, the court will not remand the case to

showing full legal remedy. Williams v.

permit the amendment of the pleadings and

Peoples \[Fla.\] 37 So. 572.

the introduction of new evidence to prove

68. Johnston V. Gerry \[Wash.\] 76 P. 258:

such connection, nor to substitute as defend-

Leffingwell v. Miller \[Colo. App.\] 79 P. 327;

ant the party shown to have infringed

Harris-Hearnir Fountain Co. v. Pessler \[Tex. National Casket Co. v. Statis \[C. C. A.\] 135 F.

534. Where a judgment quieting title on a

Pa. Super. Ct. 346. On defendant's appeal in

tax dead is reversed for invalidity of the

an action for wrongful death, where the

tax title but plaintiff is entitled to a

lower court erroneously divided the verdict

for subsequent taxes paid the case will be

between the widow and minor children and

remanded for proof of their amount. Green

their attorneys, the court of appeals will

v. McGrew \[Ind.\]. 73 N. E. 832.

63. Prohl v. Wisher \[Tex. Civ. App.\] 79 S.

the judgment, and enter judgment in accord-

W. 1089: New Orleans Terminal Co. v. Teller

\[La.\] 37 So. 624: Hanrick v. Hanrick \[Tex.\]

not affect defendant. In such case defend-

Civ. App.\] 81 S. W. 795. Verdict and judgf-

ment awarding plaintiff a half interest in

raise the objection in the lower court. Ship-

land reformed where defendant claimed only

pers Compress & Warchouse Co. v. Davidson

one-third. Cummins \[Tex. Civ turned," or the party may be required as a condition of affirmance to cure the error by remittitur," and this is the usual practice in correcting an excessive recovery," as where the judgment includes damages established by incompetent evidence, which can be remitted by plaintiff." If it clearly appears that no different

clusion that the evidence was against the findings there should be remand with d1-retions to enter final judgment unless a motion in arrest or non obentate shall be made and sustained. Philadelphia Underwriter's Ins, Co. of North America v. Bigelow sufficient is before the court to advise It, \[Fla.\] 37 So. 210. In Illinois in mandamus the judgment of the apellate court holding that the writ should issue and remanding the cause with orders that its issue should also in terms award the writ, and on further appeal to the supreme court that court will on affirming the judgment enter final judge.

- \[noitemsep,nolistsep\]
  result could be reached, judgment absolute will follow the reversal,71 or the case may be reversed with specific directions to the court below as to its corrective action.72 The court will sometimes suggest amendments to avoid needless litigating.

deletto to such sum as would seem not ex-

so complicated by the exceptions as to be cessive damages. Chicago City R. Co. v.

Incorrigible without restating an account. Gemmill \[III.1\] 71 N. E. 43. Where the option

Clark v. Hendricks Co. \[FW. Va.\] 49 S. E.

is given plaintiff to take a judgment for a 458. On a certification from the court of less sum than that awarded by the jury and

appears, the supreme court may in its dis-avoid a new trial, the sum should be placed

exretion remand direct to the district court to as low as an impartial jury would likely

admit the raising of important questions.

award, and where the same option is given

S52. On reversal of a dismissal of the com-

defendant, the sum should be placed as high

plaint on the merits, the court may direct

under the evidence. Helmholtz V. Tabor

Trawlek v. England \[Ga.\] 50 S. E. 914. A

N. W. R. Co. \[Vis.\] 101 N. W. 710. Physical

bill wholly without equity will be remanded

cians' services improperly included in judgments

with directions to dismiss even when not

ment for infant. Judgment affirmed on con-

objected to for that reason. City of Jack-

dition of striking out amount thereof. Koehler v. Maresy Business College \[Fla.\] 36

ser v. Interurban St. R. Co., 88 N. Y. S. 1056.

So. 423. If judgment is based on an unin-

Remittittur and division of costs awarded

v where applelee was entitled to recover in

may be a remand with leave to amend. S.

part. Govern v. Russ \[Iowa\] 100 N. W.

D. Moody & Co. v. Spotorno \[La.\] 36 So. 836.

255: Childs v. Swift, 91 N. Y. S. 768. Damages included for which recovery could not

open the first of which it was held that

be had in the action. Dundon v. Interurban

plaintiff was entitled to recover and upon the

St. R. Co., 87 N. Y. S. 452. An affmmama

other two that he was not, and it was possi-

may be conditioned on the remittur of ex-

be, by reason of admissions in appellants

cessive or illegal sums awarded or on con-

brief as to how the verdict was made up, to

sent that the judgment be modified by

eliminate the improper items from the verdict, held that the case would be remanded

v. Bradley \[Ga.\] 47 S. E. 925.

to the lower court with directions to vacate

71. Fatal objection to plaintiff's right to

the judgment there rendered and enter a

maintain action. Denton v. Bennett, 92 N.

new one for the amount for which it was

Y. S. 822; Munch v. New York. 93 N. Y. S. 859. A summons may be held void and

readmin the verdict if necessary. Armour

vaushed and the action dismissed for error

& Co. v. Gundersther, 23 App. D. C. 210.

in refusing to quash the summons. M. Felsh-

verdict upon which the court of review will

that the case was wrongly decided on a

422. Judgment for defendant, after his ad-

question of fact, the case will not be re-

mission of liability for a certain sum in his

vered but remanded with directions. State

answer will be reversed and Judgment en-

v. Merchant \[Tex. Civ. App.\] 85 S. W. 483.

tered for the admitted amount. Rose v.

If it clearly appears that the evidence does

Florence Harmes Co. \[S.\] 50 S. E. 556.

not support the verdict and that a new

Where an agreed state of facts, adopted by

trial will not change the result, the apellate

the trial court as the basis of its findings

and spread upon the record, includes all the

facts essential to a determination of the

controversy, it will be treated as a special

"Treatment Co. v. Cahill \[Ok.\] 79 P. 260. On

verdict upon which the court of review will

rereval of a judgment non obstante vere-

render the same judgment that the trial

deto the court will order judgment on the

court ought to have rendered. National

Bank of New Jersey v. Bernal \[N. J. Law\]

Co. \[Pa.\] 58 A. 560. Where the error extends

58 A. 183. Where a special verdict is taken

and decision of motion for nonsuit reserved,

and the appellate division by express provision

of the code may direct such judgment on

the special verdict as the law requires. Code

Civ. Proc. $ 1187. Sutherland v. St. Lawrence

County, 93 N. Y. S. 958. Where counsel for

defense stated that no new trial was desired

and if a reversal could not be had without

a new trial, defendant would waive error,

held that, as a new trial would be necessary

the error was waved and judgment affirmed.

Strong v. Weber \[Mich.\] tion or error.75 The power to make final determination is one to be exercised with great caution,75 and will not be exercised where a retrial may cast new light on the case,76 and rarely where the appeal is from a judgment not finally disposing of the merits.77 Remand for further proceedings may be made without decision where necessary to justice.78 If, by lapse of time, the lower court has lost its power to issue writs of possession in condemnation proceedings, the supreme court will issue them or remand the cause to the court below for that purpose.79

(SS 15) \_D. Findings, conclusions and opinions on which decision is predicated.75--\_The purpose of an opinion being to explain and perpetuate the rules of law decided, a written opinion may be dispensed with on affirming a fact case.80 A mere reference in the opinion to a legal act will not be stricken out on the ground that it might intimate the illegality of the act and thus do harm.81

(SS 15) \_B. Modifying or relieving from appellate decree.82--\_An error of the clerk of the appellate court in adding an extra allowance to the judgment in a case where such allowance was not proper is clerical and may be corrected, though

73. Deklo v. Barkley \[Fla.\] 87 So. 581.

01. Final determination can be made in

01. On appeal from the dissolution of a the appeal court only where the evidence is

temporary injunction, the court of appeals such that the court can definitely determine

has no power to enter final judgment (State the rights of the parties. Avery Mfg. Co. v. Smith \[Mo.\] 86 S. W. 867), and if it shall

Smith \[N. D.\] 103 N. W. 410. Judgment re-

do so certifavil will issue from the supreme versing the motion to correct was not made within 30 days after judgment.\[83\] A petition to the appellate court for a reversal because, since the judgment, the claim which was the basis of it had been proved in bankruptcy and the debtor. discharged, must show the date of the petition in bankruptcy.\[84\] An appellate decree may be vacated and the cause sent back for the introduction of further testimony where the pleadings are ambiguous and a party has been misled to his prejudice by failing to offer such testimony.\[85\] Appellate judgment taxing costs cannot be stayed below.\[86\] The Washington supreme court has jurisdiction to correct its judgment at any time during the term at which it was entered.\[87\]

(SS 15) \_F. Mandate and retrial.\[88\]--\_The mandate is usually withheld for a time fixed by the rules to admit of application for reargument,\[89\] at the expiration of which time it is, on payment of costs,\[90\] sent down and filed in the court below,\[91\] the remittitur transferring jurisdiction to the lower court.\[92\] It is conclusive upon the court below,\[93\] and mandamus lies to enforce its commands.\[94\] A general reversal

- **83. Hall v. Dineen \[Ky.\] $7 S. W. 275.**
- **84. House v. Johnson \[Colo.\] 76 P. 743.**
- **85. McPhee v. Kelsay \[Or.\] 78 P. 224.**
- **86. Duque v. Levy \[La.\] 38 S. 410.**
- **87. Port Angeles Pac. R. Co. v. Cooke \[Wash.\] 89 P. 305.**
- **88.**

## 5 Cur. Law. Appeal and Review SS 15F.

leaves the case as though it had not been tried,\[95\] except as to matters adjudicated on the appeal,\[95\] and the decision of the appellate court stands as the law of the case on

Grayson, 24 App. D, C. 55. On remand the lower court is bound by the decree of the appellate court, and must carry it into effect according to the mandate. State v. Douglass \[Mo. App.\] SS 8. W. 87. It cannot vary or examine it for any other purpose than execution. Where, in suit for responses, judgment dissolving temporary injunction, directing that earnings in hands of receiver by paid to defendant, and that receiver be discharged, was reversed on appeal, and re-trained with directions to enter judgment for plaintiff, lower court had no authority to set case for trial on ground that plaintiff's damages had not been determined. Id. No modification of the judgment directed by the appellate tribunal can be made by the trial court. Where a trust as to real estate was declared void and judgment was that it should go to the heir, the trial court had no jurisdiction to modify by marshalling assets so as to impose on such reality a proportion of the expense of administration. In re Pichoir's Estate \[Ca1\] 80 P. 512. No provision can be engrated upon it nor can any be taken from it. Id. A technical compliance with the mandate of the reviewing court is not required. Where the reviewing court ordered restitution of a fund in controversy to the prevailing party, the district court can permit one not a party to intervene and show that a portion had been transferred to him during the litigation. Hargis v. Robin-son \[Kan.\] 79 P. 119. After a mandate of "bill dismissed with costs" has been transmitted, the court below has no power to stay judgment and execution. Nothing remains after such a mandate is received except to enforce it according to its terms. Whitney v. Johnston \[Me.\] 58 A. 1027. Where the mandate after affirmance directs the court to take such further proceedings as right and justice and the laws require, the court below has power to correct a clerical error in computing the amount of the judgment. Ex a parte Marks \[C. C. A.\] 136 F. 168. A remand with instructions limits the functions of the trial court strictly to the execution of the mandate. Ludington v. Patton \[VWs.\] 99 N. W. 614. Where a case is returned with a mandate defining and limiting the duty of the trial court, such mandate is controlling and prevents the opening up of the case anew. Fair Haven \[Con.\] 60 A. 661. A judgment not "in accordance" with the mandate of the appellate court on a former appeal will be reversed. Rev. R. Wt. Wt. Wt. 1989, 8 3071. Burnham v. Chase \[Ws.\] 102 N. W. 940. Remand with directions to proceed in conformity with the appeal court's opinion requires a new trial or not, dependent on whether the opinion determines the whole controversy. In re Maher's Estate \[III.\] 71 N. E. 438.

94. Mandamus is the proper remedy to compel compliance with the mandate of the appellate court. Order placing case on doekt for further hearing where mandate required judgment to be entered for plaintiff, held not reviewable by appeal or error. State v. Douglass \[Mo. App.\] 83 S. W. 87.

01. United States Fidelity & Guaranty Co. W. Board of Education of Somerset \[Ky.\] 86 S. W. 1120. Judgment on the pleadings may be ordered by the trial court on return of the mandate. The mandate reversing the judgment and ordering a new trial, where the pleadings present such a state of conceded facts as entities a party to judgment.

Retrial97 in so far as the evidence is in legal effect the same,98 though the holding was not contained in the mandate issued to the trial court.99 The entry in the lower court of the rescript from the full court showing that the decree reviewed has been affirmed is not a decree, but only calls for the entry of the proper decree.1 Plaintiff may discontinue,2 amendment of pleadings may be allowed,3 new parties brought in,4 and additional evidence adduced on the retrial.6 Appearance to the appeal dispenses

does not apply so as to bar an action on a note

S. Dinsmoor v. Rowse \[Thl.\] 71 N. E. 1003; is not an adjudication that limitations could

Blue v. Campbell \[Vv. Va.\] 49 S. E. 809.

not again be pleaded in the action on any

Amendment held properly allowed in lower

around whatsoever, so as to preclude defendant from setting up limitations to a reply

by supreme court on general demurrer, alleging fraud in the procurement of the

there being enough to amend by. Rome Furmanney on the note and that therefore defendant's discharres in bankruptors was not a

Supplementary affairs of defense. may be release therefrom. Louisville Banking Co. v. Buchanan \[Tsy.\] 80 S. V. 193.

Nature, 25 Pa. Super. Ct. 74. Ambisony stateson retrial based on holdings on the

prior appeal are proper. James v. E. G.

Lyons Co. \[CAl.\] 81 P. 275. A decree being

reversed and the cause remanded solely for a

further accounting between the parties In

accordance with the opinion, such opinion

was the law of the case on retrial and con-

sideration of questions decided was pre-

cluded. Hanrick v. Hanrick (Tex. Civ. App.)

on motion in arrest of judgment. Union

S1 S. W. 795. Where a dismissal is reversed

and remanded to take an account, the plain-

eff's right to recover is no longer open to

the day calendar for retrial, defendant will

question. Nutt v. Knut \[Miss.\] 36 S. 689.

not be permitted to amend by denying a fact

Under B. & C. Comp. St. 840, 655, providings

admitted by his original answer. Treadyevl

that an appeal from a decree in equity shall

v. Clark, 92 N. Y. S. 166. Where the supreme

be tried de novo and final decree entered re-

court of the United States on error to a state

gardless of findings or conclusions of the

ourt reverses and remands a case generally,

trial court, the rights of the parties and

the practice of the state court as to allowing

questions adjudicated must in subsequent

further amendment prevails. Gadsden v.

litigation be ascertained from the appellate

deeree. Gentry v. Pacific Live Stock Co.

\[Or.\] 77 P. 115. The findings and conclusions

with direction that plaintiff be permitted to

of the trial court form no part of the ap-

cure the defect as to misjolander of causes of

ellate decree unless made a part of it. Id.

7. Supreme Court of Honor v. Tracy

\[Neb.\] 101 N. W. 1021; John O'Brien Lumber

ed and allowed, the case remains pending in

Co. v. Wilkinson \[Vv.\] 101 N. Y. W. 1050; Curtis v. Zuatvern \[Neb.\] 102 N. W. 77. Non-

suit of plaintiff thereby sustained. Fulton

v. Grieb Rubber Co. \[N. J. Law\] 60 A. 37.

8. Seeton v. Dunbarton \[N. H.\] 69 A. 944.

That there is evidence of negligence to go to

jury. Zimmer v. Fox River Val. Elec. R. Co.

\[VWs.\] 101 N. Y. W. 1098. The rule applies only

where the facts remain the same. Midland

steel Co. v. Citizens' Nat. Bank \[Ind. App.\] 72 N. E. 290. A holding that plaintiff's

evidence entitled him to go to the jury is not

conclusive that he will be so entitled on

retrial, that question depending on the evidence then Introduced. Hartley v. Chicago

& A. R. Co., 214 Ill. 78, 78 N. E. 398.

89. Empire State-Idahn M. & Developing

Co. v. Hanley \[C. C. A.\] 136 F. 99.

1. Tyndale v. Stanwood \[Mass.\] 73 N. E.

1. Where a final decree was not entered

in the lower court after decision on review,

the supreme judicial court will order the entry of such decree as the rescript calls for

to complete the record. Id.

2. After receipt of the remittitt by the court below the plaintiff in term time or

vacation may dismiss his suit. Where Judgment for plaintiff reversed. Atlanta, etc.,

R. Co. v. Wilson \[Ga.\] 47 S. E. 366.

4. In equity persons not parties to the

suit havings an interest therein may be

made parties by an amended pettition upon

the cause being remanded. Bolsen v. Barber

Asphal Pav. Co. \[Ky.\] 82 N. W. 971.

5. A ruling that the evidence was not

sufficient to support the dec 5 Cur. Law. $;\\ motion, order a rehearing of the case.19 The mere fact that the justices are evenly divided in opinion as to what should be the judgment in a case, as a result of which the judgment of the lower court is affirmed by operation of law, is no reason for granting a rehearing.20 The grounds should appear on the face of the petition.23 Under a rule of court providing that the time for serving a petition for a rehearing on the adverse party shall not be extended, a petition not served will be disregarded.22 Rehearing may be refused by correcting error.23 In Illinois a motion for rehearing containing any argument whatever will be stricken from the files without consideration.24 A court will of its own motion strike from its records a motion and brief which contain personal criticisms of members of the court or of its commissioner and of his character and motives in the performance of his official duties.23 The appellate division on reargument will overrule its prior decision where, since making it, the court of appeals has decided a similar case adversely.20 On petition for rehearing the judgment of the appellate court may be amended so as to include a reversal of an erroneous interlocutory order and rehearing denied.27

SS 17. _Liability on bonds and damages or penalties for delay.28_--An undertaking invalid under the statute may be enforceable as a common-law obligation.29 A bond conditioned for the payment of condemnation money, judgment and costs found against appellant on final determination in the supreme court is good and enforceable, though the supreme court merely affirmed the judgment rendered below.30 As against the sureties, the dismissal of the appeal operates as an affirmance.31 Prouring the modification of a decree is a "prosecution to effect."32

_Extent of liability.33--A surety on an appeal bond in a claim case, where claimant is appellant, is liable not only for costs and any damages that may be assessed for a frivolous appeal, but also for any damages that may be assessed against claimant in the event that it is determined that the claim was interposed for delay only.34_

An appeal bond in an election contest, conditioned that appellant will perform the judgment if affirmed, renders the surety simply liable for the surrender of the office if the judgment is affirmed.33

**19, 20.** Seaboard Air Line R, v. Jones \[Ga.\] 47 S. E. 320. The provision of the constitution of Virginia requiring rehearing rehearing arefore the full bench in case of a division of opinion refers only to cases involving the constitution. Funkhouser v. Spahr \[Va.\] 48 Y. S. E. 378.

**21.** Rehearing should not be asked as to matters which have been determined and connected by counsel to be supported by authority. Collins v. Metropolitan Life Ins, Co. \[Mon.\] 80 P. 1092.

**22.** Brooks v. Union Trust & Reality Co. \[Cla.\] 79 S. 843.

**23.** Rehearing verdict. Schoppel v. Daly \[La.\] 36 So, 322.

**24.** Rule 30. Chicago City R. Co. v. O'Donnell, 180 Ill. 267, 70 N. E. 477.

**25.** Fred Krug Brewing Co. v. Healey \[Neb.\] 101 N. W. 329: Stoll v. Pearl \[Vis.\] 190 N. V. 1054.

**26.** Walsh v. Hansen, 87 N. Y. S. 930.

**27.** Indian River Mfg. Co. v. Wooten \[Vla.\] 37 No. 731.

**28.** See 3 C. L. 299. Necessity and sufficiency of security on appeal is treated ante, $ 6 (G).

5 Cur. Law. APPEAL AND REVIEW $ 17.

The question as to what damages were within the contemplation of the parties when a supersedeas bond was executed is one of law for the court," to be determined from the bond itself and the circumstances under which it was given." The testimony of the sureties as to the nature of the damages which they understood it would cover is irrelevant."

A bond given in an attempted appeal from an order awarding a writ of assistance in a mortgage foreclosure proceeding, conditioned for the payment of rent, is valid, as a contract, where the obligor has, by reason of the bond, retained possession of the premises pending the appeal." Where the bond sued on recites the judgment, it need not be introduced in evidence in an action thereon."

_Bights and liabilities of sureties._"--Sureties are entitled to appear and interpose any defense which they may have to the rendition of a judgment against them on the bond after affirmance." Though not parties to the suit, they are parties to the record on appeal and are not entitled to notice of a motion for judgment on the bond on affirmance." Any defense operating to prevent the affirmance of the judgment superseded must be there urged and cannot be used to defeat recovery on the bond."

Where the complaint does not allege that the undertaking was sealed, the sureties may raise the defense of want of consideration, though it is not pleaded;" but if, on the undertaking being produced, it appears to be sealed, the burden is on the sureties to rebut the presumption of consideration arising from the seal."

A surety company which has retained the premium paid cannot dispute the authority of the officer or agent who signed the bond."

Sureties whose liability has become fixed prior to an adjudication in bankruptcy as to the principal remain liable even though the judgment becomes inoperative as to him."

On reversal appellant is entitled to collateral deposited with the surety."

_Forfeiture and enforcement._"--An appellate court having no jurisdiction to entertain the appeal has no jurisdiction to enter a judgment on the supersedeas bond." Summary judgment may be entered against the surety on a supersedeas bond in Idaho after notice."

_Damages and penalties for delay._"--Damages will in some states be awarded where a writ of error is sued out for delay only."

A statute providing for a recovery of ten per cent. damages on the amount superseded on the affirmance of a judgment for the payment of money, the collection of which has been superseded, does not apply where the only pecuniary relief afforded by the judgment was an award of the costs of the action."

\*\*36, 37.\*\*Waycross Air Line R. Co. v. Offerman man & W. R. Co. \[Ga.\] 47 S. E. 582. Damages for loss of freight held to have been within contemplation of the parties when the supersedeas bond was executed and to be covered by it. Z Evidence held to have demanded verdict for plaintiff, and court properly directed finding against exceptions of fact to auditor's report. Id.

\*\*38.\*\*Waycross Air Line R. Co. v. Offerman & W. R. Co. \[Ga.\] 47 S. E. 582.

\*\*39.\*\*Escritt v. Michalesson \[Neb.\] 103 N. W. 300.

\*\*40.\*\*Cleveland, etc., R. Co. v. Hamilton, 105 III. App. 75.

\*\*41.\*\*See 3 C. L. 299.

\*\*42, 43, 44.\*\*Jewett v. Shoemaker \[Iowa\] 100

**N. W. 531.**

\*\*45, 46.\*\*Gelin v. Little, 89 N. Y. S. 488.

\*\*47.\*\*Elchorn v. New Orleans, etc., R. Co. \[La.\] 38 S. 526.

\*\*48.\*\*Bankruptcy Act July 1, 1898, c. 541, $

**16; 30 St. 550; U. S. Comp. St. 1901, p. 3428**

\*\*56.\*\*Louis World Pub. Co. v. Rlatlo Grlan & Securities Co. \[Mo. App.\] 38 S. W. 781.

\*\*49.\*\*Jackson v. Lawyers' Surety Co., 88 N. Y. S. 576.

\*\*50.\*\*See 3 C. L. 299.

\*\*51.\*\*Montgomery v. Montgomery \[Ky.\] 80 S. W. 1108.

\*\*52.\*\*Empire State-Idaho Min. & D. Co. v. Hanley \[C. C. A.\] 136 F. 99.

\*\*53.\*\*See Mallicious Prosecution and Abuse of Process, 4 C. L. 470.

\*\*54.\*\*Where no sunflecint reason appears.

\*\*55.\*\*Civ. Code, $ 764. Oberdorfer v. White \[Ky.\] 80 S. W. 1099.

**APPEAANCE.**

**SS 1. General; Special; What Constitutes** **SS 2. Who May Make or Enter (249). Each (248).** **SS 3. Effect (249).**

**SS 1.** _General; special; what constitutes each. General appearance._\*\*1--\*\*The test for determining the character of an appearance is the relief asked; the law looking to its substance rather than to its form, or the name given it by the party appearing, and in a court of record the character of the appearance is to be determined by the record as it stands at the time the appearance is made.**3** An appearance for any other purpose than to question the jurisdiction of the court is general,**4** and in some states an appearance is presumed general unless otherwise specified.**5** By demurring,**5** seeking permission to file au answer,**7** moving to vacate a judgment,**8** or by making a written stipulation as to the date of trial,**9** one enters a general appearance. But the execution of an attachment bond,**10** or of an affidavit of nonresidence,**11** or the filing of a petition for removal from a state to a Federal court,**12** does not have that effect. One appearing specially must confine himself to the objections relating to the jurisdiction over his person, or his appearance will become general.**13** An amended petition reiterating the averments of the original petition and setting up a new cause of action, an answer expressly stating that it is to the original petition does not constitute an appearance to that portion of the amended petition which sets up the new cause of action.**14**

_Appeal._\*\*15--\*\*An appeal operates as an appearance which will permit the court below, after reversal, to proceed with the case.**16**

_Special appearance._\*\*17--\*\*The service of process being invalid, the defendant may appear specially and defeat the jurisdiction of the court.**18** In most states a special appearance is waived unless all subsequent appearances are so limited;**19**

**1. See 3 C. L. 300.**

**2. Scott v. Mutual Reserve Fund Life. Ass'n \[N. C.\] 50 S. E. 221.**

**3. It is unnecessary to make the order, ple \_nr_motion expresely state that the _nr_-parameter is only for the purpose of excepting to the jurisdiction. M. Fisher, Sons & Co. v. Crowley \[W. Va.\] 50 S. E. 422.**

**4. Scott v. Mutual Reserve Fund Life. Ass'n \[N. C.\] 50 S. E. 221.**

**13. Perrine v. Knights Templar & Masons'**

**LyLyces the merits, or the motion Inclive. Lechter, 24 Apr. D. C. 222; Ray 1d. An unlimited or unwindled _navenne_ is general. S-vannish Grocery Co. v. Rix'r \[IS. C.\] 50 S. E. 199.**

**5. Larsen v. Allan Line S. S. Co. \[Wash.\] 80 P. 181.**

**6. Priyn v. Black, 93 N. Y. S. 95; Seydel v. Corporation L'ordinating Co., 88 N. Y. S. 1004; Shafer v. Fry \[Int.\] 73 N. B 698; Sayre & Fisher Co, v. Griefen \[N. J. Law\] 60 A. 513.**

**7. Defendant moving to vacate a default judgment upon jurisdictional grounds and asking permission to file an answer makes * general appearance. Simensen v. Simensen \[N. D.\] 100 N. W. 708.**

**8. Scott v. Mutual Reserve Fund Life. Ass'n \[N. C.\] 50 S. E. 221.**

**9. A written stipulation, signed by consel for both parties and filed in court, agreeing that the cause might be set for trial on a certain date, constitutes an unlimited appearance. Markey v. Louisiana & M. R. Co., 185 Mo. 348, 84 S. W. 61.**

**10.** Hillion v. Consumers' Can Co. \[Va.\] 48 S. E. 89.\*\*

**11.** Dexter v. Lichliter, 24 App. D. C. 222.\*\*

**12.** Gebble & Co. v. Review of Reviews Co., 134 F. 150.\*\*

**13.** Perrine v. Knights Templar & Masons' Life Indemality Co. \[Neb.\] 101 N. W. 1017; Dexter v. L'ichlitter, 24 App. D. C. 222; Ray 1d. An unlimited or unwindled _navenne_ is general. S-vannish Grocery Co. v. Rix'r \[IS. C.\] 50 S. E. 199.\*\*

**5.** Larsen v. Allan Line S. S. Co. \[Wash.\] 80 P. 181.\*\*

**6.** Priyn v. Black, 93 N. Y. S. 955; Seydel v. Corporation L'ordinating Co., 88 N. Y. S. 1004; Shafer v. Fry \[Int.\] 73 N. B 698; Sayre & Fisher Co, v. Griefen \[N. J. Law\] 60 A. 513.\*\*

**7.** Defendant moving to vacate a default judgment upon jurisdictional grounds and asking permission to file an answer makes * general appearance. Simensen v. Simensen \[N. D.\] 100 N. W 5 Cur. Law. APPEARANCE SS 3. but a motion made on special appearance being overruled and defendant excepting, his subsequent appearance to the merits waives none of his rights.20 In New York a party may appear specially in an action in a manner other than as specified for a general appearance by a defendant in SS 431 of the Code of Civil Procedure.21

SS 2. _Who may make or enter.22_--An appearance may be made by a duly authorized attorney23 or by his agent,24 and a general or special appearance by an attorney at law is presumptive evidence of his authority to so appear.25 Appearance as a witness is not an appearance as a party.24

SS 3. _Effect.27_--A general or voluntary appearance confers jurisdiction of the person28 and waives a lack of,29 or any defect in,20 the process or the service thereof.21 In condemnation proceedings it waives any question as to the sufficiency of the publication of notice.22 The general appearance of defendant in a state court does not operate as a waiver of his right to remove to the Federal courts.23 A general appearance does not relate back so as to validate void proceedings theretofore had.24

Under a statute requiring that the answer be filed within a specified time, a special appearance for the purpose of moving to quash the service of summons does not extend the time for answering.25 Joint debtors being sued as partners, a special appearance by one of them to have the proceedings dismissed because he was not a partner is not equivalent to a plea in abatement requiring replication and proof by plaintiff to meet it.26 A motion to dismiss on the ground that process was not served does not amount to an appearance waiving the objection.27

20. Fisher, Sons & Co. v. Crowley \[W. D.\] 100 N. W.. 708; Shafer v. Fry \[Ind.\] 73 N. Va.\] 50 S. E. 422. E. 698; Sayre & Fisher Co. v. Grafen \[N. J. Law\] 60 A. 513. Waives the right to plead to the jurisdiction. Markey v. Louis-laona & M. R. Co., 185 Mo. 348, 84 S. W. 61. Under Municipal Court Act, SS 311, authoring an appeal if defendant does not appear, a defendant who has appeared does not obtain the right to appeal by afterward permitting judgment to go against him by de-fault. Kerr v. Walter, 93 N. Y. S. 311. alive, the appearance for "the defendant" of an attorney who expressly repudated any appearance for the trustee of J. could not confer jurisdiction to substitute the trustee as defendant or render judgment against him. McNamara v. Vanderpoel, SS 18 N. Y. S. 145. Counsel authorizing a person not add. mited to practice to appear on the return day, he cannot afterwards contend that there was no appearance. Kerr v. Walter, 93 N. Y. S. 311.

01. Cutting v. Jessmer, 91 N. Y. S. 658.

01. Where a summons issued simply against "the estate of J." the testimony of a witness that he was a trustee of J. and was there to defend the action was not a voluntary appearance as a defendant, either in an individual or representative capacity. McNamara v. Vanderpoel, SS 8 N. Y. S. 146.

01. See 3 C. L. 302.

01. Globney v. Cooper \[W. Va.\] 49 S. E. 935; Stamey v. Barkley \[Pa.\] 60 A. 991; Sa-vanah Grocery Co. v. Rizer \[S. C.\] 50 S. F. 193. Waives all objections thereto. Greenwood Loan & Guarantee Assn v. Williams \[B. C.\] 61 S. E. 272; Perrine v. Knights Templar & Masons' Life Indemnity Co. \[Neb.\] 101 N. W. 1017; Simensen v. Simensen \[N.\] 250

ARBITRATION AND AWARD SS 1. 5 Cur. Law.

5. 5. 5.

submit all matters in dispute to arbitration, may be revoked by either party at any time before the award.\[53\]

\_Who may make.\[54\]--\_A married woman may submit to a common-law arbitration, where by statute she is given complete power to contract with relation to her own property, though excepted by the statute from those who may make a statutory submission.\[55\] but not with reference to real estate.\[56\] An agent to collect and settle a claim has no power to submit the matter to arbitration.\[37\] An agreement by an infant to submit to arbitration is voidable.\[56\]

_Effect.\[59\]_

SS 3. \_The arbitrators and umpire.\[50\]--\_The submission must be made to the persons agreed upon,\[51\] and upon failure of any of such persons to act, the others have no power, without the consent of both parties, to select a third person in place of person so refusing.\[52\] Failure of the arbitrator agreed upon in a contract to act, after submission,\[63\] or failure of the arbitrators to agree, refusal to act or death of a party, arbitrator or umpire, nullifies the arbitration agreement and the jurisdiction of the court attaches,\[54\] and in the absence of an agreement thereto, the court possesses no power to compel the parties to select other arbitrators.\[65\]

SS 4. \_Hearing and procedure before arbitrators.\[56\]--\_The appraisement must be made within the time named, or within a reasonable time.\[67\] A party may in the presence of the other deliver to the arbitrators a statement showing his contention as to how the account should be settled.\[68\]

SS 5. \_The award; requisites, validity and effect.\[69\]--\_The award must conform to the submission and cover all matters submitted,\[69\] and may be made in the alternative.11 The general rule is where a dispute is submitted by private agreement to a stated number of arbitators, all must join in the award to give it effect.72 The award of arbitrators in a common-law arbitration is conclusive, in the absence of such fraud or gross mistake or unfair conduct as would justify the court in setting it aside.73 When an award has been made, signed and delivered by the arbitrators, their authority is terminated;74 but an invalid award does not end the submission.75 It is a general rule that a valid award operates to merge and extinguish all claims embraced in the submission and is binding upon the parties.76

Footnote 73: The author is grateful to the anonymous referee for the between common-law awards which can be impeached only for matter apparent on their face and statutory awards which may be impeached for extraneous grounds.\[82\] The award of an arbitrator cannot be set aside for mere error of judgment as to the law or facets of the case submitted to him,\[83\] or for error in the rejection or admission of evidence,\[84\] or on merely technical grounds in no wise affecting the merits, where it is apparent the utmost good faith has been observed.\[85\] In appellate review of a judgment on an award, the findings of the arbitrator have the same standing as those of a court or jury.\[86\] Upon review of an award of arbitration, the court has the same power to decree payment of interest as in an ordinary case.\[87\] The burden is on the adverse party to show facts that would relieve him from its legal effect.\[88\] An award cannot be impeached for fraud in a court of law.\[89\]

## 6 International disputes.\[80\]

### 7. Statutory arbitration between employers and employees.\[81\]

ARCHITECTS, see latest topical index.

### ARGUMENT AND CONDUCT OF COUNSEL.

**SS 1. Right of Argument and Order of**

**SS 4. Execuses for Impropriety (261).**

**SS 2. Opening Statement (255).**

**SS 3. Kind, Serrent, and Mede of Argument**

**SS 4. Action of Court or Counsel Caring**

**or Comment During Trial (256).**

1 Right of argument and order of same.\[92\] As a general rule the right to open and close the argument rests with the party having the burden of proof.\[83\]

\*\*E. 132. The burden of proof in the whole action lies upon the party who would be defeated If no evidence were given on either side, and hence he has the right to close the argument. Civ. Code Prac. $ 526. One ex-

**SS 1.**: _Right of argument and order of same.\[92\] As a general rule the right to open and close the argument rests with the party having the burden of proof.\[83\]_

\*\*E. 132. The burden of proof in the whole action lies upon the party who would be defeated If no evidence were given on either side, and hence he has the right to close the argument. Civ. Code Prac. $ 526. One ex-

In some states defendant is given the right when he admits the plaintiff's cause by the pleadings, and takes upon himself the burden of proof,\[94\] or when he admits it of record, except in so far as defeated by proof of the facts alleged in the answer.\[95\]

Statutory provisions regulating the right to open and close do not take away all the discretionary power of the court as to argument,\[96\] and his exercise of such power will not be interfered with, except in extreme cases.\[97\] Some courts hold that defendant cannot, as an absolute right, deprive plaintiff of his right to close by such waiver, but that the matter is largely discretionary.

There is a conflict of authority as to the effect on the right to make a closing argument of a waiver of argument by opposing counsel.\[98\] Others hold that the allowing of additional argument is prejudicial error.\[99\]

It is not improper, where plaintiff is represented by three attorneys and defendant by two, to permit the argument to the jury to proceed by alternate arguments for plaintiff and defendant, beginning and ending with an argument for plaintiff.\[1\]

Deriving a party, having the burden of proof, of final argument, is generally held to be a deprivation of a substantial right necessarily affecting the judgment\[2\] and reversible error,\[3\] though in some states no reversal will be granted unless prejudice is clearly shown.\[4\]

_Limiting argument.\[5\]_--The court may limit the time allowed for argument

\\begin{tabular}{l|l}
\\begin{tabular}{l} murrer to a petition for injunction and the \\ appointment of a receiver is considered at \\ the interlocutory hearing when the evidence \\ and the entre case is heard for the purpose of determining whether the plaintiff is \\ entitled to equitable relief, plaintiff is \\ titled to open and close on the whole case, \\ and it is not error to refuse to allow defendant to open and conclude the argument on \\ the demurrer. Boston Mercantile Co. v. \\ Ould-Cartor Co. \[Ga.\] 51 S. E. 466. In Iowa \\ the question as to which party is entitled \\ to open and close is not to be determined \\ until after all the evidence has been received. Party "then" having the burden of \\ the issue has the right. Code, $ 3701. Shaffer vs. De Moines Coal & Hay Co., 12 Iowa, \\ $ 33, 98 N. W. 111. In determining which \\ party has the burden of proof, only issues \\ which are for the determination of the jury \\ are to be considered. Not issues made by \\ the pleadings which are without support in \\ the evidence or established by the evidence \\ without any conflict. Id. For a discussion \\ of the right to open and close in equity, see \\ Fletcher's Eq. Pl. & Pr. $ 692, p. 710. Argument of motions. Id., $ 421, p. 441. \\
**94**. The fact that counsel stated that he \\ assumed the burden of proving the affirmative of an issue in the case, in no wise alters the status fixed by the pleadings. Cir. \\ Ct. Rule 59. Kennington v. Cateo, $ 8 S. C. \\
470, 47 S. E. 719. Must, by admissions In his \\ answer, make out a prima facie case for \\ plaintiff, and thus relieve him from the necessity of introducing evidence. Oral ad- \\ missions insulficient. Du Bignon v. Wright \\
\[Ga.\] 50 S. E. 65. Defendant held to have \\ right. Atlanta Suburban Land Corp. v. Austin \\
\[Ga.\] 50 S. E. 124. \\
**95**. Tex. Co. Ct. Rule 21 (67 S. W. xxixixi). \\
**96**. L. R. Co. v. Hoffman, $ 44. \\
**97**. Judgment will not be reversed for \\ refusal of court to permit plaintiff to make \\ closing argument after defendant waives his \\ right of argument, where record does not \\ show anything to prevent opening argument \\ from having been made as complete as possible, and there is nothing but speculation \\ to indicate that verdict would have been \\ different under any argument. Conrad v. \\ Cleveland, etc., R. Co. \[Ind. App.\] 72 N. E. \\
**98**. Conrad v. Cleveland, etc., R. Co. \[Ind. App.\] 72 N. E. \\
**99**. Head prejudicial error to allow other \\ counsel to further address the jury for plaintiff, even though the one first speaking did \\ not use all the time allted to him. Arguments limited to one hour on each side and \\ first speaker oceupled but thirty minutes. \\ St. Louis, etc., R. Co. v. Vanzego \[Kan.\] 80 \\
**94**. P. 94. \\
**10**. Stevens v. Friedman \[W. Va.\] 51 S. E. \\
**11**. & Stevens v. Friedman \[W. Va.\] 51 S. E. \\
**12**. Kennington v. Cateo, $ 8 S. C. 470, 47 \\
**13**. Ashland & C. St. R. Co. v. Hoffman, $ 26 \\ Ky. L. R. 778, $ 8. W. 566; Mattingly v. \\ Shortell \[Ky.\] 85 S. W. 215. \\
**14**. Shaffer v. Des Moines Coal & Hay Co., \\
**15**. & Rose $ 323, 98 N. W. 111. \\
**16**. See $ $ C.

within reasonable bounds,\* and his action will not be disturbed unless abuse of his discretion is shown.\* A liberal allowance should, however, be made.\*

\*\*SS 2. Opening statement.\*--\*\*Counsel may make an opening statement, or not, at his own election.10 As a general rule, when made, it should be confined to a statement of the party's claims and the evidence by which he expects to prove them.11 Where the statute specifically provides what may be stated, counsel may not, as of right, make any other statements.12 The latitude to be allowed, however, except in so far as controlled by statute, is largely in the discretion of the trial court, and its action should be upheld except for illegal or gross abuse of discretion.13

Footnote 10: The author is grateful to the anonymous referee for the support of this paper.

The pleadings and not the opening statements make the issues.14 Hence the statement of plaintiff's counsel need not necessarily include all the facts essential to recovery,15 nor need those referred to be stated with exactness,16 and the court is not authorized to take the case from the jury or to render judgment upon such statement unless some fact is clearly stated, or some admission clearly made, which evidence relevant under the pleadings cannot cure, and which, therefore, necessarily and absolutely precludes recovery.17

**6. Ray v. Pecos & N. T. R. Co. \[Tex. Civ. \[ to refuse to allow him to state his theory App.\] 88 S. W. 466. Reasonable time must**

be allowed counsel, all the circumstances

guel Consol. Gold Min. Co. v. Bonner \[Colo.\] considered. It should not be consumed by

79 P. 1025.

colloquys and interruptions. Neumann v.

\*\*13. Even if had right to state his theory

St. Louis Transit Co. \[Mo. App.\] 84 S. W. 189.

of law in opening address, it was a disrecen-

Where the time allotted to either side for

argument was 15 minutes and where inter-

ference by the court and opposing counsel

ing shown. San Miguel Consol. Gold Min.

is accompanied by so much discussion as to

Co. v. Bonner \[Colo.\] 79 P. 1025. The fact

consume a large part of time allotted, it is

the argument does not proceed in the

reversible error not to grant further time.

order prescribed by the statute is not nec-

Id.

essarily ground for reversal. The fact that

7. Counsel cannot complain that time was

in a will contest, counsel for propounders

unequally distributed, where made no ob-

first read the will to the jury and stated

jecti n to allowance, but closed after argu-

that it had been executed in the presence of

ing for 35 minutes of the hour allowed him,

witnesses, and that unless contestants show-

stating that the did not have sufficient time

ed that testator was of unsound mind or had

to present his case as he wished to, without re requesting more time. Ray v. Pecos & N. T. R. Co. \[Tex. Civ. App.\] 88 S. W. 466.

the case to the jury, and that counsel for

Unless it can be said from review of

evidence that time allowed was manifestly too

sshort. Hanself-Elcock Foundry Co. v. Clark,

214 Ill. 399, 78 N. E. 787.

**14.**

**15.**

**16.**

**17.**

\*\*18.

Statements at variance with the pleadings may be excluded on motion,\[18\] or they may be taken as admissions for the purposes of the trial.\[19\]

SS 3. _Kind, extent, and mode of argument or comment during trial.\[20\]_

_Use of pleadings and other writings belonging to the case.\[21\]_--The practice of reading the petition to the jury in the opening statement is not to be commended, but unless prejudice is shown the discretion of the trial court over such matters will not be interfered with.\[22\]\_

_Remarks during trial.\[23\]_--It is improper to persist in attempts to get matters which have been excluded before the jury\[24\] or to persistently override\[25\] or refuse to acquiesce in the rulings of the court,\[26\] or to attempt to introduce collateral matters by suggestive questions.\[27\]\_

Statements of counsel to the court as to what he can prove in asking certain questions which the witnesses are not permitted to answer are not improper, where the jury are informed that they cannot consider such statements as evidence.\[28\]\_

_Comments on witnesses.\[29\]_--Counsel may arraign the conduct of the parties, and impugn, excuse, justify or condemn motives, so far as they are developed by the evidence;\[30\] but it is improper to discredit an adversary's witnesses by voluntary statements of damaging facts not in evidence.\[31\]\_

that the court is warranted in rendering

to instruct jury to disregard it, still per-final judgment upon it. Failure to state

visited that his action was proper. Hugh's v. cease more fully is no justification on for withdrawing. He ding v. Re ding v. Re ding v.

5 Cur. Law. ARGument AND CONDUCT OF COUNSEL SS3. 257

It is not improper to comment on the failure to call certain witnesses \[32\] or to procure certain evidence. \[38\]

\_Comments on evidence, and scope of argument in relation thereto. \[34\]--\_Counsel may comment on the evidence in the case, \[35\] and may draw fair inferences therefrom, \[36\] but must confine his remarks strictly to the evidence and the arguments

have the case made up for them, and they

periment, have determined within what disallow each other and swear to it," or which

tance they could have stopped the train there was no proof. Chicago, etc., R. Co., v.

"and brought their witnesses here and had Jones \[Tex. Civ. App.\] 81 S. W. 60. Attacking witness in argument not reversible error

lin V., Wabash R. Co., 184 Mo. 695, S3 S.

where there is some evidence justifying it

,

"
,

"
,

"
,
"
,
"
,
"
,
",

258 ARGUMENT AND CONDUCT OF COUNSEL SS3. 5 Cur. Law.

of opposing counsel. \[87\] Thus, he may not state as a fact matter pertinent to the issues which is not in evidence, \[38\] state what the evidence of absent witnesses would have been, \[29\] discuss evidence which has been withdrawn from the jury, \[40\] or refer to offers of compromise, \[41\] other similar accidents, \[42\] or actions, \[43\] the result of a previous trial, \[44\] or his own professional experience. \[45\] He may, however, in-

544, 82 S. W. 271. In a contest it was \[Oiney v. Boston & M. R. Co. \[N. H.\] 59 A. for counsel for the propounders to state \[$87\]. The admission of unsworn statements that contestants were not shown to have \[$16\] of irrelevant facts in argument is as fatal \[$16\], \[$28\], \[$30\], \[$40\], \[$41\], \[$42\], \[$43\], \[$44\], \[$45\], \[$46\], \[$47\], \[$48\], \[$49\], \[$50\], \[$51\], \[$52\], \[$53\], \[$54\], \[$55\], \[$56\], \[$57\], \[$58\], \[$59\], \[$51\], \[$52\], \[$54\], \[$57\], \[$58\], \[$59\], \[$50\], \[$51\], \[$52\], \[$53\], \[$54\], \[$55\], \[$56\], \[$57\], \[$58\], \[$59\], \[$52\], \[$54\], \[$59\], \[$53\], \[$54\], \[$56\], \[$57\], \[$58\], \[$59\], \[$50\], \[$51\], \[$52\], \[$54\], \[$58\], \[$59\], \[$50\], \[$52\], \[$53\], \[$54\], \[$56\], \[$57\], \[$58\], \[$59\], \[$50\], \[$51\], \[$52\], \[$54\], \[$59\], \[$51\], \[$53\], \[$54\], \[$56\], \[$57\], \[$58\], \[$59\], \[$50\], \[$52\], \[$59\], \[$53\], \[$54\], \[$58\], \[$59\], \[$50\], \[$53\], \[$54\], \[$59\], \[$51\], \[$52\], \[$54\], \[$56\], \[$57\], \[$58\], \[$59\], \[$51\], \[$52\], \[$53\], \[$54\], \[$59\], \[$52\], \[$55\], \[$56\], \[$57\], \[$58\], \[$59\], \[$50\], \[$51\], \[$52\], \[$53\], \[$54\], \[$59\], \[$51\], \[$52\], \[$54\], \[$56\], \[$57\], \[$58\], \[$59\], \[$59\], \[$50\], \[$51\], \[$52\], \[$53\], \[$54\], \[$59\], \[$52\], \[$54\], \[$59\], \[$53\], \[$55\], \[$56\], \[$57\], \[$58\], \[$59\], \[$59\], \[$50\], \[$51\], \[$52\], \[$54\], \[$59\], \[$51\], \[$52\], \[$53\], \[$54\], \[$56\], \[$57\], \[$58\], \[$59\], \[$59\], \[$50\], \[$52\], \[$59\], \[$51\], \[$52\], \[$54\], \[$59\], \[$53\], \[$54\], \[$56\], \[$57\], \[$58\], \[$59\], \[$59\], \[$51\], \[$52\], \[$54\], \[$59\], \[$52\], \[$53\], \[$54\], \[$56\], \[$58\], \[$59\], \[$51\], \[$52\], \[$54\], \[$59\], \[$53\], \[$54\], \[$56\], \[$57\], \[ 5. Cur. Law. ARGUMENT AND CONDUCT OF COUNSEL SS3. 259

dulge in oratorical flourishes,\[46\] and may draw upon the facts of history to illustrate a thought or point in his argument.\[47\]

_Appeals to passion, prejudice and sympathy.\[48\]_--Appeals to the jury on considerations other than the merits of the case,\[49\] or the use of language or arguments calculated to arouse their passion and prejudice against the opposite party, are improper.\[50\] Thus, it is improper to appeal to them to. give plaintiff punitive damages when he is not entitled thereto,\[51\] or to state that the amount claimed would not compensate counsel for the injuries complained of,\[52\] or inquire of jurors

Arguments held improper: Statement of and which must have been made for the counsel that he was satisfied at and of for-mer trial. Chicago Union Traction Co. v. \[etc., R. Co. v. Rehm \[Tex. Civ. App.\] 82 B. W. Lawrence, 211 III. 373, 71 N. E. 1024. Ref. \[58\].

erence to fact that case was previously re-

S1. Statement that corporations must be versed on a technicality, and that defendant

made to obey the law, like other people, was preparing to obtain another reversal,

and that the only way to do it was to punish improper. Illinois Cent. R. Co. v. Jolly \[KF.\] 84 B. W. 320. On appeal to call at-

could not be indicted and prosecected like

tention to the verdict of the jury in an-other coup. On objection that this was a

other court. Field harmless, because ver-

mistatement of the law, he stated they

dict for plaintiff was inevitable. Beatty V. could be indicted but not imprisoned, and

Clarkson \[Mo. App.\] 83 B. W. 1033. Where

that he did not ask a verdict because de-

question before jury was whether plaintiff

fondant was a corporation but that both

was in fact negligint, held error to read

parties were equal before the law. Field.

from opinion on former appeal a diseus-

legitim argument. Tuvtwiler Coal, Coke

sion as to whether, on the facts then pre-

& Iron Co. v. Nait \[Ala.\] 37 B. 684.

sented, plaintiff was negligint as a matter

Arguments held improper: Claim

for law. Olney V. Boston & M. R. Co. \[N. H.\]

exemplary damages. Chicago Union Trac-

59 A. 387. To read from a former decision

tion Co. v. Lauth \[Ill.\] 74 N. E. 738. State-

to the jury and insisting upon his right to

ment that income from $5,000, especially

do so after objection there has been sus-

after deducting expenses of Higgation, would

tained. Hughes v. Chicago, etc., R. Co. \[Wi\]. 99 N. W. 897.

on. Vipend, 212 III. 192, 72 N. E. 22. In

45. Lee V. Dow \[N. H.\] 59 A. 374.

sult for damages for alleged negligint kill-

46. Remarks that defendant's servants

ing, statement that "there is no recompense

would have handled a ear load of steers

that can in any way compensate a father

with more care than they did plaintiff, held

mer rhetorical flourish and not beyond the

that jury should give punitive damages.

limits of forensic debate. West v. St. Louis

held cause for reversal. Chicago City R.

S. W. R. Co. \[Mo.\] 86 S. W. 140.

C0. v. Math, 114 III. App. 350. Asking the

47. Not reversible error for counsel for

jury to bring in such a verdict as would

plaintiff, in action against railroad for per-

teach defendant and all similar corporations

sonal injuries, to state that statistics

that their railroads must be run with some

nished by the interesting commence commn-

regard to the safety of human life and limb.

sion showed that 60,000 persons were killed

constitutes reversible error when unre-

or crippled by railroads during past year,

buked and uncorrected by the court after

and that evidence showed that defendant

attention has been called to it. Kinne v.

was reckless or careless, in reply to re-

International R. Co.; 90 N. Y. S. 930. In

marks of defendants' counsel in regard to

sult for personal injuries received at rail-

carefulness of engineers, at least when no

prejudice shown. Illinois.Cent. R. Co. v.

Ide was interested in case, and that jury

Golly \[KF.\] 88 B. W. 536.

sold return verdict so large that it would

48. See 3 C. L. 309.

be to interest of defendant to keep watch-

49. St. Louis S. W. R. Co. v. Boyd \[Tex. Civ. App.\] 88 B. W. 509.

evidence that any one else had ever been

50. Himrod Coal Co. v. Beekewith, 111

injured there through failures to have such

III. App. 379. Argument effective in arous

watchman, and there being a conflict of

ing passion and prejudice is wholly

defendant's negligence. St.

sible, how much they would take for similar injuries,\[83\] to contrast the poverty of plaintiff and the wealth of defendant,\[64\] to appeal to race prejudices,\[85\] or the prejudice against corporations,\[86\] to state that carriers are accustomed to disregard the rights of the public,\[87\] to refer to the fact that defendant is insured and that any damages will be 'paid by the insurance company,\[88\] or to refer to the probability of an appeal.\[89\]

Mere abuse is also improper,\[90\] but remarks not amounting to a misstatement of a material fact, but which are rather the venting of offensive epithets, are not ordinarily a ground for reversal.\[61\] The court should, however, correct them as a breach of decorum and an offense against its dignity.\[92\]

_Statements of law and reading from decisions or papers pertinent to other cases.\[83\]_--The suggestion of erroneous views of the law by counsel is fatal error unless extracted by the charge.\[64\]

The practice of allowing counsel to read lawbooks to the jury is dangerous and should not be permitted.\[65\] The court may and should refuse to allow it when

not have suffered the injury complained of

ask for a verdict because defendant was an for $25,000. Chicago Union Traction Co. v. irritation company, though such corporations had swindled people dealing with

I.auth \[III\]. 74 N. E., 788.

G3. In suit for death of child by wrong-

them, and that defendant was no better than

ful act, reference to sufferings of parents,

other corporations, constitutes reversible er. and as to how much jurors would take un-

ror. Colorado Canal Co. v. Sims \[Tex. Civ. der similar circumstances. Excessive dam-

App.J 82 S. W. S51.

sges reduced. McDonald v. Champion Iron

$7. Statement that railroad corporations

& Steel Co. \[Mich.\] 12 Det. Leg. N. 208,

ignore rights of citizens, kill and main them

108 N. W. 899.

$4. Hlmrod Coal Coal Co. v. Beckwith, 111

ployes to swear them through. Wabash R.

Ill. App. 879. Telling jury of plaintiff's

Co. v. Billings, 212 Ill. 37, 72 N. E. 2. Could

poverty and seekings to prejudice them

not be made subject of proof or assumed as against defendant corporation. Illinois Cent.

matter of common knowledge. Remark that,

R. Co. v. Seltz, 111 Ill. App. 242. Reference

carrier corporations are accustomed to pro-

to plaintiff's poor clothing. McKee v. St.

eed without regard to the rights and feel-

Louis Transit Co., 108 Mo. App. 47, 83 S. W.

ings of those with whom they deal, held

1013. Statement that juries would not allow

proper, but not so flagrant as to constitute

corporations to rob poor men of their labor,

ground of appeal in absence of objection.

and the case at bar involved scheme to beat

Levidow, V. Starin \[Conn.\] 60 A. 123.

plaintiff out of his labor. Fit Smith Lumber

$8. Reversible error to persist in attempt

Co. v. Catney \[Ark.\] 86 S. W. 806.

to get it before jury. Long Star Brew, Co.

$5. Reference to execution creditor as a

Jew without a consequence "who would take

$5. Statement that jury should not give

the last thing you had." Day v. Ferguson

small verdict on theory that defendant would

\[Ark.\] 85 S. W. 771.

$6. Comments on power of brewing com-

appeal anyway. Quirk v. Rapid R. Co.

panies in city government and their treat-

\[Mich.\] 100 N. W. 815.

ment of saloon keepers. Jung v. Theo-

60. Is not argument. Chicago Union Trace-

Hamm Brew. Co. \[Min.\] 104 N. W. 233.

tion Co. v. Lauhn \[III.\] 74 N. E. 788. State-

Reference to defendant as a rich corpora.

ment that defendant "did not have the

tion. Chicago Union Traction Co. v. Lauhn

ency of a rattisanke." Id.

\[III.\] 74 N. E. 788. Seeking to inflame jury's

$1. Statement that counsel was tricked

passions against defendant corporation. Il-

linois Cent. R. Co. v. Seitz, 111 Ill. App. 242.

by it, and that a certain witness was a per-

In a personal injury action, held reversible

jurer and a villan, not ground for reversal,

for counsel for plaintiff to state in his

though not justified by the record. Franklin

closing argument that the defendant was a

v. St. Louis, etc. R. Co. \[Mo.\] 87 S. W. 930.

sulless corporation, making millions of

dollars a day, and to offer to give defend-

and approbrows remarks, calculated to result

ant's counsel $2.50 to let him tell the story

of how defendant treated a widow in another

etc. R. Co. \[Mo.\] 87 S. W. 930.

er suit against it, and further state that he

crossed the company's tracks every day,

64, Union Pac.

objected to."60 Allowing the reading of good and pertinent law is not ground for reversal,"67 but the contrary is true in case it is bad or not pertinent, unless the error is cured by instructions propounding the sound law on the very points to which such bad law relates."88 So, too, it is generally held to be reversible error to allow, over objection, the reading of reports of decisions giving evidence or facts involved in decided cases more or less similar to the one at bar."89 Some courts, however, hold that the judgment will not be reversed in any case unless injury is shown."90

It is within the discretion of the court to refuse to allow counsel to read certain sections of the statutes."11

\_Comments on instructions and special interrogatories."12--Counsel has no right to advise the jury that he does not intend to ask for any instructions."13

He may suggest to the jury the answers he believes should be given to the special interrogatories of the opposite party under the evidence,"14 but may not state that they were propounded merely for the purpose of confusing the jury, and thus obtaining a reversal,"15 or direct the jury to answer them in such a manner as to correspond with the general verdict rather than in accordance with the evidence."16

**SS 4.**\_Excuses for impropriety.\_77--It is immaterial whether counsel deliberately intended to mislead the jury, or whether he believed that he was acting within his rights."88

Reversal will not be granted for misconduct, where counsel for both parties are guilty,"90 nor may one complain of improper remarks in reply to, and provoked by, his own argument."80

**SS 5.**\_Objections and rulings.\_88--The control of the argument is within the sound judicial discretion of the trial judge, and it is his duty to keep it within

Va\_\] 50 B. E. 413, Reading decisions on the complex question as to what constitutes a fxture has a tendency to confuse rather than to enlighten them. Tilley V. Christopher \[Vwash.\] 80 P. 834.

**66.** Ray V. Chesapeake & O. R. Co. \[Vw.\] 80 S. E. 413. Field reversble error to read from textbooks and reports. Id. Re-

Tusa to allow counsel to read from a decision and/or to the jury that the doctrine there announced should be approved and applied to the case at bar, held not error. Swope v. Seattle, 36 Wash. 113, 78 P. 607.

**67.**\_68.\_Ray v. Chesapeake & O. R. Co. \[Vw. Va.\] 50 S. E. 413.

**69.** Ray v. Chesapeake & O. R. Co. \[Vw. Va.\] 50 S. E. 413.

**60.** Ray v. Chesapeake & O. R. Co. \[Vw. Va.\] 50 S. E. 413.

It is never permissible for counsel to read the law from the books when the effect thereof is to bring before the jury the facets of the case decided, or the amount of the verdict, or the comments of the judge upon the facts, or to influence the jury in deciding upon the facts in the case on trial.

Olney v. Boston & M. R. Co. \[N. H.\] 59 A. 387.

**70.** Villiams v. Spokane Falls & N. R. Co. \[Vwash.\] 80 P. 1100.

**71.** Meyer v. Foster \[Cal.\] 81 P. 402.

**72.** See S. L. 309, 310.

**73.** Indiana, etc., R. Co. v. Otstot, 213 Ill.

\*\*429, 72 N. E. 887. Statement that party has no requests for instructions elicited by court's request to present them and which is

### Argument and conduct of counsel $6.

5 Cur. Law. proper bounds. \[82\] It is his duty, on objection, to exclude improper statements, \[83\] and to promptly stop counsel when guilty of any misconduct, explain to the jury the impropriety of his remarks, and take steps to prevent its repetition, \[84\] even though no objection has been interposed. \[85\]

As in the case of other matters occurring at the trial, that the misconduct of counsel may be reviewed by the appellate court, it must be objected to at the time, a ruling on such objection must be obtained, and an exception taken thereto \[86\] The ordinary steps to perfect the appeal and to present the matter to the reviewing court must also be taken. \[87\]

. $6. \_Action of court or counsel curing objection. \[88\]--Unless the misconduct is such as to prevent a fair verdict, \[89\] its harmful influence may generally be cured by the withdrawal of the objectionable remarks, \[90\] or by the action of the trial court in promptly sustaining an objection thereto, \[91\] admonishing counsel to de 5 Cur. Law. ARGUMENT AND CONDUCT OF COUNSEL SS6 263

sist," or instructing the jury to disregard it," or by two or more of these combined."

In some cases the error may be cured by remitting a part of a resulting excessive verdict," but this does not apply where the passion and prejudice aroused thereby may have entered into the determination of the issues of fact."

The error of the court in allowing counsel to argue that the jury should award exemplary damages is not cured by the fact that counsel honestly believed he was entitled to them."

The question whether a new trial shall be granted for misconduct of counsel in his remarks to the jury rests in the sound judicial discretion of the trial court," and his action in the matter will not be interfered with on appeal, unless it appears that such discretion was clearly abused."

at end of other trial where verdict was well

94. An objection by opposing counsel fol-sustained by evidence. Discretion so exer-loved by a rebukse from the court and an elaboration to the jury to disregard the re-Union Traction Co. v. Lawrence, 211 III. 373, marks will generally cure the prejudicial statements. Reference to execution creditor

95.0 A case will be reversed for improper and necessarily prejudicial remarks.${}^{100}$ Whether remarks are prejudicial depends upon the peculiar facts of each case.${}^{101}$\_Waiver.--\_Misconduct is not waived by the statement of the opposing counsel that he does not care whether the objectionable language is retracted or not, where he accompanies it by a .reiteration of his exceptions.${}^{102}$

ABMY and Nayy; Arbagnement and Pleas, see latest topical index.

**ARREST AND BINDING OVER.**

**$\\lx@sectionsign$ 1. Occasion or Necessity for Warrant**

**$\\lx@sectionsign$ 5. Noking Arrest and Keeping and Disposition of Prisoner (266).**

**$\\lx@sectionsign$ 2. Privilege from Arrest (265).**

**$\\lx@sectionsign$ 3. Complaint, Afflavit, or Information**

**$\\lx@sectionsign$ 6. Preliminary Hearing, Binding Over, or Discharge (267).**

**$\\lx@sectionsign$ 4. The Warrant and Its Insurance**

**$\\lx@sectionsign$ 7. Custedy Arvailing Indictment or Trial (268).**

\*\*$\\lx@sectionsign$ 1. Occasion or necessity for warrant.${}^{1}$--**Peace officers have authority to arrest without warrant in certain cases.${}^{2}$**

**In Missouri a police officer may without a warrant arrest for a** _past misdemeanor_\*\*, provided such officer has reasonable grounds to suspect a misdemeanor has been committed,${}^{s}$ and if the necessary facts authorizing the arrest exist, they con 5 Cur. Law. ARREST AND BINDING OVER SS 3.

stitute the authority and protection of the peace officer;4 but an arrest and detention without warrant where there is no evidence of a criminal act is a violation of the constitutional right of liberty.5 Though a warrant may lose its force because of its issuance in another county, it may show the existence of such facts as authorize an arrest without a warrant.8 That an arrest was made without a warrant is not a jurisdictional defect and is waived by an appearance and submission to arrangement without objection,7 or by a plea to the merits of the charge.8

Footnote 4: The author is grateful to the anonymous referee for the support of the work of the University of Texas at Austin for the support of the work of the University of 266AREST AND BINDING OVER SS 4. 5Cur. Law.

cn at the preliminary examination." Where the clerk of the circuit court is ex officio clerk of the county court, an affidavit for warrant is not defective in reciting that it was taken before the clerk of the circuit court." If the examination is to proceed at once, the accused may.waive the requirement of a written information," as may one on trial for committing a nuisance."

SS 4. _The warrant and its issuance._"--A warrant is of no force beyond the state of the issuing magistrate;" but in some states a warrant issued by a justice of the peace may be served in a county other than that of issuance, if indorsed by a magistrate of such other county." Federal prisoners arrested in a district other than that in which they are indicted may be removed to that district for trial." The issuing of a warrant is a judicial act performed by a judicial officer and is the beginning of a judicial proceeding, but it is not the act of a court." A municipal charter requiring a mayor to see that the ordinances were faithfully executed and conferring jurisdiction to try violators thereof authorizes him to issue a warrant for one violating an ordinance." An assistant justice of the peace, appointed to act during the absence of the regular incumbent, has authority to issue warrants in Rhode Island;" such a warrant need not show on its face the inability of the justice to act," and a designation of authority as "Assistant Justice" is sufficient." In Georgia a warrant issued by a justice of the peace must be made returnable before himself or some other judicial officer having jurisdiction in the premises." In California a writ of mandate to compel the issuance of a warrant will be granted only upon the affidavit of one having some particular interest to be subserved by this process, independent of that which he holds with the public at large."

SS 5. _Making arrest and keeping and disposition of prisoner._"--A mere invitation by a police officer to accompany him to the police station, complied with and followed by a search, is not an arrest." An officer is not bound to show his warrant in making an arrest," but unless he, or another with whom he is acting in concert, is in possession of the warrant and in a position to show it upon demand, the arrest is not lawful." A de facto marshal of a municipal corporation is authorized to make an arrest." Only a Federal marshal may make an arrest on the requisition of a foreign consul under a treaty." The motive in-

26. **Ex parte Knudton \[Iden\] 79 P. 641.** \[ humbla. Hyde v. Shine, 55 S. Ct. 760; Dimond\]

01. **Pr-ett v. State \[Ala.\] 37 S0. 343.** \[ v. Shine, 55 S. Ct. 760; Dimond\]

01. **People v. Crane, 94 App. Div. 397,** 88 34.\*\* \[ v. Shine, 25 S. Ct. 760; Dimond\]

N. Y. S. 343.\*\* \[ v. Shine, 25 S. Ct. 760; Dimond\]

29. **City of Topeka v. Kersch \[Kan.\] 79 S. Williams v. Sewell, 121 Ga. 655, 49 S.** \[ v. Shine, 732.\*\* \[ v. Shine\]

01. **See SS 3. C. I. 315.** \[ v. Warrant held sufficient: That defendant\]

01. \*\*\[ v. Shine, 55 S. Ct. 760; Dimond\]

willfully cut a person named with a knife\*\*

189. \*\*\[ v. Shine, 55 S. Ct. 760; Dimond\]

and otherwise abused him on he p." \[ v. Shine, 25 S. Ct. 760; Dimond\]

58. \*\*\[ v. Shine, 25 S. Ct. 760; Dimond\]

01. \*\*\[ v. Shine, 25 S. Ct. 760; Dimond\]
    5 Cur. Law. AIREST AND BINDING OVER SS 6. 267

volved in an arrest does not affect its legality." An officer making an arrest may use sufficient force to subdue the prisoner, though not acting in self defense,\[48\] being bound to use reasonable judgment in the circumstances,\[49\] and if assaulted, may defend himself and use such force as may be necessary for that purpose.\[50\] Force used in attempting to make an unlawful arrest constitutes assault and battery,\[51\] and the accused may resist with a force proportionate to that being used to detain him,\[52\] but if such person uses excessive force, the one attempting to arrest may defend himself.\[53\] An arrest which is illegal, without reference to the knowledge or belief of the party that it is illegal, may afford adequate cause to reduce an unlawful homicide to manslaughter;\[54\] but one is not justified in shooting an officer who merely announces the intention to arrest him, although the character of the officer does not appear and the arrest would be unwarranted.\[55\] A police officer failing to execute a warrant for arrest cannot justify absolutely by showing'that the magistrate issuing the warrant orally requested him not to serve it.\[56\] The police have the power and it is their duty to search the person of one lawfully arrested for evidence to prove the charge,\[57\] or for weapons or valuables,\[58\] but officers making a lawful arrest are not exonerated thereby from subsequent robbery of the person arrested.\[59\] The imprisonment of a French seaman under our treaty with France may continue until the expiration of two months.\[60\]

SS 6. _Preliminary hearing, binding over, or discharge.\[61\]_--Formerly all inquiry at preliminary examinations might be confined to the prosecution, and the accused was not entitled to offer evidence in his own behalf,\[62\] but modern statutes generally require that all witnesses produced by the defendant must be sworn and examined.\[63\] Statutes may expressly authorize a defendant charged with crime to waive a preliminary examination,\[64\] and an accused out on bail who voluntarily abents himself cannot complain that witnesses were examined in his absence.\[65\] A justice of the peace,\[66\] or examining magistrate holding an accused for trial of a misdemeanor need not reduce to writing the evidence introduced or depositions taken unless so requested by the parties,\[67\] though .in general, when a prisoner is arranged the necessary facts to justify a further detention must be shown by competent proof by depositions or evidence taken in writing.\[68\] Where one arrested without a warrant is held for trial, the examining magistrate need not return to

The irregularity of an arrest by a state po- lice officer on the requisition of -a foreign consul is obylated by an examination into the case by a Federal court. Id.

47. McDuffle v. State, 121 Ga. 580, 49 S. E. 708.

48, 49. Sheehan v. West \[R. I\] 60 A. 761.

56. Commonwealth v. Crowley, 26 Pa. Super. Ct. 124. The law does not require him to flee to the wall. Id.

01. Mann v. Com., 26 Ky. L. R. 723, 82 S. W., 438.

01. Coleman v. State, 121 Ga. 594, 49 S. E. 716. One about to be arrested unlawfully may resist force with force, proportional to the character of the assault. Mann v. Com., 26 Ky. L. R. 723, 82 S. W. 438.

01. Coleman v. State, 121 Ga. 594, 49 S. E. 716.

01. Earles v. State \[Tex. Cr. App.\] 85 S. W. 1.

01. Kendy v. People, 32 Colo. 67, 74 P.

01. People v. McAdoo, 90 N. Y. S. 669.

01. Smith v. Jerome, 93 N. Y. S. 202.

01. Keady v. People, 32 Colo. 67, 74 P. 892.

01. L. R. A. 353.

01. Tones v. State \[Tex. Cr. App.\] 13 Tex.

01. St. Rep. 722, 88 S. W. 317.

01. U. S. Rev. St. 497-4081. Dallemagne

01. Molson, 25 S. Ct. 422.

01. See 3 C. L. 317.

01. Farnham v. Colman \[S. D.\] 103 N. W. 161.

01. Rev. Code Cr. Proc. # 153-158. Farnham v. Colman \[S. D.\] 103 N. W. 161.

01. Hollibaugh v. Hehn \[Wyo.\] 79 P.

01. Awavier results from an accused permitting himself to be arranged upon an information and pleading thereto. Id.

01. State v. McLeain \[N. D.\] 102 N. W. 407.

01. State v. Clemmensen, 92 Minn. 191, 99 N. W. 640.

01. People v. Zabor, 44 Misc. 633, 90 N. Y.

01. People v. Crane, 94 App. Div. 397, 88 N. Y. S. 343.

the trial court a formal written information or any other pleading in the nature of an indictment." To authorize a commitment pending an adjournment of the examination, a proper information in writing must be filed with the magistrate," and a detention of the accused after an adjournment of the examination but without a formal commitment is illegal." An afflavit of a police officer filed with a coroner warranting the facts attending a person's death, though not charging the prisoner with any crime, may justify the commitment of the accused during the preliminary examination." A court having a prisoner in its custody, though out on bail, may change the charge upon which he was arrested so as to fit the facts of the case at any time pending the inquiry." Where it appears that there is no evidence that the crime charged has been committed or where it appears that it has been committed, but there is no evidence of reasonable ground for believing that it was committed by accused, he is entitled to his liberty." After conviction and commitment to prison by a court of competent jurisdiction, one cannot by habeas corpus question the sufficiency of the evidence produced on the preliminary examination." That one under arrest asked for an examination is not admissible on the trial." That one branch of the defense was not presented at the examination raises no inference against the accused unless the jury are satisfied that evidence was then in defendant's possession and would have been put in if true." Where an arrest is without authority of law, mileage fees and costs cannot be taxed against the person arrested."

_Custody awaiting indictment or trial._"--A person against whom a complaint for a felony has been filed before a magistrate who can only charge or hold for trial before another tribunal is "charged" with a crime under the Federal constitution and statutes." In Idaho, unless good cause is shown to the contrary, the court will order a dismissal of the prosecution where a person has been held to answer for a public offense if an indictment is not found against him at the next term of court at which he is held to answer."

_Cude Cr._ Proc. pt. 4, c. 7, # 221. People v. Zabor, 44 Misc. 633, 90 N. Y. S. 412. 76, 71. People v. Crane, 94 App. Div. 397, 88 N. Y. S. 434. 72. People v. Flynn, 44 Misc. 20, 89 N. Y. S. 897. 73. Commonwealth v. Jones, 26 Ky. L. R. 867, 82 S. W. 643. 74. People v. Crane, 94 App. Div. 397, 88 N. Y. S. 843. Where the court finds no good reason for believing that an indictable of-fense has been committed, the accused will be discharged. Myers v. Uclearnan, 125 Iowa, 461, 101 N. W. 193. 75. Ex parte Knudtson \[Idaho\] P. 64. 76. State v. Hooper \[La.\] 38 S. 452. 77. Commonwealth v. Anselvich \[Mass.\] 71 N. E. 790. 78. 82 x parte Sykes \[Tex. Cr. App.\] 79 S. 87. 88. 89. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 81. 83. 84. 86. 88. 89. 80. 82. 84. 87. 89. 81. 84. 88. 89. 82. 85. 86. 87. 88. 89. 80. 83. 84. 89. 81. 85. 86. 88. 89. 81. 87. 89. 82. 88. 89. 80. 84. 89. 82. 83. 85. 86. 87. 88. 89. 81. 88. 89. 80. 84. 89. 82. 85. 89. 83. 86. 89. 84. 88. 87. 88. 89. 81. 89. 82. 89. 83. 84. 89. 85. 86. 88. 89. 87. 89. 88. 89. 80. 89. 81. 89. 80. 81. 89. 82. 83. 84. 89. 85. 86. 87. 88. 89. 81. 89. 82. 84. 89. 83. 85. 87. 89. 88. 89. 80. 89. 81. 89. 82. 83. 84. 89. 85. 86. 88. 89. 87. 89. 88. 89. 80. 89. 81. 89. 80. 81. 89. 82. 83. 84. 89. 85. 86. 87. 89. 88. 89. 81. 89. 80. 81. 89. 82. 84. 89. 83. 85. 87. 89. 81. 89.

5 Cur. Law. ASSSULT AND BATTERY SS 1. 269

\_Indictment and prosecution."--\_Ownership need not be averred in statutory arson of a particular class of buildings."88 An allegation of maliciously firing a building whereby a dwelling was burned is sufficient to charge the malicious setting fire to a building by the burning whereof another's dwelling shall be burned.89 As a general rule an allegation of ownership is sustained by proof of occupancy of the alleged owner under a claim of right.90

On a prosecution for willfully and wantonly burning a building, it is incumbent on the state to show an intent, or to show facts and circumstances from which an intent may be inferred; and it is necessary that the jury should find the intent as a fact before the defendant can be adjudged guilty.91 The admissibility92 and competency of evidence is largely matter of the general law of criminal evidence.88 Some preliminary testimony tending to show the corpus delicit should precede the admission of a confession.94 Statement by prosecutor that there was no dynamic or other explosive in his house is not expert evidence.95 Cases dealing with the sufficiency of the evidence are shown in the notes.96 The setting of the fire being denied, instructions referring to the fire "which was set" and to the "setting of the fire" in the building in which the fire originated are objectionable, as assuming that some person set the fire.97

\*\*ASSAULT AND BATTERY. S 1. Nature and Elements of Criminal Offense (269). S 2. Defenses (270). S 3. Lottement (271). S 1. Nature and elements of criminal offense.98--An assault is-an offer or attempt to do violence to the person of another, with the means at hand of carry-

S7. See 3 C. L. 318, n. 32-35. S8. In Missouri an information charging the burning of a church building need not by defendant admissible. Davis v. State allege the ownership thereof. Rev. St. 1899, \[Aln.\] $70. $76. It being conceded that $1875, construed. An information charging (among, consisting of the burning of a house burned, and there being some evidence that of public worship, the property of the General Baptist Church, held sufficient. State v. Hunt \[Mo.\] $8. S. W. 719. R89. Rev. St. 1888, SS 4400, c.l. 2, penalising the willful and malicious setting fire to a building by the burning wheel of the devill-

ing house of another shall be burned in the daytime. Colbert v. State \[Wis.\] 104 N. W. 61. R70. R71. R72. R73. Where the indicent alleged the property to be the property of C, whereas he only had the possession and control of it, title being in his wife, held immaterial. under Cr. Code, $128, providing that such an erroneous allegation is immaterial if the offense be elejr described with certainty. Commonwealth v. Napier \[Ky.\] $4 S, W. 536. R74. State v. Morgan, 136 N. C. 628, 48 S. E. 670. R92. Where the question was as to the value of the property at the time it was inward, evidence as to its value when new heid Indianapolis. People v. Helwig \[Cal.\] $80 P. 1030. See Indictment and Prosecution, 4 C. L. 1. 94. Testimony that prosecutor's house was burned and that mule tracks found near it ing the intention into execution.99 A battery is the actual inflation of the injury.1 Neither mere words, however insulting and abusive, a mere threat or violence menaced, as distinguished from violence begun to be executed,2 nor mere preparation as distinguished from acts done in execution of the criminal purpose, will constitute an assault,3 nor will a silent approval of another's acts justify conviction.4 Several acts which have been held to constitute an assault are referred to in the note.5 Under the Texas law if there is no violence there must be intent to injure or the assault is not aggravated,6 and a charge on intent presumed from violence must be supported by proof of violence.7 Taking indecent liberties with a woman is not aggravated assault unless it be done against her consent.8

Footnote 8: The author is grateful to the anonymous referees for their comments.

Footnote 90: Clark & M. on Crimes, SS 197. State v. Sever, 32 Yt. 114, 76 Am. Dec. 156, 1 Bl. Dyer \[Del.\] 58 A. 947; State v. Wood \[S. D.\] Com. 453; Stevens v. Fassett, 27 Me. 266; 103 N. W. 25; State v. Daniel, 136 N. C. 671, Fitzgerald v. Northote, & F. 656; 48 S. E. 544; People v. Wells, 145 Cal. 138, 78 Cherry V. Booth \[18931\] Q. B. 465, 62 L. J. P. 470. Aggravated assault. Mapula v. Terfors \[Ariz.\] 80 P. 389. Intent to injure is \[N. S.\] 249, 14 Week. Rep. 391, 17 Cox, C C. usually essential (State v. Cruikshank N. 611, 57 J. P. 373; Quinn v. Nolan, 7 Ohio Dec. D.) 100 N. W. 697; Jordan v. State \[Tex. Cr.\]. Reptentent, 585; Lower Can. Civ. Code, SS 245), App.\] 84 S. W. 823), and ln assault proper and lls entitled to exercise reasonable re-strant and administer reasonable correction by violence (State v. Daniel, 136 N. C. 671, (3) S1. Com. 120; 3 Salk, 47: Bacon, Abr. tit. 48 S. E. 544). An attempt or endeavor to injure is essential to simple assault. Hauto v. Swenson, 125 Iowa, 694, 101 N. W. 520. F. 202; Cooper v. State, 8 East. \[Tenn.\] 324, 1. State v. Dyer \[Del.\] 58 A. 947; State v. Schmidt \[S. D.\] 104 N. W. 269. 2. 5. 5.

ally done while doing a lawful act,\[11\] or if done in the necessary defense of one's self or property,\[12\] or the person of a member of one's family,\[13\] there is no offense.

More opprovious words do not justify an assault,\[14\] nor does acting under advice.\[15\]

SS 3. _Indictment.\[16\]_--The indictment need not follow the language of the statute,\[17\] any language fairly describing the offense being sufficient.\[18\] It may

Pruhs \[Meb.\] 95 N. W. 640: Patterson v.

Nutter, 78 Me. 509, 57 Am. Rep. 818; Lefebvre

Head \[Ten.\] 455, 75 Am. Dec. 774; State v. V. Des Petitts Freres, Mont. L. Rep. 6 Super.

Vanderbilt, 116 Ind. 11, 9 Am. St. Rep. 820; Ct. 430; Whitely v. State, 33 Tex. Cr. Rep.

State v. Mizner, 50 Iowa, 145, 32 Am. Rep.

172; Spear v. State \[Tex. Cr. Appl.\] 25 S. W. 128; Morrow v. Wood, 35 Wis. 59, 17 Am.

125; Howerton v. State \[Tex. Cr. Appl.\] 43 Rep. 471, or for a cause unknown to the

S. W. 1018: Smith v. State \[Tex. Cr. Appl.\] 20 S. W. 360), whether the injuries inflicted

pre. 128, cannot be justified. The reasona-

are of permanent nature or not (State v.

Mimer, 50 Iowa, 145, 32 Am. Rep. 128; State v. Boyer, 70 Mo. App. 166). The presump-

tions favor the view that the teacher excr-

cised a reasonable direction under all the

Gray \[Mass.\] 36; State v. Boyer, 70 Mo. App.

circumstances \[Oolding v. State, 23 Tex. App.\]

175; Commonwealth v. Randall, 4 Gray

\[Mass.\] 36; State v, Ward, 1 Km. L. 370;

\[J. Riege, 19 Vt. 102; Hayeraft v.

Grisby, 83 Mo. App. 354), and that the punishment was inflicted with a proper motive

\[State v. Pendergrass, 19 N. C. \[2 Dev. de B.

L.\] 365, 31 Am. Dec. 416; State v. Thornton

\[N. C.\] 48 S. E. 602: Anderson v. State, 23 Tex. App. 244; Stephens

Head \[Ten.\] 455, 75 Am. Dec. 774; Stephens

v. State, 44 Tex. Cr. Rep. 67; Marslabury v. State

10 Ind. App. 21; Dowien v. State, 14 Tex. App. 244; Stephens

176; 14 Am. St. Rep. 31; Commonwealth v.

10 Ind. App. 21; Dowien v. State, 14 Tex. App. 244; App. 61; 14 Tex.

272 ASSAULT AND BATTERY SS 4. 5 Cur. Law.

cover various degrees of assaults,\[19\] and conviction may be had under a charge of a greater offense, provided it be one which includes assault.\[20\]

SS 4. _Evidence; instructions; verdict; punishment.\[21\]_--Though the use of force on another will be presumed to have been without justification or excuse,\[22\] if the accused introduces evidence of justification, the burden is not thereby shifted to him to establish his defense, but the state will be required to prove beyond a reasonable doubt that the assault was not justified.\[23\] As in other prosecutions, the admissibility of evidence depends upon its competency,\[24\] and its relevancy and materiality to the issues involved.\[25\] Below are cited cases involving proof of intent and malice,\[26\] ability to commit injury,\[27\] extent of prosecutor's injuries,\[28\] threats,\[29\] and justification.\[30\] Cases involving the sufficiency of the evidence are mentioned below.\[31\] Defendant is entitled to instructions covering lesser offenses of which he might under the pleadings and evidence be convicted,\[27\]

19. Harmon v. State (FIA.) $7 So. E20.

snortify afterwards is relevant, but not that 20. Magnula v. Territory (Arri.) $0 P.

he had brass knuckles on his person when 389; State v. Cruikshank (N. D.) 100 N. W.

arrested. People v. Wells, 145 Cal. 138, 78 P.

697. A conviction of assault and batl try my 470.

be had under an indicentent for assault with 28. Brown v. State \[Ala.) $3 So. 268. Evilment to murder. Pastran v. State \[T^x\]

dence that the assuulted person suffered Cr. Appl. $7 S. W. $47. On prosecution of T's

grant pain is material, the indicent cover-homicd may be convicted of argravated using the several degrees of assault. Harmon assault. Armstrong v. State \[Fla.) $7 So. E20.

Appl. 13 Tex. Cr. Rep. 697, 88 S. W. 215.

20. Previous threats, both of defendant and the prosecutions witness, are relevant where the Issue is as to which was the agressor. State v. Atkins \[V.\] $9 A. $82.

01. Where the defendant assuulted a person sent by the sherift to assist in making a schedule of attached goods, on the questions made by wife, in presence of husband, signfer had a right to demand of defendant v. State, 119 Ga. $15, 46 S. E. 412. For the purpose of contradicting the prosecuting witness, it is incompetent for a justice of the peace to testify to a statement made by the witness, at a hearing before said Justice, involving the same state of facts as the case on trial, in which such prosecuting witness, was the defendant. State v. Dyer \[Del.\]

sesa was the defendant. State v. Dyer \[Del.\]

58 A. $47.

20. Evidence that the prosecutor said that 108 Mo. App. 431, 8 S. W. 1096: State v.

he had employed a democrat to represent him and brought the action before a democrattic Judge was irrelevant. State v. Rat.

W. 1062: Knight V. State \[Tex. Cr. App.\] $5 Iedge \[Del.\] $8 A. 944. In a prosecution for assault with deadin venden, suggest and battery, evidence that the prosecutor had brought a civil action against the same defendant for the same offense is laudmissible. Where the defendant was a state effective, evidence that the prosecutor had attempted to have defendant removed from his office was inadmissible. It. Where App. 83 S. W. 376: George V. State \[Tex. Cr. prosecutor was beaten with a stick, he may be asked if he was armed. Tuberville v.

Principal, Clay v. State \[Ark.) $8 S. W. 306. State \[Mlns.\] $3 So. 233. Where defendant was on trial for assuulting an officer trying to arrest him, it was immaterial whether he that his intent in shooting the prosecutor had ever been tried for the prior offense.

People v. Nishell, 144 Cal. 200, 77 F. 916.

20. In a prosecution of a school-teacher

given. Pastran v. State \[Tex. Cr. App.\]

for whipping a pupil, evidence as to disel-

gline of school before defendant assuured but one blown with a small pistol causing a control and a request of committee to be more

smit braise, he is entitled to an instrucc-strict was irrelevant. State v. Thornton,

136 N. C. 610, 48 S. E. 602. Evidence of prior

assaults not part of the resg estate is irrelevant.

daviv weapon. Hardin v. State \[Tex. Cr.

vant Livingston v. State \[Tex. Cr. App.\] $3 A. 713'

vated assault in a prosecution for assault

27. On trial for an assault with a pistol,

evidence that defendant discharged his pistol' v. State \[Tex. Cr. App.\] $3 S. W. 384.

**VOL. V. NO. 2. CURRENT LAW, OCTOBER, 1905.**

**(Copyright, 1906, by Koefe-Davidson Company.)**

**ASSAULT AND BATTERY--Cont'd.**

and instructions are necessary on any matter of self-defense of which there is evidence.\[33\] Several decisions discussing the form and propriety of particular instructions are referred to in the note.\[34\]

The verdict must be sufficiently definite to determine the offense of which the defendant is convicted.\[35\] Punishment for assault and battery in West Virginia may be by fine or imprisonment or both, and is limited in its extent only by the constitutional inhibition against excessiveness.\[36\]

\*\*SS 5. _Civil liability.\[37\]--The liability of a master for assault by his servant is elsewhere treated.\[38\] A person is not responsible for an assault committed by another without his knowledge or consent,\[39\] and a corporation cannot be guilty of an assault unless at the time it owed some duty to the person assaulted, and the person committing the assault was acting under its authority.\[40\]_

_What constitutes.\[41\]--The same elements must appear in a civil as a criminal assault,\[42\] and an attempt or endeavor to do violence to the person is necessary,\[48\] though defendant's intent is immaterial where the acts constituting the assault are themselves unlawful.\[44\] The assault need not culminate in physical violence.\[45\]_

_Defenses.\[46\]--A property owner may resist another in a trespass upon it,\[47\] but_

**SS3. Armsworthy v. State \[Tex. Cr. App.\] S. W. 187. Verdict finding defendant guilty 13 Tex. Ct. Rep. 697, 88 S. W. 215; Harrison of "assault with a dangerous weapon with v. State \[Tex. Cr. App.\] S5 S. W. 1058; Chapman v. State \[Tex. Cr. App.\] S5 S. W. 1073.**

_A n instruction that the defendant must not_

_in_ _Rev. Code 1899, 8 7148, as an attempt to use excessive violence in self-defense is_

_show_ _intention to do bodily harm. State_

_wrong where there is no evidence of ex-_

_v. Crukshank \[N. D.\] 100 N. W. 697._

_treme or excessive violence. Where an in-_

_30. State v. McKinin \[W. Va.\] 49 S. E. 20._

_31. See 3 C. L. 323._

_32. See 3 C. L. 323._

_33. See Master and Servant, 4 C. L. 633; Carrates, 3 C. L. 591._

_mediately following this topic._

_34. Though the two were fighting plain-_

_iff. Le Laurin v. Murray \[Ark.\] 87 S. W. 131._

_40. Haggerty, 7. Potter, 111._

_N. W. 520. An action for the willful and_

_nature_ _watch but not forcible expulsion of a passenger from a street car by a conductor is_

_assault was committed with premoditated_

_not an action for assault and battery. Sommeglin. Winzel v. State \[Tex. Cr. App.\] 83 S. W. 187. Instruction as to elements of crime held erroneous. State v. Daniels, 136 N. C. 671, 48 S. E. 544. An instruction on_

\_mutual combat is erroneous when the issue is not raised. Chapman v. State \[Tex. Cr. App.\] 85 S. W. 1073. In a prosecution for assault, evidence that defendant committed a breach of the peace at the store of prosecutor on the occasion of the assault, that an officer was called for by telephone, and that prosecutor attempted to detain defendant by holding his horse, is sufficient to authorise a charge on prosecutors right to arrest and detain defendant for breach of the peace until an officer should 274 ASSSULT AND BATTERY SS 5. 5 Cur. Law.

reasonable force must be used in expelling a trespasser,\[48\] or in reclaiming property.\[49\] Mere provocation is not a defense,\[50\] but may be considered in mitigation of punitive damages,\[53\] if uttered so recent to the time of committing the assault as not to allow "cooling time" to intervene.\[52\] One who uses excessive force in self-defense is liable,\[53\] but an officer, using reasonable judgment, is justified in using sufficient force to subdue a prisoner, although the officer is not acting in self-defense.\[54\] A consent to engage in a mutual combat will not justify an assault,\[55\] but evidence of mutual consent to fight may be shown in mitigation of damages,\[56\] and injuries received in a friendly scuffle invited, provoked, or encouraged by plaintiff, are not actionable.\[57\] A mistake as to the identity of the person assaulted may be a defense where an assault on the person intended would have been justified.\[58\]

\_Pleading, evidence and trial,\[59\]--\_The sufficiency of complaints,\[60\] and the propriety of amendments thereto,\[61\] are discussed in the note. Justification is not admissible under the general issue, but must be specially pleaded.\[62\]

The burden of a prima facie case is on the plaintiff,\[63\] but he is not bound to go further and negative justification,\[64\] and the presumption of innocence applicable to criminal cases does not apply.\[65\] Res gestace\[60\] and evidence of previous relations,\[67\] character and reputation of the parties,\[68\] provocation,\[69\] and admissions,\[60\]

113, 16 Am. Rep. 615. In James v. Lack of information as to validity of plaintiff's proxies not a defense to assault in rejecting plaintiff from stockholders' meeting. C Crabtree v. Dawson \[Ky.\] 67 L. R. A., 565. 59. See 3 C. L. 324. 49. Miller v. Sadowsky \[Mich.\] 101 N. W. 60. In trespassing against a corporation, not necessary to averticulary facts. Haggerty v. Potter, 111 III. App. 433. Averments connecting .damness with Injury sufficient. Pennington v. Caugeby, 145 Cal. 1, 78 P. 227. 614. Where assault constituted an implied breach of defendant's contract as a carrier, amendment of complaint to conform to proof showing such breach allowed. Rein v. Brooklyn Heights R. Co., 94 N. Y. S. 635. 62. Mitchell V. Gambill, 140 Ala. 316, 37 So. 280: Thomas v. Riley, 114 -Dip. 520. 63. In civil actions plaintiff is not bound to prove guilty beyond a reasonable doubt. Preporadence of evidence sufficient. Kurz V. Doerr \[N. X.\] 72 N. E. 926. The burden is on plaintiff to show the assault, but not to negative self-defense. Happy v. Prichard \[Mio. App.\] 85 S. W. 655. 74. The burden is on the defendant to prove justification. Monson v. Lewis \[Vis.\] 101 N. W. 104. Plaintiff need not negative self-defense. Happy v. Prichard \[Mio. App.\] 85 S. W. 655. 65. 65. Kurz v. Doerr \[N. X.\] 72 N. E. 926. Held permissible to show subject-matter of alteration as bearing upon the probability of the blow being struck by the defendant without warning and without justifiable provocation. Coruth v. Jones \[Vt.\] 60 A. S14. 60. Abusive language. Le Laurin v. Murray \[Ark.\] 87 S. W. 131. 67. Evidence of prior abusive language admissible to explain language used at time of assault. Le Laurin v. Murray \[Ark.\] 87 S. W. 131. 68. Evidence of plaintiff's general reputation as a spagnacous person admissible. Lowe v. Ring \[Vis.\] 101 N. W. 381. In an ac and evidence going to the amount of damages or extent of injury,\[11\] are admissible. Sufficiency of evidence is discussed in the note.\[12\]

Cases involving the measure\[73\] and excessiveness\[74\] of damages are cited in the note. Instructions must be based on evidence within the issues.\[75\] Whether a new trial should be granted or refused upon the ground of excessive or inadequate damages, as in other cases, rests in the sound judicial discretion of the trial court.\[76\]

## 6.1. **LIABILITY OF MASTER FOR ASSAULT BY SERVANT.1**

\[Special Article by Walter A. Shumaker.\]

_A master-is not civilly liable for an assault by his servant on a third person, unless: (1) The act of the servant was within the scope of his employment, or (2) was ratified by the master, or, (3) the master owed to the third person a special duty of hospitality or protection of which such assault was a breach._

tion by a father to recover damages for an assault upon and criminal abuse of minor child, evidence involving the general character of said minor at a time subsequent to the assault complained of is incompetent. Nurman v. Lynde, 93 Minn. 257, 101 N. W. 163.

69. Provocation In mitigation must not he too remote. Davis v. Collins \[S. C.\] 48 S. W. 655.

01. E. 469.

01. A plea of guilty in a criminal action for the same offense may be received in a civil action, but only as an admission. But circumstances explaining the plea may be shown by defendant. Risdon v. Yates, 145
    \_Scope of employment.--\_It is obvious that in a sense the commission of an assault is rarely within the actual or apparent authority of a servant, and accordingly the earlier cases relieved the master from all liability for wanton or malicious acts not committed by his express authority.2 The modern rule is, however, well settled that the master is liable for every act of his servant, however willful, if done in the course of his employment and in execution of the master's business.3 Stated more specifically, if the nature of the employment be such that the servant would under any circumstances be authorized to use force against third persons in the course of such business, the master commits it to the servant to decide the occasion for using force and the degree of force to be used; and if the servant, through misjudgment or violence of temper, goes beyond the necessity of the occasion, and gives a right of action to a third person, he is as to such person acting within the scope of his employment.4 Thus a watchman or other person employed to protect property,5 or to keep order on the master's premises,6 or a servant charged with the protection of the master's property as an incident to other duties,7 or a servant sent

01. Church v. Mansfield, 20 Conn. 387; & C. R. Co. v. Dalby, 19 Ill. 353; North Chi-Hibbard v. Railroad Co., 15 N. Y. 455; & Cago City R. Co. v. Gastka, 128 Ill. 613; Moore v. Sanborne, 3 Mich. 519; Lindsay v. Gifman, 22 Ala. 629.

01. "A master," says Mitchell, J., in Mor-ier v. St. Paul, etc. R. Co., 31 Minn. 351, 47

780; Evansville & T. T. R. Co., V. McKee.-99

781; "Inclab for every wrong

782; "Inclab for every wrong

783; "Inclab for every wrong

784; "Inclab for every wrong

785; "Inclab for every wrong

786; "Inclab for every wrong

787; "Inclab for every wrong

788; "Inclab for every wrong

## 5 Cur. Law. ASSAULT BY SERVANT \[Sp. Art.\]

to retake property of the master,\* renders the master liable if he commit an unwarranted assault in executing such duties, and this, though a spirit of malice and vengeance mingles with the servant's sense of duty;\* but if the servv-t commit the assault solely for his own malicious purpose, the master is not liable.\[10\] And where the servant acts wholly outside the scope of his employment, though in the master's interest, as where a servant not authorized to eject trespassers assumes to do so,\[11\] or a collector assaults the debtor,\[12\] or a waiter assaults a guest,\[13\] or an employee doing certain work assaults a person obstructing him therein,\[14\] the master is not liable. Some courts have exonerated the master where the assault was palpably uncalled for by the particular occasion, as where a watchman shot a trespasser as he was leaving the premises;\[15\] but the weight of authority as well as the better reason is to the contrary.\[16\] If the business committed to the servant was such as to be likely to produce an altercation, instruction to the servant not to commit an assault does not relieve the master from liability.\[17\]

_Ratification._\*\*--Ratification of the act of a servant is of course equivalent to original authority, and renders the master liable to the same extent as if such authority had been given.\[18\] To be subject to ratification the wrongful act of the ton, etc, R. Co. v. Bell \[Tex. Civ. App.\] 73 V. Kling, 179 Ill. 91; Marlon v. Chicago, etc., S. W. 56. Assault on customer who refuses R. Co., 59 Iowa, 428.

- \[1\] Steering ear porter wantonly assaulting 434. Cherk ejecting alleged spy of rival passenger is not acting within scope of emstore. Geraty v. Stein, 30 Hun \[N. Y.\] 426.

- \[2\] Ejecting trespassers from master's prem- 188. Chicago, etc., R. Co. v. Doherty, 53 III, App. 283; Illinois Cent. R. Co. v. King, 179 Ill. 91.

- \[3\] Denv, etc, R. Co. v. Harris, 122 U. S. 597, 80 Law. Ed. 1146; McClung v. Dearborne, 134 Pa. 396. Collector sent to retake property conditionally gold. O'Connell v. Senger. Campbell v. Pullman Palace-Car Samuel, 81 Hun \[N. Y.\] 357; Levi V. Brooks, 122 Mass. 501. But see McGrath v. Michaels, 80 App. Div. (N. Y.\] 458.

- \[4\] Illinois Cent. R. Co. v. King, 171 Ill. 91.

- \[5\] A. D. Div. 10. Mott v. Consumers' Ice Co., 73 N. Y. 543: Little Miami R. Co. v. Wetmore, 19 Ohio St. 110; Gilliam v. S. & N. A. R. Co., 70

- \[6\] Ala. 263; Central R. Co. v. Peacock, 69 Md.

- \[7\] 257; McGilvray v. West End St. R. Co., 164

- \[8\] Mass. 122; Cofield v. McCabe, 58 Minn. 218; Curtis v. Dineen, 4 Dak. 245.

- \[9\] 11. Railroad endureures have power to eject trespasses from their trains. Kline v. Central Pac. R. Co., 37 Cal. 400, 93 Am. Dec. 282; North Chicago City R. Co. v. Gastka, 128 Ill. 613; Hoffman v. New York Centi R. Co., 87 N. Y. 25, 41 Am. Rep. 337; Marion v. Chicago, etc., R. Co., 59 Iowa, 428, 44 Am. Rep. 687.

- \[10\] HallFond engineers may eject trespassers from the engine. Chicago, etc., R. Co. v. West, 125 Ill. 320; Carter v. Louisville, etc., R. Co., 98 Ind. 552; Galveston, etc., R. Co. v. Zaninger \[Tex.\] 44 L. R. A. 553.

- \[11\] Baggaceman may eject trespasser from baggac room. Rounds v. Delaware, etc., R. Co., 64 N. Y. 129, 21 Am. Rep. 597.

- \[12\] As to railroad brakemen the decisions are in conflict. That they have implied power to eject trespasses, see Brewig v. Chicago, etc., R. Co., 64 Minn. 168; Hoffman v. New York Centi, etc., R. Co., 87 N. Y. 25; Kansas City, etc., R. Co. v. Kelly, 36 Kan. 655. That they have not, see Illinois Cent. etc., R. Co., 87 N. Y. 251; Kansas City, etc., R. Co. v. Kelly, 36 Kan. 655.

- \[13\] V. Kling, 179 Ill. 91; Marlon v. Chicago, etc., R. Co. v. King, 179 Ill. 91; Marlon v. Chicago, etc., Rservant must have been committed in the master's interest.\[19\] More retention of the guilty servant after knowledge of an unlawful assault by him does not amount to a ratification.\[20\]

\_Special duty of hospitality or protection.--\_An exception to the rule as to servants acting outside the scope of their employment exists in cases where the master owes to the third person a special duty of hospitality or protection. In such case it is usually held that any assault by a servant, being a breach of that duty, renders the master liable. The most common illustration is the relation of carrier and passenger,\[21\] but the rule is applied with varying strictness to innkeepers,\[22\] kneerers of theatres and other places of public amusement,\[23\] and also to stores and other places of business to which the public is invited.\[24\] As to common carriers the law is well settled. The carrier's obligation is to carry his passenger properly and treat him respectfully, and if he intrusts the duty to his servants the law holds him responsible for the manner in which they execute the trust. The carrier is liable to the passenger for every assault by the carrier's servants, without regard to whether it was inspired by malicious motives.\[25\] If, because the assault was in self-defense or in the proper discharge of duty, the servant is freed from liability, of course the carrier is not liable;\[26\] but neither abusive language by the passenger,\[27\] intoxication of the passenger,\[28\] or minor violations of rules\[29\] will justify an assault. Whenever ejection from the train is authorized, so much force as is needful for that purpose may be used,\[30\] but no more.\[31\]

As to whether persons in other relations involving a duty of hospitality are liable to the same extent involves some doubt, though the better rule seems to be that "the duty due from a carrier to his passenger, from the innkeeper to his guest, and from the theatrical manager to his patron, while perhaps differing in degree, is similar in kind."\[32\] The contrary view is presented in a recent Federal case,\[33\] in which the majority opinion holds the rule pertaining to carriers to be inapplica-

\\begin{tabular}{l|l} ratification subjecting master to punative damages. & 25. See cases cited ante. See, also, Craker v. Chicago, etc., R. Co., 36 Wis. 657, where the carrier was held liable for the act of its conductor in kissing a passenger against her will. \\
26\. New Orleans, etc., R. Co. v. Jopes, 142 U. S. 18, 35 Law. Ed. 919; Hayes v. St. Louis R. Co., 15 Mo. App. 583; Moore v. Co., 62 Ibmba, etc., R. Co., 38 S. C. J. \\
27\. Haman O. Omaha Horse R. Co., 35 Neb. 74; Baltimore, etc., R. Co. v. Barger, 80 Nd. 23; Coggins v. Chicago, etc., R. Co., 18 III. App. 620. \\
28\. Illinois Cent. R. Co. v. Sheehan, 29 III. App. 90. \\
29\. Terre Haute & I. R. Co. v. Jackson, 81 Ind. 19; Hanson v. Enropean & N. A. R. Co., 622 Nd. \\
30\. Wright v. California Cent. R. Co., 78 Cal. 360; Pennsylvania R. Co. v. Connell, 112 II. 295. \\
31\. Chicago, etc., R. Co. v. Herring, 57 Ill. 59; Chicago, etc., R. Co. v. Bills, 104 Ind. \\
37; Planz v. Boston, etc., R. Co., 157 Mass. \\
37; Higgins v. Watervelt, etc., R. Co., 46 N. Y. 23. \\
32\. Dickson v. Waldron, 135 Ind. 507. \\ See, also, Mastad v. Swedish Brethren, 83 Minn. 42; Norcross v. Norcross, 53 Me. 169; Pinkertor v. Woodward, 33 Cal. 585; Russell v. Fagan, 7 House. \[DcL\] 392. \\
33\. Clancy v. Barker \[C. C. A.\] 131 F. \\
34\.

## 5 Cur. Law. ASSIGNMENTS SS 1.

ble to innkeepers and others in similar relation. The reason given for the distinction, viz., that the peculiar liability of carriers is imposed in view of the peculiar dangers attending travel by rail, does not seem altogether sound, for the rules regulating the liability of carriers antedate the dangers of modern travel. And however these dangers may impose stringent rules to avoid accident, they seem irrelevant to malicious assault by the carrier's servant. A strong dissenting opinion \[34\] and a contrary decision on the same facts by the supreme court of Nebraska \[35\] considerably weaken the weight of the holding.

Assignment of Errors, see latest topical index.

ASSIGNNMENTS.

## 6 Rights Susceptible of Assignment (279).

## 7 Results and Sufficiency of Expressing Assignment (285).

## 8 Constructive or Equitable Assignments (282).

## 9 Rights Susceptible of Assignment

Generally speaking, all choses in action which may survive the owner's death may now be assigned \[87\]. Thus accounts \[38\], mortgages \[39\] and chatlet mortgages \[40\], tax certificates \[41\], or a right of action for taxes paid under protest \[42\], mechanics \[43\], options to purchase land \[44\], or underwriting agreements \[45\], are assignable. Negotiable instruments may pass by an assignment without being endorsed \[46\]. Trading stamps are transferable and may be used and assigned by one not a customer of the company \[47\]. An Indian nation may assign their rights in a government fund to new members incorporated with them \[48\]. A part of a claim may be assigned with consent of debtor \[46\], but a contract cannot be assigned where its express terms \[50\] or the law \[51\] forbids it, except by

## 10 Conclusion

The main purpose of this paper is to investigate the relationship between the two types of agents.

## 11 Acknowledgements

The authors would like to thank the anonymous referee for their comments.

operation of law; "2" but one cannot limit the assignability of his outstanding obligations.\[53\] All judgments may be assigned.\[54\] So, too, one may assign actions arising out of contract,\[95\] or of wrongs to property,\[66\] as a suit to restrain the infringement of a patent.\[57\] But rights of action arising out of fraud or deceit,\[58\] or for personal injuries,\[59\] are not assignable, except in states where, as in Texas, all causes of action are assignable by statute.\[60\] The claim of a contract against a city\[61\] or a claim against a state may be assigned; "61 but claims against the United States cannot be assigned " except by operation of law.\[64\]

_Contracts for personal services or otherwise appartiennant to persons or specific property_\[68\] cannot be assigned. It is enough that there is an implied intention to require personal service.\[66\] The business of an insurance agent,\[67\] or a contract to pay an annuity for the support of one's father, is not a contract for personal services.\[68\] So the nature of the contract may show that it is not assignable, as a contract to sell a certain style of printing press exclusively to or through a certain corporation,\[69\] or a contract made by a land company on conveying land to a glass factory to supply natural gas free of cost; "0 and this may control though the contract is made expressly between the parties and their assigns.\[71\]

not prevent the assignment of money due on a contract for public work after the contract has been fully performed. Appeal of City of Duluth Minn.\] 101 N. W. 1059.

52. A mortgage provided that 1' should be nonnegotiable and uncllectible in the hands of any other person than the mortgage, but it passed to a receiver appointed by a Federal court. Seattle v. Scammon Inv. & Saw. Assn \[Kan.\] 80 P. 957.

01. The transfer of trading stamps will not be enjoined on account thereof. Sperry & Hutchinson Co. v. Hertzberg \[N. J. Eq.\] 60 A. 368.

01. Curtin v. Kowalsky, 145 Cal. 431, 78 P. 962. Testimony of two plaintiff that it has been assigned to one of them establishes such assignment as against the testmony of the defendant. Mosher v. McDonald & Co. \[Iowa\] 102 N. W. 837.

01. The wrongful refusal of a bank to honor a depositor's check is not a personal wrong but a breach of contract. Robinson v. Wiley \[Mas.\] 74 N. E. 923. For money had and received. Rines v. New York & Brooklyn Brewing Co., 90 N. Y. S. 362.

01. Action for conversion assignable. Mutual Life Ins. Co. v. Allen, 212 Ill. 134, 73 N. E. 200.

01. Defendant could avail themselves of any equity or defense against the assignor. Haarman-DeLaire-Schaffer Co. v. Leuders, 135 F. 120.

01. Action for recovery of taxes on account of fraudulent alterations in it. assessment roll is assignable. Lating v. Yorest Tp. \[Mich.\] 102 N. W. 664.

01. Right of action not assignable before judgment, even to the attorney prosecuting the same, and a statute preserving the right to an executor or administrator does not render them assignable. Weller v. Jersey City, etc., R. Co. \[N. J. Err. & App.\] 61 A.

01. But a judgment may be assigned immediately after it is recovered. Reynolds v. Cavagnagh \[Mich.\] 102 N. W. 986.

01. Rev. St. 1835 art. 4647. Suit to recover penalty on a liquor dealer's bond. McLaury V. Watelitsky \[Tex. Civ. App.\] 13 Tex. Cl. Rep. 404, 87 S. W. 1045.

01. In absence of any statute. Gordon v. Jefferson \[Mo. App.\] 85 S. W. 617.

01. Bounties on coyote scalps. Bauer v. State, 144 Cal. 740, 78 P. 280.

01. Rev. St. 8 247. But this was not designed to aid persons to avoid their debts, and where contractors who were embarrassed had assigned their contract to their creditors, who had secured an injunction from a state court forbidding the contractors from collecting or the contract, the Treasury officials could not arbitrarily select between the claimants. People's Trust Co.'s Case, 88 Ct. C. 359.

01. Suit by administrative for salary due deceased as a judge, who had retired. James's Case, 38 Ct. Cl. 615.

01. See 3 C. L. 327.

01. A contract for the installation of electric apparatus, providing that the construction of circuits be under the supervision of the contractor, is for personal services. Swarts v. Narragansett Elec. Lighting Co. \[R. L.\] 59 A. 77.

01. The insurance company cannot control the use or transfer of the expiration register which was made by the agent. National Fire Ins. Co. v. Sullard, 97 App. Div. 233, 85 P. N. Y. S. 934.

01. Futher conveyed land to son on agreement to pay off incumbrances and to pay annuity. Hurley v. McCallister \[S. D.\] 103 N. W. 644.

01. Even where the corporation was dissolved, and another corporation, its successor * 5 Cur. Law. ASSIGNMENTS SS 2. 281

\_An assignment of future earnings,\_72 if limited to amount or time,73 and if not made for the purpose of defrauding creditors,74 is valid, or at least good in equity.75 Its validity is sometimes dependent on its being recorded.76 The assignment by municipal employees of their salaries is contrary to public policy,77 unless they have already earned them.78

\_Contingent interests may be assigned 79 as a remainder,\_86 rights under a will,\_81 \_inoney to become due under a contract,\_82 \_though the fund has no actual or potential existence;\_82 _but the bare possibility of a reverter is not assignable._84__

SS 2. \_Requisites and sufficiency of express assignments.\_85--An assignment need not be made on a separate paper,\_86 \_nor is any consideration necessary to its validity.\_87 \_No particular form is required to assign claims in bankruptcy.\_88 \_Delivery of a certificate,\_89 \_bill of lading,\_80 \_bank book,\_91 \_draft,\_92 \_or writing, may be sufficient.\_88 \_The acceptance of stock and the payment of the purchase price is sufficient to pass the title to stock,\_84 _but an executory contract does not pass the title_

72. See 3 C. L. 827. Campbell v. J. E. Grant Co. \[Tex. Civ. App.J 82 S. W. 794. \]

01. Assignment of wages to be earned in future under an existing contract to sequent creditors. Johnson v. Donohue v. Northern Pac. R. Co. \[Minn.\] 103 N. W. 704. \]

01. For a definite period of six months. Quigley v. Welter \[Minn.\] 104 N. W. 236. Assignment of wages to be earned under an existing employment made in good faith and for a valuable consideration, is valid, where there is a reasonable expectation that the wages covered by the contract will be earned; against such an assignment a claim for homestead exemption cannot prevail. Brooks Co. v. Tolman, 6 Ohio C. C. (N. S.) 137. \]

01. Made by a corporation to secure a loan. Cogan v. Conover Mfg. Co. \[N. J. Eq.\] 60 A. 408. \]

01. Mace v. Richardson \[Mc.\] 60 A. 701. \]

01. A city fireman, in consideration of payment to him of a percentage of his monthly salary, promised to collect and turn over to the assignee the whole amount. Mercantile Finance Co. v. Welsh, 91 N. Y. S. 723. An officer who had been wrongfully discharged by a city assigned his claim against the city, and his receiver thereafter was not entitled to the salary earned after the officer's reinstatement, or to the gratuity given him by law because of such removal. People v. Grout, 45 Misc, 742, 92 N. Y. S. 742. See 1 C. L. 823, n. 16. \]

01. But it was not concedceded that a jannot employed by the school board was a public officer. Oberdorfer v. Louisville School Board \[Ky.\] 85 N. W. 696. \]

01. See 4 C. L. 828. \]

01. A remunderman may institute proceedings to have his assignment of his rights to a fellow remunderman set aside where the same was induced by fraudulent representations as to the state of the life tenants' health. Obney v. Obney, 26 Pa. Super. Ct. 116; Obney v. Obney, 26 Pa. Super. Ct. 122. \]

01. Assigned his share in a certain mortgare in which he had a remainder under his grandfather's will. Dixon v. Bentley \[N. J. Eq.\] 59 A. 1036. \]

01. Payment to be made at certain stages of the building and on completion.

288 ASSIGNMENTS SS 3. 5 Cur. Law. until the sale is executed. \[85\] A policy may be retransferred by destruction of assignment and redelivery of policy. \[96\] The assent of guarantors is necessary for the assignment of a guarantary. \[97\] A bankrupt cannot assign property after filing his petition in bankruptcy. \[98\] Where an officer \[99\] or agent \[1\] assigns, due authority must be proved. At common law an administrator may assign choses in action. \[2\] A receiver cannot assign a contract where the original holder could not. \[3\] Failure of the assignee of a chose in action to give notice of the assignment to the debtor is immaterial as against an attaching creditor. \[4\] One must give notice to a judgment debtor of an assignment of the judgment. \[5\]

\_Record. \[4\]--\_The assignment of a mortgage on real property is a conveyance which may be recorded. \[7\] Filing is not necessary to render an assignment binding as to one who has actual notice of it. \[8\]

SS 3. \_Constructive or equitable assignments. \[9\]--\_Assignments insufficient at law may be good in equity, \[10\] if that carries out the intent of the parties. \[11\] The assignment of a verdict to be recovered, \[12\] of a fund which has no potential existence, \[13\] or of a debt to accrue under a contract, \[14\] but not of money to accrue where there is no

not legally acquire the stock. Newman v. \[5\] The entry of the assignment on the Mercantile Trust Co. \[Mo.\] 88 S. W. 6. \[95\] For sale of stock, Osgood v. Skinner, 111 Ill. App. 606. A contract that an attorney shall receive a part of the recovery is executory merely, as the cause of v. Prahl, 26 Pa. Super. Ct. 104. action remains in the client. Weliev, v. Jersey City, etc., R. Co. \[N. J. Err. & App.\] 61 A. 459. \[96\] The legal presumption of continued ownership of an insurance policy under an assignment is rebutted by the assiparous of the policy and the failure of the assignee's executor to find the assignment among the papers. Cuyler v. Wallace, 91 N. Y. S. 690. \[97\] Allgation in pleading that it was assigned with the knowledge and consent of the guarantors is sufficient. Levy v. Cohen, 92 N. Y. S. 1074. \[98\] Title passes from bankrupt on filing, and receiver cannot transfer the same without an order of the court. Muschel v, Austern, 43 Misc. 352, 87 N. Y. S. 285. \[99\] The president of a corporation has no authority to assign an account due the corporation unless duly empowered by the directors. Authority to make a loan, payable "out of the first collection following such loan," is insufficient. Cogan v. Conver Misc. Co. \[N. J. Eq.\] 60 A. 408. \[1\] Testimony of one that the opened an account at a bank, and proof of a bank book containing an account under a different name, do not show authority for the former to assign the account. Robbins v. Bank of M. & L. Jarmulsky, 90 N. Y. S. 288. Proof that a claim was assigned to plaintiff by an attorney of the assignor is insufficient without proof of the authority of the attorney in fact. MacLatchy v. Hannan, 93 N. Y. S. 282. \[2\] But in Ohio the power is taken away except in certain cases, and a transfer to a residuary legate is ineffective. Broadwell v. Banks, 134 F. 470. \[3\] Sargent Glass Co. v. Matthews Land Co. \[Ind. App.\] 72 N. E. 474. \[4\] Milligan v. Plymouth State Bank, 4 Ohio C. C. (N. S.) 585. \[5\] The entry of the assignment on the records of the court is not notice to defend. \[95\] For sale of stock, Osgood v. Skinner, 111 Ill. App. 606. A contract that an attorney shall receive a part of the recovery is executory merely, as the cause of v. Prahl, 26 Pa. Super. Ct. 104. \[96\] The assignee of a fund which has no potential existence, \[13\] or of a debt to accrue under a contract, \[14\] but not of money to accrue where there is no 5 Cur. Law. ASSIGNMENTS SS 4. 283

contract, is good in equity.15 An order,18 a negotiable draft,17 or a check in the ordinary form, without presentation,18 does not constitute an assignment of the fund. But an accepted order 10 or an order to another or a particular fund constitutes an equitable assignment thereof.20

SS 4. \_Construction, interpretation, and effect.21--\_The natural and reasonable meaning is taken,22 and the whole transaction may be considered.28 A mere option must be enforced before default or within a reasonable time thereafter, or it will not result in an assignment.24 A devised of land, subject to a lease, is an assignee of the rents.28 Unpaid dividends do not pass with an assignment of shares of stock.26 Assignments may be absolute 27 or for collateral security,28 which may be shown by the conduct of the parties.29 But a right to repurchase,30 or even an amount due the d'Averver of the order constituted an assignment of the d'Aver's account. Comer v. Floore, \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 410, 88 S. W. 246. 21. See 3 C. L. 334. 22. Where a contractor, from whom 10 per cent, was reserved until the work was completed, after part performance assigned his contract to another, who was to have express recital that it is for security, may not be sufficient to show that it is not absolute.\[31\] An assignment to an attorney of a proportion of the damages prevails over a subsequent assignment, regardless of notice; \[22\] and in many jurisdictions the first assignee prevails; notwithstanding no notice has been given,\[33\] as it becomes effective, as between the parties, when made.\[34\] An assignment carries with it any collateral as a necessary incident.\[25\] An assignment pending action does not abate the same, but it may be prosecuted to judgment in the name of the original plaintiff,\[36\] and it cannot result in changing an action at law to a suit in equity.\[37\] As the assignee acquires only the assignor's interest,\[38\] unless the thing assigned was collateral to a negotiable note.\[39\] or was a bill of lading,\[40\] he takes it subject to all defenses that could have been set up against the assignor at the time of the assignment; \[41\] but he is not liable for a previous tort of his assignor.\[42\] An assignment may be set aside on the ground of fraud; \[43\] but in the absence of contradictory evidence, where a consideration is expressed, it will be presumed bona fide.\[44\] Where an assignment is made to an attorney so as to settle a claim, the client cannot revoke it after settlements have been made.\[45\]

business by a bill of sale, but reserved the |signee a lien upon the vendor's interest in right to repurchase at the contract price and any money advanced, less money re- and not exceeding the unpaid purchase caused in the course of the business, and exercised the option, he cannot compel the other party to account for profits, as the sale was absolute. Kerting v. Hatcher, 216 N. E. T88.

39. Contractor assigned his contract to his surety for security, but treated by the parties as an absolute assignment. Letna Indemitry Co. v. Ladd \[C. C. A. I35 F. G36.

01. Attorney contracted with owner of real estate to take proceedings to recover damages from city for the taking of land for streets, in consideration of the assignment to him of 8 per cent thereof; a subsequent grantee of the landowner was liable to the attorney. Flannery v. Geiger, 92 N. Y. S. 785.

01. The first assignee of a judgment prevails over a bona fide second assignee, though the assignment was not filed or notice given. Curtin v. Kowalsky, 145 Cal. 431, 78 P. 962.

01. Regardless of notice to the debtor. Quigley v. Welter \[Minn.1 104 N. W. 236. But see note, "Can subsequent assignees obtain precedence by first giving notice?" 3 C. L. 334.

01. An underwriting agreement, by which bonds with a bonus of stock was to be purchased at a certain price, was with the bonds assigned to a bank, and the latter was held to have the right to require the delivery of the stock. Kirkpatrick v. Eastern Milling & Export Co., 135 F. 146. Bona fide assignees of notes, also become the owners of trust deeds securing them, subject only to equities of makers and of third parties of which they had notice. Kittler v. Studabaker, 13 Ill. App. 342.

01. An assignment to plaintiff's attorney as security for his fees. Mayo v. Halley, 124 Iowa, 678, 100 N. W. 529.

01. By a mere assignment by plaintiff of interests in his claim under the alleged contract, and making the assignees parties defendant. Butterly v. Deering, 92 N. Y. S. 675.

01. The assignment by a vendor of his interest in a land contract vests in the assignment of the author. Lamm v. Armstrong \[Minn.1\] 104 N.

01. Where one acquires in good faith a negotiable note which was fraudulently issued, he acquires a good title to any collateral security assigned to him, though the latter was nonnegotiable, White v. Dodge \[Mass.\] 73 N. E. 549.

01. One who takes a bill of lading from a verode acquires an unassailable title to the goods, notwithstanding the fraud of the vende, even as against the defrauded vendor. National Bank of Bristol v. Baltinmore & O. R. Co., 99 Ind. 661, 59 A. 134.

01. Williams v. Neely \[C. C. A.\] 134 F. I. The assignee of a note which provided that the whole was to become due on any default in the payment of interest, who took the same after such default, takes it subject to all defenses. Ray v. Baker \[Ind.1\] 74 N. E. 619.

01. A contract for building a tunnel provided that the contractor should be liable for all damages to abutting property; the contraction became liable in damages, and then assigned his contract to an . signew, who used to do everything necessary in order that the assignor might receive all menors who on the contract. Lockwood v. Naughton Co., 93 N. Y. S. 614.

01. But the New York municipal court is not a court having equitable jurisdiction. Midler v. Lee, 91 N. Y. S. 148. Where a judgment creditor assigned for a consideration a judgment to an attorney of the lobtor, who was ignorant that an execution and sale of land had been made thereunder, the creditor was estoped from claiming the hand under the sale, as he had assisted in the concealment. Barto v. Davis \[7Wash.\] 79 P. 623.

01. Assignment of a mortgage.. Weldman v. Pech, 92 N. Y. S. 493.

01. Attorney was not to be deprived of his right to compensation for his services. Foot v. Smythe \[Colo 5 Cur. Law. ASSIGNMENTS SS 5. 285

SS 5. _Enforcement of assignment and of rights assigned._"--The assignee of the chose in action may sue in his own name,"47 though there is no consideration,"67 nor the assignment was for security,"68 or the assignee is merely a trustee for his assignor."69 But the assignment must be bona fide, and an attorney who takes a claim on shares,"51 or an assignee who takes an assignment made without consideration, and merely for the purpose of bringing suit for the benefit of the assignor, is not a bona fide holder."69 An assignment by a party to a controversy of his rights therein is ineffectual to enable him to testify."69 There must be due proof of execution of the assignment,"69 and in Maine for an assignee to sue in his own name he must file with the writ a copy of the assignment."69

An assignee of part of a claim may sue to recover the portion assigned,"69 but a single cause of action cannot be split up by several assignments without the consent of the debtor."69 An assignee may sue to have a contract reformed,"69 and assignees are bound by the results of any action brought by their assignors,"69 and cannot enforce a claim,"69 or a nonnegotiable note where the same was paid in good faith to the assignor before notice of the assignment."69 An assignee who has knowledge of a defect may not be able to enforce a claim which was good in the hands of the assignor."69 The assignee of a chose in action 69 must sue in the name of his

46. See 3 C. L. SS5. 47. An agent guaranting an account for his employer, and being compelled by agreement to pay the same weekly, becomes in law the assignee of the account, and is entitled to sue in attachment in his own own. McLane v. Colburn, 2 Ohio N. P. (N. S.) 257. 48. Open account. Wallace v. Leroy \[V. Va.\] 50 B. E. 243. 49. A bona fide assignee of claims as collateral is entitled to sue thereon his own name. City Bank of New Haven v. Thorp \[Conn.\] 61 A. 428. 50. Complaint is sufficient which alleges the assignment of a judgment from the owner, though it does not allege that plain-if is still the owner. Evidence of the assignment of all judgments of assignments is sufficient evidence of assignment of a judgment of a judgment of prior date, in the absence of the evidence of any other assignment. Curtin v. Kowalsky, 145 Cal. 431, 78 P. 962. 51. An agreement whereby an attorney, in consideration of the assignment to him of a non-negotiable chose in action, agrees to enforce collection at his own expense, and pay the assignor one-half of the proceedings, is invalid as against public policy. Slado v. Zeitfuss \[Conn.\] 59 A. 406. 52. Assignment by a lodge to Its officers is colorable only. Coombs v. Harford, 99 Mc. 426, 59 A. 529. 53. It is not made in good faith. Verstine v. Yeaney, 210 Pa. 109, 59 A. 689. 54. Positive statement of a witness that an assignment was signed by a given person is sufficient, though it appears he was not present when the instrument was signed. Bauer v. State, 144 Cal. 740, 78 P. 250. In action by an assignee the objection cannot he raised for the first time on an appeal that there was no proof of the assignment. Conroy v. Boeck, 31 N. Y. S. 50. 55. It was sufficient that the assignment was made on the bill of items annexed to the writ. Sleeper v. Gagne, 99 Me. 306, 59 A. 472. 56. Where the assignee of part sned the author and the author and the assignee of another part and the assignor, alleging that the two latter would not join as co-plaintiffs, he stated no cause of action against them, and the debtor was entitled to have the same strikeen out. Chase v. Deering, 93 N. Y. S. 434. 57. But on appeal, in absence of any-thing to the contrary in the record, It will be presumed that the debtor consented. Sincell v. Davis, 24 App. D. C. 218. 58. Contract for a lense to a corporation to be formed by one of the parties, and when the corporation was formed the lease was assigned to it. Pittsburgh Amusement Co. v. Ferguson, 100 App. Div. 453, 91 N. Y. S. 66. 59. Rights under a contract assigned, the issue of the existence of the contract having been litigated in a previous action. Buterly v. Deering, 92 N. Y. S. 675. 60. Where the assignee had allowed payment of claims assigned to him as collateral to be paid to the assignor, such payment constituted a defense to an action against the debtor. City Bank of New Haven v. Thorp \[Conn.\] 61 A. 428. 61. The recording of the mortage is not notice to the mortgger, but it is notice to a purchaser from the mortgger. Cornish v. Woolverton \[Mont.\] 81 P. 4. Where the assignee sues the person liable, who has made a settlement with the assignor after the assignment, the must allege either that the assignment was filed, or that the person had notice. Kansas City, etc., R. Co. v. Jos-lin \[Arck.\] 86 S. W. 435. 62. Where one took an assignment of wages earned knowing that the debtor had no authority to incur any expense beyond the value of the proceeds of mining, he could not enforce the same. Farrell v. Gold Flint Min. Co assignor in some jurisdictions and the assignor, though only a nominal plaintiff, must be living.64

**ASSIGNMENTS FOR BENEFIT OF CREDITORS.65**

**SS 1. Nature of Transaction in General**

**SS 2. Statutory Provisions and Conflict of**

**SS 3. Right to Make a General Assignment**

**SS 4. Fitting, Recording or Registering;**

**SS 5. Meaning and Effect In General**

**SS 6. Learning and Equitableness (287).**

**SS 7. Property Passing to and Rights of**

**SS 8. Light to Make a General Assignment**

**SS 9. Collection of Assets and Reduction**

**SS 1.** \_Nature of transaction in general.66--A transfer of property to a trustee upon a trust to distribute to creditors is an assignment for the benefit of the latter.67 So also, under the statutes of some states, the giving of a preference by an insolvent debtor constitutes such an assignment.68 But such statutes do not apply where the preferences given are those established by law.69

**SS 2.** _Statutory provisions and conflict of laws.70--The national bankruptcy_

**SS 3.** _Nature of transaction_

**SS 4.** \_Nature of transaction in general.66--A transfer of property to a trustee upon a trust to distribute to creditors is an assignment for the benefit of the latter.67 So also, under the statutes of some states, the giving of a preference by an insolvent debtor constitutes such an assignment.68 But such statutes do not apply where the preferences given are those established by law.69

**SS 2.** _Statutory provisions and conflict of laws.70--The national bankruptcy_

**SS 3.** _Nature of transaction_

**SS 4.** _Nature of transaction_

**SS 5.** _Nature of transaction_

**SS 6.** _Nature of transaction_

**SS 7.** _Nature of transaction_
5 Cur. Law. ASSIGNMENTS FOR CREDITOPS $\\lx@sectionsign$ 6. 287

## 4 Filing, recording or registering; qualifying of assignee, removals and substitution \[7\]

As the right to make the assignment exists independent of statutory provisions, a failure to comply therewith does not render such assignment absolutely void, but only voidable at the instance of creditors and subsequent purchasers in good faith \[7\]

## 5 Meaning and effect in general \[7\]

Under the statutes of most states the assignment dissolves all liens created on the property within a specified time prior to the assignment \[8\]

## 6 Legality and equitableness \[8\]

The purpose of the assignment must be legal \[8\]. An assignment by a corporation must conform to the statutory requirements regulating the transfer of its property \[8\]. By assenting to the assignment, creditors will be estopped to question the validity thereof \[8\]. Under the statutes of some states the creditors by commencing an action to enforce their claims may avoid the assignment \[8\].

_Reservation of property \[8\]_

_Preferences \[8\]_

--In most states an assignment preferring certain creditors is void \[8\].

## 7. Property passing to and rights of the assignee therein

All the right, title and interest of the assignor in the property conveyed passes by the assignment to the assignee." Property inherited after the execution of the deed of assignment is no part of the trust estate." The assignee of a general contractor takes subject to the right of laborors and materialmen to subsequently file mechanic's liens for work performed prior to the assignment."

\_Property transferred or conveyed by assignor."--\_The property conveyed depends largely upon the description in the instrument of assignment."

Liability of assignee; bond."--\_The assignee should be upheld in all of his actions intended for the benefit of the estate and which do not result in injury thereto," but he is liable for all losses occasioned by his negligence." An assignee or trustee continuing the insolvent's business and signing a purchase-money note for material with his own name and the additional word "Trustee," the question whether the sale was made on the trustee's individual credit, or the credit

S. D. 125, 24 L. R. A. 524. It has been held \[59 A. 669. Also the assignee may become a that a debtor, if not prohibited by statute, purchaser at a sale under such mortgage, may, even when insolvent, prefer a cred-especially where the trust estate could not lift in an assignment for the benefit of creditors. Hull v. Jeffrey, 8 Ohio, 390: Grover v. Wakeman, 11 Vend. IN. Y.J 187, 25 Am. Dec. 624; Paul v. Baugh, 85 Va. 955; Perkins v. Hutchinson, 17 R. I. 450; Talley v. Curtain, 54 F. 43: Arthur v. Commercial, etc., Bank, 9 Smedes & M. \[Miss.\] 394, 48 Am. Dec. 719.

An assignment law does not deprive debt- ors of their common-law right to prefer creditors. Kavanaugh v. Oberfelder, 37 Neb, 647; Wharton v. Clements, 3 Del. Ch. 209; Woonsocket Rubber Co. v. Felley, 30 F. 805; Huli v. Jeffrey, 8 Ohio, 390; Crow v. Beardsley, 68 Mo. 435; Sandwich Mfg. Co. v. Max, 5 S. D. 125, 24 L. R. A. 524; Manning v. Beck, 129 N. Y. I. 14 L. R. A. 198. It is only preferences conferred by the assignment that are forbidden, not preferences given by other instruments, and as a separate and independent transaction. Gummersell v. Hanblom, 19 Mo. App. 274; Lake Shore Banking Co. v. Fuller, 110 Pa. 156. A preference is not invalid except as prohibited by the assignment law. Mackellar v. Pillisbury, 48 Min. 896; Kavanaugh v. Oberfelder, 37 Neb, 647. The right of a debtor to pay one or more credorus in preference to others, and the right to make a general assignment for the benefit of all of its creditors, ratably, are distinct and independent rights. Sandwich Mfg. Co. v. Max, 5 S. D. 125, 24 L. R. A. 524. From note to Bank of Little Rock v. Frank \[Ark.\] 88 Am. St. Rep. 65, 86.

80. See 3 C. L. 341.

01. After the assignment the assignor has no further right of control over the property. Gilbert Paper Co. v. Whiting Paper Co. \[WVis.\] 102 N. V. 20. Assignee takes absolute title. Rowley v. D'Arcy, 184 Mass. 550, 69 N. N. 325. Under the "Martin Act" (Gen. St. p. 3870), the surplus resulting from a tax sale is properly paid to the owner's assignee, though the latter has conveyed his interest in the land to the purchaser. Gavenesch v. Jersey City \[N. J. Law\] 59 A. 25.

01. This is true though it is incumbered by a mortgage as security for some of the assignor's debts. Read v. Reynolds \[Md.\]of the trust estate, is one for the jury,"8 and on this question evidence is admissible as to whether his services were gratuitous or not.99

**SS 12.**_Presentment and allowance of claims._\[20\]**.**-An order granting or refusing the petition of a creditor to be permitted to file his claim for allowance after the expiration of the time limited to do so is a matter within the discretion of the trial court,\[21\] and in determining the question the court may consider the equities of the petitioner's claim,\[22\] and its order will not be disturbed on appeal unless there be a clear abuse of discretion.\[23\] An affldavit to the claim being defective, it cannot be amended after the expiration of the time for filing the claim, so as to relate back.\[24\] A creditor's affldavit to his claim stating that the account is "correct" is not equivalent to saying that it is "true" and "that the debt is just." 25 It does not constitute a repudiation of the assignment for a creditor to attack its validity without right,\[26\] or for him to sue on his claim and reduce it to judgment,\[27\] nor does the latter constitute a withdrawal of a claim which has been filed.\[28\] The latter remedy is not inconsistent with the prosecution of the claim before the assignee, unless there is an attempt to seize the assigned property on execution.\[29\]

**SS 13.**_Classes and priorities of debts._\[30\]**.**-In some states the claims of laborers and employees for salary are preferred.\[31\] A secured creditor is entitled to share in the general assets in the same proportion with other creditors, and without any deduction because of his collateral security.\[32\] One loaning money upon a third person guaranting payment is not entitled to a preference over such guarantor upon the distribution of the borrower's assets.\[33\]

**SS 14.**_Satisfaction and discharge of debts and claims._\[34\]**.**-A claim filed is not extinguished by the fact of such filing,\[35\] or by the payment of a dividend thereon less in amount than the face of such claim,\[36\] and the creditor many enforce payment of the balance due him by proceeding against his debtor by judgment or by other lawful means,\[37\] so, too, such creditor may offset his claim against any claim held against him by the assignee,\[38\] and the latter cannot object thereto on the ground that the creditor thereby increased his dividends.\[30\] An assignee cannot recover payments made to a creditor by mistake, the creditor having changed his position to his prejudice in reliance thereon.\[40\] In New York an assignee willfully neglecting to obey a decree for the payment of money is guilty of contempt.\[41\]

**SS 15.**_Accounting, settlement and discharge, or failure of trust._\[42\]**.**-Where the assignee files an answer to a petition for a citation to account, and the answer

**SS 16.**_Accounting, settlement and discharge, or failure of trust._\[42\]**.**-Where the assignee files an answer to a petition for a citation to account, and the answer

**SS 17.**_Accounting, settlement and discharge, or failure of trust._\[42\]**.**-Where the assignee files an answer to a petition for a citation to account, and the answer

**SS 18.**\_Where the offLcers of a corporation agreed to prefer one loaning the corporation money in case anything happened, held not to give the lender a preference over the individual claims of the officers. In re Kit- taining Elec. Light, Heart & Power Co.'s Estate, 210 Pa. 6, 59 A. 264.\*\*\_Hughes v. Potts \[Tex. Civ. App.\]\_87

**SS 19.**_Accounting, settlement and discharge, or failure of trust._\[42\]**.**-Where the assignee files an answer to a petition for a citation to account, and the answer

**SS 10.**_Accounting, settlement and discharge, or failure of trust._\[42\]**.**-Where the assignee files an answer to a petition for a citation to account, and the answer

**SS 11.**_Accounting, settlement and discharge, or failure of trust._\[42\]**.**-Where the assignee files an answer to a petition for a citation to account, and the answer

**SS 12.**_Precument and allowance of claims._\[42\]**.**-An order granting or refusing the petition of a creditor to be permitted to file his claim for allowance after the expiration of the time limited to do so is a matter within the discretion of the trial court,\[21\] and in determining the question the court may consider the equities of the petitioner's claim,\[22\] and its order will not be disturbed on appeal unless there be a clear abuse of discretion.\[23\] An affldavit to the claim being defective, it cannot be amended after the expiration of the time for filing the claim, so as to relate back.\[24\] A creditor's affldavit to his claim stating that the account is "correct" is not equivalent to saying that it is "true" and "that the debt is just." 25 It does not constitute a repudiation of the assignment for a creditor to attack its validity without right,\[26\] or for him to sue on his claim and reduce it to judgment,\[27\] nor does the latter constitute a withdrawal of a claim which has been filed.\[28\] The latter remedy is not inconsistent with the prosecution of the claim before the assignee, unless there is an attempt to seize the assigned property on execution.\[29\]

**SS 13.**_Classes and priorities of debts._\[30\]**.**-In some5 Cur. Law. ASSISTANCE, WRIT OF. 291

is equivalent to an account, it is error to dismiss the proceedings.\[43\] In such a case the court should direct that notice be given to creditors, and, if exceptions are filed, should proceed in the usual manner to determine whether the answer is equivalent to an account, and, if not, should direct that the assignee file an account.\[44\] In New York the report of a referee stating the account of an assignee cannot be filed after the assignee's death and before his personal representative is made a party.\[45\]

There being a vacancy in the position of assignee, a receiver may be appointed to take charge of and collect the claims,\[46\] and if no competent person will accept the position as receiver, the court can assign the duty to the master commissioner.\[47\] An order of discharge being made after a hearing and upon notice is, in effect, a final judgment, and, as such, is binding upon assignors and creditors, and is subject to attack only upon grounds upon which other judgments are assailable.\[48\]

SS 16. _Rights of creditors under a void assignment, or after the assignee's discharge._--By recent legislation in Wisconsin the fact that the assignment is void does not enable the creditors to reach the property by attachment or garnishment.\[49\] The assignee being discharged, a creditor may sne in his own name to set aside a fraudulent conveyance made by the assignor prior to the assignment,\[50\] and in any event another creditor is the only person who can object to such procedure.\[51\]

## 6 Assistance, WRIT OF.

The remedy is founded on the principle that a court of equity will, when it can do so justly, carry its decrees into full execution without relying on the co-operation of any other tribunal.\[52\] Its issuance rests in discretion.\[53\] The judgment awarding possession is the sole justification of the writ, and it should not issue to require something to be done which the judgment does not require,\[54\] and in no event should it issue without notice to the person in possession,\[55\] though he acquired possession under a conveyance executed pending the foreclosure suit.\[56\] It will issue to put into possession a purchaser at foreclosure sale or any one who by the decree becomes entitled to the possession of the land in controversy,\[57\]

43, 44. 'Junista Bldg. & Loan Ass'ns As-signee's successor. Inscribed v. Dots
45\. Code City, Proc. $ 755. In re Venable, \[Vash.\] 79 P. 782. See Judgments, 4 C
93 N. Y. S. 1074. This is true though the L. 287.

reference had signed the report and had it ready for delivery previous to the death of the assigence. Id. This is not caused by Co. \[Vish\] 102 N. W. 20.

General Assignment Act, $ 10 (Laws 1877.) D. 545, e. 466). Id. The subsequent appointment of the representative of the deceased assignee's estate in place of the de-censed assignee does not validate such filing. Id.

46, 47. Andrews v. Wilson's Assignees, 26 Ky. L. R. 658, 82 S. W. 391.

48. Freeman v. Vood (N. D.) 103 N. W. 392. Complaint in action to set aside held insufficient in that it did not show that the remedy by motion was unavailable or inadequate, or that the new evidence could not have been discovered and presented at the hearing or within one year thereafter, or in what the newly discovered evidence consisted. Id. Order of discharge, though procurved by fraud, held not subject to collateral attack and to constitute a defense viding such purchaser has a clear right to possession.88 It will issue as against one in possession who entered pending the suit, under any of the parties,89 or as a trespasser,86 or against one who conceals his title and represents to the parties that his possession is subject to the suit,61 or against one in possession under an unrecorded instrument;62 but not as against one who took possession prior to the filing of his pendens.88 One in possession under an instrument not entitled to record may be estopped to assert his right thereunder where he conceals such right during the suit,88 and the fact that he does not know that his rights under the concealed instrument were not affected by the suit does not affect the force of such estopped.88 Such estopped is not merely for the benefit of the purchaser at the foreclosure sale, but is rather for the benefit of the complainant who in reliance on the concealment has neglected to make the person concealing a party.89 The issuance or refusal of the writ does not conclude the parties interested except so far as it adjudes the right of possession as a result of the suit.87

**ASSOCIATIONS AND SOCIETIES.88**

**8 1. Definition, Nature, and Organization**

**8 3. The Association and Persons Not Members (295).**

**8 2. Internal Relations, Rights, and Duplex (293).**

**8 5. Dissolution and Termination (297).**

**SS 1.** _Definition, nature, and organization.90--A voluntary unincorporated association is not a co-partnership unless engaged in some business as an association.90_

**SS. Such right, however need not be es-**

**84 Mich. 591; Ex parte Jenkins, 48 S. C. 686.**

**8 2.** Laws 1902, p. 631, does not apply to an instrument not entitled to record. Strong v. Smith \[N. J. Eq.\] 60 A. 66.\*\*

**63.** **Baird v. Van Vechten, 44 Misc. 279, 89 N. T. S. 879.**

**Note: The writ can Issue on the application of no one except a party to the suit (Vilson v. Polk, 13 Smedes & M. \[Miss.\] 132, 51 Am. Dec. 151); but a purchaser at a sale under a decree is deemed to be a party within the rule (Jones v. Hooper, 60 Miss. 510). It will not issue against any but a party to the suit in which it was sonight, or his representative, or one coming into possession pendente lite. Comr. v. Fiction, 61 F. 731; Van Hook v. Throckmorton, 8 Paige \[N. Y.\] 83; Terrell V. Allison, 21 Vwall. \[U. S.\] 283, 22 Law. Ed. 634.**

\*\*Musgrave v. Gray, 123 Ala. 376, 26 S. 648, 82 Am. St. Rep. 124. It is only allowed when the right is clear. Barton v. Beatty, 28 N. J. Eq. 412; National Building & Loan Ass'n v. Strauss \[N. J. Eq.\] 49 A. 137. And it is not customary to issue it where there is a bona fide contest as to the right to possession or where the rights of the principal parties have not been fully adjudicated In the principal suit, Van Meter v. Borden, -25 N. J. Eq. 414; Roach v. Clark, 150 Ind. 93, 65 Am. St. Rep. 363; Wiley v. Carlisle, 93 Ala. 283; Knight v. Hough-talling, 94 N. C. 411; Hayward v. Kinney, 5 Cur. Law. ASSOCIATIONS AND SOCIETIES SS 2. 293 SS 2. _Internal relations, rights, and duties._"--Judicial tribunals will not interfere with the internal government of the affairs of voluntary associations or membership corporations where the action complained of has been taken in accordance with reasonable by-laws and regulations." But disciplinary action, such as suspension or expulsion, is invalid if not taken in conformity with the society's by-laws and statutes governing procedure." Thus suspension of a member entitled to privileges or rights of property, at an illegal meeting, without notice or opportunity to be heard, is illegal," and in such case equity has jurisdiction to grant relief." Procedure of lodges is presumed to have been regular, in the absence of a contrary showing." Procedure in contests of election of trustees of an association is statutory in New York." The rights of members of a voluntary or unincorporated association are fixed by and depend upon the constitution and articles of association " which constitute

often unincorporated. In the latter case, thes are merely voluntary associations of persons for some common purpose, usu- by- and thes are not co-parternships, St. Paul ally social, literary, or political. The V. St. Paul Bookbinders' Union words "society" and "club" have no very definite meanings in the law. They may be formed for a great variety of purposes, and by- Laws \[2d Ed.\].

there is no uniformity in their constituutions and rules. See Com. v. Pomphret, St. 921. Civil courts are inclined to sustain rules and proceedings, and mere informal- by- in removal, it for a just cause, is no ground for interference by mandamus. In having the capacity of succession. Un- by- to- or in- to- or in- to- to- or in- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to- to-- to- to-- to-- to-- to- the contract of membership, and consent thereto is necessary to constitute one a member.79 In the case of a corporation, members' rights depend upon its powers derived from the state and set forth in its charter and by-laws and regulatory statutes.80 By-laws inconsistent with the purpose of the corporation, and by-laws which provide for a forfeiture of the rights of membership in case of refusal to abide by such inconsistent by-laws, are unreasonable and invalid.81 Thus a corporation organized for literary and social purposes cannot enforce by-laws, pledging support to a political organization and providing that only those abiding by such by-laws shall be members.82 A provision of the regulations of the relief department of a railway, and of a member's contract, that a recovery for injuries or death against the company shall operate as a release of claims against the relief department is reasonable and valid 83 and is binding upon him and his beneficiaries or legal representatives, in case of his death.84 Mandamus will lie against an incorporated association and its officers at the instance of a member, to compel the performance of an act insuring to the member his rights under the charter and by-laws.85

An incorporated beneficial association has inherent power to expel members who violate reasonable by-laws,86 and are hostile to the association.87 A by-law providing for expulsion for defamation of officers or members, causing dissensions and disorders in the organization, is reasonable.88 Failure to pay assessments may terminate membership,89 the validity of an assessment depending upon the rules and regulations of the association.90 Courts will not generally prevent a regular expulsion for violation of a reasonable rule,91 although they may refuse to aid in the enforcement of the rule.93 A suit for reinstatement may be defeated by 79. Brokers' association which adopted new constitution, changed dues, and transfered assets to new organization, lost its identity, and an old member did not become a member of the new organization unless he assented to new constitution. Konta v. St. Louis Stock Exch. \[Mo.\] 87 S. W. 69. S. 86. Stein v. Marks, 44 Misc. 140, 89 N. Y. 8. 921. S. Such by-laws infringe state Const. art. 1, $ 1; prohibiting distranchism or deprivation of rights or property unless by law of the land or judgment of peers. Stein v. Marks, 44 Misc. 140, 89 N. Y. S. 921. S. Stein v. Marks, 44 Misc. 140, 89 N. Y. 8. 921. Note: As to the subject-matter of by-laws in general, including conformity to charter and reasonableness, see Boisot on By-Laws, Ch. III, $ 70-86. S. 84. Baltimore & O. R. Co. v. Ray \[Ind. App.\] 73 N. E. 942. S. The directors of a political club and the custodian of a list of members refused to grant a member an opportunity to inspect the list to institute measures to promote the objects for which the club was organized, and to prevent it from being used to further the political ambitions of any member of the club, and to oppose the election of incompetent public officials. McCintock v. Young Republicans of Philadelphia, 210 Pa. 115, 59 A. 691. S. Del Ponte v. Societa Italiana di M. S. Guglielmo Marconi \[R. L\] 60 A. 237.

## 5 Cur. Law. Associations and Societies & 3.

laches,\[93\] and where expulsion is for nonpayment of dues, tender of dues, or an attempt to learn their amount, is necessary before a suit for reinstatement can be successfully maintained.\[94\] One who has forfeited membership in a beneficial association for failure to pay assessments in time cannot thereafter be compelled to pay the assessment.\[95\] An association is not estopped to deny that a person was ever a member, where such person alleges, in bringing suit to enforce rights of membership, that he did not know of his expulsion for nonpayment of dues, since he could not in such case have been deceived to his injury.\[96\]

Where the by-laws of a lodge are not strictly complied with, in the giving of a bond by one of its trustees, the acceptance by the lodge of the bond is a sufficient approval,\[97\] and the sureties on the bond cannot complain after such action by the lodge.\[98\] The bond of a trustee of a lodge in which annual elections are required, which provides that it shall continue in force so long as the trustee holds office by re-election or otherwise, is valid and enforceable according to its terms.\[99\] Sureties on a trustee's bond given to secure a lodge are not released from liability by a change or increase in the membership of the lodge,\[1\] nor by a change in the personnel of the board of trustees, their principal reunaining a member thereof.\[9\] But a change in the by-laws, requiring a different kind of bond, is an implied release of liability on a bond of the former kind.\[9\]

The association and persons not members.\[94\]--Members of an unincorporated association, not engaged in business as an association but organized only to promote common interests of members, are liable on contracts made by the association, if at all, only on the law of principal and agent.\[9\] Members of a political party, who pay monthly dues, are not personally liable to one employed by trustees to render services in connection with the publication of a party newspaper,\[9\]

Delay of over a year, during which seats, valueless when expulsion took place, Peul Typotheae v. St. Paul Bookbinders' became worth $7,500, fatal to relief in Unityo No. $7 \[Minn.\] 102 N. W. 725, equity. Konta v. St. Louis Stock Exch. \[Moc.\] $7 S. W. 969.

## 8 Sv. W. 969.

Delay of over a year, during which seats, valueless when expulsion took place, Peul Typotheae v. St. Paul Bookbinders' became worth $7,500, fatal to relief in Unityo No. $7 \[Minn.\] 102 N. W. 725, equity. Konta v. St. Louis Stock Exch. \[Moc.\] $7 S. W. 969.

## 19.

since such trustees have no implied power to incur liabilities beyond the amount of the fund provided by the dues.' But where such fund is sufficient at the time of the employment of the plaintiff and a portion of it has been diverted to pay off liens on the plant, thus enhancing the value of property of the association, the association is liable.8 A suit seeking to enforce payment of a debt out of trust funds of an association is not objectionable as one seeking to enforce a personal liability of members.9

## 4 Actions and litigation

At common law unincorporated societies, whether organized for business or other purposes, are not entitled to recognition in the courts in their common name,11 and cannot sue 12 or be sued 13 in such name. Suit must be brought in the name of the members, or in the name of a few as representing the interests of all.14 Whether all members of such an association should be made parties should be raised by special, not by general, demurrer.15 The right to sue an unincorporated association in the name under which it is known is frequently given by statute.16 Statutes authorizing suits against such associations under the common name do not authorize suits by them under such name.17 An unincorporated association whose only function is the promotion of common interests of its members, and which is not engaged in any business, as an association, cannot be sued under its common name by reason of a statute authorizing such suit against associations transacting business under a common name.18 An action for a breach of contract made by sueh an association for its members must be brought against the members individually.19 Trustees of an incorporated association, expressly authorized to commence suit on a bond, may sue thereon without joining the corporation, being trustees of an express trust.20 Under the Maine statute a lodge may sue in the name of its trustees for the time being.21 An assignment by a lodge to certain officers of a cause of action on a bond without consideration merely to sue for the benefit of the lodge, does not entitle the assignees to maintain the action in their own names.22

Footnote 18: A. L. L.

5 Cur. Law. ASSUMPSIT SS 1.297

may restrict themselves to tribunals created by the association; "" but such a restriction is not binding when the enforcement of a contract or property right is involved.24 Directors of a labor association, whose duty it is, under the rules and regulations, to decide important questions referred to them by different districts, are not authorized to settle grievances of individual members, and resort to them is not a condition precedent to the maintenance of an action by members for relief from illegal suspension.25

In New Jersey the doctrine applicable to service of process on agents of foreign corporations is applied also to agents of foreign unincorporated associations.26 Thus service must be upon an agent having a representative character respecting the subject-matter of the litigation.27

SS 5. _Dissolution and termination.28_--Upon a dissolution of an association in the funds of which members have a pecuniary interest, such funds remain, in equity, the property of its members, and they are entitled to have the fund divided between them.29 An unincorporated Lloyd's association of fire underwriters is subject to adjudication as an involuntary bankrupt.30

**ASSUMPSIT.**

**SS 3. Nature, Form, and Propriety of Action (297).**

**SS 4. Evidence (301).**

**SS 1.**_Nature, form and propriety of action.31_--Assumpsit will not lie upon a sealed obligation.32

**SS 2. Pearson v. Anderburg \[Utah\] 80 P. among the persons recognized as members at the time of the dissolution, and the personal representatives of deceased members. Hopkins v. Crossley \[Mich.\] 101 N. W. 822.**

**SS 4.**_Evidence (301)._

**SS 1.**_Nature, form and propriety of action.31_--Assumpsit will not lie upon a sealed obligation.32

**SS 2.**\_Pearson v. Anderburg \[Utah\] 80 P. among the persons recognized as members at the time of the dissolution, and the personal representatives of deceased members. Hopkins v. Crossley \[Mich.\] 101 N. W. 822.\*\*

**SS 30.**\_Bankr. Act. July 1, 1898, 541, $ 4b;

**SS 41.**_In Ye Seaboard Fire Underwriters_ \[Utah\] 80 P. 87. Where propriety rights in an association are involved. a claimant is not obliged to exhaust the remedies by appeal within the association before bringing suit. Supreme Court of Independent Order of Foresters v. Mutter. 105 Ill. App. 518.\*\*

**SS 2.**\_Moeller v. Machine Printers' Beneficial Ass'n \[R. L\] 60 A. 691.\*\*

**SS 26.**\_Saunders v. Adams Exp. Co. \[N. J. Law\] 58 A. 1101.\*\*

**SS 27.**_Under P. L. 1903, pp. 545, 546, providing that service upon an unincorporated association may be made upon the president or any other officer for the time being or the agent, manager, or the person in charge of the business of such organization, service upon the local agent and route agent of an express company was held sufficient. Saunders v. Adams Exp. Co. \[N. J. Law\] 58 A. 1101._

**SS 28.**_See 3 C. L. 348._

**SS 29.**\_The "Old Volunteer Fire Department of Detroit" was incorporated by a special act of the legislature, which provided for the uses to which its funds should be devoted. The funds were derived mainly from members. After the purpose of the organization had ceased it dissolved and placed the funds in the hands of a trustee for a special purpose, which failed. Held, such fund did not escheat to the state but should be divided _Waiver of tort.${}^{33}$--Where the facts authorize such action, a party injured may waive the tort and sue in assumpsit.${}^{34}$ But an election to proceed on contract is binding and precludes the party so electing from later resorting to an action in tort.${}^{35}$ A statement by plaintiff in an affidavit in opposition to a motion for a change of venue that the action is in tort is not a binding election to proceed in tort, such statement having had no effect on the court's decision.${}^{36}$ But where plaintiff obtains a reference on the faith of a formal declaration by him that his action is on contract and not in tort, such conduct is a binding election.${}^{37}$ Where the grevamen of the complaint is on contract, the fact that there are allegations charging tortious conduct on the part of defendants does not make the action one sounding in tort.${}^{38}$_

SS 2. _The common counts.${}^{30}$--Wherever the facts are such that the law raises an implied promise, there may be a recovery under the common counts;${}^{30}$ where the action is based upon an express contract, special assumpsit should be brought.${}^{41}$ Where an executory contract is set out in the declaration, and no more is shown by the evidence, recovery for the breach cannot be had under the common counts.${}^{42}$ But where it appears that the contract declared on has been fully performed, and nothing remains to be done by plaintiff, a recovery may be had under the common counts,${}^{48}$ and the contract may be read in evidence to show its terms and the amount due.${}^{44}$_

_Goods sold and delivered.${}^{45}$--Indebitatus assumpsit lies where a contract of_

_38. See 3 C. L. 348, also Election and_

_man \[Ind.\] 74 N. E. 1105. Wherever one_

_Waiver, 3 C. L. 1177._

_person requests or allows another to assume such a position that the latter may_

_Y. S. 98. The owner of goods wrongfully_

be completed. by law to discharge the former\_

_Hacken from his possession may sue in tort_

\_mer's legal liabilities, the law imports a re-

_for damages or wavle the tort and sue for_

_quest to make such payment and a promise_

_their value. Harter v. Pearson, 5 Ohio C. C. C. (N. S.) 304. Conversion may be vavled_

_may be enforced by assumption. Barrett v. and the transaction treated as a loan of_

_Armstrong \[W. Va.\] 48 S. E. 140. An item_

_money; as where one converts to his own_

_omitted by mistake. accident, or fraud, use money, or property that by agreement_

_was equivalent to money, placed in his_

\_showing out of an ordinary business trans-

_hands for another purpose. Couter v._

_Ation, may be recovered in an action of_

\_Waiver, 3 C. 98.

sale is fully executed and nothing remains to be done but payment of the purchase price.\[48\]

_Use and occupation of land._--Assumpsit lies for the use and occupation of land, though there is no express contract of renting or agreement to pay for the use of the land.\[47\] But in order to recover in assumpsit, the relation of landlord and tenant not being shown to exist, plaintiff must make out title just as he would in ejectment, the foundation of the action being the appropriation by defendant to his use of plaintiff's property.\[48\]

\_Work, labor and materials.\[49\]--There can be no recovery for labor voluntarily performed, for which there was neither an express nor implied promise to pay.\[50\] Where, in a suit on a contract, the complaint contains the common counts, there may be a recovery for the value of work and materials furnished, if defendant accepted the work, though plaintiff did not fully perform the contract.\[61\] The value of medical services rendered a pauper may be recovered from the county on the common counts, if the county requested the rendition of such services.\[53\]

\_Money paid.\[54\]--Indebitatus assumpsit will lie for money paid which in justice and good conscience ought not to be retained.\[55\] Illegal taxes paid under protest may be recovered under the common counts.\[56\] Money advanced upon a contract subsequently abandoned by mutual agreement may be recovered under the common counts,\[57\] and where suit is on the common counts and the evidence shows that money had been advanced, there is no variance, though the bill of particulars is for money lent.\[58\] Assumpsit on the part of an heir who has paid the liabilities against an estate will not lie to obtain a joint judgment against the residuary heirs for their proportion.\[59\]

\_Money had and received.\[50\]--Wherever one person has in his hands money equitably belonging to another, that other may recover it by assumpsit for money had and received.\[50\] Thus the action will lie to recover from defendant money received by him from third persons to be returned to plaintiff,\[61\] or for money paid to defendant to be paid by him to a third person for plaintiff,\[62\] on default of defendant to perform the agreement. Money had and received lies to recover proceeds of property on which plaintiff had a lien, defendant having knowledge of the lien or of facts showing its existence.\[63\] The remedy is available where defendant

46. Olcese v. Mobile Fruit & Trading Co., 211 11L 539, 71 N. E. 1084.

01. Illinois Cent. R. Co. v. Ross, 26 Ky.

L. R. 1251, 83 S. W. G35.

48. Evidence insufficient to show title.

01. See 3 C. L. 350.

01. De Montagne v. Bacharach, 187 Mass.

128, 72 N. E. 938.

51. Matthews v. Farrell, 140 Ala. 298, 37 So. 325.

01. County of De Witt v. Spaulding, 11L 11L App. 364.

01. See 3 C. L. 350.

01. As where paid under mistake of fact not arising from intentional neglect. Scott v. Ford \[Or.\] 78 P. 742.

01. Michigan Sanitarlum & Benev, As" v. Clity of Battle Creek \[Mich.\] 101 N. W.

01. But there could be no recovery where plaintiff violated the contract, which was not abandoned, after making advancements. Murphy v. Dalton \[Mich.\] 102 N. W.

01. Murphy v. Dalton \[Mich.\] 102 N. W.

01. Such judgment is enforceable against any one of the defendants who may be again compelled to use his co-defendants for contribution, thus prolonging the titration. The remedy is in equity where a distribution may do complete justice. Calhoun v. Tansany, 105 Ill. App. 23.

01. See 3 C. L. 350.

01. Trustee entitled to recover overpayments to a firm creditor who had been partially paid by a member of the firm. Langhorne v. McGhee \[Va.\] 49 S. E. 44.

01. Money for tickets bought by plaintiff but not used by him. Fottor v. Vesella \[R. I.\] 61 A. 143. Plaintiff recovered, not what he paid originally, but such sum, less commissions, with interest to date of trial.

01. Clark v. Jenness \[Mass.\] 74 N. E. 343.

01. Proceedors of cotton on which plaintiff had lien for rent of land. Link v. Barks-dale \[S.\] 50 S. E. 189.

receives plaintiff's money without consideration and in consequence of the fraud of a third person, and it is no defense that defendant cannot be restored to his original position.64 An action for money had and received may be maintained, though defendant has not actually received the money,65 and it is no objection to the maintenance of the action that equitable principles are to some extent to be applied and that the money sought be recovered is impressed with a trust in the hands of the holder.66 Unless some specific fund of plaintiff has been diverted by defendant, the action will not lie.67

SS 3. \_Declaration, pleas, and defenses.68--\_It is not necessary to state whether a contract declared on is oral or written, even though the law requires it to be in writing; and a statement of its terms is sufficient to show whether the defendant's promise was express or implied.69 In a transitory action such as for goods sold and delivered, or for services rendered, it is not necessary to lay a venue in the statement of claim.70 Where in suits commenced by the common counts the real cause of action is such that, to enable the parties to plead correctly and properly try the case, the plaintiff will be required to file by way of amendment a substitute complaint or, complete statement of the facts showing the cause of action, the common counts drop out of the case.71 But in some cases the common counts may remain in the case after the plaintiff has filed a bill of particulars.73 The office of the bill of particulars in such case is not to supply any necessary allegation of the complaint, without which it would be insufficient upon demurrer, but to furnish a statement of the items of the claims which are generally described by the common counts.73 After the filing of a proper bill of particulars a complaint containing the common counts is not demurrable for want of particularity; the remedy is by motion to make the bill of particulars more specific.74 A complaint substantially in the form of a common count in assumpsit for goods sold and delivered and labor and work performed for a certain university upon defendant's promise to pay therefor is sufficient.75 A statement of claim is sufficient which sets forth a sale and delivery by plaintiff to defendant at a given date of a certain quantity of merchandise, at a specified price, payable at a fixed time, the performance of a certain service upon defendant's agreement to pay the expense thereof, and the whole amount plaintiff believes is justly due from defendant.76 A complaint alleging in two counts that defendant entered upon plaintiff's land and cut trees, and claiming and seeking to recover the value of the trees, is in assumpsit and not in trespass quare clausum fregit.77 A suit by an attorney on a contract whereby he was retained to institute a proceeding to recover damages from a city in consideration of an assignment of eight per cent. of the damages recovered is a suit for money had and received to plaintiff's use, and not one to enforce an attorney's lien.78 The existence of an attorney's lien on the award of damages would not bar a suit on the contract.79 A complaint for money had and received is not sustained by 69, 70. American Mfg. Co. v. Morgan Smith Co., 25 Pa. Super. Ct. 176. 71, 72, 73, 74. Hoegerson & P. Mfg. Co. v. Sears \[Conn.\] 60 A. 138. 75. Worthington v. Worthington, 100 App. Div. 832, 91 N. Y. S. 448. 76. American Mfg. Co. v. Morgan Smith Co., 25 Pa. Super. Ct. 176. 77. Hence Tennessee court had jurisdiction, though trees were cut in Mississippi. West v. McClure \[Miss.\] 37 So. 752. 78. 79. Flannery v. Gelser, 92 N. Y. S.

5 Cur. Law. ASYLUMS AND HOSPITALS SS 3. 301

proof that the president of the defendant partnership procured payment of the firm's debts with money of the plaintiff corporation, of which the firm president was secretary.${}^{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text pendent of the railroad company, though maintained by assessments deducted from the employe's wages, is an organization distinct from the railroad company, and the latter is not liable for negligence of the hospital directors or physicians in treating an employe.\[96\]

## Attachment

### Definition, Nature, and Distinctions

1. **8** \*\*1.\*\*Custody, Sale, Redellivery or Release of Attached Property (310).

### In What Actions It Will Issue (302).

### Right to and Grounds For the Writ

(303). Removal From State (303), Non-resil-dence (303). Attachment Against Corpora-tions (303), Fraudulent Transfer or Disposition of property (304).

### Attaching Property (304).

### Freeture in General (305).

### Affudavit and Its Sufficiency (306).

### Attachment Bond or Undertaking: Terms (307).

### The Writ or Warrant (308).

### The Levy or, Selzure; Indemifying Bonds (308).

### Roots (309).

### Return to the Writ (310).

### Wrongful Attachment (317).

Definition, nature and distinctions.\[97\]-Attachment is a statutory remedy and the local statutes must be consulted, any seemingly general rule being so only by reason of similar enactments in various states. The remedy, while only provisional and ancillary in its nature,\[98\] is an action at law as distinguished from a suit in equity.\[99\]

In what actions it will issue.\[1\]-The writ will not lie, before judgment, in an action against a national bank,\[3\] nor in a mechanics' lien suit commenced in a Federal court.\[3\] In order to bring a case within the attachment law, there must be a debt or claim, the amount of which may be definitely ascertained before the trial by a method of computation provided by the contract, or by the application of some statutory measure of damages plainly suggested by the recitals of the affidavit.\[4\] A debt, created by the decree of a court of equity for the payment of money only, will sustain the writ.\[5\] An attachment may be predicated upon an

## 5 Cur. Law. ATTachment SS 3.3

affidavit which shows facts supportive either of an action of assumpsit or an action ex delicto.\[6\]

SS 3. _Right to and grounds for the writ._--The ground for attachment must exist at the time the writ is issued.\[8\] In some states attachment will lie if the debt or liability which forms the basis of the writ was fraudulently contracted.\[9\]

_Removal from state._--In most states attachment will lie if the debtor is about to leave, or is leaving the state or county with an intent to defraud,\[10\] or without paying or securing plaintiff's debt,\[11\] or without leaving sufficient property within the state for tile payment thereof.\[12\] These statutes refer to the debtor's person and if he has left the state and established his residence in another before the writ is sought it will not lie, although he has left property in the state in which the attachment issued.\[13\]

_Nonresidence.\[14\]_--As a general rule attachment may be brought against a nonresident in any court in whose jurisdiction he has property.\[15\] Temporary absence is not nonresidence justifying attachment.\[16\] In some states, in certain proceedings, attachment may be made against a nonresident after two non ests.\[17\] One residing upon an Indian reservation in Idaho is a resident of that state.\[18\] An uncontradicted recital in a contract, upon which suit is commenced by attachment, that defendant is a foreign company, tends to establish its nonresidence.\[19\]

_Attachment against corporations.\[20\]_--In Ohio foreign corporations are in certain instances exempt from attachment.\[21\]

Where affidavit alleged that defendant was indebted to plaintiff in a sum certain, such sum being obtained from plaintiff by fraud and misrepresentation. May v. Disconto Gesellschaft, 113 Ill. App. 415, afd. 211 Ill. 310, 71 N. E. 1001.

7. See 3 C. L. 355.

1. Murphy, Grant & Co. v. Zaspel \[Idaho\] $1 P. 301.

1. Affidavit, after stating the material facts and defendants' liability, alleging that defendant "fraudulently contracted the debt and incurred the liability" upon which suit is brought is a sufficient statement of the ground of the attachment under Code 1899, c. 106, $ 1, subd. 8. Elkins Nat. Bank v. Simmons \[V. Va.\] 49 S. E. 853. Under such section an affavit stating the material facts and alleging defendant's liability and that the debt sued on was by him fraudulently incurred is sufficient. Id.

1. Affidavit averring that defendant had stated that he was going to leave the state held insufficient under Code 15. Proc. $ 2806, subd. 2, providing that in such a case there must be an intent to defraud. Franke v. Havens, 102 App. Div. 67, 92 N. Y. S. 377.

1. Under Code, $ 3878, subd. 8, making it a ground of attachment that one is about to permanently remove from the state, and refuses to pay or secure the debt due plaintiff, an allegation in a petition that defendant is about to leave the state and defraud his creditors is insufficient. Upp v. Nehring \[Iowa\] 104 N. W. 850.

1. A petition charging that defendant was about to remove permanently out of the state is insufficient under Code, $ 3878, subd. 8, making it a ground for an attachment that defendant is about to remove his property out of the state, without leav-
   _Fraudulent transfer or disposition of property. \[22\]_--A conveyance of property made with fraudulent intent to cheat, hinder or delay creditors is ground for attachment. \[23\] Fraud is an essential element. \[24\] The fact that the sale hinders the creditors in collecting their debts does not render it fraudulent, unless such hindrance is a part of the intent with which the sale is made. \[25\] The proceeds of the sale being fraudulently withheld from the creditors, it will be inferred that the sale was fraudulent. \[26\] In order to have a fraudulent transfer, the debtor must be insolvent, \[27\] and the question of insolvency at the time of the transfer is generally one of fact for the jury. \[28\] As to what constitutes a fraudulent conveyance is treated elsewhere, \[29\] the few cases shown in the notes being kept solely for the purpose of illustration. \[30\] The burden of proof is on an attaching creditor to show the intent to defraud. \[31\] Negligence or unskillfulness in farming, by which the debtor wastes his property, is not a ground for attaehment where there is no fraudulent intent. \[32\] There being two defendants and the affidavit not stating which is about to perpetrate the fraud, it will be treated as though in the plural; charging both with the fraudulent purpose. \[33\]

\*\*SS 4. _Attachable property. \[34\]_--The attachment debtor must have an attachable interest in the property \[35\] or the latter must be held in fraud of plaintiff's rights. \[36\] A ded from defendant being void on its face, the property is properly attached under a statute relating to the attachment of property standing in the name of defendant. \[37\] Neither the vendor of a conditional sale \[38\] nor his assignee \[39\] can have an attachment against the property of the purchaser to secure the payment

**22. See 3 C. L. 356.**

**23. Though it be a valid conveyance between the parties and confers a perfect title. Farris v. Gross \[Ark.l 87 S. W. 633.**

\*\*24. A histogram of property for the sole purpose property to the payment of individual debts of using the proceeds to pay the transfer-

**for**'s debts Is insufficient to sustain attach-

**then** on the ground that he had disposed

**if**, App. 675. Money paid upon legitimate

\*\*of his property with intent to hinder and delay his creditors. Blakemore v. Eagle

**25.**

**26.**

**27.**

**28.**

**29.**

**28.**

**29.**

\*\*29.

5. Cur. Law. ATTachment SS 5. of the purchase price until the property itself has been exhausted. Where a bank collects a draft and sends it for collection, the fund so realized may be attached in a suit against the owner of the draft.40 Unless one waives his exemptions,43 except property is not subject to attachment, and the court has the power to set aside a levy made thereon.42 In Ohio, in actions to recover for necessaries sold, attachment will lie to reach what is otherwise exempt property.43 A fund of a life insurance company, being derived from assessments for the payment of death claims and being deposited in a bank, is liable to attachment by the beneficiary in a life policy whose claim has been approved.44 Money proceeds of the sale of land which belonged to wards are subject to attachment in the hands of the clerk after the confirmation of the sale.45

\_Attachment of debts and choses in action.46--In many states the statutes provide for the "attachment" of debts due the defendant; this remedy corresponds to that of garnishment and is treated elsewhere.47 By the common law, shares of stock in a corporation, being in the nature of choses in action, are not subject to attachment,48 but in many states this rule has been changed by statute.49 Statutes relating to subjects of attachment have no extraterritorial force.40

SS 5. \_Procedure in general.41--\_The procedure being wholly statutory, the local statutes must be consulted,52 and, as the remedy is in derogation of the common law, must be strictly complied with.53 As a general rule the application should show compliance with statutory conditions precedent.54 In Pennsylvania defendant not being personally served, nor a resident of the county, and not hav-

40. Nashville Produce Co. v. Sewell, 121

thorizing the attachment of choses in ac-Ga. 278, 48 S. E. 945; Henry v. Lennox-Haldeman Co., 116 Ga. 9, 42 S. E. 383 and

inoperative and void any transfer, sale or High v. Padrosa, 119 Ga. 648, 48 S. E. 559,

assignment thereof after the levy of the held inapplicable to the above case. Id. attachment, can have no extraterritorial

41. Where defendant disclaimed owner-

effect, so as to defeat the rights of a bona ship and attachment was discharged on

ide purchaser of a note in the state of motion, and then attached again, held that Texas, Kimprough v. Hornsby \[Tenn.\] 84

the first disclaimer did not waive his right

S. W. 613. to claim an exemption. Coey v. Cloghorn

51. See 3 C. L. 359.

\[Idabo\] 79 P. 72. See Exemptions, 3 C. L. 1408.

where mortgaged chattels are in the hands

42. Holmes v. Marshall, 145 Cal. 77, 79

of a ballee of the mortgagor, they can be

P. 534. See Exemptions, 3 C. L. 1408.

43. Physicians service constitute "necess-

and attachment as if unincumbered. Rev. Sarries." Kraft v. Wolf, 3 Ohio N. P. (N. S.)

Laws, c. 167, 8 G9-78. Jenness v. Shrieves

105. An allegation in the afflav of "need-

\[Mass.\] 74 N. E. 812. Cannot be attached

essarles, to wit, groceries," held sufficient.

by trusteeling for ballee and summoning

McLane v. Colburn, 2 Ohio N. P. (N. S.)

him to answer. Id. Mortgaged personality

257. Statement in the afflavit that the

in the possession of the mortgagor cannot claim is for rent does not afford ground for

be attached under Rev. Laws, c. 167, 8 74, a Presumption that it is a claim for "need-

providing that mortgaged personality in the

essarles." Hare v. Cook, 6 Ohio C. C. (N. S.) 73.

44. National Park Bank v. Clark, 92 App.

Pennyivania: The words "before that

Div. 264, 87 N. Y. S. 185.

45. Le Roy v. Jacobsky, 136 N. C. 443, 45

May 10, 1889, P. L. 183), relate to the time

S. L. 796.

when judgment is about to be taken, and

46. See 3 C. L. 359.

not to the "third term." Byerry v. Styer,

47. See Garishment, 3 C. L. 1550.

01. Lipscomb's Adm'r v. Condon \[V. W., 149 S. E. 392.

01. Dye v. Crary \[N. M.\] 78 P. 533.

01. Code of 189, ch. 106, $ 9, held

strictly a statutory proceeding and the

to make the above change. Lipson's

statute must be followed in detail. Jones

Adm'r v. Condon \[V. Va.\] 49 S. E. 392.

V. Fuchs, 94 N. Y. S. 87.

Capital stock in a domestic corporation 18

54. New York: Section 181 of the tax

subject to attachment, although the cer- ing appeared in the action, the proceeding must follow the practice which is provided in case of foreign attachment.\[85\]

_Jurisdiction.\[86\]--The test of jurisdiction is the status of the case at the time the action is commenced, and if there is sufficient in the complaint when it is filed to give the court jurisdiction, the attachment may rightfully issue and no subsequent proceeding in the court can effect its standing.\[57\]_

_Necessity of issuance of summons and service thereof.\[88\]--Issuance of a writ of attachment containing a summons clause is sufficient issuance of a summons.\[89\]_

Service must be made within the required time and a court has no authority to extend its jurisdiction by an order extending the time.\[90\] The service being by publication, the defendant not appearing and no property being attached, the court is without jurisdiction.\[61\] A general appearance by a nonresident renders harmless all defects in the service of process.\[62\] The execution of an attachment bond by defendant does not amount to an appearance giving the court jurisdiction to enter a personal judgment against him.\[63\]

SS 6. \_Affidavit and its sufficiency.\[64\]--Under the procedure of most states, an affidavit is essential to jurisdiction.\[85\] The affidavit must be made as near as practicable to the date of the issuance of the writ,\[86\] and must be sworn to by the plaintiff, his agent or attorney.\[67\] The secretary of a corporate plaintiff is not, by virtue of his office, the agent of the plaintiff for the purpose of making the affidavit.\[88\] An affidavit which, except for the heading, states every essential part of the complaint, including prayer for judgment, will serve also as a complaint.\[89\] A variance between the claim stated in the affidavit and the demand set up in the declaration is fatal,\[70\] unless it does not affect the character of the claim sued on.\[71\] Upon a motion to quash the attachment for such variance, the declaration may be

## 5 Cur. Law. ATTachment SS 7.

resorted to for the purpose of establishing it, and a plea in abatement is not necessary.\[12\] A plea in abatement to an attachment which sets up only matter of variance, appearing from the declaration and affidavit without the aid of the plea, may be treated as a motion to quash.\[73\] Upon a motion to dissolve the complaint may be referred to to render the affidavit sufficient.\[74\] The court having jurisdiction, the sufficiency of the affidavits cannot be questioned in a collateral attack.\[75\]

\_Averments in general.\[76\]--\_The affidavit is not required to state the facts showing that the plaintiff is entitled to recover in the action as fully as they are required to be stated in the complaint,\[77\] but it is generally sufficient if the grounds of the action are stated with sufficient certainty to show that the cause of action is such as will permit an attachment to issue.\[78\] The affidavit being upon information and belief, it should set forth the sources of information and grounds of belief,\[79\] but being positively sworn to, it is sufficient if it is in the language of the statute.\[80\]

\_Averments as to nonresidence.\[81\]--\_The defendant being a nonresident, there must be a sufficient allegation of that fact.\[82\]

SS 7. \_Attachment bond or undertaking; terms.\[83\]--\_The undertaking must be signed by the plaintiff or in his name by his authorized agent,\[84\] and in this connection the fact that the undertaking need not be under seal is important.\[85\] Attachment being issued against the property of one of several co-defendants, the plaintiff's bond is properly made to such defendant and not to his co-defendants.\[86\]

the date of the note is stated differently

in the petition and the amended petition.

Orlop v. Schueller, 4 Ohio C. C. (N. S.) 611.

72, 73. Simmons v. Simmons \[W. Va.\] S. 766. An affadavit made by plaintiff.

48 S. E. 833.

74. Germantown Trust Co. v. Whitney

(S. D.) 102 N. W. 304.

75. Rogers v. Ingerso1, 93 N. Y. S. 140.

01. See 3 C. L. 361.

01. Germantown Trust Co. v. Whitney

01. Germantown Trust Co. v. Whitney

01. Germantown Trust Co. v. Whitney

01. D.) 102 N. W. 804. Under Civ. Code

Proc. # 207, requiring the affidavit to state

a cause of action against defendant and to

made by plaintiff and that he did plead

specify the amount and grounds of the

claim, an affidavit that defendant is

a action in favor of plaintiff against defendant

debted to plaintiff in a certain sum and

that plaintiff has a cause of action against

City Banking Co. v. McIntyre, 94 N. Y. S.

defendant based on certain notes, and that

157.

defendant is a nonresident but owns certain

twin real estate within the state, is suffi-

client. Id. Where the ground for an

atachment is that the defendant fraudu-

being in the language of the statute, is

lentity contracted the debt or incurred the

liability for which the suit is brought, the

s. E. 926.

affiant should state the material facts re

Iled upon to show the existence of such

ground, and, if the facts are stated in a

vague and uncertain manner and not suffi-

cient to show that the debt was fraudu-

lently contracted or the liability fraudu-

lently incurred, the attachment should be

quashed. Elkins Nat. Bank v. Simmons

\[W. Va.\] 49 S. E. 838.

79. Young v. American Bank, 44 Misc.

308, 89 N. Y. S. 915. Affidavit that defendant had departed with intent to defend

cedritors, but not stating on what the aff

fant's belief was founded; and stating that

different efforts had been made by his

employes to find defendant, but did not state

in what the effort consisted, and also stating that the employees had been informed

that he had so left, without stating the

employes told or who told them, and not con

during the affdavits of the employees, is

or lately defective. Lassen v. Burt, 92 N. Y.

72, 73. Simmons v. Simmons \[W. Va.\] S. 766. An affadavit made by plaintiff.

48 S. E. 833.

74. Germantown Trust Co. v. Whitney

01. Rogers v. Ingerso1, 93 N. Y. S. 140.

01. See 3 C. L. 361.

01. Germantown Trust Co. v. Whitney

01. Germantown Trust Co. v. Whitney

01. D.) 102 N. W. 804. Under Civ. Code

Proc. # 207, requiring the affidavit to state

a cause of action against defendant and to

made by plaintiff and that he did plead

specify the amount and grounds of the

claim, an affidavit that defendant is

a action in favor of plaintiff against defendant

debted to plaintiff in a certain sum and

that plaintiff has a cause of action against

City Banking Co. v. McIntyre,
_Liabilities on bond._"--All damages sustained by reason of the attachment and which are secured by the undertaking must be assessed and recovered in a civil action upon the undertaking." The attachment suit being dismissed and suit being brought on the bond, the plaintiff is entitled to recover reasonable attorney's fees for defending the attachment suit, together with such other damages as were proximately occasioned by the levy on plaintiff's property." and this is so, though he was personally served in the attachment suit and the plaintiff in such suit paid the costs and returned the property." Such reasonable attorney's fees may be recovered where the liability has been incurred, even though they have not been actually expended before the trial of the suit on the attachment bond."

_Actions on bond; evidence._"--The opinion of the appellate court in the attachment case is not admissible in evidence in an action on the attachment bond, it being admitted that the attachment was not successfully maintained."

SS 8. _The writ or warrant._"--Under a statute requiring the warrant of attachment to state the grounds thereof, a recital of grounds in the alternative is an irregularity rendering the warrant liable to vacation upon a motion to that effect;" but the defect is not jurisdictional, and the warrant is valid until vacated." In New York an attachment not signed by plaintiff's attorney is fatally defective." In New Mexico an alias writ cannot be issued."

SS 9. _The levy or seizure; indemnifying bonds._" _Service of writ._--The fact that the service of a writ of attachment is informal cannot be taken advantage of by a third person claiming the property.1 Service of the writ by an officer to whom it was not directed does not affect the validity of the service.2 The provisions of the New Jersey attachment act with regard to the mode of serving the writ are directory only, and substantial compliance with them is sufficient."

SS7. See 8 C. L. 362.

SS8. Mahoney v. Tyler, 185 N. C. 40, 48 S. E. 649. Such damages cannot be recovered in the attachment suit. Code, $ 356, construed, Id.

SS9. Oakes v. Smith, 121 Ga. 317, 48 S. E. 942.

SS9. Roy v. First Nat. Bank \[Miss.\] 37 So. 641.

SS10. Oakes v. Smith, 121 Ga. 317, 48 S. E. 942. Where the uncontradicted evidence showed that defendant had incurred a liability for attorney's fees in defending the attachment suit, held, a new trial should be granted, it appearing that the verdict was generally for the obligor in the bond. Id.

SS9. See 3 C. L. 363.

SS9. State v. Parsons \[Mo. App.\] 84 S. W. 1019.

SS9. See 3 C. L. 363.

SS9. Rogers v. Ingersoll, 93 N. Y. S. 140.

SS9. Code Civ. Proc. $ 641. Lassen v. Burt, 92 N. Y. S. 796.

SS9. Dye v. Crary \[N. M.\] 78 P. 533.

NOTE. Power to Issue an alias writ.\_--The court issuing the alias writ of attachment was one of general jurisdiction, but the statute does not in express terms authorize an alias writ. The courts of the various states which have passed on the subject hold divergent views as to the issuing of alias writ's of attachment when not provided for by statute, but the weight of authority seems to be in favor of the issuance of such writs.

SS 5. Cur. Law. ATTachment SS 9. 309

_The levy or seizure._*--Suit being brought against partners and the writ being directed against their property, levy may be made upon either their firm or individual property.* In an action against three defendants as partners, two of them appearing and the attachment issuing against them, a levy may be made upon the partnership property.\*

The levy consists in the seizure, actual or constructive, of the property attached,' and it is essential to the lion created by the attachment of personal property that the property should be removed and held in the custody of the law.\* Where goods attached are in a store, they must be removed within a reasonable time after they are ascertained;\* but such removal need not be made before a schedule is made.10 Where the property consists of real estate or is in the possession of a third person, the attachment debtor simply having an interest therein, statutes generally provide that the levy may be made by the giving of notice.11 The same certainty is not required in an attachment levy as is required in an execution levy and sale, because the attached property is subject to further orders of the court before exposed to sale, and a levy sufficiently definite to identify it will hold it until the court can act.12 A general attachment of all of defendant's real estate within a certain county is sufficient to attach all real estate owned by him and situated in the county.13 A substantial compliance with the statute is sufficient.14 Whether all or only a part of the goods in a store are attached is a matter of fact, and in determining the effect to be given to what was done, all the circumstances, including prior negotiations for a bond, may be considered.15 The naming of the thing level on is not controlling.16

\_Indemnifying bonds.\_17--In an action upon an indemnifying bond, the obligors cannot inquire into the merits adjudicated in the attachment proceeding.18 The fact that there were other attachments upon the property does not relieve the obligors from their liability.19

4. See 3 C. L. 364. 5. Where suit is brought against H. & subsequent purchasers. Civ. Code Proc. $ R. composing the firm of H. & R. and the writ is directed against the property of H. & R., it authorizes a levy upon either the firm or individual property of H. & R., as to give a lion on it which would affect Kleinsmith v. Kempner \[Tex. Civ. App.\] $3 S. W. 403. 6. Rogers v. Ingersoll, 93 N. Y. S. 140. 7. Gilbert v. Estate of Yunk, 110 III. App. 558, quoting from Smith v. Packard \[C. C. A.\] $8 F. 793. 8. Gilbert v. Estate of Yunk, 110 III. App. 568, quoting from Smith v. Packard \[C. C. A.\] $8 F. 793. 8. Gilbert v. Estate of Yunk, 110 III. App. 569, quoting from Smith v. Packard \[C. C. A.\] $8 F. 793. The officer must take actual possession of the goods on the writ of attachment, which is not required when the attachment is made by trustee process. Perry v. Griefen, 95 M. 420, 59 A. 601. 9. Commonwealth v. Middleby \[Mass.\] $3 N. E. 208. The fact that the owner of the store and goods told the sherr that some of the goods in the store were not his may be considered on the question of unreasonable delay in removing the attached goods. Id. The owner of the store and goods cannot testify as to the time it takes to remove them. Id. 10. Commonwealth v. Middleby \[Mass.\] $3 N. E. 208. 73 N. E. 208. 81. In Kentucky the levy of an order of attachment on one tract of land by giving the occupant a copy and posting another on it creates a lion on that land and af

## 10 Return to the writ

In some states the court to which the writ is returnable is designated by statute \[21\]. Though the description of the property attached be indefinite, the return is sufficient for jurisdictional purposes if it shows that goods of the defendant were attached on the writ in the state fori \[22\]. A return specifically describing a part of the goods attached is valid as to such part \[28\]. If the sheriff's return fails to show a legal execution of the writ, the return may be amended according to the facts \[24\], but such amendment cannot relate back to the levy so as to cut off the right of an intervening purchaser \[29\]. An omission, from a return of the service of an attachment, as to whether a copy of the order was left with an occupant is a mere irregularity \[26\]. Statutory requirements as to the contents of the return must be complied with \[27\]. Irregularities in the return are not avoidable in a collateral attack \[28\]. In Maine the filing of a copy of the return in the statutory office is not a part of the process of attaching personal property \[29\]. The officer is presumed to have performed his duty \[30\], and his return is presumed to be true \[81\]; if it is not, the party's remedy is by an action against him for a false return \[32\].

## 11 Custody, sale, redelivery or release of attached property

A forthcoming bond being given, a sale should not be ordered unless there is danger of probable loss to plaintiff by allowing the property to remain in the defendant's possession until the issues are tried \[34\]. Attached property being placed in the hands of a receiver and the latter being ordered to sell free from incumbrances, an injunction will lie to restrain a sale under the attachment, but the attachment plaintiffs are entitled to payment out of the proceeds if they have acquired a valid lien on the land \[36\]. Under a statute authorizing a sale upon the application of a party, an attaching creditor may withdraw his application for sale without thereby dissolving the attachment \[36\].

When it is judicially determined, upon the trial of the attachment issue, that the attachment was wrongfully levied, the attachment debtor becomes entitled to a return of the property \[37\], or the proceeds of a sale thereof \[38\], without waiting

1. \[label=20,leftmargin=\*\]
1. See 3. C. L. 365.

- 5 Cur. Law. ATTachment SS 12.

for the determination of the other issues in the case; "" but the failure of the sheriff to redeliver the property is not a default for which the plaintiff in the attachment suit is liable. \[40\]

SS 12. _Forthcoming bonds and receipts._\[41\]--A forthcoming bond takes the place of the possession of the officer, \[42\] and where it is conditioned that the defendant will perform the judgment of the court; the power of the court or its officers over the property attached ceases, and the plaintiff can look only to the bond for indeminity; \[43\] but in cases where the bond is to the effect that the judgment of the court shall be performed, or that the property or its value shall be forthcoming and subject to the order of the court, the lien created by the attachment and the power of the court over the attached property subsist. \[44\] The effect of the bond is, however, largely regulated by statute. \[45\] Upon the determination of the attachment issue in his favor, the attachment debtor is no longer obligated under his forthcoming bond. \[46\] A forthcoming bond being conditioned to perform the judgment of the court, the defendant is thereby estopped to raise any question as to the regularity of the attachment, \[47\] and the validity of the bond does not depend upon the regularity of the attachment. \[48\] The liability on the attachment bond is one growing out of the contract, \[49\] and is dependent upon the terms thereof, \[50\] any action on the bond being, of course, ex contract. \[51\] Forthcoming bonds which provide for and express the idea of succession in respect to obligees contemplate that whoever succeeds to the right of control over the right of action involving the subject-matter to which the contract relates shall be the obligee, and have a right of action to enforce the obligation. \[52\] In those states where an assignment for the benefit of creditors vacates the attachment lien, such an assignment does not vacate the obligation of a forthcoming bond pursuant to which the goods were delivered to the obligee and the attachment dissolved. \[53\] The amount of the bond

been sold, the sales mentioned have refer-

ence to those made before the attachment

is vacated. Mamoney v. Tyler, 136 N. C.

40, 48, S. E. 549.

39. Gilbert v. Estate of Yunk, 110 Ill.

01. Mahoney v. Tyler, 136 N. C. 40, 48

S. E. 549.

41. See 3 C. L. 267.

01. Gilbert v. Estate of Yunk, 110 Ill.

01. Lee v. Newton \[Ky.\] $? S. W. 789;

Brady v. Onffroy \[Wash.\] $? P. 1004.

subsequent order of the court discharging

the attachment held a nullity. Id. Where

such order sought to discharge the snvety solely as a consequence following the discharge of the attachment, the order of dis-

missal does not render the order res judl-

cata as to the snvety's liability. Id.

44. Lee v. Newton \[Ky.\] $? S. W. 789,

01. Under Rev. Code 1832; 147, the lien

of the attachment is not displaced by the

execution of the forthcoming bond. Smith

& Co. v. Lacey \[Miss.\] $8 0. 311.

46. Gilbert v. Estate of Yunk, 110 Ill.

App. 558, aff. 214 Ill. 237, 73 N. E. 335;

Horstman v. Little \[Tex. Civ. App.\] $8 8. W. 286.

47. Brady v. Onffroy \[Wash.\] $? P. 1004.

2 Ballingers Ann. Codes & St. $5 574, 5376,

construed, and the latter section held only

to apply to a case where the property was

released without the discharge of the writ. Id.

48. Brady v. Onffroy \[Wash.\] $? P. 1004.

01. Pittsburg, etc., R. Co. v. Wakefield

Hardware Co., 135 N. C. 73, 47 S. E. 234.

50. A forthcoming bond rectifting that

whereas a writ of attachment issued out of

a certain court at the suit of G. and D.,

plaintiff; and that by virtue thereof the

heriff has attached the property; and that

if the property attached shall be forthcoming in answer to the judgment of the court

in said suit, the obligation is to be void,

held that the snvets are bound only in

the case mentioned, though the bond re-

cites that the same property is also sub-

ject to attachment writs in five other cases.

Gilbert v. Estate of Yunk, 110 Ill. App. 558, aff. 214 Ill. 237, 73 N. E. 235.

51. Pittsburg, etc., R. Co. v. Wakefield

Hardware Co., 135 N. C. 73, 47 S. E. 234.

52. American Surety Co. v. Campbell &

01. Camelet Son. C. (C. C.) 138 F. 531. A bond running to a receiver, "his successors and assigns" is not limited to another receiver, but includes succession in corporate con-

trol, so that on the termination of the re-

cevership control over the action, often determines the jurisdiction of a court over the action thereon.\[54\] In an action on a forthcoming bond, an unverified general denial admits the execution of the bond, but denies the other allegations of the petition.\[55\] A cause of action for wrongful attachment and one against the surety on the attachment bond for a breach thereof cannot be united in one suit.\[56\]

SS 13. _Lien or other consequences of levy.\[87\]_--By the levy one acquires a lien for the satisfaction of any judgment that may be recovered in the action.\[88\] This lien is terminated by a dismissal of the attachment suit,\[89\] but, if obtained in a state court, it is not lost or terminated by the removal of the cause to a Federal court,\[90\] and the power to protect and enforce such lien exists in the latter court in like manner as though it had been obtained by a proceeding in that court.\[91\] A temporary restraining order issued in a suit to stay the attachment proceedings does not operate as a release of the property from the custody of the officer, nor discharge the attachment lien.\[92\] The lien is lost, however, by the rendition of a simple money judgment, the court failing to enter an order directing a sale of the property.\[88\] The law does not favor abandonments, and, before an attachment lien will be deemed to have been abandoned, some affirmative act or conduct of the creditor must be shown which is clearly inconsistent with the continuance of the lien.\[64\] By making an agreement with other attaching creditors to prorate the property, an attachment lienor does not abandon his lien as to that portion of the property upon which the other attachment liens are declared invalid.\[68\] In the absence of a statutory provision regulating the continuance of an attachment lien, which has been confirmed in a judgment, the duration of the lien is the duration of the judgment itself.\[68\] A garnishee served under an attachment voluntarily surrendering the property, a judgment against him is not necessary to perfect the attachment lien,\[67\] nor is the lien defeated because the sheriff fails to make return of such delivery, where he retains custody of the property under the writ.\[68\]

SS 14. _Conflicting levies, liens and creditors; priorities.\[69\]_--An attaching creditor is not a purchaser for value,\[70\] and in the absence of fraud or statutory regulations, he obtains only such rights in the property seized as his debtor had at the time of seizure.\[71\] His rights, are, however, superior to those of subsequent assignees\[72\] or purchasers with notice\[73\] from the defendant.

SS 14. An action against a snrety on an at-tachment bond in the penal sum of SS200 is not within the jurisdiction of the superior court. Pittsburg, etc., R. Co. v. Wakefield Hardware Co., 135 N. C. 73, 47 S. E. 234.

SS5. Dunn v. Claunch \[OKL\] 78 P. 388.

Held to deny an allegation to the effect , that the property was delivered to the defendant, and also one to the effect that defendant had removed the attached property from the territory, and failed to warrender it to be sold to satisfy the judgment pursuant to the terms of the bond. Id.

SS 15. Code. $ 267, construed. Pittsburg, etc., R. Co. v. Wakefield Hardware Co., 135 N. C. 73, 47 S. E. 234.

SS7. See 3 C. L. 367. See 2 Tiffany, Real Property, p. 1314, 871.

SSS. 3 C. L. 367, n. 49, Perry v. Griefen, 99 Me. 420, 59 A. 601. Under Code Civ. Proc. $ 649, providing the mode of levying on real estate, the effect of the attachment is simply to create a lien on the property. Beards-lee v. Ingraham, 94 N. Y. S. 897.

SS9. Horstman v. Little \[Tex. Civ. App.\] SS S. W. 286.

SSS. W. 286.

SS4. An action against a snrety on an at-tachment bond in the penal sum of SS200 is not within the jurisdiction of the superior court. Pittsburg, etc., R. Co. v. Wakefield Hardware Co., 135 N. C. 73, 47 S. E. 234.

SS5. Dunn v. Claunch \[OKL\] 78 P. 388.

SS7. See 3 C. L. 367. See 2 Tiffany, Real Property, p. 1314, 871.

SSS. 3 C. L. 367, n. 49, Perry v. Griefen, 99 Me. 420, 59 A. 601. Under Code Civ. Proc. $ 649, providing the mode of levying on real estate, the effect of the attachment is simply to create a lien on the property. Beards-lee v. Ingraham, 94 N. Y. S. 897.

SS9. Horstman v. Little \[Tex. Civ. App.\] SS S. W. 286.

SSS. W. 286.

SS4. Another possibility to use the attachment lien.\[69\] In an action against a snrety on an at-tachment bond in the penal sum of SS200 is not within the jurisdiction of the superior court.\[69\] In an action against a snrety on an at-tachment bond in the penal sum of SS200 is not within the jurisdiction of the superior court. Pittsburg, etc., R. Co. v. Wakefield Hardware Co., 135 N. C. 73, 47 S. E. 234.

5 Cur. Law. ATTachment SS 14. 313

Priorities between attachments and mortgages.74--The presumption of fraud which arises against a mortgagee who does not take immediate possession is not available to one who attaches the property after the mortgagee has taken possession.75 Statutes prescribing the method by which a chattel mortgagee may preserve his rights must be strictly complied with.76

Priority between attachments and receivers.77--The attachment lien is superior to the right of a subsequently appointed receiver for the debtor.78

Effect of bankruptcy proceedings.70--An adjudication in bankruptcy annuls an attachment lien obtained within four months prior to the filing of the petition,80 unless the bankruptcy court orders such lien preserved for the benefit of the estate.81 Bankruptcy proceedings do not affect an attachment lien upon property exempt as against the trustee but not exempt from seizure for the debt upon which the attachment is based.82 It being conceded that part and possibly all of the property attached is exempt from the bankruptcy proceedings, it may be held under the attachment until the question is determined in the bankruptcy proceedings.83 An attachment lien being unaffected by bankruptcy proceedings against the debtor, the discharge in bankruptcy does not prevent the attaching creditor from entering up judgment and recovering from the sureties on the forthcoming bond.84

parate stock, if made for a valuable con-

and attachment lien thereon takes it subject

storation and without fraud, vests in the

to such lien, and occupies no better posl-

transferee a title superior to that acquired

to contest the validity of the lien than

by a subsequent attaching creditor of the

the grantor would have had. Stillman v.

transferor. Id. Purchaser at sale held to

require no title as against a feed delivered

before the jury and recorded after the attachment and before judgment. Leonard v.

Fleming \[N. D.\] 102 N. W. 308. Where the

vendor of property assigned his claim for payment and an action was subsequently

brought against the vendor and the property attached, the vendee when used by the

assignee is not entitled to have the attachment creditors interpleaded. Michigan Sav.

Bank v. Coy, Hunt & Co., 45 Misc, 40, 90 N.

Y. S. 814. Transfer of property to a secured creditor, the property to be sold and the proceeds applied to the payment of the creditor's debt held not fraudulent and

valid as against a subsequent attaching creditor, though the property was not included in the deed of trust given the secured creditor. Blakemore v. Eagle \[Ark.\]

84 S. W. 637. Where a deed by a husband

and wife was made in good faith and was

not fraudulent, it was superior to a sub-

sequent attachment by a creditor of the

grants, irrespective of whether the property conveyed was a homestead at the time

of the conveyance. Parlin & Orendorf Co. v. Yawter \[Tex. Civ. App.\] 88 S. W. 407. Property must be taken subject to all lawfully exlting liens created by his debtors.

Milligan v. Plymouth State Bank, 4 Ohio C. C. (N. S.) 585. Want of notice in the gar-

nishee will not defeat an assignee's interest in the debt in favor of an attaching creditor. Id.

72. An interplea setting up a claim based

upon an assignment made after the attachment has been levied is properly defined. May v. Disconto Gesellschaft, 118 Ill. App. 415, 211 Ill. 310, aff. 71 N. E. 1001.

73. A purchaser of land, with notice of _Enforcement and dissolution, discharge, vacation, or abandonment of attachment.\[85\]_--A suit to enforce an attachment lien obtained in a former action in the same court, and to subject the attached property, or the proceeds of its sale, to the satisfaction of a judgment recovered in that action, is merely supplementary to the former action,\[86\] and is a continuation thereof so far-as the question of jurisdiction is concerned.\[87\] Where the original suit was removed from a state to a Federal court, the fact that the proceeds of the sale of the attached property are not in the actual custody of the latter does not make the second suit an original one.\[88\] The right of plaintiff to sue in his own and the sheriff's name to enforce the lien is largely statutory.\[89\] The attaching creditor may be deemed to have abandoned his lien by laches in instituting proceedings to enforce it,\[90\] or by prosecuting other judicial remedies inconsistent therewith.\[91\] By a general appearance one waives the right to move to quash the writ.\[92\]

(SS 15) _A. Validity and grounds for setting aside.\[92\]_--The afflavit of attachment stating that defendant, a nonresident, has no property subject to execution except that attached, the attachment will not be dissolved on the afflavit of defendant that he is amply able to respond to any judgment that may be recovered.\[94\]

(SS 15) _B. Procedure.\[95\]_--It is discretionary with the court to advance the hearing of the attachment issue.\[96\] In some courts it is necessary to file a declaration in attachment at the term to which the suit is returnable.\[97\] There being a general attachment and the record not showing what property is claimed to be covered thereby, the plaintiff should make a written motion for judgment particularly describing the property against which judgment is desired,\[98\] and if such property is claimed to have been conveyed in fraud of plaintiff, the motion should be supported by the afflavit of plaintiff or his attorney to that effect, and that the property was covered by the attachment.\[99\]

Upon a motion to dismiss or vacate, defendant cannot be permitted to try the cause upon the merits.\[1\] The motion to vacate need not be made upon the the right to enforce the lien. Hatcher v. Hendrie & B. Mfg. & Supply Co. \[C. C. A.\] 133 F. 267.

87. Hatcher v. Hendrie & B. Mfg. & Supply Co. \[C. C. A.\] 133 F. 267.

01. Hatcher v. Hendrie & B. Mfg. & Supply Co. \[C. C. A.\] 133 F. 267. The original suit having been removed from a state to a Federal court, the second suit may be maintained as an incident to the jurisdiction already vested without regard to citizenship or residence of the parties. Id.

01. This because the effect of the former action was to bring the property potentially within the jurisdiction of the Federal court. Hatcher v. Hendrie & B. Mfg. & Supply Co., \[C. C. A.\] 133 F. 267.

01. New York: Under Code City. Proc. 85 677, 678, providing plaintiff, by leave of the court or judge may bring in his own name and that of the sheriff jointly any action which might be brought by the sheriff to recover a demand attached, the leave of court referred to means the court in which the action is brought, and not the court of which the officer who insured the warrant is a member. Rogers v. Ingersoll, 93 N. Y. S. 140.

01. Delay which cannot give rise to an inference of abandonment, and which results In no advantage to the attaching creditor or injury to the opposing party does not constitute such laches as will bar the right to enforce the lien. Hatcher v. Hendrie & B. Mfg. & Supply Co. \[C. C. A.\] 133 F. 267.

01. Where defendant died, cause was revived against his admInitrator and judgment was entered for plaintiff, the latter by proving his claim against the estate was held to have abandoned the attachment levy. Lafferty \[Mich.\] 103 N. W. 626.

01. Cord v. Newlin \[N. J. Law\] 59 A. 22.

01. See 3 C. L. 370.

01. Hunter v. Wenatchee Land Co., 36 Wash. 541, 79 P. 40.

01. See 3 C. L. 371.

01. Dickinson v. Morgenstern, 111 Ill.

01. Georgia: In a suit by attachment in the city court of Lexington it is necessary to file a declaration in attachment at the term to which the suit is returnable, In like manner as though the suit were in the superior court. Any judgment ordered without such a declaration is a nullity. Callaway v. Maxwell \[Ga.\] 51 S. E. 320.

01. By, 99. American Agricultural Chemical Co., v. Huntington, 99 Me. 361, 59 A. 515.

01. Germantown Trust Co. v. Whitney \[S.\] D.J 102 N. W. 304. The evidence being conflicting, the court will not on a motion to vacate determine the merits of the contro 5 Cur. Law. ATTachment SS 15B.

return day.\[3\] An order vacating a warrant of attachment being made upon the merits, the general rule of practice repairing specification of the irregularity relied upon does not apply.\[3\] The motion to dissolve should specify the grounds upon which it is based.\[4\] The notice of such motion stating that it is based upon an affladavit denying the truth of the attachment affladavit, it sufficiently shows that the ground for the motion is the falsity of the latter affladavit.\[5\] Defendant's affladavit putting in issue the facts alleged in the attachment affladavit, the burden is upon the plaintiff to prove that the attachment affladavit is true.\[6\] One may move to quash the levy, even though he has made a general appearance in the action.\[7\] Defendant on a hearing of his motion to dissolve cannot strike out his verified statement that he did not own the property,\[8\] and such statement is sufficient to defeat the motion.\[9\] The filing of an amended declaration changing the form of one's action from tort to assumpsit is not an irregularity open to attack by an interpleader whose rights have been acquired pendente life.\[10\] In Georgia a plea of breach of warranty or recoupment to an attachment for purchase money in a justice's court need not be in writing.\[11\] In Illinois there is no statute requiring the reference of an attachment issue to an auditor.\[12\]

_Evidence.\[13\]_--Statements by defendant of his intent to defraud plaintiff are admissible.\[14\]

_Judgment and decree or order.\[15\]_--A judgment obtained against a nonresident, where the jurisdiction rests only upon service by publication and the seizure of defendant's property, has the same conclusive effect, to the extent of his interest in the property seized, as a judgment rendered upon personal service.\[16\] Judgment in attachment being rendered against defendant prior to the trial of the garnishment issue, such judgment is final only in the sense that it binds such defendant to the extent of any debt due him from, or property held for him by, the garnishee at the time of the service of the attachment writ.\[17\] A ruling made upon a motion to dissolve an attachment is not res judicata of the facts involved therein, as against one who, though a party to the proceedings at the time of the ruling, is dismissed therefrom by the final judgment entered in the action.\[18\] An order denying a motion to dissolve upon one ground is not res judicata of the right to have the attachment dissolved upon another ground.\[19\] An order over- ruling a motion to quash is an interlocutory,\[20\] but appealable order,\[21\] and does not preclude a renewal of the motion.\[22\] .Such second motion may be made by one who did not participate in the first.\[28\]

\_Appeal.\[24\]--Where a justice has jurisdiction and renders judgment in favor of the garnishee in an attachment proceeding, the defendant in the original attachment proceeding may appeal therefrom.\[25\] The dismissal of an appeal from an order purporting to discharge the attachment is in effect an affirmance of the order.\[26\] Judgment being entered against the defendant and the surety on his forthcoming bond, an order striking from the record so much of the judgment as awarded a recovery against the surety is appealable,\[27\] and the surety having appeared in the action, a notice of appeal, given in open court, obviates the necessity of service of a written notice of appeal.\[28\]

SS 16. _Other remedies._--Where the grounds stated in a petition for attachment are insufficient, a motion to dissolve the writ is not the only remedy; replevin is generally held to lie.\[29\] In Iowa it is not necessary for defendant in the attachment to give a notice of ownership before bringing replevin.\[30\]

SS 17. \_Hostile and opposing claims to attached property.\[31\]--Where property is claimed by lenors, the only question that can be determined in the action is the right of possession.\[32\] A resident interpleading is not entitled to a preference over a nonresident.\[33\] The mere right of a simple-contract creditor to have his debt satisfied cannot be asserted by interpleading in an attachment suit.\[34\] A prior lienor cannot resort to equity to stay proceedings under a subsequent lienor's judgment and recover possession of the property.\[35\] A claimant is not always confined to the ground upon which he bases his claim.\[36\] Plaintiff by joining issue on a claim to the property when filed waives his right to have the claim dismissed as improperly filed.\[37\] One having the mere possession of property cannot, by failing to compel interpleader or by failing to suggest that another is the true owner, bar the rightful owner of the right to assert his title thereto.\[38\]

_Pleading.\[30\]--The pleadings must not be uncertain or inconsistent.\[40\]_

_Evidence and questions for the jury\[41\]--The self-serving declaration of a husband is inadmissible against his wife in a subsequent attachment suit against him, the wife claiming title adversely to the husband.\[42\] An attaching creditor_

22. Simmons v. Simmons \[W. Va.\] 48 S. Helen, which by Kirby's Dig. $ 5011 is subor-E. 833. Elkins Nat. Bank v. Simmons \[W. Va.\] 49 S. E. 893.

01. See 3 C. L. 373.

01. Gilray v. Metropolitan Nat. Bank, 113 III. App. 485.

01. Brady v. Onffroy \[Wash.\] 79 P. 1004.

01. 2 Ball. Ann. Codes & St. $ 6500, subd.

01. Brady v. Onffroy \[Wash.\] 79 P. 1004.

01. 2 Ball. Ann. Codes & St. $ 5374, 5375.

01. Held to lie under a statute authorizing replevin for personal property unlawfully detained. Upv. v. Neuhring \[Iowa\] 104 N. W. 350.

01. Code, $ 3991, 3906, construed. Upp v. Neuhring \[Iowa\] 104 N. W. 350.

01. See 3 C. L. 373.

01. The priority of liens cannot be determined. Groesbeck v. Evans \[Tex. Civ. App.\] 83 S. W. 430.

33, 34. May V. Disconto Gesellschaft, 211 III. 310, 71 N. E. 1001, ag. 113 III. App. 415.

35. Chattel mortgages have an adequate remedy at law by replevin to recover possession of the mortgaged property when the same is attached to enforce a laborer's 5 Cur. Law. ATTachment SS 18. 317

attacking the conveyance as fraudulent has the burden of proof.\[48\] The claimant's title being a question of fact, it is for the jury.\[44\]

_Trial.\[46\]_--In West Virginia, where persons claiming the property attached or some interest in it are admitted as parties in the cause, their claim is to be tried by a jury impaneled for the purpose, and it is error for the court to pass upon their claims without the intervention of a jury.\[46\] Waiver of the right of trial by jury must be by consent entered of record.\[47\]

SS 18. _Wrongful attachment.\[48\]_--One seizing property under a void writ \[48\] or seizing property belonging to a person other than defendant \[49\] is liable for wrongful attachment.

The ballee of property \[61\] or a lenor in possession \[62\] may maintain an action for wrongful attachment, and in the latter case it is not necessary to set out the particulars of the lien in the petition.\[63\] It is no defense that plaintiff's title was acquired in fraud of execution creditors.\[54\] Where two attachments are issued at practically the same time and both are subsequently dissolved, a settlement by the defendant with the second attaching creditor does not relieve the first attachment creditor for injuries occasioned by his attachment.\[65\]

Reconvention for damages while the attachment suit is pending is an exceptional remedy, but is allowed in some jurisdictions.\[66\]

_Pleading.\[57\]_--In an action for wrongful seizure, allegations in the complaint stating facts from which both malice and want of probable cause will be inferred are tantamount to specific allegations of malice and want of probable cause.\[58\]

_Evidence and questions of fact.\[59\]_--The officer's return showing the seizure and sale is competent evidence on behalf of plaintiff as tending to establish the

43. Hicks Co. v. Thomas \[La.\] 38 So. 148. Interpose a counterclaim for damages on the bond, such counterclaim is not available to him if his right of action therefor

01. Code of 1899, ch. 106, SS 23. Lipscomb's Adm'r v. Condon \[TW. Va.\] 49 S. E. 392. In such case it is reversible error to hear and determine the issue upon the petition, and answer thereto, and depositions of witnesses, according to the rules and principles governing courts of equity. Id.

01. Lipscomb's Adm'r v. Condon \[TW. Va.\] 49 S. E. 392. It cannot be merely inferred from the fact that the court tried the case without objection. Id.

01. See S. L. 374.

01. Where justice's signature was placed on writ without his authority and plaintiff

ratified and adopted the issnance and execution of the writ, held plaintiff was liable for wrongful attachment. Sanger Bros. v. Brandon \[Tex. Civ. App.\] 88 S. W. 431.

50. Farmers' & Traders' Nat. Bank v. Allen-Holmes Co. \[Ga.\] 49 S. E. 816. If such property is sold under the attachment proceedings the owner is entitled to recover damages for such unlawful seizure and sale. Id.

01. Vermillion v. Parsons, 101 Mo. App. 602, 78 S. W. 994.

01. May maintain conversion. Fred Krug Brewing Co. v. Healey \[Neb.\] 101 N. W. 329.

- 53. Fred Krug Brewing Co. v. Healey \[Neb.\] 101 N. W. 329.

54. Shoup v. Marks \[C. A.\] 128 F. 32.

01. Ceraling Mfg. Co. v. Anthracite Beer Co., 25 Pa. Super. Ct. 94.

01. Iowa: Under Code, SS 3887, providing that defendant may, in the attachment suit, value of the goods. \[60\] Evidence that defendant offered to pay the indebtedness less certain damages is admissible on the issue of malice. \[61\] Statements by agents are generally admissible. \[62\]

\_Instructions.--\_The general rules as to instructions apply. \[68\]

\_Damages. \[64\]--\_Unless a malicious motive induced the attachment or there are circumstances of oppression, \[68\] the damages are confined to reimbursement for the loss. \[64\] No actual damages being shown, exemplary damages cannot be recovered. \[67\] The approved measure of damages for the wrongful attachment of personal property is the value of the property when taken, \[68\] unless the owner replevied the same within a short time 'after seizure. \[69\] The market value of a stock of goods wrongfully taken from its owner is to be ascertained by what it would cost to replace the merchandise in his store; that is, the wholesale price plus the cost of carriage from the jobbing market to the place of seizure; \[69\] but if the goods are old and shopworn, the jobbing price of similar new goods could be only a relevant circumstance. \[71\] In a suit for damages for wrongful attachment, the plaintiff is entitled to recover reasonable attorney's fees paid in defending the attachment suit both in the trial and appellate courts; \[2\] but he is

- **60.** Shoup v. Marks \[C. C. A.\] 12S F. 32. purpose of coercing another to pay money he does not owe, such acts are equivalent to malice, and puntive damages may be recovered. Pittsburgh, etc., R. Co. v. Wake-field Hardware Co. \[N. C.\] 50 S. E. 571. that plaintiff's crediman stated that he \[68\]. State v. Parsons \[Mo. App.\] 84 S. W. 1019. A brewing company being prevented from filling its orders by an illegal attachment suit told plaintiff nothing, was admissible as tending to show that plaintiff did not purchase the goods prior to the attachment, as alleged, but is inadmissible to sustain the attachment. Carter-Baitle Grocer Co. v. Rusing \[Tex. Civ. App.\] 85 S. W. 449. In such action plaintiff claiming in one count to have been in possession through its agent R. and in another that R., at the time of seizure, owned the property but subsequently assigned to plaintiff, evidence that R. told officer making levy that he had bought the stock, held inadmissible under the first count but competent under the second. Id. \[68\] In an action to recover goods attached as those of another, an instruction that if defendants' agent was not decelved by statements made to him by plaintiff's agent as to the true ownership of the goods, but relied on his judgment or other information, defendant's plea of estopel by reason of the statements of plaintiff's agent would not be a good defense, was erroneous as a charge on the weight of the evidence. Carter-Baitle Grocer Co. v. Rusing \[Tex. Civ. App.\] 85 S. W. 449. Such instruction was also erroneous for failure to require that defendants' agent and the off-cer levying the writ should have been ignorant of the true ownership of the goods prior to the issuance and levy of the writ. Id. These errors were emphasized by the court's refusal to charge that if plaintiff's agent did not make the alleged statements there was no estoppel raised on account thereof. Id. \[64\] See 3 C. L. 375. \[65\] State v. Parsons \[Mo. App.\] 84 S. W. 1019. An attachment being sued out wantonly,' recklessly and willfully for the * 5Cur. Law. ATTORNEYS AND COUNSELORS SS 1. not entitled to recover for the services rendered by the attorneys on the merits of the case after the dissolution of the attachment.\[72\]

ATTORNEYS, see latest topical index.

## 7Compensation and Lien (325)

- 8. Authority of Attorney to Represent Client (331).
- 9. Rights and Liabilities to Third Persons (333).
- 10. Law Partners and Associations (333).
- 11. Fahlle Attorneys (333).
- 12. Attorneys General (333).
- 13. District and State's or Prosecuting Attorneys (334).
- 14. Commission to practice and license taxes.\[74\]--Good character being essential,\[76\] an applicant guilty of a crime of moral turpitude is not eligible, and when an applicant has been convicted of such crime, a pardon does not restore moral integrity.\[76\] The applicant should make known all facts affecting his character and moral fitness for a license.\[77\] A license can be obtained only from the court or body specified for that purpose by statutory or constitutional provision.\[78\] One is not an attorney who fails to follow his admission by a certificate required by statute and by engaging in practice.\[79\]

nedy v. Meacham, 18 F. 312; Patton v. Gar.; judgment by default against him, and then rett, 37 Ark. 605; Plumb v. Woodmansee, 34 Iowa, 116. Yarborough v. Weaver, & Tex.

- 15. In Texas, at least, a distinc-
- 16. In the same vein, 97 Ala. 666; Baldwin is sued out maliciously and without probable cause, in which case attorney fees
- 17. State v. Marsons (Mo.. App.) $4 S. Ann. 66, 96 Am. Dec. 379; State v. McKeon, 35 Mo. App. 687; Porter v. Knight, 63 Iowa, 365. However, in an action upon an attachment bond for the wrongful suing
- 18. See, also, post, $ 3. out of an attachment, the court may allow
- 19. Employezlement. People v. Gilmore, attorney fees for services rendered in the
- 19. Employezlement. People v. Gilmore,
- 20. All rights, 73 N. E. 737. But see People v.

## 2. _Duties, privileges and disabilities_

It is the professional duty of counsel to assist the court in preserving the nisi prits trial from error \[81\]. By a rule of privilege they are disabled to disclose professional communications from clients \[82\], and they cannot exercise the incompatible office of judge \[88\]. In Vermont it is the settled law that an attorney is not, by virtue of that relation alone, liable for fees accruing in suits brought by him \[84\], but he may become so by custom. In some jurisdictions the distinctions between attorneys, solicitors and counsel is preserved \[85\].

## 3. _Suspension and disbarment. Grounds_

Statutory enumeration of grounds for disbarment excludes all other causes \[87\]. Procuring admission by concealment of disqualifications \[88\], unfitness for the confidential relation to his client or unworthiness of public confidence \[88\] lack of such honesty and truthfulness as his profession requires \[90\], flagrant disrespect to the courts \[91\], attempts to subvert justice \[92\], dereliction in a public attorneyship \[93\], acts of fraud and dishonesty \[94\], false representations to clients \[95\] and the procuring from them of money by such

bar in 1893, but never filed the certificate \[\], once when it was known he would be required by laws 1899, p. 406, c. 225, with the clerk of the court of appeals, and only \[\], or \[\] * 6 Cur. Law. ATTORNEYS AND COUNSELORS SS 3. 381

means,96 bad faith to clients, as by the representation of hostile interests,97 are ground for disabarment, but entering into a champertous agreement is not, though it transpires that the client's interest was worth more than was paid for it.98 The loss of that good character which is necessary for admission is ground, though not enumerated among the statutory grounds.99 The fact of a former conviction is of great force but not of itself ground for disabarment,1 unless made so by statute.2 After an attorney has been acquitted of crime he cannot be disbarred because of such crime.3

\_Defense or excuse.4--\_Personal motives of relator are not a defense.6

\_Proceedings in general.6--\_Diskarment proceedings are usually held to be civil,7 and the procedure need not conform to the constitutional requirements applicable to criminal prosecutions.8 Petitions in disabarment proceedings must be signed and verified according to statute.9 The general power of courts of general jurisdiction to entertain disabarment proceedings is not revoked by testing the power of admission exclusively in the supreme court.10 A private informer should proceed in the superior court.11 In Iowa an accusation must be submitted and sanctioned by the court before citing to answer.12 Accordingly it is error to include a citation in an order directing a committee to prepare charges. This objection, however, is waived by pleading to the merits.13 A statute empowering the court to direct the drafting of charges does not imply that they shall be based solely on what the court has in mind.14 In Kansas where the law is similar to Iowa the accusation instituted by a private informer must be sworn, but if the court chooses to act on it the want of a verification is not jurisdictional.15 The answer must plead ultimate facts and not evidence.10 Depositions are permissible in such a procede ing, it being civil,\[17\] and the right to confront witnesses has no application.\[18\] Disbardment cannot be adjudged on default without proof.\[19\] A reduction of the evidence to writing filed and preserved is accomplished by certifying, filing and transcribing pursuant to order the shorthand report.\[20\] In Iowa such a proceeding goes up to the supreme court on appeal\[21\] for trial de novo\[22\] on the original papers and full transcript.\[23\] The court should not disbar a lawyer on testimony of a doubtful character.\[24\] The striking of his name from the roll of solicitors in chancery does not disbar an attorney from practice as an attorney before the law court of Delaware.\[25\]

_Reinstatement\[26\]_ should be made by setting aside a judgment not supported by proof.\[27\]

SS 4. _Creation and termination of relation with client.\[28\]_--The relation is created by contract with the client or his agent\[29\] to perform legal services\[30\] for the client.\[31\] The relation exists where the attorney is consulted as such and undertakes to act for the person seeking advice.\[32\] It is not necessary that the attorney should have appeared as such in legal proceedings.\[33\] It may exist with-

17. Code. $ 4684. State v. Mosher 26. See 3 C. L. 37.

\[Iowa\] 103 N. V. 105.

18. State v. Mosher \[Iowa\] 103 N. V. 105.

01. Disbardment proceedings were instintted against B by an accusation sworn to apon information and belief. On the day 28. See 3 C. L. 37. See, also, post, SS 8. the court rendered judgment disbarming him from the practice of his profession. Four days later he appeared and asked the court to set aside the judgment. The court refused and B appeals. Held, he should not have been disbarmed. In re Burnette \[Kan.\] 78 P. 440.

Note. The statute provides that if the accused fails to answer the court shall proceed to render such judgments as the case requires. In the opinion of the majority of the court this statute does not mean that a court can disbar an attorney upon default unless the accusation has been substantiated by proper evidence. State v. Shumatze, 48 W. Va. 359, 87 S. E. 618; in re Simpson, 9 N. D. 379, 83 N. W. 541; People v. Pendleton, 17 Col. 544, 30 P. 1041; In re Eddington, 82 N. Y. 161, 37 Am. Rep. 558; Penobscot Connty Bar v. Kimball, 64 Me. 140. The right of an attorney to practice law is secured to him by the constitution and laws of the state. He cannot be derived of his right without a day in court. State v. Start, 7 Iowa, 499; Ex parte Robinson, 19 Wall. \[U. S.\] 505, 22 Law. Ed. 206. But notice is not necessary when the offense is in the nature of a contempt committed in the presence of the court. In re Woelley, 11 Bush. \[Ky.\] 95. The minority opinion was based on a literal interpretation of the statute. By refusing to appear he virtually admits his guilt. Ex parte Thompson, 32 Or. 499, 82 P. 570, 40 L. R. A. 194; In re Randel, 158 N. Y. 216, 52 N. E. 1106; In re Welcome, 23 Mont. 450, 59 P. 44, 3 Mich. L. R. 232.

20. State v. Mosher \[Iowa\] 103 N. V. 105.

21, 22, 23. Code. $ 329. State v. Mosher \[Iowa\] 103 N. V. 105.

24. Evidence Insufficient to show acceptance of snm from defendant in criminal case to secure dismissal. Tador v. Commonwealth \[KY.\] 84 S. V. 522.

01. In re Hoffecher \[Del. Ch.\] 60 A. 981.

5 Cur. Law. ATTORNEYS AND COUNSELORS $ 5. 323 out payment of a fee 54 and continues so long as the the terms of the contract provide.\[85\] A retainer of one member of a firm of attorneys is a retainer of the firm, in the absence of any express stipulation to the contrary.\[88\] Sound policy forbids an attorney from appearing for conflicting interests,\[87\] but he may be agent for different parties as to different parts of a transaction.\[88\] A contract to pay the attorney of the adverse party to do something or to refrain from doing something which will effect the interest of his client is illegal and void,\[89\] especially where the attorney is acting under appointment of court to represent the interests of unknown clients.\[40\] A contract to procure legislative action is not necessarily bad.\[41\] The relation based on ratification is not found solely on knowledge that one was assisting the original counsel.\[42\] A client has the right to discharge an attorney at any time but must pay the discharged attorney money due him,\[48\] and if he be employed on a contingent fee, it should be upon condition that he pay them fair reunneration for services already performed.\[44\] His authority and employment ceases on the death of his client.\[45\]

_Substitution_ is necessary when the case goes to a court where the attorney is not admitted.\[46\] Statutes providing for notice to provide a substitute when the adverse party's attorney ceases to act have no application to a voluntary withdrawal by an attorney and refusal to proceed at the trial.\[47\] On granting a substitution a condition may be imposed securing the discharged attorney under a contingent contract.\[48\]

\*\*SS 5. _Rights, duties and liabilities between attorney and client; generally; loyalty and good faith.\[40\] Diligence.\[50\]_--An attorney is liable to his client for a 34. Mack v. Sharp \[Mich.\] 101 N. W. 631. 35. A contract whereby a corporation agreed to give an attorney "permanent employment" as counsel if he would render certain services and the scheme involved proved a success, was satisfied by his em-ployment thereafter for the period of a year at a fixed salary. Sullivan v. Detroit, etc., R. Co. \[Mich.\] 98 N. W. 786. 36. Lockwood V. Dillenbeck, 93 N. Y. S. 321. 321. 321. Counsel appeared for the executor or trustee in a suit for the construction of a will and also for a legate or device under the will. Smith v. Jordan \[Conn.\] 98 A. 507. The attorneys of a bankrupt's trustee In merely making out and presenting a proof of a claim is not of itself a double employment. In re McKenna, 137 F. 611. A defendant whose position is in fact adverse to that of another defendant cannot act as the latter's counsel, unless, if at all, express authority was shown on the record. Jenkins v. Barber \[Miss.\] 38 S. 36. Mortgages employed an attorney before taking the mortgage, to see that it was a first line on the property. There was an existing mortgage but the attorney raised certified that the proposed mortgage was a first line. The money was given to the attorney by check payable to the mortgage gagor who endorsed it and directed the attorney to pay the first mortgage but he embeszled it. The mortgagor must bear the loss. Trustees of Synod of Reformed Presn-Wterlian Church v. Livingston \[Pa.\] 60 A. 154. 38. Steger v. Hume, 97 Tex. 324, 79 S. 37. 19. 40. Contract to pay attorneys a certain sum to abandon an appeal by them from a judgment allowing them $2,000 for services held void. Steger v. Hume, 97 Tex. 324, 79 D. 8. W. 13. 41. Stroemer v. Van Orsdel \[Neb.\] 103 N. W. 1053. 42. Lathrop v. Hallett \[Colo. App.\] 77 P. 1095. 43. Vincent v. Nassau County, 45 Misc. 247, 92 N. Y. S. 32. 44. Du Bois v. New York \[C. C. A.\] 134 F. 570. 45. The death of the client deprives the attorney of the right to appear and suggest the death of his client, for the purpose of obtaining an order of revivor, before the appointment of a legal representative. Chl-domain oped, etc., R. Co. v. Woodson \[Mo. App.\] 85 A double employment. In re McKenna, 137 F. 611. A defendant whose position is in with an interest, is revoked by the death of the donor. Fisher v. Southern Loan & cannot act as the latter's counsel, unless, if at all, express authority was shown on the record. Jenkins v. Barber \[Miss.\] 38 S. 36. 46. 47. In a case begun in the state court but carried to the Federal courts there must be a substitution for an attorney admitted to the state but not the Federal bar. Lincoln Mfg. Co. v. New Haven Clock Co., 135 F. 1023. 47. The validity of a judgment is not affected by a party's counsel without leave of court, announcing their withdrawal from the case, serving on the adverse party and filling with the clerk of the court notice thereof and by retusing to proceed with or participate therein. McInnes v. Sutton, 35 Wash. 384, 77 P. 386. 48. Du Bois v. New York \[C. C. A.\] 134 F. 570. 49. See 3 C. L. 378. 50. See 3 C. L. 380.

loss resulting from a failure to exercise reasonable diligence, or such care and skill as is ordinarily possessed by persons of common capacity engaged in the same business.\[61\] Where an attorney undertakes the prosecution of a claim on a contingent fee based on a percentage of the amount collected, it is contemplated that he shall perform whatever services may be necessary.\[52\] In such a case the failure of a forwarding agency which sent the claim to furnish a bond does not excuse the attorney.\[63\] If a claim be settled without authority, the question of negligence does not arise.\[54\]

\_Dealings between attorney and client.\[55\]--He owes his client the duty of the utmost loyalty and good faith and should disclose facts within his knowledge essential to his client's full understanding of dealings with him.\[56\] The burden is on the attorney to show good faith and absence of undue influence,\[57\] that his dealings were fair and just, that the client acted upon full information, and that no undue advantage was taken.\[58\] But the law does not prohibit an attorney from dealing with his clients, and contracts when deliberately made are as valid as contracts between other parties,\[59\] though transactions between them will be closely scrutinized, especially where the attorney acquires any of his client's property,\[60\] and where he has so acquired title the court will impress the property with a trust in favor of the client,\[61\] but the client must act promptly.\[52\] These rules have no application to a charge of negligence in protecting a client's rights in litigation or transactions with others, but applies only where the attorney has obtained prop-

**51.** Loan of client's money upon insuff-client security. Kissam v. Squires, 92 N. Y. S. S. 873. Failure of attorney employed to examine title to land to learn whether there were mechanics' liens when he knew a building was being put up was a breach of his duty to his client for which he was his intended purpose, is sufficient where defend-ble on his bond for resulting damage, was on him. Purdy v. Wallace, 93 N. Y. S. 86 Ky. L. R. 931, 82 S. W. 969.

**52.** Taking of an appeal was rendered necessary by an erroneous decision of the trial court. Cavanaugh v. Robinson \[Mich.\] 101 N. W. 824.

**53.** Cavanaugh v. Robin'on \[Mich.\] 101 N. W. 824.

**54.** Instruction held bad which implied that it did. Vooth v. McEachen \[N. Y.\] 73 N. E. 488.

**55.** See 3 C. L. 880.

**56.** Where attorney became purchaser of land belonging to the estate for which he was the attorney, without disclosing his purpose to do so, or real value, the sale was annulled. Thweatt v. Freeman \[Ark.\] 84 S. W. 720.

**57.** Thweatt v. Freeman \[Ark.\] 84 S. W. 720.

**58.** Bingham v. Sheldon, 91 N. Y. S. 917. Evidence held to show relation between plaintiff and defendant such that defendant was subject to the rule. Thweatt v. Freeman \[Ark.\] 84 S. W. 720. Evidence held to show fraud of attorney in obtaining transfer of lease. Sheehan v. Erbe, 92 N. Y. S. 862. Raffication of acts of attorney held to have been given by client without full knowledge of facts; hence attorney was liable for negligent transaction resulting in loss to the client, notwithstanding such ratification. Kissam v. Squires, 92 N. Y. S. 873. Refusal of Instruction on burden of proof on an attorney was to fairness of dealings proper where sole 5 Cur. Law. ATTORNEYS AND COUNSELORS SS 7. 825

erty of the client."3 The purchase price with interest less the rents and profits must be returned."4

\_Accounting to client."68--\_For breach of duty to pay charges on property, the damages do not include the diminution of price received on foreclosure."68 Statutory costs awarded to a party in an action belong to him, and his attorney has no interest therein."7

SS 6. \_Remedies between the parties."88--\_One may collect so much as an attorney has received by an unauthorized settlement and not thereby preclude himself to sue for the balance."9 An action to recover moneys paid to attorneys for a specific purpose is not tortwise merely because it is alleged that they converted it."9 By statute in Alabama a summary judgment may be had against an attorney for failure to pay over money collected by him."11 An attorney sued while all vouchers and evidence are in his client's hands may have an injunction pending discovery."12 The attorney sued for money intrusted to him has the burden of proving a direction to use it for a new purpose 73 or a disposal of it per previous agreement."14 The burden of showing the amount of damages suffered rests upon the client."15

SS 7. _Compensation and lien."6 Right to and amount of compensation.--_ Performance of the service undertaken is necessary to earn a fee " except it be excused or rendered impossible by the client."7 There can be no recovery beyond that specially contracted for the work done,"9 though assisting counsel are not

63. No application on charge of negilient loan of client's money to a third person. Schreiber v. Heath, 92 N. Y. S. 10%. 64. Levara v. McNeny \[Neb.\] 10% N. W. Y. S. 1061. Allegations of answer in action 1042. 65. See 3 C. L. 381. 66. Dean v. Radford \[Mich.\] 104 N. W. 329. 67. The client may satisfy a judgment awarding him costs. Early v. Whitney, 94 N. Y. S. 728. 68. See 3 C. L. 381. 69. Burgraf v. Byrnes \[Minn.\] 103 N. W. 215. Logan v. Freerkas \[N. D.\] 103 N. W. 426. 71. Held, under evidence in such a proceeding, a general affirmative charge for either party would be improper. Boyett v. Payne \[Ala.\] 37 So. 855. In such a proceeding, under Code 1886, 3810, an order of the owner of the judgment to pay the amount of a judgment to a transferee thereof is competent evidence. Id. 72. Shaw v. Freerkas \[N. J. Eq.\] 59 A. 811. 73. Logan v. Freerkas \[N. D.\] 103 N. W. 426. 74. Where attorney retained money deposited with him to secure sureflies upon an undertaking, his mere statement that the money had been paid over to the sureflies was insufficient, in an action to recover, where he had previously asserted a lien on the money. Brenner v. Martin, 91 N. Y. S. 156. 75. Action for settling a claim for less than its face value without authority. Voth v. McEachen \[N. Y.\] 73 N. E. 488. 76. See 3 C. L. 381. 77. An attorney who abandons the service for which he was employed, without justifiable cause, is not entitled to compensate. Order of substitution of attorneys in divorce case should have been bound by an agreement of which they had no knowledge that attorneys' fees should be limited to a sum stated." The existence of a contract may be a question of fact," but since the compensation of an attorney is governed by agreement, express or implied, unrestrained by law, the validity of an agreement fixing compensation need not be submitted to the jury in the absence of proof of fraud or overreaching." Extra compensation may be had for services not covered by the contract " or included in a payment made." A quantum merit may be recovered if the client disaffirms authorized work under a contract." If there is no agreed fee the usual and customary fee is due or a reasonable fee," considering the character and efficiency of the services." The court may determine from its own knowledge the value of fees," and will not ignore its own knowledge in passing on evidence," but it is a question of fact not open on appeal."

_Contingent fees._"--A contract for a contingent fee is not necessarily invalid," and if fair will be followed in adjusting a claim after the client's death."

S. 1054. Rendition of a bill for legal serv-

Abb184 S. W. 1015. A bill rendered by an

tices, not conditioned on payment within a

attorney for services to his client is

reasonable time cannot be construed as an

potent for the defendant in an action for

offer to accept the amount stated therein.

v Webster v. Loeb \[Mo. App.\] 86 S. W. 463.

value plainIf himself

paced upon the

Where a contract between attorney and

client, after providing for the payment of

S. W. 463. Where the only question is, as

a fee of $1,000 to the attorney for

proceedure question to be put to an expert

vitaly what such services were to consist of,

consulted with a provision that one-half of

charge for such services as were rendered;

the sum should be paid immediately upon

that if there is no usual and customary

the execution of the contract, and the balance at the termination of a pending suit

what such services are reasonably worth.

in which the client was interested but to

which he was not a party, in event that he

should become a party, but was silent as to

the time for payment of such balance in

event that he should not become a party to

the suit, which was settled shortly after

the agreement was made, the balance of

the fee was payable to the attorney; the

proper construction of the contract being

that the attorney should receive $1,000 for

his services in any event. Whiting v. Day-

idge, 23 App. D. C. 156.

**50. Gates v. McClenahan \[Iowa\] 103 N. W. 969,**

**81.** Whether there was a contract for

each item of service alleged by attorney.

Dempsey v. Wells \[Mo. App.\] 84 S. W. 1015. Entry in attorney's ledger, under

proper title, of "Fee $750" is insufficient to

prove an agreement to pay such amount.

Davis v. Fischer, 90 N. Y. S. 801.

**82.** Werner v. Knowlton, 94 N. Y. S. 1054.

**83.** Services rendered in excess of those

included in a contract may be recovered.

Bareus v. Sherwood C. C. A. 136 F. 184.

**84.** Evidence held to show fee paid was

only for services in district court and that

attorney was entitled to compensation for

services in appellate court. Morris v. Kesterson \[Tex. Civ. App.\] 13 Tex. Ct. Rep.

417, 87 S. W. 271.

**85.** If the client unjustifiably repudiates

the attorney's work the attorney is not

bound by the amount which he had named

as his compensation, but is entitled to

cover the reasonable value of his services.

Foot v. Smyrthe \[Colo. App.\] 78 P. 619.

**86.** In the absence of a contract provision

the amount of compensation to which an

attorney is entitled is the reasonable value

of his services. Dempsey v. Wells \[Mo. App.\] 84 S. W. 1015. A bill rendered by an

the amount of compensation to which an

attorney is entitled to the same value

of his services. Dempsey v. Wells \[Mo. App.\] 84 S. W. 1015. A bill rendered by an

attorney for services to his client is com

after the argument that he

were made.

S. 1054. Rendition of a bill for legal serv-

attorney for services to his client is com

reasonable time cannot be construed as an

often for the defendant in an action for

offer to accept the amount stated therein.

w Webster v. Loeb \[Mo. App.\] 86 S. W. 463. Where the only question is, as

a fee of $1,000 to the attorney for

the amount due for attorney's fees, the

spacial services to be rendered, and specil-

\*\*proper question to be put to an expert

cally what such services were to consist of,

consulted with a provision that one-half of

the sum should be paid immediately upon

the execution of the contract, and the balance at the termination of a pending suit

in which the client was interested but to

which he was not a party, in event that he

should become a party, but was silent as to
5 Cur. Law.Attornneys and counselors SS 7.

Such agreements are not champertous where the attorneys are to make no advances or payments,94 but the purchase or maintenance of a law suit by an attorney is champerty.95 In an action by an attorney to recover on a contract for compensation, champerty is an affirmative defense which must be pleaded.96 It is against public policy to stipulate that the client shall not settle without the attorney's consent.97 He may recover though unsuccessful if failure was due to the client's nonperformance of his promise.98

\_Implied contract.99--\_There is no implied promise to pay an attorney whom one has not employed, because of incidental benefits derived from his services.1 It is essential that the services be rendered as attorney and not as incident to another relation.1 On the death of counsel before full performance, recovery may be had for the reasonable value of the services performed in such proportion as they bore to what he undertook.9 Implied promises to pay an associated counsel do not arise merely from knowledge of it by the client.9

\_Employment of several attorneys, or by several clients.9--\_Attorneys severally employed can each recover.9 Where an order of substitution directs two substituted attorneys to pay a certain sum to the former attorney, the latter may maintain an action to recover such sum against either of the substitutes without joining the other.9

executor the court ought to uphold the contract for contingent fees to the extent at least, of not allowing its existence to influence its action. The ophans' Court can S. W. 207.

and will confine the amount to reasonable compensation. Johnston v. Reilly \[N. J. Eq.1 59 A. 1044.

94. Granat v. Kruse, 114 III. App. 488.

01. An agreement between the holder of a nonnegotiable choso in action and an attorney, by which the latter, in consideration of an assignment of the claim, agreed to enforce the collection thereof by suit, himself to pay all the expenses, and remit to the assignor one-half of the proceeds in full for his services, is invalid, as against public policy. Slade v. Zeifuss \[Conn.\] 59 A. 406. See, also, Champerty and Maintenance, S C. L. 677. A contract that the attorney shall receive as compensation a part of what may be recovered is not an assignment. Weller v. Jersy City, etc., R. Co. \[N. J. Err. & App.\] 61 A. 549. An agreement to allow attorneys one-half the amount recovered is not an assignment of one-half the cause of action. Attorneys not parties in interest. American Cotton Co. v. Simmons \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 343, 87 S. W. 842. Attorneys who bring suit in the name of the client upon the entire cause of action, though entitled by contract to one-half the amount recovered, and proceed to judgment after the question of their interest in the cause of action has been raised, are bound by the judgment. Id. An agreement by an attorney to pay all or some portion of the court costs to accrue in a suit which he is employed to prosecute is champertous. Agreement to pay all costs and take half the recovery in actions to recover excessive duties champertous. Comstock v. Flower \[Mo. App.\] 84 S. W. 207.

**Note:** Attorney having contract for contingent fee as party see Knickerbecker v. Wortning \[Mch.\] 101 N. W. 540; Foy v. Barry, 87 App. Div. 291, 84 N. Y. S. 335; 328 Attornneys and Counselors $ 7. 5 Cur. Law.

\_Allowance by court or taxation as costs.\*--\_Except as provided by statute * or by contract,\[10\] fees of counsel are not allowed as incident to recovery in an ordinary action,\[11\] but are often allowed in adjusting the equities of suitors in equity \[11\] or in the adjustment of rights in a fund or estate diversely charged or claimed.\[18\] It is commonly provided that counsel appointed for one accused shall be paid from the public funds at a rate prescribed or ordered by the court,\[14\] and allowance may be made for each trial.\[15\] Like allowance are sometimes made to attorneys appointed for nonresidents.\[16\] Statutes authorizing allowances are strictly construed and will not be extended beyond the limits imposed by their clear language.\[17\] Such fees are not "costs," \[18\] but being incidental must rest on a valid or-

8. See 3 C. L. 385.

1. Upon failure to prosecute an appeal, the court under act of May 19, 1897 (P. L.

Where partition proceedings are amicable, 67), awarded an additional attorney fee of its pipe to allow the attorneys conduct-

$25. Wilcox v. Merrill, 26 Pa. Super. Ct.

69. In Iowa a fee may be taxed in a liquor

require the payment of the same by the injunction contempt case besides the ten

parties in proportion to their interest in per cent. for collecting the fine allowed by

the property involved. Johnson v. Emerick

statute. Code, $ 1429. Brennan v. Robberts, 125 Iowa, 615, 101 N. W. 460. Civ.

to diminish a fund cannot be charged on it,

Code 1895, $ 3786 declares that attorney's

from any be allowed if the defendant has

Mutual Life Ins. Co. \[Ind. App.\] 75 N. E. 31.

acted in bad faith, or been stubbornly

13. Bankruptery: Only reasonable commissioning. In an action for tort against a

persation will be allowed attorneys in com-

carrier for conversion of goods designed

position. In re Talton, 137 F. 178. An

to the plaintiff, in order to recover such

excour may before probats employ coun-

attorneys fees the petition must allegege in

set to resist the contest of a will and ob-

terms such bad faith, etc. Central of

team compensation for such attorneys serv-

Georgia R. Co. v. Chicago Portrait Co. \[Ga.\]

lees from the assets of the estate. Flil-

49 S. E. 727. In Florida, attorney's fees

Imger V. Conley, 163 Ind. 584, 72 N. E. 597.

may be recovered in certain actions against

fire and life insurance companies. Acts

1893, e. 4178, p. 101, so providing, was not

the estate he will be entitled to counsel

repeated by Acts 1899, c. 4677, p. 33, and is

constitutional. L'Engle v. Scottish Union

state but also for services in the ejecment

& National Fire Ins. Co. \[Fla.\] 37 So. 462.

10. In an action to recover on a bond and

for attorneys fees, there was no allegation

$2,000 recovered. In re Covington, 132 F.

that the defendant undertook to pay attor-

884.

ney's fees in case of suit, and the bond contained no such stipuation. In the absence

of such agreement, counsel fees cannot be

awarded either as costs or otherwise.

Dame v. Cochitt Reduction & Improvement

C. \[N. M.\] 79 P. 286. Though, in Georgia,

obligations to pay attorneys' fees are de-

clared void by statute, such a promise in a

note is enforceable if the statutory notice

of intention to use is given, and the debt is

not paid before the return day. Defend-

ant may defeat recovery of such fees by

paying the debt. Browne v. Edwards \[Ga.\]

50 S. E. 110. Since the act of 1900 (Van

Epps' Code Supp. $ 6185), in order to recover attorney's fees on a note it must be

alleged in the pleadings that the statutory notice has been given, and this allegation

if denied, must be proved on the trial.

Pritchard v. McCrary, \[Ga.\] 50 S. E. 366.

11. Such allowance may be saved for re-

view by first objecting by exception to the

allowance made; and may be reviewed on

appeal from the judgment. Spencer v. Commercial Co., $ 6 Wash. 374, 78 P. 914.

12. In mechanic's lien proceedings. Hess v. Peck, 111 Ill. App. 111. In an action to

set aside a feed of trust of certain securities

ities given by a life tenant, it was held that

the court had power, within the scope of

the decree, to make a proper allowance to

the attorney whose services were re-

dered in support of the ded. Bauernschmidt \[Md.\] 60 A. 437.

the court under act of May 19, 1897 (P. L.

Where partition proceedings are amicable,

67), awarded an additional attorney fee of

if is proper to allow the attorneys conduct- 5 Cur. Law. ATTORNEYS AND COUNSELORS SS 7. 339

der.10Fees on foreclosure of a mortgage need not be prayed and are not a separate cause of action.20

The allowance in the ordinary case runs to the receiver or fiduciary, not to the attorney direct.21 The decree for solicitor's fees in partition fees may be entered in favor of the solicitor, though not a part to the suit.22 An allowance of a fee should not be made without notice to the party to be charged and an opportunity to be heard as to its reasonableness.23

\_The amount of allowance_24 is the reasonable worth of the services,25 if none be fixed otherwise. In case of a contract for fees, only so much as will indemnify is recoverable.26

_Assignments as security.27_

\_Lien.28--An attorney has a lien on monevs or papers in his hands29 received by him in the course of his employment, not only for costs and charges in the particular suit, but for any general balance in other professional business.29 It is a common-law right.31 It is unaffected by the fact that his client is an executor or trustee,32 and covers services to decedent as well as to the executor.33 The lien is for services rendered at the request of his client; an attorney sub-employed by counsel to assist him in a case at his own expense is not entitled to a lien.34 The right is not at common law or under the ordinary statutes restricted to employments wherein an action was actually begun.35 There may also be a contract lien 36 or by virtue of a contract as to compensation one may be deprived of a right

clal Co., 36 Wash. 374, 78 P. 914. Rapid on a note for $589. Warnock v. Itawis Transit Act, $ 62, authoring allowance of \[Vdash.\] $ 0 P. 297. Evidence sufficient to fees for additional counsel for the city in condemnation proceedings, does not authoring reveal. Dills v. Auxier iee such allowance to counsel for property \[KY.\] $ 58 S. V. 743. $100 for services on apowners. In re Rapid Transit Comrs, 93 N. \[\] $ 0 P. 281 held excessive where but $75 was allowed for trial. Combs v. Combs, 26 Ky. \[\] $ 15. Hence the allowance against the state is not binding on its auditing board. Code City. Proc. $ 1038. Sullivan v. Gage, 145 Cal. 759, 79 P. $37.

19But where the order appointing a receiver is void for want of jurisdiction, an order awarding counsel fees for the receiver is also void. Sullivan v. Gage, 145 Cal. 759, 79 P. $37. Where, under the Code, requiring the court in proceedings to enforce mechanic's lien to allow costs and attorneys fees, a contractor who does not establish his lien because the fund due him is exhausted in the payment of subcontractors, is not entitled to them. Stimson v. Dunham, Carrringa, Hayden Co. \[Cal.\] 79 P. 968.

20. Thrasher v. Moran \[Cal.\] $ 1 P. 32. 21. Sullivan v. Gage, 145 Cal. 759, 79 P. $37.

01. McMullen v. Reynolds, 105 Ill. App. 386.

01. Combs v. Combs, 26 Ky. L. R. 617, 82 S. V. 298.

01. See 3 C. L. 386.

01. $ 800 for services was proper, where counsel assisted in recovering $25,000 for the trustee being engaged fifty days. In re McKeenna, 137 F. 611. In determining the amount of solicitor's fees, the court should take into consideration the standing and experience of the solicitor, as well as the nature, importance and result of the controversy, and may of its own motion obtain the opinion of other attorneys as to a proper amount. McMullen v. Reynolds, 105 Ill. App. 386. $50 was upheld in an action in the recovery in a lawsuit, with reference of lien.37 In Missouri the lien acquired by an attorney who has a contract for a certain portion of a settlement as compensation, and has given notice of such contract to his client's adversary, is not destroyed by a settlement without the written consent of the attorney.38 Such settlement renders the adversary who has notice of the contract liable for the amount to which the attorney is entitled,39 and this amount may be recovered in an action at law.40 There need not be a verdict or judgment in favor of the client 41 nor is solvency of the client and willingness to pay a defense to such action.42 There is no attorney's lien outside of statutory provisions in that state.43

Footnote 38: 39. Yonge v. St. Louis Transit Co. \[Mo. App.\] 84 S. W. 184.

An attorney's lien is subject to the right of his client to settle,44 and while a collusive settlement, made to defraud the attorney, may be set aside, an honest settlement will not be interferred with.45 On the other hand the rights of an attorney will be protected where a settlement is made without his knowledge or consent.40 An attorney's statutory lien in Missouri on a cause of action is not lost by a settlement between the parties, but attaches to the proceeds of the settlement.47

Footnote 40: 39. Yonge v. St. Louis Transit Co. \[Mo. App.\] 84 S. W. 184.

\_Loss of lien.48--\_The lien continues only while property is in his hands.49 If he has an interest in a prospective judgment he does not lose it by opposing a disadvantageous one.50 Where an attorney's lien is released on an agreement for the payment of a certain sum by the client, in an action to enforce such agreement the terms of the original agreement are immaterial.51

Footnote 40: 39. Yonge v. St. Louis Transit Co. \[Mo. App.\] 84 S. W. 184.

\_Enforcement of lien.52--\_A party to an action is only secondarily liable to the attorney of the adverse party for the amount of his lien; namely, only when the adverse party is insolvent and unable to pay.53 Where a case is settled, attorneys \[Mo. App.\] 84 S. W. 184.

to her own separate property, and directly for the benefit of that estate, to secure to an attorney reasonable compensation for his services, followed by a successful suit, has the effect to vest the beneficiary with an equity, by reason of which equity will create a lien. Adams v. Schmidt \[N. J. Eq. \] 60 A. 345. A married woman had legal capacity to agree to execute a deed of trust on certain lands to secure, for plaintiffs their fees in certain divorce proceedings to be brought by her in case plaintiffs were successful in vesting the title in her as a part of such litigation. Such contract constituted an equitable lien on the property which attached thereon when the title became vested in her by the decree in such proceedings. Patrick v. Morrow \[Co.\] 81 P. 242. Contract between attorney and client, as found in receipt given by attorney construed, and held, that mortgage given by client was only to secure attorney in furnishing bond, and not to secure payment of remainder of fee. Sparks v. Walden, 25 Ky. L. R. 1937, 79 S. W. 248.

\_Lien for attorney's fees, given by landowner who contracts for an improvement, in connection with mechanic's lien and notes, is valid. Summerville v. King \[Tex\] 83 S. W. 680. But if land on which improvement is built is a homestead, such lien for fees is unenforceable. Summerville v. King \[Tex\] 84 S. W. 648.

_37._ Agreement that one of three plaintiffs was to pay one counsel and other two were to pay attorney of record enforced, attorney of record not being entitled to retain money belonging to the third plaintiff. Radley v. Gaylor, 98 App. Div. 158, 90 N. Y. S. 758.

_38, 39._ Yonge v. St. Louis Transit Co. \[Mo. App.\] 84 S. W. 184.

_40._ Corresponding to trespass on the case; further prosecution of the case is unnecessary. Yonge v. St. Louis Transit Co. \[Mo. App.\] 84 S. W. 184.

_41, 42._ Yonge v. St. Louis Transit Co. \[Mo. App.\] 84 S. W. 184.

_43._ Conkling v. Austin \[Mo. App.\] 86 S. W. 911.

_44._ Lien held good for one-half settlement, not for one-half judgment. Gurley v. Gruenstein, 44 Misc. 268, 89 N. Y. S. 887.

_45._ Gurley v. Gruenstein, 44 Misc. 268, 89 N. Y. S. 887.

_46._ Smith v. Acker Process Co., 92 N. Y. 8, 851.

_47._ Under Acts 1901, p. 46, attorney had lien on proceeds of settlement of suit for specific performance of contract for reality, decds being executed. Conkling v. Austin \[Mo. App.\] 86 S. W. 911.

_48._ See 3 C. L. 389.

_49._ Not after deposit in court. Quaker-town & E. R. Co. v. Guarantators' Liability Indemirity Co., 209 Pa. 121, 58 A. 277.

_50._ Where an attorney has been discharged by his client, his interest in the judgment will not be forfield because he in good faith opposes a may continue the trial to establish and enforce their lien for compensation.\[54\] But such right to continue ceases where the adverse party offers to pay costs and compensation to which the attorneys are entitled, tendering a sum for the purpose, and requesting judgment for what is claimed beyond such sum,\[55\] since the court then has power to determine the amount to which the attorneys are entitled and enforce a settlement and end the case.\[56\] When the suit is so prosecuted, there can be no recovery for fees unless the evidence is of such a character that a recovery in behalf of the client would have been authorized if the suit were still proceeding for his benefit.\[67\] An order of continuance to determine and enforce an attorney's lien should not be made where it does not appear that the client is not financially able to pay the attorney.\[68\] Code remedies for enforcement of attorney's liens are not exclusive, but only enmulative, since courts of equity have always had power to ascertain and enforce liens.\[69\] Where the attorney had a valid contract interest in proceeds he may sue as for money had and received after it has been paid over,\[69\] or may at his option enforce any contract lien \[61\] even against an assignee.\[62\] Statutory power in a court to determine and enforce an attorney's lien necessarily includes the power to determine whether a lien exists or not.\[63\] In an action to declare a lien on a contract between a client and a third person, and on money due defendant thereunder, the third person is not a necessary party.\[64\]

SS 8. \_Authority of attorney to represent client.\[65\] Creation, proof and termination of authority.\[66\]--Where an attorney appears in an action for a defendant, the presumption is that he was authorized to appear.\[67\] It is not necessary that the attorney shall have signed pleadings or be of record.\[68\] The authority of attorneys must be promptly challenged.\[69\] A statute requiring proof of authority when the opposite party is in default does not apply where only one of two joint adversaries defaults.\[70\] The existence of authority is a question of fact.\[71\] A judg-

54. Code Civ. Proc. $ 66. Kuehn v. Syra-

'orney's lien and that the attorney might cause Rapid Transit R. Co., 93 N. Y. S. 883.

'To recover their fees, attorneys are frequently allowed to continue, in their own interest, actions which their clients have settled, abandoned or otherwise prevented their attorneys from completing. While the suit was pending, the defendant paid to the plaintiff a sum of money in full satisfaction of her demand and she signed a paper releasing the company from liability.

Atlanta R. & Power Co. V. Owens, 119 Ga.

'83, 47 S. E. 213.

'85, 56. Kuehn v. Syracuse Rapid Transit R. Co., 93 N. Y. S. 883.

'87. As there could have been no recovery on the part of the plaintiff, the attorneys could not recover. Atlanta R. & Power Co. V. Owens, 119 Ga., 833, 47 S. E. 213.

'88. Code Civ. Proc. $ 66. Smith v. Acker

'89. Protocol Co., 92 N. Y. S. 851.

'89. Mathot v. Triebel, 98 App. Div. 328, 90 N. Y. S. 903.

'89. Where an attorney contracted to take necessary proceedings to recover damages for the taking of property in street opening proceedings, and to receive one-

'89. Definition of the award as compensation, an action against a grantee of the premises to whom the award was paid to recover such agreed compensation is an action for money had and received and not to enforce an attorney's lien. Flannery v. Geiger, 82 N. Y. S. 786.

'81, 62. The fact that such grantee took the premises and award subject to the at-

'82. Definition of the award as compensation, an action against a grantee of the premises to whom the award was paid to recover such agreed compensation is an action for money had and received and not to enforce an attorney's lien. Flannery v. Geiger, 82 N. Y. S. 786.

'83. Definition of the award as compensation, an action against a grantee of the premises to whom the award was paid to recover such agreed compensation is an action for money had and received and not to enforce an attorney's lien. Flannery v. Geiger, 82 N. Y. S. 786.

'84. Definition of the award as compensation, an action against a grantee of the premises to whom the award was paid to recover such agreed compensation is an action for money had and received and not to enforce an attorney's lien. Flannery v. Geiger, 82 N. Y. S. 786.

'85. Definition of the award as compensation, an action against a grantee of the premises to whom the award was paid to recover such agreed compensation is an action for money had and received and not to enforce an attorney's lien. Flannery v. Geiger, 82 N. Y. S. 786.

'86. Definition of the award as compensation, an action against a grantee of the premises to whom the award was paid to recover such agreed compensation is an action for money had and received and not to enforce an attorney's lien. Flannery v. Geiger, 82 N. Y. S. 786.

'87. Definition of the award as compensation, an action against a grantee of the premises to whom the award was paid to recover such agreed compensation is an action for money had and received and not to enforce an attorney's lien. Flannery v. Geiger, 82 N. Y. S. 786.

'88. Definition of the award as compensation, an action against a grantee of the premises to whom the award was paid to recover such agreed compensation is an action for money had and received and not to enforce an attorney's lien. Flannery v ment reciting an appearance by, attorney is conclusive as to the appearance of the attorney but not on the question of the attorney's authority to make the appearance.72 Declarations of the attorney are incompetent to prove the scope of his authority.73 An attorney acting for a client in a justice court acts as an attorney in fact, and his authority ceases when the case is finally submitted.74 Authority cannot be revoked after it is executed.75

Footnote 73: The author is a member of the author, who is a member of the author.

Scope of authority.76--An attorney has power to bind his client by acts within his actual or implied authority.77 Unauthorized acts may be repudiated 78 or ratified,79 and as to third persons the rule as to apparent authority applies.80 Notice to an attorney as to matters within the scope of his retainer is notice to the client.81 The authority of an attorney extends to all acts needful to the prosecution or defense of the suit in which he is retained.82-87

written or verbal, and shall be proved in \[3\]

Schaefer v. Schoenborn \[3\] 103 N. W. all cases when requested by the opposite party, or where the opposite party falls to appear. Hirsh v. Fisher \[3\] 101 N. W. 48.

T1. Evidence held to justify conclusion that attorney who appeared, conducted the trial, and made afflawt for appeal, was authorized to act, without any restriction or defense of the suit in which he is retained.82-87

S0. Where an attorney has apparently theorized to represent defendant so that a stipulation signed by him was binding, \[3\]

tion whatever, the client will be bound by Markey v. Louisiana, etc., R. Co. \[3\]. 84 his acts, notwithstanding violation of secret restrictions. As where a client authorised lute agreement by attorney to represent plaintiff in action; hence plaintiff not excused from personally attending to prosecution. Harrison v. Oak Cliff Land Co. \[4\]

the violated restrictions the other parties. \[5\]

Evidence showed no authority to appear. Korman v. Grand Lodge of the U. S., 44 Misc. 564, 90 N. Y. S. 120.

73. West v. A. F. Messick Grocery Co. \[N. C.1 50 S. E. 565.

01. Cutting v. Jessmer, 91 N. Y. S. 658.

01. Settlements had been made. Foot v. \[3\]

Clowney IS. C.1 49 S. E. 569. The assignee Smyrhe \[3\]

of a judgment was chargeable with the 76. See 3 C. L. 390. Agency of attorney for client. See Clark and Skyles Agency, \[4\]

the assignment concerning litigation arguments. \[5\]

pp. 1356-1616.

77. Client is bound by acts of attorney representing him in an action to which he has expressly or impliedly consented. \[6\]

acts for his own interest, is not charged Hill's Adm'r v. Penn. Mut. Life Ins. Co. \[5\]

with what the attorney knows. The at- \[5\]

\[5\]

S S. W. 759. A bondholder's counsel has no authority as such to valve pay- \[6\]

whether his client would sell a pending argument of interest. Real estate Trust Co. v. \[7\]

Union Trust Co. \[3\]

61 A. 228. Client is \[7\]

cating himself, without disclosing the fact chargeable with the action, mistake or in- \[8\]

that he was acting for any one else, and adverteence of his attorney. Application for a reissue of a patent with broader \[3\]

same to complainant. National Cash Regc claims, made six years after patent \[3\]

isfect Co. V. Columbus Watch Co. \[3\]

granted, the only excuse being that he was \[12\]

129 F. 114. Knowledge acquired by an at- \[5\]

unaware of the narrow scope of his claims. \[7\]

In re Starkey, 21 App. D. C. 519. A client

his duties as such is notice to the client. is liable for acts of his attorney done in his presence and sanctioned by him. Client

of record, acquired by attorney employed held liable for acts of his attorney in \[8\]

to draw up and acknowledge deed, is notice

ducing a justice to issue a criminal warrant without sanction of prosecuting attorney, as required by Rev. St. 1899, 5 2750.

FructExter v. Frederick \[3\]

83 S. W. transaction, not relating to his clients' busi- \[7\]

775. Unauthorized act of attorney in \[3\]

ans, the burden is on the person claiming ing debtor's arrest does not render client \[3\]

such notice to show that such knowledge liable. West v. A. F. Messick Grocery Co. \[3\]

was in the attorney's mind at the time he \[3\]

100 A. \[3\]

50 S. E. 565.

75. A client may repudulate a stipulation \[3\]

made by his attorney not pursuant to persu. \[4\]

will, 100 App. Div. 311, 91 N. Y. S. 624. No- \[5\]

test by the attorney for the plaintiff in a that he had a special authority to make it. \[5\]

personal Injury action against a manlo 5 Cur. Law. ATTORNEYS AND COUNSELORS SS 11A. 333 SS 9. _Bights and liabilities to third persons._\[85\]--The client's liable for acts of his attorney within the scope of his authority, though such acts are unwarranted by law.\[89\] An attorney who causes attachment to issue becomes personally liable to the sheriff for fees and charges where the attachment is vacated for legal insufficiency of the papers on which it was granted.\[90\] An action to recover excessive costs, paid out by an attorney for his client or appropriated to pay himself, before an order reducing costs was made, should be brought against the successful party and not against his attorney.\[91\] SS 10. _Law partnerships and associations._\[92\]--A member of a partnership engaged in the practice of law has implied authority to bind the firm by a contract for the purchase of law books.\[89\] SS 11. _Public attorneys. A. Attorneys general,_\[94\], \_\[85\]--An attorney general with constitutionally defined powers has no power except such as are thus given.\[96\]

Ignality to the attorney for the owner of the property where accident happened in another suit 1s not such notice as will affect the owner. Chester v. Schaffer, 24 Pa. Super. Ct. 162. **S2**, **S3**, **S4**, **S5**, **S6**, **S7**. An attorney may make a binding stipulation extending the time for the service of papers. Morris v. Press Pub. Co., 98 App. Div. 143, 90 N. Y. S. S. 673. An attorney employed for the purpose of collecting has no implied authority to extend the time of payment of claims in his hands. Mason v. Edward Thompson Co. \[Minn.\] 103 N. V. 507. The entry of a special appearance does not authorize counsel so appearing to appeal from a default judgment against his client. Houston v. Greensboro Lumber Co., 136 N. C. 328, 48 E. 178. Where an attorney has appeared for a party throughout the entire proceedings in a case, his authority to sign a notice of appeal is presumed. Kefavver v. Batord, 4 Ohio C. C. (N. S.) 427. **Compromise of claim:** An attorney employed to bring and prosecute a suit has no power by reason thereof to compromise his client's claim. Kelly v. Chicago & A. R. Co. \[Mo. App.\]. 87 S. W. S. 853. Fleishman v. Meyer (T.J 80 P. 209. He may not settle a judgment for less than its face. Burgraf v. Byrns \[Minn.\] 103 N. V. 215. An attorney has the power to promise an opposite party to pay her the amount of her claim in consideration of her dismissal of her suit, and such promise is binding on the client. Grand Lodge, Independent Order Free Sons of Israel v. Ohnstein, 110 III. App. 312. **Admission of faets:** Attorney may bind client by admissions dispensing with formal proof of facts. Everett v. Marston \[Mo.\] 85 S. W. 540. Cannot bind his client by an admission, not of record, without express authority. In an action for goods sold and delivered, it appeared that defendants counsel in going over the items in the bill of particulars with plaintiffs counsel in the court room admitted the sales between specified dates. Jefferson Bank v. Gossett, 90 N. Y. S. 104. May on the brief in the supreme court admit facts. Territory v. Board of Com'rs of Bernasillo County \[N. M.\] 79 P. 709. Stipulation as to facts by attorney of record is binding on client. J. L. Raper Lumber Co. v. Elizabeth. **S3**, **S4**, **S5**, **S6**, **S7**, **S8**, \*\*S9
Status enabling the attorney general to employ assistants do not forbid him to act through an unofficial attorney."

(SS 11) \_B. District and state's or prosecuting attoreys."--\_Statutes creating the office of county attorney and providing for election to the same must conform to constitutional provisions " and elections must conform to valid statutes.1 A commonwealth's attorney duly elected in a county in which he resides is not disqualified by a subsequent legislative change in the boundaries of the district making him a nonresident,2 since, though a legislature be given power to abolish the office, it cannot abolish the tenure of any rightful incumbent thereof.3 County authorities may unless excluded by statute hire attoreys but cannot make them public officers.4

Footnote 1: The author is grateful to the anonymous referee for his comments.

It is the province of the county board and not of the county attorney to determine whether the county shall bring an action,5 and it is his duey to conduct the case.6 A prospecting attorney may accept notice of a writ of error in a criminal case and waive the issuance and service of summons in error and enter the appearance of the state.' A case which is only criminal in its nature is not a criminal case which the public prosecutor must conduct.8 In Georgia the constitution imposes upon the solicitor general the burden of representing the state in all caess taken up from his circuit to the supreme court."

Footnote 1: The author is grateful to the anonymous referee for his comments.

5 Cur. Law. ATTORNEYS AND COUNSELORS SS 11B. 335 that his refusal to act has been an arbitrary act and not merely a mistake of judgment.${}^{18}$

The appointment of assisting prosecutors is generally provided for by statute,${}^{16}$ thought it is said that a court has inherent power to appoint a temporary substitute for an unwilling public prosecutor,${}^{17}$ and in the absence or inability of the district attorney the business of the state continues under the direction of substitutes.${}^{18}$ That a substitute for a district attorney had been previously consulted by citizens in regard to the particular action prosecuted by him does not disqualify him, his private employment having ceased.${}^{16}$ If a statute prescribes the form of the appointment of assistant county attorneys, such forms must be complied with.${}^{20}$ When a district attorney insists on a defendant pleading to an information, drawn and subscribed by his deputy in the name of the district attorney, he thereby ratifies such subscription and sanctions it by his official oath.${}^{21}$ Some official act done is necessary to make one a de facto assistant.${}^{22}$ The court will take judicial notice of the powers of a deputy appointed under statute ${}^{23}$ and presumes the regularity of his appointment when he has acted as such.${}^{24}$

Salaries and compensation are statutory matters.${}^{25}$ Where, as in California, the statute declares that salaries and fees provided therein shall be in full for all services rendered by him or his deputies, the county attorney cannot claim extra compensation for a deputy or assistant,${}^{26}$ or the statute be avoided by appointing or allowing for the services of a salaried assistant,${}^{27}$ nor can the services of such in aiding to perform the district attorney's duties be regarded as his "personal" expenses.${}^{28}$ Under the Kentucky statutes and constitution allowing the commonwealth attorney fifty per cent. of fines and forfeitures recovered and paid into the 15. Application to compel defendant to institute quo warranto proceedings to test a franchise. Buggeln v. Doe \[Ariz.\] 78 P. 367.

16. Rev. St. 1898, SS 750, does not require statement of cause for appointment of assisting prosecutor, but only when district attorney pro tem is appointed. Colbert v. State \[Wis.\] 104 N. W. 61.

01. When a state's attorney, though in attendance upon the court, refuses to discharge his duties, the court has the implied power to appoint some other member of the bar to appear before the grand jury during the examination of the evidence to advise them on questions of law and to frame indictments. Taylor v. State \[Fla.\] 38 86.

01. District judges are authorized to appoint competent attorneys to represent the state in criminal and civil matters pending before their court, when for any cause the district attorney is excused, necessarily absent or pick, etc. State v. Reid, 113 La. 890, 37 S0. 866.

01. State v. Reid, 113 La. 890, 37 S0. 866.

01. Where statute authorized country attorneys, by consent of commissioner's court, to appoint in writing, not to exceed three assistants, who shall subscribed the oath of office imposed by the constitution, mere verbal authority to one to represent the county attorney is insunfficient. Murrey v. State \[Tex. Cr. App.\] 87 S. W. 349.

01. Motion to set aside the information based on the ground that it was not found, endorsed, or presented as required by law. State v. Guglielmo \[Or.\] 79 P. 577.

01. One who was verbally appointed assistant county attorney did not become a de facto officer from the mere act of sign- 367.

01. Rev. St. 1898, SS 750, does not require statement of cause for appointment of assisting prosecutor, but only when district attorney pro tem is appointed. Colbert v. State \[Wis.\] 104 N. W. 61.

01. One who was verbally appointed assistant county attorney did not become a de facto officer from the mere act of sign- 367.

01. Rev. St. 1898, SS 750, does not require statement of cause for appointment of assisting prosecutor, but only when district attorney pro tem is appointed. Colbert v. State \[Wis.\] 104 N. W. 61.

01. When a state's attorney, though in attendance upon the court, refuses to discharge his duties, the court has the implied power to appoint some other member of the bar to appear before the grand jury during the examination of the evidence to advise them on questions of law and to frame indictments. Taylor v. State \[Fla.\] 38 86.

01. District judges are authorized to appoint competent attorneys to represent the state in criminal and civil matters pending before their court, when for any cause the district attorney is excused, necessarily absent or pick, etc. State v. Reid, 113 La. 890, 37 S0. 866.

01. State v. Reid, 113 La. 890, 37 S0. 866.

01. Where statute authorized country attorneys, by consent of commissioner's court, to appoint in writing, not to exceed three assistants, who shall subscribed the oath of office imposed by the constitution, mere verbal authority to one to represent the county attorney is insunfficient. Murrey v. State \[Tex. Cr. App.\] 87 S. W. 349.

01. Motion to set aside the information based on the ground that it was not found, endorsed, or presented as required by law ${}^{29}$

He may appear before the grand jury. United States v. Twining, 132 F. 129.

35. Petitioner in his official capacity as assistant United States district attorney, procured the production of state court records before a federal grand jury under an ordinary subpoena duces teemm, and thereafter held possession of such records as such attorney, he was not subject to punishment for contempt of the state court

## 5 Cur. Law.

Bail, Criminal $ 1.

articles sold. \[46\] Latent defects relative to the goods sold must be explained. \[47\] A tender of an article misrepresented by the auctioneer is not necessary to the rescision of the sale if the purchaser complains and the seller refuses to take the article back. \[48\] A secret agreement between the owner of the goods and the auctioneer that no sale should be made except on a bid satisfactory to the owner is no defense to an action on the auctioneer's bond to recover the purchase price which he refused to turn over. \[49\]

Audita Querella; Austhalian Ballots; Autrefois Acqutt; Baogas, see latest topical index.

Bail, Civil.

Under the statutes of Michigan a defendant arrested under a capias is not entitled to be released from custody upon the justification of his sureties by affl-davit without perfecting the bail according to the rules of court, \[50\] and the fact that the court has not made any rules relating to the perfection of special bail does not entitle defendant to be discharged before the expiration of the time for taking exceptions to the bail, \[51\] and the court refusing to release defendant unless the sureties appear in court and justify it in effect establishes a rule that the approval by the court of the sureties is necessary to the perfection of the bail. \[52\] In an action by sureties against the sheriff for a false return of execution against the principal, failure of the sureties to surrender the principal after action begun on the bond may be pleaded in mitigation. \[53\]

Bail, Criminal.

Bail is defined as meaning "to set at liberty a person arrested or imprisoned, on security being taken for his appearance," \[58\] and the right to it extends, as a rule, to all non-capital crimes, \[50\]

A horse represented to be sound. \[50\] E6. The vast majority of crimes are bailley v. Manley \[Yt.\] E9 A. 200. \[47\]. Where lots are sold from a pint it \[51\] of discretion. Sutherland v. St. Lawrence incumbent on the owners to explain to the County, \[52\] N. Y. S. 962. An infant con-public anything on the plat which without explanation might be misleading. Slingling-luff v. Dugan, 98 Md. 518, 56 A. 837. \[53\]. Bailey v. Manley \[Yt.\] E9 A. 200. \[54\]. The sale was made to the highest bidder and there was no claim that a "putfer" had been used. Gregory v. United States Fidelity & Guaranty Co., 45 Misc. \[55\]. \[56\]. \[57\]. \[58\]. \[59\]. \[60\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[70\]. \[60\]. \[61\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[63\]. \[64\]. \[65\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[64\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[62\]. \[64\]. \[65\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[61\]. \[60\]. \[61\]. \[62\]. \[64\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[63\]. \[64\]. \[65\]. \[67\]. \[68\]. \[69\]. \[61\]. \[60\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[64\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[66\]. \[67\]. \[68\]. \[69\]. \[61\]. \[60\]. \[61\]. \[62\]. \[64\]. \[67\]. \[69\]. \[60\]. \[61\]. \[63\]. \[64\]. \[65\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[64\]. \[66\]. \[67\]. \[68\]. \[69\]. \[60\]. \[61\]. \[60\]. \[61\]. \[62\]. \[63\]. \[64\]. \[65\]. \[either while the accused is waiting trial or pending appeal.57 It is not designed as a satisfaction of the offense when it is forfeited and paid, but as a means of compelling the party to submit to the trial and punishment which the law ordains for his offense.58 Cash deposits in lieu of bail are provided for by statute in some states.59

SS 2. \_Making of recognizance and sufficiency thereof.\_e00--A recognizance of bail bond, in general, binds to three things : (1) To appear and answer either to a specified charge, or to such matters as may be objected; (2) to stand to and abide the judgment of the court; (3) not to depart without leave of the court; each of which particulars is distinct and independent.51 The statement in the bail bond of what is regarded as the offense is, at most, but a recital,52 and errors and imperfections as to that matter are generally immaterial; 58 but in Texas the bond must specify whether the charge is of a felony or misdemeanor,54 and a recognizance on appeal must give the same information; 58 must state the punishment assessed; 59 the term and court to which the appeal is taken; 67 and must require defendant to abide the judgment of the appellate court "in this cause." 68 It is not necessary for

HF. After an appeal from a judgment ad- 5 Cur. Law. BAIL, CRIMINAL SS 3. 339

the recognizance to state that the warrant had a proper return signed by the officer serving it; "" nor to recite the fact that defendant pleaded; "" nor to particularly describe the magistrate; "" nor is it vitiated by requiring the defendant to "further do and receive that which the said court shall then consider," those words being mere surplusage." There is no substantial difference between a recognizance at common law and the one provided by the Missouri statue." A bail bond "" or recognizance on appeal," accepted without authority of law, is void, and a deposit of money accepted, in lieu of bail, without authority of law, cannot be retained." A recognizance must be signed in the presence of the committing magistrate," and be taken while the court is in session; "" but the signature of the principal is not necessary to bind the surety," and approval of the bond is not necessary."

SS 3. _Fulfillment or forfeiture; discharge; rights and liabilities of sureties."_--The dominion of the bail is a continuance of the original imprisonment," the surety signing a bail bond being, in legal effect, substituted for the jailor." A recognizance of bail is taken to secure the attendance of the party accused to answer the indictment and to submit to a trial and the judgment of the court thereon." These obligations are not mere idle forms, but are required and are made for the purposes expressed in them; "" and actual appearance in court is necessary to prevent the forfeiture of bail." It is the duty of the bail, when ordered by the court, to produce the prisoner," whether or not the charge set forth in the indictment found is identical with that stated in the bail bond." But bail will be exonerated where the performance of the condition is rendered impossible by

case" is a fatal defect. Mallard v. State \[Tex. Cr. App.\] 83 S. W. 1114; Hannon v. State \[Tex. Cr. App.\] 79 S. W. 564.

State \[Tex. Cr. App.\] 87 S. W. 152. But the use of the words "in this court," instead of that the surety signed an appearance recognizance in the general sessions on condi-nizance, when subsequent portions of it show that it was taken in the particular cause. Cassens v. State \[Tex. Cr. App.\] 13 S. T. Ct. Rep. 708, 88 S. W. 229.

89, 70. State v. Russ \[Mc.\] 60 A. 704.

71. A recognizance for appearance of defendant, given upon adjournment of a preliminary examination, is not void for failure to state of what township, county and state the justice is a magistrate, the other records in the case sufficiently showing it.

Leis v. State \[Kan.\] 80 P. 949.

72. State v. Russ \[Mc.\] 60 A. 704.

01. State v. Boehm, 184 Mo, 201, 83 S. W. 471.

01. A justice in Mississippi cannot bind a defendant over to appear at the circuit court on a charge of conspiracy to rob, as that is a misdemeanor and justices have final jurisdiction of such offenses. He must dispose of the case. Code of 1889, 82 420, 2421. Smith v. State \[Miss.\] 80 S. 319.

01. In a case that is non-appeable, as in case of a conviction of simple assault and fine of $5, where appeals are not allowed unless the punishment exceeds $100. Thomas v. State \[Tex. Cr. App.\] 87 S. W. 383.

01. McNamara v. Wallace, 97 App. Div. 76, 89 N. Y. S. 591; Sutherland v. St. Lawrence County, 91 N. Y. S. 962.

01. State v. Cornell \[S. C.\] 50 S. E. 22.

01. In the absence of positive evidence of adjournment before the taking of the bond, it will be assumed that the justice's court, as a committing court, was still in session the act of God, the act of the obligee or the act of the law." Not only is it the duty of the surety to produce his principal to answer whatever charge may be made against him, but it is his further duty to see to it that the principal, at all times during the term of the court to which he is bound to appear, is present to answer the call of the court and to do what the law may require."

The continuance of a criminal case does not release the recognizance given for the appearance of the accused," and a mere order to furnish surety in a larger sum for further examination does not supersede the prior ball bond, so as to release the surety thereon."

The bail has a legal dominion over the accused," and may at any time surrender him to the custody of the law, in discharge of their obligation." 95 If the accused refuses to surrender, the bail can seize him and hold him in order to make delivery in discharge of the bond," and in a proper case may get another to make the seizure for him."

Under the code of North Carolina, providing for the surrender of the principal by his sureties, at any time before execution against him," defendant's appearance, conviction and sentence, without his formal delivery to the custody of the sheriff by order of the court, does not exonerate the bail." The bond given on review is merely an appearance bond and it is error to enter judgment on affirmance against the sureties for the amount of the fine."

**SS 4.**_Enforcement of bond or recognizance._\*\*-A recognizance is in the nature of a conditional judgment, subject only to such matters of legal avoidance as may be shown by plea, or to such matters of relief as may induce the court to remit or mitigate the forfeiture."

Moneys deposited in lieu of bail are to be treated as if they had been recovered on a recognizance."

Where the condition of the bail 5 Cur. Law. BAIL, CRIMINAL SS 4. 341

bond is violated and the bond is duly estreated, a perfect cause of action against the surety is acquired; * and a wise and sound public policy requires a rigid enforcement of these bonds when breached.\* The provision of the South Carolina code that a forfeited recoaginance shall be estreated without delay is merely directory.\* In proceedings to estreat a recogninance, it must be alleged that the signing was in the presence of the magistrate,\* and that defendant was called at the door of the court house and failed to answer.\* In Missouri where defendant, without sufficient excuse, fails to appear, the court must cause the fact to be entered and thereupon the recogninance is forfeited; * but the mere noting of a forfeiture is not the final determination of the liability of the defendant and his sureties. It is a mere preliminary step to the issuance of scire facias.\[11\] The truth of the entry of the forfeiture of a recogninance on the record can be contested only by motion to set aside or vacate the entry, or to reverse the order of forfeiture.\[12\] In Utah,\[13\] the district court may direct the district attorney to institute an action on a forfeited ball bond.\[14\] The office and purpose of the scire facias is to notify the sureties of the default of their principal and afford them opportunity to show cause why execution should not issue against them.\[18\] In Tennessee a scire facias in proceedings on a forfeited recogninance is not defective merely because it fails to recite "in the name of the state," where it contains every material statement in the form prescribed; * nor will it be quashed, because it was issued against the sureties alone.\[17\] A variance between a ball bond stating that defendant is charged with seduction and a scire facias stating that he was charged with a felony is immaterial.\[18\] A demurrer to a scire facias in proceedings to enforce a recogninance bond is waived by pleading over.\[19\] The answer of the ball to the scire facias must be in writing,\[20\] and cannot contradict or traverse the entry of the forfeiture.\[21\] In sufficiency of the indictment is no defense to proceedings to forfeit ball for non-appearance.\[22\] A judgment on a scire facias upon a recogninance of ball is a bar

though an executor deposits funds belong- record, though informal, will be treated as ing to an estate. Code Cr. Proc. $ 596. Sutherland v. St. Lawrence County, 91 N. Y. S. 962.

5. Kirk v. United States \[C. C. A.\] 137 F. 753.

1. State v. Frankgos \[Tenn.\] 85 S. W.

1. A suit or scire facias founded on the forefiture of a recogninance is a collateral proceeding. State v. Morgan, 136 N. C. 593,

48 S. E. 604.

7. Cr. Code 1902, SS 85. A proceeding in 1903 to estreat a recogninance forfeited in 1897 held not barred by laches. State v. Cornell \[S. C\] 85 S. E. 22.

1. An allegation that defendant was bound over in a bond signed by two sureties is a sufficient compliance. State v. Cornell \[S. C\] 50 S. E. 22.

1. Special proceedings to estreat a recogninance do not fall within rule 60 of the circuit court that, where a party has suffered a nonsuit, all proceedings in a new action shall be suspended until the costs of the former action have been paid, so as to bar the state, because of its failure to pay costs of action by the state against the surety on the recogninance on the civil side of the court. State v. Cornell \[S. C\] 50 S. E. 22.

1. State v. Boehm, 184 Mo. 201, 83 S. W.

1.

1. State v. Epstein, 186 Mo. 89, 84 S. W.

1.

1. An answer denying the truth of the to defenses which might have been made against the scire facias,\[28\] and cannot be released by the court at a later term.\[24\] In Missouri an appeal in proceedings by scire facias to enforce a recognizance, in a case of felony, lies to the supreme court, though the amonnt involved was but $600 and costs; \[29\] and such an appeal is not an original action at law, but a continuation of the criminal proceedings.\[26\] Where a snrety resides in another district from that in which the bond was filed and remains there, his personal liability on the bond must be established in the district where he resides.\[27\] Under a statute requiring the return of a ball bond to the clerk of the court at which the defendant is required to answer, but not requiring it to be filed,\[28\] a complaint is not insufficient because it failed to allege the filing of the bond.\[29\] Defendants in an action on a ball bond, without putting in a plea of non est factum, may raise the objection that the bond was taken when the court was not in session and was void.\[30\] In an action on a forfeited recognizance, no judgment can be rendered against the ball in the absence of the record from the examining court showing that the accused was held over and was in custody.\[31\] Under the statutory provisions of Missouri, a judgment for the state, in proceedings to enforce a recognizance bond, is not reversible merely because the scire facias recited a forfeiture on a day other than the one when forfeiture was noted.\[32\]

Remission of forfeiture and return of deposit in lieu of ball.\[33\]-An application for the reduction or remission of the penalty in forfeited recognizances is addressed to the discretion of the court;\[34\] and is to be exercised only in extreme cases.\[38\] The refusal of a motion to set aside the entry of forfeiture does not prevent the granting of relief under the statute authorizing a reduction or remission of the penalty in the discretion of the court.\[36\] Money deposited in lieu of ball is placed in the possession and control of the court, with power to order it paid to the county treasurer in case of default or to return it to the accused or his order, in case of surrender before default.\[37\] A deposit of money in lieu of ball,\[38\] which is made by a third person, not as a loan to the accused but as a pledge to secure his release, cannot be assigned by the accused after surrendering himself, so as to give the assignee any right thereto as against the depositor.\[39\]

## 6 Definition and Mode of Creation

### 6.1 Definitions and Mode of Creation

### 6.2 Rights and Liabilities as Between

3 Definition and mode of creation.\[41\]-A bailment is in a sense the holding of goods in trust.\[42\] It is the delivery of personal property to be held for some

### 6.4 State v. Boner \[V. Va.\] 49 S. E.

5 Action of the court is not reviewable in the supreme court. State v. Morgan, 136 N. C. 593, 48 S. E. 604.
purpose and to be returned when the object of the delivery is accomplished.45 There is no intent to pass title as there must be in a sale.46 It is not necessary that there be an express stipulation for the return of the property, although the right to compel their redelivery must exist.47 Though return in specie is not indispensable,47 the fact that the contract contemplated a use of the property making such return impossible is to be considered in determining the nature of the transaction.48

Footnote 48: The author is grateful to the anonymous referee for the support of the work of the University express undertaking by a bailce for hire to carry goods safely does not render him responsible for the mischievous act of a third person.\[51\] A common carrier becomes responsible as a mere bailce when goods are in its possession after sufficient attempts have been made toward delivery.\[52\]

In a contract of bailment for hire, reasonable and proper care must be used by the bailce.\[83\] The bailor, also, undertakes to exercise adequate delegence, skill and express undertaking by a bailce for hire to carry goods safely does not render him responsible for the mischievous act of a third person.

5 Cur. Law. BALLMENT SS 2. 345

prudence in furnishing the hired article,\[54\] and assumes all ordinary risks incident to the purpose for which the property is to be used.\[58\] A gratuitous ballee is required to use ordinary care.\[56\] The same degree of care is required when a bailment is mutually advantageous to both parties.\[57\] A ballee not being informed or knowing the use of the bailed article cannot be held liable for special damages caused by its delay.\[58\] When there is no time stipulated for the return of the property, bailed for the purpose of repair, a reasonable time is allowed the ballee for the doing of his work.\[59\]

When property is destroyed or injured while in the possession of the ballee, the burden is upon him to show reasonable care.\[60\] But the evidence of bailor must show that the loss of the property occurred before the redelivery to him.\[61\] When ballee has shown that injury occurred through operation of forces not within his control, the one complaining must disprove asserted cause of loss or show want of reasonable care.\[62\] A total default in delivery is prima facie evidence of negligence.\[63\] Burden of proof may be changed by statute.\[64\]

The law gives to a common carrier a lien upon property bailed to him,\[65\] also to a ballee who has cared for it,\[66\] or to one with whom it has been left for repair while the property is in their possession.\[67\] A ballee who insures the property which he holds has in case of loss the right to indemnify himself to the full extent of his lien out of the amount for which the property is insured.\[68\] If he has not

Staley, 41 Ohio St. 118, 52 Am. Rep. 74; Butcher v. W. Va. & P. R. R. Co., 37 W. Va. & P. R. R. Co., 37 W. Va. & P. R. Co., 37 W. Va. & P.

proceeded in accordance with the agreement, he may still have a lien for the benefit accepted by bailor less the damages resulting from breach of the contract.\[69\] A bailee who has a lien may retain possession until charges are paid or tendered.\[70\] A tender of actual amount is necessary, although an improper one is demanded.\[71\] A lienor unless otherwise provided by statute loses his lien on surrender of possession of the property.\[12\] 'Statutes may limit the right of possession to a certain time or provide for a lien without possession.\[73\] A bailee who has a lien may be authorized by statute to sell the property and retain the amount of his claim.\[74\]

A person cannot be made a bailee against his will, but he has no right to remove the property so as to destroy or injure it.\[75\] When bailee and bailor have agreed upon a place of storage and the bailee later removes the property without the bailor's consent, the formcr is liable in case of destruction of property by fire.\[76\] When a lessee provides for the sale of the increase of his stock and the proceeds are to be divided between lessor and lessee, the lessor is entitled to receive his half as soon as property is sold.\[77\]

Rights and liabilities as to third persons.\[78\]--The purchaser of the bailee gets no better rights than his vendor had,\[79\] Nor can a carrier have a lien upon goods shipped by a bailee without the owner's authority.\[80\] The receiver of a consignee has no right to hold bailed property against the owner.\[81\] If a third person buys from a bailee goods that have been shipped to the latter on a trial order, the loss, as in this case. See 1 May on In-

''' the loss, as in this case. See 1 May on In-

''' instance, pp. 80, 95; Home Ins. Co. v. Baltimore Warehouse Co., 93 U. S. 57, 23 Law. Ed. 865; California Ins. Co. v. Union Compress Co., 133 U. S. 387, 33 Law. Ed. 730; Peizer Mg. Co., St. P. Fire & Marine Ins. Co., 41 F. 271; Johnson V. Campbell, 120 Mass. 44; Fire Ins. Ass'n of Eng. v. Merchant's & Miners' Trans. Co., 66 M. 339, 59 Am. Rep. 162. Defendant in the principal case, being under $ 2607, Rev. St. 1898, plaintiffs trustee as to the insurance, and having failed to fulfill his duty to collect the same, was liable for the resulting damages.--From 3 Mich. L. R. 330.

''' 60. By statute (S. D. Rev. Civ. Code, $ 2153), plaintiffs were entitled to lien on undeivered hay for compensation due them for services on all the hay part of which had been delivered to bailor. Woodford v. Kelley \[S. D.\] 101 N. W. 1069. 70. A repeiter of machinery has a lien on the property while in his possession for services rendered. Pine Bluff Iron Works v. Bolling & Bro. \[Ark.\] 88 S. W. 306. A bailee under a contract requiring payment when the repairing of machinery is done is entitled to retain possession until the repairs are paid for. Dutton v. Shaw \[Miss.\] 38 So. 638. 71. Dutton v. Shaw \[Miss.\] 38 So. 638. 72. When owner of an automobile uses it at pleasure, the keeper of a garage has no lien on it. Smith v. O'Brien, 94 N. Y. S. 673. 73. Statute 1743, Rev. St. of Fia. 1892, limit the right of possession to three months. Replevin may be brought after that time to recover possession by owner. Ocala Foundry & Mach. Works v. Lester \[Fia.\] 38 So. 51. 74. Proof that the bailee had agreed to notify plaintiff of the foreclosure is without the issues where he sues on the theory that the bailee is a custodian of at

## 5 Cur. Law. Banking and Finance $ 1.

the bailment becomes a sale and the vendee gets a good title.\[82\] A bailee of property has a right to maintain an action and can recover the entire damages.\[83\] A. bailee may insure the property in his possession for the protection of his interest in the same as well as that of the owner.\[84\] A bailee in possession and control of a conveyance is responsible to a third person for the negligence of his driver.\[85\] If the proper interpretation of a contract is left doubtful as to whether there is a sale or a bailment, the innocent purchaser should be favored as against the maker of the contract.\[86\] If an attaching creditor is entitled to the surplus of the proceeds of the sale of goods in the hands of a mortgagee, no claim on the part of the bailor or mortgagor would justify the mortgagee in retaining the goods.\[87\] 'A promise' by a third party without consideration to restore bailed property to the bailor gives the latter no legal right.\[88\]

6. Depoints and Repynment; Checks, Drafts, Certificates, Recipus. Duty to Reserve. Corporate Existence (348). Good-will and Depositor (357). Certificates of Deposit (348). General Powers (348). Personal liability and Powers of Offcers (348-350). Whinding up and Reorganization (350). Stockholder's Algorithms (360). Assignment of Bank Account (360). Set-off of Dubs Due Bank Against (351). Suits By and Against Deposit (360). Deposits Received After Insolvency (361). General Deposits are of State Courts (353). Reduction of Capital (353). Usury by National Banks (361). Standard of Credit or Damages for Failure to Pay Checks (362). Actions to Recipus.

## 7. Cleverthine Notes (363).

Repayment (355). Action to Recover Deposit (356). Winding Up (356).

## 8. Loans and Discounts (363).

## 8. Loans, Investment, and Trust Complies (356).

This article does not treat of depositaries,\[88\] nor of the bank as a corporation.\[89\] The taxation of banks and bank stock is treated elsewhere.\[91\]

_The occupation in general; regulation, supervision, control.\[92\]_--A bank is an institution authorized to receive deposits of money, to lend money and to issue promissory notes, or to perform some one or more of these functions.\[93\] The right to carry on a banking business through the agency of a corporation is a franchise,\[94\] and statutory provisions must be complied with.\[95\] It is competent for the legislature to provide for publicity of the condition and business methods of an348 Banking and Finance $ 2. 5 Cur. Law.

instalment investment company," and to make a reasonable classification of corporations, companies and individuals for that purpose."

SS 2. _Associated or incorporated bankers. Corporate existence."_--A bank incorporated under a special charter may forfeit all rights thereunder by proceeding under a general statute." The consolidation of banks is largely governed by statute," a merger under an invalid statute being inoperative and void."

_Good will._--A banking corporation may have a good will which, when acquired, constitutes a species of property."

_Stock subscriptions and dividends._"

_Transfer of stock._--Unauthorized action of the directors of a bank in withholding assent to the transfer of stock to a purchaser thereof, preventing the purchaser from reselling the stock before the insolvency of the bank, is not of itself evidence of fraud on the purchaser."

_Lien on stock._"

_General powers._--A state bank upon selling collateral security may guaranty the title, quality, soundness or healthful condition of such security," and, in certain states, may receive deeds of real property as security for past indebtedness as well as for contemplated advances agreed upon."

_Reserve fund._"

_Personal liability of directors and officers._"\_

_Actions against wrongdoing officers._"\_--A court of equity may, at the instance of a stockholder, entertain a proceeding against the bank and its officers and compel it to account for a fraudulent conversion of its funds," and such court may, if necessary for the preservation of the res, appoint a receiver."

Cases dealing with the sufficiency of evidence are given in the notes."

_Powers of officers and right to represent bank._"_--The president_ of a bank has, within the scope of his general authority, the right to employ counsel to represent

of a trust company, or such as are intended to derive profit from the loan and use of money. McCarter v. Imperial

\[Kan.\] 79 P. 1092. May guaranty that eat- trance 101.

## 5 Cur. Law. Banking and Finance & 2.

The bank in pending or prospective litigation; \[18\] but in procuring a signature to a note so as to enable another bank to make a loan, he acts without his authority.\[19\] So, also, in procuring a personal loan he does not bind the bank;\[20\] and the fact that the bank's directors subsequently pass a resolution to indemnify him therefor gives the lender no rights.\[21\] In warranting the soundness of another institution in which he is an officer, the president does not represent the bank.\[22\] A person acting in the place of the president during the absence of the latter has the right to exercise the usual and ordinary functions of the president so far as they are required for the occasion.\[23\]

_The cashier_ has power to bind the bank by his indorsement, for a consideration passing to the bank,\[34\] on the bank's paper made for the purpose of transferring the latter;\[25\] but he has no right or authority to knowingly accept a worthless check on another bank and charge his bank with the amount thereof,\[26\] or to receive money offered for deposit away from the bank,\[27\] and if he does so he acts as the agent of the depositor, not of the bank.\[28\] In order that the statement or admission of a cashier may be taken as the statement or admission of the bank of which he is an officer, he must be acting within the scope of his power or duty as the bank's agent or officer,\[29\] and the burden is upon the person offering such testimony to establish its admissibility under the rule just stated.\[30\]

As to whether an officer acts in his official or individual capacity is often a question for the jury.\[31\]

_Unauthorized acts._\[32\]\_--Ratification is equivalent to previous authorization.\[38\]

Proof check, to the latter's account, the latter cannot claim both the amount of the good check and that of the bad. Id. Depons made by the president to cover over-drafts on his account as treasurer must be applied to the benefit of the concern of which he was treasurer and not to the treasurer's individual account. Id.

## 7 Proof check

The bank is a proof check, to the latter's account, the latter cannot claim both the amount of the good check and that of the bad. Id. Depons made by the president to cover over-drafts on his account as treasurer must be applied to the benefit of the concern of which he was treasurer and not to the treasurer's individual account. Id.

## 8 Proof check

The bank is a proof check, to the latter's account, the latter cannot claim both the amount of the good check and that of the bad. Id. Depons made by the president to cover over-drafts on his account as treasurer must be applied to the benefit of the concern of which he was treasurer and not to the treasurer's individual account. Id.

## 9 Proof check

The bank is a proof check, to the contrary, the latter cannot claim both the amount of the good check and that of the bad. Id. Depons made by the president to cover over-drafts on his account as treasurer must be applied to the benefit of the concern of which he was treasurer and not to the treasurer's individual account. Id.

## 10 Proof check

The bank is a proof check, to the contrary, the latter cannot claim both the amount of the good check and that of the bad. Id. Depons made by the president to cover over-drafts on his account as treasurer must be applied to the benefit of the concern of which he was treasurer and not to the treasurer's individual account. Id.

## 11 Proof check

The bank is a proof check, to the contrary, the latter cannot claim both the amount of the good check and that of the bad. Id. Depons made by the president to cover over-drafts on his account as treasurer must be applied to the benefit of the concern of which he was treasurer and not to the treasurer's individual account. Id.

## 12 Proof check

The bank is a proof check, to the contrary, the latter cannot claim both the amount of the good check and that of the bad. Id. Depons made by the president to cover over-drafts on his account as treasurer must be applied to the benefit of the concern of which he was treasurer and not to the treasurer's individual account. Id.

The bank is a proof check, to the contrary, the latter cannot claim both the amount of the good check and that of the bad. Id. Depons made by the president to cover over-drafts on his account as treasurer must be applied to the benefit of the concern of which he was treasurer and not to the treasurer's individual account. Id. Depons made by the president to cover over-drafts on his account as treasurer must be applied to the benefit of the concern of which he was treasurer and not to the treasurer's individual account.

_Official or individual capacity._\[34\]--An officer of a bank is an agent thereof,"\[8\] and hence any contract executed by him between himself and the bank is presumptively void " and may be avoided by the bank,"\[9\] though actual fraud does not exist."\[88\] An officer borrowing money from the bank cannot escape liability therefor by agreeing to pay usurious interest; \[39\] but in such case equity will require him to pay the principal sum and legal interest."\[40\] Money borrowed and invested by a director will not be regarded as an investment for the bank in the absence of evidence that the interest paid by the director does not equal his profits from the use of the money."\[41\]

_Notice to bank from knowledge of officers._\[42\]--In order that the knowledge of an officer may be imputed to a bank, it must be shown that the knowledge was acquired while he was acting within the scope of his authority."\[43\] and as an official of the bank."\[44\]

_Winding up._\[45\]--In some states depositors are entitled to be paid in full before other creditors are entitled to share in the assets of an insolvent bank."\[46\] Creditors not joining in an application for permission to reorganize, which application contains an erroneous statement that the bank is solvent, are entitled to a preference over those joining therein, the reorganization scheme failing in operation."\[47\] A claim acquired after the insolveny of a bank cannot be set off against one's indebtedness to the bank."\[48\] A bank receiver will not be ordered to do that which is impossible."\[49\]

_Reorganization._\[50\]

_Stockholders' individual liability and the enforcement thereof._\[51\]--By receiving and accepting dividends \[52\] and by participating in proceedings to reorganize the bank,"\[53\] a corporation may become estopped to deny its power to purchase and hold the stock."\[54\]

action was begun to compel specific performance by the vendor, a ratification of the cashier's acts held sufficient to allow the bank to maintain the action. Washington State Bank v. Dickinson, 35 Wash. 641, 77 P. 1067. 34. See 3 C. L. 409. 35. Northwestern Fire & Marine Ins. Co. v. Lougin (N. V. 102 N. V. 160. See, also, 3 C. L. 409, n. 15. 36. Deed executed by cashier of a state bank to himself as an Individual is, in the absence of affirmative evidence of his authority, presumptively void and of no effect. Northwestern Fire & Marine Ins. Co. v. Lougin (N. D.) 102 N. V. 160. 37. Agreement by president of bank that maker of note on behalf of another corporation in which both the president and maker were interested should not be liable thereon, held not binding on the bank which discounted the note. Bank of Le Roy v. Purdy, 100 App. Div. 64, 91 N. Y. S. 310. 38, 39. Gund v. Ballard (Neb.) 108 N. W. 309. 40. Will not enforce the usurious contract but will simply require him to do equity. Gund v. Ballard (Neb.) 103 N. W. 309. 41. So held where money was borrowed just before the termination of the bank and was repald. Lindemann v. Rusk (IVis.) 104 N. W. 119. 42. See 3 C. L. 409. 43. In the absence of evidence of the scope of an employee's authority, notice to be the case of a bank.\[44\]

_Official or individual capacity._\[34\]--An officer of a bank is an agent thereof,"\[8\] and hence any contract executed by him between himself and the bank is presumptively void " and may be avoided by the bank,"\[8\] though actual fraud does not exist."\[88\] An officer borrowing money from the bank cannot escape liability therefor by agreeing to pay usurious interest; \[39\] but in such case equity will require him to pay the principal sum and legal interest."\[40\] Money borrowed and invested by a director will not be regarded as an investment for the bank in the absence of evidence that the interest paid by the director does not equal his profits from the use of the money."\[41\]

_Notice to bank from knowledge of officers._\[42\]--In order that the knowledge of an officer may be imputed to a bank, it must be shown that the knowledge was acquired while he was acting within the scope of his authority."\[43\] and as an official of the bank."\[44\]

_Winding up._\[45\]--In some states depositors are entitled to be paid in full before other creditors are entitled to share in the assets of an insolvent bank."\[46\]

_Reorganization._\[50\]

_Stockholders' individual liability and the enforcement thereof._\[51\]--By receiving and accepting dividends \[52\] and by participating in proceedings to reorganize the bank,"\[53\] a corporation may become estopped to deny its power to purchase and hold the stock."\[51\]

action was begun to compel specific performance by the vendor, a ratification of the cashier's acts held sufficient to allow the bank to maintain the action. Washington State Bank v. Dickinson, 35 Wash. 641, 77 P. 1067. 34. See 3 C. L. 409. 35. Northwestern Fire & Marine Ins. Co. v. Lougin (N. V.) 102 N. V. 160. See, also, 3 C. L. 409, n. 15. 36. Deed executed by cashier of a state bank to himself as an Individual is, in the absence of affirmative evidence of his authority, presumptively void and of no effect. Northwestern Fire & Marine Ins. Co.

5 Cur. Law. BANKING AND FINANCE SS 3.

A proceeding to assess stockholders of an insolvent bank upon their super-added liability to creditors is an equitable proceeding,\[58\] and a decree fixing the amount of the bank's indebtedness and determining the creditors' rights to an assessment is final,\[66\] and the stockholders, having been served, appearing and contesting the proceeding, may appeal therefrom.\[67\] In South Dakota a stockholder in an insolvent bank is individually liable to a creditor of the bank up to the par value of his shares,\[58\] and the creditor may proceed against one or more of the stockholders to recover the amount of his indebtedness in an action at law,\[59\] or may sue the stockholder upon a judgment recovered against the bank.\[60\] For the purposes of suit the liability of a stockholder is contractual,\[61\] and accrues at the time the cause of action arises against the corporation.\[92\] In those states where the law creating the stockholders' liability is silent as to the time when the cause of action accrues, it is held to accrue immediately upon the insolvency, like default, of the banking corporation.\[63\] The contructions placed upon various statutes \[54\] and the sufficiency of the pleadings \[58\] and evidence \[64\] in suits to enforce a stockholder's liability are shown in the notes.

SS 3. _National banks.\[67\] Powers.\[68\]_--Questions as to the power of a national bank to buy and hold real estate can only be raised by the Federal government.\[69\] A national bank has no power to invest its surplus fund in the stock of another national bank,\[70\] hence, though it purchases such stock and receives dividends thereon,\[60\]

immaterial. Hunt v. Hauser Malting Co. \[Minn.\] 102 N. W. 1052. \[St.\] 55. Bennett v. Thorne, 36 Wash. 253, 78 P. 936. In Washington an appeal lies to the supreme court irrespective of the amount in controversy. Id. \[St.\] 5511 U. S. Comp. St. 1801, p. 34651). Kennedy v. Gibbons, 8 Wall. \[U. S.\] 498, 505, 19 P. 936. \[St.\] 57. Though the corporation is named as\[32\] Leaf. Ed. 220--From Bennett v. Thorne, 36 Wash. 253, 78 P. 936. \[St.\] 58. Const. art. 18, $ 3, and Civ. Code. \[St.\] 584, construed. Union Nat. Bank v. Halley US. D.\] 104 N. W. 213. \[St.\] 59. Union Nat. Bank v. Halley \[S. D.\] 104 N. W. 213. \[St.\] 60. Const. art. 18, $ 3, construed. Union Nat. Bank v. Halley \[S. D.\] 104 N. W. 213. \[St.\] 61. An action to enforce the double liability imposed by Act 1892, p. 156, 109, $ 85 1 is one to enforce a contract within the meaning of Act 1886, p. 307, E. 184, $ 170. \[St.\] 62. Continuum Bros. V. Bolton \[M.\] 59 A. 71. \[St.\] 63. Contra: Liability of stockholders In national banks. McClaine v. Rankin, 25 S. \[St.\] 64. \[St.\] 65. \[St.\] 66. \[St.\] 67. \[St.\] 68. Door v. Tolman, 113 Ill. App. 322. \[St.\] 69. Not at the time judgment is rendered. Id. \[St.\] 68. So held in Washington. Const. art. 12, $ 11, construed. Bennett v. Thorne, 36 Wash. 253, 78 P. 936. \[See case for collection of authorities on this point.\] \[St.\] 68. Note: This case must be distinguished from those relating to stock subscription liability, or to national banks, both of which are governed by entirely different principles. The necessity of a call and assessment on unpaid stock subscriptions is based solely on the express contract of the parties. Securities T. Thayer, 105 U. S. 143, 26 Law. Ed. 988; Terry v. Anderson, 95 U. S. 628, 24 Law. Ed. 865. The contract of the subscriber to the stock is that he will pay upon a demand by the proper authorities of the corporation. And it has been invariably held that as to the stock subscriptions,\[St.\] 69. \[St.\] 69. \[St.\] 69. \[St.\] 70. \[St.\] 71. \[St.\] 72. \[St.\] 73. \[St.\] 74. \[St.\] 75. \[St.\] 76. \[St.\] 77. \[St.\] 78. \[St.\] 79. \[St.\] 70. \[St.\] 71. \[St.\] 73. \[St.\] 75. \[St.\] 76. \[St.\] 78. \[St.\] 79. \[St.\] 70. \[St.\] 71. \[St.\] 74. \[St.\] 76. \[St.\] 7 it cannot be assessed thereon as a stockholder.\[71\] Stockholders by ratifying a contract estop themselves from subsequently claiming that it was ultra vires.\[72\]

_Violation of banking act.\[73\]_

\_Dividends.--\_Directors of national banks can declare dividends only out of net profits;\[74\] but, with the approval of the controller of the currency, assets which it is not necessary to retain as capital or for the surplus fund may be returned to the shareholders by the directors,\[75\] and dividends so ordered may be made payable in the future, and on the contingency of future collections on such assets.\[76\] A dividend declared in favor of those who are then shareholders though payable at a future date, severs the fund to be distributed from the assets of the corporation, and the share of each shareholder vests in him as an individual and he does not lose it on ceasing to be a shareholder.\[77\] Similarly such shareholders may transfer them. rights in the dividend with or without a transfer of their shares of stock.\[78\]

_Rights and liabilities of stockholders and the enforcement thereof.\[79\]_--A stockholder of a national bank has the right to inspect the list of stockholders and to make extracts therefrom for the purpose of negotiating for the purchase of stock,\[80\] and the right being denied and an application being made to the Federal circuit court for a writ of mandamus, the pleadings must show that the matter in dispute exceeds SS2,000 in value or the court has no jurisdiction.\[81\]

In the absence of exceptional circumstances the stockholder's liability is fixed at the date when the bank goes into liquidation\[82\] and the stockholder may not thereafter transfer his stock and avoid liability thereon.\[83\] A stockholder remains liable as to creditors after he has sold his stock if he permits his name to remain on the books as a stockholder unless he does all that he can reasonably do to effect a transfer on the stock register.\[84\] A stockholder is liable even after making an out-and-out sale of his shares and causing the proper transfer to be made on the books of the bank, if the bank was insolvent at the time of the transfer and he knew or ought to have known of such insolvency and the transfer was made to an irresponsible person whose financial condition was known or ought to have been known to the seller;\[85\] it is essential that all these conditions co-exist.\[86\] For the purposes of the national banking act the pledgor of stock is to be regarded as the owner until and unless something further transpires which operates to transfer the ownership to another.\[87\] The pledgee may, without himself becoming liable to the contingencies of ownership, have the stock transferred in blank by the pledgor;\[88\] but

**70, 71. Shaw v. National German-Ameri-**

can Bank, 132 T. 658.

**72.** Contract by which a national bank assumed all the obligations of an insolvent bank. George v. Wallace \[C. C. A.\] 35 F.

Bank. **73.** See 3 C. L. 413.

**74.** Rev. St. U. S. $ 159, 5204. Cogswellwell. Second Nat. Bank \[Conn.\] 60 A. 1059.

**75, 76.** Cogswell v. Second Nat. Bank \[Conn.\] 60 A. 1059.

**77.** By selling his share he does not transfer his interest in the dividend. This notwithstanding Rev. St. U. S. $ 5139. Cogswell. Second Nat. Bank \[Conn.\] 60 A.

**78.** Cogswell v. Second Nat. Bank \[Conn.\] 60 A.

**79.** See 3 C. L. 414. Liability of stockholder of a national bank, see Clark & M. $ 806.

5 Cur. Law. Banking and Finance $ 3. 353

he may become liable if he causes the stock to be transferred, on the books of the company, to an irresponsible person." The individual liability of the stockholders extends only to enforceable contracts, debts and engagements of the bank." A married woman becoming a stockholder is subject to the statutory liability for assessments," and the same rule applies to estates of decedents so long as their assets can be reached." The Federal circuit court has jurisdiction of a suit to enforce the liability of stockholders of a national bank which has gone into voluntary liquidation." The remedy of a receiver of a national bank against the trustee and distributes of a decendent's estate to collect an assessment on stock for which the assets of the estate are liable is in equity." The liability of stockholders is not contractual within the meaning of statutes of limitations," and the statute does not commence to run until assessment is made by the controller of the currency."

\_Suits by and against.--\_A suit which may be brought in a Federal circuit court by or against a citizen of a state because it arises under the constitution, laws or treaties of the United States may for the same reason be brought in such court by or against a national bank located in the same state." A suit against an insolvent national bank which has gone into voluntary liquidation to enforce a specific lien, or to enforce and judicially administer a trust previously created by contract, or to enforce and judicially administer the trust arising from the insolveny and proceedings in liquidation, is a suit arising under the laws of the United States."

\_State interference and powers of state courts."\_National banks are quasi-public institutions, and for the purpose for which they are instituted are national in their character, and, within constitutional limits, are subject to the control of Congress, and are not to be interfered with by state, legislative or judicial action, except so far as the law-making power of the government may permit." Under the Federal statutes attachment cannot issue, before judgment, from a state court against a national bank or its property."

_Reduction of capital._"The directors of a national bank may, after a reduction of the capital stock of the bank has been allowed on condition that bad and

does not cease to be the owner in the sense

#2. The statutory limitation as to the intended by law, and until the ownership is

time for the presentment of claims against in some way divested from the pledger the estate does not apply. Rev. St. U. S. latter continues to stand for the stock. Id. $ 1512, construed. Mortimer v. Potter, 213

$8. Where pledge of stock had same

Ill. 178, 72 N. E. 817.

transferted to an irresponsible employee,

93. 19 Stat. 63 construed. George v. Walabrud no consideration for transfer, the

lace (C. C. A.1) 135 F. 286. 19 Stat. 63, giv-

pledgee then made an indorescent on the

ing Federal courts original equity jurisdiction onto which the stock sevent, of a sum as

tion of a creditor's bill against stockhold-

proceeds of a sale of the stock made on the

ers of a national bank which has gone into

day of the transfer, and proved the balance

liquidation as authorized by Rev. St. $ 220,

due on the note against the estate of the

ladgor, and received dividends thereon,

Stat. 436, Id.

held stock belonged to pledge. Bullet v.

94. Mortimer v. Potter, 213 Ill. 178, 72

Oho Valley Nat. Bank (C. C. A.1) 137 r. 461.

90. 21 Am. & Eng. Eng. Eng. Law (Ed.)

01. 211. Wash. Code, $ 4800, subd. 3, does

p. 343, and cases cited. Where a national

bank assumes the debts of an insolvent na-

tional bank: contemplating liquidation, in

96. McClaine v. Rankin, 25 S. C. 410.

consideration of a transfer of certain of the

bank's available assets, and certain notes

for the balance, such notes represented the

"contracts, debts and engagements" of the

insolvent bank, for which its stockholders

were liable under Rev. St. $ 5151. George

v. Wallace (C. C. A.1) 135 F. 286.

91. At least in those states where she

This is not changed by 22 Stat. at L. 163,

is not prohibited from owning such stock in

o. 290. Id. Hence jurisdiction over the per-

her own right: Christopher v. Norvell (C.

son or property of a national bank is not

C. A.1) 134 F. 842. Laws of Florida held not

acquired by the issue of an attachment out

to prohibit her assuming such inability. Id. of a state court before judgment. Id.

$ Curr. L.= 33.

354 Banking and Finance $ 4. 5 Cur. Law.

doubtful assets be charged off and set aside for the benefit of the then stockholders, set aside and charge off such assets to the purpose named,4 and on so doing, the right to receive the proceeds of the assets thus set apart is irrevocably vested in those who are shareholders on the date of the approval of the reduction of stock by the comptroller of the currency,5 and in so charging off the assets the bank may list, in the schedule of charged-off assets, claims which are also and primarily listed at a lesser valuation as part of the capital stock.6

\_Usury by national banks.7--By compounding interest oftener than is permitted by the state laws, a national bank charges a higher rate than that allowed, although the compounded interest is less than the state laws permit to be compounded annually.8 Usury by a national bank works a foreiture of all interest, but not of the principal,9 and the bank suing for the entire amount cannot avoid the forfeiture by declaring an election to remit the excessive interest,10 nor can the bank escape this penalty because the usurious amount was trifling,11 nor on the theory that the charge is a penalty because of the failure to pay the debt when due.12 In order to recover double the amount of interest, actual payment must have been made.13 Payments made on a usurious debt without any agreement as to their application must be applied on the principal.14

\_Winding up.15--A national bank in voluntary liquidation is not thereby dissolved as a corporation but continues for the purpose of liquidation and winding up its business; 16 but it is not thereafter required to register a subsequent transfer of its stock and to issue new stock to the transferee.17 The tangible assets and the liability of shareholders of an insolvent national bank in the process of liquidation constitute, in the hands of the liquidating agent, an express trust fund for the primary benefit of creditors.18 On the suit of one or more creditors on behalf of all for the winding up of the affairs of an insolvent national bank, there can be had, if desired, a complete judicial administration of the affairs of the bank, an ascertainment of the valid and subsisting claims against it, an enforcement of the trusts in respect of both the assets and the capital stock, and, finally, the distribution of the avails,19 and a bill for such comprehensive relief is not multifarious.20

Footnote 24: https://www 5 Cur. Law. Banking and Finance $ 4.\*\*355

_Rules._\[23\]--A depositor is bound by all reasonable rules to which he assents in writing \[24\] or which are printed in the passbook which he accepts and uses.\[25\] A by-law providing that the bank shall not be responsible for any fraud practiced upon it does not relieve the bank from its duty to exercise ordinary care to prevent payment to the wrong person.\[26\] The bank agreeing to pay the deposit to the depositor, his order or legal representative, it cannot avoid liability for a payment made upon a forged order to one who had fraudulently obtained possession of the passbook, even by showing that such payment was made in good faith and in the exercise of ordinary care.\[27\]

_Beliance on passbooks._\[28\]--It is a common rule in savings banks that the depositor shall produce his bankbook in order to draw his deposit, or any part of it, and that production of the book shall be authority to the bank to pay the person so producing it. This is regarded as a reasonable and binding regulation,\[29\] and if the bank pay to one having the book, there being no circumstances to excite suspicion and base an imputation of negligence on the part of the bank, the payment is good.\[30\] The foregoing proposition is not affected by another rule prescribing that if depositors are not present personally, an order properly signed and witnessed must accompany the presentation of the book in case of withdrawal.\[31\] The bank being negligent, it is liable even though the depositor was negligent in allowing the book to get out of his possession ;\[32\] nor does such negligence estop the owner from claiming repayment.\[33\]

_Deposits and repayment._\[34\]--A deposit in trust for a certain person is presumed to belong to such person.\[35\] An order by a husband and wife requesting that their separate accounts be merged so as to run to either or the survivor of them constitutes an order making them joint owners of the fund.\[36\] Such order is revocable by either party at any time before presented,\[37\] and being delivered to the husband for delivery to the bank, he becomes the agent of the wife.\[38\]

The bank is negligent if it fails to make a physical comparison between a signature to a draft and the signature of the depositor on file in the bank.\[39\] A

**33.** See 3 C. L. 416.

**24.** Langdale v. Citiens' Bank of Savannah, 121 Ga. 105, 48 S. E. 708.

**25.** By such acceptance and use they become a part of the contract of deposit. Chase v. Waterbury Sav. Bank \[Conn.\] 59 A. 37.

**26.** Even though such person presents the deposit book. Chase v. Waterbury Sav. Bank \[Conn.\] 59 A. 37. Evidence held sufficient to uphold a finding that the bank was negligent in paying money on a forged order. Id.

**27.** Chase v. Waterbury Sav. Bank \[Conn.\] 59 A. 37.

**28.** See 3 C. L. 416.

**29.** Langdale v. Citiens' Bank of Savannah, 121 Ga. 105, 48 S. E. 708.

**30.** Langdale v. Citiens' Bank of Savannah, 121 Ga. 105, 48 S. E. 708.

**31.** Langdale v. Citiens' Bank of Savannah, 121 Ga. 105, 48 S. E. 708.

**32.** Paid deposit on forged order. Chase v. Waterbury Savings Bank \[Conn.\] 59 A. 37.

**33.** Chase v. Waterbury Sav. Bank \[Conn.\] 59 A. 37.

**34.** See 3 C. L. 417.

**35.** Savings Bank accounts standing in the name of "J. F. in trust for M. F., his wire." "J. F. in trust for M. F.," and "J. F. or M. F.," held on M. F.," death to presumptvely belong to M. F. In re F Finn's Estate, 44 Misc. 622, 90 N. Y. S. 159.

**36.** M. F. 498.\*\* M. F. 507.\*\* M. F. 517.

**37.** Augsbury v. Shurtliff \[N. Y.\] 72 N. E. 927.

**38.** Was revoked by death of wife be-fore order was delivered to bank. Augsburg v. Shurtliff \[N. Y.\] 72 N. E. 927. In an action by the husband to recover possession of the wife's bankbook after her death, held reversible error to nonsuit the plaintiff without submitting the question as to whether such order was delivered by the husband to the bank during the life-time of the wife. Id.

**39.** Kelley v. Buffalo Sav. Bank \[N. Y.\] 72 N. E. 95.

356 Banking and Finance $ 5. 5 Cur. Law. savings bank being ignorant of a depositor's death is only required to use ordinary care in paying a draft purporting to bear his signature.\[40\]

\_Action to recover deposit.--\_The New York banking law requiring the court in an action to recover a savings deposit to make a claimant interpleading a party defendant applies only to claimants claiming a present interest in the fund.\[41\] In an action to recover a savings deposit the city court of New York may allow parties to interplead and proceed with the cause.\[42\]

\_Winding up.--\_Recent constructions placed upon statutes relating to this subject are shown in the not38.\[43\]

SS 5. \_Loan, investment and trust companies.\[44\]--\_A trust company having the power to execute trusts, loan money, buy and sell securities, etc., has power to execute a note for the benefit of a railroad company which it is financing.\[45\] Under the laws of Nebraska if a corporation's plan of doing business involves receiving from each of its members a stated sum at stated intervals until a specified amount is received from such members, and investing this money in property for the benefit of its members, it is an instalment investment company.\[46\] The constructions placed upon statutes relating to the names of trust companies,\[47\] their power to in-

\[40\] Bankbook was presented at the same \[Sav. Inst., 48 N. Y. App. Div. 218\]. But these cases are to be distinguished from the principal case by the fact that in each of the former the bank had notice of the deposit of deposit: One of the rules of there has been no actual notice of the death and no negligence on the part of the payment s made to persons producing the deposit books or duplicates thereof, shall be good and valid payments to the deposit.\[Onlan v. Provident Inst. for Savings, 127\] voted that "on the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal \[Mich. L. R. 419\]. The decision is based on the fact that due diligence was not exercised by defendant to ascertain the identity of the party presenting the pass-book, and is in accord with reason and authority. It has quite generally been held, under similar circumstances, that the bank is bound to exercise at least ordinary diligence. Appleby v. Eric Co. Sav.-Bank, 65 N. Y. 12; Sullivan v. Lewiston Inst. of Sav., 56 Me. 507, 96 Am. Dec. 500; Ladd v. Augusta Sav. Bank, 96 Me. 510, 68 L. R. A. 281; Brown v. Merrmac Kiver Sav. Bank, 67 N. Y. 1549, 68 Am. St. Rep. 700. And where the bank has agreed to "Use its best efforts to prevent fraud" it is bound to the exercise of more than ordinary diligence. Allen v. Williamsburgh Bav. Bank, 69 N. Y. 144. See also Kummel v. Germania Sav. Bank, 127 N. Y. 488, 12 K. R. A. 786. In Schoenwald v. Metropolitan Sav. Bank, 57 N. Y. 418, however, it was held that the bank had a right to pay to any one presenting the pass-book, and that the fact that a receipt was forged was immaterial. Where the deposit is dead, however, it has been held that the rule as to diligence no longer applies, the bank being bound absolutely by the second rule above to make payment to the legal representative, and one of the judges in the present case based his concurrence on this ground. Mahnan v. South Brooklyn Sav. Inst., 175 N. Y. 69, 94 Am. St. Rep. 603; Farmer v. Manhattan Sav. Inst., 60 Min \[N. Y.\] 462; Padmore v. South Brooklyn 5 Cur. Law. BANKING AND FINANCE $ 6. 357

vest their funds,48 and the liability of stoe!-holders therein,49 are shown in the notes.

$ 6. _Deposits and repayment; checks, drafts, certificates, receipts.50_Duty to receive deposits.50a_--A bank may receive or decline deposits and do business with whom it pleases.51

\_Relation of banker and depositor.52--An ordinary deposit is not a loan to the bank,53 the relation of banker and depositor being that of debtor and creditor.54 A deposit is a contract of the state where it is made.55 Bankers are held to be in exercise of ordinary care in making loans as agents for the lender.56

_Evidence of deposit.57--Where a deposit stands in the names of two persons jointly, it will be presumed, in the absence of evidence to the contrary, that their interests are equal,58 and in such case, as between the depositors, the possession of the bankbook is not evidence of the possessor's dominion over the fund,59 nor, as between such depositors, is the recognition by the bank of the right of each to withdraw the entire deposit material.60_

_A certificate of deposit_ is in legal effect a promissory note,61 transferable by indorsement,62 or assignment,63 and the depositary is bound to deliver the deposit to the indorsee 64 or assignee, generally, upon demand being made,65 and it is in this latter respect that most courts hold that the certificate differs from a promissory note.64 Where the certificate is payable on its return properly indorsed, demand

damus will not lie to compel the secretary

resident of New York in a private bank

of state to file such amendment to the corporation's artless. Id. Such act does not

deposit in New York, held a New York

violate Const. art. 2, $ 13, providing that

no bill shall embrace more than one sub-

ject, and that shall be expressed in the title. Id.

48. WisconsIn Rev. St. 1598, $ 1791h, re-

lufing to investments by trust companies,

does not refer to funds held by it in the capacity of trustee. In re Alls' Estate

\[Vis.\] 101 N. W. 356.

49. MarylandCode Pub. Gen. Laws, art. 23, $ 851 refers to safe deposits, guarantary,

loan and fidelity companies, and is applicable to a domestic corporation in Incorporated under a special charter to do a safe deposit, trust and fidelity business. Murthy v. VWentherst \[Md.\] 59 A. 704. Such

statute is valid as to domestic corporations,

though it be void as to foreign corporate. Id. Acts 1904, $ 597, $ 37, abated

all separate actions, commenced after January 1, 1903, and pending at the time the

act was passed, to enforce a stockholder'

Hablity. Such act is not unconstitution

as violating the contractual rights of the creditor, M miners' & Merchants' Bank V. Snyder \[Md.\] 59 A. 707.

50. In this connection see Negotiable Instruments, 4 C. L. 787, and Non-negotiable

Paper, 4 C. L. 827.

50a. See 5 C. L. 417, nn. 81, 82.

51. Elliott v. Capital City State Bank

\[Iowa\] 108 N. W. 777.

52. See 5 C. L. 417.

01. Elliott v. Capital City State Bank

\[Iowa\] 103 N. W. 777, overlining Mereness

\[Iowa\] 103 N. W. 777.

711, 84 A.m. St. Rep. 318, 51 L. R. A. 410;

Long v. Emsley, 57 Iowa, 11, 10 N. W. 280;

Lewry v. Polk County, 51 Iowa, 50, 49 N. W. 1049, 83 A.m. Rep. 114.

54. Reed Grocery Co. v. Canton Nat. Bank \[Md.\] 59 A. 716.

01. A deposit of money by a citizen and

\[
258 Banking and Finance $ 6. 5 Cur. Law.

need not be made within the period of limitations.\[97\] The transfer must be for a consideration,\[98\] though past service or friendship is sufficient.\[69\]

_Letters of credit.\[70\]_

\_Repayment of deposits.\[71\]--\_A bank by receiving a general deposit assumes no further obligation than to pay the amount received upon demand \[72\] at its banking house \[73\] during banking hours.\[74\] The demand should be made by a check, draft, order, receipt or other writing for the payment of the amount desired, which writing when honored and in the hands of the bank will be evidence of the authority and direction of the depositor to pay as well as evidence of payment.\[75\] A banker may pay upon an oral order or direction, but under the usages of the banking business he is not required to do so.\[76\] The bank must account for all money received, the matter of accounting being purely a question of fact.\[77\] A depositor is liable for payments made on drafts drawn by his duly authorized agent,\[78\] and the bank may recover therefor, though a part of the money remains on deposit to the credit of the agent.\[79\] Payment of checks or drafts may be made by giving credit to the depositor or payee,\[80\] but the mere checking over of public funds to

for this reason it is deemed a promissory \[81\] spect s subject to the same rules to which note. Rentre v. Merchants,' etc., Bank, 83 such notes are subject. Tripp v. Curtenius, Ala. 425; Welton v. Adams, 4 Cal. 37, 60 Am. 26 Mic. 494, 24 Am. Rep. 610--From note Dec. 579; Falls Point Sav. Inst. v. Weedon, 18 Hillsinger v. Georgia I. Bank, 108 Ga. Md. 320, 81 Am. Dec. 603; Drake v. Markle, 21 557, 75 Am. St. Rep. 42, 46 et seq. Ind. 433, 83 Am. Dec. 358; Kilipore v. Bulk.

**67**. Elliott V. Capital City State Bank lay, 14 Comn. 183; Maxwell v. Agnew, 21 Fia. \[Iowa\] 103 N. W. 777.

154; Lynch v. Goldsmith, 64 Ga. 42; Bank of

**68**. In relpicp by an indorse to re-Peru v. Farnsworth, 18 Ill. 65, Leasthink

over certificates of deposit, the evidence v. Mershali, 19 Ill. 390; Greg V. Union,

held not conclusive that the transfer was etc., Bank, 87 Ind. 238; Tripp v. Curtenius,

without consideration and vold. Sather v.

36 Mic. 494, 24 Am. Rep. 610; Parede v.

**69**. Sather v. Sexton, 93 Minn. 480, 101 N. W. 654.

**70**. First Nat. Bank, 30 Minn. 86; Mitchell v. Easton, 37 Minn. 835. While a certificate of deposit is almost universally recognized as a promissory note payable on demand, unless the deposit is a time deposit, yet in one important particular such certificates differ from ordinary promissory notes. A promissory note, payable on demand, is due as soon as it is given, and an action may be brought on it immediately, demand for payment being unnecessary. The courts are divided, however, as to whether this rule holds good with respect to certificates of deposit. Perhaps the weight of authority is to the effect that such certificates are not due until demand for payment is made and the certificate returned. The reason for this is that the bank receives the money not as a real loan, but as a deposit. "No one could desire to receive money in deposit for an indefinite period with the right in the depositor to use the next moment, and without any prior intimation that he wished to recall the loan:" Justice Bronson, in Downes v. Phoenix Bank, & Hill \[N. Y.\] 297, quoted in Belows Falls Bank v. Rutland County Bank, 40 Vt. 377. In accord with these decisions are Munger v. Albany, etc., Bank, 85 N. Y. 580; Parde v. Fish, 60 N. Y. 265, 19 Am. Rep. 176; Smiley v. Fry, 100 N. Y. 262; White v. Pacific Nat. Bank, 136 Mass. 487; Riddle v. First Nat. Bank, 27 F. 503; Fells Point Sav. Inst. v. Weedon, 18 M. 320, 81 Am. Dec. 603. The reasoning of these cases has not met with universal approval, and good authority is found for the doctrine that certificates of deposit, being promissory notes, must be in all re-

## 5 Cur. Law. Banking and Finance SS 6.

the depositor's successor in office does not operate as a payment relieving the bank from liability on its bond.\[81\] A cheek being returned as paid it is prima facie evidence of the receipt of the sum by the payee.\[82\] A depositor is not bound by a special custom of which he has no knowledge.\[83\] A bank being notified that a deposit is claimed by a third person it is bound to hold the money a sufficient length of time to afford such other an opportunity to assert his claim,\[84\] and if he has a reasonable time allowed him for that purpose, and fails to do so, the bank may pay the deposit to the depositor, without any liability to the adverse claimant.\[85\] What is a reasonable time is a mixed question of law and fact, which, under proper instructions of the court ought to be submitted to the jury.\[86\] In the absence of agreement there is no interest on deposit accounts until demand and refusal,\[87\] or until the bank suspends payment.\[88\]

\_Checks.\[89\]--A check can only be drawn against a depositor's deposit, and not against other indebtedness due the depositor by the bank.\[80\] Before an ordinary check will operate as an equitable assignment of the funds upon which it is drawn so as to acquire priority over a subsequent attaching creditor, one of three things must appear. First, the check must, on its face, show the intention to appropriate the fund on deposit;\[81\] or, second, the depositary bank must have had notice in some way of the drawing of the check;\[92\] or, third, the check must have been made against a particular fund on deposit, and for the whole of such fund.\[83\] An ordinary check upon one's general account, and not for the whole thereof, does not operate as an assignment of the fund until the check is accepted or certified by the bank.\[84\] A cheek not operating as an equitable assignment may be revoked by the maker and any subsequent payment is made at the peril of the bank,\[85\] though the latter is bound to pay the bona fide holder of a cheek indorsed in blank, even though notified by the payee that he lost it.\[86\] The bringing of suit by the drawer against the payee to recover the sum paid him by the bank in disregard of the instructions is not a ratification of the act of the bank.\[87\] The bank is bound:

the time, if the checks would have been paid if payment had been demanded when there were presented. Hubbard v. Pettey \[Tex. Civ. App.\] 85 S. W. 509. Payee of draft-depositing it and receiving credit as a depositor, the proceeds of the draft become the property of the bank, and cannot be recovered by the drawer for a failure of consideration of the draft as between the drawer and payee. Reed Grovery v. Canton Nat. Bank \[Md.\] 59 A. T16; Miller v. Farm. & Mechanics' Bank, 80 Md. 392, distinguished. The payee of a check indorising and depositing it and receiving credit for the amount as cash to be checked against, the bank becomes the owner of the check. Aelyi \[Wis.\] 102 N. W. 329. Where the hand to pay is also the hand to receive, payment may be made by a transfer of credits upon the books of a bank. Patterson v. First Nat. Bank \[Neb.\] 102 N. W. 765.

81. Bond ran to treasurer of county or his successors. Buhrer v. Baldwin \[Mich.\] 100 N. W. 468.

01. So held where bank was drawer and payee. Patterson v. First Nat. Bank \[Neb.\] 102 N. W. 765. It is not conclusive evidence. Id.

01. Kuder v. Greene \[Ark.\] 82 S. W. 836.

01. Drumm-Flato Commission Co. v. Gerlach Bank, 107 Mo. App. 426, 81 S. W.

01. Need not hold it for a time sufficient to enable him to investigate his rights toto pay to the payee or indorsee,"\* and payment being refused a bona fide holder may sue to recover the amount of the check." Where a party has a check in ordinary form on general funds in a bank, it is his duty to present such check within reasonable time,1 and if before presentation a third party attaches or garnishees the money in a proper legal action, he aquires a lien superior to the rights of the payee.2

\_Forged or altered checks and drafts.\_8--As between the depositor and the bank, the latter is held to a knowledge of the signature and handwriting of its customer, and in the absence of some fault on the part of the latter affecting the question of liability, a forged check, whether the forgery was accomplished by material alteration or the forgery of the signature, is honored by the bank at its peril.4 Changing the name of the bank on which the check is drawn is a material alteration,5 which it is not the duty of the depositor to foresee.6 No local custom can give vitality to a forged check.7

\_Overdrafts.\_8--The allowance of overdrafts is a matter resting in the judgment and discretion of the governing body of the"bank, unless it delegates the duty to designated officials.9 Such officers are not liable for losses occurring therefrom provided that they act honestly and prudently.10 Several officers of a bank wrongfully permitting overdrafts are jointly and severably liable for all loss sustained thereby,11 and in such case a release of the debtor in consideration of his executing a deed of trust for his creditors does not release the officer.12

_The assignment of a bank account must be made by the party in whose name it stands, and being in writing, it cannot be proved by parol.13_

\_Set-off of debts due bank against deposit. Lien of bank.14--There is a conflict as to whether a bank may without notice apply funds of a depositor in extinguishing past due claims held against him.15 A bank has a lien on all moneys, was liable for allowing his son to overdrawn his account without the consent of the advisory committee. Id.\_12 Western Bank v. Coldewey's Ex'x, 26 Ky. L. R1247, 83 S. W. 628. An assignment by "J. B." of a bank account standing in the name of "M. B. & Son." is of itself insufficient to sustain an action thereon by the assignee. Robbins v. Bank of M. & L. Jarmulowsky, 90 N. Y. S. 288.

**13. Robbins v. Bank of M. & L. Jarmulosky, 90 N. Y. S. 288.**

**14. See 3 C. L. 422.**

**15. That it cannot. Caloham v. Bank of Anderson, 69 S. C. 374, 48 S. E. 293.** \[By a divided court.\]

**NOTE. Dishenor of check--Application of funds to depositors debts. A bank may refuse to honor a depositor's check when there is not sufficient funds remaining after offseting balances due it from the depositor. Commercial Bank v. Hughes, 17 Wend. \[N. Y.\] 94; Garnett v. McKewan, L. K. 82 Exch. 10. The offseting claims, however, must be due or the bank is not fjustified in refusing to honor the check.**

\*\*16. Forgarties v. State Bank, 12 Rich. Law \[S. C.\] 518, 78 Am. Dec. 468. The authorlies at common law seem uniformly opposed to the view in the principal case; nevertheless it finds support in Louisiana from the adoption there of Roman civil law principles. There an irregular deposit is not subject to set off, or, as it is called, to compensation. Gordon v. Muchler, 84 La. Ann. 604. Where the right exists, as it 5 Cur. Law. BANKING AND FINANCE SS 6. 361

notes, and funds of a customer in its possession, for any indebtedness of the customer to the bank which is due and unpaid.\[16\]

_Deposits received after insolvency.\[17\]_--A deposit made while the bank is insolvent to the knowledge of its officers may be recovered from the bank's receiver \[18\] in preference to the general creditors,\[19\] provided that it went to swell the assets of the bank left at the time the bank was closed,\[20\] and, in the absence of controverting evidence, it will generally be presumed that the deposit did swell such assets,\[21\] and it is not necessary to trace the identical money into the receiver's hands.\[22\] The mere fact of insolvency at the time the deposit is received is insufficient to justify a finding of fraud, but the insolvency must be of such a character that it is manifestly impossible for the bankers to continue in business and meet their obligations;\[23\] and this fact must have been known by the bankers.\[24\] It is fraud that must be proved. An honest mistake as to the condition of the bank and an honest belief in the solvency of the institution, if it exists, negative the conclusion of fraud upon which the plaintiff's cause of action must depend.\[25\]

_General deposits.\[26\]_--Where the money deposited is mingled with other money of the bank, and the entire amount forms a single fund, from which depositors are paid, it is a general deposit.\[27\]

_Special deposits.\[28\]_--A special deposit is created where the money is left for safe keeping and the identical money is returned to the depositor.\[29\]

_Specific deposits.\[30\]_

_Trust funds.\[31\]_--A fund being left for a specific purpose, it constitutes a trust fund in the hands of the bank,\[32\] and the bank is liable if it converts the property to another use.\[33\] In order to be liable, a bank must have knowledge that the funds deposited are impressed with a trust.\[34\]

does at common law, there would hardly be \[24\] faith. Nathan v. Uhlmann, 101 App. Div. a duty to notify unless a customer be shown \[38\], 92 N. Y. S. 13. Interpreting the contract or working an \[25\]. Williams v. Van Norden Trust Co., estoppel.\[4\] Columbia L. R. 602.

16. Garrison v. Union Trust Co. \[Mich.\]

102 N. W. 978.

17. Gee 3 C. L. 423.

01. Baker v. Orme, 6 Ohio C. C. (N. S.)

01. System German Bank v. Norvell (C. 6841 is a general, not a special deposit. In C. A.J 134 F. 724.

01. Willoughby v. Weinberger \[OkI.\] 79

01. Where checks on a third bank were deposited in another bank while insolvent and were used by it in settling an indebtedness, and nothing came into the hands of the receiver from such checks, held, the deposit or the knowledge of its officers may be recovered from the bank's depositor was not entitled to a preference. Willoughby v. Weinberger \[OkI.\] 79 P. 777.

01. So held where deposit was made in the morning and bank closed 21% hours later, and at the time of closing had on hand more cash that the day's deposits amonntted to. Willoughby v. Weinberger \[OkI.\] 79 P. 777.

01. Western German Bank v. Norvell \[C. 6841.\]

01. Williams v. Van Norden Trust Co., 93 N. Y. S. 821. Evidence held insufficient to show the above condition. Id.

01. So as to justify the conclusion that they accepted the deposit knowing that they would not and could not respond when the depositor demanded it. Willians v. Van Norden Trust Co., 93 N. Y. S. 821. Knowledge of insolvency is sufficient to show the following: \[24\]

01. Willoughby v. Weinberger \[OkI.\] 79 P. 777.

01. We can see that the bank is not a special deposit. In \[25\], we can see that the bank is not a special deposit. In \[26\], we can see that the bank is not a special deposit. In \[27\], we can see that the bank is not a special deposit. In \[28\], we can see that the bank is not a special deposit.

_Slander of credit or damages for failure to pay checks.${}^{\\text{\\text{\\tiny{\\text{\\tiny{\\text{\\tiny{\\text{\\tiny{\\text{\\text{\\tiny{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{}}}}}}}}}}}}}}}}$_--A bank wrongfully refusing to honor a check is liable for the damages resulting therefrom, including interest on the amount of the cheek until it is paid,${}^{\\text{\\tiny{\\text{\\tiny{\\text{\\tiny{\\text{\\tiny{\\text{\\text{\\text{\\text{\\text{\\text{{\\text{\\text{\\text{\\text{ \\texttexttexttexttexttexttexttexttexttexttexttexttexttexttexttexttexttext }}}}}}}}}}}}}}\\text{}}\\text{}\\text{}}\\text{}$ though the refusal is due to a mistake in bookkeeping;${}^{\\text{\\tiny{\\text{\\text{\\tiny{\\text{\\tiny{\\text{\\text{\\text{\\text{{\\text{\\text{{\\text{\\text{ \\text{\\text{\\text{\\text{\\ 5 Cur. Law. Banking and Finance $ 8.

the certification. In the latter case the drawer is discharged from the indebtedness for which the check was given, and the holder can look only to the bank; \[54\] while in the former case the drawer is not discharged of his indebtedness, but the holder may, in case the bank fails to abide by its obligation, have recourse to his debtor upon the original indebtedness.\[55\] This rule, however, applies only to the relation between drawer and payee, and has nothing to do with the character or extent of the obligation assumed by the bank by the act of certification.\[56\]

SS 7. _Circulating notes.--A_ bank bill stolen from, or lost by, a bank and fraudulently put into circulation is good as against the bank, in the hands of a bona fide holder for value,\[67\] and the mere possession of any holder is sufficient to impose the burden of proof on the bank to show the fraud or bad faith of the plaintiff.\[58\] But neither a thief, nor a finder, nor a holder having good reason to believe that the bill has been stolen or lost can recover,\[58\] and if by fraud or mistake he does secure payment thereon, he will be required to return the sum so secured.\[56\]

SS 8. _Loans and discounts.\[61\]--"Discounting"_ as that term is understood in banking must be done with money under the control of the discounter, but belonging, at least in part, to another.\[62\] In New York the law follows the national bank act and does not impose as a penalty for usury the forfeiture of the principal.\[63\]

_Advances against bills of lading.\[64\]--A_ bank advancing money and taking the bills of lading as security, the title to the goods vests in the bank,\[65\] subject, however, to the terms of the contract between the parties relative to the retransfer of the goods or the payment of profits.\[66\]

_Drafts with bills of lading attached.\[67\]--A_ bank discounting a draft with the bill of lading attached, the goods thereby become the property of the bank.\[68\]

_Agreements to honor paper.--A_ bank having erroneously authorized the giving

54, 55, 56. Schlesinger v. Kurzrok, 94 N. for a letter of credit, the banker held a pol-T. S. 442.

57, 58. Pelletier v. State Nat. Bank \[La.\]

59. Pelletier v. State Nat. Bank \[La.\]

01. 132.

01. Pelletier v. State Nat. Bank \[La.\]

38 So. 132.

One purchasing $10,000 of notes of a solvent bank for $25 held not a pur-thaser in good faith. Id.

60. Pelletier v. State Nat. Bank \[La.\]

01. See 3 C. L. 426.

Where the officers of a bank have knowledge that money paid it by another officer belongs to a third party, the bank's liability to the latter depends upon whether the money was used to pay the officer's individual indebtedness to the bank or to pay the third party's indebtedness. The question of good faith is not involved. Supreme Tent Enights of Maccabees of the World v. Port Huron Sav. Bank \[MiCh.\] 100 N. W. 898.

62. Clark v. Assets Realization Co., 115 Ill. App. 150. The purchase by a New Jersey corporation of the assets of a defunct building and loan association, with its own money, is not "discounting bills, notes, or other evidences of indebtedness," within the meaning of the New Jersey Corporation Act. Id.

01. 3 U. S. Comp. St. 1901, pp. 8454-3493; Laws N. Y. 1870, p. 437, c. 163; Laws 1880, p. 832, c. 567, construed. In re Samuel Villi's Sons, 138 F. 562.

01. See 3 C. L. 426.

01. In re Zhe Ellenp, 91 App. Dlv. 131, 86 N. Y. S. 326. Where, under a contract of credit may correct the mistake before liabilities have been incurred or losses sustained in consequence thereof."

**SS 9.**_Collections._"--Commercial paper being forwarded to a bank for collection, the bank acts as a mere agent of the owner," and the latter may revoke the bank's authority and demand a return of the paper at any time before collection," a refusal to comply with such demand operating as a conversion of the paper." A bank taking paper for collection, the title thereto does not pass from the depositor," and the bank's title is measured by that of the forwarder; " but the money being collected and credited, the title passes," and the relation between the bank and depositor becomes that of debtor and creditor," and upon the bank becoming insolvent the depositor can only share in the assets pro rata with general creditors." A payment to the bank or its correspondent operates as a payment to the owner of the paper." The obligation to collect requires the bank to accept only money in payment. If it accepts a draft it does so at its peril," though, on the absence of instructions to the contrary," the collecting bank may remit by a check or draft upon itself," and this is true if the bank is insolvent, but is open and and doing business, and there is no fraud between it and the drawee." Special instructions as to the manner of remitting must be followed." The bank is liable for losses sustained by reason of the acts of its agents." Unless the paper is stamped with some indicia indicating that it is forwarded for collection, the owner cannot recover from a sub-agent to whom it is sent for collection and who treats the agent as the owner." An indebtedness existing in favor of a bank against the forwarder does not constitute

\*\*e9.\*\*Brinton v. Lewiston Nat. Bank \[Idaho\] 81 P. 112.

\*\*70.\*\*See 3 C. L. 426. Bank collections, see Solver on Bank Collections.

\*\*71.\*\*72, 73. Bank of America v. Waydell, 92 N. Y. S. 666.

\*\*74.\*\*Garrison v. Union Trust Co. \[Mich.\]

\*\*75.\*\*Bank of America v. Waydell, 92 N. Y. S. 666.

\*\*76.\*\*Garrison v. Union Trust Co. \[Mich.\]

\*\*77.\*\*Garrison v. Union Trust Co. \[Mich.\]

\*\*78.\*\*Garrison v. Union Trust Co. \[Mich.\]

\*\*79.\*\*N.\*\*W. 978.

\*\*77.\*\*North Carolina Corp. Commission v. Merchants & Farmers' Bank (N. C.J 60 S. E. 308. Under Rev. St. 1838, 8 2768, a bank with which a note and mortgage assigned by a husband to his wife in fraud of creditors were placed for collection, and which received a check for the amount due on the note and mortgage, payable to its order, was subject to garniment for the amount of the check by a creditor of the husband. Eau Claire Nat. Bank v. Chippewa Valley Bank \[IVa\] 102 N. W. 1068.

**3 Am. & Eng. Ency. Law, pp. 818-821, and cases cited.**

\*\*Contra.\*\*Federal Courts: A bank receiving a check for collection is liable as a trustee for the money collected. Holder v. Western German Bank \[C. C. J. 138 F. 90, affg. 132 F. 187.

\*\*85.\*\*S. Where * life insurance company sent renewals on policies to a bank for collection, and the bank permitted the company's agent to collect them, held liable for the agent's failure to deposit the sums collected, especially where the insurance company had no knowledge that the collections were so made. Manhattan Life Ins. Co. v. Firs Nat. Bank \[Colo. App.\] 80 p. 467. Agent for bank testifying that he collected the amount but failed to account, held to supply omission on part of plain-iff to prove that any amount was collected by the bank. Id.

\*\*86.\*\*Subagent is entitled to its banker's lien. Garrison v. Union Trust Co. \[Mich.\]

\*\*102 N. W. 978.

5 Cur. Law. Banking and Finance $ 10. 365

the bank a holder of the draft for value, it not discharging or dealing with the draft in any way on the faith thereof."

\_Duty to preserve rights of parties."--\_Where a bank receives commercial paper for collection, the law implies a contract upon its part to use reasonable skill and diligence in making the collection," and this contract is supported by a sufficient consideration, whether a collection charge, termed "exchange," be made or not."" No custom, general or special, will excuse the want of reasonable diligence." The admissibility of particular evidence in an action to enforce the bank's liability is shown in the notes."

SS 10. \_Criminal transactions."--\_The crime of embezzlement from a national bank by an officer, clerk or agent involves two general elements: First, a breach of trust or duty in respect to the moneys, properties, and effects in the party's possession, belonging to another; and, second, the wrongful appropriation thereof to his own use." In order to constitute this crime, it is necessary that the property, money or effects embezzled should at the time be in the lawful possession or custody of the accused." Abstraction, under the national banking laws, is the act of one who, being an officer of a national banking association, wrongfully takes or withdraws from it any of its moneys, funds or credits with intent to injure or defraud it, or some other person or company, and, without its knowledge or consent, or that of its board of directors, converts them to the use of himself, or some other person or company other than the bank." No previous lawful possession is necessary to constitute the crime, nor does it matter in what manner it is accomplished." Willful misapplication as described in the national banking act means a misapplication, willfully and unlawfully made by one of the officers enumerated therein, of the money, funds or credits of the bank, and made with intent to injure the bank, or some other company or person;" and it has been held that there must be a conversion of the funds misapplied, to the use and benefit of the wrongdoer, or to the use of some one other than the bank." It is not necessary that the officer so charged should have been previously in the possession or custody of the money, funds, or credits of the bank by virtue of any trust, duty or employment.1 It will thus be seen that the crime of embezzlement under the national banking act embezzle.

87. This under Negotiable Instruments

Law, $ 51, providing that an antecedent

of the property of the bank by its officers.

debt constitutes value. In this case the

It follows that the matter is within the exclusive jurisdiction of the Federal courts,

v. Waydell, 92 N. Y. S. 666.

88. See 3 C. L 427.

01. Manhattan Life Ins. Co. v. First Nat.

Bank \[Colo. App.\] 80 P. 467.

90. Manhattan Life Ins. Co. v. First Nat.

Bank \[Colo. App.\] 80 P. 467; S. Am. & Eng.

Enc. Law, 802.

91. The presenting of checks through the clearing house the day after receiving

them, instead of having them certified on

the same day, was claimed to be a usage, but held not to be reasonable diligence.

Bank of Commerce v. Miller, 105 III. App.

224.

001. In an action against the bank for

failing to give notice of protest, evidence

that indoor's address was written on note

in the handwriting of the bank's collection

clerk held admissible to prove that the

note was delivered to the latter. Howard

v. Bank of the Metropolitan, 93 N. Y. S. 1042.

93. See 3 C. L 427. See Clark & M. Law

of Crimes \[2nd Ed.\] $ 343 (b) p. 503.

\*\*NOTE. Application of state statutes to

embexicanement by national bank officers: The act of congress creating national banks pro-

vides for the punishment of embezzlement

Law, $ 51, providing that an antecedent

of the property of the bank by its officers.

debt constitutes value. In this case the

It follows that the matter is within the exclusive jurisdiction of the Federal courts,

v. Waydell, 92 N. Y. S. 666.

88. See 3 C. L 427.

01. Manhattan Life Ins. Co. v. First Nat.

Bank \[Colo. App.\] 80 P. 467.

90. Manhattan Life Ins. Co. v. First Nat.

01. Manhattan Life Ins. Co. v. First Nat.

01. In an action against the bank for

falling to give notice of protest, evidence

that indoor's address was written on note

in the handwriting of the bank's collection

clerk held admissible to prove that the

note was delivered to the latter. Howard

v. Bank of the Metropolitan, 93 N. Y. S. 1042.

93. See 3 C. L 427. See Clark & M. Law

of Crimes \[2nd Ed.\] $ 343 (b) p. 503.

\*\*NOTE. Application of state statutes to

embexicanement by national bank officers: The act of congress creating national banks pro-

vides for the punishment of embezzlement

Law, $ 51, providing that an antecedent

of the property of the bank by its officers.

debt constitutes value. In this case the

It follows that the matter is within the exclusive jurisdiction of the Federal courts,

v. Waydell, 92 N. Y. S. 666.

88. See 3 C. L 427.

braces the offenses of abstraction and willful misapplication, but the converse of the proposition is not necessarily true.2 The intent to injure or defraud the bank, or some other person or company, and which is an essential element in all of the above mentioned crimes, need not necessarily have been the object or purpose with which the act was done; it is sufficient if the natural and necessary effect of the act was to injure or defraud the bank or others, and it was willfully and intentionally done.3 An officer of a national bank is not guilty of embezzlement, abstraction or willful misapplication of its funds because of his obtaining money from the bank for his own use by means of overdrafts or loans by bona fide arrangement with its authorized officers or committee,4 but he is only protected by such arrangement where it was made by those representing the bank in good faith, and in the supposed interest of the bank.5

Footnote 21: The author is grateful to

**5** Cur. Law. BANKruptCY $\\lx@sectionsign$ 3.

**BANKREUPTCY.**

**8** **1. The Bankruptcy Act, Amendments, and General Orders (387).**

**8** **2. Superseason of State Laws (387).**

**8** **3. Occasion for Proceeding and Acts of**

**BANKrupt (388).**

**A. In General (385).**

**B. Disposition of Property With Intent to Hinder, Delay, or Defraud Creditors (385).**

**C. A Preferential Transfer While Insolvent (388).**

**D. Suffering or Permitting While Insolvent, The Obtaining of a Preference Through Legal Proceedings (368).**

**8** **3. Management of the Property and B. General Assignment (388).**

**F. Admitting Insolvency In Writing and Willingness to be Adjudged a Bankrupt (369).**

**8** **4. Persons Who May be Adjudged Bankrupts and Who May Petition (369).**

**8** **5. Proceedure for Adjiduction (370).**

**A. In General (370).**

**B. Voluntary Proceedings (371).**

**C. Involuntary Proceedings (371).**

**8** **6. Protection and Passession of the Property Penaling the Appointment of Trusteeee Receivers (375).**

**8** **7. Creditors' Meeting' Apppointment of Trustee; Removals (376).**

**8** **5. Compositions (377).**

**8** **9. Property and Rights Passing to Trustee (377).**

**A. Particular Kinds of Property and Rights (377).**

**B. Nature of Trustee's Title in General (380).**

**C. The Trustee Takes Title Free From Lines (381).**

**D. Whether Chattel Mortgages (383).**

**E. Preferential Transfers and Payments (382).**

**8** **10. Collection, Reduction to Possession and Protection of Property (380).**

**A. Discovery (386).**

**B. Compelling Surrender by Bankrupt (386).**

**C. Property in Possession of Officer Appointed by State Courts (386).**

**D. Summary Proceedings Against Third Persons; Jurisdiction (386).**

**E. Actions to Collect or Reduce the Property to the Trustee's Possession (387).**

**SS 1.** _The bankruptcy act, amendments, and general orders. Construction of act._\*\*--In all matters pertaining to a construction of the Federal bankruptcy act the holdings of the supreme court of the United States are conclusive.\_**2**

Footnote 2: **The forms** set forth in the general orders are not mandatory but are to be used with such alterations as may be necessary to suit the circumstances of any particular case.\_**4**

**SS 2.** _Suppression of state laws._\*\*6--The national bankruptcy act suspends and supersedes all state insolvency laws " which are in their nature bankruptcy acts " except as to cases and persons not within its purview.\_**8**

**1. See 3 C. L. 434.**

**2. Stewart v. Hoffman \[Mont.\] 81 P. 3,**

**3. See 3 C. L. 434.**

**4. Burke v. Guarantee Title & Trust Co. overruling former opinion, Id. \[Mont.\] 77 \[C. C. A.\] 134 F. 562.**

**P 689.**

\*\*3. See 3 C. L. 434.\*\*368 BANKRUPTCY SS 3. 5 Cur. Law.

SS 3. \_Occasion for proceeding and acts of bankruptcy. A. In general.${}^{\\bullet}$ Insolvency.${}^{10}$--Under the present bankruptcy law a debtor is not insolvent unless his property at a fair valuation and exclusive of any property which he has conveyed. concealed, or removed, or permitted to be conveyed, concealed, or removed with intent to defraud, hinder, or delay his creditors,${}^{11}$ is insufficient to pay his debts.${}^{12}$ A stockholder's liability for unpaid stock subscriptions cannot be taken into account as an asset in determining the question of the corporation's solvency.${}^{11}$ A bankrupt remaining personally liable upon a mortgage upon land conveyed by him, such debt is chargeable as a liability;${}^{14}$ also sums paid to preserve assets are generally regarded as liabilities.${}^{18}$

(SS 3) _B. Disposition of property with intent to hinder, delay, or defraud creditors.${}^{16}$_ The giving of a lien, valid under the bankruptcy act does not constitute an act of bankruptcy.${}^{17}$

(SS 3) _C. A preferential transfer while insolvent.${}^{18}$--An insolvent knowingly preferring a creditor commits an act of bankruptcy.${}^{19}$_ The transaction amounting to a preference, the law presumes that it was done with intent to prefer.${}^{20}$

(SS 3) _D. Suffering or permitting while insolvent, the obtaining of a preference through legal proceedings.${}^{21}$--It is not the mere obtaining of a preference through legal proceedings while insolvent that makes the debtor liable as a bankrupt, but it is the failure on his part to have the same vacated or discharged within five days before a sale or final disposition of the property.${}^{22}$_

(SS 3) _E. General assignment.${}^{23}$--The assignee need not have been appointed by order of a court ${}^{24}$_ nor under a state insolvency law.${}^{25}$

6. Hoague v. Cumner, 187 Mass. 296, 72

N. E. 956: In re J. H. Alison Lumber Co.,

137 F. 643, and cases cited. Pennsylvania

held to establish Insolvency. Capital Nat. act of June 4, 1991; is suspended. Potts v.

Bank v. Wilkerson (Ind. App.) 72 N. E. 247. Smith Mfg. Co., 25 Pa. Super. Ct. 206.

7. Until proceedings have been begun

under the Federal bankruptcy act, the operation of the Georgia insolvent traders'

demption. In re Shoesmith \[C. C. A.J 135 act is not suspended as to a particular case. Boston Mercantile Co. v. Ould-Car-

7.5. Instruction that license fee was

ter Co. \[Ga.\] 61 S. E. 466. The Georgia insolvent traders' act is unquestionably an

eas as an asset and that the amounor so insolvent law, but it lacks an necessary

element of a bankruptcy law, viz, provision that after discharge the debtor shall

be released from further liability on his debts, Id.

8. Potts v. Smith Mfg. Co., 25 Pa. Super. Ct. 206. Does not apply to a farmer.

Musser v. Brindle, 23 Pa. Super. Ct. 37.

9. See S 3 C. L. 435.

1. See 3 C. L. 435. As to the burden of

proving insolvency and the evidence admissible on such issue, see post, SS 5 C.

11. In re Shoesmith \[C. C. A.J 135 F. 684.

Proceeds of a fraudulent conveyance being

invested in a distant state they should be

treated as "concealed assets" and deducted

from available assets, for the purpose of

determining insolvency. Id.

12. Crandall V. Coats, 133 F. 965: In re

Shoesmith \[C. C. A.J 135 F. 684; Murphy v. W. T. Murphy & Co. \[Towards 101 N. W. 486; 132 F. 310. See 3 C. L. 436, n. 91.

Hastings v. Fithian \[N. J. Err. & App.\] 60

A. 350 The evidence must be such as to

satisfy the jury that defendant's existing

indefudeness is more than the value of his

cases at the time the portion is filed. In

re McGowan, 134 F. 498; Knittel v. Mc-

14. Crane took a mere equity of re-

01. Crane took a mere equity of re-

01. See 3 C. L. 436.

01. Where a debtor while solvent made

an equitable assignment of Insurance pol

16. See 3 C. L. 436.

01. Where a debtor while solvent made

an equitable assignment of Insurance pol

16. to be issued as security for a loan,

but failed to make a 5 Cur. Law. BANKruptry **SS 4.**

(SS 3) _F. Amitting insolvency in writing and willingness to be adjuded a bankrupt.\[26\]_

SS 4. _Persons who may be adjudged bankrupts and who may petition.\[27\]_

A natural person engaged chiefly in farming or the tillage of the soil cannot be adjuded an involuntary bankrupt.\[28\] To bring one within this exemption it is not essential that he should till the soil in person, or that his operations should be limited to agricultural planting, soving and cultivation of the soil,\[28\] but such tillage of the soil must be his chief occupation or business and the one upon which he relies for his livelihood and financial welfare.\[30\] A corporation \[31\] engaged principally in manufacturing \[32\] or trading and mercantile pursuits \[38\] may be adjuded an involuntary bankrupt. The term "trading pursuits" as here used applies only to persons or concerns trading in tangible property or chattels.\[34\] To come within the provisions of the bankruptcy law as a manufacturer, it is not necessary that the corporation itself perform every operation with or upon the so-called raw material necessary to produce the completed article.\[25\] It is all-sufficient if it do any one of the several acts necessary to produce such manufactured articles in their completed form.\[36\] A corporation engaged in keeping an inn or hotel is not principally engaged in trading or mercantile pursuits.\[37\] A partnership conducting

24. In re Hercules Atkin Co., 133 F. 813. 28. In re Spalding, 134 F. 507. The apportionment of a receiver in a judgment credator's suit against an alleged bankrupt in a state court, because of the debtor's insolvency, constitutes an act of bankruptcy. Id. 26, 27. See 3 C. L. 438. 28. Act 1898, $ 41. See 3 C. L. 438, n. 24. 29. Bank of Dearborn v. Matney, 132 F. 75. 30. Bank of Dearborn v. Matney, 132 F. 75. One who receives between $1,500 and $1,800 per year from the products of his farm, and spends $15,000 per year buying and feeding live stock and who becomes indebted to the extend of $50,000 by reason of his live stock transactions is not chiefly engaged in farming. Id. Bankrupt residing on farm of three hundred acres, which he had purchased, but only partially paid for, and cultivating only one-third thereof, spending most of his time and money in dealing in finely bred cattle, held not engaged chiefly in farming. In re Brown, 132 F. 706. Lawyver running a collection business and a farm, making nothing out of the former and his gross income from the farm was $1,800, and his indebtedness arose principally out of his purchase and operation of the farm, held chiefly engaged in farming. In re Hoy, 137 F. 175. 31. A mercantile association organized under Act Pa. 1874 (P. L. 271), providing for "the formation of partnership associations in which the capital subscribed shall alone be responsible for the debts of the association" may be adjuded an involuntary bankrupt. In re Hercules Atkin Co., 133 F. 813. \[The Court holds that it is immaterial whether the association be regarded as a corporation or not, but expresses the view that it comes within the definition of the word "corporation" as used in the Bankr. Act of 1898, $ 1, subd. "a," cl. $ .\]

01. A construction company engaged in constructing bridges, whares, bulkheads, 5 Cur. L.--24.

01. In re Hercules Atkin Co., 133 F. 813. 28. In re Spalding, 134 F. 507. The apportionment of a receiver in a judgment credator is not a manufacturing if it do any one of the several acts necessary to produce such manufactured articles in their completed form.\[36\] A corporation engaged in keeping an inn or hotel is not principally engaged in trading or mercantile pursuits.\[37\] A partnership conducting

01. In re Spalding, 134 F. 507. The apportionment of a receiver in a judgment credator is not a manufacturing if it do any one of the several acts necessary to produce such manufactured articles in their completed form.\[38\] A corporation engaged in keeping an inn or hotel is not principally engaged in trading or mercantile pursuits.\[37\] A partnership conducting

01. In re Hoy Steam Laundering Co., 132 F. 75. 30. Bank of Dearborn v. Matney, 132 F. 75. One who receives between $1,500 and $1,800 per year from the products of his farm, and spends $15,000 per year buying and feeding live stock and who becomes indebted to the extend of $50,000 by reason of his live stock transactions is not chiefly engaged in farming. Id. Bankrupt residing on farm of three hundred acres, which he had purchased, but only partially paid for, and cultivating only one-third thereof, spending most of his time and money in dealing in finely bred cattle, held not engaged chiefly in farming. In re Brown, 132 F. 706. Lawyver running a collection business and a farm, making nothing out of the former and his gross income from the farm was $1,800, and his indebtedness arose principally out of his purchase and operation of the farm, held chiefly engaged in farming. In re Hoy, 137 F. 175. 30. A mercantile association organized under Act Pa. 1874 (P. L. 271), providing for "the formation of partnership associations in which the capital subscribed shall alone be responsible for the deb a private bank \[38\] and an unincorporated Lloyd's association of fire underwriters are subject to involuntary proceedings \[39\]. An irrigation company is not subject to involuntary proceedings \[40\]. It has been held that a quasi public corporation is not amendable to the bankruptcy law on the ground of public policy \[41\]. A corporation or association does not cease to exist so as to preclude bankruptcy proceedings by instituting proceedings to wind up its affairs \[42\].

_Who may petition. Voluntary proceedings \[43\]--A "qualified person" of the statute is one, other than a corporation, who owes debts \[44\]._

_Involuntary proceedings \[45\]--Persons who procure or connuire at the commission of an act of bankruptcy are incompetent to maintain proceedings in bankruptcy on account of such act \[46\]. The time of the adjudication is the time to test the sufficiency of the number of the petitioning creditors and of the amount of their claims to warrant the adjudication \[47\], and the bankruptcy act does not sanction the splitting up of a single claim into several demands in order to create the requisite number of petitioning creditors \[48\]._ The petition being dismissed for insufficiency of petitioning creditors it is too late for a nonparticipating creditor to intervene as a matter of right \[49\].

SS 5. _Procedure for adjudication. A. In general \[56\]--The Federal district court has general and exclusive jurisdiction of bankruptcy proceedings \[51\], which jurisdiction is defined by the bankruptcy act \[52\]. Proceedings in bankruptcy are in the nature of a suit \[53\] in equity \[54\], and hence pleadings in bankruptcy follow the rules of equity pleading \[55\]._ Proceedings may be instituted in a district court \[56\].\_

mer the court laid stress on the fact that the receipts from a cate and bar largely ex-ceeded those from rental of rooms. In re Morton Boarding Stables, 108 Fed. 791, 5 Am. Bankr. Rep. 163, following In re Odedl, 9 Ben. \[U. S.\] 209, 18 Fed. Cas. No. 10,426, 17 Nat. Bankr. Rep. 173, held that the owner of livery and boarding stables was engaged in trading or mercantile pursuits. See, also, Campbell v. Fink, 2 Duval \[Ky.\] 107; In re Sherwood, 9 Ben. \[U. S.\] 66, 17 N. S. R. Reimer, 95 F. 954, 37 C. A. 337. See, also, 112, 21 Fed. Cas. No. 12, 173, and Collier on Bankruptcy \[5th ed.\], p. 64. The following English and Canadian authorities support the decisions of the court in the principal case: Luton v. Biggs, Skinner, 267, 291; Will-lit v. Thomas, 2 Chitry, 691; Harmon v. Clarkson, 22 U. C. Com. Pl. 291; Newton v. Thigg. 1 showers, 96. See, also, In re Chesapeake Oyster and Fish Co., 112 F. 960--3 Mich. L. R. 671.

35. An unincorporated association of individuals formed to carry on the business of a private bank under Laning's Rev. Laws Ohio, 1 4891 eeg. Burkhart v. German-American Bank, 137 F. 958.

01. In re Seaboard Fire Underwriters, 137 F. 987.

01. In re Bay City Irr. Co., 135 F. 850.

01. Irrigation company. In re Bay City Irr. Co., 135 F. 850.

17n this case the report of the referee was adopted by the court, the company was held not to come within the purview of the act and the above point was not necessary to the decision.\]

42. The election of liquidating trustees does not preclude the bankruptcy proceedings, the association being organized under a statute that upon giving notice the asso-claim shall cease to carry on its business, except so far as may be required for the though there is a vacancy in the office of judge; "" in such a case it is the duty of the clerk to receive and file the petition when offered " and it seems that he may also issue a subpoena thereon tested in his own name."

\_Schedules.--\_The schedule should definitely describe the debt'\* and should give the address of the creditor or his attorney." The schedule being sufficiently specific to notify the creditor that the debtor will claim his discharge as a release from liability on the claim it is generally sufficient." A claim may be scheduled in the name of the equitable owner, thus a claim may be listed in the name of a creditor who is represented by a receiver," and a note belonging to a bank may be scheduled as belonging to the bank though payable to its cashier."

(SS 5) _B. Voluntary proceedings._"--The bankruptcy law places no restriction upon one's right to file a second petition before the expiration of six years." A voluntary petition which schedules no debt which would be barred by a discharge may be dismissed in the discretion of the court."

(SS 5) _C. Involuntary proceedings._"--The petition must be filed within four months of the commission of the act of bankruptcy." Prior to the amendment of 1903, it was the transfer of property that was made the act of bankruptcy and not the recording of the instrument of transfer," and the period of four months began to run from the time of such transfer." The amendment of 1903 changing this rule is not retroactive." The words "notorious, exclusive, or continuous possession" in section three as applied to intangible personal property means such possession as is usual and ordinary, unaccompanied by acts or conduct tending to conceal its ownership."

Where bankruptcy proceedings are instituted in the courts of two different districts, each of which has jurisdiction, the one in which proceedings were last instituted will yield jurisdiction to the other " and will stay the proceedings." A

122 F. 140. Time for demurring will not be except tt from the discharge. Loomis v. extended as a matter of course, even where it is apparent that a demurrer would have been proper if filed in time. Id. Adjudication against a corporation will not be set aside because petition failed to show that it was of a class subject to involuntary proceedings. Id. See Equity, 3 C. L. 1210.

56, 57. In re Urban & Suburban Reality Co., 132 F. 140.

88. Rev. St. $ 911. In re Urban & Suburban Reality Co., 132 F. 140.

01. A description, in the schedules, of the debt as follows: "Deficiency judgment on foreclosure of mortgage entered March 13, "03." held sufficient. In re David, 44 Misc. 516, 90 N. Y. S. 85.

01. Where creditor's residence was in fact unknown but certain attorneys had stated that all communications for such creditor should be sent to them, held an entry in the schedules, under the head of "Residence," "care D, & D, attys, 88 Nas-saw St., N. Y. C.," was sufficient. In re David, 44 Misc. 516, 90 N. Y. S. 85. Where creditor's address was unknown but bankrupt knew the address of his attorney and made no effort to ascertain the creditor's address, and no notice was sent him, held claim was not properly scheduled. Fieldmark v. Weinstein, 90 N. Y. S. 478.

01. Where the sole debt between the bankrupt and a creditor had been reduced to judgment, the fact that such debt was listed as the original contract debt does not corporation having its domicile in one judicial district and its principal place of business in another, the courts of both districts have concurrent jurisdiction.\[18\] In case two or more petitions are filed against the same debtor in different districts, the first hearing shall be had in the district where the debtor has his domicile,\[76\] and the proceedings in the other court will be stayed until such hearing is had \[77\] leaving it to the discretion \[78\] of such court to determine in which court the case can be proceeded with for the greatest convenience of the parties in interest,\[76\] and the burden is upon the petitioners for removal to show clearly and affirmatively that it is for the greatest convenience of such parties that the proceedings should be transferred.\[80\] This rule of jurisdiction is not absolute but must yield to the necessities of the case.\[81\] The phrase "parties in interest" as here used is not limited to unsecured creditors but includes all persons whose pecuniary interests are directly affected by the proceedings.\[82\] The word "individual" as used here and in general order No. 6 is equivalent to "person" and includes a corporation.\[83\] Proximity of the place of business of a bankrupt to the court entertaining the proceedings, and proximity of a majority of creditors in number or amount of claims, though persuasive, is not conclusive on the question of convenience.\[84\] An order directing the removal and consolidation of the proceedings with a cause pending in another jurisdiction is reviewable only by appeal from the order.\[85\]

An objection that the subpena was improperly served can be raised only by motion or defense at the trial.\[86\] The answer alleging a larger number than twelve creditors the mode of service on such creditors is immaterial, the creditors named being actually served in time to intervene if they desired to do so.\[87\]

Any creditor may voluntarily appear and join in the petition or be heard in opposition thereto,\[88\] and those not appearing are, in contemplation of law, represented by the bankrupt to the extent of being concluded as to all matters directly in issue and determined by the order of adjudication.\[89\] The fact that directors and stockholders of the bankrupt corporation join in the petition is not evidence of bad faith or collusion, such petitioners being creditors.\[90\] An alleged bankrupt has a right to a reasonable time to answer petitions for his adjudication.\[91\] A single day is insufficient where the bankrupt is not within the district.\[92\]

T5. In re United Button Co., 137 F. 668.

transfer would be for the greatest conven-76. General orders No. 6. In re Globe

lence of the parties In Interest. Id. Where Sec. Co., 132 F. 709. Where a petition is

the petitioners are merely a minority of filed against an individual in the district of

the creditors, representing only a small halo domicile and is followed by a prompt

part of the indebtedness, a transfer is not adjudication before a hearing on petitions

warranted by the fact that the greater filed in the meantime in other districts, the part of the bankrupt's property is in an-court of the domicile acquires exclusive jurisdiction. In re United Button Co., 132 F. 978. Where proceedings

378. In re Globe Sec. Co., 132 F. 709.

most of the creditors, witnesses, etc., lived

78. In re Tybo Mining & Reduction Co., 132 F. 978.

132 F. 978.

79, In re Globe Sec. Co., 132 F. 709.

80. In re Tybo Mining & Reduction Co., 132 F. 978.

01. Where associated corporations of different states weth into bankruptcy, held

court first acquiring jurisdiction would re-train lit. In re Southwestern Bridge & Iron

Co., 133 F. 658.

82. In re United Button Co., 137 F. 668.

01. In re United Button Co., 137 F. 668;

01. In re United Button Co., 137 F. 668.

01. Hyde Lumeh Co. v. Bush \[C. C. A.\]

01. In re United Button Co., 137 F. 668.

91, 92. Loekman v. Lang \[C. C. A.\] 132 Evidence held insufficient to show that

F. 1.

5 Cur. Law. BANKruptY $ 50. 873

The petition being sufficient, the petitioners have the right to proceed to support it by evidence and, if successful, to have the defendant adjuded a bankrupt regardless of any delay, confusion or expense attending such a course.\[93\] Answer being filed and the petitioners moving for an adjudication on the pleadings they thereby admit all facts properly pleaded in the answer,\[94\] and if the motion is denied, defendants are entitled to a final decree dismissing the petition.\[95\] Where an answer is interposed in involuntary proceedings, the judge may refer the proceeding to a special commissioner to take the testimony and return it with his opinion,\[96\] and in such a case it is no objection to such reference that a former involuntary petition by other creditors had been determined by the judge in favor of the alleged bankrupt,\[97\] and the fact that the taking of testimony before the commissioner will be more extensive than is a hearing before the judge is insufficient to prevent such reference.\[98\]

The petition must state the nature of the petitioner's claims \[99\] though it need not allege all the elements thereof,\[1\] and must show either by express language or inference that the defendant is not of the excepted classes.\[2\] Allegations of acts of bankruptcy in the language of the act, without setting forth any other facts or circumstances, are insufficient,\[8\] the petitioning creditors being bound to make as full a disclosure as their information will permit,\[4\] and if such disclosure is incomplete it must be accompanied by an explanation.\[6\] A specification alleging that property was transferred with intent to hinder, delay, or defraud creditors, should state facts and circumstances from which such intent may be inferred.\[6\] An allegation that the bankrupt has his "principal place of residence" in the district is sufficient to confer jurisdiction on the court of such district.\[7\] Insufficiency in the allegation as to the number of creditors is not an incurable jurisdictional defect.\[8\] An attorney in fact for a petitioning creditor can make the necessary

93. Woolford v. Diamond State Steel Co., 146 to a designated person with intent to 138 F. 582. 148 F. 582. 148 F. 583 F. 584 F. 585 F. 586 F. 587 F. 588 F. 589 F. 589 F. 589 F. 590 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 590 F. 591 F. 592 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 599 F. 590 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 591 F. 592 F. 594 F. 595 F. 597 F. 598 F. 599 F. 599 F. 590 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 599 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 599 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 599 F. 599 F. 590 F. 591 F. 592 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 599 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 599 F. 599 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 599 F. 599 F. 599 F. 590 F. 591 F. 592 F. 593 F. 594 F. 595 F. 596 F. 597 F. 598 F. 599 F. 599 F. 599 F. 599 F. 599 F. 591 F. 592 F. 593 F each to the petition, where the facts are within his own knowledge." A bankruptcy court has power to permit amendments of pleadings by the insertion or correction of jurisdictional as well as other averments.\[10\] Such power is discretionary \[11\] and will be exercised in the furtherance of justice the defect being properly exensed.\[12\] The bankruptcy court having jurisdiction, it may permit the amendment of a petition, defective for want of equity, more than four months after the commission of the act of bankruptcy,\[18\] and such amendment relates to and takes effect as of the date of the filing of the original petition,\[14\] but an original petition cannot be amended by setting out therein acts of bankruptcy not referred to in the original petition, and occurring more than four months before the application for an order allowing the amendment.\[15\] That an involuntary petition contained a prayer that the petitioner might be permitted to intervene in earlier proceedings as a cautionary measure does not deprive it of its status as an original petition.\[16\] Defects may be waived by answer.\[17\] It is incumbent upon the defendant to deny the allegation of insolvency in the petition,\[18\] and if he does so and appears in court on the hearing with his books, papers, and accounts, and submits to an examination, and gives testimony as to all matters relating to the question of insolvency, the burden of proving insolvency rests on the creditors;\[19\] but if the bankrupt fails to so do the burden of proving his solvency rests upon him.\[20\] The debtor seeking protection under the exemption of the statute should present tangible, reliable evidence to bring himself within the exemption.\[21\] As a general rule evidence of subsisting,\[22\] though unmatured,\[23\] liabilities of the bankrupt, are admissible on the issue of his solvency,\[24\] but evidence of concealed assets is inadmissible.\[25\] A creditor having obtention of the court. In re Plymouth Cord- p. 762. If he fails to do so the allegation ase Co. \[C. C. A.\] 185 F. 1009. **9.** Where verification alleged that petitioner was without district and that the attorney had full authority to institute and prosecute suit. Rogers v. De Soto Placer strom, this one being reaffirmed. In re Min. Co. \[C. C. A.\] 136 F. 407. **10.** In re Plymouth Cordage Co. \[C. C. A.\] 135 F. 100. Petition may be amended by the insertion of averments that the allegment should not a wage-earner or are produced, but neither the testimony of farmer, and that all his creditors are less than twelve in number. Id. Falling to state nature of petitioner's claim it may be amended. In re White, 135 F. 199. Falli- ing to show that defendant is not of an excepted class it may be amended. Id. **11.** Where petition was finally defect- v. Woolford v. Diamond State Steel Co., 138 F. 582. **12.** Amendment seeking to set up acts of bankruptcy occurring subsequently to those stated in the original petition, and which must have been known to some of the petitioners at the time the petition was filed, denied. Wilder v. Watts, 138 F. 45, 138 F. 426. **13.** In re Shoesmith \[C. C. A.\] 135 F. 684. **15.** In re Haff \[C. C. A.\] 136 F. 78. **17.** The objection that the petitioner failed to file a duplicate of his petition is not of bankruptcy,\[18\] and such amendment relates to and takes effect as of the date of the filing of the original petition,\[14\] but an original petition cannot be amended by setting out therein acts of bankruptcy not referred to in the original petition, and occurring more than four months before the application for an order allowing the amendment.\[15\] That an involuntary petition contained a prayer that the petitioner might be permitted to intervene in earlier proceedings as a cautionary measure does not deprive it of its status as an original petition.\[16\] Defects may be waived by answer.\[17\] It is incumbent upon the defendant to deny the allegation of insolvency in the petition,\[18\] and if he does so and appears in court on the hearing with his books, papers, and accounts, and submits to an examination, and gives testimony as to all matters relating to the question of insolvency, the burden of proving insolvency rests on the creditors;\[19\] but if the bankrupt fails to so do the burden of proving his solvency rests upon him.\[20\] The debtor seeking protection under the exemption of the statute should present tangible, reliable evidence to bring himself within the exemption.\[21\] As a general rule evidence of subsisting,\[22\] though unmatured,\[23\] liabilities of the bankrupt, are admissible on the issue of his solvency,\[24\] but evidence of concealed assets is inadmissible.\[25\] A creditor having obtention of the court. In re Plymouth Cord- p. 762. If he fails to do so the allegation ase Co. \[C. C. A.\] 135 F. 1009. **19.** In re McGowan, 134 F. 498. See McGowan v. Knittel \[C. C. A.\] 137 F. 453, where the first case is reversed on other grounds, this one being reaffirmed. In re American Tub. Co. \[Okl.\] 79 P. 762. Where a respondent corporation appears at the hearing by its president, who with other witnesses is examined, and certain books were produced, but neither the testimony of the witnesses nor the matters shown by the books disclose the financial condition of the respondent, such acts are not a commanended. In re White, 135 F. 19 tained the appointment of a receiver on the ground of insolvency he is estopped to deny the debtor's insolvency when other creditors institute bankruptcy proceedings based on the appointment.\[26\] Cases dealing with the sufficiency of the evidence are shown in the notes.\[27\]

Notice to creditors of a proposed dismissal of the proceedings is generally essential,\[28\] but the creditors being informed of the pendency of the proceedings and not appearing and asking to intervene an order of dismissal for want of sufficient petitioners will not be withheld until the clerk can notify such creditors.\[29\]

The adjudication does not absolve the bankrupt from any agreement, contract, or liability,\[30\] but, as against a creditor acquiescing in it and proving his claim, it is res judicate on the question of the bankrupt's residence.\[31\] Creditors knowingly failing to plead they are not entitled to have the judgment set aside to permit them to plead unless they show satisfactory reasons for their delay.\[32\] A default judgment being rendered against the alleged bankrupt, an application to set it aside should be made to the district court.\[23\]

Costs will be allowed to an alleged bankrupt, on dismissal of an involuntary petition against him, only after the filing of his bill of costs with the clerk and notice to the petitioning creditors.\[34\]

\_Exemption of bankrupt from arrest.--\_The provision of the bankruptcy act which exempts a bankrupt from arrest upon civil process except in certain enumerated cases applies to the detention of a bankrupt taken into custody before bankruptcy,\[35\] and in such case he may be discharged on a writ of habeas corpus.\[36\] The bankruptcy court may issue an order restraining the arrest of the bankrupt even though a petition for review of an order refusing to revoke a discharge is pending.\[37\]

**SS 6.**_Protection and possession of the property pending the appointment of trustee; receivers.\[28\]_--\_From the filing of the petition until the adjudication, the property rights of the debtor are in abeyance,\[38\] and upon the adjudication, title to the bankrupt's property passes from him at once, and is conditionally vested in the court pending the appointment of a trustee, or until the estate is finally closed or abandoned by the creditors.\[40\] The court may, in its discretion,\[41\] when necessary to preserve the estate,\[43\] appoint a receiver. Such receiver is a mere custodian

ment that upon his paying certain judgg- **32.** In re Urban & Suburban Realty ments and claims, the property was to re- **33.** In re Imperial Corporation, 133 F. Interset was an asset valued at $20,000, 73. Is inadmissible upon the issue of his in- **34.** In re Haeseler-Kohlhoff Carbon Co., solvency. In re McGowan, 134 F. 498. But see McGowan v. Knittel \[C. C. A.\] 187 F. 453, where case is reversed on other grounds. **26.** In re Spalding, 134 F. 507. **27.** An adjudication of bankruptcy against a corporation held warranted by the evidence. In re Imperial Corporation, 133 F. 13. **28.** In re Plymouth Cordage Co. \[C. C. A.\] 135 F. 1000. **29.** In re Tribelhorn \[C. C. A.\] 137 F. 33. **30.** Watson v, Merrill \[C. C. A.\] 136 F. 359. Where there was no rent due at the time of the filing of a petition against the lesee, the adjudication does not constitute a breach at that time of the covenant of the bankrupt to pay rents occurring thereafter. Id. **31.** In re Hintze, 134 F. 141.

of the property 43 and cannot exercise the powers of a trustee, but he may take appropriate measures incident to the protection of the property in his custody, though he is not authorized, and the bankruptcy court cannot properly direct him, to take possession of property held and claimed adversely by third parties, or to institute actions for the recovery of property claimed to belong to the bankrupt's estate.\[44\] The order of appointment may confer power to borrow money.\[45\] The appointment of a receiver after a fire does not impair or destroy in any way the title or interest or possession of the bankrupt so as to render an insurance policy void under a provision prohibiting any change in the interest, title, or possession of the insured.\[46\] The order appointing a receiver should provide that he should not take possession of the property until the proper bond is filed,\[47\] and failing in this regard it should be vacated though another creditor has applied for a receiver and filed a bond conditioned to pay all expenses and damages if his petition be dismissed.\[48\]

SS 7. _Creditors' meetings; appointment of trustee; removals.\[49\]_--Neither the bankrupt nor his attorney should be permitted to have any influence in the election of the trustee,\[50\] but where the relation of attorney and client is limited to the filing of the petition, the attorney may accept claims, sent to him thereafter without his solicitation or the procurement of the bankrupt, and vote on such claims for the election of a trustee.\[51\] The requirement that the trustees shall be elected at the first meeting is directory only.\[52\] A "creditor" within the meaning of the bankruptcy act is one who "owns" a claim, and the owner of a beneficial interest in a claim does not own the claim itself,\[53\] hence a committee of creditors holding assigned claims in trust for the assignors is only entitled to one vote.\[54\] The choice of a trustee by the creditors is subject to the approval of the referee or judge, and a trustee chosen by the creditors is removable by the judge.\[55\] A trustee being selected by the vote of a majority in number and amount of those present at the creditors' meeting, the referee cannot appoint a different trustee merely because he does not approve of the creditors' selection,\[56\] nor is the fact that the trustee chosen is hostile to the bankrupt,\[57\] or had, as receiver, unreasonably delayed to account for the funds in his hands,\[58\] ground for the referee to refuse to confirm his selection. That the trustee affected a composition by means of fraudulent misrepresentations is ground for his removal.\[59\] The referee has no power to fill a vacancy in the office of trustee, unless the creditors, after a meeting has been called by the referee, fail to fill the same.\[60\] A bankruptcy court cannot aid the administration of the estate of person adjudicated a bankrupt in another district by ap pointing an ancillary trustee.\[91\] As a general rule a successor of a deceased trustee will only be appointed where necessary for the administration of the estate.\[92\]

SS 8. \_Compositions.\[63\]--The approval of a composition is discretionary,\[64\] and it will not be granted if the composition is detrimental to creditors\[65\] or if the bankrupt has been guilty of any of the acts or failed to perform any of the duties which would be a bar to his discharge.\[66\] It is essential that a composition provide for the payment of all taxes legally due and owing.\[67\] The confirmation of a composition can only be set aside upon the application of parties in interest,\[68\] and leave to file a petition to set aside such confirmation should be refused only when the petition shows on its face that the petitioner is not entitled to relief.\[69\] That the composition was effected by the fraudulent statements of the trustee is ground for setting it aside.\[70\] A judgment confirming a composition is a judgment granting a discharge\[71\] and is reviewable only by appeal.\[72\] An order of confirmation may be proved by a certified copy under the seal of the clerk of the court.\[73\]

SS 9. \_Property and rights passing to trustee. A. Particular kinds of property and rights.\[74\]--Property in a stock exchange seat,\[75\] goods bought but not paid for, title having passed,\[76\] choses in action belonging to the bankrupt at the date of the adjudication,\[77\] a copyright held under an absolute assignment from the author to the bankrupt,\[78\] and the interest of a bankrupt mortgagor in the property mortgaged,\[79\] pass to the trustee. Remainders\[80\] and legacics\[81\] being vested at the time of the adjudication pass to the trustee of the remaindermen or legatees. The trustee is vested by operation of law with the title to all "documents relating to the bankrupt's property."\[82\] The word "document" includes all ruminants of title, contracts, securities, bills of exchange, bills receivable, notes,

61. In re Tybo Mining & Reduction Co., 132 F. 697.

01. Where bankruptcy proceedings were instituted in 1868 and the assignee died in 1869, a successor to such assignee will not be appointed to enable the grantee of a feed executed by the bankrupt in 1860 to save to reform the deed so as to include land alleged to have been omitted by mistake. In re Haskell's Estate, 134 F. 309.

01. See 3 C. L. 445.

01. In re Woodend, 135 F. 593.

01. Where bankrupt formed a corporation to carry on business and offered to issue stock for the payment of creditors, he retaining the control of the business, held the composition would not be ratified. In re V Woodend, 133 F. 593.

01. Bankrupts failing to keep or withholding books for the purpose of concealing their true financial condition, confirmation will be refused. In re Olaman, 134 F. 681. Where sole explanation of loss of $30,000 by tailoring firm was both work and a tallor's strike, no books being offered in evidence except two bank books, held composition would be refused. Id. See, also, 3 C. L. 446, n. 74.

01. In re Flynn, 134 F. 145. Taxes assessed before, and payable after, the adjudication are "legally due and owing" on the day they are assessed. Id.

01. In re Allen B. Wrisley Co. \[C. C. A.\] 133 F. 388.

01. In re Allen B. Wrisley Co. \[C. C. A.\] 133 F. 388. A creditor who has assigned his claim and received value therefor is not a "party in interest" though the assignee.

01. In re Tybo Mining & Reduction Co., 132 F. 697.

01. Where bankruptcy proceedings were instituted in 1868 and the assignee died in 1869, a successor to such assignee will not be appointed to enable the grantee of a feed executed by the bankrupt in 1860 to save to reform the deed so as to include land alleged to have been omitted by mistake. In re Haskell's Estate, 134 F. 309.

01. See 3 C. L. 445.

01. In re Woodend, 135 F. 593.

01. Where bankrupt formed a corporation to carry on business and offered to issue stock for the payment of creditors, he retaining the control of the business, held the composition would not be ratified. In re V Woodend, 133 F. 593.

01. Bankrupts failing to keep or withholding books for the purpose of concealing their true financial condition, confirmation will be refused. In re Olaman, 134 F. 681. Where sole explanation of loss of $30,000 by tailoring firm was both work and a tallor's strike, no books being offered in evidence except two bank books, held composition would be refused. Id. See, also, 3 C. L. 446, n. 74.

01. In re Flynn, 134 F. 145. Taxes assessed before, and payable after, the adjudication are "legally due and owing" on the day they are assessed. Id.

01. In re Allen B. Wrisley Co. \[C. C. A.\] 133 F. 388.

01. In re Allen B. Wrisley Co. \[C. C. A.\] 133 F. 388. A creditor who has assigned his claim and received bankbooks, account books, and all papers and books relating to the bankrupt's business.\[83\] The right of a mortgagor to rents and profits aceruing up to the time that the mortgage enters passes to the former's trustee.\[84\] The inter-est of a bankrupt lessee in the demised premises being intact at the time of the adjudication the right of possession passes to the trustee.\[85\] The trustee takes title to insurance policies, on the life of the bankrupt, which have a cash \*\* or collateral loan and paid-up insurance \*\[7\] value even though they have no cash surrender value, and this is especially true if the insurer voluntarily agrees to pay a certain sum for the policy, on condition that it receive a release signed by the insured and the beneficiary,\[88\] and in such case the trustee is entitled to sell the bankrupt's interest and to have the bankrupt assign the same.\[89\] But a policy which has no actual value as an asset does not pass to the trustee.\[90\] Property held by the bankrupt under a conditional sale, void for want of record, passes to the trustee.\[91\] In Texas community property passes to the trustee of the husband.\[92\] Trust funds, when kept separate from the bankrupt's general funds,\[93\] or money paid the bankrupt by mistake,\[94\] form no part of the bankrupt's estate. Salary of a public officer of a state earned but not payable at the time of his filing a petition in bankruptcy does not pass to his trustee.\[95\]

_Property fraudulently conveyed.\[96\]_--The trustee takes title to \*\[7\] property fraudulently \*\[88\] conveyed by the bankrupt,\[99\] unless the transferee is a bona fide !\[

83. In re Hess, 134 F. 109.

01. In re Chase, 133 F. 79.

01. So held where prior to the bankruptcy of the tenant the landlor took no step to regain possession of the premises for rent in arrears. In re Adams, 134 F. 149.

01. Gould v. New York Life Ins. Co., 132

01. In re Coleman \[C. C. A.\] 136 F.

01. Let 1898, $,$$ 70, subd. 5, doe shot change the above rule. Id.

01. Beneficary was insured's wife. In re Coleman IC. C. A.\] 136 F. 818.

01. In re Coleman IC. C. A.\] 136 F. 818.

01. Gould v. New York Life Ins. Co., 132

01. Werep policy was of no actual value at time of adjudication but before discharge bankrupt died, held did not pass to the trustee as an asset. Id. Before a trustee can lay his hands on a policy of insurance, or the proceeds of it, if paid to another than the bankrupt, as being as assets of the estate to be distributed among the bankrupt's creditors, he must be able to prove that the policy belonged to the bankrupt's estate. Eason v. bankrupt, having to him some value- either a cash surrender value payable to himself, his estate, or personal representatives, or an actual value of benefit to creditors. Carr v. Myers \[Pa.1 80 A. 913.

91 In re Dunn Hardware & Furniture Co., 132 F. 719: In re Smith, 132 F. 301.

92. Collins v. Bryan \[Tex. Civ. App.\] 83 S. V. 432. May recover community funds used by the husband in the election of improvements on the wife's separate property, to be paid out of the proceeds of the sale of the improvement. Id. And he is only entitled to interest on the amount the community contributed. Id.

01. In the Tart \[C. C. A.\] 133 F. 511.

01. Trustee cannot recover such funds from a third person. Jackman v. Eau Claire Nat. Bank \[Vis.\] 104 N. W. 98.

01. In re Deborty, 135 F. 432.

01. See 3 C. L. 448.

01. Shreck v. Iranlon \[Neb.\] 104 N. W.

01. Annis v. Butterfield, 99 Me. 181, 58 A.

01. See also, Tucker v. Denico \[R. I.\]

01. A. 920.

Whether a trustee in bankrupty can sell estate which had previously been conveyed by the bankrupt in fraud of his creditors, until he has obtained an ad-judication of the fraud, and reduced the estate to possession, quare. If the trustee cannot give title to the premises by the ded ded the deded conveyed only a mere right of action to attack the fraudulent conveyance and is not enforceable. Annis

98. Fraud, actual or constructive, is a necessary element to give the trustee a right of action. Bush v. Export Storage

01. In re Coleman \[C. C. A.\] 136 F. 918. A bona fide safe for fair value or in the discharge of a valid lien another than the bankrupt, as being as- made prior to the institution of bankrupty proceedings cannot be annulted by the trustee, and the property sold is no part of the bankrupt's estate. Eason v.

01. Harnd, actual or constructive, is a necessary element to give the trustee a right of action. Bush v. Export Storage

01. In re Dunn Hardware & Furniture Co., 132 F. 719: In re Smith, 132 F. 301.

01. Collins v. Bryan \[Tex. Civ. App.\] 83 S. V. 432.

## 5 Cur. Law. BANKruptry SS 9A.

purchaser for value ${}^{*}$ prior to the date of the adjudication.${}^{*}$ The trustee, to the exclusion of creditors,${}^{*}$ may recover such property or its value ${}^{*}$ if the conveyance could have been avoided by any creditor of the bankrupt,${}^{*}$ other than one whose right is in the nature of a mere lienor,${}^{*}$ and it is not essential that the creditors be in position to attack the transfer.${}^{*}$ The action being brought under act 1898, SS 70e, it is immaterial that the transfer was made by the bankrupt more than four months before the filing of the petition,${}^{*}$ though the contrary is true when $ 67e is sought to be applied.${}^{*}$ The term "fraudulent conveyances" as here used includes all conveyances which are fraudulent by the common law, by statute law and by any other recognized rule of law of the state.${}^{*}$ The expression "with intent to hinder, delay, or defraud" creditors, is used in the bankruptcy act with the meaning given to it in statutes declaratory of the common law against fraudulent conveyances;${}^{*}$ and the mere fact that an insolvent debtor pays one creditor in full is not of itself evidence of an intention on his part to hinder, delay, or defraud other creditors,${}^{*}$ In order to set aside a sale by the insolvent the burden is on the trustee to show fraud.${}^{*}$ Subsection 4 of section 70a and section 70e may be read in connection with section 1, subsections 23 and 25.${}^{*}$

## 6 Bush v. Export Storage Co., 136 F.

F. Fisher & Co. \[N. J. Err. & App.\] 60 918. A mortgage given to secure antecedent debts is not given for "value" within the meaning of SS 70, c. e. Empire State Trust Co. V. Trustees of W.m. F. Fisher & Co. \[N. J. Err. & App.\] 6A 940. Under SS 67e, a transfer for a past consideration is void. Raley v. Raymond Bros. Clarke Co. \[Neb.\] 103 N. W. 57. Gifts made by a bankrupt to his wife while he is insolvent and while he is contemplating going to some bankruptcy which he does shortly afterwards are void and recoverable by his trustee. Wiley v. McBride \[Ark.\] 85 S. W. 84. One loaning money to the wife of a bankrupt to pay a mortgage on the bankrupt's homeseta, and receiving a note made by the husband and payable to the vifle, held a purchaser in good faith and for a present fair consideration within the meaning of Act 1898, SS 67e. Clarke v. Sharman \[Iowa\] 108 N. W. 88. An issue in a suit by the trustee to recover property alleged to have been fraudulently conveyed failing to submit as an element of the purchaser's good faith that he paid a present fair consideration for the goods, was improper. Piedmont Sav. Bank v. Levy \[N. C.\] 50 S. E. 657.

F. Bush v. Export Storage Co., 136 F.

F.

M. Moore, Schafer Shoe Mfg. Co. v. Billings \[Or.\] 80 P. 422. A creditors' bill in-stituted subsequent to an adjudication in bankruptcy against the debtor to set aside a chatted mortgage and a sale of a stock of merchandise does not give rise to a lien, in favor of the creditor filing the same on the goods sought to be reached. Id.

S. Bush v. Export Storage Co., 136 F.

F. Bush v. Export Storage Co., 136 F.

F.

F. Fisher & Co. \[N. J. Err. & App.\] 60 918. A mortgage given to secure antecedent debts is not given for "value" within the meaning of SS 70, c. e. Empire State Trust Co. V. Trustees of W.m. F. Fisher & Co. \[N. J. Err. & App.\] 6A 940. Under SS 67e, a transfer for a past consideration is void. Raley v. Raymond Bros. Clarke Co. \[Neb.\] 103 N. W. 57. Gifts made by a bankrupt to his wife while he is insolvent and while he is contemplating going to some bankruptcy which he does shortly afterwards are void and recoverable by his trustee. Wiley v. McBride \[Ark.\] 85 S. W. 84. One loaning money to the wife of a bankrupt to pay a mortgage on the bankrupt's homeseta, and receiving a note made by the husband and payable to the claims of the creditors to judgment. Id. for a present fair consideration within the meaning of Act 1898, SS 67e. Clarke v. Sharman \[Iowa\] 108 N. W. 88. An issue in a suit by the trustee to recover property alleged to have been fraudulently conveyed failing to submit as an element of the purchaser's good faith that he paid a present fair consideration for the goods, was improper. Piedmont Sav. Bank v. Levy \[N. C.\] 50 S. E. 657.

F. Bush v. Export Storage Co., 136 F.

F.

F. Bush v. Export Storage Co., 136 F.

F. Bush v. Export(SS 9) _B. Nature of trustee's title in general._\[16\]--The trustee is an officer of the court and stands in a fiduciary relation to creditors,\[17\]. In all cases unaffected by fraud \[18\] or some positive provision of the bankruptcy act,\[19\] the trustee, upon his appointment and qualification,\[20\] is vested, by operation of law,\[21\] with the same, but no better title than the bankrupt had \[22\] at the date of the adjudication \[23\] to all nonexempt \[24\] property of the bankrupt, and the latter if he asserts a right to hold and possess such property against the trustee is in contempt of court.\[25\] The rights of the trustee to property are not enlarged by the fact that such property is listed and passed to the trustee as part of the bankrupt's assets.\[26\] The trustee has all the powers which the bankrupt might have exercised for his own benefit,\[27\] and may assume or renounce executory contracts of the bankrupt as he may deem for the best interest of the estate,\[28\] and may recover any of the bankrupt's property which a creditor might have recovered,\[29\] but in such an action he must recover on the strength of his own title.\[30\] But notwithstanding any provisions which are found in the bankruptcy act relative to the right of the trustee to avoid partic 5 Cur. Law. BANKruptCY $ 9C. 381

ticular transactions of the debtor, yet the whole act must be read in the light of the predominating purpose of congress with reference to the distribution of assets, namely, to prevent any inequality of payment among the unsecured creditors.\[81\] The trustee may pay off a mortgage on the property and have the mortgage assigned to himself or to a person designated by him, although it is not in process of foreclosure, where it is shown that so doing will result beneficially to the estate,\[82\] and the court of bankruptcy has jurisdiction on his petition to compel the mortgage to accept payment and execute the assignment.\[83\] As to whether the trustee is a purehaser or not there is a conflict.\[44\]

(SS 9) _C. The trustee takes title free from liens_\[85\] acquired by legal proceedings \[36\] in a state or Federal court \[37\] within four months prior to the filing of the petition \[85\] in voluntary or involuntary proceedings; \[38\] as by garnishment,\[40\] by execution issued on judgment,\[41\] or by proceedings supplementary thereto,\[42\] upon property exempt as against the trustee,\[43\] and it being conceded that part and possibly all of the property attached is exempt from the bankruptcy proceedings it may be held under the lien until it is determined what part if any passed to the trustee.\[44\] A lien acquired within time, being otherwise valid, it will be protected if it is recorded within the statutory time although within four months of the filing of the petition \[45\] or after the adjudication.\[46\] Under the bankruptcy act, liens given or accepted in good faith, and not in contemplation, or in fraud, of the act,\[47\] and for a present consideration,\[48\] which have been recorded according to law, are valid. The requirement as to recordation under this provision is satisfied if the instrument be recorded before the commencement of the bankruptcy proceedings.\[49\] Liens and the rights of parties thereto will be construed in bankruptcy proceedings with reference to the laws of the state where the proceeding

40. Cavanaugh v. Fenley \[Minn.\] 103 N. W. 711. Though the bankrupt made no reference in his schedules to the fact that the Indebtedness had been garnished. Id. A.\] 134 F. 43, aff. 138 F. 711; In re Beede, 187 F. 441. For cases pro and con, see 3 157. C. L. 450, n. 41. 35. See 3 C. L. 450. 36. Subjecting the income of a trust fund to the payment of debts under N. Y. Code Civ. Proc. $ 1391, as amended by Laws 1903, p. 1071, c. 46, is acquiring a lien through legal proceedings. In re Tiffany, 133 F. 793. A suit under Code W. Va. 1899, c. 74, $ 2, brought within four months of the filing of the petition in bankruptcy 18 N. W. 408.

01. Attachment proceedings. Jewett gros. v. Huffman \[N. D.\] 103 N. W. 408. The fact that the warrant of attachment has been leveled does not authorize the trustee to intervene in the action in which the attachment issued for the purpose of obtaining possession of the attached property. Id.

01. Mechanic's lien. In re Grissler \[C. C. A.\] 136 F. 754. Contra: See 3 C. L. 451, n. 70.

01. In re Lillington Lumber Co., 132 F. 886.

01. Crim v. Woodford \[C. C. A.\] 136 F. 84. That borrower, a man of excellent reputation and engaged in large contracts had overdrawn his bank account, does not charge lender with knowledge of his insolvency. Id.

01. Crim v. Woodford \[C. C. A.\] 136 F. 34.

01. In re Clifford, 136 F. 475.

is pending and the liens created.\[50\] The trustee takes subject to liens, legal or equitable, valid as to creditors,\[51\] but free from liens invalid as to creditors,\[52\] as for want of recordation.\[53\] Under the laws of most states the trustee takes free from unrecorded conditional sales.\[54\] Section 67, subds. "a" and "b" apply to judgments obtained by creditors of the bankrupt subsequent as well as prior to adjudication, in cases where the action to procure the judgment was commenced prior to the institution of bankruptcy proceedings.\[55\] A personal claim against a bankrupt's estate does not constitute a lien.\[56\] Creditors having a valid lien may enforce the same without regard to the bankruptcy proceedings,\[57\] but the property subject thereto not being in the actual custody of another court the lien must be enforced in the bankruptcy court.\[58\] The filing of the petition is a seizure for the benefit of the bankrupt's creditors; it is a caveat to all the world, and, in effect, an attachment and injunction.\[59\] The bankruptcy act only renders liens void as against the trustee and those claiming under him.\[60\] When beneficial to the estate, a lien voidable as against the trustee will not be dissolved but the trustee will be subrogated to the rights of the lienor and empowered to enforce the lien.\[61\] The court ordering attachment liens preserved for the benefit of the estate, it is proper for it to award the attaching creditors reasonable attorney's fees.\[62\] Under the bankruptcy act Congress may impair the obligation of contracts.\[63\]

50. Eason v. Garrison \[Tex. Civ. App.\] \[ of a sheriff who has a valid lien thereon $2 S. W. 800. Section 67a refers only to the validity of lien claims under the law than four months prior to the filing of the state wherein the bankruptcy proceedings are pending. Murphy v, W. T. Murphy & Co. \[Iowa\] 101 N. W. 488.

01. Eason v. Garrison \[Tex. Civ. App.\] \[ of a sheriff who has a valid lien thereon $2 S. W. 800. Section 67a refers only to the validity of lien claims under the law of the state wherein the bankruptcy proceedings are pending. Murphy v, W. T. Murphy & Co. \[Iowa\] 101 N. W. 488.

01. Eason v. Garrison \[Tex. Civ. App.\] \[ of a sheriff who has a valid lien thereon $2 S. W. 800. A lien acquired without fraud for a valuable consideration, valid as against the bankrupt, and antedating by four months the bankruptcy proceedings, is good as against general creditors represented by the trustee whether recorded or not. Id. A vendor of goods, sold the bankrupt, having retained possession, the trustee takes subject to the vendor's lien. In re Manuel J. Portuondo Co., 135 F. 592. Drafts operating as an equitable assignment of certain rents pr to tanto, they constitute a lien on the funds in the hands of the trustee. In re Oliver, 132 F. 588.

01. Receivers of Virginia Iron, Coal & Coke Co. v. Staake \[C. C. A.\] 138 F. 717; In re First Nat. Bank \[C. C. A.\] 135 F. 62.

01. The holder of an instrument who might have had a lien if he had recorded it before bankruptcy cannot acquire such lien by recording it thereafter. So held as regards a Pennsylvania mortrage. In re Lukens, 138 F. 188.

01. In re Smith, 132 F. 301; In re Dunn Hardware & Furniture Co., 132 F. 719; In re Press-Post Printing Co., 134 F. 998; In re Rasmussen's Estate, 136 F. 704. Under Ky. St. 1903, $ 496; In re Ducker, 133 F. 771; In re Ducker \[C. C. A.\] 134 F. 43, afg. 133 F. 771. Under Rev. St. Ohio, $ 4155-2. Dolle v. Cassell \[C. C. A.\] 135 F. 52.

01. In re Beebe, 138 F. 441.

56 Eason v. Garrison \[Tex. Civ. App.\] \[ of a sheriff who has a valid lien thereon $2 S. W. 800.

57. Hillyer v. Le Roy, 179 N. Y. 369, 72 N. S. 237.

01. In re Vasstbinder, 132 F. 718. Trustee may sell the property to the exclusion $50.

01. Eason v. Garrison \[Tex. Civ. App.\] \[ of a sheriff who has a valid lien thereon $2 S. W. 800. Section 67a refers only to the validity of lien claims under the law of the state wherein the bankruptcy proceedings are pending. Murphy v, W. T. Murphy & Co. \[Iowa\] 101 N. W. 488.

01. \[(SS 9)\] _D. Whether chatitel mortgages\[44\]_ executed by the bankrupt are valid liens must be determined by the law of the state where they were executed.\[65\] The trustee has no greater right to attack a chattel mortgage executed by the bankrupt than the creditors represented by such trustee had at the time of the adjudication.\[66\] (SS 9) \_E. Preferential transfers\[67\] and payments.\[68\]--In order to constitute a preference, there must have been a transfer \[69\] by the bankrupt \[70\] while insolvent,\[71\] within four months prior to the filing of the petition \[72\] to a creditor \[73\] or some one \[11\] his behalf,\[74\] the party so receiving it \[75\] or the one to be benefited thereby \[76\] having reasonable cause to believe that a preference was thereby intended.\[77\] He

01. See 3 C. L. 452. \[(C. C. A.)\] 45. In re First Nat. Bank \[C. C. A.\] 135 \[(C. C. A.)\] 45. In re Reed, 138 F. 441; Thompson v. Fairbanks, 26 S. Ct. 306. Massachusetts' rule considered. Humphrey v. Tatman, 25 S. Ct. 567. \[(C. C.)\] 66. Skilton v. Coddington, 93 N. X. S. 460. \[(C. C.)\] 67. See 3 C. L. 453. See, also, Tiffany, Real Property, p. 1117. \[(C. C. A.)\] 68. See 3 C. L. 457. \[(C. D.)\] 69. Depositing money In a bank in the due course of business is not a transfer within the meaning of the bankruptcy act. Haegeger v. First Nat. Bank (Min.) 103 N. W. 216. The enforcement of a lien by the taking possession, with the consent of the mortgagor, of after-acquired property covered by a valid mortgage, is not a conveyance or transfer within the meaning of the bankruptcy law. Thompson v. Fairbanks, 25 S. Ct. 306. The mortgage having been executed more than four months before the filing of the petition, the trustee's rights are not enlarged by the existence at the time the mortgage took possession of an attachment and secured chattel mortgage which were both dissolved by the bankruptcy proceedings. Id. \[(C. C.)\] 70. Where a debtor transferred his property to a corporation formed to carry on the business for the benefit of creditors, and such corporation was thereafter declared a bankrupt, but no bankruptcy proceedings were instituted against the debtor, held not a conveyance in fraud of the bankruptcy law. In re A. L. Robert-shaw Mfg. Co., 133 F. 556. \[(C. C.)\] 71. In re Clifford, 136 F. 475; Hastings v. Fithian (N. J. Err. & App.) 60 A. 350; Capital Nat. Bank v. Wilkerson \[(Ind. App.)\] 72 N. E. 247; Roney v. Conable, 125 Iowa, 664, 101 N. W. 505; Wilkinson v. Anderson-Taylor Co. \[(Unkh)\] 79 P. 46; Edwards v. Caronclet Milli Co., 108 Mo. App. 275, 83 S. W. 764. On an issue as to whether a debtor was insolvent at the time he gave a certain transfer, the fact that late in the afternoon of the day he made the transfer he conveyed nearly all his property, thereby rendering himself insolvent, did not, on the theory that fractions of a day are not to be considered, render him insolvent at the time of the alleged transfer. Upon v. Mt. Morris Bank, 92 N. Y. S. 1101. \[(C. C. A.)\] 72. Hastings v. Fithian \[(N. J. Err. & App.)\] 60 A. 350; Wilkinson v. Anderson-Taylor Co. \[(Unkh)\] 79 P. 46. Order presented day before filing of petition held not to constitute an equitable assignment of the fund as of its date and hence to constitute a preference. Johnston v. Huff, Andrews & Moyler Co. \[(C. C. A.)\] 133 F. 704. A feed of trust executed more than four months before the filing of the petition held valid. In re Porterfield, 138 F. 193. A transfer made more than four months prior to the filing of the petition held valid. Little v. Holley-Brooks Hardware Co. \[(C. C. A.)\] 133 F. 874. Bankr. Act 1898, $ 3b, applies only to acts of bankruptcy; it does not refer to preferences. Id. \[(Unkh)\] 78. Wilkinson v. Anderson-Taylor Co. \[(Unkh)\] 79 P. 46. A surety is a creditor. Horstman v. Little \[(Tex. Civ. App.)\] 88 S. W. 286; Crandall v. Coats, 133 F. 965. \[(T. C.)\] 74. See 3 C. L. 453. n. 88. \[(T. C.)\] 75. In re Clifford, 136 F. 475. The statement of claim alleging that defendant's agent had reasonable cause to believe the adaptor insolvent, an anfAavati of defense legging that need not have actual knowledge of the debtor's insolvency,7 though having reasonable ground to believe the debtor insolvent,70 he is chargeable with notice of intent to prefer.80 A preference must have actually resulted,81 the effect thereof being to prefer one creditor over others of the same class.82 Whether an intent to

conts in determining the force and effect was unable to pay, but paid SS,000 on ac- to be given to the phrase "reasonable cause to believe," found in the act of 1867, apply with each other, the creditor relying on a equality in considering the meaning of this

merenamic agency's report, large credit bembras in the act of 1898. Stevenson v.

ing given and large payments being made, Milliken, Tomlinson Co., 99 Me. 320, 59 A.

472; Blanchkender v. Charleston State

casse to believe the debtor insolvent. Id. Bank, Ill. App. 393.

"Illustrations: A creditor knowing that

more than sufficient to pay his debts and money with which loan was repaid after

there was no rumor of his insolvency, held, frequent urging was obtained by the

the creditor did not have reasonable cause

debtor by a sale of his stock of merchant-

to believe him insolvent. Edwards v. Car-

dis, and that such sale put him out of

odited Mill. Co., 108 Mo. App. 275, 83 S. W.

business had reasonable cause to believe

764. Creditors receiving back goods bought

the debtor insolvent. Thomas v. Adelman,

and knowing that the debtor could not pay

136 F. 973. A creditor receiving payment

his debts, held to have reasonable cause

from a second transferee of property know-

to believe the debtor insolvent. In re An-

ing that such payment was the considera-

trews, 15F. 599. Evidence held sufficient

tion of the transfer and that the debtor was

to charge the preferred creditors with no-

insolvent, held to have received a prefer-

ence. Horstman v. Little \[Tex. Civ. App.\]

v. Coats, 133 F. 965. Evidence held insulvent

88 S. W. 286. Where, at the time of the

client to show reasonable cause to believe

transfer, the creditor knew of the exist-

lebtor insolvent. Stevenson v. Milliken-

ence of judgments against the debtor, and

Tomlinson Co., 99 Me. 320, 59 A. 472.

that the latter had been unable to pay various

ous notes and drafts, and was allowing

or's insolvency, a preference will be pre-

sight drafts to be dishonored, and was fall-

sumed. Raley v. Raymond Bros. Clarke Co.

ing to pay other obligations and accounts

as they became due, held creditor had re reac-

81. Unrecorded chatted mortgage being

sonable cause to believe that a preference

was intended. Christopherson v. Olesen

stitute a preference, though recorded with

\[S. D.\] 102 N. W. 858. Evidence held insulvent

in the four-month period. Texas Rev. St.

client to show that creditor had reasonable

1895, art, 3825, considered. Meyer Bros,

cause to believe that debtor intended a

Drug Co. v. Pipkin Drug Co. \[C. C. A.\] 136

preference. Turner v. Fisher, 138 F. 594;

F. 396. Where one agreed with an

Capital Nat. Bank v. Wilkerson \[Ind. App.\]

172 N. E. 247.

78. See 3 C. L. 458, n. 3.

01. What constitutes reasonable ground to

behave debtor insolvent This is ordinarily

retention of such sums by the employer

a question of fact (Kauffman v. Tredraw),

within four months of the Hling of the petr-

25 S. C. 43; Turner v. Fisher, 138 F. 594;

Christopherson v. Olesen \[S. D.\] 102 N. W.

685. Yet, where the facts as to the debtor-

employer. Western Tie & Timber Co. v.

or's financial condition are clearly established

Ished by a special verdict, the court may,

In those states where a chatted mortgage by taking possession of after-ac-

was charged with such knowledge (Chris-

quired property brings it within the opera-

tobberson v. Olesen \[S. D.\] 102 N. W. 858).

It is not enough that a creditor has some

the mortgage is entitled to possession at

cause to suspect the insolvency of his

abtor, but he must have such a knowledge

to the mortgage within four months of

edge of facts as to induce a reasonable

belief of his debtor's insolvency. Turner v. Fisher, 133 F. 594;

Newfilt preference, the mortgage having

been executed more than four months before

Tomlinson Co., 99 Me. 320, 59 A. 472. A cred-

itor having knowledge of facts respecting

his debtor's insolvency, sufficient to put an

ordinary man on inquiry, is chargeable

with knowledge of the facts which such

http://www.linked.org/

422, 72 N. E. 119; Wilkinson v.

## 5 Cur. Law. BANKruptcy $ 9E.

prefer on the part of the bankrupt is essential is the subject of conflicting decisions.\[88\] The trustee cannot avoid a transfer to a bona fide purchaser \[84\] for a present fair consideration.\[88\] The phrase "ground to believe" is synonymous with "cause to believe."\[89\] Whether a given transaction in the form of a recordable instrument constitutes a preference must be determined by the facts existing at its inception, and not at the time of its record,\[97\] if in fact a preference when executed it may be avoided by the filing of a petition in bankruptcy by or against the maker thereof within four months after its record; but if it was not originally a preference, a failure to record it until the maker became insolvent will not make it one.\[88\] The renewal of a prior valid mortgage within the four months period does not constitute a preference.\[89\] Where a creditor is given security more than four months before the filing of the petition, the subsequent execution of a more formal instrument within the four months period is not a preference,\[90\] providing that the giving of the first security is not void as to creditors.\[91\] It is not essential that the property actually passed into the hands of the defendant.\[92\] It is no defense that the property was applied to a guaranty of the indebtedness.\[93\] A preferential transfer is voidable, not void,\[94\] and the trustee has the exclusive right to take advantage of its invidity;\[95\] it cannot be asserted by creditors whose debts were created after the bankrupt's discharge.\[96\] The four months period of limitation as against a preferential transfer which is neither fraudulent nor requires recordation begins to run from

creditors being thereby obtained. Jackman $;$

- A creditor purchasing property with an understanding that the proceeds should be used to pay preferred claims, held not to constitute a preference. Eason v. Garrison $;$

- A creditor is secured does not prevent the transfer from being preferential as to other creditors. Horstman v. Little $;$

- A creditor purchasing property with an understanding that the proceeds should be used to pay preferred claims, held not to constitute a preference. Eason v. Garrison $;$

- A creditor is secured does not prevent the transfer from being preferential as to other creditors. Horstman v. Little $;$
  386 BANKruptCY SS 10A. 5 Cur. Law. the date of the transfer.97 In an action to recover a preference, the only question involved is whether the property was obtained in fraud of the bankruptcy act.98 An alleged preferred creditor is entitled to have the issue of the debtor's insolvency determined in an action to which he is a party, and is not bound by an adjudication of bankruptcy,99 and the burden is on such transferee to show that the transfer was made before the bankrupt suspended payment and without knowledge of the latter's insolvency.1 The preference being set aside, the preferred creditor is only required to return the property and the cash value of such of it as he' has sold,2 and is entitled to reimbursement for payments made in satisfying incumbrances.s New credits may be set off as against the amount recoverable from the creditor as a preference,4 and it is not necessary that the property representing such credits should remain a part of the debtor's estate until his adjudication in bankruptcy, or that it should be used in payment of preferred debts.8

Footnote 43: See S. C.

## 5 Cur. Law.

BANKRUPTCY SS 10E.

absence of consent,\[16\] it has no jurisdiction to so compel an adverse claimant to surrender property in his possession,\[17\] the remedy in such case being by an independent,\[18\] plenary\[19\] suit. But the bankruptcy court has jurisdiction to entertain proceedings to ascertain whether there is an adverse claimant.\[20\] The failure of adverse claimants to abandon their claims after their objections to the jurisdiction of the court have been overruled does not amount to a consent to the jurisdiction.\[21\] If the bankruptcy court has either actual or constructive possession of the property, the matter may be heard upon petition and answer.\[22\] Property being surrendered to a claimant by the receiver, the trustee cannot recover the same in summary proceedings.\[28\] The mere refusal of a person in possession to surrender the property does not constitute him an adverse claimant.\[24\] Sheriff seizing and holding property under an attachment issued out of the state court prior to the filing of the bankruptcy proceedings is an adverse claimant.\[28\] In a summary proceeding to recover property alleged to belong to the bankrupt, the questions of preference and of fraud cannot be considered.\[26\]

(SS 10) _E. Actions to collect or reduce the property to the trustee's possession.\[27\]_--\_The trustee may bring an action to recover property belonging to the estate, or to subject the income of trust funds to.the payment of the bankrupt's debts\[28\] in the state\[29\] or Federal\[30\] courts without express leave or direction of the bankruptcy court.\[31\] Such an action is not criminal in its nature because the defendant may be punished for contempt in case he fails to comply with the court's order.\[32\] The trustee simply seeking the recovery of a money judgment, the action is legal in its nature,\[33\] but it being necessary to have a written instrument set aside, the suit is in equity.\[34\] There is a conflict as to whether a previous demand is necessary in order to maintain an action at law to recover a preference,\[36\] but

In re Andre \[C. C. A.135 F. 736; In\] plevin issued from a state court after the re Hadden-Redge Co., 135 F. 886. Adverse petition in bankruptcy had been filed. In re claimant instituting a summary proceeding, Briskmann, 132 F. 201. This is not changed the court of bankruptcy has jurisdiction to

by a provision in an order consolidating determine the rights of the claimant. In

with such involuntary proceedings the pro-re D. H. McBride & Co., 133 F. 285. An in-

eeedings on a voluntary petition subse-

junction against the sale of mortgaged

quantity filed that it should be "without

property being dissolved upon the mort-

pegence to interested parties." 1d.

ggaseous consenting to the payment of the

23. Hinds v. Moore \[C. C. A.134 F. 321.

proceeds of a sale of the property to a cer-

24. 25. In re Andre \[C. C. A.135 F. 736.

tahn bank to be held subject to an order

26. Where money sought was claimed by

of court, the court can determine the vagu-

ddfendant to have been applied by him in

Idity of the mortgage in any appropriate

payment of his salary and in accordance

from of proceeding. In re Noel, 137 F. 694,

with custom, held, trustee could not re-

17. In re Andre \[C. C. A.135 F. 736.

over. In re Lebrecht, 135 F. 878.

In re New York Car Wheat Works, 132 F. 27. 28. S C. L462.

203; First Nat. Bank v. Chicago Title &

25. N. Y. Code Civ. Proc. $ 1391, as

Trust Co., 26 S. C. L463. A court of bank-

ranty, after adjolting, In a proceeding be-

gump by the receiver's petition for infections

26. 30. See next subdivision, Jurisdiction

respecting a sale, that the receiver was

not in possession of the property, has no

31. Callahan v. Israel, 186 Mass. 383, 71

Jurisdiction to decree the sale, and deter-

mine the right of adverse claimants to the

proceeds. Id.

32. In re Noel, 137 F. 694.

01. Hodges v. People's Bank \[S. C.\] 50

01. In re New York Car Wheel Works,

S. E. 192.

34. Dyer v. Kratzenstein, 92 N. Y. S.

01. In re Andre \[C. C. A.135 F. 736.

01.

01. Objection was to jurisdiction of

01. That it is not. Goldberg v. Harlan,

court of bankruptcy to act on receivers.

38. Ind. App. 465, 67 N. E. 107. Chatel mort-

petition for directions respecting a sale.

gage converting mortgaged property and

First Nat. Bank v. Chicago Title & Trust

applying the proceeds to the payment of the

Co., 25 S. C. 693.

mortgage debt, no demand is necessary.

22. In re Noel, 137 F. 694. Property may

Jackman v. Ean Claire Nat. Bank \[Wis.

such demand is not necessary to the recovery of the preference in equity.\[38\] Where a.mortgage converts the property and applies the proceeds to his debts, the action to recover the value of the property, so converted, as a preference is one in trover.\[37\] An order of court providing that the bankrupt's attorney shall not act for any creditor or the trustee "in bankruptcy proceedings" has no application to a suit by the trustee on a claim.\[38\]

\_Jurisdiction.\[39\]--State and Federal courts have concurrent jurisdiction of actions to set aside preferential transfers.\[40\] An action to recover property fraudulently transferred may be brought in any court that would have had jurisdiction if bankruptcy had not intervened,\[41\] and the trustee may bring an action, to recover property taken by a lienor from the bankrupt after his adjudication, in a state court,\[42\] and having invoked the jurisdiction of such court, he is bound by its judgment rendered on the merits.\[43\] The bankruptcy court has jurisdiction of a plenary suit to determine rights in or liens upon property in its possession,\[44\] or to avoid an unlawful preference, or to recover property unlawfully transferred by the creditor,\[45\] and, in such a suit to establish rights in property within the district, a non-resident defendant, claiming adversely, may be brought in by an order and service, in accordance with Rev. St. SS 783.\[46\] The trustee taking actual possession of property, although it be in another state, it is in the custody of the bankruptcy court administering the estate.\[47\] The district court of another district than that in which the bankruptcy proceedings are pending may entertain a suit to set aside a fraudulent transfer made by the bankrupt to parties residing in such district.\[48\] Prior to the amendment of 1903 the state courts had jurisdiction of an action by a trustee to recover the value of property transferred as a preference, and the action could,not be maintained in a Federal court, in the absence of other jurisdictional grounds, without the defendant's consent.\[49\] An action by the trustee to enforce a chose in action in the nature of a statutory lien must be brought in the state courts, unless the adverse parties consent to be sued in the United States circuit court.\[50\] In what state court the action may be brought is governed by the state's statutes.\[51\]

_Parties.\[52\]--In a suit by the trustee to set aside an alleged preferential transfer of the bankrupt's interest in a partnership to a third person, the bankrupt's partner is not a necessary party.\[53\] A trustee appointed after the institution of a suit to set aside a fraudulent conveyance made by the bankrupt may be added by amendment as a party defendant to the suit.\[54\]_

_Pleading.\[65\]--Pleadings in bankruptcy follow the rules of pleadings in equity.\[55\]_

The complaint in an action to recover a preference should allege all the essential 5 Cur. Law. BANKruptry SS 10E.

elements thereof," but it need not allege that any creditor has filed a claim in the bankruptcy proceeding, or any fact showing the necessity of recovering the alleged preference," and alleging a demand and refusal is sufficient, though it does not allege by whom it was made." In a suit under SS 70e, the petition should allege the amount of the claims of the creditors who were such at the time the fraudulent conveyances were made," and that the assets of the bankrupt's estate in the hands of the trustee are insufficient to pay the same." In a suit to recover the proceeds of insurance polices paid to a third person, it must be alleged that prior to the filing of the petition the bankrupt had a property right in the policies which he could have transferred or which might have been levied on and sold under judicial process." A bill in equity to recover a payment made by the bankrupt alleging the same to be a preference or a fraudulent payment is not multifarious."

_Presumptions and burden of proof; evidence."_--In an action by the trustee to recover property of the bankrupt, the presumption is that the trustee has complied with all the requirements of the law and is qualified to sue," and such fact can only be put in issue by a verified denial;" but being denied, the trustee must prove his appointment." A trustee is not entitled to recover funds, alleged to belong to the bankrupt, from a third person, unless it is proved beyond a reasonable doubt that such person has the fund in his possession or control," and the fund being traced into defendant's hands, the burden is upon him to account for it." In a suit to recover a preference, the trustee must prove all essential facts " by a preponderance of evidence." In proceedings by the trustee to set aside a conveyance as fraudulent, the burden is on defendants to show that they are purchasers for value." Stenographer's notes of testimony given by the bankrupt at

57. Petition alleging that at the time of the answer to interrogatories, is insum-the transfer the bankrupt had no other plaimtiffs appointment. Thompson v. First ment of his debts, and that neither he nor 87. Van Houten v. Oliver, 91 N. Y. S. 36.

ment of his other debts, that he was then 68. In re Feldeser, 134 F. 307. Evidence owing defendant a specified sum, and with intent to collect his claim in full and in fraud of other creditors, defendant accepted the transfer, which was fraudulent, with intent on the part of AI parties to give the defendant an Illegal preference, and to hinder, delay and defraudl an other creditors, held, in the absence of a request for a more specific statement, to sufficiently allege a preferential transfer. Ferguson v. Lederer, Strauss Co. \[Iowa\] 103 N. W.

79.5. Jackman v. Eau Claire Nat. Bank \[Vis.\] 104 N. W. 98.

59. Capital Nat. Bank v. Wilkerson \[Ind. App.\] 72 N. E. 247. This is especially true where the objection is first made on appeal under the Indiana practice. Id.

01. Shelley v. Nolen \[Tex. Civ. App.\] 88. W. 524.

01. Shelley v. Nolen \[Tex. Civ. App.\] 88. W. 534; Roney v. Conable, 125 Iowa, 664.

101 N. W. 505.

62. Carr v. Myers \[Pa.\] 60 A. 913.

01. Wright v. Skinner, 136 F. 694.

01. See 3 C. L. 464.

01. Breckons v. Snyder \[Pa.\] 60 A. 575.

01. Under Rev. Code 1892, SS 1797, declaring that plaintiff need not prove the description of character, unless specially denied by verified plea, an allegation that one suing as trustee in bankrupty was not legally appointed, verified only by an affladvir relating to the discovery given in the various stages in the proceedings are admissible against him,78 but not as against third persons.74 The testimony given by other persons in such proceedings is incompetent as against the bankrupt.78 In a suit to recover property fraudulently conveyed, testimony is admissible that the bankrupt stated to witnesses that the property was his and that he made the transfer to defraud creditors.79 Testimony of dealings between debtor and creditor some six or seven months prior to a transaction alleged to constitute a preference is admissible on the question of knowledge.71 The certificate of appointment is admissible to prove the authority of the trustee.78 Proof should be limited to matters in issue.79

In general, testimony of the trustee as to the extent of the liabilities and assets of the bankrupt so and evidence as to the value of the assets 81 is admissible on the question of insolvency. The adjudication is evidence of bankrupt's insolvency at its date.82

\_Trial and judgment.83--An action to set aside a preferential transfer, being brought in a state court, the trial and procedure in the action are to be governed by the laws of the state.84 In a suit in equity by a trustee to establish rights in property, the court may issue a writ of sequestration to prevent the removal of the property from the district, where the showing is not such as to warrant the appointment of a receiver.85 The requiring of an injunction bond in suits in the Federal courts by trustees or receivers in bankruptcy relating to the administration of the estate is a matter resting in the discretion of the court, to be exercised in view of the facts of each case.86 An action by the trustee to recover the value of property fraudulently transferred by the bankrupt to defendant as an agent does not preclude the bringing of a similar action against the agent's principal.87 Instructions must state the whole case88 and must conform to the issues.89 The prayer in the petition must authorize the judgment.90 A judgment, in an action to

**S1.** Evidence as to the value of the property that came into the hands of the trustee held admissible on the question of preference. Coolidge v. Ayers \[Vt.\] 61 A. 40.

**S2.** Breckons v. Snyder \[Pa.\] 60 A. 57b.

missible in an action by the trustee to recover property alleged to belong to the bankrupt. Breckons v. Snyder \[Pa.\] 60 A. 575.

**S3.** S5.\*\* L466.

cover property alleged to belong to the bankrupt. Breckons v. Snyder \[Pa.\] 60 A. 575.

**S4.** Stern v. Mayer, 99 App. Div. 427, 91

**S5.** S292. An action to recover the value of a preferential transfer of personal property, no equitable relief being asked,

**S6.** Shelley v. Nolen \[Tex. Civ. App.\] 88 is within Code Civ. Proc. $ 968, subd. 1, re-

**S7.** Kaufman v. Tredway, 25 S. Ct. $3.

**S8.** Harrell v. State, 121 Ga. 607, 49 S. E.

**S8.** In re Barrett, 132 F. 362. Is not

**S9.** In an action by the trustee to recover money said by the bankrupt prior or in equity. Id.

to his adjudication in alleged satisfaction of a debt, the existence of the debt being

**S8.** An instruction on the issue of no-

that there were unsatisfied creditors at the

tice and intent to prefer, stating only a

time the payment was made, or the suit

proof or at the time of trial. Breckons

v. Snyder \[Pa.\] 60 A. 575.

**S9.** In an action to recover a preference,

testimony by the trustee as to the bankrupt's assets and liabilities at the time of

the bankrupty which was only a few days

after the preference was given, during

which no substantial change had taken

place in the debtor's financial condition,

competent on the issue of insolvency, as

well as to show the preferential effect of

the payment. Capital Nat. Bank v. Wills

kerson \[Ind. App.\] 72 N. E. 247.

**S1.** Evidence as to the value of the property that came into the hands of the trustee held admissible on the question of

reference. Coolidge v. Ayers \[Vt.\] 61 A. 40.

40.

**S2.** Breckons v. Snyder \[Pa.\] 60 A. 575.

missible in an action by the trustee to recover

cover property alleged to belong to the bankrupt. Breckons v. Snyder \[Pa.\] 60 A. 575.

**S3.** See 3 C. L. 466.

cover property alleged to belong to the bankrupt. Breckons v. Snyder \[Pa.\] 60 A. 575.

**S4.** Stern v. Mayer, 99 App. Div. 427, 91

**S5.** S292. An action to recover the value of a preferential transfer of personal property, no equitable relief being asked,

**S6.** Shelley v. Nolen \[Tex. Civ. App.\] 88 is within Code Civ. Proc. $ 968, subd. 1, re-

**S7.** Kaufman v. Tredway, 25 S. Ct. $3.

**S8.** Horskins v. Sanderson, 132 F. 415.

**S8.** In re Barrett, 132 F. 362. Is not

governed by state statutes nor by rules of

court applicable to ordinary suits at law

over moneys paid by the bankrupt prior or in equity. Id 5 Cur. Law. BANKRUPTCY $ 11. 391

recover the value of a preferential transfer, including an amount sufficient to substantially offset an amount improperly deducted therefrom does substantial justice and will not be disturbed."

\_Interest.--\_On the recovery of an unlawful preference, interest may be recovered from the date of demand."2 The commencement of a suit to recover an alleged preference is a demand which starts the running of interest."2

\_Costs.\_94--The requiring of cost bonds in suits in the Federal courts, by trustees or receivers in bankruptcy, relating to the administration of the estate, is a matter resting in the discretion of the court, to be exercised in view of the facts in each case."5 Such security will not be required unless it appears that the trustee is acting in bad faith, nor will it be required unless there are assets of the estate out of which costs are payable and then only when the circumstances are such as to render it equitable that the creditors should indemnify the adverse party by giving the security."

\_Appeal and review.--\_In South Carolina, in a purely legal action by the trustee to recover the value of a preference, findings of fact cannot be reviewed on appeal."

(SS 10) \_F. Claims not reduced to possession by the trustee.\_95--The trustee may, subject to the control of the bankruptcy court, refuse to take possession of properties that will be burdensome rather than profitable to the estate,"9 and he must elect within a reasonable time whether or not he will take any particular property of the estate." Electing to reject, the title to the asset remains in the bankrupt,"2 and the trustee cannot object to the institution of suits by creditors to reduce to control assets which the trustee might intentionally or unintentionally permit to escape."3 A bankrupt who omits to schedule and withholds from his trustee all knowledge of certain property cannot, after his estate in bankruptcy has been finally closed up, assert title to the property on the ground that the trustee had never taken any action in respect to it."

SS 11. \_Protection of trustee's title and possession;\_5 \_actions pending by or against bankrupt.\_6--Under act 1898, SS 2, cl. 15, the court may, upon proper application and cause shown, restrain not only the debtor, but any other party, from making any transfer or disposition of any part of the debtor's property, or from any interference therewith;\_7 \_the court_8 \_but not the referee_9 \_may enjoy_proofed-

other and further relief, general and special, legal and equitable, as to the court shall seem meet and just.\_authorized the court to deere a sale of the improvements to satisfy a judgment for the trustee. Collins v. Bryan \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 237, 88 S. W. 422.

91. Jackman V. Eau Claire Nat. Bank \[VHS.\] 144 N. W. 98.

01. Capital Nat. Bank v. Wilkerson \[Ind. App.\] 72 N. L. 247.

01. Kaufman V. Tredway, 25 S. Ct. 33.

01. See 3 C. L. 466.

01. In re Barrett, 132 F. 862. Is not governed by state statutes nor by rules of court applicable to ordinary suits at law or in equity. Id.

01. In re Barrett, 132 F. 362.

01. Hodges v. People's Bank \[S. C.\] 50 S. E. 192.

01. See 3 C. L. 467.

01. May refuse to take possession of mortgaged property, if its value, over and above the incumbrance, is not sufficient to justify an attempt to administer it. In re ings against the bankrupt 10 upon a provable claim 11 in state courts, and the possession of the trustee cannot be disturbed by any form of adverse legal proceedings without the concurrent sanction of the court of bankruptcy.12 The bankruptcy court has no jurisdiction in a summary proceeding to enjoin a suit in a state court, the plaintiff in such action asserting an adverse claim, and the court having acquired jurisdiction of the parties and subject-matter and taken possession of the property.13 Upon an application to vacate an order staying proceedings in a state court, the burden of proof is on the petitioner.14 The referee has power to enjoin an interference with the trustee's possession.15 A state court having acquired jurisdiction of an action to enforce a lien, is not divested of jurisdiction by the defendant being adjudged a bankrupt pending the action, or by failure of the,trustee to intervene.16 The bankruptcy court will not enjoin a creditor who holds a written waiver of exemptions from prosecuting an attachment suit in a state court against exempt property,17 and the validity of the waiver is immaterial so far as the bankruptcy court is concerned, the question being one for the state court to determine.18 It lies in the discretion of a state court whether or not it will vacate a judgment rendered while the bankruptcy proceedings were pending, but before they were brought to the court's notice.19 A claimant being adjudged a bankrupt and a trustee appointed, the fact that the cause of action has been transferred to the trustee is a matter of defense.20 The bankruptcy court will not order the trustee to pay over money when in so doing it must pass upon the correctness of the decision of a state court in the matter.21

SS 12. _Rights of trustee in pending actions by or against bankrupt; jurisdiction of state courts.22_

SS 13. _Management of the property and reduction to money.23--A trustee in bankruptcy is an officer of the court and as such is subject to its direction by order_

the tenant is adjudged a bankrupt, the property comes under the control of the bankrupt court which will stay further proceedings with the distress, and require the landior to submit his rights to that court for adjudication. In r Lines, 133 F. 803. A sale under a valid item may be enviolated, and the property sold by the trustee. In r Euughman, 138 F. 742: In re-Vastfinder, 13 Am. Bankrupt. 148, 132 F. 718.

9. In re Slobert, 133 F. 781.

1. _The trustee of a contractor cannot have an action in a state court to fore-close a mistarilman's lien, stayed pending the bankrupty proceedings, to the injury of the owner and lienors. In re-Grissler \[C. C. A.\] 138 F. 754._

1. _Will not stay a suit based on a non-provable claim. Mackel v. Rochester, 135 F. 904. So held, though suit was based upon the bankrupt's alleged fraud and plaintiff in his complaint waived the tort and sued upon an implied contract. Id._

1. _In re Noel, 137 F. 694. Where, prior to a suit to correct the description in a feed of trust executed by a bankrupt grantor, and to force it, plaintiff obtained an order of the Federal court per-mitting foreclosure, and the bankrupt's trustee disclaiming any interest in the property, it was immaterial that plaintiff had not obtained formal leave of the Federal court to file a bill to correct such description. Scott v. Gordon \[Mo. App.\] 83 S. W. 550._

1. _Tennessee Producer Marble Co. v._

1. _Pennarsee Producer Marble Co. v._

1. _Pethin denied where petitioner failed to show that the order was made prematurely, or that the bankruptcy pro-court for adjudication. In r Lines, 133 F. 803. A sale under a valid item may be enviolated, and the property sold by the trustee._

1. _Tennessee Producer Marble Co. v._

1. _Pennarsee Producer Marble Co. v._

1. _Pennarsee Producer Co. v._

1. _Pennarsee Producer Marble Co. v._

1. _Pennarsee Producer Marble Co. v._

1. _Pennarsee Producer Co. v._

1. \_Pennarsee Producer Marble Co.

1.

## 14 Claims against the estate and proof and allowance

A. Claims proveble\[42\]. The provability of a claim depends upon its status at the time the petition is filed\[43\]. A debt\[44\] founded upon an open account or upon a contract express or implied is provable\[45\], though plaintiff effects to bring an action thereon for fraud\[46\]. The liability of the bankrupt as a maker\[47\] or indorser\[48\] of commercial paper is provable, though such liability does not become due or absolute until after the filing of the petition. A demand for damages for breach of marriage promise and seduction is provable, though the damages are unliquidated\[49\]. Equitable claims may be provable\[50\], though an equitable, unliquidated demand is not\[51\]. A claim for money loaned for gambling purposes is provable in so far as the purpose has not been executed\[52\], or if the loan was obtained by the fraud of the bankrupt\[33\]. If the bankrupt, at the time of bankruptcy, by disenabling himself from performing the contract in question, and by repudiating his obligation, can give the proving creditor the right to maintain at once a suit in which damages can be assessed at law or in equity, then the creditor can prove in bankruptcy on the ground that bankruptcy is the equivalent of disenablement and repudiation\[54\]. Contingent liabilities are not provable\[58\]. Neither a money decree for alimony\[56\], a claim for alimony, not reduced to judgment\[57\], nor a claim for arrears in alimony and allowance for the support of minor children, due under a decree in an action for divorce\[58\], are provable. A claim for unliquidated damages arising ex delicto is not provable\[50\]. ( SS 14) B.

the provisions of the act and the forms prescribed thereunder,\[91\] and on presentation of claims the only pleadings authorized are the claim duly verified and such objections as the trustee or any creditor may interpose to the allowance thereof.\[92\] A claim is not proved until it has been filed,\[93\] and neither the court nor a referee has any discretionary power to permit the filing of proofs of claim after the expiration of a year from the adjudication, either nunc pro tune or otherwise,\[94\] nor is their power in that respect enlarged by the fact that the proofs were delivered to the trustee within said year.\[95\] A creditor whose claim is secured by the individual undertaking of a third person failing to prove his claim, the third party is entitled to be subrogated to the creditor's rights, or in case the latter fails to prove the claim, to prove it in the creditor's name.\[96\] Failure to attach a written instrument which forms the basis of the claim to the proof of claim does not raise a presumption as to its nonexistence,\[97\] and in the absence of objection it will be presumed on appeal that such instrument was presented on trial and not attached, or that its presence was waived.\[98\] A usurious claim being disallowed, the creditor may amend and prove a claim for money fraudulently obtained by the bankrupt.\[99\] Attorneys for a trustee may make out and present formal proof of a claim of a creditor, no prejudice being shown.\[70\] A committee of creditors holding assigned claims as trustee of an express trust for the benefit of the assignors is only entitled to prove all of the claims so held as a single claim.\[71\] The burden is upon the claimant to prove the validity of his claim,\[72\] but the claim being presented in proper form and duly verified, it makes out a prima facie case in his favor,\[93\] and the burden of proof thereupon shifts to the objectors,\[74\] and can only be disproved by evidence, the probative force of which is equal to or greater than that offered by the claimant,\[95\]

(SS 14) \_C. Contest of claims.\[96\]--Creditors who desire to contest the allowance of a claim, which, as parties in interest, they may do,\[97\] must file objections in their own behalf.\[98\] Though no particular form is prescribed for objections, they should generally be in writing,\[99\] though the referee may in his discretion permit an oral objection,\[90\] and they should be sufficiently specific to indicate to the claimant their nature and character.\[91\] A creditor has no standing to contest a claim on an appeal taken from the decision of the district court by the trustee unless he joins therein.\[92\] A creditor who moves to expunge an allowance in favor of another creditor stands in the shoes of the bankrupt, and has no higher rights is a question of proof of contract. See Contracts, 3 C. L. 805. See, also, Negotiable Intr, 132 F. 295.

- 4 C. L. 787, and other specific topics.
- 61. In re Dunn Hardware & Furniture Co., 132 F. 719,
- 62. In re Carter, 138 F. 846.
- 63, 64, 65. In re Ingalls Bros. \[C. C. A.\]
- 64, 65. In re Mangles \[C. C. A.\]
- 65. In re Dressler \[C. C. A.\]
- 66. Rule applied where a bankrupt's wife signed notes and executed a mortgage on her separate property to secure money borrowed for the bankrupt and used by him in his business. In re Carter, 138 F.
- 67. In re Dressler \[C. C. A.\] 135 F. 495.
- 68. In re Carter, 138 F. 846.
- 69. In re Robinson, 136 F. 99.
- 70. In re McKenna, 137 F. 611.
- 71. In re E. T. Kenney, 136 F. 451.
- 72. Must show that all the partners consented to the giving of a firm note given than he."1 Upon the hearing of a contested claim, the referee should of his own motion consider the credibility of the witnesses and of their testimony; and he is not obliged to allow the claim, even if the testimony in its support is uncontradicted."2 The validity of the petitioner's claim being put in issue and determined in the proceedings for adjudication, the matter is res judicata so long as the adjudication stands unrevoked."3 The time within which a review of an order allowing a claim must be asked is not specified either by the bankruptcy act or by the general orders, and hence reasonable promptness must be used."3 That a claim was indorsed "Disallowed as a preferred claim," without evidence taken or order made, does not bar a subsequent suit to establish or enforce the lien."3 Defendant not denying his indebtedness, a new trial will not be granted, though the claims are not established with the same technical exactness as is required where the indebtedness is directly in issue."3

(SS 14) \_D. Surrender of preferences and the effect thereof."3.--\_In order to prove his claim a preferred creditor must surrender his preference,"3 but such surrender need not be voluntary."3

(SS 14) \_E. Secured creditors."3.--\_Under the bankruptcy law a creditor to be "secured" must either hold security against the property of the bankrupt or be secured by the individual obligation of another who holds such security."3 The creditor holding such security cannot fix the value thereof by purchasing it at a sale held by himself after the filing of the petition and without notice to third persons;"3 but the court has power to direct that such security be sold at either a private or public sale after such notice as will guaranty to some extent that a fair valuation will be arrived at."3 It appearing that insurance policies on the life of a member of a bankrupt firm were pledged by the firm, it will not be assumed that the firm had no interest in the policies."3 Under the present bankruptcy law a creditor, unless guilty of fraud,"3 or unless he has secured a preference, may change his proof in form from an unsecured to a secured debt."3 Such amendment may be permitted after the expiration of the year in which claims may be proved, and the prior receipt of dividends does not preclude the court from permitting such amendment."3

(SS 14) \_F. Set-offs.\_1--\_Mutual 2 debts and credits may be set off against each

SS3. In re E. J. Arnold & Co., 133 F. \[been allowed to prove his claim as an unsecured creditor against a surery or indorser need not realize and credit the proof.\] \[33\] _Ayers_ or, \[Cc. C. A.\] 138 F. \[71\] _Cannot_ be contested, which filed for allow- against the principal debitor before being ance before the referee, by creditors who failed to become parties to the proceedings for adjudication. Id. \[34\] \_G. In re Mligraum & Ost, 133 F. \[80\] _G._, 134 F. \[81\] _G._, 134 F. \[82\] _G._, 134 F. \[83\] _G._, 134 F. \[84\] _G._, 135 F. \[85\] _G._, 136 F. \[86\] _G._, 137 F. \[87\] _G._, 138 F. \[88\] _G._, 139 F. \[89\] _G._, 139 F. \[90\] _G._, 130 F. \[91\] _G._, 131 F. \[92\] _G._, 132 F. \[93\] _G._, 134 F. \[94\] _G._, 135 F. \[95\] _G._, 136 F. \[96\] _G._, 137 F. \[97\] _G._, 138 F. \[98\] _G._, 139 F. \[99\] _G._, 139 F. \[90\] _G._, 130 F. \[91\] _G._, 131 F. \[93\] _G._, 132 F. \[94\] _G._, 133 F. \[95\] _G._, 134 F. \[96\] _G._, 135 F. \[97\] _G._, 136 F. \[98\] _G._, 137 F. \[99\] _G._, 138 F. \[99\] _G._, 139 F. \[90\] _G._, 139 F. \[90\] _G._, 139 F. \[91\] _G._, 139 F. \[92\] _G._, 139 F. \[93\] _G._, 139 F. \[94\] _G._, 139 F. \[95\] _G._, 139 F. \[96\] _G._, 139 F. \[97\] _G._, 139 F. \[98\] _G._, 139 F. \[99\] _G._, 139 F. \[99\] _G._, 139 F. \[90\] _G._, 139 F. \[90\] _G._, 139 F. \[91 5 Cur. Law. BANKRUPTCY $ 14G. 397

other," the debt against the bankrupt being provable," even though the claim of the creditor was acquired after the bankrupt's insolvency, it being acquired before the creditor became liable to the bankrupt." Credits which constitute voidable preferences cannot be set off against debts accruing prior to the time the preference was taken." Provable, though unmatured claims, may properly be set off against a claim held by the trustee," and this right extends to an assignee of the claim who also assumes the assignor's indebtedness to the insolvent." A depositor in a bankrupt bank may set off the amount of his deposit against a note on which he is indebted to the bank."

(SS 14) G. Priorities." In order to take advantage of priorities allowed by state laws, such laws must be complied with." Wages due workmen, clerks or servants, which have been earned within three months before the date of the commencement of bankruptcy proceedings, not to exceed three hundred dollars to each claimant, are by the terms of the act given priority." One advancing money or property for the purpose of paying laborers before the claims of the latter are proved is not entitled to be abrogated to their right of priority." Expenditures for the sole benefit of general creditors in carrying out contracts of the bankrupt which were thought to be profitable are not "costs of administration" so as to be payable as preferred claims." In such case lien creditors not consenting to the expenditures nor to the continuance of the business, their claims are payable from the fund derived from the contracts prior to the claim of the trustee for additional expenditures." As to whether a creditor is entitled to a preference because his claim is based upon the bankrupt's misappropriation of a trust fund depends upon an equitable rule of preference as to which the Federal decisions and not those of the state where the contract was made govern," and neither such creditor " nor the holder of a lien on specific property" is entitled to recover of the trustee unless he proves that such property came into the hands of the trustee. In determining whether a state imposition is a tax, the bankruptcy court is not bound by the state decisions." A secured creditor is entitled to sums collected by the trustee in the firm's debt to the bankrupt. In re Codef Iowa, 1897, $ 4020. In re Burton Shults, 132 F. 573.

**3.** Under the law of Missouri the trustee may set off against a creditor's claim entitled to license for a trustee unless the deficiency arising from his payment of his stock subscription in the bankrupt corporation with overvalued property. In re P. Browder & Co. v. Hill \[C. C. A.\] 136 F. Royce Dry Goods Co., 133 F. 100.

**4.** In re Phillip Semmer Glass Co. \[C. C. A.\] 135 F. 77.

**5.** Frank v. Mercantile Nat. Bank \[N. Y.\] 74 N. E. 841.

**6.** Western Fire & Timber Co. v. Brown, 25 S. Ct. 839. Where claim was acquired for the purpose of being used as a set-off. In re Shults, 132 F. 573. References finding that certificate of deposit was taken by transferee with the knowledge of bankrupt's insolvency, held sustained by the evidence. Id.

**7.** Frank v. Mercantile Nat. Bank \[N. Y.\] 74 N. E. 841, aff. 100 App. Div. 449, 91 N. Y. 488. A. debtor is entitled to set off his claim against the bankrupt, whether matured or unmatured at the date of adjolication. Id.

**8.** Frank v. Mercantile Nat. Bank, 100 App. Div. 449, 91 N. Y. S. 488; aff. 71 N. E. 841.

**9.** In re Shults, 132 F. 573.

**10.** See 3 C. L. 477.

**11.** Claim to priority disallowed where claimant did not file statement required by preserving the assets of the estate and which reduce the value of the security.20 The president of a corporation obtaining goods on false statements as to assets must account for the excess in such statements or be deferred until the other creditors are paid.21 The present bankruptcy law expressly provides that the net proceeds of the partnership property shall be appropriated to the payment of partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts, and that only the surplus of each estate shall be added to the other.22

(SS 14) $H$. _Expenses of the proceedings.23_--A receiver is entitled to reasonable fees for his services,24 but be is not entitled to an allowance for his particular services in conducting the bankrupt's business in addition to the compensation he receives for his services in general.25 The word "disbursements," as used in section 48, as amended, should be construed, with reference to receivers, to include the value of property taken possession of by the receiver and delivered to others in specie.26 Attorneys will be allowed reasonable compensation for services rendered which were beneficial to the estate,27 the allowance of such fee lying in the discretion of the judge.28 Though the trustee is a lawyer, he is under no obligation to perform legal services for the estate,29 but if he does so he is not entitled to additional compensation therefor.20 The statutory fees being sufficient to compensate a referee for his services, he is not entitled to extra compnsation for extra services rendered as special master in connection with a composition.21 Clerks are only entitled to the actual expenses incurred in sending notices of the bankrupt's petition for a discharge to creditors,23 and these expenses must be itemized by the clerk and charged as an expense.23 All commissions are payable from the estate,24 and hence the court cannot order them paid out of the proceeds of property subject to a valid lien.25 Secured creditors making use of the bankruptcy court and officers to realize on their security may be required to contribute their proportion to the costs of the proceedings and for the preservation of the property during their

20. A brewery company prior to its |wance of $50 to bankrupt's attorney and bankruptcy, advancing money to pay the $200 to the attorney for creditors from an annual liquor licenses for several soloons, proved. Id. Where attorney successfully defincates and later plagging them as security to estate, and in so doing was encuited to the trustee on acnegated for a period of fifty days, $800 held count of such advances, since they reduced the value of the certificates, and to allow the saloons to continue in existence was of advantage to the bankrupt estate. In re Elm Brewing Co., 132 F. 299.

01. In re Royce Dry Goods Co., 133 F. 100.

01. Act 1898, SS 5f. In re Mueller \[C, C, A.\] 135 F. 111. Where partnership and members are insolvent, and there are no partnership assets, firm creditors are not entitled to share in the individual assets of one of the partners until all his individual debts are paid. In re James \[C. C. A.\] 133 F. 912.

01. See 3 C. L. 479.

01. Where receivers were men of ability and their services were of great benefit to the estate, a fee of 1% per cent. of the amount in their hands, as compensation for their services, was allowed. In re Sully, 133 F. 997.

25, 26. In re Cambridge Lumber Co., 136 F. 983.

27. In re Covington, 132 F. 884. An al 5 Cur. Law. BANKRUPTCR $ 16. 399

pendency, where there is sufficient unincumbered estate.\[88\] The petition to review an allowance of commissions to a trustee will not be set aside, though not filed within the time required by a rule of court, the trustee's account having been unanimously approved by the creditors at a meeting in which the petitioner was present by counsel.\[87\]

(SS 14) _I. Expenses of receivers and assignees appointed prior to bankruptcy proceedings.\[88\]--A state receiver appointed prior to the bankruptcy proceedings is not entitled to priority on account of his services rendered prior to the bankruptcy proceedings, or of expenses or advances made to the estate which did not contribute to the funds in the hands of the trustee.\[89\] Secured creditors, though they use the bankruptcy court to realize on their security, cannot be required to pay any part of the expenses of a prior receivers in a state court.\[40\]_

SS 15. _Distribution of assets; dividends.\[41\]--The assets must be distributed according to the provisions of the bankruptcy act,\[42\] and controversies collateral thereto will not be decided.\[43\] Exceptions to a proposed scheme of distribution must be filed before the final decree of confirmation is entered, and unless specially allowed cannot be considered thereafter.\[44\] A dividend being paid upon the full amount of a secured claim, it will be presumed that the security was found to be valueless,\[48\] and the creditor's right to such security is not thereby impaired.\[46\]_

SS 16. \_Exceptions.\[47\]--The bankrupt's right to an exemption is governed by the state laws.\[48\] In most states the homesetead exemption is limited to a certain sum and if the property claimed exceeds this sum, the bankrupt may have his exemption set aside from the proceeds of a sale of the property,\[49\] or he may retain the property upon payment of the excess.\[50\] An exemption being nonassignable, an attempted assignment operates as an abandonment.\[51\] A waiver in favor of one creditor does not inure to the benefit of all.\[52\] The bankruptcy proceedings will be stayed so as to enable a creditor to test his right to the bankrupt's exemption in the state courts.\[53\] Act 1898, SS 70a, refering to insurance policies, in no way qualifies SS 6 of the same act.\[54\] The trustee in bankruptcy acquires no title to exempt property duly claimed.\[55\] While in order to be entitled to his exemptions the bank rupt must comply with the state laws, still such exemptions can be made available only in the manner prescribed by the bankruptcy act;" hence his claim of exemptions must be filed within the specified time,"1 and being so filed his right is not defeated by a prior sale."8 The bankruptcy court has jurisdiction to determine what property is exempt,"9 but its jurisdiction ends there and the court has no authority to administer such property."0 While a notice in general language, either in a voluntary or involuntary petition, of an intention to claim one's exemptions, may be amended if done in time,"1 yet, where the notice in either case is so general as not to indicate to the trustee what specific articles the bankrupt claims as his exemptions, and the bankrupt files no schedule and makes no request upon the trustee to set aside specific articles of exemption until after the sale, he will be regarded as having waived his right of exemption;" but a notice that the bankrupt claims his exemptions out of certain property is sufficient,"8 it being the trustee's duty to set them apart and report the items and estimated value thereof to the court."4 Where all the assets of the bankrupt's estate are claimed as exempt, the claim may be determined by the referee prior to the appointment of a trustee," Both the bankrupt and his assignee of exemptions claiming an interest in a fund derived from the sale of certain assets, they are entitled to contest the allowance of a claim against it."6 The question whether a bankrupt is entitled to a discharge cannot be tried on the hearing of his claim to exemptions."7

**SS 17.**\_Death of bankrupt pending proceedings.\_68--Proceedings in bankruptey do not abate by the death of the alleged bankrupt after the petition is filed and before adjudication."9 Where the bankrupt dies during the pendency of the bankruptcy proceedings, the widow's right to dower is governed entirely by the local law,"10 and in those states where dower is limited to property whereof the husband died seized and possessed, the widow of a bankrupt who dies after the adjudication, election of trustee, and the taking possession by the latter, is not entitled to dower in the property passing to the trustee."11

**SS 18.**\_Referees, proceedings before them, and review thereof.\_72--Referees are judicial officers clothed with judicial powers.73 Their general authority extends to the consideration of an intervening petitioner's claim to specific property or proceeds in the hands of the trustee, alleged to be the property of the petitioner and not of the estate in bankruptcy.\[14\] That the referee is entitled to commissions on sums paid to creditors as dividends does not disqualify him as an interested party.\[15\] A witness cannot be compelled to leave the state where he resides in order to attend a hearing before a referee.\[76\] The subpoena not being sealed, the defect is waived by the witness appearing for examination without objection.\[17\] An order for the examination of a witness is not void because executed by the clerk and not by order of the court.\[78\] The case being referred generally to the referee, he has all the powers of the court relative to the examination of witnesses,\[79\] and his order in this regard is treated as that of the court.\[80\] He may order the examination of a witness on an oral application,\[81\] and may permit him to be represented by counsel.\[82\] General order No. 23, relating to the orders of a referee, has no application to a nurere ruling by the referee that a witness be sworn.\[83\] Neither the provision of the bankruptcy act that testimony given by the bankrupt shall not be offered against him in any criminal proceeding,\[84\] nor the filing of a voluntary petition,\[85\] deprives a bankrupt of the right to claim his constitutional privilege of refusing to answer a question, where the answer might tend to incriminate him. The bankrupt claiming his constitutional privilege as a reason for not producing his books of account, he must bring such books before the court or referee for the determination of the question whether his plea is well founded in fact, and that the books may be used for such necessary and proper purpose as are not inconsistent with the protection of his rights.\[86\] That the bankrupt in refusing to testify acts under the advice of counsel palliates the offense but does not excuse it,\[87\] nor does a subsequent offer to testify purge the contempt, but acts rather as an admission that the defendant could have answered the questions without danger to himself.\[88\] A rule requiring a bankrupt to show cause why he should not be punished for contempt for refusing to answer sundry questions put to him by the referee is sufficient though it does not set out such questions, if it refers to the transcript where they fully appear.\[89\] In a case where a referee believes a witness to be in contempt for any reason it is his duty to set forth the contempt upon his record, certifying the facts to the district judge, who will then deal with the question as if the contempt had originally arisen in his court.\[90\] The general rules as to discovery apply.\[91\] The referee, in taking testimony, is required to have it taken down, preferably in narrative form, and an objection being raised, to require the question, the objection and reason thereof to be clearly but briefly noted; then enter his ruling thereon, and then, though he rule the question to be improper, allow it to_be answered.\[92\] Under general order No. 27 the referee is required to certify any order \[93\] made by him, \[74\] In re Drayton, 135 F. 883. 88, 89, contrived. In re Drayton, 135 F. 883. 75. 75. 76. Bankr. Act 1898, 8 41a, construed. In re Cole, 133 F. 414. 77. In re Abey Press \[C. C. A.\] 134 F. 51. 75. 51. Lack of seal held immaterial where witness was actually before the referee when ordered sworn. Id. 78, 70, 80, 81, 82, 83. In re Abey Press \[C. C. A.\] 134 F. 51. 84, 85. United States v. Goldstein, 132 F. 789. 86. In re Hars, 136 F. 986; In re Hars, 134 F. 109. Order requiring bankrupt to produce books affirmed. In re Edward Hess & Co., 136 F. 988. 89. 97. United States v. Goldstein, 132 F. 789. 5 Curr. L-- 26. 88, 89, United States v. Goldstein, 132 F. 787. 79. 88, 89, United States v. Goldstein, 132 F. 787. 90. In re Roming, 138 F. 837. 91. See Discovery and Inspection, 3 C. L. 1106. 92. In re Roming, 138 F. 837. 93. Where objections to evidence offered before a referee are sustained, the referee, at the request of the party offering the same, is not required to certify the objection made to the court for revision. In re Roming, 138 F. 837. Where a referee in bankrupt, in taking the deposition of a witness, ruled that certain questions which the witness refused to answer and certain documentary evidence which he refused to produce were improper, immaterial and impertinent, he was not required to certify the objections made to the court for revision. Id. 94. 95. 96. 97. 98. 99. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 22. 28. 29. 31. 21. 23. 24. 25. 27. 28. 29. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48.

upon the application of any party or witness,"4 but a referee has no jurisdiction of his own motion to certify a question not raised by the parties to a bankruptcy proceedings, which the referee foresees may arise and on which he desires to be advised."6 Failure of the referee to summarize the evidence does not necessarily invalidate the appeal." A referee's findings of fact will not be reversed upon appeal unless they are flagrantly against the weight of the evidence." The court of bankruptcy giving the bankrupt a stated time to comply with an order of the referee, it is impliedly an affirmance of such order,"8 and the fact that the court in so affirming the order struck therefrom a provision for the commitment of the bankrupt in case of his default is not an adjudication that he should be so punished, but leaves that matter to be brought up anew by motion in case the bankrupt fails to obey the order within the time allowed."

SS 19. \_Modification and vacation of orders of bankruptcy court.\_1

SS 20. \_Appeal and review in bankruptcy cases.\_2--A judgment or decree in a controversy at law or in equity arising in bankruptcy proceedings is reviewable by the Circuit Court of Appeals under its organic act and SS 24$a$, of the act of 1898, by appeal or on writ of error as may be appropriate,3 while a judgment or order in a proceeding in bankruptcy, if one of those specifically enumerated in SS 25$a$, act of 1898, is reviewable only by appeal 4 used out within ten days,5 and, if not within such excepted cases, unless rendered on a jury trial,6 can only be reviewed on an original petition as provided in SS 24$b$, act of 1898." "Proceedings in bankruptcy,"

## 5 Cur. Law. Bankruptcy SS 20.

broadly speaking, include all questions between the bankrupt and his creditors as such, commencing with the petition for adjudication, ending with the discharge, and including matters of administration generally.\[8\] "Controversies at law and in equity arising in the course of bankruptcy proceedings," broadly speaking, involve questions between the trustee, representing the bankrupt and his creditors, on the one side, and adverse claimants on the other, concerning property in the possession of the trustee or the claimants, to be litigated in appropriate plenary suits, and not affecting directly the administrative orders and judgments but only the question of the extent of the estate." The decisions under the prior bankruptcy law with respect to a proceeding in bankruptcy and an independent suit are applicable.\[10\] An appeal lies to the circuit court of appeals from a judgment allowing or rejecting a claim or debt of SS500 or over.\[11\] This restriction has reference to the amount of the allowance or rejection and therefore to the amount which will be put in controversy by the appeal.\[12\] The revisory power granted by SS 24$b$ of the bankruptcy act does not include any orders or decrees which are appealable, the provisions for appeal for petition of review being mutually exclusive.\[18\] An order directing the removal and consolidation of the proceedings with a cause pending in another jurisdiction is reviewable only by appeal from the order.\[14\] An erroneous decision against an asserted right of exemption, and a consequently erroneous holding that the property forms assets of the estate in bankruptcy, while subject to correction in the mode appropriate for the correction of errors,\[15\] does not create a question of jurisdiction proper to be passed upon by the United States Supreme Court by a direct appeal under the provisions of the act of March 3, 1891.\[16\] The assertion of a right of set-off presents a claim of Federal right which will sustain an appeal from a decision of a Circuit Court of Appeals, rejecting the claim, to the Supreme Court of the United States.\[17\] The decision of a state conrt as to whether a conveyance by a bankrupt was made with intent to defraud creditors does not present a Federal question which can be considered by the Federal Supreme Court on writ of error to a state court.\[18\] Mandamus does not lie to review discretionary matters.\[19\]

directions respecting a sale, by which the question of his possession of the property was decided, a sale decreed and the rights of adverse claimants' determined, is re- 132 F. 362. A receiver delivering goods to viewable under $ 24b. First Nat. Bank v. Chicago Title & Trust Co., 25 S. Ct. 693.

8. In re Friend, 134 F. 778.

1. In re Friend, 134 F. 778. The distinction above set out is quoted approvisibly in In re Mueller \[C. C. A.\] 135 F. 711, where the following definition is given: "By controversies arising in bankruptcy proceedings is meant those independent or plenary suits which concern the bankrupt's estate, and arise by intervention or otherwise between the trustee representing the bankrupt's estate and claimants asserting some rights or interest adverse to the bankrupt or his general creditors."

1. First Nat. Bank v. Chicago Title & Trust Co., 25 S. Ct. 593.

1. Claim for taxes. Act 1898, SS 25a (3)

1. In re Cosmopolitan Power Co. \[C. C. A.\] 137 F. 588.

1. Gray v. Grand Forks Mercantile Co. \[C. C. A.\] 138 F. 344.

1. In re Mueller \[C. C. A.\] 135 F. 711.

1. Kyle Lumber Co. v. Bush \[C. C. A.\] 133 F. 688. Is not reviewable on a petition to review and revoke. Id.

1. Lucius v. Cawthon-Coleman Co., 25 S. Ct. 214.

1. Lucius v. Cawthon-Coleman Co., 25 S. Ct. 214.

1. Lucius v. Cawthon-Coleman Co., 25 S. Ct. 214.

1. Ct. 214. \[Act March 3, 1891 is 26 Stat. at L. 827, chap. 517, U. S. Comp. Stat. 1901, p. 549-550.\]

1. Western Tie & Timber Co. v. Brown, 25 S. Ct. 339.

1. Thompson v. Fairbanks, 25 S. Ct. 306.

1. Validity of order appointing a re
   Where the bankruptcy court makes but a single order or judgment, claimants having separate interests may prosecute a joint appeal.\[20\] It is essential that the record should contain findings of fact or show that stated propositions of law were determinative of the case,\[21\] but the opinion of the court, while not taking the place of such findings, may, when made a matter of record, be looked to for the purpose of ascertaining what propositions of law governed the court in the decision of the case, or for the general purpose of determining whether the case went off on facts or law.\[22\] A bill of exceptions has no function and accomplishes no purpose in proceedings in bankruptcy.\[23\] In the absence of a rule of court on the subject, a petition of review need only be filed within a reasonable time.\[24\] Upon a petition of review, questions of law only can be considered and passed upon,\[25\] and hence the record should present simply, clearly, and unequivocally the issues of law to the like effect as bills of exceptions, proceedings without a jury, and proceedings in the Supreme Court on admiralty appeals,\[26\] and the Circuit Court of Appeals will ordinarily consider only such matters of law as are shown by the record, by findings of fact or their equivalent, to have been distinctly presented to the court below.\[27\] In the absence of prejudice or a violation of the rules of court, the fact that the petition to revise was not allowed by any judge of the appellate or trial court,\[28\] that no bond has been given,\[29\] that the transcript of the record filed is not certified by the clerk of the lower court,\[30\] and does not contain the pleadings upon which the issues were tried, nor show who are the proper parties to the appellate proceeding,\[31\] nor contain the evidence upon which the findings of the referee were based,\[32\] does not constitute ground for dismissal, nor is the fact that the petition was filed more than three months after the entry of judgment below,\[33\] or that no supersedeas has been granted,\[34\] ground for such action. A petition to revise in a matter of law the proceedings of the district court does not bring prior proceedings before the referee up for review.\[35\] An appeal makes the entire record available to the appellant and imposes the duty upon him and upon the clerk of the lower court to place the material parts of it in the transcript.\[36\] The Federal statutes as to what the transcript shall contain on appeal "in causes in equity" apply to bankruptcy proceedings.\[37\] The parties being unable to agree as to the contents of the record, the appellant should file a precise with the clerk, pointing out specifically what records, in his judgment, are necessary to be certified on appeal; if the appellee considers these insufficient he can suggest a diminution of the record and ask for a writ of certiorari.\[28\] The bankruptcy court has no jurisdiction to designate what records

- 5. Cur. Law. BANKruptY SS 22A. shall be certified. \[90\] On an appeal by the trustee from a judgment allowing claims for expenses and costs of administration, no valid judgment can be rendered unless the claimants be given an opportunity to be heard. \[40\] On appeal from the disallowance of a claim the appellant is entitled to present any question concerning the security or rank of the debt, as an incident thereof. \[41\] A finding of trial court on conflicting evidence will not be disturbed unless clearly erroneous. \[43\]
- SS 21. _Trustee's bonds; actions thereon. \[43\]_
- SS 23. \_Discharge of bankrupt; its effect and how availed of. A. Procedure to obtain discharge and vacation thereof. \[44\] Both the trustee, so long as the estate is unsettled, \[45\] and one who has a suit pending against a bankrupt for the discovery of a debt, which suit is contested, are parties in interest, though the latter's claim has not been proved in bankrupty. \[46\] The bankrupt's petition for a discharge must be filed \[47\] within one year after the adjudication, unless it be made to appear to the judge that the bankrupt was unavoidably prevented from filing it within such time, in which case it may be filed within, but not after, the expiration of the next six months, \[48\] and failing to apply for his discharge within such time, the matter becomes res judicata, and he cannot by any subsequent proceedings secure a discharge from the debts provable in the former proceedings. \[49\] The referee is not obliged to notify either the bankrupt or his attorney of the date the petition for discharge must be filed. \[50\] The bankrupt being insane, the petition for his discharge should be made by his guardian. \[51\] An objecting creditor has no right to enter an appearance after the return day, and should not be allowed to do so, except for good cause shown in excuse of the delay. \[52\] A bankrupt's petition for a discharge filed in dne time cannot be dismissed because of delay in bringing the matter to a hearing after specifications of objection have been filed; \[53\] the remedy of the creditor is to move the court to set down the matter for hearing. \[54\] The bankrupt must attend the hearing of objections to his application for a discharge, \[55\] and though entitled to file papers in resistance of the specifications of objections, he is not bound to do so. \[56\] The application for a discharge being referred to a special master, to hear the facts and report his conclusions, and the specifications of objection are not sufficiently specific, the master should report back to the court that none of the objections filed require the taking of testimony. \[57\] The question of fraud in conveyances made prior to July 1, 1898, cannot be determined in a hearing on application for the bankrupt's discharge. \[58\]
- 40. Gray v. Grand Forks Mercantile Co. \[C. C. A.\] 138 F. 344. \[C. A.\] 138 F. 344. \[C. A.\] 137 F. 858. \[C. A.\] 139 F. 858. \[C. A.\] 135 F. 858. \[C. A.\] 135 F. 858. \[C. A.\] 136 F. 855. \[C. A.\] 137 F. 858. \[C. A.\] 136 F. 855. \[C. A.\] 137 F. 858. \[C. A.\] 138 F. 858. \[C. A.\] 139 F. 859. \[C. A.\] 140 D. \[C. A.\] 141 D. \[C. A.\] 142 D. \[C. A.\] 143 F. 859. \[C. A.\] 144 D. \[C. A.\] 145 D. \[C. A.\] 146 D. \[C. A.\] 147 D. \[C. A.\] 148 D. \[C. A.\] 149 D. \[C. A.\] 140 D. \[C. A.\] 141 D. \[C. A.\] 149 D. \[C. A.\] 140 D. \[C. A.\] 141 D. \[C. A.\] 142 D. \[C. A.\] 143 F. 859. \[C. A.\] 144 D. \[C. A.\] 145 D. \[C. A.\] 146 D. \[C. A.\] 147 D. \[C. A.\] 148 D. \[C. A.\] 149 D. \[C. A.\] 149 D. \[C. A.\] 140 D. \[C. A.\] 141 D. \[C. A.\] 140 D. \[C. A.\] 141 D. \[C. A.\] 142 D. \[C. A.\] 143 F. 859. \[C. A.\] 144 D. \[C. A.\] 145 D. \[C. A.\] 146 D. \[C. A.\] 147 D. \[C. A.\] 148 D. \[C. A.\] 149 D. \[C. A.\] 149 D. \[C. A.\] 140 D. \[C. A.\] 141 D. \[C. A.\] 141 D. \[C. A.\] 142 D. \[C. A.\] 1 The specifications of objection should show how the objecting party is interested.\[60\] The specifications being indefinite, the bankrupt is entitled to have them made so explicit and definite that he may have notice of the exact charge made and which he is to meet.\[61\] When based upon the ground of having committed an offense punishable by imprisonment, they should state the offense so committed with substantially the same particularity and exactness as would be required in an indictment for such an offense.\[62\] They must allege that the act was knowingly and fraudulently done.\[63\] In a specification of objection, alleging that the bankrupt has obtained property on credit for any purpose upon a materially false statement in writing made to such person for the purpose of obtaining such property on credit, not only must the false representations be set out, but the name or names of the person, or persons so alleged to have been defrauded must be given.\[64\] Specifications of objection on the ground that the bankrupt concealed property must allege such fact.\[65\] If defective in form they may be cured by amendments not changing the substantial nature of the objections.\[66\] There must be no variance between the specification and the proof.\[67\] An objection not set forth in the specifications filed cannot be considered.\[68\]

Evidence and burden of proof.\[69\] The objecting creditor must prove the commission of the offense alleged by a fair preponderance of evidence.\[71\]

(SS 23) B. Grounds for refusal.\[72\] The grounds set forth in the bankruptcy act are exclusive,\[73\] hence insanity of the bankrupt, preventing his examination by creditors, is not a bar.\[74\] The bankrupt's transactions showing that his financial difficulties were the result of suspicious and fraudulent dealings disentile him to a discharge.\[75\] A bankrupt cannot procure a discharge either in voluntary or involuntary proceedings where, within six years, he has been granted a discharge in voluntary proceedings.\[76\] Such provision is not retroactive, but applies to cases begun after the amendment took effect.\[77\] The amendment applies to voluntary as well as involuntary proceedings, and hence a bankrupt having been discharged in voluntary proceedings within six years cannot receive a second discharge in involuntary proceedings.\[78\] That a proceeding under the act of 1867 is pending at the time the bankrupt applies for a discharge in new proceedings instituted under the act of 1867.\[134\] F. 1006. Fraudulent concealment of property or assets. In re Keefer, 135 F. 885.

71. In re Levey, 133 F. 572; In re Hamiton, 133 F. 823.

01. See S C. L. 489.

01. In re Wolff, 132 F. 396.

01. In re Meyer, 133 F. 1017.

01. In r Miller, 135 F. 591. Equitable maxima, "The who comes into equity must come with clean hands." Id.

01. In re Seahoim (C. C. A.) 136 F. 144.

01. In re Neely, 134 F. 667; In re Seahoim (C. C. A.) 136 F. 144.

01. In re Neely, 134 F. 667.

01. In re Hendrick, 138 F. 667.

NOTE. Interpretation of Statute: As the other clauses in SS 14 apply to present proceedings, both voluntary and involuntary, the fact that the fifth clause begins with the words "In voluntary proceedings" would naturally indicate an Intention that those words also should be construed to apply to present rather than to former proceedings. The court's decision seems doubtful on principle. The recent tendency in America has been to give debtors a discharge whenever their creditors force them Into bankruptcy. 18 U. S. Stat. at L 1898, is no bar to a discharge from a debt proved in the former proceedings but kept alive by judgment."

_Commission of an offense._\[80\]--A bankrupt who has made a false oath or account in, or relation to, any proceeding in bankruptcy will be denied a discharge."

_Destruction of or failure to keep books of account._\[82\]--Prior to the amendment of 1903, failure to keep books must have been with fraudulent intent to conceal the bankrupt's true financial condition and in contemplation of bankruptcy." Proof of such fraudulent intent must be clear," though an intent to conceal one's financial condition may be presumed where an experienced business man fails to keep any books whatever."

_Obtaining property upon false statements._\[85\]--Since the amendment of 1903, the fact that the bankrupt obtained property on credit by means of false statements is ground for denying him a discharge," and he may properly be called upon to explain the discrepancy between the extent of his property as given in these statements and as realized by his trustee, and his right to a discharge may be made to depend upon whether or not he has satisfactorily done so;" but such statements being made by him shortly before bankruptcy, they may be considered on the question as to whether he made a false oath to his schedules or fraudulently concealed property from his trustee."

_Concealment or transfer of property._\[80\]--One transferring his property within four months of the filing of the petition with intent to hinder, delay or defraud any of his creditors is not entitled to a discharge." In order to bar the discharge

p. 3, 390, p. 180. If the creditor gets the benefit of an equal distribution of the assets, It seems just that the debtor should be freed from the handicap of debt, particularly when he took no part in instituting the present proceeding. The construction contended for would apparently fulfill the object of the amendment in preventing frequent voluntary proceedings quite as well as that adopted by the court. It would therefore seem that an interpretation contrary to the tendency of American legislation and to obvious justice to the debtor should not have been adopted untiless warranted by less ambiguous language than that used.--XVIII Hary, L. R. 225.

\*\*70. In re Herrman \[C. C. A.\] 134 F. 566. 80. See 3 C. L. 489. 81. Where a bankrupt firm did not anticipate any reversion in certain lumber transferred to a creditor, and one of the partners testified that he was morally certain that there would be none, such partner's oath to the schedules omitting such reversionary interest, held insufficient to bar his discharge. In re Hamilton, 133 F. 823. False testimony given by a bankrupt on his examination in respect to his ownership of, or interest in, property conveyed to his wife some years before the bankrupty proceedings constitutes the making of a false oath in relation to a proceeding in bankruptcy. In re Conroy, 134 F. 764. Bankrupt claiming to manage property for wife held to have an interest in the business and to be guilty of a false schedule stating that he had no such property. In re Herrman \[C. C. A.\] 136 F. 767. Evidence held to sustain finding that defendant was guilty of making a false oath in that he failed to the property must have been such as would have passed to the trustee,92 and it must have been concealed at the time the petition was filed.93

(SS 23) \_C. Liabilities released, and use of discharge.94--Only such claims as are provable95 and have been duly scheduled in time for proof and allowance with the name of the creditor, if known to the bankrupt,96 are released unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.97 The fact that the creditor's address is incorrectly given is not ground for excepting the debt from the discharge, even though as a result thereof the creditor has no knowledge of the proceeding, it not being shown that the mistake was due to any fault of the bankrupt.98 The words "notice" and "actual knowledge" as used in the act of 1898, SS 17, subd. 3, are convertible terms.99 The actual knowledge of the proceedings here contemplated is a knowledge in time so that the creditor may have an equal opportunity with other creditors.1 A judgment for costs in a criminal prosecution is satisfied by the discharge of the judgment debtor in bankruptcy.2 An assignment of future earnings cannot be enforced against the debtor after his discharge, as to wages thereafter earned by him.3 A judgment of a state court is rendered in "an action for fraud" so as to be exempt under act 1898, SS 17, subd. 2, from a discharge in bankruptcy, where such judgment was based on actual, as distinguished from constructive, fraud of the bankrupt.4 The discharge does not affect liens valid as against the trustee.5 Prior to the amendment of 1903, only

Footnote 97: Longfield v. Minnesota Sav. Bank

\[Minn.\] 103 N. W. 706; Delta County Bank

property of small and uncertain value, and

v. McGranahan \[Wash.\] 79 P. 796; West-

under the advice of an attorney omitting

from his schedules a debt which was a

\[Minn.\] 83 N. Y. S. 518. Ques-

familty matter and never intended to be

complement as tending to show that the enforced, held

insofted, held insufficient to justify a finding of fraudulent concealment. In re

seeld, 134 F. 667. Where the bankrupt,

acting under the advice of counsel, that

his remainder interest was contingent, did

not list same, held not to be bar discharge.

evolving notice or appearing in the pro-

Woods v. Little \[C. C. A.\] 134 F. 239.

82. Failure of a public officer to schedule salary earned but not payable does not

constitute a concealment of property. In re

re Doherty, 135 F. 432.

83. Concealment of property two years

before enactment of bankruptcy act held

not to bar discharge. In re Isaac Prager

& Son, 134 F. 1006.

94. See 3 C. L. 491.

01. A. Klipfenik & Co. v. Allen-Miles Co.

\[C. C. A.\] 136 F. 385; Lemert v. Lemert

\[Ohlo\] 74 N. E. 194; Groves v. Osburn \[Or.\]

79 P. 500; Young v. Stevenson \[Ark.\] 84

8. W. 623; Grosso v. Marx, 45 Misc. 500, 92

N. Y. S. 773. A nonprovable claim is not affected by the discharge. Arrington v. Arrington, 132 F. 200.

96. Longfield v. Minnesota Sav. Bank

\[Minn.\] 103 N. W. 706; Feldmark v. Weinstein, 90 N. Y. S. 478. An unscheduled judgment cannot be discharged under Code

Civ. Proc. $ 1268. Id. Where neither judgment creditors' names, nor their judgments,

not the claim on which it was based was

properly scheduled and they had no knowledge of the proceedings, held

claim not released by the discharge. Ber

helm v. Bloch, 91 N. Y. S. 40. Motion by

discharged bankrupt to cancel judgment

denied upon afflavit of creditor that his

claim had not been included in the schedule. Woodward v. Schaefer, 91 N. Y. S. 104.

97. Longfield v. Minnesota Sav. Bank

\[Minn.\] 103 N. W. 706; Delta County Bank

v. McGranahan \[Wash.\] 79 P. 796; West-

hemer v. Howard, 93 N. Y. S. 518. Ques-

tions, In a suit to enforce a claim, held

complement as tending to show that the

proofed, held insufficient to justify a finding of fraudulent concealment. In re

actual knowledge of the bankruptcy

Neely, 134 F. 667. Where the bankrupt,

ceedings. Id. That schedule did not state

acting under the advice of counsel, that

names and residences of creditor with excepting

his remainder interest was contingent, did

not list same, held not to be bar discharge.

eclying notice or appearing in the pro-

woods v. Little \[C. C. A.\] 134 F. 239.

82. Failure of a public officer to schedule salary earned but not payable does not

constitute a concealment of property. In re

re Doherty, 135 F. 432.

83. Concealment of property two years

before enactment of bankruptcy act held

not to bar discharge. In re Isaac Prager

& 5 Cur. Law. BANKruptY SS 22C.

such debts as were created by the fraud of the bankrupt while he was acting in a fiduciary capacity were excepted from the operation of a discharge; * but since the amendment the bankrupt's * liability for obtaining property by false pretenses or false representations, * or for willful and malicious injuries to the person or property of another, * is not released. The liability of a co-debtor with, or guarantor or surety for, the bankrupt, is not altered by the latter's discharge. * This section refers to co-debtors, guarantors or sureties for the bankrupt on the same or original debt, the debt on which the release is given by the discharge. * The terms "officer" and "fiduciary capacity," as used in SS 17, subd. 4, extends to all cases mentioned and are not confined to "defalcation." * The words "fiduciary capacity" are to be interpreted in a restricted sense, and include only 'technical trusts and not such as arise by implication of law. * A full discharge of individual liability of one partner on a firm debt may be had in bankruptcy proceedings concerning that one partner only. * That a firm creditor proved his claim against two of the partners in bankruptcy does not affect the liability of the other members. * The debt, being released, is absolutely canceled, * and no further proceedings to enforce it are permissible. * If the debt was evidenced by a judgment, the bankrupt is entitled to

Equitable lien of a judgment held not re-

cipal's adjudication in bankruptcy, sub-

leased. Vahlheimer v. Truslow, 94 N. Y.

sists even though the judgment becomes

S. 137. Does not affect the lien of a judge-

Inoperative against the principal. St. Louis

ment obtained, within four months prior

World Pub. Co. v. Riolto Granin & Securities

to the adjudication, upon a note waiving

the homestead exemption allowed by the

Li. A. Klipstein & Co., AIIen-Miles Co.

laws of the state upon lands set aside by

the bankruptcy court as exempt. Smith v.

the liability of a bankrupt's surety on a

Zachry, 121 Ga. 467, 49 S. E.

bond given to discharge a garnishment in

McKenney v. Chengr, 118 Ga. 387, 45 S. E.

a suit against the bankrupt on a provable

433. A discharge in bankruptcy does not

preclude a creditor who levied an attachment

ment upon property of the bankrupt more

than four months before the bankruptcy

proceedings, and who has taken a forth-

coming bond for the property, from enter-

ing such a qualified judgment against the

bankrupt as will enable such creditor to

change the sureties on the forthcoming

bond. C. D. Smith & Co. v. Lacey (Miss.)

38 So. 811.

**6. Crawford v. Burke, 25 S. Ct. 9**

(Quaere, does the amendment of SS 17A,

change the rule? Ed.).

\*\*7. An administrator misappropriating

funds belonging to the estate before the

filing of a voluntary petition in bankruptcy by a surety on his bond; a dis

charge in bankruptcy is a bar to an ac-

tion against the surety on his bond. Har

mon v. McDonald (Mass.) 73 N. E. 883.

**8. The liability of a bankrupt for the**

value of property transferred to him in

frsud of the transferor's creditors to the

knowledge of the bankrupt held not re-

leased by the discharge. Mackel v. Roch

ester, 135 F. 904. In the absence of

evidence to the contrary, a judgment for dam-

ages in an action of trover does not im-

port an acquisition of property by false

pretenses or false representations. Ex

parte Peterson \[Vt.\] 59 A. 828.

\*\*9. In an action for an assault a judge-

ment rendered by default on a recogniam

ance constitutes a liability for a willish

and malicious injury to the person and is

not released by the discharge. In re Cola-

luca, 133 F. 255.

\*\*10. The liability of sureties on an appeal

pcal bond, becoming fixed prior to the prin-

cipal's adjudication in bankruptcy, sub-

leased. Vahlheimer v. Truslow, 94 N. Y.

sists even though the judgment becomes

is 137. Does not affect the lien of a judge-

inoperative against the principal. St. Louis

ment obtained, within four months prior

World Pub. Co. v. Riolto Granin & Securities

to the adjudication, upon a note waiving

the homestead exemption allowed by the

Li. A. Klipstein & Co., AIIen-Miles Co.

laws of the state upon lands set aside by

the bankruptcy court as exempt. Smith v.

the liability of a bankrupt's surety on a

Zachry, 121 Ga. 467, 49 S. E.

bond given to discharge a garnishment in

McKenney v. Chengr, 118 Ga. 387, 45 S. E.

a suit against the bankrupt on a provable

433. A discharge in bankruptcy does not

preclude a creditor who levied an attachment

procedure as neither. Id.

ment upon property of the bankrupt more

than four months before the bankrupt proceedings, and who has taken a forth-

coming bond for the property, from have the judgment canceled,18 and the bankrupt has the absolute legal right, after obtaining his discharge, if he proceeds with reasonable diligence to have execution upon the same perpetually stayed.19 This right to have the judgment canceled is not personal with the bankrupt but extends to the owner of the bond upon which the judgment is an apparent lien.20 Neither a state court, municipal body, nor municipal ordinance, can inflict any penalty or punishment, directly or indirectly, upon the bankrupt for failing to pay the debts in full, from which the national bankruptcy law says he will be discharged,21 and a court of bankruptcy has jurisdiction to enjoin a prosecution to inflict any such penalty or punishment.22

Footnote 21: The bankrupt is a bankruptcy, which is a bankruptcy, which is a bankruptcy, which is a bankruptcy.

In order to revive a debt discharged by the discharge, the promise must be clear, distinct, and unequivocal.23 A promise to pay "as soon as possible" is not a conditional promise and as such insufficient to support an action on the original demand.24 While an oral promise, if definite and unambiguous, is sufficient to revive a debt under the bankruptcy law,25 still a written promise being required by the law of the state where the action is brought to enforce the claim, such local law governs.26 The discharge does not of itself affect the question of title to the bankrupt's property.27

Footnote 23: The bankrupt is a bankruptcy, which is a bankruptcy, which is a bankruptcy, which is a bankruptcy.

Whether or not a particular debt has been released by the discharge is left to be determined by the court in which the action is brought to enforce the debt.23 A plea of discharge failing to allege that the demand was scheduled or that plaintiff had knowledge of such proceedings is insufficient.29 The discharge being pleaded as a defense, there is a conflict as to who has the burden of proving whether it is or is not applicable.30 The bankrupt using his discharge as the basis of a suit or motion, he must prove that the discharge affects the defendant's claim.\[91\] Where, pending a suit, defendant is discharged in bankruptcy, he may plead his discharge after answer filed, which plea is in the nature of a plea pius darrien continuance.\[92\] The bankrupt setting up his discharge as a defense to an action brought against him, his only remedy from an adverse judgment is by appeal.\[88\] The discharge cannot be collaterally attacked for any cause which would have prevented the granting of the discharge, or would have been sufficient ground for its annullment.\[94\] The holder of an unscheduled claim by showing that he had neither notice nor actual knowledge of the bankruptcy proceedings does not collaterally attack the judgment.\[88\]

SS 23. _Amendment, reopening, grounds and effect.\[89\]_--Either the discharge or the petition for it may be amended after the term at which the discharge was granted, when necessary to correctly set out the character of the debts scheduled and provable and upon which the discharge operated.\[87\] Under SS 15 a discharge may be revoked upon the due application of "parties in interest," and in order to entitle creditors to come within the meaning of the phrase "parties in interest" the petition must show that they had provable debts which were affected by the discharge.\[88\] One having notice of the bankruptcy proceedings and failing to present his claim cannot have the discharge set aside to prove such claim.\[90\] A petition to reopen will be denied where there are no substantial assets remaining undministered.\[90\] A petition for the vacation of a bankrupt's discharge not alleging the time when the alleged transaction took place it will be presumed to have occurred before the petition in bankruptcy was filed.\[91\] A petition alleging fraud, it must allege facts tending to prove the fraud.\[42\] A petition for the vacation of a bankrupt's discharge being defective, it may be amended.\[93\]

scheduled and that he had no notice of the bankrupt proceedings. Lafoon v. Kerner \[N. C.\] 50 S. E. 654.

Burden is upon the bankrupt to prove that debt was scheduled in the true name of the creditor, or if not known, that he exercised reasonable diligence to ascertain such name. Fields v. Rust \[Tex. Civ. App.\] 82 S. W. 831. Evidence held to show that with reasonable diligence the true name and residence of the creditor could have been ascertained. Id.

**31. Upon a motion to have a judgment**

canceled the burden is on the moving party to show that the debt had been scheduled or that the creditor had notice. Graber v.

Gault, 93 N. Y. S. 76. The burden is on one who relies upon the discharge to overthrow to the other, as the one applying to the a title to show that the claim upon which the title is based is not within one of the classes excepted from the operation of the discharge. Imhoff v. Whittle \[Tex. Civ. App.\] 82 S. W. 1056. Where a discharged bankrupt seeks to enjoin the collection of an unlimited claim he must allege and prove that the creditor had notice or knowledge of such proceedings in time for proof and allowance of same before he can succeed in the action. Armstrong v. Sweeney \[Neb.\] 103 N. W. 436. Evidence held insufficient to show that creditor had notice. Id.

**32. Reeves v. McCracken \[N. J. Eq.\] 60 A. 332.**

**33. Howe v. Noyes, 93 N. Y. S. 476. Cannot have judgment canceled under Code Civ. Proc. $ 1268. Id.**

**34. Young v. Stevenson \[Ark.\] 84 S. W. 683. In a collateral attack on the discharge**

**35.**

**36.**

**37.**

**38.**

**39.**

## 24 Crimes and offenses against the bankruptcy law

The concealment of property by a voluntary bankrupt after his adjudication, although before the appointment of a trustee, is a concealment from the trustee, which, if knowingly and fraudulently done, constitutes a criminal offense under the bankruptcy act \[44\]. The present or past bankruptcy of the person accused is an indispensable element of the offense of having knowingly and fraudulently concealed property while a bankrupt \[45\].

## 25 Crimes and offenses against the bankruptcy law

The concealment of property by a voluntary bankrupt after his adjudication, although before the appointment of a trustee, is a concealment from the trustee, which, if knowingly and fraudulently done, constitutes a criminal offense under the bankruptcy act \[44\]. The present or past bankruptcy of the person accused is an indispensable element of the offense of having knowingly and fraudulently concealed property while a bankrupt \[45\].

## 26 Crimes and offenses against the bankruptcy law

The concealment of property by a voluntary bankrupt after his adjudication, although before the appointment of a trustee, is a concealment from the trustee, which, if knowingly and fraudulently done, constitutes a criminal offense under the bankruptcy act \[44\]. The present or past bankruptcy of the person accused is an indispensable element of the offense of having knowingly and fraudulently concealed property while a bankrupt \[45\].

## 3 1 Legal elements and evidences of illegitimacy

Children born out of wellock are illegitimate \[2\]. A child of a married woman, begotten by one who is not the husband of the mother, is a bastard \[3\]. A child born after marriage and during wellock, and within the usual period of gestation after the husband has had opportunity to have begotten it, is conclusively presumed to be legitimate \[4\]. Where the evidence shows beyond dispute that a child was conceived and born during marriage, and was not disavowed by the husband during his lifetime in the mode prescribed by law, the status of legitimacy is fixed and can be questioned by no one in any form of proceeding \[5\].

## 3 2 Rights and duties of and in respect to bastards

The right of a bastard to inherit real property is governed by the law of the situs \[7\]. In the absence of a

## 5 Cur. Law.

Bastards SS 3.

statute a child born out of wedlock cannot inherit from its father.\[8\] The conditions under which such a child, acknowledged by the father, may inherit from him, are fixed by statute.\[9\] Acknowledgment prior to the adoption of a statute giving an acknowledged child the right to inherit, under certain conditions, entitles the child so acknowledged to the benefit of the statute.\[10\] A mother cannot inherit from her bastard child,\[11\] and cannot recover, as sole beneficiary, for his unlawful death, under the provisions of Lord Campbell's act.\[12\] In New York a mother who has pronounced her illegitimate child by surrendering it to a founding hospital cannot regain custody of the child by legal process after it has been indentured by the hospital authorities, nor can the indenture be canceled at her instance.\[13\] Hence an application by her for an extract from the hospital record should be denied, since no useful purpose would be served by granting it.\[14\] A deed by a father to his bastard child is valid.\[15\]

SS 3. \_Procedure to ascertain paternity and compel support.\[16\] Nature of proceeding.--\_A bastardy proceeding is neither a civil nor criminal action, strictly speaking, but is a statutory proceeding designed, primarily, to secure to the injured female compensation for her wrong.\[17\] Hence the Minnesota statute authorizing county commissioners to compromise the claim of a county against the putative father does not authorize them to settle and release the mother's interest without her consent,\[18\] and a settlement of the public claim does not out the district

adhered to in the foregoing cases, the better reasoning and weight of authority essential the questions of a question, as legitimate or illegitimate, fixed by the proper law (see next paragraph), is held in the foregoing cases, the question arises what is the proper law by which to determine the status of a person born out of wedlock? This question cannot be here discussed. A thorough discussion and numerous authorities will be found in the note to Irvine v. Ford, 183 Mass. 448, 97 Am. St. Rep. 447, 65 L. R. A. 177, 182, from which the above is taken.

S. Lee v. Bolden \[Tex. Civ. App.\] SS 5. W.

1027.

g. Laws 1853, p. 78, c. 53, was repealed by Bunn's Ann. St. 1901, 5 2630a, which is now the law relative to inheritance by illegitimate children. Townsend v. Meneley \[Ind. App.\] 174 N. E. 274.

10. Burn's Ann. St. 1901, 5 2630a, applies where acknowledgment was before its adoption. Townsend v. Meneley \[Ind. App.\] 74 N. E. 274.

11, 12. McDonald v. Southern R. Co. \[S. C.\] 51 S. E. 183.

13. Under Laws 1872, c. 635. In re Shaplero's Succession, 24 L. Ann. 635.

01. In re Shaplero, 92 N. Y. S. 1027.

01. Hall v. Hall, 26 Ky. L. R. 610, 82 S. W. 300.

01. See 3 C. L. 498.

01. Meyer v. Meyer \[VWs.\] 102 N. W. 520.

Thus the statutory provisions in Minnesota are said to be intended not merely to indemify the public against expenses incurred in such cases, but for the protection and benefit of the mother, and the court may make a reasonable allowance for the support of the child to be paid to the mother, or for her use. State v. Hauseweded-el \[Minn.\] 102 N. W. 204.

18. Gen. St. 1894, c. 17, 5 2058. State v. Hausewedell \[Minn.\] 102 N. W. 204.

01. State v. Hausewedell \[Minn.\] 102 N. \[other district, and defendant was a house-holder and resident in neither of their districts. Johnson v. Walker \[Miss.\] 39 So. 49. \[Mich.\] 102 N. W. 1025. \[21. Comp. Laws, $ 255, 2561, 2569, construced. Harley v. Ionia Circuit Judge \[Mich.\] 12 Det. Leg. N. 269, 104 N. W. 21. \[22. Code Cr. Proc. $ 873. People v. Abrahams, 94 N. Y. S. 296. \[23. People v. French \[Kan.\] 80 P. 997. \[24. Kanorowski v. People, 113 Ill. App. 468. \[25. In Indiana, msyors, being given the jurisdiction of justices of the peace, may hear the complaint of a proseccentric In bastardy. Evans v. State \[Ind.\] 74 N. B. 244. In Florida a county judge has jurisdiction to entertain the complaint and inaugurate the proceedings in a bastardy case, and refer the same for trial to the circuit court. Edwards v. Edwards \[Fla.\] 37 So. 569. Within the territorial limits of New York jurisdiction of the county court to reduce or increase the amount directed to be paid under an order of affiliation in bastardy proceedings is conferred on the court of special sessions. Laws 1901, c. 466, 8 1409, subd. 3. People v. Crispi, 94 N. Y. S. 372. In Mississippi a Justice of the peace has authority to issue the warrant and jurisdiction to try a bastardy case, though the affladavit was made before the justice of an

## 5 Cur. Law. BASTARDS SS 3.

dictment for bastardy which follows the language of the statute and states the of-fense so plainly that the jury can understand it and with such particularity as to enable the accused to make his defense is sufficient.\[32\]

\_Judgment and bond.\[39\]--\_Under the Wisconsin statute one convicted of bastardy may be charged with the support of the child not only from the time of his conviction, but from the time of the child's birth.\[34\] Allowing the defendant twenty days in which to furnish a bond conditioned for performance of the judgment is a proper exercise of the court's discretion.\[38\] In Illinois a consent decree providing for payments for costs and maintenance of the child may be proper, though the statutory provisions as to the time and amount of payments are not literally followed.\[39\] The application for an increase of the amount allowed, provided for in New York, must conform to the statute.\[37\]

\_Evidence; presumptions; sufficiency of proof.\[38\]--\_In some jurisdictions, the child is admissible in evidence in proof of paternity to show a resemblance between it and defendant.\[39\] In others, it is held that a child under two years of age should not be exhibited to the jury for that purpose.\[40\] Here presence of the child in the court room, in sight of the jury, does not, however, call for a reversal of the judgment, where the child was not exhibited to the jury, and no comparison was made between it and the defendant.\[41\] Testimony of a witness that the bastard child resembles accused is inadmissible.\[42\] Usually the relatrix is a competent witness and, while her testimony is sufficient without corroboration,\[43\] her declarations, during travail, are competent in corroboration of her testimony.\[44\] Where relatrix is a married woman she may testify to the non-access of her husband.\[45\] Defendant may prove intercourse with others upon or near the date of conception,\[46\] and the relatrix may be compelled to testify as to such fact and may be impeached by contradictory statements made by her upon that subject.\[47\] Evidence of promises of the accused at the time of the alleged intercourse, and of his nonperformance of such promises, is irrelevant.\[48\] Proof of birth of a child on a certain day warrants the inference that the child was born alive.\[49\] Where a person arrested on a charge

fendant, refusal to admit evidence of such claim was proper. Gnnkle v. State \[Kan.\] \[Miss.\] 39 So. 48, 79 P. 1087.

**42.** McCalman v. State, 121 Ga. 491, 49 S. E. 609.

**43.** See 3 C. L. 499.

**44.** \_Trev. St. 1893, $ 1535. Sonnenberg v. State \[Vis.\] 102 N. W. 238.

**45.** Under Rev. St. 1898, $ 1535. Sonnenberg v. State \[Vis.\] 102 N. W. 238.

**46.** Kanorowski v. People, 113 Ill. App. 468.

**47.** Application to Increase the amount must be made by or under the authority of the commissioner of public charities (Code Cr. Proc. # $40, $59), and a notice of a motion for such increase which fails to show that the application is so made is fatally defective. People v. Crispl, 94 N. Y. S. 372.

**48.** See 3 C. L. 498.

**49.** Child ten months old. Shaller v. Bullock \[Conn.\] 61 A. 65. For conflict see Johnson v. Walker \[Miss.\] 39 So. 49.

**40.** Esch v. Graue \[Neb.\] 101 N. W. 978, 41. Child five months old was taken to witness stand by prosecurkl but was not introduced in evidence. Esch v. Graue \[Neb.\] 101 N. W. 978. Where chlid was in court room only two minutes and then removed, the attention of the jury not having been called to it in any way, there was of pastady marries the mother, it will not be presumed that the marriage was entered into merely to avoid the consequences of a prosecution, but it will rather be assumed that if the alleged father doubted his paternity of the child he would have resisted the proceeding.${}^{50}$ Evidence of a trial of the accused on an indictment for seduction of the mother and a verdict therein finding him guilty of formation is inadmissible, the verdict fixing no particular time when the offense was committed.${}^{51}$ Entries on the warrant, made by the magistrate presiding at the preliminary hearing, requiring accused to give a pastady bond, and in default thereof, recognizing him to the superior court, are admissible as original evidence on the subsequent trial on an indictment founded on such proceedings.${}^{52}$

Paternity of the defendant must be proved beyond a reasonable doubt in some jurisdictions;${}^{53}$ a preponderance of evidence is sufficient in others.${}^{54}$ The state is not bound to prove intercourse on any particular day or days,${}^{55}$ but the jury must be satisfied that the defendant had intercourse with the mother during a time in which, in the ordinary course of nature, the child could be begotten.${}^{56}$ It is not necessary for the jury to find that the mother was constant in her declarations that the defendant was the father of her child or that she made such declaration during her travail.${}^{57}$

_Contracts and bonds for support.${}^{58}$_--Contracts and undertakings of the father made in contemplation of a marriage with the mother, and for the purpose of having bastardy proceedings dismissed, are valid and enforceable.${}^{59}$ The moral obligation of a father to support his illegitimate children is a sufficient consideration for his bond to do so.${}^{60}$ The beneficial right in a bond given in bastardy proceedings is the separate property of the mother in regard to which she is authorized by statute to sue, although married.${}^{61}$ Furthermore, her husband would in such suit be adverse to her, so that her marriage would not render her incompetent to sue.${}^{62}$ Where such bond runs to the county judge as trustee of an express trust, he is the proper person to sue thereon as plaintiff without joining the beneficiary.${}^{63}$ Where the bond provides for the determination of the amount to be paid, and the manner of its payment by the county judge, in the event that the parties cannot agree-such determination is a condition precedent to the maintenance of any action on the bond.${}^{64}$

**SS 4.**_Legitimation, recognition, adoption.${}^{65}$_--Statutes providing that illogitit-introduced in evidence. Esch v. Graue \[Neb.\]\_

101 N. W. 978.

\*\*50.\*\*Hall v. Gabbert, 213 Ill. 208, 72 N. E.

\*\*51.\*\*McCalman v. State, 121 Ga. 491, 49

\*\*52.\*\*Instruction of court that such entries were in substantial compliance with the statute was proper. McCalman v. State, 121 Ga. 491, 49 S. E. 609.

\*\*53.\*\*Instruction approved. Sonnenberg v. State \[VWs.\] 102 N. W. 233. Evidence held sufficient to warrant finding of jury that defendant was guilty. Johnson v. Walker \[Miss.\] 39 So. 49.

\*\*54.\*\*Evidence sufficient to prove paper-nity of defendant. State v. Knutson \[S. D.\] 101 N. W. 33: McNeal v. Hunter \[Neb.\] 101 N. W. 236.

\*\*55.\*\*Hence alibi held not proven, when confined to only two days, no evidence as to accused's whereabouts on intervening days being given. Beck v. People, 115 Ill. App. 19.

\*\*56.\*\*Sonnenberg v. State \[VWs.\] 102 N. W. 233.

\*\*57.\*\*Shaller v. Bullock \[Conn.\] 61 A. 5.

\*\*58.\*\*See 3 C. L. 497, n. 45.

\*\*59.\*\*Bastardy proceedings dismissed where father promised marriage and gave mortgage conditioned that he would not desert wife and child; mortgage held valid and enforceable when husband deserted wife and child. Jagnrav v. Perkins \[Vt.\] 60 A. 385. Bond for support of woman and child in consideration of discontinuance of bas-tardy proceedings is not against public policy (citing many authorities) Meyer v. Meyer \[VWs.\] 102 N. W. 52.

\*\*60.\*\*Trayer v. Setzer \[Neb.\] 101 N. W. 98.

\*\*61.\*\*Rev. St. 1898, SS 2345. Meyer v. Meyer \[Wis.\] 102 N. V. 53.

\*\*62.\*\*Rev. St. 1898, SS 2608. Meyer v. Meyer \[Wis.\] 102 N. W. 52.

\*\*63.\*\*Rev. St. 1898, SS 2607. Meyer v. Meyer \[VWs.\] 102 N. W. 52.

\*\*64.\*\*Meyer v. Meyer \[VWs.\] 102 N. W. 52.

\*\*65.\*\*See 3 C. L. 499.

5 Cur. Law. BETTING AND GAMIing SS 1A.

mate children whose parents have intermarried shall be considered as legitimate do not merely fix the status of such a child but are rules of descent by which he inherits the same as though legitimate.\[66\] But statutes providing that a bastard child shall inherit from the father when recognized by him in writing as his child are merely statutes of descent and do not affect the status of a bastard.\[97\] Hence a child so recognized cannot take under a will giving property to his father and his "lawful issue," these words being construed to include only legitimate children.\[68\] Statutes providing for legitimation by recognition of the child by the father, and subsequent marriage of the parents, do not apply where the father was the husband of another woman when the child was begotten.\[69\] Under a statute which does not define what shall constitute an acknowledgment, the burden is upon the child seeking partition of her father's real estate, to prove an acknowledgment that was clear and unambiguous, and such as would exclude all but one interpretation.\[69\] General or notorious recognition of the child is a sufficient acknowledgment in Iowa.\[70\] Under the Nebraska statute marriage of the parents of an illegitimate child does not legitimize the child unless other children are born after the marriage, and unless the father adopts the bastard child into his family, or acknowledges him in writing signed in the presence of competent witnesses.\[71\] The Missouri statute providing that the issues of all marriages decreed null in law, or dissolved by divorce shall be legitimate, does not make legitimate children of a white man and negro woman who lived together without any marriage of any kind.\[72\] Whether a natural child has been adopted as legal heir may be a question of fact.\[73\] A deed describing the grantee as the grantor's adopted daughter cannot be regarded as an adoption under a special act of the legislature authorizing the adoption.\[74\]

Beneficialaries; Beneficial Associations; Betterments, see latest topical index.

BETTING AND GAMIING.

SS 1. The Offense and Criminal Prosen- (420).

1. The Offense (417).

1. The Offense (417).

1. Recovery Back of Money Lost (421).

1. Indictment or Information and Trial Procedure (420).

SS 1. \_The offense and criminal prosecutions.\[69\] A. The offense.\[72\]--Gambling is a generic term and includes every act, game, or contrivance by which one intentionally exposes money or other value to a risk or hazard,\[73\] in which pure chance has any place.\[73\] In general it is not essential that both parties should stand to lose but it is sufficient if one party stands to lose or to win by chance,\[74\] though in

66. Constructing Hurd's Rev. St. 1903, c. 39, g 3. Hall v. Gabbert, 213 Ill. 208, 72 N. 806.

01. Constructing Code, g 3385. Brisbin v. 74. Evidence held to warrant finding that there had been no adoption of an 1-6S. Brisbin v. Huntington \[Iowa\] 103 N. 144.

01. Hall v. Hall, 26 Ky. L. R. 610, 82 S. W. 300.

01. Evidence held sufficient to show acknowledgment. Townsend v. Meneley \[Ind. App.\] 74 N. E. 274.

01. Evidence held Insufficient to show general or notorious recognition of a child by the father. Brisbin v. Huntington \[Iowa\] 103 N. W. 144.

01. Comp. St. 1901, c. 32, g 31, must be 73. Harriages between whites and blacks 5 Curr. L-- 27.

01. Constructing Hurd's Rev. St. 1903, c. 39, g 3. Hall v. Gabbert, 213 Ill. 208, 72 N. 806.

01. \_A. The Offense.\[73\]--Gambling is a generic term and includes every act, game, or contrivance by which one intentionally exposes money or other value to a risk or hazard,\[73\] in which pure chance has any place.\[73\] In general it is not essential that both parties should stand to lose but it is sufficient if one party stands to lose or to win by chance,\[74\] though in

01. Constructing Hurd's Rev. St. 1903, c. 39, g 3. Hall v. Gabbert, 213 Ill. 208, 72 N. 806.

01. \_A. The Offense.\[73\]--Gambling is a generic term and includes every act, game, or contrivance by which one intentionally exposes money or other value to a risk or hazard,\[73\] in which pure chance has any place.\[73\] In general it is not essential that both parties should stand to lose but it is sufficient if one party stands to lose or to win by chance,\[74\] though in

01. Constructing Hurd's Rev. St. 1903, c. 39, g 3. Hall v. Gabbert, 213 Ill. 208, 72 N. 806.

01. \_A. The Offense.\[73\]--Gambling is a generic term and includes every act, game, or contrivance by which one intentionally exposes money or other value to a risk or hazard,\[73\] in which pure chance has any place.\[73\] In general it is not essential that both parties should stand to lose but it is sufficient if one party stands to lose or to win by chance,\[74\] though in

01. \_A. The Offense.\[73\]--Gambling is a generic term and includes every act, game, or contrivance by which one intentionally exposes money or other value to a risk or hazard,\[73\] in New York a scheme wherein the player stands to win only is not gambling.84 A bet is a mutual agreement and tender of a gift of something valuable, which is to belong to one of the contending parties, according to the result of the trial of chance or skill or both combined.82 Playing poker with a three cent limit is none the less gaming because of the small amount of money involved,83 and the throwing of dice for money is within the Texas statute on betting.84 Playing pool under an agreement whereby the losing player pays for the use of the table is within a statute forbidding betting at a pool table.84 A lottery is a scheme for the distribution of valuable prizes by chance.85 Buying on margins options for future delivery is not necessarily a gambling contract,87 but such a purchase where delivery is not intended is illegal,88 irrespective of statute, being contrary to public policy.89 The general test is the intention not to actually deliver the goods contracted,89 and in some states the purchase on margin for future delivery of commodities not needed in the ordinary course of the purchaser's business is prima facie evidence that the transaction is a wagering contract.91 Each act of betting at a gaming table makes the keeper thereof guilty of a separate offense under the statutes of most of the states.89 One making wagers by telegraph with persons in another state may be guilty of gambling though such other persons are not violating their local laws in accepting the wagers.89

\_Validity of regulations.84--\_Legislation prohibiting gambling or acts which may facilitate it will not be interfered with by the court unless such legislation be a clear, unmistakable infringement of rights.89 The suppression of gambling is concededly within the police powers of a state,99 and the regulation thereof may be delegated to the municipalities.97 The state has unquestioned power to make the bucket shop business indicitable,88 and a statute prohibiting dealing in margins is not unconsatutional as violating the fourteenth amendment,99 nor are such transactions matters of interstate commerce.1 A statute which incidentally operates to prevent interstate wagers by telegraph is not, therefore, unconstitutional.2

\_Cards and other table games.8--\_By statute the playing of a game with cards, not at a private residence occupied by a family,4 or the playing of a game with cards at a private residence commonly resorted to for the purpose of gaming, may

81. Cullinan v. Hosmer, 100 App. Div. 95. Ah Sin v. Wittman, 25 S. Ct. 756. 148. 91 N. Y. S. 607. 96. Ah Sin v. Wittman, 25 S. Ct. 756: 82. Mayo v. State \[Tex. Cr. App.\] 82 S. Town of Ruston v. Perkins \[La.\] 83 S. Ford v. State \[Miss.\] 38 S. So. 229. 84. Harnage v. State \[Tex. Cr. App.\] 82 S. W. 512. 85. Pen. Code, 1895, $ 401. Hopkins v. State \[Ga.\] 50 S. E. 851; Mayo v. State \[Tex. Cr. App.\] 82 S. W. 515. 15. 86. Bowen v. Lynn \[Neb.\] 102 N. W. 460. 87. State v. Clayton \[Nc.\] 50 S. E. 866: Kendall v. Friess \[N. Y. Law\] 83 A. 1090; State v. McGinnis \[N. C.\] 51 S. E. 50. 88. Paducah Commission Co. v. Boswell, 26 Ky. L. R. 1062, $ S. W. 144: State v. Clayton \[Nc.\] 50 S. E. 866; State v. McGinnis \[N. C.\] 51 S. E. 50. 80. State v. Clayton \[Nc.\] 50 S. E. 866. 148. 151 S. E. 50. 80. State v. Clayton \[Nc.\] 50 S. E. 866. 160. State v. Clayton \[Nc.\] 50 S. E. 866. State v. McGinnis \[N. C.\] 51 S. E. 50. 91. St. 1905, c. 638, $ 5. State v. Clayton \[Nc.\] 50 S. E. 866; State v. McGinnis \[N. C.\] 51 S. E. 50. 92. Mayo v. State \[Tex. Cr. App.\] 82 S. W. 515. 93. Ames v. Kirby \[N. J. Law\] 59 A. 558. 94. See 3 C. L. 500. 95. Ah Sin v. Wittman, 25 S. Ct. 756. 96. Ah Sin v. Wittman, 25 S. Ct. 756: 82. Mayo v. State \[Tex. Cr. App.\] 83 S. Toyn of Ruston v. Perkins \[La.\] 38 S. So. 583. 97. Town of Ruston v. Perkins \[La.\] 38 S. So. 583. A charter power to "prevent and suppress gaming and gambling pleas" does not authorize a city to make such places \[lawful by licensing them. State v. Nease \[Or.\] 80 P. 897. An ordinance making unlawful the visiting or resorting to a bar-ricaded place where gambling implements are exposed to view its not unconstitutional. Ah Sin v. Wittman, 25 S. Ct. 756. 98. State v. McGinnis \[N. C.

5 Cur. Law. BETTING AND GAMING SS 1A.419

be unlawful.\* The characteristics of a gaming table are first, it is a game, second, it has a keeper, dealer, or exhibitor, third, it must be exhibited for the purpose of obtaining bettors.\* The game of faro is a banking game.\* One who participates in a game, and is dealer and manager thereof, may be convicted of exhibiting a gaming table,\* but one who furnishes a table and participates in a game of craps thereon, without becoming banker, is not guilty of keeping and exhibiting a gaming table or bank.\* The setting up of a poker table is not within a statute forbidding the setting up or keeping of any gambling device commonly called, A. B. C., faro bank, roulette, equality, keno, or any kind of gambling table or gambling device; * but otherwise of a crap table,\* or the game of chuck-a-luck.\*\[12\]

_Racing and race tracks.\[13\]_--To maintain a telegraph and telephone office for collection of news as to horse races is not illegal in New York,\[14\] though by statute the receiving and recording of money bet on a horse race is prohibited.\[15\] Equity may restrain by injunction the maintenance of a pool room.\[16\]

_Slot machines.\[17\]_--In Maine a slot machine whereon the player is guaranteed in trade the equivalent of his deposit, but stands to win more, is a gaming device,\[18\] though the rule is otherwise in New York.\[19\] The illegal use of a slot machine is a nuisance and may be enjoined.\[20\]

_Gaming at public place.\[21\]_

_Keeping a gaming place.\[22\]_--Before any sort of gambling was prohibited or even considered to be against public policy, the keeping of a common gaming house was punishable at common law as a nuisance, because it tended to draw together disorderly persons.\[23\] To be indictable as a nuisance at common law, a place must be a "common" gaming house.\[24\] Keeping a gaming house may be punished under a statute forbidding the willful and wrongful commission of any act which grossly disturbs the public peace or which openly outages public deecency and is injurious to the public morals.\[48\] A turf exchange on the principal thoroughfare of a city where people daily congregate to bet upon horse races is a gaming house punishable as a nuisance at common law, whether the betting is a crime or not.\[26\] A resort where wagers upon horse races are made by telegraph has been held to be a gambling place,\[27\] and the maintenance of a pool room may be enjoined by a court of equity.\[28\] By statute in some states it is illegal to knowingly rent a place or room a little game of poker," is sufficient to support an information charging the "unlawful playing of a game with cards" not at a private residence. Inman v. State (Tex. Cr. App.) SS 5. W. 796; Mapes v. State (Tex. Cr. App.) SS 5. W. 797; Evidence examined and held insulient to support a conviction of gaming with cards at a place other than a private residence. Pallawell v. State (Tex. Cr. App.) SS 5. W. 1049.

5. A residence may be a private residence though not occupied by a family. Pen. Code 1855, art. 379; Acts 27th Leg. p. 26, c. 22. Williams v. State (Tex. Cr. App.) 37 S. W. 1155.

1. Mayo v. State (Tex. Cr. App.) 82 S, W. 515.

1. State v. Behan, 113 La. 754, 37 So. 714.

1. Coffee v. State (Tex. Cr. App.) 87 S. W. 820.

1. Coleman v. State (Tex. Cr. App.) 87 S. W. 152.

1. Rev. St. 1899, $ 2194. State v. Etchman, 184 Mo. 193, 83 S. W. 978.

1. Rev. St. 1899, $ 2194. State v. Locket (Mo.) 87 S. W. 410.

1. Rev. St. 1899, $ 2194. State v. Roschalv, 185 Mo. 114, 83 S. W. 975.

1. See 3 C. L. 501.

1. People v. Green, 44 Misc. 375, 89 N. Y. S. 998.

1. Pen. Code, $ 351. People v. Ebel, 98 Ap. Div. 270, 90 N. X. S. 628.

1. Cella v. People, 112 Ill. App. 376.

1. See 3 C. L. 501.

1. Lang v. Merwin, 99 Me. 486, 59 A.

1. Cullinan v. Hosmer, 100 App. Div. 148, 91 N. Y. S. 607.

1. Lang v. Merwin, 99 Me. 486, 59 A.

1.

1.

1. See 3 C. L. 502.

1. State v. Nease (Or.) 80 P. 897.

1. State v. Carrick \[Vt.\] 61 A. 35.

1. B & C. Comp., $ 1330. State v. Nease (Or.) to be used for gaming purposes,\[29\] and one may be convicted therefor if the circumstances were such as to give a man of ordinary intelligence and caution good reason to expect that it would be put to the illegal use.\[30\]

(SS 1.) _B. Indictment or information and trial procedure.\[31\]_-In a prosecution for gaming, the state may rely on an offense committed any time within the limitation period,\[32\] but must prove an exact date within that period,\[33\] and there can be no conviction for keeping a gaming place on evidence relating only to a time subsequent to the issuing of the warrant.\[34\]

A conviction for dealing in margins contrary to statute may be had in the county where the orders were given and the money paid.\[35\] Under the New Jersey statute it is not necessary that both parties to the betting transaction be within that state.\[36\]

Indictments must allege all the statutory elements of the offense,\[37\] but an indictment for permitting games of chance in one's dwelling house, which informs the accused of the nature and cause of the accusation and so identifies the offense as to insure the accused against a subsequent prosecution therefore is sufficient.\[38\] In some statcs it is not necessary for the indictment to allege with whom the defendant played.\[39\] A count charging the keeping of a gaming house and aiding and assisting therein is not double.\[40\]

Circumstantial evidence may be sufficient to authorize a conviction for gaming.\[41\] Under an indictment charging conjunctivly that defendant played and let at a game played with cards, dice, and balls, there may be a valid conviction upon proof that the game was played with either cards, dice, or balls.\[42\] The admissibility of certain matters in evidence is noted below.\[43\]

SS 2. _Penalties and seizure of implements.\[44\]_

\[1\] \[2\] \[3\] \[4\] \[5\] \[6\] \[7\] \[8\] \[9\] \[10\] \[11\] \[12\] \[13\] \[14\] \[15\] \[16\] \[17\] \[18\] \[19\] \[20\] \[21\] \[22\] \[23\] \[24\] \[25\] \[26\] \[27\] \[28\] \[29\] \[30\] \[31\] \[32\] \[33\] \[34\] \[35\] \[36\] \[37\] \[38\] \[39\] \[40\] \[41\] \[42\] \[43\] \[44\] \[45\] \[46\] \[47\] \[48\] \[49\] \[50\] \[51\] \[52\] \[53\] \[54\] \[55\] \[56\] \[57\] \[58\] \[59\] \[60\] \[61\] \[62\] \[63\] \[64\] \[65\] \[66\] \[67\] \[68\] \[69\] \[70\] \[71\] \[72\] \[73\] \[74\] \[75\] \[76\] \[77\] \[78\] \[79\] \[80\] \[81\] \[82\] \[83\] \[84\] \[85\] \[86\] \[87\] \[88\] \[89\] \[90\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[90\] \[91\] \[94\] \[97\] \[98\] \[99\] \[91\] \[92\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[90\] \[91\] \[93\] \[95\] \[97\] \[98\] \[99\] \[99\] \[90\] \[91\] \[94\] \[99\] \[91\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[91\] \[92\] \[94\] \[99\] \[97\] \[98\] \[99\] \[99\] \[90\] \[91\] \[99\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[91\] \[93\] \[95\] \[99\] \[91\] \[94\] \[99\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[91\] \[92\] \[93\] \[94\] \[95\] \[96\] \[97\] \[98\] \[99\] \[99\] \[99\] \[99\] \[91\] \[92\] \[94\] 5 Cur. Law. BIGAMY. 431

SS 3. _Recovery back of money lost._\[48\]--By statute, money lost at 'gambling 49 or in pursuance of a gaming contract 47 may be recovered by civil action against the winner 48 or the stakeholder.49 In some states this right of recovery is given to the wife, children,50 heirs, executors, administrators, and creditors of the looser if sued upon within a given time,51 or by statute the state may sue for money lost at gambling, the wife being the beneficiary of any judgment recovered.52 The law does not generally lend its aid to relieve any one of several parties who knowingly and intentionally embark in a gambling venture,53 and when an illegal contract has been fully executed and the money arising therefrom deposited to the credit of one or more of the respective parties, such depository cannot, when sued therefor, successfully plead the illegality of the transaction,54 but in so far as a gambling scheme has not been executed, the party advancing the money may sue therefor or establish his claim in bankruptcy.55 Money lost in betting on horse races cannot be recovered.56 At common law, to render a contract void as a wagering contract, it must appear that both parties understood and agreed, expressly or impliedly, the things which constituted it, as matter of law, a wagering contract.57 To successfully defend on checks given in stock and cotton speculations, one must fairly prove that the transaction was a mere dealing difference.58 The Nebraska statute on recovery applies to such kinds or descriptions of gambling only as are mentioned therein.58 That a transaction grew from gambling contracts does not prevent the recovery of money paid by mistake.59 A principal may recover funds misappropriated by its agent in the purchase on margin of produce whose actual delivery was not contemplated.51 Pleadings in such actions are liberally construed.52

**BIGAMY.**

Most statutes provide an exception in case the first husband or wife has been absent for such time as to create a presumption of death,58 and the statute in Texas excepts any person whose husband or wife shall remain absent from the state 55, 56. In re E. J. Arnold & Co., 138 F. 189. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 199.

- 422 BLACKMAIL BONDS SS 1. 5 Cur. Law. for five years,54 or willfully remains absent in desertion for five years.55 A: valid first marriage must be shown.56 It may be proved by the admissions of defendant 67 or by the record,58 or in any other manner allowed in other proceedings.69 Time and place thereof need not be alleged in the indictment.70 An offense akin to bigamy is created by a statute in Arkansas prohibiting the willful marrying of the wife of another.71 Under such statute the prosecution must prove scienter.72 BILL OF DISCOVERY; BILL AND NOTES; BILL IN EQUITY; BILL OF LADING; BILL OF SALE; BITH REGISTERS, see latest topical index.

Footnote 5: The first author is a copy of the author, and the second author is a copy of the author.

Footnote 5: The second author is a copy of the author, and the third author is a copy of the author.

Footnote 5: The third author is a copy of the author, and the third author is a copy of the author.

is afterwards filled in by one duly authorized,83 or unless the signers themselves afterwards duly ratify the insertion.84 No surety is necessary.85

Footnote 84: The signers are not in the sense that they are not in the * 434 BONDS $ 1. 5 Cur. Law. required by the court in the exercise of his discretion is a common-law and not a statutory bond." A bond given pursuant to an unconstitutional statute cannot be upheld as a valid common-law obligation." An action to recover penalties purely statutory cannot be maintained on a bond good only as a common-law obligation."

\_Consideration.--\_As in the case of other contracts a bond must be supported by a consideration."

_Execution."_--The omission of the date does not render the bond invalid.1

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

The fact that the name of a party appearing in the body of the bond as security is not signed to the instrument does not render it invalid as to the principal and the other security who have properly signed it,2 nor does the fact that the corporate name of the principal is abbreviated in the body of the instrument, where it is capable of identification." A bond purporting to be given by a corporation but signed only by an individual is defective.4 Where the signatures of the sureties are forgeries the bond is void,5 and it is not validated by the fact that the sureties were approved by the proper officer.6

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

Statutory bonds must be approved in the prescribed manner.7

_Delivery._--The conditional delivery of a bond under seal cannot be made to a party thereto without waiving the benefit of the condition, unless the condition appears on the face of the instrument." Where a bond is delivered to the obligee showing on its face that one of the persons named as sureties in the body of the bond has not signed, such fact is sufficient to place the obligee upon inquiry, so as to permit the surety to set up the defense that his liability was conditioned on the signature of his co-surety.10

Footnote 10: City of Butte v. Cook, 29 Mont. 88, 14 P. 67.

\*\*95. Supersedeas bond in common-law certiorar. Webb v. McPherson & Co. \[Ala\_\] 38 So. 1009. 96. Pursuant to Code Civ. Proc. $ 1208, requiring contracts in reference to the execution of buildings to be secured by bonds which shall invite to the benefit of materialmen. W. W. Montague & Co. v. Furness, 145 Cal. 205, 78 P. 640. 97. Hillman v. Mayher \[Tex. Civ. App.\] 85 S. W. 818. 98. See 3 C. L. 509. A bond executed by defendant to secure payment to him of salary as clerk of board of education pending contest for that office, and conditioned to save city harmless in case defendant was defeated, held supported by consideration. McLaughlin v. Board of Education of CoVington, 26 Ky. L. E. 1126, 83 S. W. 568. Bond and contract, the performance of which it was given to secure, held to have been executed as nearly contemporaneously as possible, the parties being in different states, and the mere fact that the former was dated two days later than the latter did not render the bond without consideration. Stabuber v. Ellett \[Mich.\] 12 Det. Leg. N. 156, 103 N. W. 606. Consideration for bond given by private bank to treasurer of creamery association held to be the safe custody of the funds deposited with it by the association. Nelson & Albin Creamery & Cheese Mfg. Co. v. Armstrong, 93 Minn. 449, 101 N. W. 968. 99. See 3 C. L. 509. 1. Repelvin bond. W. W. Kimball Co. v. Thaca \[R. I.\] 59 A. 919. 2. Appeal bond. McCermmid v. Judge \[Ga.\] 49 S. E. 800. 3. Abbreviation of corporate name of appellant in body of appeal bond held not prejudicial, since meaning was. shown by identification with different parts of the record. Eichorn v. New Orleans & C. R. Light & Power Co. \[L.\] 38 So. 526. 4. Repelvin bond. W. W. Kimball Co. v. Tasca \[R. I.\] 59 A. 919. 5. Bond to dissolve mechanics' liens signed by sureties impersonating others, who gave false answers as to their property. Freed v. Gardner, 187 Mass. 300, 72 N. E. 983. 6. By fact that sureties on bond to dissolve mechanics' liens were approved by master in character. Only approves qualification and fitness of sureties, and does not pass on question of genueness of signatures. Breed v. Gardner, 187 Mass. 300, 72 N. E. 983. 7. The endorsement on the bond of a school book publisher (Ky. St. 1903, $ 4424) of the word "approved" followed by the signatures of the ex offclio members of the state board of education is sufficient approval. Approval by board by entry on record book not necessary. American Book Co. v. Wells, 26 Ky. L. R. 1159, 83 S. W. 82. 83. See 3 C. L. 510. 9. Delivery of bond guaranting that obligee would realize certain sum from sale of certain property held waiver of condition that it should not apply in case sale was made under deed of trust. Bieber v. Gans, 24 App. D. C. 517. 10. City of Butte v. Cook, 29 Mont. 88, 14 P. 67.

5 Cur. Law. Bonds $ 3. 428

**SS 2.**_Rights of parties and transferees._\*\*11--\*\*The assignee of a replevin bond takes it subject to every defense which the maker had against the assignor.12

**SS 3.**_The terms and conditions in general; interpretation and legal effect._\*\*13--\*\*Bonds are to be construed in accordance with the recognized rules for the interpretation of contracts.14 The intention of the parties, to be ascertained from the words employed, the connection in which they are used, and the subject-matter in reference to which they are contracting, must control.18 The language must receive a reasonable construction.10 The entire instrument will be considered, and, if possible, a construction adopted which will render the whole contract operative,17 and the courts cannot interpolate terms and conditions as to which the minds of the parties have not met.18

Footnote 27: The author is grateful to The statute in pursuance of which a bond is given is to be regarded as a part of it,23 and the bond must, if possible, be so construed as to the scope of its obligation, as to cover the objects of the statute in requiring it.24 So, too, where a bond is conditioned for compliance with certain covenants of a specified lease, such covenants are as much a part of the condition of the bond as if set fourth at large therein.25

1126, 83 S. W. 568. Defendant having had

which obligors agree to erect buildings, or knowledge of all the facts, board was not

in default thereof, to pay a certain sum,

estopped to recover on bond on ground that

while not technically an alternative contract,

that kept defendant in office, recognising

tract, partakes of the nature of one.

him as clerk, and that he had performed

Cullough v. Moore, 111 Ill. App. 545. Held

all duties as such clerk. Id. Provision in

not too vague to be enforceable where no bond given to secure payment of notes

buildings were erected, though general in

that "said notes may be from time to time

items and leaving much to the discretion of the obligors. Id. Bond executed by

have been for purpose of enabling the

highway improvement contractors

collibinge to take renewals without affect-

tioned that they would promptly pay all

ing the liability of the snrety. Haney

debts incurred by them in the prosecution of

School Furniture Co. v. Medary \[Wis.\] 101

the work, including labor and materials,

N. W. 929. Is a presumption that sum

hald not to render them or their sureties

named in bond given by one selling out

business to secure performance of contract

curred by subcontractor. Miller v. State

not to engage in the business in the same

\[Ind. App.\] 4 N. Z. 260. Where a surely

town within a specified time is for a pen-

hands itself unconditionally for the faithful

sity and not for stipulated damages, and

contrary must be made to appear. Dis-

oswray v. Edwards \[N. C.\] 49 S. E. 957. In-

the regulations of the contract providing

servation erroneous in informing jury that

that changes shall only be made on the

sole question was whether bond was

entrict order of the architect are not fol-

tered into when sale was made. Id. In

bonds for immediate collection of judgment,

102 Mo. App. 707, 77 S. W. 327. Under U. R.

full restitution Includes Interest on the

Comp. St. 1901, which provides that a surety

amount of the judgment. Haunts v. Lannannan Co., 2 Ohio N. P. (N. S.) 405.

fromd of country treasmry conditioned to

"faithfully perform the duties of his office"

is breached by failure to pay over to a city

the proportion of proceeds from liquor

licenses to which it is entitled. Lehigh Co.

v. Gossler, 24 Pa. Super. Ct. 406. Questions

relating to settlement of county treasmry's

accounts respecting the proportion of

lior license taxes payable to clites must be

determined by courts, and hence cannot set

np an adjudication by the auditors against

a claim by a city for its proportion. Id.

General bond of telephone company held to

cover damages to land of abutting owner

by reason of additional servittable imposed

by creation of poles on highway, and court

in continuing injunction against it will

limit it so as to prohibit their erection on

plaintiff's private property only, though

supervisors have not consented to use of

roads. Pfoutx v. Pennsylvania Tel. Co., 24

Pa. Super. Ct. 105. Bond given by private

bank to treasurem of creasmry association

for faithful performance of its duties as

**eustodiana** of association's funds was to continue for one year. Within year agreement

was indorsed thereon to the effect that

boid should stand good until a successor to

bank should be elected and qualified, which

was signed by principal and suretes. Deposits were made for over nine years, when

bank failed. Held, that bond continued in-

definitely in force until successor was ap-

pointed and suretes were liable for amount

due at time of failure. Nelson & Albin

Cremery & Choses Mfg. Co. v. Armstrong,

$3 Minn. 449, 101 N. W. 968.

**Building contractor's bonds:** Bond by 5 Cur. Law. BONDS SS 4.

As between a bond and a collateral security, the bond is the principal debt in law, and must govern the rights of the parties between themselves.26 It also governs as to the claims of volunteers, and they are affected by it without notice.27

Bonds given by assurance companies are in the nature of insurance contracts to be construed as contracts for compensation and the companies become identified with their principal and are bound by his acts.28

The question whether the sum named in the bond is to be regarded as liquid-dated damages or as a penalty is fully treated elsewhere.29

Conditions precedent to a right of recovery must be performed,30 unless waived.31

SS 4. \_Remedies and procedure.38--\_All official bonds, whoever may be named as obligee, are given for the use of parties having a legal interest in their enforcement.38 Where a bond in bastardy proceedings runs to the county judge as trustee of an express trust, he is the proper person to sue thereon without joining with him the beneficiary.34 If the language of a contractor's bond and the proved circumstances of the ease make plain the the intention of the parties to secure not only the owner of the building but the laborers and materialmen as well, then the latter may avail themselves of the security thus provided, though they are not specially named in the bond and no consideration passes directly from them to the surety.38

26. Godshalk's Estate, 24 Pa. Super. Ct. 410. Grantor in deed charged part of purchase money on land, the interest to be case he failed to obtain his discharge, had paid to grantor and his wife and the survlor during their lives, and upon death of that there was no use in defendant's going survivor, fund was to go to legal helrs of grantor or to those legally entitled to same.

Granter executed bond conditioned for payment of fund, after death of grantor and his wife, to parties entitled to receive same terms of bond. Bleber v. Gans, 24 App. D. C. but a provisional one to heirs, subject to implied power to vest title in others by will; and beneficiaries under will entitled to take to exclusion of heirs. Id.

27. Deed above referred to was recorded, but bond was not. Held immaterial that heirs had no notice of the bond. Godshalk's Estate, 24 Pa. Super. Ct. 410.

01. Deviation from the contract by the contractor and subcontractor upon whose bond defendant company was surety. Held not discharged from liability to principal contractor. Cannot invoke doctrine of strict-issmlm juris. Pacific Bridge Co. v. U. S. F1-dilty & Guaranty Co., 33 Wash. 47, 73 P.

01. See Damages, 3 C. L. 997.

01. Where bond in bastardy proceedings provides that amount to be paid prosecutrix, if same cannot be agreed upon by the parties, shall be determined by the county judge and shall be paid in the manner designated by him, no action can be maintained thereon until such determination. Meyer v. Meyer \[VWs.\] 102 N. W. 62.

01. The obligee may show a waiver of stipulated conditions precedent in lieu of performance unless such waiver has the effect of making a new contract or obligation. Guilford Granite Co. v. Harrison Granite Co., 23 App. D. C. I. Statement of plaintiff's attorney that bond given by defendant in a capalis, conditioned upon his A bond binding the principal and each of the sureties in a specified sum is joint and several.36 So also is one in which the obligors "bind ourselves, our heirs, executors, administrators, and each and every one of them." " 37 By statute in many states joint bonds are made joint and several." The surety on a joint and several bond may be sued alone.39

A condition of a contractor's bond that suit must be brought thereon within six months after breach of the contract is satisfied by suit within six months after the owner knew of a breach by failure to pay for labor and materials.40

In Texas the state may have successive recoveries on a liquor dealer's bond, either by suits in its own behalf or by parties aggrived, until it is exhausted.41

\_Pleading and evidence.42--\_The breach of the bond by the principal must be pleaded in an action against the sureties.43 The mere allegation that judgment has been recovered against him is insufficient.44 The performance of conditions precedent must be alleged.45

In a suit on a penal bond, in which the county and district are both interested, the declaration should show whether it is for an injury or loss suffered by the county or the district,46 and in what the injury consists.47

A defense that the bond sued on was extorted in proceedings which were void for want of jurisdiction is the subject of a plea in bar and not of a plea to the jurisdiction.48

sons who may be injured by any breach of its conditions, subcontractors may use ther for breach of condition to "well and truly pay all claims for labor and material furnished for the work," whereby they were injured. Getchell & Martin Lumber & Mfg.

Co. v. Peterson, 124 Iowa, 599, 100 N. W.

550. Subcontractor cannot be deprived of his rights by any act of the owner. Id. Laborers and materialmen may sue on a contractor's bond, conditioned on payment for labor and materials for a public building, as a contract made for their benefit. Buffalo Forge Co. v. Culien & Stock Affg. Co., 105 Mo. App. 484, 79 S. W. 1024. The fact that the bond contains a clause authorizing its assignment to laborers and materialmen, and stipulating that in such case it shall invute to the benefit of all of them, does not prevent a materialman from suing on it as a contract for his benefit, where he is the only creditor of the contractor. Id.

SG. Bond filed with petition for private rosd. Mariposa County v. Knowles \[CaL\] 79 P. 536.

S37. When joint obligors bind each executor, the obligors are by implication severally bound, since liability of executor arises from that of his testator, and both are necesarlly bound to the same extent and in like manner. Lehigh Co. v. Gossler, 24 Pa. Super. Ct. 406.

SS. Suretles may be proceeded against without first bringing action against the principals. Rev. St. 1899, 8 889. Bond executed by a contractor and builder, with surety, to save owner harmless from Ilens. Manny v. Natloni Surety Co., 103 Mo. App. 716, 78 S. W. 69.

SO. Where statute provides that persons severally limbic upon same obligation may all or any of them be included in the same action at plaintiff's option. Pacific Bridge 5 Cur. Law. BONDS SS 4. 429

If the conditions of the bond are merely to indemnify the obligee, a plea of non damnificatus is good;" but if the bond is an affirmative covenant to do a specific thing and not one of indemnity against damages, liability must be adjudged, though no loss results from nonperformance and the plea is bad.${}^{\\spadesuit}$

Recovery cannot be had on a bond as a common-law obligation in an action which is distinctly a suit thereon as a statutory bond, with allegations appropriate thereto,${}^{\\spadesuit}$ but in such case plaintiff may be allowed to amend so as to set up facts entitling him to recover thereon as a valid common-law obligation.${}^{\\spadesuit}$

The ordinary rules of pleading${}^{\\spadesuit}$ and evidence apply.${}^{\\spadesuit}$

A declaration alleging performance of conditions precedent is not supported by proof of facts constituting a waiver thereof.${}^{\\spadesuit}$

_Judgment and damages.${}^{\\spadesuit}$_--The judgment in an action on a bond given to secure the performance of a contract should be for the penalty of the bond and the amount of damages assessed, and should provide that the judgment shall stand as security for further breaches.${}^{\\spadesuit}$ In an action on the official bond of a probate judge, it is proper to enter judgment for the penalty of the bond, with a direction to the master to advertise for claims and report them to the court.${}^{\\spadesuit}$

In a suit for a liquidated sum of money, due under the express terms of a bond under seal, it is proper, on sustaining a demurrer to a plea to the declaration, to refuse to permit the damages suffered by plaintiff to be assessed by a jury, and to enter up judgment for the amount claimed.${}^{\\spadesuit}$

In case a replenu bond does not comply with the statutory requirements and hence is not good as a statutory bond, the court is not authorized to enter summary judgment against the sureties, but the remedy thereon is by separate action.${}^{\\spadesuit}$

The debt for which the surety can be held liable is limited by the penalty named in the bond, but interest may be collected thereon from the time when it became the surety's duty to pay it, though the aggregate of principal and interest exceeds the penal sum.${}^{\\spadesuit}$

49. Westfall v. Albert, 212 III. 68, 72

a portion of the proceeds of such sale is in-N. E. 4. Bond conditioned that lessee would semflect to support a summary judgment remove improvements before expiration of for want of a sufficient afflavit of defense. lease, given in pursuance of an order of a court of chanery "to execute a penal bond," held not such an obligation as to preclude defendants from raising question whether or not it was intended merely as a contract of indemnity. Demurrer to pleas of non damnificatus properly overruled. Id. 50. Westfall v. Albert, 212 III. 68, 72

a. portion of the proceeds of such sale is in-N. E. 4. The controlling question in such case is whether the sum named is to be regarded as a penalty or as liquidated damages. Id.

See Damages, 3 C. L. 997.

51. Hillman v. Mayher \[Tex. Civ. App.\]

85 S. W. 818.

52. Wall v. Mount, 121 Ga. 831, 49 S. E. 778.

01. See 3 C. L. 516. See, also, Pleading, 4 C. L. 980.

Narr. in action on contractor's bond held demurrable for failure to assign breaches with sufficient particularity. United States v. Jacoby, 4 Pen. \[Del.\] 487, 60 A. 863. In an action against a surety on the bond of an administrator given for the sole purpose of securing proper distribution of the proceeds of the sale of reality for the payment of debts, a statement of claim falling to allege that an award made by the orbans' court and claimed by plaintiff was Where an owner is obliged to pay a judgment on a mechanic's lien for which a surety is liable, he is entitled to recover the costs incurred in the proceedings against him, the amount of the lien plus interest to the date of the judgment, and interest on such judgment plus the amount of costs, from the date of its rendition.62

"Bottle" and "Cax" Laws; Bottomly and Respondentia; Boubert and Sold Notes, see latest topical index.

## 1 Rules for Locating or Identifying

8 1. Rules for Locating or Identifying

(430). Monuments, Courses and Distances,

and Quantity (430). Conflicts Between

8 4. Establishment by Acquelescences, ExPlats, Maps and Monuments (431). Government Surveys (432). Highways, Streets or

9 5. Establishment by Arbitration, Action or Statutory Mode (434).

8 2. R. Blurring or Litoral Boundaries (432).

(432).

## 2 Rules for locating or identifying

As a general rule, a line marked part of the way will be continued in the same direction for the full distance.64 A line may be determined by reversing the calls from a located monument to the point of beginning.65 The actual location of a boundary may be presumed,66 and it may be a question of fact 67 even in a statutory proceeding.68 If the name of a natural object called for is applicable to several objects it is a question of fact as to which was intended.69 A boundary may be determined by circumstances surrounding the delivery of possession of land conveyed if the deed contains no definite description.70 A call of the land of a third person as a boundary extends to the true line and is not a conventional one agreed upon by parol by the parties at the time the deed was executed.71 A call for the width of a way controls for the entire length of the way.72

Monuments, courses and distances, and quantity.73 Calls for the determina-a building contract runs to the owner and

103 N. W. 241. Where test-all persons who may be injured by its

## 5 Cur. Law. BOUNDARIES SS 1.

tion of boundary lines which are inconsistent are to be given prevailing effect in the following order : Natural objects; \[14\] artificial marks; \[78\] courses and distances. \[79\] Courses and distances control quantity, \[77\] but a call for quantity may be considered where the calls for boundaries are ambiguous in that they can be satisfied by either of two lines, \[78\] or where it is evident that there is a mistake in the calls. \[79\]

\_Conflicts between plats, maps and monuments. \[80\]--A recorded plat of a survey is prima facie evidence of the correctness of the lines therein laid down and is not overcome by the absence of blazed lines or traces after many years. \[81\] Where lands are conveyed by reference to a plat, the notes and lines of the plat control the boundaries \[82\] irrespective of the field notes, \[88\] but such reference does not preclude the showing of where the line actually fell on the ground. \[84\] Where a boundary is to be located between adjoining lands, that method of constructing the line should be adopted which will present an arrangement of several surveys as nearly identical with that shown by the original map as possible, instead of an observance of courses and distances which would result in the destruction of the original configuration of the surveys. \[85\] If it does not appear that a boundary was established by any particular survey, resort may be had to the field notes of all the surveys of the land. \[88\] The general intent of a plan to exhibit a symmetrical plat prevails over a particular intent with reference to a certain line. \[87\] Maps are but slight evidence of the configuration of a beach line many years earlier where it is shown that changes are constantly taking place. \[88\] Calls in a patent may be corrected by resort to the surveyor's plat. \[89\]

## 74 Kleven v. Gunderson \[Minn.\] 104 N. V. 4

Monsuments: Leverett v. Bullard, 121 Ga. 1130. 1130. 1130. 1131. 1132. 1133. 1134. 1135. 1136. 1137. 1138. 1139. 1138. 1139.

_Government surveys._"The beginning corner of a survey is of no greater\_ _dignity than other calls._"Original corners as established by government surveyors, if they can be found, or the places where they were established, if they can be definitely determined, are conclusive whether they were located correctly or not." An original survey upon the faith of which property rights have been based and acquired control surveys subsequently made which affect such rights._"Where some of the calls in the field notes of a surveyor must be treated as mistakes those which will produce the fewest possible conflicts should be selected._"Where there is ambiguity in the field notes as applied to the land upon which the survey was made, extrinsic evidence is admissible to locate the survey," but the boundaries as shown by calls in a patent cannot be overthrown by parol evidence of the surveyor's statement before making the survey as to a monument he would take for a beginning corner._"_Highways, streets or ways as boundaries._"--A boundary on a way includes the fee to the center thereof unless the terms of the grant indicate the limitation of its intent to the exterior line of the way._"\_

**SS 2.**_Riparian or littoral boundaries._"--It is presumed that the owner of the bank of a stream owns to the thread thereof,\_"_and the fact that he conveys all the land on one side of the stream or up to the meander line is insufficient to rebut this presumption._" A call to an unnavigable stream 3 \_or other body of water 4 _extends to the thread thereof, but one to a navigable stream ordinarily extends_

**90.** See 3 C. L. 620.

**Note:** _Lines run by government surveyors of public lands as boundaries. See_ _11 Conn. 60: Rich v. Minneapolis, 37 Min._ _Rowell v. Weinemann, 119 Iowa, 256, 93 N. W. 2, 5 Am. St. Rep. 861; Copp v._ _W. 279, 97 Am. St. Rep. 310, and note._ _Neal, 7 N. H. 275; Dell Rapids Mercantile_ _91._ _Wilkins v. Clawson \[Tex. Civ. App.\]_ _Co., 701 Lsqidk, 11 S. D. 116, 75 N. W. 883 S. V. 712._ _898, 74 Am. St. Rep. 783; Western Union_ _92._ _Washington Rock Co. v. Young_ _\[Utah\] 80 P. 382. Evidence held to sustain a finding as to the location of a government corner. Unzelmann v. Shelton \[S. D. J 108 N. W. 646. The actual location of a government corner controls though it does not correspond fully with the calls in the field notes. Tyler v. Haggart \[S. D. J 102 N. W. 682. The actual point of establishingment of a government corner controls the field notes of the surveyors if such point is established by clear proof. Thayer v. Spokame County, 36 Wash. 68, 78 P. 200._ _The actual location on the ground of an original government corner controls the field notes. Unzelmann v. Shelton \[S. D. J 103 N. W. 646._ _93._ _Washington Rock Co. v. Young_ _\[Utah\] 80 P. 382. Where there is a conflict of the boundaries between surveys, the elder title prevails. Vincent v. Blanton \[Ky.\] 85 N. W. 703._ _94._ _Lyon v. Vraggoner \[Tex. Civ. App.\]_ _83 S. V. 46._ _95._ _Wilkins v. Clawson \[Tex. Civ. App.\]_ _83 S. V. 732._ _96._ _Ratilf v. May \[Ky.\] 84 S. V. 731._ _97._ _See 3 C. L. 651. A conveyance of lots abutting on a public way. Western Union Telegraph Co. v. Krueger \[Ind. App.\]_ _74 N. E. 25; Smith v. Belott \[Wis.\] 100 N. W. 877; Mott v. Eno, 97 App. Div. 580, 90 N. Y. S. 608. A conveyance bounded by a road. Mitchell v. Einstein, 94 N. Y. S. 210._ \_Notes Prima facie the adjacent propriter to owns to the middle of the highway; or if the same person owns on both sides he he 5 Cur. Law. BOUNDARIES SS 4. 433

only to low-water mark * unless the grantor owns the fee of the bed of the stream.\* Grants of government lands bounded oh streams and other waters, without any reservation, are to be construed as to their effect according to the law of the state where the lands lie.\* The sudden changing of the course of a boundary stream does not change the boundary.\*

_A meander line_ * is not a boundary, but one designed to point out the sinus of the bank or shore.\*

SS 3. _Establishment by agreement of adjoiners._\[10\]--To make a valid oral agreement between contiguous owners there must be uncertainty as to the true line,\[11\] but if such uncertainty exists an oral agreement carried into execution is valid, without other consideration than the settlement of the dispute.\[12\] Such an agreement is not within the statute of frauds,\[13\] and need not have been recognized for a period necessary to give title by adverse possession \[14\] and is enforceable in equity.\[16\]

SS 4. _Establishment by acquiescence, estoppel, or adverse possession._\[16\]--_A boundary may result from an estoppel,\[17\] and if recognized for a long period of 5. Edwards v. Woodruff, 25 Pa. Super._ had been recognized for a period suffcient Ct. 575. Where low water mark of a river is a state boundary it cannot confer a right to use a bridge beyond such mark. Evans-\[Xy. 8 & S. W. 988.\].

Ville & H. Traction Co. v. Henderson Bridge Co., 134 F. 973. Survey following shore INCE. Adjustments and settlements: INE held to be the proper boundary. Kleven v. Gunderson \[Minn\]. 104 N. W. 4.

- 6. Where a grantor owns the land under a navigable stream, a conveyance with the gas. The effect of the agreement is not to, thread. Smith v. Bartlett \[N. Y.\] 73 N. E. 63.

7. Whitaker v. McBride, 25 S. Ct. 530. Hence, a rule of local law that an owner of land bordering on a river owns to the center of the channel lures to the benefit of a patentee. Id.

1. Channel changing from one side of an island to the other did not change the boundary of the counties. Witt v. Willis \[Xy.\] 85 S. V. 223.

1. See S C. L. 522. Withaker v. McBride, 25 S. Ct. 530, and cases there cited.

1. See S C. L. 522.

Note: See Diffany, Real Property, 681 et seq.

11. Le Comte v. Carson \[W. Va.\] 49 S. E. 238; Mays v. Hinchman \[W. Va.\] 50 S. E. 833.

01. Le Comte v. Carson \[W. Va.\] 49 S. E. 238; Mays v. Hinchman \[W. Va.\] 50 S. E. 833.

01. Le Comte v. Carson \[W. Va.\] 49 S. E. 238; Mays v. Hinchman \[W. Va.\] 50 S. E. 833. Whether a line established by a fence was a consentable one held a question for the jury. Dunlap v. Reardon, 24 Pa. Super. Ct. 55.

Where adjoiners take conveyances from a common gramator with reference to a line he has located on the ground such line becomes the boundary irrespective of lapse of time. Herse v. Mazza, 100 App. Div. 59, 91 N. Y. 8. 778.

13. Though portions of the land of each is left in the possession of the other. Frazier v. Mineral Development Co. \[Ky.\] 86 S. W. 983.

01. Frazier v. Mineral Development Co. \[Ky.\] 86 Ill. 983. Evidence held to show that a boundary fixed by oral agreement is Cmr. L. - 98.

years is established by acquiescence \[18\] unless such recognition was under an erroneous belief that the boundary was the true one.\[19\]

Occupancy under a claim of ownership up to a certain line for the period necessary to give title by limitations establishes a boundary by adverse possession,\[20\] but if there is a dispute as to the true line before the period has elapsed, the line is not fixed.\[21\]

SS 5. _Establishment by arbitration, action or statutory mode.\[22\]_--Equity has no jurisdiction of a suit where mere confusion of boundaries exist,\[23\] but will pass upon the question as incidental to other relief.\[24\] The method provided by the Federal land department for restoring lost meander lines has been adopted by some states.\[25\] The boundaries as established by a survey applied for as provided by law is binding on one who joined in the application and was present when his land was surveyed though no formal notice of the survey was served upon him \[26\] unless he appeals from the report of the surveyor within the statutory period after it is filed.\[27\] Processioners have no authority to run a boundary line between adjoining owners where no boundary had been previously located.\[28\]

All evidence tending to show the location of the line is admissible.\[29\] Where

not the boundary. Clark v. Hindman \[Or.\] \[102 N. W. 645; Off v: Heinrichs \[VWs.\] 102 79 P. 56. An unrecorded sealed agreement \[103\], whether a line had been executed by a grantor to his grante purquesting for the jury, Seitz v. People's mentioned in a previously executed deced is binding on subsequent holders under the grantee with notice. Wendall v. Fisher, 187 Mass. 81, 72 N. E. 822. The calls in a lease with an option to purchase erroneous-only made because of a mistake of the lessor are binding on him (Naughton v. \[104\], 102 N. Elliott \[N. J. Eq. 59 A. 869\], and cannot be varied by parol evidence (Id.). Where valuable improvements are made relative to a division line agreement, and such line is acquiesced in for a long period the parties are estopped to dispute it. Diedrich v. Simmons \[Ark.\] 87 S. W. 648.

**IS.** Triding by a grantee to a line recognized as the true line by both him and the grantor for 10 years. Dows' Real Estate & Trust Co. v. Emerson, 125 Twan 86, 99 N. W. 724. Fence recognized by adjoining owners as the line for 10 years. Hardon v. Stultz, 124 Iowa, 734, 100 N. W. 851.

**Where a laid out highway has been used within certain marked boundaries for 30 years it cannot be overtworth by a new survey based on assumptions and uncertainty as to lines of the original survey. Town of Vernon v. Nicolai \[VWs.\] 103 N. W. 111. Where lines are recognized and acquiesced in for 40 years they will control over a subsequent survey though the original survey was defective. Smith v. Belotti \[VWs.\] 100 N. W. 877. Where parties purchase with reference to a certain line and recognize it as the true line for many years it will be so regarded. Sullivan v. Michael \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 198, 87 S. W. 1061.**

**Evidence Insufficient to show that a boundary had been established by acquiescence. Catoosa Spring Co. v. Webb \[Ga.\] 50 S. E. 942.**

**19.** Boone v. Graham, 215 III. 511, 74 N. E. 559.\*\*

**20.** See Adverse Possession, 5 C. L. 45. An oral agreement to have a survey made will not affect it. Lamb v. Lamb \[Mich.\] \[102 N. W. 645; Off v: Heinrichs \[VWs.\] 102 79 P. 56. An unrecorded sealed agreement \[103\], published by adverse possession held a question for the jury, Seitz v. People's Jan. Bank \[Mich.\] 12 Det. Leg. N. 96, 103 N. W. 546.\*\*

**21.** Evidence held for the jury as to whether there was an agreement for a survey prior to the expiration of the lmitation period. Lamb v. Lamb \[Mich.\] 102 N. W. 645.\*\*

**22.** See 3 C. L. 523.\*\*

**23.** See 3 C. L. 523, n. 13.\*\*

**24.** McCreery Land & Investment Co, v. Myers \[S. C.\] 49 S. E. 848. Interplearder held not the proper remedy to settle a bound-ary dispute. Stephenson & Coon v. Ehr-det \[T. Va.\] 48 S. E. 846.\*\*

**24.** Le Comte v. Carson \[W. Va.\] 49 S. E. 238. Equity will determine boundaries where coterminous owners have acquiesced in a line agreed on for a long period and valuable improvements have been made relative to it. Diedrich v. Simmons \[Ark.\] 87 S. W. 649.\*\*

**25.** Circular of the United States Land Office of March 14, 1901. Kleven v. Gunderson \[Minn.\] 104 N. W. 4.\*\*

**26.** Survey made under Gen. St. 1889, \*\*SS 1836, 1838, replaced by Gen. St. 190 43

adjoiners claim from a common source it is not necessary for one who is plaintiff in an action to determine the division line to show that he derived title from the state.\[80\]

Bounties.

Bounties on enlistment in the army or navy \[31\] and bounties paid for capture or destruction of hostile ships \[32\] are elsewhere treated.

The Nebraska act to promote the growth of beet sugar and chicory is invalid as embracing two subjects,\[83\] and no obligation rests on the state to pay bounties on sugar whose culture was induced by the act.\[34\] The Massachusetts act providing for the payment of bounties to certain civil war veterans is unconstitutional.\[85\]

\_Coyote bounties.\[86\]--The California act of 1891 provided for the presentation of coyote bounty claims to the board of supervisors who issued a certificate,\[37\] and on the approval thereof by the board of examiners \[88\] the controller was authorized to draw a warrant for the claim provided a proper appropriation had been made.\[89\] Such act was held not to violate the constitutional limitation of indebtedness.\[40\] Many claims remaining unpaid because no appropriation was made, the legislature provided that suit might be brought against the state thereon,\[41\] and such statute is held not to be special legislation,\[43\] nor does the enlargement thereby of the period of limitations \[44\] violate the constitutional prohibition against the making of gifts by the legislature.\[44\] Perfected claims for coyote bounties are assignable \[45\] by parol,\[46\] and evidence of such parol assignment does not contradict a contemporaneous power of attorney to receive payment on the certificates,\[47\] and in a suit on such claims, approval of the certificate by the board of examiners need not be alleged.\[48\] The certificate of the board of supervisors is prima facie evidence of the validity of claims for coyote bounties in a suit against the state therefor.\[49\] The act of 1891 is now repealed, but such repeal did not destroy the evidentiary

30. Handshoe v. Conley \[Ky.\] $4 S. W.

01. Where a statute allowing bounties makes no appropriation therefor, claims for which bounties are not debts within the constitutional limitation of indebtedness. Bick-

01. Military and Naval Law, 4 C. L. 640.

01. See WVar, 4 C. L. 1818.

01. Oxnard Beet Sugar Co. v. State

\[Neb.\] 102 N. W. 80. See 3 C. L. 525, n. 38.

34. Oxnard Beet Sugar Co. v. State

\[Neb.\] 102 N. W. 80. See 3 C. L. 525, n. 40.

35. Tn re Bounties to Veterans \[Mass.\]

72 N. E. 95. It appropriates public money

for private purposes, and such conclusion

paid by state officers without a prior appropation are not to be considered in deter-

is not avoided by the fact that the bounty is made payable for monores allowed the state by the Federal government as reimbursement for war expenses, for such mon-

Lyss having been previously applied to payment of the state debt, the bounty act took

from the state treasury money which could only be replaced by taxation. Id.

36. See 3 C. L. 525, n. 41.

01. A certificate signed by the clerk, re-

citing an order of the board of supervisors, is a sufficient compliance with the statutory requirement that the board shall give a certificate verified by its secretary. Bickerdike v. State, 144 Cal. 698, 78 P. 277.

38. The board of examiners though authorized to hear other evidence may allow claims for coyote bounties on the certificate of the board of supervisors. Bickerdike v. State, 144 Cal. 681, 78 P. 270.

01. Bickerdike v. State, 144 Cal. 681, 78 P. 270.

01. Where a statute allowing bounties makes no appropriation therefor, claims for which bounties are not debts within the constitutional limitation of indebtedness. Bickerdike v. State, 144 Cal. 698, 78 P. 277.

01. St. 1901, p. 646. Bickerdike v. State, 144 Cal. 698, 78 P. 277.

01. Bickerdike v. State, 144 Cal. 698, 78 P. 277.

01. Where a statute allows suit on certain claims against the state and provides a period of limitation, suits brought within

such time are not affected by the fact that the general limitation of 'suits against the state had run before the passage of such statute. Bickerdike v. State, 144 Cal. 698,

78 P. 277.

44, 45. Bickerdike v. State, 144 Cal. 698,

78 P. 277. Evidence of assignment of claims held sufficient. Bauer v. State, 144 Cal. 740, 78 P. 280.

46, 47, 48, 49, 50. Bickerdike v. State, 144 Cal. 698, 78 P. 277.

effect of certificates previously issued thereunder.\[50\] Under the Idaho statute only ears need be presented unless the commissioners require more.\[51\]

\_Presenting false claims.\[52\]--\_The statute relating to the making of false affairs in support of claims does not supersede the statute relating to the presentation of false claims.\[53\] It is not essential to the offense of presenting a false claim for coyote bounty that the same should have been allowed or paid,\[54\] nor is it a defense that the spurious coyote scalps presented were easy of detection.\[58\]

BOXOUT; BNADS, see latest topical index.

**BREACH OF MARRIAGE PROMIISE.\[54\]**

\_The promise and breach thereof.\[57\]--\_The agreement to marry must be mutual.\[58\] A contract to marry a woman already married to another, made less than five years after the disappearance of her husband, is immoral and unenforceable, even though the marriage was not to take place until five years after her husband's disappearance, or until a divorce was obtained.\[59\] Whether the breach has been condoned, and defendant released from his promise, is a question determinable by reference to the facts of each case.\[60\] A petition which alleges the ability of the parties to contract marriage, the mutual promises to marry and their terms, and the defendant's breach, sufficiently states a cause of action for breach of promise of marriage.\[61\]

\_Damages.\[62\]--\_Damages may be recovered in full compensation for pain, mortification, and wounded feelings of the plaintiff, the amount being for the jury.\[63\] Seduction of the plaintiff by defendant after the promise to marry and pending the engagement may be alleged and proved in aggravation of damages,\[64\] and the allegation of seduction does not affect the character of the demand as one for breach

51. Act 1901, p. 205, not Rev. L. 1887, 1901. Governns. State v. Adams \[Idaho\] 1760b, governs. State v. Adams \[Idaho\] 179 P. 398. Governns. State v. Adams \[Idaho\] 1760c, 2001. Governns. State v. Adams \[Idaho\] 1761b, 2001. Governns. State v. Adams \[Idaho\] 1762b, 2001. Governns. State v. Adams \[Idaho\] 1763, 2001. Governns. State v. Adams \[Idaho\] 1764, 2001. Governns. State v. Adams \[Idaho\] 1765, 2001. Governns. State v. Adams \[Idaho\] 1766, 2001. Governns. State v. Adams \[Idaho\] 1767, 2001. Governns. State v. Adams \[Idaho\] 1768, 2001. Governns. State v. Adams \[Idaho\] 1769, 2001.

of contract."5A demand for damages for breach of promise of marriage and scduction is provable in bankruptcy though the damages are unliquidated."60 But a plea of discharge in bankruptcy, in such an action, is insufficient if it fails to allege that the demand was scheduled or that plaintiff had knowledge of the proceedings."67

\_Evidence; instructions.--\_Evidence of the social and financial condition of the plaintiff and defendant is admissible as affecting the question of damages."8 Evidence of an offer to marry plaintiff after she had instituted the action is inadmissible.60 Neither party to an action for breach of promise of marriage is a competent witness.70 A charge to the effect that plaintiff may recover in proof of the contract of marriage and its breach by defendant is erroneous because excluding the defense of a justifiable refusal to carry out the promise.71

Breach of the Peace, see latest topical index.

## 11 BRIBERY.72

\_Nature and elements of offense.78--\_Neither at common law,74 nor under the generally accepted modern definition of bribery,78 is that offense confined to the giving and receiving of rewards by judicial officers, or other persons concerned in the administration of justice; but it may be committed by any officer,78 including legislative officers77 or any person with official duties in any way connected with the administration of the government.78 The test is whether the matter is one that may be brought before the officer in his official capacity,79 and if the bribe is given

Footnote 78: Though a school director In corruptly accepting money for his vote or in-between in the appointment of teachers may not be technically guilty of bribery, yet for such an act he may be indicted at common law. Commonwealth v. Brown, 23 Pa. Super. Ct. 470.

68. Evidence that plaintiff lived with mother and step-father, that the latter was a drunkard and abused her, that her home surroundings were not agreeable, and that defendant knew these facts, held admissible. Heasley v. Nichols \[Wash.\] 80 P. 789.

01. Heasley v. Nichols \[Wash.\] 80 P. 769.

70, 71. Graves v. Rivers \[Ga.\] 61 S. E.

318.

001. Barbiery of jurors, see the forthcoming article on Embracery, $ C. L. --, corruptly procuring witnesses to absent themselves, see Obstructing Justice, 4 C. L. 853.

001. See 3 C. L. 827. Pen. Code, $ 86, was not repealed by Const. art. 4, $ 35. Ex parte Bunkers \[CaL.\] 81 P. 748.

001. State v. Sullivan \[Mo. App.\] 84 S. W.

001.

001. Commonwealth v. Brown, 23 Pa. Super. Ct. 470.

001. A chief of pollce engaged in assisting a sheriff to make an arrest is a peace officer within the meaning of the statutes defining the offense of attempting to bribe a peace officer. Lee v. State \[Tex. Cr. App.\] 85 S. W. 894. Bribery of an officer of the United States is an Offense known to the law. Rev. St. $ 5461 \[U. S. Comp. St. 1901, p. 3880\]. That is a proper designation of the offense denounced in this statute. United States v. Green, 136 F. 618.

001. State v. Sullivan \[Mo. App.\] 84 S. W.

001.

001. Though a school director In corruptly accepting money for his vote or in-between in the appointment of teachers may not be technically guilty of bribery, yet for such an act he may be indicted at common law. Commonwealth v. Brown, 23 Pa. Super. Ct. 470.

001. See 3 C. L. 527, n. 76. The fact that a common council had no authority to make the contract in question did not prevent the payment of money to councilment to influence their action in favor of the contract from constituting a violation of the statute defining bribery of a legislative officer. Comp. Laws, $ 11,131, People v. MoI \[Mich.\] 100 N. W. 913; People v. Ellen \[Mich.\] 100 N. W. 1008. The question of whether the act of voting on the passage of an ordinance, by an aderman, is an act relating to his official capacity, cannot be tested by the validity or invididity of the privilege sought to be granted, but depends upon the question of whether or not the ordinance was one dealing with a subject over which the common council had jurisdiction, and upon which the members had a right to vote, as the use and control of the public streets. Murphy v. State \[Wis.\] 102 N. W. 1087. It is no defense to a charge of bribery of an aderman that the proposed ordinance, on which his vote and action were corruptly influenced, would have been invalid if passed. Id. Nor can arbitration proceedings, Irregularly instituted, be relied upon to show that an official had no power to act, so that he could not be guilty of re-cyclving a bribe to influence his official action. As where the city ordinances authorized arbitration to persons aggrieved by the refusal of the building inspector, when vested with discretionary power, to grant a building permit, provided an application and received by the accused with the understanding that it should influence him in his official action, it is immaterial whether he was or was not, or could or could not be so influenced.\[80\] Where the statute predicates criminality on the receipt of something of value, a mere promise or illegal undertaking is not sufficient to support a conviction.\[81\]

The offense of bribery embraces any attempt to bribe,\[82\] but the actual tender of a bribe is not necessary to perfect the offense of offering a bribe; any expression of an ability to produce a bribe is all that is necessary.\[83\]

Solicitation of a bribe is an offense in most states.\[84\] The power of expulsion of a member of the legislature for bribery is not affected by the constitutional provisions, disqualifying from holding any public office or trust any member convicted of bribery.\[85\]

_Indicment.\[86\]_--\_Imit material variances as in other cases are diregarded.\[87\]

Several indicitments are discussed as to form in the cases cited in the note.\[87\]

_Evidence.\[88\]_--\_Conversations subsequent to the abandonment of the conspiracy to bribe may be shown where their purpose was to prevent exposure.\[88\] Cases discussing the sufficiency of the evidence are cited below.\[89\]

therefor was made within 48 hours after notification of the refusal; but the application was not made until after the expiration of such time, and in a case where the Inspector had no discretionary power. State v. Dunn \[VVis.\] 102 N. V. 955.

Gian Agent held subject of bribery with respect to execution of leases of land. Sharp v. U. S., 138 F. 878. The legislative committee on commissions and retrenchment was power to investigate loan associations and the taking of a bribe by a member of the committee to influence his action in respect to such investigation is crimmal.

Ex parte Bunkers \[Cal.\] 81 P. 748.

So. State v. Dunn \[Vis.\] 102 N. W. 955.

S1. See S C. L. 527, n. 83. A bank check is not an "obligation for the payment of money" within the meaning of the term as used in the statute for the punishment of bribery of United States officers. Rev. St. $ 5451 \[U. S. Comp. St. 1901, p. 3676.\]

United States v. Green, 138 F. 618. Under the statute of Wisconsin relating to bribery, which probbits the receipt of any pecunary or personal advantage, present or prospective, proof of the acceptance of a promise to pay money in the future will support a conviction. Rev. St. 1898, $ 4475.

Schultz v. State \[Vis.\] 104 N. W. 90. Where the statute makes a crime to agree to receive, as well as to receive, anything of value, proof of receiving a mere promise to give or do something in the future will not support a charge of receiving property or anything of value. Such promise is made illegal by the statute and is therefore of no value. Id.

S2. An indictment is not bad because in the acusing part it names the offense as bribery, but sets forth the offense, in the specific description of it, only as an attempt to bribe. Commonwealth v. Bailey, 26 Ky. L. R. A. 583, 82 S. W. 299.

SS. Lee v. State \[Tex. Cr. App.\] 85 S. W. 804.

S4. Under the statute of Missouri making it a felony to bribe a legislative officer, it is a misdemeanor for such officer to bribe.

5. Cur. Law. BRIDGES SS 2.

\_Trial and instructions.\_91--Where several defendants are charged with bribery, growing out of the same transactions and the same evidence is relied upon to convict all of them, juror who have sat in the trial of part of the defendants are subject to challenge for cause in other cases.92 In a prosecution for attempt to bribe, a charge defining a bribe in the terms of the statute 4s proper,93 and a charge that the exact language, in which the offer was made, need not be proven, is harmless, even if erroneous, when the exact language is proved.94 A charge in a prosecution for bribery was not objectionable as omitting the element of "corrupt intent," in defining the offense, when the court employed the term "corruptly" in stating the charge preferred in the indictment and defining the offense.95 Nor does the statement that, if the check "was so (corruptly) given and received, it is immaterial whether or not it did or could, in fact, influence him in his official action," eliminate from the instructions the element of corrupt intent.96

**BRIDGES.**

SS 1. Regulation and Control (480).

SS 2. Establishment and Location of Phab-In

**SS 3.**\_Contracts and construction.--\_Public officers have only such authority to make contracts for the building and repair of bridges as is specially conferred by law; \[6\] and authority conferred to rebuild or repair a bridge when damaged or rendered unsafe by the elements contemplates only damage by some extraordinary means and not by ordinary wear and tear. \[6\] Failure to complete a bridge within the time limited in the contract, caused by the service of an injunction upon both the city and the contractor, does not put him in default. \[7\] Neither unauthorized or collusive acts by a supervising engineer or a member of the board of supervisors, nor payments for the construction of a bridge, made without knowledge of the default of the contractors, nor the use of the bridge by the public, will estop a county, when sued for a balance due on a bridge contract, from setting up a counterclaim for damages for breach of contract by the substitution of inferior materials. \[8\] Nor will the fact that payment was voluntarily made on an unauthorized bridge contract constitute a defense to an action to recover moneys unlawfully drawn from the county treasury. \[9\] In Pennsylvania, upon the disapproval of a county bridge by the inspectors and their report of the amount to be deducted from the contract price, the court of quarter sessions cannot enter judgment against the contractors, after hearing evidence, but must approve, modify, or disapprove the report. \[10\]

**SS 4.**\_Public liability for costs and maintenance. \[11\]--\_The inherent power resides in the state to compel the maintenance and repair of bridges as parts of the legally located highways, \[12\] and their .construction, support, and maintenance is u burden or duty, \[13\] which the legislature may impose on the municipal subdivisions of the state in such proportion as it may see fit. \[14\] The proceedings to enforce

not for water from rain and melting snow \[6\] & Laws of 1890, p. 1179, c. 688, $ 10, as blown by the wind upon the house. Sad- \[7\] & Law of 1895, p. 408, c. 606. lier v. New York, 93 N. Y. S. 579. \[8\] & See 3 C. L. 530. A commissioner of highways has no authority to make such contracts in behalf of the town unless specially authorized by statute. Livingston v. Stanford, 99 App. Div. T. 108, 91 N. Y. S. 117. \[9\] & See 3 C. L. 530. A commissioner of highways has no authority to make such contracts in behalf of the town unless specially authorized by statute. Livingston v. Stanford, 99 App. Div. T. 108, 91 N. Y. S. 117. \[10\] & See 3 C. L. 531. \[11\] & See 3 C. L. 532. \[12\] & See 3 C. L. 533. \[13\] & See 3 C. L. 534. \[14\] & See 3 C. L. 535. \[15\] & See 3 C. L. 536. \[16\] & See 3 C. L. 537. \[17\] & See 3 C. L. 538. \[18\] & See 3 C. L. 539. \[19\] & See 3 C. L. 539. \[20\] & See 3 C. L. 530. \[21\] & See 3 C. L. 530. \[22\] & See 3 C. L. 531. \[23\] & See 3 C. L. 532. \[24\] & See 3 C. L. 533. \[25\] & See 3 C. L. 534. \[26\] & See 3 C. L. 535. \[27\] & See 3 C. L. 536. \[28\] & See 3 C. L. 537. \[29\] & See 3 C. L. 538. \[30\] & See 3 C. L. 539. \[31\] & See 3 C. L. 539. \[32\] & See 3 C. L. 530. \[33\] & See 3 C. L. 530. \[34\] & See 3 C. any other agency, under its general constitutional powers to provide for the public interests. Const. art. 4, $ 1. In resuch liability, however, must pursue the statute strictly,\[18\] and such special statutory provisions must be construed in connection with the general laws on the same subject.\[16\] The New York and Brooklyn bridge, constructed under authority of the legislature, being a public highway, the obligations and liability of the city of New York with respect to its care, are to be determined with regard to its duties as to streets, modified by the fact that the bridge is not on the surface of the earth.\[17\]

SS 5. _Establishment, construction, and maintenance by private enterprise\[18\]_ is more fully treated elsewhere.\[19\] The right to repair or alter, or to improve a bridge, for the safety of the public, is incident to the power to build it,\[20\] and a railroad company that has built a bridge across a navigable river, in compliance with an empowering act of Congress, has a vested right to maintain it, so long as used for railroad purposes.\[21\] Although a railroad company owes certain services to the public, it cannot, therefore, be compelled to allow a connecting railroad company to use its bridge, except by due process of law,\[22\] and a railroad company which has built, controls, and is required to maintain a bridge carrying a highway over its tracks, has a standing in equity, under the statute of Pennsylvania, to object to the construction of street car tracks over the bridge, although the municipality has consented.\[23\] Legislative authority given to a corporation to lease is canal and appurtenances does not absolve it from the duty to maintain good and sufficient bridges over its canal, imposed by its charter.\[24\] The statute of Pennsylvania

Dodge County v. Saunders County \[Neb.\] clearing a section-line road a county road 100 N. V. W. 934. The statutory obligation of and authorizing the necessary gradings, joint repair of a bridge applies in case of bridges and culverts to make it a suitable highway by user and working, without highway, construed in connection with the the regular steps having been taken to lay \[semerallaw and held to be directory and not out a town-line road. Rev. St. 1898, $ 1273. State v. Sexton \[TWs.\] 102 N. W. 24, 1901. State v. Myers \[Kan.\] 80 P. 638. Rev. An act which authorizes a township to contribute to the erection of a bridge, to be constructed under the supervision of the county commissioners, is not void because it authorizes an unequal burden of taxation on the township. McMillan v. Payne County Com'rs, 14 Okl. 659, 79 P. 898. The provisions in the general highway law of New York, for the joint construction of bridges on the boundaries of townships, applies as well when the stream crosses the line, as when it runs along the line. Gen. Highway Law, $ 130, 136. In this case one town lay on-both sides of the stream, which found the boundary line between the other two. In re Town of Madrid, 44 Misc. 431, 90 N. Y. S. 110.

15. A. statute requiring the chalrman of the county board to cause repairs to be made in a public bridge, in a town which refuses to make them, is not compiled with by the rebuilding of a bridge under the supervision of the chairman of the county board, its committee and a town board. Rev. St. 1898, $ 1311. State v. Sexton \[TWs.\] 102 N. E. 24. In Oklahoma, under the Act of March 11, 1903, authorizing bridges to be constructed, repaired and reconstructed, a bridge may be constructed within less than six miles of a bridge already existing, if within one mile of an incorporated town or city, and it may be built where one already exists, but which has become dangerous by decay or damage. McMillan v. Payne County Com'rs, 14 Okl. 659, 79 P. 888.

01. A special act of the legislature, de sylvania, providing for the taxation of bridge companies on their stock does not authorize the taxing of bridges as real estate.\[25\]

SS 6. _Injuries from defective bridges.\[26\]_--A municipality is liable for damages caused by its bridge-tender negligently running the end of a swing bridge against a vessel; '' but, under the bridge act of New Jersey, an action for damages to a vessel passing through a draw, while the authorities were actually engaged in repairing the same, will not lie against the municipality.\[28\]

Municipalities having control of highways and bridges are generally required to keep them reasonably safe for ordinary travel; \[29\] the duty, however, is purely statutory in most states,\[30\] and in no event is the municipality held as an insurer; \[31\] nor is a county liable where the cause of the injury was the act of God, or the elements, in causing the bridge to collapse.\[32\] There can be no recovery where the officials having the care of the bridge had no notice of its defective condition and had used due diligence in its care and maintenance.\[33\] The wrongful neglect to repair a bridge must be continuing when the injury results, to support an action for

25. Gen. St. 1902, SS 2331, 2332, provlde by a defective bridge, which was built prior for deducting the taxes paid on real estate, to the passage of an act making the county which is to be assessed and taxed in the primarily liable in such cases. Act approved town where located. Middletown & P. Dcc. 29, 1888 (Acts of 1888, p. 39). Pool v. Bridge Co. v. Middletown (Conn.) 59 A. 34. 26. See 3 C. L. 531. 27. 100 N. W. 788. Highway commissioner, under the circumstances, held not guilty of negligence in failing to place guard rails on a nine-foot bridge, so as to justify a receiver for injuries received by being driven off the side in a dark night. Mack v. Shawngunk, 98 App. Div. 577, 90 N. Y. S. 760. 32. The defense was that plainfit drove on the bridge and remained there during a turtle and unusual storm for the purpose of shelter and that the storm caused the bridge to collapse. Verdict for defendant sustained. Culbertson v. Abbeville County

Spokane \[Wash.\] 80 P. 1106. In an action for personal injuries received from the breaking of a bridge while driving an engine over it, this instruction was approved: '' Reasonable repair'' and 'reasonably safe'' mean what the terms imply--in other words, that the timbers of the bridge are reasonably sound and strong and in good condition to carry safely a load as heavy as bridges constructed in like manner, of equally as large timbers, ought to carry when reasonably sound and in a reasonable state of repair.'' Comstock v. Georgetown

Tp. \[Mich.\] 100 N. W. 788. In an action for damages from the collapse of a bridge, which had been repaired by the supervisors after notice of its unsafe condition, the fact that a supervisor and the foreman of the bridge crew had inspected the bridge after the repairs and thought it reasonably safe

is no defense. Schlensig v. Monona County

\[Iowa\] 102 N. W. 514. 30. In the absence of statutory provisions imposing liability, neither is a city liable for personal injuries caused by a defective bridge, which it has negligently failed to repair, nor are the members of the city council liable for damages for the Improper exercise of their discretionary powers in falling to make such repairs. Gray v. Batesville \[Ark.\] 86 S. W. 295. Nor can a county be held liable for injuries caused by a defective bridge, but it is not necessary to have a correct corrector for the bridge.

5 Cur. Law.BRIDGES $ 6.443

damages.34 Assuming the care of a bridge and exercising acts of ownership and control over it are sufficient to render a city liable for its defective condition,35 and a city which permits the use, and a street railway company which makes use of a bridge which is dangerous and unsafe for the use to which it is put, are both negligent.36

The officers charged with the care of bridges are not liable unless willfully or grossly negligent.37

A private corporation that is required to keep a bridge in good repair is liable for damages resulting from it failure to do so,38 and this is so, whether the defect be latent or patent, unless the injured party was in default, or unless the defect arose from inevitable accident, tempest or lightning, or the wrongful act of some third person, unknown to the corporation.39 A street railway company which uses a city bridge for its tracks thereby adopts such bridge as one of its appliances, and is liable for damages resulting from its defective condition, if it knowingly or negligently uses the same.40

\_Defective construction.41--\_While, under local laws, a county may not be liable for an accident due to a defect in a bridge caused by lack of repairs, of which it had no notice, it is nevertheless liable where the accident is due to defects in the original structure.42

\_Proximate cause of injury.43--\_In determining what is proximate cause, the true rule is that the injury must be the natural and probably consequence of the negligence, such a consequence as, under the circumstances of the case, might or ought to have been foreseen by the wrongdover as likely to follow from his act.44

34 Mattlage v. Chosen Freeholders of Hudson and Bergen Counties \[N. J. Law\] 60 73 N. E. 691.

41 See 3 C. L. 532.

35 As where the "bridge carpenter" for the city had laid the plank flooring; the street supervisor had covered the bridge \[A. Russell v. Westmoreland Co., 26 Pa.\] with earth, and the city had on several occasions made repairs. Mackay v. Salt Lake

adopted for its construction, if there be no extensive necessity for having the defect.

36 City of Indianapolis V. Cauley \[Ind.\] 73 N. E. 691.

37 Gray v. Batesville \[Ark.\] $ $ $. W. 1102. The placing in 295. The Kentucky statute, providing that a special commissioner appointed to let out and superintend the construction of any bervisor, is of itself actual notice of their bridge shall be liable for any defect and requiring him to give bonds, is intended only for the protection of the county, and does not make him personally liable to a person injured by reason of a defective bridge. Hardwick v. Franklin \[Ky.\] $ $ $.

38 A canal company that Is required to maintain good and sufficient bridges where the nightways cross its canal, cannot relieve itself of that duty by leasing its canal, appartenances and franchises to a railroad company. Ryerson v. Morris Canal & Banking Co. \[N. J. Law\] $ $ $ $.

39 But an instruction that the company is liable, whether it had notice of the defect or not, is too broad, even under the Pennsylvania rule, where it makes no exception as to the cause of the defect; as where plaintiff was thrown from his bicycle and injured, as he claimed, on account of defects In the carrageenany of the bridge. Hellyer v. Trenton City Bridge Co., 133 F. $ $43.

Contributory negligence. \[48\]--Technically speaking the doctrine of assumption of risk is not applicable to an action for damages caused by the collapse of a bridge while plaintiff was driving a traction engine over it; \[46\] but one who knows, or has reason to believe, that a bridge will collapse under the load he is about to drive over it, and nevertheless voluntarily and knowingly takes the risk, cannot recover for injuries received from the breaking down of the bridge. \[47\] One approaching a bridge is not guilty of contributory negligence, as a matter of law, in stepping on the bridge where the planking is defective, while looking to one side observing a workman cutting down a tree. \[58\] A party who is injured by being driven off the edge of a bridge, while riding as the guest of another, is not chargeable with the negligence of the driver. \[49\]

Remedies. \[50\]--An action may be maintained against the county commissioners by an administrator of one whose death resulted from their negligence to keep a county bridge in repair. \[51\] A party bringing suit for damages resulting from a defective bridge is not restricted to the sum stated in the claim presented to the city, as required by law, but may recover his actual damages, though exceeding his claim presented. \[52\]

Pleading and evidence. \[53\]--It must be alleged and proven that the county, or its officers, had knowledge of the unsafe condition of the bridge, or might with reasonable diligence have known it, and that they neglected to repair it within a reasonable time; \[54\] but a general charge of negligence is sufficient to withstand a demurrer. \[53\] In an action for injuries resulting from the breaking of a bridge, witnesses cannot testify that the bridge was reasonably safe, that being a question for the jury. \[58\] The neglect of the highway commissioner may be shown to establish the neglect of the town; \[57\] and defendant's lack of care of the bridge and knowledge of its defective condition may be shown by evidence of the unsound condition of the planking when the bridge was redexed just before the accident. \[58\]

render the air currents, which carried the debris swept off the bridge on to plaintiff's premises, a superseding cause relieving the city from liability for the trespass, Sadler V. New York, 93 N. Y. S. 579.

45. See 3 C. L. 633.

01. But an answer containing facts raising the defense of contributory negligence, on account of the special danger from plaintiff's use of the bridge, was held not subject to a motion to strike because it alleged that plaintiff "assumed the risk." Howard v. Snohomish County \[Vwash.\] 80 P. 293.

01. Evidence held to show, in contradiction of the verdict, that plaintiff's agent knew, before attempting to cross the bridge, that it was liable to collapse under the load he was about to drive upon it. Johnson v. Denning, 94 N. Y. S. 522. A street railway employee, who knows or should know of the defective condition of a bridge used by the company, and nevertheless operates or rides upon cars over the same assumes the risk of the bridge's failing. City of Indianapolis v. Cauley \[Ind.\] 73 N. E. 691. Verdict of jury for defendant, on account of contributory negligence of plaintiff in driving a traction engine of extraordinary weight over a bridge, sustained. Howard v. Snohomish County \[Vwash.\] 80 P. 293.

01. Brewster v. Elizabeth City \[N. C.\] 49 S. E. 85.

01. Mack v. Shawnangunk, 98 App. Div.

01. 90 N. Y. S. 760.

01. See 3 C. L. 554.

01. Rev. St. # 845, 6134. Rahe v. Cuya-

nogas County Comrs, 5 Ohio C. C. (N. E.) 97; 26 Ohio C. C. 489.

52. Rev. St. 1898, $ 312. The claim was

51.250, and the verdict for $1,980, sustained.

Mackay v. Salt Lake City \[Utah\] 81 P. 81.

53. See 3 C. L. 554.

01. Complaint held sufficient after verdict, and evidence sufficient to warrant the inference that defendant ought to have known of the defective condition of the bridge. Rice v. Wallowa County \[Or.\] 81 P. 358, citing Heilner v. Union County, 7 Or. 82, 32 Am. Rep. 703; Mack v. City of Salem, 6 Or. 275.

01. An allegstin that a city negligently permitted a bridge to get out of repair and dangerous for travel, and, well knowing that fact, negligently suffered the same to remain out of repair and to be used by the public for travel, held sufficient. City of Indianapolis v. Cauley \[Ind.\] 73 N. E. 691.

01. Competency of evidence as bearing on the questions of negligence and contributory negligence determined. Comstock v. Georgetown Tp. \[Mich.\] 100 N. W. 788.

01. Kelly v. Verona, 97 App. Div. 488, $0 N. Y. S. 89.

01. Rice v. Wallowa County \[Or.\] 81 P. 358.

01. Cur. Law. BROKERS $\\lx@sectionsign$ 1. 445

Interrogatories.89

Questions for jury.60

The questions of defendant's negligence,60a plaintiff's contributory negligence,61 the proximate cause of the injury,62 and the condition of the bridge,63 are all proper questions for the jury.

Footnote 6: The author is grateful to the anonymous referee for the support of the manuscript.

cumstances surrounding the parties at the time it was made.\[71\] If ambiguous the construction adopted by the parties will be followed.\[72\] A material alteration in a written contract between a broker and his principal made by one without the consent of the other renders the whole contract void.\[78\]

\_Necessity of contract being in writing.\[74\]--In the absence of statute the contract between the broker and his principal need not be in writing. In some jurisdictions the statutes require that the broker's authority to sell land must be in writing,\[75\] and in such case he cannot recover commissions if the statute has not been complied with,\[76\] though a contrary rule prevails in the second judicial department in New York.\[77\] The New York statute does not apply to an agreement with the purchaser for commissions,\[78\] nor to an employment to sell a contract for the purchase of land.\[79\] A written authority from one of several owners in common is sufficient.\[80\] A writing signed by the owner and addressed to the broker, expressly or impliedly acknowledging authority to act as agent for the purposes of the sale, is a sufficient compliance.\[81\]

\_Termination of the relation.\[82\]--Violation by a broker of the terms of his employment is a justification for the termination of his agency.\[83\] A principal cannot terminate the broker's agency in the midst of negotiations and refuse to consummate a sale negotiated by the broker so as to deprive him of his compensation.\[84\] In the absence of a revocation of his agency or a time limit to his employment, the broker is entitled to a reasonable time within which to find a purchaser,\[85\] and the expiration of such time merely authorizes a termination of the agency and does not deprive the broker of his commission if he finds a purchaser before such termination.\[86\]\_Scope of broker's authority.\[87\]--A real estate broker is a special agent and the latter procure revocation of the agency is without consideration. Fox v. Seabury \[Pa.\] 60 A. 508.

\[70\] Contract all embodied In letters and telegrams exchanged. Sullivant v. Jahren \[Kan.\] 79 P. 1071.

\[71\] Contract with Insurance broker control and held not to obligate the Insured to pay a commission on insurance procured by broker to take place of other insurance previously procured by him but canceled by insurance company. Tanenbaum v. Federal Match Co., 92 N. Y. S. 683.

\[72\] K. Kinsey v. Meaney, 98 App. Div. 420,

\[73\] T. Harrison v. Lakenan \[Mo.\] 88 S. V. 53.

\[74\] See 3 C. L. 536. The statute of frauds providing that no sale of land made by an agent shall be valid unless his authority is in writing, does not preclude an agent who was not authorized in writing, from recovering commission under an oral contract, when he has found a purchaser ready, willing and able to purchase on the terms which he was authorized to sell it for. Gwinnup v. Sibert, 106 M. App. 79,

\[80\] S. W. 589. Where the owner with full knowledge of the terms on which the same has been sold by his broker ratifies the sale in writing, it is immaterial whether the agent's authority was in writing. Butman v. Butman, 213 N. 104, 72 N. E. 821.

\[75\] T. Under Burn's Ann. St. 1901, 6 629a,

\[76\] a contract with a broker in writing agreeing to pay him for finding a purchaser of real estate, but not specifying the amount which he is to receive, is insumfficient, since can only act within the scope of his limited authority." He has no authority, unless specially authorized, to execute a contract of sale in his principal!s name," or to receive money to be applied on the purchase price." Such powers as are usually exercised by brokers under like circumstances of employment will, however, be implied."1 The principal may ratify the unauthorized acts of one purporting to act for him so as to be bound thereby."2 A local custom " or the rules and usages of a stock exchange may " be deemed a part of the contract if it appears that the parties knew thereof and contracted with reference to it."5

**SS 2.**_Mutual rights, duties and liabilities._"--The relation between a broker and his principal is a fiduciary one," calling for the exercise of the utmost good faith on the part of the broker."8 The principal can recover any damages which are proximately the result of the broker's bad faith " or want of ordinary care and

**SS.** Strong v. Ross, 33 Ind. App. 586, 71

son Homo for Children v. Missouri, etc., N. E. 918; Sullivant v. Jahren \[Kan.\] 79 P. R. Co. \[N. Y.\] 74 N. E. 671.

1071.

0001. A custom is no part of the contract between a broker and his principal unless

P. 118; Robbins v. Maher \[N. D.\] 103 N. W. 755.

90. Haisell v. Renfrow, 14 Okl. 674, 78

871: Rake v. Townsend \[Tows\] 102 N. W. 755.

91. Eau Claire Canning Co. v. Western Brockerage Co., 213 III. 561, 73 N. E. 430.

01. E. 139:Robbins v. Maher \[N. D.\] 103 N.

A broker held to have authority to accept

merchandise purchased by him for shipment to his principal. John Schroeder Lumber Co. v. Stearns \[Vis.\] 100 N. W. 836. Generally speaking, possession of a policy by an insurance broker confers upon

him Implied authority to procvive its cancellation, but if the insurance company

has notice of the termination of the agent's authority, the implication arising from his

possession of the policy is overcome. Fowl Jer Cycle Works v. Western Ins. Co., 111

89. Where a seller, on a report by a

broker of a sale which he purports to have

made in behalf of the seller, retains the report setting forth the terms of the sale

for an unreasonable time, he will be

decomed to have ratified the sale even

though the broker was not authorized to

sell at the terms reported. Eau Claire

Landing Co. v. Western Brockerage Co., 213

III. 561, 73 N. E. 430.

95. A custom which gives u broker

57

per cent of the purchase price of land for

assisting in its sale, irrespective of the

amount, value or character of the services

rendered, is unreasonable and void and the

broker can only recover the reasonable

value of his services. Penland v. Ingle

\[N. C.\] 50 S. E. 850. See, also, title Cus-

toms and Usages, 3 C. L. 988.

94. Persons dealing with members of

the New York Stock Exchange are presumed to have contemplated that their

transactions would be conducted in accord-

ance with the reasonable rules and usages of the exchange. Ling v. Malecom \[Conn.\]

of the exchange. Ling v. Malecom \[Conn.\]

59 A. 698. A broker who sells stock

another on the New York stock exchange is bound by the rules and customs of the

exchange, and when he guaranties the signature of a corporation to an assignment,

he is as between the transfer agent who

transfered on a forged assignment and

himself primarily liable to the person

whose stocks are converted. Jennie Clark-

88. Strong v. Ross, 33 Ind. App. 586, 71

son Homo for Children v. Missouri, etc., N. E. 918; Sullivant v. Jahren \[Kan.\] 79 P. R. Co. \[N. Y.\] 74 N. E. 671.

89. A custom is no part of the contract

01. Halesell v. Renfrow, 14 Okl. 674, 78

between a broker and his principal unless

P. 118; Robbins v. Maher \[N. D.\] 103 N. W. 755.

it appears that they contracted with reference to it. Chambers v. Herring \[Tex.

90. Halesell v. Renfrow, 14 Okl. 674, 78

Civ. App.\] 13 Tex. Ct. Rep. 586, 88 S. W. 771: Rake v. Townsend \[Tows\] 102 N. W. 749: Bacon Fruit Co. v. Blessing \[Ga.\] 50 S. E. 139:Robbins v. Maher \[N. D.\] 103 N. W. 755.

prechandise purchased by him for shipment to his principal. John Schroeder Lumber Co. v. Stearns \[Vis.\] 100 N. W. 836. Generally speaking, possession of a

policy by an insurance broker confers upon

him Implied authority to procvive its cancellation, but if the insurance company

has notice of the termination of skill in transacting the principal's business.1 A broker authorized by his principal to purchase or sell stock is bound to actually sell or purchase the same.2 If the transaction is not bona fide, the principal can recover margins paid to the broker.3 The principal can recover damages occasioned by an unauthorized sale of his stocks by the broker,4 or by the latter's failure to sell when directed.5 In the former case it is not necessary that the customer should have actually repurchased the stocks wrongfully sold.6 His measure of damages is the difference between the price for which the wrongful sale was made and what he would have to pay for a repurchase after notice, acting with reasonable promptness.7 Such damages must be specially pleaded.8 Where a customer directs a broker to sell certain stock at the market price, the broker is justified in selling at the best price obtainable, though the price had declined subsequent to the order to sell and before it could be executed.9 The broker before selling stocks purchased on margins where the market price is declining, must give the customer reasonable notice of his intention to sell unless the purchaser keeps the margin good.10 One of two persons have

crease In the cost of erecting a building observer on what he would have had to pay had to pay had to pay had on order of the purchaser. Ridgely v. Tay-of the principal, where it does not appear that at the time the broker took title the principal had any contract for the construction of the building, since such damages are too remote. Harrison v. Craven \[M.O.\] 87 S. V. 962.

I. Brokers who obtain insurance for others are bound to exercise reasonable care and skill in making inquiries and obb-failing information concerning the responsibility of the insurer with whom they place the risk, and are liable for any loss occasioned by want of such care. Broker held liable for placing policy with company not authorized to do business in District of Columbia. Mallery v. Frye, 21 App. D. C. 105.

2. Hoogewerff v. Flack \[M.O.\] 61 A. 184; Halight v. Haight & Freese Co., 92 N. Y. S. 984.

1. Holman v. Goslin, 93 N. Y. S. 126.

Under St. Mass. 1890, c. 437, as amended St. 1901, c. 459, a customer of a broker can recover margins and securities deposited for margins unless the transactions were bonus fide and the stocks ordered sold or purchased actually sold or purchased. In such an action it is competent for a witness to testify that such was the uniform practice of the broker firm. Allowright v. Skillings \[Mass.\] 74 N. E. 944. Where a broker does not obey his customer's orders in making actual sales and purchases, but reports to him fictitious transactions, the client may recover from the broker any money or securities deposited as margins or any payments made in settlement of such transactions. Hoogewerff v. Flack \[M.O.\] 61 A. 184.

4. Evidence held to show that defendants (brokers) wrongfully sold plainff's stock in violation of an agreement to give him a designated time within which to make his margins good. Blaine v. Thomas, 92 N. Y. S. 1086.

1. Zell v. Corkran \[Del. Super.\] 60 A. 699. The terms of pool agreements are not matters of common knowledge so that knowledge thereof can be imputed to pur 5 Cur. Law. BROKERS $\\lx@sectionsign$ 4.

ing a joint account with stockbrokers cannot maintain an action against the broker for an accounting without joining such other person as a party.\[11\] In a suit by the owner of land against a broker whom he had authorized to sell the land to recover forfeit money deposited by a prospective purchaser with the broker and forfeited by the prospective purchaser because of his failure to consummate the purchase, the purchaser is not a necessary party.\[12\]

SS 8. \_Rights and liabilities as to third persons.\[13\]--\_The acceptance by the principal of an order for goods taken by a broker constitutes a contract between the broker's principal and the purchaser.\[14\] Where a broker representing both parties enters no memorandum of the sale in his book, or such book is not produced, the bought and sold notes together, if they agree, establish the contract between the parties, but if they differ materially, they fail to establish a contract, but a material variance may be explained by a usage of trade.\[15\] Where a broker deposits money received by him from the sale of another's goods designed to him, in a bank to the credit of his own account, the bank, if it has notice that such funds in fact belong to the consignor, cannot apply them in payment of a debt owing to it by the broker.\[16\] In some states the statutes require the payment of a license tax by brokers.\[17\] A broker who executes orders for another broker is not an agent of a customer of the latter.\[18\]

SS 4. \_Compensation and lien.\[19\] Necessity of contract.\[20\]--\_A broker is entitled to compensation only when there is an agreement therefor, either express or implied, and the burden is on him to show such agreement,\[21\] and by statutes in some states such employment must be in writing.\[22\] By accepting the services of a broker in effecting a sale, the principal may be bound by an implied contract to pay their reasonable value.\[23\] Substantial performance of his contract by the broker is a condition precedent to his right to recover compensation.\[24\] Thus where the 10, 1849 (P. L. 570), May 15, 1850 (P. L. 772), and Act May 2, 1899 (P. L. 184), since such statutory provisions apply only to natural person or copartnerships. Commonwealth v. Real Estate Trust Co. \[Pa.\] 60 A. 551, aff. 26 Pa. Super. Ct. 149.

18. Evidence held that defendant who executed orders for another broker was an agent of a customer of the latter. Holman v. Goslin, 93 N. Y. S. 126.

01. See 3 C. L. 542.

01. See 3 C. L. 546.

01. Warwick v. North American Inv.

Co. \[Mo. App.\] 87 S. W. 78; Kaake v. Grls-

would, 93 N. Y. S. 459; Ellemendorf v. Golden

\[Wash.\] 80 P. 264. Under Cliv. Code La.

art. 2991, an agent who has power of attor-

ney to sell and convey land for another

has not merely by reason of that fact a right to retain a commission out of the

price received by him, in the absence of an agreement authoring 1t. Knott v.

Middiff \[La.\] 88 So. 153.

22. See 5 I, ante.

01. Stephens v. Tomlinson, Henderson

& Co. \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 581,

88. W. 304.

01. Emerson v. Nash \[Wis.\] 102 N. W.

921; Stauv v. Bingenheimer \[Minn.\] 102 N. W.

W. 694. Evidence held to show that real estate broker found a purchaser at a price

satisfactory to the seller and hence en-

telled to commission. Storer v. Markley

\[Ind.\] 73 N. E. 1081. An agreement to

pay a broker a commission on all lands 450 BROKERS $ 4. 5 Cur. Law.

time within which he is authorized to effect a sale is limited, he is not entitled to commission for finding a purehaser after the expiration of such time,\[25\] or for finding a purchaser willing to purchase on terms other than those offered by the principal,\[26\] unless such different terms are accepted by the principal.\[27\] If his right to compensation depends on the happening of certain contingencies, he must show that such contingencies have eventuated.\[28\] As a general rule, in the absence of a special agreement, a broker who has been employed to find a purchaser of land is entitled to his commission when he has produced a purchaser who is ready, willing and able to purchase on the terms authorized by the owner,\[29\] or satisfactory to him.\[30\] Where no price is fixed by the seller, but the broker under his employment produces a purchaser with whom the seller deals and agrees upon a price, the broker is entitled to his commission.\[31\]

_Broker must be efficient producing cause of sale.\[32\]--A broker is entitled to his commission, if he was the procuring cause in bringing about the sale,\[33\] even_

sold by defendant to customers sent by the broker, held to mean such persons as the defendant should sell on information received from the broker. Wineterer v. who is willing to purchase at a less price, Jones, 113 _III. App._ 129. Where a contract with a broker provided that "commission for making a purchaser will be paid only to the one who actually makes and finally completes the sale and has the contract signed," the broker cannot recover where he does not which the owner declines to accept. Rake and a sale consummated. Reichard v. Wallach, 91 _N. Y. S._ 347. A contract constituing plaintiff agent for the sale of defendants' goods within a certain territory, but not giving him the exclusive agency terms on which the broker was authorized to sell. Schreiner v. Kisscock, 91 _N. Y._ 116.0 commissions on sales made by defendant in such territory to which plaintiff services in no way contributed. McCay Engineering Co. v. Crocker-Wheeler, 1001.

\_28. Contract with broker construed and trust and agent held entitled to a commission only in case it actually sold land listed before sale by owner or termination purchaser. Robertson v. Vasey, 125 \_Iowa, of agency. Iowa Land Co. v. Schoenevne 526, 101 _N. W._ 271; Turner v. Lane, 93 _N._ 102 _N. W._ 817. Broker to receive percentage of the sale price is not entitled to percentage of the amount paid by a prospective purchaser for an option which is not accepted. Blakely v. Purussell, 90 _N. Y. S._ 337. A contract construed and held not to require the payment to the broker by the owner of commissions except on perfectly the purchaser.

\_29. Contract with broker construed and trust and agent held into the payment of commissions for making a purchaser. Robertson v. Vasey, 125 \_Iowa, of agency. Iowa Land Co. v. Schoenevne 526, 101 _N. W._ 271; Turner v. Lane, 93 _N._ 102 _N. W._ 817. Broker to receive percentage of the sale price is not entitled to percentage of the amount paid by a prospective purchaser for an option which is not accepted. Blakely v. Purussell, 90 _N. Y. S._ 337. A contract construed and held not to require the payment to the broker by the owner of commissions except on perfectly the purchaser.

\_29. Contract with broker construed and trust and agent held into the payment of commissions for making a purchaser. Robertson v. Vasey, 125 \_Iowa, of agency. Iowa Land Co. v. Schoenevne 526, 101 _N. W._ 271; Turner v. Lane, 93 _N._ 102 _N. W._ 103. Where by the terms of his empercentage of the sale price is not entitled to percentage of the amount paid by a prospective purchaser for an option which is not accepted. Blakely v. Purussell, 90 _N. Y. S._ 337. A contract construed and held not to require the payment to the broker by the owner of commissions except on perfectly the purchaser.

\_29. Contract with broker construed and trust and agent held into the payment of commissions for making a purchaser. Robertson v. Vasey, 125 \_Iowa, of agency. Iowa Land Co. v. Schoenevne 526, 101 _N. W._ 271; Turner v. Lane, 93 _N._ 103. Where by the terms of his empercentage of the sale price is not entitled to percentage of the amount paid by a prospective purchaser for an option which is not accepted. Blakely v. Purussell, 90 _N. Y. S._ 337. A contract construed and held not to require the payment to the broker by the owner of commissions except on perfectly the purchaser.

\_30. Contract with broker construed and trust and agent held into the payment of commissions for making a purchaser. Robertson v. Vasey, 125 \_Iowa, of agency. Iowa Land Co. v. Schoenevne 526, 101 _N. W._ 271; Turner v. Lane, 93 _N._ 103. Where by the terms of his empercentage of the sale price is not entitled to percentage of the amount paid by a prospective purchaser for an option which is not accepted. Blakely v. Purussell, 90 _N. Y. S._ 337. A contract construed construed and held not to require the payment to the broker by the owner of commissions except on perfectly the purchaser.

\_31. Contract with broker construed and trust and agent held into the payment of commissions for making 5 Cur. Law. Brokers SS 4. 451

though the owner at the time he entered into the contract of sale did not know that the broker was the producing cause of the sale.\[34\] After negotiations initiated by a broker have practically culminated in a sale, the principal cannot by terminating the agency of the broker deprive him of his commission.\[35\] If after the broker has abandoned his efforts to sell to a purchaser found by him the owner, or another broker, successfully negotiates a sale to such person, the first broker is not entitled to a commission,\[36\] unless fraud or bad faith on the part of the principal is shown.\[37\] Otherwise if the owner sells to one produced by the broker before the latter has discontinued negotiations.\[38\] A broker who is merely authorized to find a purchaser for another's land is not entitled to a commission for finding a purchaser where he did not notify his principal of the fact until after the principal had sold to another.\[39\]

_Customer produced must be ready, willing and able to purchase.\[40\]_--Under a general contract of employment, a broker who produces a purchaser who is ready, willing and able to purchase on the terms on which the broker was authorized to sell is entitled to his commission, though the owner refuse to consummate the sale \[41\] or cannot do so because of a defect in his title.\[42\] The foregoing rule may

Where the broker is not acquainted with

could not secure an order of an amount

latter to the seller, the effectiveness of the

for which he is authorized to sell, the fact

broker's instrumentality in bringing about

that after his negotiations are broken off,

the sale must affirmatively appear if he

in another broker induces the owner to sell

to recover commissions. Halfarm V. Lening, 90 N. Y. S. 397. Contract of

broker for an amount which was offered

agency construed and an agent held

untilted to commission for a sale made in his

the latter to commissions. Gamble v.

"territory," though deal was closed by

other agent of the seller, it appearing the

negotiations were initiated by him. McGeehan v. Gaar, Scott & Co. \[Vis.\] 100 N.

An owner cannot deprive a broker of his

W. 1073. The agent is entitled to his

commission if he is the procuring cause of the

stock after a sale has been made, by agreeing

negotiations which resulted in the sale,

even though the agent does nothing more

manount than the price agreed on or by

than bring the parties together for the

purpose of negotiating, and they are

after concluded by the principal person.

Sallee v. McMurry \[Mo. App.\] 88 S. W. 157.

34. McCleary v. Willis, 35 Wash. 676, 77 P. 1078.

01. Hollyday v. Southern Farm Agency

\[Mo.\] 59 A. 646; New Lawsha Coal & Min.

Co. v. Wright, 163 Ind. 529, 72 N. E. 550;

Norris v. Byrne \[Wash.\] 80 P. 808; Harrison v. Augerson, 115 III. App. 286.

36. De Zalav v. Rogaliner, 90 N. Y. S. 563. Broker not entitled to commission

where sale made through another broker,

though the purchaser sold to one who had

been introduced to the grantor by the

plaintiff. Hollyday v. Southern Farm

Agency \[Mtd.\] 59 A. 646. Where a broker

has been allowed a reasonable time within

whlch to procure a purchaser, and has

failed so to do and the principal in good

faint has terminated the agency and sub-

sequently a sale is consummated, the fact

that the purchaser is one whom the broker

introduced and that the sale was in some

degree aided by his previous efforts, does

not enttitle him to commissions. Donovan v.

Weed \[N. Y.\] 74 N. E. 653. A person who

puts property in the hands of an agent to

sell does not bind himself perpetually

against employing another agent to sell at

a less price. Where a broker has sought

to induce a purchaser to purchase but

the purchaser and did not introduce the

could not secure an order of an amount

latter to the seller, the effectiveness of the

for which he is authorized to sell, the fact

broker's instrumentality in bringing about

that after his negotiations are broken off,

the sale must affirmatively appear if he

to recover commissions. Halfarm V. Lening, 90 N. Y. S. 397. Contract of

grocer for an amount which was offered

agency construed and an agent held

untilted to commission for a sale made in his

the latter to commissions. Gamble v.

"territory," though deal was closed by

other agent of the seller, it appearing the

negotiations were initiated by him. McGeehan v. Gaar, Scott & Co. \[Vis.\] 100 N.

An owner cannot deprive a broker of his

W. 1073. The agent is entitled to his

commission if he is the procuring cause of the

negotiations which resulted in the sale,

even though the agent does nothing more

manount than the price agreed on or by

than bring the parties together for the

purpose of negotiating, and they are

after concluded by the principal person.

Sallee v. McMurry \[Mo. App.\] 88 S. W. 157.

34. McCleary v. Willis, 35 Wash. 676, 77 P. 1078.

01. Hollyday v. Southern Farm Agency

\[Mo.\] 59 A. 646; New be modified in a given case by the specific agreement of the parties.45 The question of the financial ability of the proposed purchaser to carry out the contract negotiated by the broker arises only where the broker's principal rejects the purchaser, notwithstanding his readiness to enter into a contract of sale with the principal.46 If the principal accepts the proposed purchaser produced by the broker and enters into a valid and enforceable contract with him, the broker is entitled to his commission, though the sale is not consummated through the fault of the purchaser,47 or because of his financial inability to perform.48 In Iowa, though the parties have entered into a valid contract, the broker must show that the financial condition of the purchaser is such that the contract is enforceable against him.49 'A contract of purchase signed by a proposed purchaser and tendered to the vendor for execution by him is prima facie evidence of the purchaser's readiness and willingness

- \[leftmargin=0.5cm\]
  5 Cur. Law. BROKERS $ 4. 453

to buy, but not of his ability to do so.48 Where a broker produces a purchaser, the principal's absolute refusal to treat with him dispenses with the necessity of a tender on the part of the purchaser so as to give the broker a right to his commissions.49

_Broker must act in good faith towards principal.50--To_ entitle him to compensation, the broker must act in good faith towards his principal,51 at least as to matters within the scope of his employment.52 He cannot represent both parties to the transaction without their mutual consent, and if he attempts to do so he forfeits all right to compensation or commission from either.53 If, however, the principal knew of the broker's agency for another at the time he entered into the contract of employment with the broker, and the principal's interest was in no wise jeopardized thereby, the broker can recover his commissions.54 A broker who gives a part of the commission he is to receive for making a sale of property to the purchaser does not thereby become the agent of both parties so as to preclude the recovery of his commission from the seller.55 Where the owner of land employed a broker to sell it and agreed to give the broker all over a stipulated sum for which he might sell the land, the broker on securing a customer who was willing, ready and able to give the owner his price in cash and make a mortgage to the broker for a certain sum, is entitled to a performance by the owner, and on his refusal to convey can recover as damages the profits he would have made on the sale.56 A broker entitled to compensation only in case a sale is consummated is not entitled to earnest money forfeited by a

give good title to the property to be given who is employed by the owner of land to in exchange the broker cannot recover. Sell it on commission cannot recover his Snyder v. Fidler, 125 Iowa, 378, 101 N. W. where it appears that he had been em-ployed by the purchaser to purchase the land for him from the owner, and he did not disclose such fact to the owner and the latter did not consent thereto and the broker is guilty of bad faith toward the seller pending the negotiations for the sale. Bunn v. Kech, 214 Ill. 259, 73 N. E. 419 Evidence did not to show such a dual agency as precluded a broker from recovering a commission for performing a contract with defendant. Bur v. Beacon Trust Co. \[Mass.\] 74 N. E. 300. 54 Mitchell v. Duke, 134 F. 999. Where a broker, with knowledge of his custo-mera also acts as correspondent of another broker, who buys and sells stocks, etc., on orders of the former, under an arrangement with the latter by which the commissions are divided between them, he is not precluded from recovering this share of commission from the ground of an undisclosed dual agency, though the transactions are as between him and the custodian and as between him and the other broker conducted in his own name. Stripling v. Maguire, 108 Mo. App. 594, 84 S. W. 164. 65. Stephens v. Tomlinson, Henderson & Co. \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 681, 88 S. W. 804. 56. Canfield v. Orange \[N. D.\] 102 N. W. 313. Where principal requires a certain price for land, and agrees to "protect his agent in his commission," which is to be what he can obtain over that price, it is a breach of contract to sell directly to the prospective buyer obtained by the agent, at the net price. Baker v. Murphy, 105 Ill. App. 151.

prospective purchaser procured by him.\[97\] A broker may by his conduct estop himself from claiming his commission.\[68\]

\_Procuring loan.--\_A broker who has been employed to procure a loan for another is entitled to his commission when he has found a person ready to loan the specified amount on the property, secured by a trust deed or mortgage constituting a first lien on the property.\[56\] But not if the proposed lender refuses to consummate the loan because of a false description of the premises in the application, of which the broker had knowledge.\[60\] If the loan is not consummated, he must show it was through no fault of the person whom he had procured to make it.\[61\]

\_Necessity of broker's contract being in writing.\[62\]--\_The necessity of the contract between the broker and his principal being in writing, as bearing on his right to recover commissions, is discussed elsewhere in this title.\[63\]

\_Actions to recover commissions. Parties.--\_Where a broker agrees with another that if the latter will find a purchaser for the broker's customer's property, he will divide the commission with him, the broker is entitled to recover the full amount of the commission from his customer on effecting a sale through the intervention of the other broker, since such an arrangement is not an assignment of a part of his claim.\[94\]

\_Pleading.\[65\]--\_A real estate broker's commission, that has been fully earned under an express contract, may be recovered under the common counts and the contract itself admitted in proof of the particulars of the general right so set up.\[66\] Where a broker sues to recover commissions under an express contract, he cannot recover on a quantum merit, though the proof might otherwise warrant a recovery on the latter theory.\[67\] Facts and not conclusions of law should be pleaded.\[68\]

\_Evidence and burden of proof \[69\]--\_In an action by a broker to recover commissions, the burden is on the broker to show that the purchaser introduced by

57. Chambers v. Herring \[Tex. Civ. not entitled to commission where he pro-App.\] 13 Tex. Ct. Rep. 686, 88 S. W. 371.

01. By accepting less than he is entitled to as compensation and subsequent acqu-

satisfactory, but no loan was consumm-

quiescence in the payment to another or

manced and it did not appear that the title

compensation for procuring a purchaser,

was defective. Chambers v. Ackley, 91 N.

Be may estop himself from claiming

compensation. Evidence held not to show es-

topped to claim compensation. Theobald

v. Hopkins, 93 Minn. 253, 101 N. W. 170.

Were a broker in reporting the sale of

stocks to a customer erroneously and by a

clerical mistake reported the sale at a

price in excess of the price actually received, the broker in an action by the customer for a balance due pursuant to a sale

is not estopped to show that he did not receive the price named in the report. Stev-

art v. Harris, 101 App. Div. 181, 91 N. Y. S.

438.

001. Brillow v. Ozlemkowski, 112 Ill. App. 165.

001. A broker is not entitled to commissions for placing a mortgage loan on prop-

etry where it appears that he as well as

the defendant knew that the application

which was accepted by a person procured by the broker incorrectly described the

land as containing a greater area than it

in fact did and the refusal to place the loan

was based on such fact, since he is equally

responsible with defendant for the rejection of the loan. Shropshire v. Frankel, 91 N. Y. S. 79.

61. A broker who has been employed to

procure a mortgage loan on real estate is

57. Chambers v. Herring \[Tex. Civ. not entitled to commission where he pro-App.\] 13 Tex. Ct. Rep. 686, 88 S. W. 371.

01. By accepting less than he is entitled

to as compensation and subsequent acqu-

satisfactory, but no loan was consumm-

quiescence in the payment to another or

manced and it did not appear that the title
compensation for procuring a purchaser,

was defective. Chambers v. Ackley, 91 N.

Be may estop himself from claiming

compensation. Evidence held not to show es-

topped to claim compensation. Theobald

v. Hopkins, 93 Minn. 253, 101 N. W. 170.

Where a broker in reporting the sale of

stocks to a customer erroneously and by a

clerical mistake reported the sale at a

price in excess of the price actually received, the broker in an action by the customer for a balance due pursuant to a sale

is not estopped to show that he did not receive the price named in the report. Stev-

art v. Harris, 101 App. Div. 181, 91 N. Y. S.

438.

001. Brillow v. Ozlemkowski, 112 Ill. App. 165.

001. A broker is not entitled to commissions for placing a mortgage loan on prop-

etry where it appears that he as well as

the defendant knew that the application

which was accepted by a person procured by the broker incorrectly described the

land as containing a greater area than it

in fact did and the refusal to place the loan

was based on such fact, since he is equally

responsible with defendant for the rejection of the loan. Shropshire v. Frankel, 91 N. Y. S. 79.

61. A broker who has been employed to

procure a mortgage loan on real estate is

85. Chambers v. Herring \[Tex. Civ. not entitled to commission where he pro-App.\]

## 5 Cur. Law. Building and Construction Contracts.

him was able as well as ready and willing to purchase on the prescribed terms.\[70\] Where a contract between the owner of land and a broker provided that the former would pay the latter a certain sum where a sale was consummated, a contract between the owner and a third person is admissible to show that the sale was consummated.\[71\] In an action to recover the reasonable value of his services where there was no specific contract as to what his compensation should be, evidence of what was usually paid by others for similar services is admissible.\[72\] A contract other than that sued on is inadmissible.\[73\] Cases discussing the sufficiency of the evidence in such actions are referred to in the subjoined notes.\[74\]

_Questions for jury._--Various cases discussing what questions are proper for determination by a jury are referred to in the notes.\[75\]

_Defenses._--an abandonment by the broker as well a termination of his employment by the principal before performance by the broker is matter of defense to an action by the broker for commission, and need not be negatively by broker as a condition precedent to his right of recovery.\[76\]

## 6 Building and Construction Contracts.

### 6.1 The Contract, Sufficiency and Inter-pretation (450).

**8**.: **Performance of Contract (459). Im-possibility of Performance (461).**

**8**.: **Medification of Contract, and**

**8**.: **Performance of Contract (466).**

**8**.: \*\*Performance of Contract (466).

- 87. Completion by Owner or Third Person (467).
- 8 S. Architect's and Other Certificates of Performance and Arbitration of Disputes (467).
- 9. Acceptance (470).
- 10. Payment (471).
- 11. Subcontracts (471).
- 12. Bonts (472).
- 13. Remedies and Procedure (475).

Matters common to all contracts,1 or peculiar to contracts for public works,2 are treated elsewhere.

- 1. \_The contract, sufficiency and interpretation.\_3--The usual rules as to the requisites and validity of the contract apply.4 As in the case of other contracts, illegality, in order to prevent recovery, must infect the contract on which suit is brought.5

Footnote 4: The author is grateful to the anonymous referees for the support of this work.

A bond by which the obligors agree to erect a block of buildings is not strictly an alternative contract, but partakes of that nature.6

Footnote 4: The author is grateful to the anonymous referees for the support of this work.

_Interpretation._--As in the case of all other contracts, the intention of the parties, to be gathered from the whole instrument, must control.7 The usual rules of construction apply.8 Particular applications thereof will be found in the note.9

Footnote 8: The author is grateful to the anonymous referees for the support of this work.

- 1. See Contracts, 3 C. L. 805.
- 2. See Public Contracts, 4 C. L. 1089.
- 3. See 3 C. L. 856.
- 4. Evidence held to justify submission to jury of question whether defendant had finally agreed to drawing of plans for building to cost in excess of his original limitation. Instructions approved. Eight v. Klingensmith (Ark.) 87 S. W. 138. Convergent between owner and contract held not to constitute contract to complete work by a certain time. Bolter v. Kozlowski, 211 Ill. 79, 71 N. E. 858. Evidence insufficient to show any employment of plaintiff to prepare plans. Minuuth v. Barnwell, 94 N. Y. 8649. Where bids were invited for work complete, for work with railroad omitted, and for work with fireproofing omitted, and plaintiff submitted proposition to do work for a specified price, with a deduction if the railroad was omitted, and another deduction if the preproofing was omitted, and the government accepted the proposition with the deduction on account of the railroad, taking no notice of the other proposed deduction, held that what was submitted with reference to fireproofing was ineffectual, and no contract was ever made in reference to it. Conners v. United States, 130 F. 609. Where plaintiffs based claim for amount withinheld because of omission of fireproofing on theory that there was specific contract with reference to the amount which could be deducted on that account, held that complaint would be dismissed, but without prejudice to another suit. Id.
- Contracts by agents: In action by architects to recover for services in drawing plans evidence held not to show any authority in rector to bind very by contracting with architects. Rector, etc., Church of Redemer (Mo. App.) 85 S. W. 994. Agreement requiring plans to be drawn to the satisfaction of the vestrymen held to restrict authority of rector to bind church. Id. Though the contract was made by defendant as agent for another, a subsequent statement by him to the contractors that he himself was the owner and that he used another's name because

## 5 Cur. Law. BUILDING AND CONSTRUCTION CONTRacts & 1. 457

from contract price the amount of a. lien

much as defendant might choose to call filed against premises. Wagner v. St. Peter's Hospital \[Mont.\] 79 F. 1964. Under a contract whereby plaintiff was to furnish

contract to complete a certain grading con- labor in repairing defendants' house and

tract partly performed by the assignor, the was to be reimbursed and given a certain

assignence to have "all compensation there-per cent. in addition, held that defendant

for hereafter accuring," held not to entitle

was not liable for railroad fares of men

assignence to ten per cent. of the amount

living out of town, or for their board, or

earned at the time of assignment, which

for increased wages arbitrarily paid to one

had been retained by the other party to

of them over the amount for which he was

the contract in accordance with its terms.

hired. Westendorf v. Dinninny, 92 N. Y. S.

Cremstock v. Paris \[Mahab\] 79 P. 817.

$58. Contract for installing water system

Contract to furnish and erect all iron

in defendant's house and installing a hy-

draulic ram for the purpose, held to require

prepared by the supervising architect

building of dam to furnish water, such be-

held not to require the contract to do

ing the construction put upon it by the

brick work and put in concrete called for

parties. Carlina Plumbing & Heating Co. by such plans. Hayes v. Wagner, 113 Ill. v. Hall, 118 N. C. 50, 48 S. E. 810. Contract

App. 29. In an action for materials fur-

to deliver lime under which materialman

nished and services rendered in designing

"agrees to begin the delivery of sand mate-

a statue, where plaintiff testified that he

rials upon five days' notice, and thereupon

was employed by defendants to prepare

to deliver the same as rapidly as the work

models for them and looked to them for

upon said buildings shall require without

parment, and defendants that he merely

further notice," requires him to ascertain

underiok to submit a model to a commit-

how much will be required each day, and

tee, his employment by the committee de-

then to deliver it, and he is not exensed

pending upon the acceptance of the model

from performance because he does not re-

and an agreement on the price, held that

ceive formal notice In each instance of the

an amount required. Merchants' Trust Co. v.

entities plaintiff to recover was properly

Pottet, 24 Pa. Super. Ct. 510. Provision in

refused. Hodges v. Pike \[M.J.\] 59 A. 178.

contract for clearing railroad right-of-way,

Cutting cord wood, two feet long, not to

tion whether plaintiff was to submit his

"exceed one thousand cords, ricked along

models to the committee held properly re-

roadbed, as required by chief engineer,

fused, since defendants might he liable to

$1.50," held not to require contractor to cut

pay for the models whether plaintiff

one thousand cords, but to give him op-

cured the commission or not. Id. Where

tion to out not to exceed that amount. Bast-

dam v. Western Const. Co., 3& Wash. 7, 77

v. Choctaw Const. Co. T. C. A-185 F. 487.

vided "the architect's commission on which

in construction of railroad dit not refer to

immediately following which was

a

my map or plat or designate any route

vision that equity in certain land to he

which was to be followed, held that it was

conveyed to him was given as security

open to the construction company to make

for further payment of $250 which sum

any reasonable selection of routes between

was to be in full for said plans, held

the two termini, and the selection of one

that the last provision controlled the im-

instead of another did not constitute such

plied provision. For compensation by com-

a change in the contract as to release the

mission. Perkins v. Hanks \[Mass.\] 74 N.

materialman's s surety. American Starety Co.

E. 514. Contract further provided that

v. Choctaw Const. Co. T. C. A-185 F. 487.

Pavision that granite was to be obtained

and that, on its being made, defendant

from the quarries of G. & S. and G., "It be

was to recovery the land needed to him

ing the intention of the writer to use both

quarries," held to mean that granite could

sold It, as he was authorized to do, in

be taken from either "and" being construed

which event the sale should release the

to mean "or," and plaintiff's inability to ob-

fendant. Held that plaintiff, not having

tain any from the G. quarry was not a

sold the land or been paid within two

breach of the contract, it appearing that

sufflect could have been obtained from the

A provision requiring the contractors to

other. United Engineering & Contracting

cover and protect the work against injury

Co. v. Broadnax \[C. C. A.\] 18 F. 511. A

held not to require subcontractors to put

contract specifying that the "best quality

in new pipes in different location to

of Imported Portland cement" shall be used

place others which had been damaged

is not satisfied by the use of any soundBuilding and Construction Contracts $ 1. 5 Cur. Law.

The contract, plans, and specifications are to be read together.10 The intention governs as to whether work done by the same person under separate proposals shall be regarded as done under a single contract.11 Conditions precedent to the taking effect of the contract which are specified therein will be presumed to be

which had been put up as sample, com-

for boring artesian well held to mean that

picted when estimate for ceilings for whole

contractor's obligation would be compiled

buildings was signed, and that plaintiff

with whenever well would furnish continuu-

was not required by the contract to place

ous supply of 25 gallons per minute with-

a cornice on that floor. New York Metal

out regard to its depth. Moore v. Pritch-

Celling Co. v. City Hormes Imp. Co., 88 N.

t,11 Gan. 439, 49 S. E. 292. Provision

Y. S. 233. In a contract to furnish steel

that company should set pump held not

work the phrase "all detail drawings,"

necessarily to imply that it was to trans-

which were to be furnished by the owner,

port pump to place where it was to be set

held not to mean shop drawings and punch-

up. Harris v. Louisiana Mach. & Welling sheets, but that contract was compiled

works Co., 112 La. 196, 36 So. 320. Contract

with by plans furnished. New York

held not to require plaintiff to insure a

Architectural Terra Cotta Co. v. Williams,

permanent supply of water, but it was

102 App. Div. 1, 92 N. Y. S. 808. Contract

compiled with if there was a sufficient

to perform all the provision of a contract

quantity, according to the prescribed test,

require one D. to furnish or place about

when the work was completed. Nulton v.

100,000 cubic yards of ripraphing for a

Croskey \[Mo. App.\] 85 S. W. 644. Held

railfroad, with a further provision that

defendants might be required to furnish not

to exceed $0,000 cubic yards if the amount

the jury. Id. Contract held to guaranty

required was increased by the railroad

held only to require defendants to furnish

opening above the ground. Cox & Co. v.

the amount required by the railroad under

the contract with D. and not to settle D.

to call on them for the balance of the 300.-

000 cubic yards for use on other contracts.

Shanklin v. Brown, 92 N. Y. S. 860. In a

contract for the construction of an arch

over a driveway, the word "enafs" will be

construed to mean the faces of the arch as

seen by one approaching along the driveway

way from either direction, or that part of

the arch on either side of the driveway

which comes nearest to the ground, as the

evidence tends to show which was the

meaning the parties had in mind when the

contract was drawn, and the prices

vided for therein for the work may

may properly be considered in determining in which

sense the word was used in the contract.

City of Cleveland v. Griffin, 5 Ohio C. C.

(N. S.) 473. The phrase "acceptable to the

engineer" in a contract to furnish granite

for the construction of a bridge held un-

ambiguous and hence not open to explanation by

panol. United Engineering & Constracting Co. v. Broadway \[C. C. A.\] 136 F.

351.

**Contracts for drilling wells:** Contract

for drilling well, to be paid for by the foot,

held to require only payment of one-third

of the price of the completed 100 feet, and

not one-third of the whole contract price

on completion of the first 100 feet. Ferguson

Kumber Co. v. Little Rock Well & Pump Co. \[Ark.\] 84 S. W. 794. Contract

for boring oil-well held to settle plaintiff

to compensation at the specified rate per

foot for every foot sunk by him in good

faint and with honest intention to carry

out contract, notwithstanding work was

finally abandoned with defendants consent

because of breaking of drill. Cook v. Co.

112 La. 196, 36 So. 320. Contract

lumbian Oil, Asphalt & Refining Co., 14

Cal. 670, 78 P. 287. Held that it was

defendant's duty to furnish and deliver pipe

before it could place plaintiff in default

for failure to case oil well. Id. Contract

for boring of argumenting well held to mean that

for failure until it was to * 5 Cur. Law. BUILDING AND CONSTRUCTION CONTRacts SS 2.459

conclusive, and parol evidence is inadmissible to prove others.\[12\] A recital that persons are joint contractors does not necessarily control their relations.\[18\]

_Fraud, misrepresentations, and mistake_ are fully treated elsewhere.\[14\]

SS 2. Performance of contract.\[15\]--A building contract, like any other, is to be fairly performed according to its terms, and any substantial change, unless authorized, is made at the risk of the contractor.\[16\] He has no right to substitute his own judgment for the stipulations of the contract, nor can he recover on the basis of full performance where he has willfully and intentionally used inferior and less expensive material.\[17\] Nor can recovery be had for partial performance where the contract is an entire one.\[18\] A literal compliance with the terms of the contract is not necessary,\[10\] but it is sufficient if there has been an honest and faithful performance in all its material and substantial particulars, and no willful departure or omission in essential points.\[20\] No recovery can, however, be had on the

- 12. United Engineering & Contracting

for one well held not such as to have misCo. v. Broadway \[C. C. A.\] 186 F. 351.

- 13. A contract executed by a builder

and a lumber company on the one part,

\[Tex. Cy. App.\] 86 S. W. 19. Exhibition which recites that they are joint contractors for the building of a house, and that

cipts for all labor and material, showing the company, in consideration of the profit

them all fully paid for, held sufficient com-

which it expects to make on the lumber

pliance with requirement that he should

which it is to furnish for the work,

satisfy owner that there were no outstand-

guaranties the completion of the contract,

\[no plans which could be made the basis

but which does not obligate the other part of a Hom. Lavinaway Y. Cannon \[Ywash.\]

tles to purchase lumber from it, is merely

\[7\] P. 1117. Evidence In action for failure

a contract of guaranty. Held invalid bed

cause ultra vires. In re Smith Lumber Co.,

require the submission to the jury of the

132 F. 620.

- 14, 15. See 3 C. L. 551.

- 16. Schultze v. Goodstein, 180 N. Y. 248.

- 17 N. E. 21. Plaintiffs held entitled to

agreed compensation for drilling oil well

- 17. Schultze v. Goodstein, 180 N. Y. 248,

notwithstanding fact that water was not

- 18 N. E. 21. Expert evidence that certain

kept out, where contract did not require

pipes used in plumbing work were prefer-

them to keep it out, and they fully com-

- 19. Must be substantial performance.
- 20.
- 21. Must be substantial performance.
- 22. Must be substantial performance.
- 23. Must be substantial performance.
- 24. Must be substantial performance.
- 25. Evidence held to show substantial completion within required time, and
- 26. Must be substantial performance.
- 27. P. 974. Evidence held insufficient to
- 28. Must be substantial performance.
- 29. Must be substantial performance.
- 20.
- 21. Must be substantial performance.
- 22. Must be substantial performance.
- 23. Must be substantial performance.
- 24. Must be substantial performance.
- 25. Evidence held to show substantial completion within required time, and
- 26. Must be substantial performance.
- 27. P. 974. Evidence held insufficient to
- 28. Must be substantial performance.
- 29. Must be substantial performance.
- 20.
- 29. Must be substantial performance.
- 20.
- 21. Must be substantial performance.
- 22. Must be substantial performance.
- 23. Must be substantial performance.
- 24. Must be substantial performance.
- 25. Evidence held to show substantial completion within required time, and
- 26. Must be substantial performance.
- 27. P. 974. Evidence held insufficient to
      theory of substantial performance until full compensation for deviations has been made.\[21\]

The contract must be performed in a good and workmanlike manner,\[22\] the question whether this has been done being for the jury.\[23\] If certain results are guaranteed, no recovery can be had unless they are obtained.\[24\]

Full performance of the contract may be waived by participation in acts done in disregard of its terms.\[25\]

The contractor is not responsible for breaches caused by the acts of the owner,\[26\]

that defects were remedied within reason- of contractor, agreeing to change high temable time. Coen v. Birchard, 124 Iowa, 394, 100 N. W. 486. A contract to bore a well is not substantially performed if the diameter contracted for is not adhered to. Instructions erroneous. Connor v. Trapp \[Iowa1 104 N. W. 333. Question whether contract for furnishing window screens was substantially performed held for jury, notwithstanding defect in one screen. Burrows Co. v. Crittenden \[Miss.\] 37 So. 504. Field that there was some evidence on which to base a finding of substantial performance so as to render it conclusive on appeal. Isetts v. Biliwise \[N. J. Law\] 60 A. 200. Evidence held to show that there was not sufficient performance of an alleged contract to furnish working plans for the construction of a court house to entitle plaintiffs to recover thereon. Kinney v. Manito-woc County \[C. C. A.\] 135 F. 491. 21. Evans v. Howell, 211 Ill. 85, 71 N. E. 854: Isetts v. Bliwise \[N. J. Law\] 60 A. 200: Schulute v. Goodstein, 180 N. Y. 248, 73 N. E. 21. Contractors who failed to construct a free gravel road in accordance with the terms of their contract cannot complain of the action of the court in giving them the option of completing parts of the work according to contract or having part of the price deducted. Board of Comm's of Laborate County v. VOMP \[Ind.\] 72 N. E. 860. 22. A good and workmanlike job is one done as a skilled workman should do it. Provision in contract to install heating plant that all work should be done "in a good and workmanlike manner," held to require plaintiff not only to do a good job of pipe fitting, but to put in the apparatus in such manner that it would operate with reasonable success for the purpose intended, and, if necessary, to lower the boiler for that purpose, it was his duty to do so without extra charge. Ideal Heating Co. v. Kramer \[Iowa1 102 N. W. 840. In an action for architect's services, evidence in-sufficient to sustain judgment for defendant, there being a conflict as to whether the plans furnished were workable. Repleye v. Lynch, 92 N. Y. S. 371. Fact that defendant submitted plans to building department and that they were disapproved not controlling, there being a question whether objections thereto were based upon plaintiffs errors and omissions, or could not have been easily obviated. Id. 23. Instructions held not to have taken question from jury. Shultz v. Seibel, 209 Pae. 27, 57 A. 1120. 24. Evidence held conclusive that well did not supply good, clear, pure water according to contract. Connor v. Trapp \[Iowa.\] 104 N. W. 333. Held no excuse for failure to be done. Instructions to be done, the author is aware of the fact that the author is aware of the fact and the owner is liable to the contractor for damages resulting from his improper interference with the work.\[27\]

Architects undertaking to superintend the construction of a building are bound to exercise reasonable care and diligence in supervising the work,\[28\] and are liable to the owner for damages resulting from their failure to do so.\[29\]

The owner is entitled to offset against the contract price reasonable damages sustained by him for necessary work and materials required to complete defective work,\[30\] or any damages resulting from the contractor's negligence.\[31\] So, too, contractors who participate in the engineer's breach of duty and bad faith are liable for the loss and expense reasonably incurred in completing the work in accordance with the contract.\[32\]

A contractor using cheaper materials than those called for by the contract is liable for the improper profit which he thereby makes.\[83\]

In the absence of a stipulation to the contrary, one undertaking a contract not involving personal trust or confidence is not bound to himself perform any of the work, or to give his personal attention thereto.\[84\]

A provision that the owner may reject plans contracted for unless they are satisfactory to him requires him to act in good faith, and he cannot escape liability by rejecting them arbitrarily.\[35\] A provision that the work shall be done to the satisfaction of the tenement house department means that it must satisfy that department when completed.\[36\]

_Impossibility of performance.\[37\]_-If a party contracts to perform a thing which is possible at the time when the contract is made, he is not excused from

**27.** The United States is liable for any **33.** Drainage Commission of New Orlemoy interference with a contractor, the same as an individual would be. Housures 780. Contractor is stepped to say, when cused by reason of the fact that it suspects for the return of his resulting impends work on a bridge owing to the war was as good as the other. Portland cement with Spain in the expectation that it will unded in public drainage work. Id. It is no consequently be needed for greatly increased traffic. Id.

**28.** Straus v. Buchman, 96 App. Dlv. 270, **38.** N. Y. S. 226.

**39.** Straus v. Buchman, 96 App. Dlv. 270, **39.** N. Y. S. 226.

See, also, Negligence, 4 C. L. 764.

**30.** Defects in work done by subcontractors. Beckwith & Quackenbush's Case, 38 Ct. Cl. 296. Evidence in action to enforce mechanic's lien for balance due on contract held to sustain finding that owner was damaged by use of poor material and workmanship in excess of amount unpaid. Fletcher v. Sandusky, 26 Ky. L. R. 1822, 83 S. W. 644. Where subcontractor failed to replace foundations for division walls of reservoir blasted out with concrete, held that he was liable to contractor for actual cost of doing so, but not at price which contractor was to receive for other concrete work. Hely v. Fred Hoertz & Co., 26 Ky. L. R. 644, 82 S. W. 402. Jury may allow deductions. Shultz v. Seibel, 209 Pa. 27, 67 A.

1130.

**31.** An admitted liability by a contractor for injury to a steam heating system caused while at work in a public building in which the system is located is a valid set-off against a balance due him on account of the work. McClure v. Lorain County Com's, 4 Ohio C. C. (N. S.) 445.

**32.** Guld v. Andrews \[C. C. A.\] 137 F.

**36.** Contract to put up fire escapes. A production of their certificate entitled plaintiff to recover, though escapes were not in accordance with the law when the contract was made, which had been changed pending the work. McManus v. Annett, 91 N. Y. S. 808.

**37.** See 3 C. L. 552.

performance because it is thereafter rendered impossible by act of God."5 There can, however, be no recovery where performance is impossible within limits legally permissible to the parties."6 In a verbal contract where there is no guaranty that a particular result will be accomplished, and from the nature of things such accomplishment may be impossible, the law implies a condition that both parties shall become excused from their obligations when it becomes reasonably certain that a continuance would be useless."70

A contractor who, through his own negligence, brings the work which he contracts to perform into such a condition that he is unable to complete it and abandons it, is liable for the loss thereby inflicted upon the owner, including the amount reasonably expended in the effort to minimize such loss."71 So, too, the contractor is excused where further performance is rendered impossible by the acts of the owner."72

\_Destruction of subject-matter.\_73--There is an implied contract on the part of the owner of a building on which repair work is to be done that it will continue to exist until such work is completed."74 Hence, if it is destroyed before that time, both parties are excused from further performance,"75 and the contractor is entitled to recover for the amount of contract work done which, at the time of the destruction, had become so far identified with the structure that, but for such destruction, it would have inured to the owner as contemplated by the contract."76

\_SS 3. Modification of contract, and changes in plans and specifications.\_77--A written contract may be modified by a subsequent parol agreement of the parties,"78 but unless specially authorized to do so, the architect or engineer in charge of the work has no authority to make such modifications."79 Changes directed by the supervising architect, acting as the owner's agent, are binding on the latter."70

_SS 3. Not relieved from completion of_ \[N. E. 63: Halsey v. Waukesha Springs Sanstratingum \[Wis.\] 104 N. W. 94.

\_SS 4. Modification of contract, and changes in plans and specifications.\_77--Cl. 492.

_SS 5. Where a contract for putting_ \[N. E. 63: Halsey v. Waukesha Springs Sanstratingum \[Wis.\] 104 N. W. 94.

_SS 5. W. 94._

\_SS 5.

5 Cur. Law. BUILDING AND CONSTRUCTION CONTTACTENTS SS 4. 463

Under a provision that no alteration shall be made except upon a written order of the engineer, who shall also compute its value, the production of such order is a condition precedent to recovery for alterations, in the absence of proof of a waiver or proof that plaintiff was fraudulently lured into proceeding without it.${}^{81}$ Such provisions are for the benefit of the owner, and may be waived by him.${}^{52}$

In case of a substitution by agreement of materials of lesser value for those specified in the contract, the owner is entitled to a deduction of the actual difference of value in the absence of anything to the contrary in the contract.${}^{83}$ In a country where marble is common, no allowance will be made for its use in the absence of a showing that its cost was in excess of the best quality of the stone specified in the contract.${}^{54}$

**SS 4.**\_Extra work.${}^{65}$--The contractor is ordinarily entitled to recover the reasonable value of extra work or material in excess of that required by the contract, and ordered or accepted by the owner or by his authorized agent.${}^{56}$

Extra compensation cannot be recovered for work required by the contract${}^{57}$ or incidental thereto,${}^{88}$ or for extra work made necessary by the acts of the contractor.${}^{89}$

Robbins, 22 App. D. C. 253. A provision

-construction advises or orders the contractor to put in a temporary "lift-span" direction and to the satisfaction of the

-o meet the exigency of the unexpected architects and in accordance with the

-pening of navigation, his action is not plans, does not authorize such changes. Id.

-billatory on the contractor, who if he

-Where contract provides that marble work

-performs, cannot recover the extra ex-

-is to commence when walls are up and roof

-nense to which he has been put. Off-

-on, architects held to have no power to

-cer had no authority. Phoenix Bridge

-require him to commence work sooner. Id.

-Co.'s Case, 88 Ct. C. 48%. Claimant allowed

-Engineer held to have no authority to

-make parol modifications of written con-

-the office in charge over his protest.

-

### Building and construction contracts $\\lx@sectionsign$ 5. 5 Cur. Law.

Provisions that no claim shall be made for extra work unless the same shall have been furnished on the written order of the architect or other person in charge of the work,\[60\] and approved by the owner or his agent,\[61\] or unless the sum to be paid therefor shall first have been determined in a specified manner,\[62\] are valid and binding and will be enforced. They are ordinarily held not to apply to new work specifically contracted for, and not done under or in pursuance of the original contract.\[63\] In some states they are regarded as applying only to work concededly not within the contract, and not to changes and alternations intended to be covered by it.\[64\]

Such provisions may be waived,\[65\] but will not be deemed to have been in the absence of clear and satisfactory evidence showing such to have been the intention of the parties, or showing an estoppel in pais.\[66\]

$\\lx@sectionsign$ 5. _Delay in performance.\[67\]_--The contractor is not liable for delays caused by the acts or omissions of the owner,\[68\] or where the latter consents to an extension

discoloration of plaster owing to improper

aminer in which it was put on. McFerran's Case, 39 Ct. Cl. 441.

60. Contractor held not entitled to recover for work not ordered by town board, though done under direction of engineer. People v. Snedeker, 94 N. Y. S. 319. Exstra work as used in contract held to include all work necessitated by change of plans. Id.

01. Under provision that claims must be "authorized in writing by the supervising architect under the approval of the secretary of the treasury," there can be no recovery for extra work not approved by the secretary, though orderful by the government superintendent, with the knowledge of the supervising architect, and of benefit to defendants. Hyde's Case, 38 Ct. Cl. 649.

01. And l endorsed on contract. Davis v. La Crosse Hospital Ass'n, 121 WIs. 579, 99 N. V. 351.

01. Provision that no allowance shall be made unless notice is served on the owner and his consent in writing obtained. Shultz v. Selbel, 209 Pa. 27, 57 A. 1120. Question whether work was new work and whether defendant agreed to have it done held for the jury. Id. Evidence held to clearly establish extent of time employed In extra work, and hence, if book of original entries in regard thereto was incompetent, its admission was harmless. Id. A provision that allowance shall be made only for such extra work as shall have been furnished under the written order of the chief of construction does not apply to work done under a new and different contract containing no such provision. Where plaintiff contracted to do exterior work only, does not apply to interior work thereafter done by direction of defendant or its duly authorized agent. Stubblings Co. v. World's Columbian Exposition Co., 110 III. App. 210.

01. Not necessary to allege demand and refusal of certificate. Langley v. Rouss, 94 N. Y. S. 108. The question whether the alleged extra work was within the terms of the contract is for the jury. Where contract is ambiguous. Id.

01. Davis v.

5 Cur. Law. BUILDING AND CONSTRUCTION CONTRACTS SS 5. 465 of time.69 So, too, he is excused where he is enjoined from proceeding with the work.70

Delay is not excused because of a failure of the railroad company to deliver material ordered, where the owner is not responsible therefor,71 nor because there are not a sufficient number of days within the time fixed on which the temperature is sufficiently high to permit the work to be done under the terms of the contract,72 nor does a provision authorizing an extension in case of a strike occurring through no fault of the contractor entitle him to an extension because of a strike for which he is himself to blame.73 Where the duty to complete a building at a certain time is subject to several enumerated contingencies, a delay cannot be held to constitute a breach in the absence of a showing that none of such contingencies occurred.74 So long as the contractor continues to endeavor to fulfill the contract and complete the building in good faith, the owner is under no obligation to take charge of it and complete it himself for the purpose of lessening the amount of damages he may claim for delay.75 Whether the delay was excusable is a question of fact.76

Permitting a performance after the time fixed by the contract has expired is a waiver of the right to plead the delay as a defense in an action for the agreed price,77 but is not a waiver of the right to counterclaim for any actual damage suffered by reason of such delay.78

A provision that no extra time shall be allowed on account of delays unless written notice thereof shall be given when they occur is valid and will be enforced,79

App. 262, SS 5. W. 281. Requested charge in general terms presenting the carelessness of plaintiff to the jury for consideration. 75. Leghorn v. Nydell \[Vwash.\] 80 P. 833. tion, and requiring it to find whether the prompt completion of the house was en- dangered held properly refused as foreign by the entity, or whether the delay had had a right to expect from plaintiff a prompt and strict performance of his duty too great and burdensome to require the property refused. Id. Instructions constituting mere delay, whether justified or unestions of fact in an action to recover inexcusable, and irrespective of its ocean, on the contract. Webb Granite & Con- shol, a ground of recovery by defendant, held properly refused as emphasising mat- 639.

ters not in evidence, and seeking to exclude elements properly to be considered in computing plaintiff's damages. Id.

69. Evidence held to show extension. N. Y. 6. 412,

Coen v. Birchard, 124 Iowa, 894. 100 N. W. 78. Allowing contractor to put in elec- 48. Plaintiff held to have consented to extension of time obtained by defendant by original to counterclaim for damages result- continuing work with knowledge thereof. Unfted States v. Guerber, 124 F. 823.

70. Injunction against both city and contractor. Webb Granite & Con- Coen v. V. Voreester \[Mass.\] 73 N. E. 639. Contractor.

01. Allowing contractor to put in elec- 48. 100 N. Y. 6. 412.

city by failure to seek a modification of the the injunction permitting him to proceed.

72. Lawrence County v. Stewart Bros.

01. S. W. 1059.

01. A provision that no paving was to be done on any day when the temperature was below 35 degrees, and the fact that there were not 6 days when the tempera- 412.

ture was above 85 degrees between the time of commencing the work and that specified for its completion. Barber As- what Pav. Co. v. Munn, 155 Mo. App. 552,

83 S. W. 1662.

74. Miller v. Norcross, 92 App. Dlv. 852,

87 N. Y. S. 56.

5 Cur. L. - 80.

### Building and Construction Contracts $ 6. 5 Cur. Law.

in the absence of fraud or wrong equivalent thereto, or mutual mistake in the execution, or a clear showing of waiver.\[80\]

The contractor is entitled to recover the increased cost of the work caused by delay on the part of the owners.\[81\] There seems to be a conflict of authority as to whether a provision authorizing an extension of time precludes a recovery by the contractor of damages for delay.\[82\] The question of liquidated damages is treated elsewhere.\[83\]

SS 6. \_Termination or cancellation of contract.\[84\]--\_The contract may, of course, be terminated by mutual consent.\[85\] An agreement that an existing contract between the parties is abrogated and that all their rights thereunder shall cease includes all rights of action growing out of such contract and operates as a release.\[86\]

By statute in Louisiana the owner may cancel the contract at pleasure.\[87\] but in such case he must pay the contractor for all expenses incurred and all labor done, and, in addition thereto, all damages resulting to the contractor, such as his loss of profits.\[88\]

A provision authorizing the owner to terminate the contract at pleasure precludes a recovery of damages by the contractor for a refusal to allow him to perform.\[89\]

One who makes an excusable mistake in the amount of his bid may maintain a suit in equity for its rescission and the recovery of a deposit made by him as a guaranty that he would enter into the contract if his bid was accepted.\[90\]

therefor. Miller v. Norcross, 92 App. Div. 352, 87 N. Y. S. 56. Failure to give required notice held forfeiture of right to exten- (contractor for such a delay. Richard v. The city engineer had no authority to sus- (contractor for such a delay. Richard v. The city engineer had no authority to sus- (contractor for such a delay.

5 Cur. Law. BUILDING AND CONSTRUCTION CONTRACTS $\\lx@sectionsign$8. 467

$\\lx@sectionsign$7. _Completion by owner or third person._${}^{91}$--Building contracts generally provide for completion of the work by the owner in the event of its abandonment by the contractor,${}^{92}$ or by the contractor in the event of abandonment by a subeno-tractor.${}^{93}$ In such case he is entitled to deduct from the contract price the reasonable costs and expense necessarily incurred by him in so doing.${}^{94}$ The price agreed to be paid for the completion of the work is not the reasonable cost thereof, where the agreement requires the satisfaction of all liens filed under the former contract.${}^{95}$ The value of materials delivered but not used, and extra work done by the original contractor should also be deducted.${}^{96}$ A provision in the contractor's bond giving the surety the right, in case of default, to assume the contract and sublet or complete the same, provided it is done in accordance with the contract, is valid, and the surety may elect to complete the contract, stand on the terms of the bond, or voluntarily pay any damages resulting from the principal's default.${}^{97}$ In case it elects to complete the work, it assumes all defects of the 'principal's work, together with inferior materials used, and is entitled to the benefits of the contract from the time of default, together with any sum which may then be done the principal.${}^{98}$

$\\lx@sectionsign$8. _Architect's and other certificates of performance, and arbitration of disputes.${}^{99}$--Where the contract provides that payments shall be made only on the written certificate of the engineer or architect that the work has been performed, its production is a condition precedent to the right of recovery.${}^{1}$_ Such a provision will, however, be deemed and construed to embody the condition that the

### Building and construction contracts $ 8. 5 Cur. Law.

architect shall exercise his function as arbitrator honestly and in good faith.2 And the contractor, if he does his work, may recover without such certificate if he is prevented from obtaining it by the arbitrary, fraudulent, collusive, or unreasonable conduct of the architect in refusing it,3 or if its issuance is prevented 4 or waived by the owner.5

Provisions that the report of the architect, engineer, or other person in charge of the work as to the amount and quality of the work done or material furnished shall be final,6 that he shall determine the value of materials omitted or added,7 or the increased or diminished compensation of the contractor incident to changes in the plans;8 or the expense of completing the work in case it is abandoned by the owner,9 or that he shall determine all questions arising during the performance of the contract are valid and binding,10 and the action of the arbiter there.

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

3. Refusal heid arbitrary and unjust the work done, its conformity to the contibugh owner had withdrawn contract, and the compensation to be paid, from architect. Hailey v. Waukesha Guld V. Andrews \[C. C. A.\] 137 F. 369. Springs Sanitarium \[Vis.\] 104 N. W. 94. If refusal dictated by caprice and prejuction and acceptance of the work. Beckudice, and contractor is evidently entitled with & Quackenbush's Case, 38 Ct. Cl. 295. to be paid, and owner is so advised. Du-

where the contract provides for the in-gue v. Levy \[La.\] 87 So. 995. If fraudulent. Sheyer v. Pinkerton Const. Co. \[N. J. Err. & App.\] 59 A. 462. Can recover where he produces the only certificate which he is able to obtain, though it is defective, particularly where such defect is due to some act or omission on the part of the owner. Defect in certificate of balance due in failing to state amount to which defendant was entitled for omitted work, where failure due to fact that owner failed to present claim. Hedilinger v. Onward Const. Co., 44 Misc. 556, 90 N. Y. S. 115.

4. As where owner withdrew contract from architect. Hailey v. Waukesha Springs Sanitarium \[Vis.\] 104 N. W. 94. Discharge of architect. Hellinger v. Onward Const. Co., 44 Misc. 555, 90 N. Y. S. 115.

&. Sheyer v. Pinkerton Const. Co. \[N. J. Err. & App.\] 59 A. 462. A provision requiring the certification of two architects showing completion of the work held waived where partnership between them was dissolved and owners refused to permit one of them to have anything further to do with the work, and accepted and made payments on certificate of other. Final certificate of latter sufficient. Lavanyav v. Cannon \[Vwash.\] 79 F. 1117.

6. Materials for construction of gun and mortar batteries. United States v. Venable Const. Co., 124 F. 267. Decision of chief engineer as to classification of material held binding, in absence of showing of fraud or mistake. McGregor v. Ware Const. Co. \[Mo.\] 87 S. S. V. 981. Contract of subcontractor held to make decision of chief engineer as to classification of material conclusive. Id. Contract binding, and there being no question of his good faith, question whether he was right or wrong, or whether others agreed with him not open for consideration. Board of Educac-

tion v. National Surety Co., 183 Mo., 166, 82 S. W. 70. Admission of reports of others held error, but not prejudical In view of the evidence. Id. Provision making him ing, specification, and contract may prop-

the arbiter of the amount and character ofCur. Law. BUILDING AND CONSTRUCTION CONTRacts $ 8. 469 under is generally held to be final and conclusive, in the absence of fraud, or such gross mistakes as imply bad faith or a failure to exercise an honest judgment.11 He is, however, only entitled to pass on claims within the class which he is appointed to consider.12 It is the duty of the party who will benefit by the certificate to secure it.13

Footnote 12: The author is grateful to the anonymous referee for the support of the author.

No notice or hearing need be given before making a decision,14 nor is any particular form of certificate necessary,16 though a certificate that the contractor

11. Gross mistakes imply bad faith only not to refer to changes arising out of unwhen, all the circumstances duly consididered, they cannot be reconciled with good take of fact. Changes because lumber was faith, and then they necessarily imply it. But for preproofing. Conners v. United Guild v. Andrews \[C. C. A.\] 137 F. 269; States, 130 F. 609. Electric Fireproofing Co.'s Case, 39 C. Cl. 13. Headlinger v. Onward Const. Co., 44 307. Instructions as to mistakes help proper, and requests as to inspection, etc., properly refused. Guild v. Andrews \[C. C. A.\] 137 F. 269. Evidence held to show mistakes so gross as to imply bad faith in supervision and acceptance of work under contract for construction of severe. Id. There being a conflict in the evidence, defendants' request for directed verdict held properly refused. Id. Report can only be set aside for fraud, or for such gross mistakes as imply bad faith or a failure to exercise an honest judgment. United States v. Venable Const. Co., 124 F. 267. Certificate in pursuance thereof is binding upon the parties in the absence of fraud, or of such palpable mistake as prevents the architect from the exercise of his judgment on the matter submitted to him. White v. Abbott \[Mass.\] 74 N. E. 205. Award cannot be set aside for mere error of judgment as to the law or facts, in the absence of fraud or misconduct, or a palpable mistake of fact appearing on the face thereof. Hedlinger v. Onward Const. Co., 44 Mile. 55, 90 N. Y. 8. 115. Notwithstanding a provision that the decision of the engineer in charge as to quantity and quality shall be final, his measurements stopping at the perimiter of the brickwork of a tunnel are not final where it is necessary that the rock excavation be slightly larger, and the contractor is entitled to be paid for the amount of rock necessarily amount, or it may be embodied in the cercavated. Beckwith & Quackenbush's Case, 38 Ct. Cl. 295. Nor is his certificate of measurement of brickwork conclusive, where he arbitrarily assumes its thickness instead of measuring it. To be paid for by the foot. Id. The provision in a contract that the parties thereto shall be bound by the final estimate of the engineer does not, in Ohio, deprive a court of justice of jurisdiction in a suit involving the proper construction of the contract, or the correctness of the engineer's estimate thereof. City of Cleveland v. Griffin, 2 Ohio N. P. (N. S.) 473.

01. White v. Abbott \[Mass.\] 74 N. E. 305. Claim of the contractor for services in making the arrangements and superintending the carrying on of the work after abandonment by the subcontractor held within architect's jurisdiction. Id. Provision that increased or decreased compensation resulting from changes in plans to the interest of the government should be determined by board of naval officers held is entitled to final payment should specify the amount due him.16 The fact that part of the certificate is void does not invalidate the rest, where it is several, and is not so connected with the rest as to affect the justice of the case.17

The owner cannot revoke-the authority granted by the contract unless authorized to revoke the contract as a whole.18 A provision making payment for materials conditional on their approval by the architect is not waived by a further provision that payment may be made in advance of delivery.19

A provision for arbitration in case either party is dissatisfied with the decision of the architect as to any matter left to him cannot be relied on to defeat a recovery, where no demand for arbitration is made until the trial of the action.20

SS 9. \_Acceptance.21--\_The acceptance of the work by the owner may be a waiver of defects in performance,22 provided it is such an acceptance as is contemplated by the contract,23 and he has knowledge of all the facts and circumstances.24

The owner does not, by paying the contract price and going into possession, lose his right to recover damages for defective construction.25 Part payment is not a waiver of delay in performance, where the owner retains enough of the consideration to cover the amount of liquidated damages claimed by it for such delay,26 nor is the fact that the owner used the building before it was accepted a waiver of damages for delay already accrued.27

5 Cur. Law. BUILDING AND CONSTRUCTION CONTRacts SS 11. 471 SS 10. Payment.28--Where an architect is to receive a percentage on the actual cost of the building, payments to be made from time to time as the work progresses with final payment at a stipulated time after the completion of the plans and specifications, he is not entitled to a lien until after the completion of the work, though the time fixed for final payment has elapsed.29

Where the contract provides for a payment when the work reaches a certain stage, and that the remainder of the contract price shall not be paid until the work is completed, there is, after the first payment and before the completion of the work, nothing due the contractor which can be reached by garnishment.30

The owner cannot take advantage of a provision that the last payment shall not be due until a permanent loan has been placed upon the building where he is solely at fault for not having obtained it.31

The usual rules as to compromise and settlement apply.38 The acceptance of the contract price without protest does not preclude the recovery of compensation for extra work, where the items thereof were not the subject of discussion or contention in the settlement of the amount due.32

SS 11. Subcontracts.24--The owner cannot recover from a subcontractor for injuries resulting from his failure to perform his contract in accordance with the specifications, there being no priority of contract between them.38

A subcontractor who is prevented from completing his contract because of a default on the part of the principal contractor and the action of the owner in untaking the completion of the work, may recover against the owner on a quantum merit, where he has substantially performed his contract.38 Equities existing between the subcontractor and the principal contractor cannot, in such case, be availed of by the owner.37

The contractor and not the owner is responsible for defective work done by a subcontractor,38 and a contractor paying subcontractors before the final acceptance of the work provided for by the contract does so at his own risk.39

Subcontracts generally provide that the work must be done in accordance with the terms of the principal contract.40 A judgment in favor of a subcontractor in a suit by him against the principal contractor is not res adjudicata of the question

29. See SS C. L. 557.

01. Since cost and hence amount of his compensation cannot be ascertained until that time. Richardson v. Central Lumber Co., 112 11. App. 160.

01. Simmons Hardware Co. v. Baker (Mich.) 12 Det. Leg. N. 132, 103 N. W. 529.

01. As where he permits premlses to be sold under foreclosure. Mogulewsky v. Tohrisg, 93 N. T. S. 580.

01. See Accord and Satisfaction, 5 C. L.

01. Acceptance and retention of check by subcontractor held to estob him from claim.

Bank v. Mitchell, 46 Misc. 30, 93 N. T. S. 281.

ing more, and he could not retain it on account and sue for a balance claimed by him.

38. Latent defects unknown to either. McGregor v. Ware Const. Co. \[Mo.\] 87 S. W.

01. Acceptance of payment in full, etc., held compromise conclusive on contractor.

Phoenix Bridge Co.'s Case, 38 Ct. C1. 492.

39. McFerran's Case, 39 Ct. C1. 441. Heid

error to submit to the jury the question of final settlement between the parties, where undisputed evidence showed that no settlement was reached. Cronin v. Still \[Tex. Civ. App.\] 79 S. W. 1074.

34. See 3 C. L. 558.

01. VWhere plaintiff contracted with a company to install sprinkler system, and

### Building and Construction Contracts $ 12. 5 Cur. Law.

whether the work was done in accordance with the principal contract, in a suit by the contractor against the owner.\[41\]

Orders drawn by the contractor upon the owner in favor of a subcontractor, and payable out of particular funds due on the contract constitute equitable assignments of such funds.\[42\] One taking such an unaccepted order takes his chances on there being a balance due to the contractor, and cannot assert a personal claim against the owner superior to those holding mechanics' liens against the property.\[43\]

A contractor who accepts an order of a subcontractor in favor of a materialman is not liable to the latter, where the only amount remaining unpaid was, by the terms of the order, to be paid out of the amount due on the last payment, and no last payment ever became due the subcontractors on account of their abandonment of the work and its completion by the principal contractors.\[44\]

A promise by the contractor, on acceptance of a subcontractor's order, to pay to a third person a certain sum due the subcontractor "when said money is due him" is conditional on the completion of the contract by the subcontractor.\[45\]

SS 12. \_Bonds.\[46\]--\_A statute requiring building contracts to be secured by bonds which shall inure to the benefit of materialmen is unconstitutional as being an unreasonable restriction on the power to contract.\[47\]

A bond conditioned on the faithful performance of the contract renders the sureties liable for a failure of the contractor to perform any duties or obligations thereby imposed on him.\[48\] Where the contractor undertakes to furnish all labor and material, the owner may treat the filing of a mechanic's lien as a breach of a bond given to secure the faithful performance of the contract,\[49\] or he may waive

\[41\] Wagner v. St. Peter's Hospital\[44\] 44. Miller v. Norcross, 92 App. Div. 352, \[Mont.\] 79 P. 1054. 87 N. Y. S. 56. 42. If assignments not vuldl as against subsequent general assignee of contractor until filed (Laws 1885, p. 587, c. 342, $ 5, as amended by Laws 1896, p. 981, c. 915), the prsyce at least acquires Inchate rights, and the general assignee takes tilte sub-pect to the payee's right to file them and perfect his right to the fund. Armstrong v. Chisolm, 99 App. Div. 465, 91 N. Y. S. 299. Equitable assignment of so much of the contractor price due and unpaid as is in the hands of the contractor, as against subsequent attachments. Lutter v. Grosse, 26 Ky. L. R. 585, 82 S. W. 278. The acceptance, by the subcontractor from the contractor, of an order on the owner for the amount of his claim, and the service on the owner of a notice of his holding it, works an equitable assignment of so much of the amount to become due the contractor as is represented thereby. Wheelock v. Hull, 124 Iowa, 752, 100 N. W. 863. Evidence held to show agreement by defendant owner and builder to pay materialman for material furnished contractor which materialman should furnish on order of contractor and charge to defendant. Order by contractor in favor of materialman held intended to limit amount for which owner should be liable, and latter was liable for value of material furnished, though it did not equal amount of order, and though contractor did not fully complete his contract. Statute of frauds not applicable. Potter v. Greenberg, 24 Pa. Super. Ct. 505. 43. Wheelock v. Hull, 124 Iowa, 752, 100 N. W. 863. 44. Wheelock v. Hull, 124 Iowa, 752, 100 N. W. 863. 45. Wheelock v. Hull, 124 Iowa, 752, 100 N. W. 863. 46. Wheelock v. Hull, 124 Iowa, 752, 100 N. W. 863. 47. Wheelock v. Hull, 124 Iowa, 752, 100 N. W. 863. 48. Wheelock v. Hull, 124 Iowa, 752, 100 N. W. 863.

## 5 Cur. Law. Building and Construction Contracts $ 13. 473

such apparent breach and insist that the covenant is broken only when the lien is made a fixed and determined charge against his property by the judgment of a court of competent jurisdiction.\[50\]

The extent of the surety's liability is governed by the terms of the bond and not those of the contract.\[51\]

In the absence of a provision in the bond to the contrary,\[52\] no notice to the surety of the contractor's failure to perform is necessary.\[53\]

Anything done or omitted by the owner to prejudice the position of the surety will discharge him either pro tanto or altogether.\[54\]

The surety cannot, however,

treat it as breach of contract, and hence

and material have been furnished. Are not of the bond. Friend v. Ralston, 35 Wash.

I disable for sums which the owner was re-
422, 77 P. 794; Trinity Parish v. Aetna Indenmity Co. \[VWash.\] 79 P. 1097.

50. Provision in bond requiring suit to

be brought within six months of breach

(Mo. App.) $4 S. W. 993. Fact that amounts

compiled with where brought within six

ments after lien was put into judgment.

Beebe v. Redward, 35 Wash. 615, 77 P. 1052;

Ovington v. Aetna Indenmity Co., 36 Wash.

473, 78 P. 1021.

51. Where a contractor's bond contains

no provision for liquidated damages for de-

lay in completing the work, called for by

the contract for the work, such damages

cannot be recovered from the surety. City

of Winona v. Jackson, 92 Mlnn. 453, 100 N.

W. $58. Under bond conditioned that contractors would promptly pay all debts in-

curred by them in the prosecution of the

work, including labor, materials, etc., neither they nor their sureties were liable

for debts incurred for labor and supplies

by a subcontractor. Miller v. State \[Ind.

Appl.) 74 N. E. 260.

52. Where bond requires notice, owner

cannot hold surety for liquidated damages

fixed by contract for delay unless no gives

it. American Bonding Co. v. Regents of

University of Idaho \[Idaho\] $1 P. 604. A

provision in the bond requiring the owner

to notify the surety of any act of the prin-

cipal which might involve a loss for which

the surety would be liable does not require

him to give notice of the fact that the contractor has become indebted for labor, but

only of proceedings to enforce a lien for

the debt. Opinion v. Aetna Indenmity Co., 36 Wash. 43, 78 P. 1021.

53. Amdisson of copy of notice harm-

less. Hohn v. Shideler \[Ind.\] 72 N. E. 575.

54. Hohn v. Shideler \[Ind.\] 72 N. E. 575.

01. Hohn v. Shideler \[Ind.\] 72 N. E. 575.

Surety released: By the waiver by the

owner of a stipulation requiring him to re-

serve a portion of the contract price, until

after the completion of the work, without

the surety's consent. Lawhon v. Toors

\[Ark.\] $4 S. W. 636. Payment of first in-

stalment before all the materials were de-

ivered, contrary to terms of contract, re-

leases sureties entirely, and not merely to

extent of payment. Civ. Code, $ 2819.

52840. Glenn County v. Jones \[Call.\] $0 P.

00001. By changes allowing payment to be

made directly to the contractor instead of

first paying claims for labor and material,

when made upon sufficient consideration.

Guthrie v. Carpenter, 162 Ind. 417, 70 N. E.

486. By violation of provision requiring

final payment to be made on completion of

the work and when receptions for all labor

labor

not

### Building and construction contracts SS 12. 5 Cur. Law.

In this section we will discuss the construction of the contract which the owner wishes to be able to construct the contract. We will discuss the construction of the contract which the owner wishes to be able to construct the contract.

5 Cur. Law. Building and Construction contracts SS 13. 475

signment that notice thereof be given to the owner, or that he consent thereto."

The surety, in an action by the owner to recover on the contractor's bond, is estopped by a judgment obtained in good faith by the owner against the contractor for breach of the contract.64

SS 13. _Remedies and procedure.65_--A contractor signing the contract in his own name as an individual may properly sue thereon in his own name, though he may have been in partnership with a third person who performed the work under a private understanding between them that he was to share in the profits.66 A stipulation as to speed in a ship-building contract is a collateral warranty and may be sued on after delivery and acceptance since it cannot be determined by inspection on delivery.67 'A subcontractor may prosecute a petition for a mechanic's lien simultaneously with a suit at common law to recover the same debt in which a part of the contract price still in the hands of the owner is attached.68 An action cannot, of course, be maintained on the contract until after the time fixed for payment.68

_Form of action.70_--Performance upon the part of the contractor is a condition precedent to his right of payment, in the absence of anything in the contract to the contrary.71 In case he is prevented from performing by the act of the owner or in case of any other-breach of contract by the owner, he may either sue on a quantum merit for the value of the services actually performed,72 or he may re-cover damages for the breach.78 Where substantial compliance is not found, the general rule that an express contract excludes an implied one covering the same

### Building and Construction Contracts $ 13. 5 Cur. Law.

subject-matter applies.\[74\] Failure to fully perform is a bar to an action on the contract itself, unless such failure is waived.\[78\] But an unintentional failure to fully perform by reason of unimportant variations is no bar to a recovery under a count on an account annexed for the value of the labor and materials furnished in an amount not exceeding the contract price, and less any deductions necessary to complete the work.\[74\] A party may not, in one suit growing out of a single transaction,sue for damages for the alleged breach of contract and also for the value of services rendered regardless of the contract.\[77\]

A recovery may be had on the common counts for the value of labor and material furnished even though plaintiff has failed to perform the contract, where defendant accepted the work and it was of benefit to him.\[78\] The value of the use must, however, be shown\[79\]

If the contract is not performed according to its terms, and the owner refuses to accept the work, and the services are of such character and the materials furnished under such circumstances that the same can be rejected and the owner avoid receiving any benefit therefrom, the contractor cannot recover.\[80\] But where the services from their very nature must be regarded as accepted and the benefits thereof appropriated by the owner from day to day as the work progresses, he, though not liable upon the special contract, will be liable for the fair price and value of the benefits resulting from the partial performance, over and above the amount of damages sustained by the breach.\[81\]

Where the contract has been performed or terminated, and nothing remains to be done but to pay money, recovery may be had under the common counts,\[82\] and party to show that such expenditures were |se of the secretary of the navy to pay for extravagant or unnecessary. Government |phans depends on their adoption, their adoption or use must be shown in order to expenses. Houston Co.'s Case, 38 Ct. CL. |reover. Id. Where plaintiffs were not |t4, 75. Burke v. Coyne |Mass.| 74 N. E. |942. |r6. Burke v. Coyne |Mass.| 74 N. E. |942. |r6. Burke v. Coyne |Mass.| 74 N. E. |942. |r86. |r942. This principle also applies in proceedings to enforce mechanics' liens under similar conditions. Id. In such case the difference between the contract price and the outlay necessary to remedy the defects |use. Kinney v. Manitowe County |C. C. tractor. Id. |r77. Contract of employment as architect. |Galucke v. Lowndes County |Ga.| 51 S. E. |406. Plaintiff, in suit for breach of contract for employment as architect held not to have alleged performance by him with sufficient definiteness, or to have alleged defnentent by |the work, and the building is |leged damages |with legal certainty. Id. |78. Matthews v. Farrell, 140 Ala. 298, 37 So. |325. |r0. |Evidence insufficient to show that defendant accepted plans prepared by plaintiff, or used them, or that they were |in the absence of a showing that the manitowed to him. Minnuth v. Barnwell, |at N. Y. |649. In case plans for vessels submitted to the secretary of the navy are not adopted, the right to recover for their use depends upon whether they contain novel designs. If not, defendants were |free to use them. Lanthborg's Case, 39 Ct. CL. |23. Where one submitting plans re-quests their return in case they are rejected, the officers of the department have no right to retain them, but the claimant cannot recover for such retention unless he proves damages. Id. Where the prom-the contractor has been terminated either by5 Cur. Law. Building and Construction Contracts $ 13. 477 the agreement may be read in evidence for the purpose of showing its terms and to measure the damages.${}^{\\text{\\sss}}$

An action conditio indebiti will lie to recover the improper profits made by a contractor by the substitution of a cheaper material than the one specified.${}^{\\text{\\sss}}$

\_Pleading.--\_The ordinary rules of pleading apply.${}^{\\text{\\sss}}$ Recovery can only be had on the cause of action alleged.${}^{\\text{\\sss}}$ Though not necessary to do so, it is not improper to make the plans a part of the complaint.${}^{\\text{\\sss}}$ There is a conflict of authority as to the necessity of pleading waiver and estoppel.${}^{\\text{\\sss}}$ In an action to recover a balance of the contract price for the erection of a building, no plea is necessary to present the defense of failure of performance.${}^{\\text{\\sss}}$

_Evidence.${}^{\\text{\\sss}}$_--\_The ordinary rules of evidence apply.${}^{\\text{\\sss}}$ On the issue as to the terms of an oral contract with an architect for the drawing of certain plans,

its original terms, by the consent of the parties, or by the unjustifiable act of the defendant, and nothing remains to be done but to pay money, indebtitatus assumpiti will lie, though the debt accrued under a special contract. Contract to drill well. Poland v. Thomaston Face & Ornamental Brick Co. \[Mc.\] 60 A. 795.

83. Evans v. Howell, 211 Ill. 85, 71 N. E. 854. Contract may be proper and necessary evidence (Poland v. Thomaston Face & Ornamental Brick Co. \[Mc.\] 60 A. 785), and the contract price is the reasonable measure of value, in the absence of evidence showing any loss or damage to defendant by reason of a failure to complete the work. (Id.).

01. Louisiana Civ. Code, arts 2301 (2279), 2302 (2280), 2133 (2129). Not limited to action quant minority. Drainage Commission v. National Contracting Co., 156 F. 780.

01. See 3 C. L. 659. Complaint in action on contract to install plumbing work held to sufficiently aver performance and a resulting indebtedness. Matthews v. Farrell, 140 Ala. 298, 37 So. 225. Not open to the objection that the demand was for work performed under the contract other than installing the plumbing in the building mentioned. Id. In an action on a contractor's bond guarantying the construction of certain sewers, narr, held demurable for not assigning the breaches with sufficient particularity. United States v. Jacoby, 4 Pen. \[Del.\] 487, 60 A. 863. Declaration held to sufficiently allege breach of contract to furnish materials in such manner as not to delay the material progress of the work, and to relumbres con- to tractor for loss caused by failure to do so. Pinkerton Const. Co. v. Schweyer \[N. J. Law\] 58 A. 112. In an action for price of plans in which defendant counterclaimed for damages due to fact that plaintiff erroneously specified that property was certain distance from street and thereby a necessitated making of new plans, held that plaintiff was entitled to bill of participants stating in what papers mistake was made, etc. Price v. Ryan, 96 App. Div. 607, 88 N. Y. S. 984.

01. Where plaintiff refused to accept offer of compromise but sued for full amount claimed by him to be due under contract, without alleging any right to recover former amount, he could not, on fall-the agreement may be read in evidence for the purpose of showing its terms and to measure the damages.${}^{\\text{\\sss}}$

An action conditio indebiti will lie to recover the improper profits made by a contractor by the substitution of a cheaper material than the one specified.${}^{\\text{\\sss}}$

\_Pleading.--\_The ordinary rules of pleading apply.${}^{\\text{\\sss}}$ Recovery can only be had on the cause of action alleged.${}^{\\text{\\sss}}$ Though not necessary to do so, it is not improper to make the plans a part of the complaint.${}^{\\text{\\sss}}$ There is a conflict of authority as to the necessity of pleading waiver and estoppel.${}^{\\text{\\sss}}$ In an action to recover a balance of the contract price for the erection of a building, no plea is necessary to present the defense of failure of performance.${}^{\\text{\\sss}}$

_Evidence.${}^{\\text{\\sss}}$_--\_The ordinary rules of evidence apply.${}^{\\text{\\sss}}$ On the issue as to the terms of an oral contract with an architect for the drawing of certain plans,

its original terms, by the consent of the parties, or by the unjustifiable act of the defendant, and nothing remains to be done but to pay money, indebtitatus assumpiti will lie, though the debt accrued under a special contract. Contract to drill well. Poland v. Thomaston Face & Ornamental Brick Co. \[Mc.\] 60 A. 795.

83. Evans v. Howell, 211 Ill. 85, 71 N. E. 854. Contract may be proper and necessary evidence (Poland the declarations of defendant's wife in his presence and at the time the terms were being considered, coupled with his acquiescence in her wishes then expressed, are admissible." Where the contractor agrees to protect and save the plaintiff harmless from all claims of any sort or description arising by reason of work done or omitted to be done under the contract, and to defend at his own expense all suits brought against the plaintiff on such claims the records of suits so brought in which recoveries were had against plaintiff, which he paid, are conclusive evidence against the contractor's surety provided they disclose with sufficient certainty that they were founded on the negligence or other improper conduct of the contractor."

One suing for labor and material has the burden of proving that both were furnished in pursuance of a contract requiring defendant to pay for them."

BUILDING AND LOAN ASSOCIATIONS.

**SS 1.** Stattory Regulation (475).

**SS 2.** Membership and Stoek (479). Characters and By-Laws (479).

**SS 3.** Loans and Mortgages (480).

**SS 4.** Termination and Insolvency (486).

**A.** In General (480).

**SS 5.** Rights of Withdrawing Sharehold-B.

**SS 6.**

**SS 1.** Slatutory regulation."The business of building and loan associations is very generally regulated by statute, and compliance with such statutes is necessary to entitle an association to the privileges granted." This rule applies equally to foreign and domestic corporations." The law of the place of performance of the contract governs and is the law with which the association, seeking to enforce its contract, must comply." In some states contracts of a foreign association which\*\*

**from, and as to the value of wells to him**

**definiteness, where they did not identify**

**hold improper as calling for conclusions.**

**Dubois v. Williamson, 93 App. Div. 361, 87**

\*\*N. Y. S. 645. On an issue of plaintiff's fall-

\*\*ure to properly perform a contract to in-the work, and there was no means of stall a water system operated by a hy-

**draulic ram, evidence of defects in the**

**constructon of a dam, which he built for**

**offered as a whole, Id.**

**the purpose of furnishing the water, was**

**admissible. Carolina Plumbing & Heating**

\*\*186 Mass, 217, 71 N. E. 550.

\*\*Co. v. Hall, 136 N. C. 530, 48 S. E. 510. Ad-

**mission of evidence to show condition of**

**dam held harmless where nothing to show**

**that its defective condition caused failure**

**of water supply. Id. So too was evidence**

**of a physician that the presence of odors, dampness, and mosquitoes in the house**

**caused the sickness of persons living with**

**derendant. Not on issue of damages, but**

**as substantive evidence of defects in the**

**system. Id. In action on contract for**

**drillism well, permitting witness to Illustate to jury the character and appearance of the well by means of a paper cylinder held not erroneous. Comer v. Thornton**

**\[Tex. Civ. App.\] 86 S. W. 19. Question asking defendant's president whether phrase**

**was inserted in contract at his suggestion properly excluded. United Engineering & Contracting Co. v. Broadmax \[C. C. A.\] 136 F. 351.**

**91.** **Right v. Klingensmith \[Ark.\] 87 S. W. 138.**

**92.** **Contract for construction of canal.**

\*\*Lake Drummond Canal & Water Co. v. West End Trust & Safe-Deposit Co., 131 F. 147. Records properly excluded for in-the declarations of defendant's wife in his presence and at the time the terms were being considered, coupled with his acquiescence in her wishes then expressed, are admissible." Where the contractor agrees to protect and save the plaintiff harmless from all claims of any sort or description arising by reason of work done or omitted to be done under the contract, and to defend at his own expense all suits brought against the plaintiff on such claims the records of suits so brought in which recoveries were had against plaintiff, which he paid, are conclusive evidence against the contractor's surety provided they disclose with sufficient certainty that they were founded on the negligence or other improper conduct of the contractor."

**One suing for labor and material has the burden of proving that both were furnished in pursuance of a contract requiring defendant to pay for them."**

**BUILDING AND LOAN ASSOCIATIONS.**

**SS 1.** Stattory Regulation (475).

**SS 2.** Membership and Stoek (479). Characters and By-Laws (479).

**SS 3.** Loans and Mortgages (480).

**A.** In General (480).

**SS 5.** Rights of Withdrawing Sharehold-B.

**B.** Usury. Conflict of Laws (481).

**SS 4.** **S1.** Slatutory regulation."The business of building and loan associations is very generally regulated by statute, and compliance with such statutes is necessary to entitle an association to the privileges granted." This rule applies equally to foreign and domestic corporations." The law of the place of performance of the contract governs and is the law with which the association, seeking to enforce its contract, must comply." In some states contracts of a foreign association which\*\*

**from, and as to the value of wells to him**

**definiteness, where they did not identify**

**hold improper as calling for conclusions.**

\*\*Dubois v. Williamson, 93 App. Div

## 5 Cur. Law. BUILDING AND LOAN ASSOCIATIONS SS 2.

has not complied with the statute regulating foreign corporations are void.\* In others, noncompliance with such statutes does not render the contract void, the statutory penalty imposed being deemed exclusive of other penalties.\* The Missouri statute regulating building and loan associations, requiring them to make a deposit with the state treasurer to secure the holders of contracts, and to procure licenses from a supervisor, who is given ministerial powers, is held valid.1 The act is not a regulation of interstate commerce, and is within the police powers of the state.2 It does not confer legislative nor judicial powers upon the supervisor,3 is not retrospective in operation,4 and is not class legislation.5 A building and loan association is liable to the organization tax imposed upon corporations by statute in Kentucky.4

Footnote 1: The author is grateful to the anonymous referees for their comments.

The applicability of usury statutes to building and loan contracts is treated in a subsequent section.7

SS 2. \_Membership and stock.8--\_The membership usually consists of a borrowing and nonborrowing class, but all members, so far as stock and payments thereon are concerned, stand on an equal footing.9

\_Charters and by-laws.10--\_The articles of association and by-laws are a part of the contract with a member,11 and stockholders are charged with notice thereof.12 The fact that a certificate recites that the contract is subject to the articles, by-laws, terms, and conditions expressed on the back thereof, and that the articles and by-laws do not appear there, does not change this rule.13

\_Maturity of stock.14--\_In the absence of any special agreement, stock matures only when the dues paid and earnings apportioned to it amount to the face value.15 There is a conflict of authority as to the legal effect of an agreement that stock shall mature after a specified number of payments or in a certain time, some courts holding such an agreement enforceable 16 and others that the association has no power to make such a contract,17 and that it is therefore void.18 But such an agreement does not render the entire contract void; payments must be made until the stock regularly matures.19 Some courts hold that when a contract providing for the maturity of stock at the end of a fixed period is not prohibited by law when made,20 and is fully performed, the association is estopped to set up that it is ultra vires and contrary to law.21

Footnote 1: The author is grateful to the anonymous referees for their comments.

9S. Loan and mortgage vold if statute bor & Suburban Bldg. & Sav. Assr'n, 93 N. not complled with. Hanchey v. Southern Y. S. 916, Home Bldg. & Loan Assr'n, 140 Ala. 245, 37 So. 272.

99. The contract may be enforced, if It would be enforceable if made by a home Bldg. & Sav. Assr., 93 N. Y. S. 916, association. Thompson v. National Mut. Bldg. & Loan Assr'n \[W. Va.\] 50 S. E. 756, 1. Acts 1903, p. 110. State v. Preferred Tontine Mercantile Co., 184 Mo. 160, 82 S. W. 1075. Subject-matter is covered by title. Id.

2, 3, 4, 5, State v. Preferred Tontine Mercantile Co., 184 Mo. 160, 82 S. W. 1075.

6. Ky. St. 1902, SS 4225, applies. Commonwealth v. Licking Val. Bldg. Assr'n No, 3, 26 Ky. L. R. 730, 82 S. W. 435.

1. See SS 3 B.

1. See SS 3 C. L. 562, 9. See SS 3 C. L. 563, for recent cases on rights of stockholders and the status of borrowing members. See, also, SS 3 C, and 8 D.

1. See 3 C. L. 561.

1. Especially where the artcles and by-laws so provide. Tautheoues v. HarA mortgage executed by reason of false representations by an authorized agent that a certain number of payments would mature the stock is unenforceable.22 But the fact that such representations were made is not a defense to a fore-closure action, when the by-laws, made a part of the contract, provide that stock should mature when the loan-fund portion of instalments, with accumulated profits, should bring the value of the stock to par.23 Future profits not being determinable in advance, the representation is in such case merely an expression of opinion.24 Such representations being true according to provisions of the contract, are not fraudulent because such provisions are subsequently held invalid by the court unless their invalidity was known to those who made the representations, and unknown to the borrower.25

Where the officers of an association erroneously declare stock of a certain series matured, such action does not release holders of that stock from further liability; 26 holders of such stock are liable for the amount necessary to fully mature the stock, with interest, but are not entitled to profits after the stock was declared mature, nor liable for burdens secruing thereafter.27 A suit to cancel entry of satisfaction and enforce liability for a balance due is not barred by laches where demand for restitution is made on discovery of the mistake, and suit is brought within one year thereafter.28

**SS 3.**\_Loans and mortgages. A. In general.29--\_Unauthorized representations of an agent, through whom a loan is made, not brought to the notice of and acted on by the association, are not binding upon it.30 A corporation borrower, which has received and used the borrowed money, cannot defeat enforcement on the ground that its contract is ultra vires, it having no power to hold stock in another corporation.31 Where an association by a by-law designates an officer or committee to whom payments are to be made, and such designation is known to those making payments, payments to others than those designated are not payments to the association, unless actually received by it.32 But such by-law may be waived by acquiescence for a number of years in a course of dealing under which payments are made to another.33 A mortgage given a foreign association having been trans-

ture stock on mutual plan. Assets Realization Co. v. Helden, 215 11. 9, 14 N. E. 56. See, also, 2 C. L. 564, n. 99.

**22.**\_Testimony of agent that he made the representations with authority, and of the mortgages that the statements were made and were believed and relied on by them, sufficient to establish the defense in fore-closure action. Guaranty Sav. & L. Ass'n v. Simko \[Ind. App.\] 71 N. E. 906. (But see opinion on relearning, Id. 74 N. E. 273.) Representations by secretary and advertising matter held to amount to assertion that stock would mature in 8 years, and not to mere opinion, and hence held good ground for setting aside forcelosure and for accounting. Stoddard v. Sagiano Bldg. & L. Ass'n \[Mich.\] 101 N. W. 50. Defense held not sufficiently sustained by evidence, and judgment for complainants held supported by evidence. Bush v. German-American Bldg. Ass'n, 38 Ind. App. 583, 71 N. E. 914.

**23.**\_Wayne International Bldg. & L. Ass'n v. Gilmore \[Ind. App.\] 72 N. E. 190.

Such defense not available to one who had the contracts before him. Guaranty Sav. & L. Ass'n v. Simko \[Ind. App.\] 74 N. E. 273.

**24.**\_Wayne International Bldg. & L. Ass'n \[Pa.\] 60 A. 1054.

5 Cur. Law. Building and Loan Associations $ 3B. 481

.ferred to a domestic concern, and the borrower's stock in the former canceled and an equal amount issued by the latter, the contract will be treated, in foreclosure, as though originally made between the mortgagor and the domestic association.34

Where a borrower gives a bond conditioned upon the payment of the principal of a loan, and premiums, fines and charges, and a mortgage to better secure payment of the principal, with interest, the mortgage secures payment only of the principal and interest.35 When a member is in default must be determined from the terms of the contract.36

($ 3.) \_B. Usury. Conflict of laws.37--\_The law of the place of performance governs as to usury.38 Where by-laws provide that payments shall be made at the home office, and that the contract shall be regarded as made at the home office, the state wherein the home office is located is deemed the place of performance.39

\_Exemption from usury laws.40--\_Stattes authorizing building and loan associations to assess and collect from borrowing members dues, fines, interest and premiums on loans, and such other assessments as may be provided for by the constitution and by-laws, and that such payments shall not be considered usury, though in excess of the legal rate of interest, are constitutional.41 Such laws are uniform in operation,42 and do not confer special privileges, or discriminate in favor of a certain class of corporations.43 Statutes of this character exist in many states.44

34. Mercantile Co-operative Bank v. \[contract was usurious, whereas by the law of the domilett was perfectly valid: Goodspeed \[N. J. Esq.\] 59 A. 802. 803. 804. 805. 806. 807. 808. 809.

To entitle an association to the benefit of such laws, it must comply with the conditions imposed, otherwise its contracts will be regarded as ordinary loans and therefore usurious.45 All payments of dues, premiums and fines are in such case to be applied on the loan,46 and only the actual amount loaned with legal interest, can be recovered.47 The validity of the contract and the bona fide character of the corporation as a building and loan association being put in issue, the association must show that it is in fact a building and loan association, and that its contracts are authorized by its charter.48 The mere introduction of a certificate of incorporation in a foreign state, unaccompanied by a general statute showing its powers, is insufficient to carry the burden on such issue.49

Many statutes require competitive bidding on premiums for the privilege of priority of loan,50 but the validity or invalidity of a statute exempting building and loan contracts from usury laws is not affected by the presence or absence of such a requirement.51 Failure to comply with such a provision,52 as by arbitrarily fixing53 a minimum rate,54 renders the loan usurious. A written bid may be sufficient.56

In the absence of fraud, duress or mistake, a loan, conforming to the charter of an association and the laws under which it was organized, will not be held usurious by virtue of the contract for stock, where the note given for the loan is lawful on its face.56 It is immaterial that stock was taken for the sole purpose of obtaining a loan, providing it is not a mere device to cover usury.57 The subscription for stock and the loan are to be considered as separate transactions.58 Unless the stock is a mere device to cover usury, payments thereon should be applied thereto according to the contract;59 and one who becomes a subscriber and borrower and makes payments according to the terms of his contract cannot thereafter attack the validity of the stock and claim that instalments on the stock were payments on the loan.56 If a loan be free from usury and the stock valid as to the shareholder, they cannot be considered otherwise when attacked by one who is

Defense of nsnry held not sustained where contract was under New York law, and it was not claimed that under that law the agreement was usurious. Mercantile Cooperative Bank v. Goodspeed \[N. J. Eq.\] 59 A. 80Z.

45. Miller v. Monumental Sav. & L. Assn\[TW. Va.\] 50 S. E. 53. Contract held within scheme of building and loan association and not insurions on its face. Collins v. Citizens' Bank & Trust Co., 121 Ga. 513, 49 S. E. 594.

01. Miller v. Monumental Sav. & L. Assn\[TW. Va.\] 59 S. E. 53.

01. Land Tittle & Trust Co. v. Fulmer, 24 Pa. Super. Ct. 256.

48, 49. National Bldg. Ass'n v. Quinn, 121 Ga. 307, 49 S. E. 312.

50. See 3 C. L. 567. Under the present Ohio statute the premium for a loan, if reasonable in amount, need not be ascertained by competitive bidding, but may be fixed at a uniform rate by the constitution and by-laws of the association. Cranmer v. Southern Ohio Loan & Trust Co. \[Ohlo\] 74 N. E. 200.

01. Cramer v. Southern Ohio Loan & Trust Co. \[Ohlo\] 74 N. E. 200.

01. Evidence held to show that there was no competitive bidding as required by law. Stoddard v. Magniaw Bldg. & L. Assn\[Mich.\] 101 N. W. 50. Evidence sufficient to warrant finding that premium was fixed * 5 Cur. Law. BUILDING AND LOAN ASSOCIATIONS SS 3C.

a mere vendee of the property previously mortgaged to secure the loan. \[61\] In West Virginia it is held that when the time of the maturity of the stock is indefinite and uncertain, thereby rendering the amount of premiums to be paid uncertain and requiring payments to be made for an indefinite period, the contract is usurious. \[**\] But where the premium bid is fixed by the charter and by-laws and the bond and deed of trust, in monthly payments for a stated and definite number of years, or until maturity of the pledged shares, should they mature before expiration of the time stated, the amount of premium is sufficiently definite and certain. \[**\] If a contract is usurious in its inception, it cannot be purged of usury by subsequent by-laws reducing the amount of payments. \[\*\*\]

In some states contracts calling for interest, premiums and dues are held usurious as to payments in excess of the stipulated interest, and such payments in excess are credited to the reduction of the principal. \[**\] But one who would bring himself within this doctrine and secure the benefit of payments of dues and premiums must show that he had contracted with a building and loan association having a plan or scheme different from that sanctioned by the statute, \[**\] and facts indicating that there was no corrupt intent between him and the other parties to receive and pay usurious interest. \[\*\*\]

(SS 3.) _C. Accounting with borrower while solvent. \[\*\*\]_--A borrowing member, upon settlement with the association while solvent, is chargeable only with his loan and legal interest, and all payments, whether as dues, premiums or interest, are regarded as payments on the debt. \[**\] But it has been held that payments of dues on stock is not ipso facto an application of money so paid to the mortgage debt; and that to have that effect there must be an act of appropriation by one or other of the parties. \[**\] Where a borrower acquiesces in the application of payments for a number of years, with knowledge of the terms of his contract, the court will not enforce another application on the mere ground that the borrower, at the time of making the contract, may have understood that such other application was to be made. \[**\] Where a mortgage provides that the actual surrender value of the stock should, on foreclosure, be applied on the debt, it cannot be urged as a defense, on foreclosure, that such value was less than it should have been, owing to mismanagement. \[**\] Under the Iowa statute, if a judgment is had against a borrower, the amount of recovery cannot exceed the actual amount of the principal, with interest at a rate not to exceed twelve per cent.\[38\] The method of computation under this statute \[74\] is to be applied to contracts made prior to its enactment.\[75\]

(SS 3) _D. Accounting after insolvency.\[76\]_--Where foreclosure proceedings are commenced by an association, practically insolvent at the time, and continued by the receiver of the association, the accounting will be treated as one after insolvency.\[77\] Insolvency of the association works a rescission of the contract,\[78\] and the sums borrowed become immediately due and payable, regardless of the terms of payment fixed by the contract.\[79\] The borrower is chargeable with the amount of his loan, with interest, and payments actually made, referable to the loan, are credited thereon.\[80\] Thus bonuses,\[81\] and interest and premium \[82\] payments, are usually credited in toto on the debt. But in the Federal courts it is held that no credit should be allowed on the debt for earned nonsurious premiums, nor for nonsurions premiums paid in monthly instalments prior to insolvency of the association.\[83\] Dues paid on the stock,\[84\] and fines paid for default 'n stock payments \[85\] cannot be treated as payments on the debt, but credit therefor can be given only upon final distribution of the net assets among all stockholders.\[86\] The same rule applies to dues upon stock pledged to secure premiums as to dues for stock pledged to secure the advancement.\[87\] Where an association consolidates with another, forming a new one, and a member of the old association takes stock from and gives a new note to the new association, dues paid the old association, while solvent, are to be credited on the debt, after insolvency of the new association.\[88\] If the assignee in insolvency 73. Code, SS 1898. Iowa Deposit & Loan Co. v. Matthews \[Iowa\] 102 N. W. 817.

74. The amount recoverable is found by first ascertaining the amount actually received by the borrower and computing Interest at 12 per cent, to judgment; the total amount of all payments made and all dedinquencies charged is then found; If the latter amount equals or exceeds the former, judgment cannot exceed the former; If the latter is less than the former, the difference may be recovered. Iowa Deposit & Loan Co. v. Matthews \[Iowa\] 102 N. W. 817. Payments by the borrower are not to be treated as partial payments on the loan in order to determine the rate of interest actually paid. Id.

01. By express provisions of Acts 27th Gen. Assem. p. 32, c. 48. Iowa Cent. Bldg. & L. Assem'n v. Klocke \[Iowa\] 104 N. W. 852. 76. See SS 3 C. L. 669.

Note: As to the effect of insolvency on the borrower's contract, and the credits and charges to be made, see note in 3 C. L. 569. See, also, discussions and citations of authorities in the two recent cases of Mercantile Co-operative Bank of New Jersey v. Goodspeed \[N. J. Eq. 1\] 59 A. 802, and Harris v. Nevins \[N. J. Eq. 1\] 58 A. 1051; also note to Curtis v. Granite State Provident Assem'n \[69 Conn. 6\] in 61 Am. St. Rep. 24.

77. Mercantile Co-operative Bank v. Goodspeed \[N. J. Eq. 1\] 59 A. 802. 78. After insolvency, and sale of a borrowing member's property on foreclosure, so that the association cannot reeded the property, or otherwise perform its contract, the member is discharged from furte-ther performance. Bertin v. Fallon, 91 N. Y. 81037.

01. Harris v. Nevins \[N. J. Eq. 1\] 58 A. 1051. Upon institution of proceedings to wind, up an association, borrowing stockholders may be required to pay at once, * 5 Cur. Law. BUILDING AND LOAN ASSOCIATIONS SS 3D.

has instituted foreclosure proceedings, the borrowing member should be renitted to the court administering the insolvent estate for his pro rata share of dividends on his stock; * the court before which foreclosure proceedings are pending will ascertain the value of the stock and apply it on payments only in case the right to participate in dividends has been barred by action of the court administering the estate.\* In New York it is held that the rights and liabilities of borrowing members and the association should not be determined until the net assets of the association have been determined.\* Hence payments by the member should not be credited to him, but become part of the assets of the association, a proportionate share of which will be awarded the member on final distribution.\* But if liquidation has so far proceeded that the receiver knows that stockholders are to receive a dividend, and the approximate amount thereof, he should, as a matter of grace, credit the amount to the defendants in foreclosure, keeping within a safe margin.\*

Fines for default in payment of dues and interest cannot be collected on foreclosure of the mortgage, unless the parties have so expressly agreed.\* Atterney's fees, chargeable on default, cannot be enforced when the borrower has kept up all his payments to the time of insolvency.\* A prior mortgage having been assumed by the association which paid interest thereon, but not the principal, such principal is to be deducted from the amount due from the member.\* The difference between the interest on the assumed mortgage and the interest paid by the member on the entire loan is a part of the profits of the association, a share of which the member can obtain only on final distribution of assets.\* Interest paid on such assumed mortgage by the receiver is to be charged to the member.\*

A borrowing member who has voluntarily paid the receiver a sum in excess of his actual indebtedness may recover the excess but must bear the costs of the proceeding.\* A suit for rescission of a stock contract on the ground of misrepresentations may be maintained against the receiver after insolvency if brought with due diligence and if the assets are sufficient to pay all creditors.\*

A certificate of stock providing that the holder is entitled to interest on the amount paid, and may surrender the certificate on giving due notice, is in effect a promise to pay the amount indicated, with interest.2 The holder of such certificate is entitled, after insolvency of the association and payment of the general creditors, to treat it as a promise to pay, and to hold a mortgage assigned to her by the association as collateral,\* even though she had also entered a sworn claim on the certificate in insolvency proceedings.\*

Upon insolvency, mortgages of the association become immediately enforce able by the receiver,5 and a correlative right arises in each mortgagor to redeem his lands from the mortgage thereon.6 This rule applies where a borrowing member has given a deed, accompanied by a defeasance stipulating for a reconveyance, upon performance of the borrower's agreements and the maturity of his stock, according to the scheme of the association.7 In such case the receiver may enforce the association's rights immediately, upon insolvency, and the borrower may have a reconveyance upon payment of such amount as may be determined by the contract and the existing equities to be due.8 Where such conveyance is made subject to a prior mortgage, which is assumed by the association, redemption will not be permitted unless the liability of the fund in the receiver's hands is wholly discharged either by payment of the prior mortgage or by a complete release from the holder thereof.9 Premiums actually paid by the borrower are to be credited to him, in determining the amount to be paid for redemption.10

must be treated the same as other stockholders,25 and the fact that notes are given for the amount to which such member is entitled on withdrawal does not make him a creditor.26 Where a member withdraws, surrenders the pass book, and is paid the withdrawal value of stock, and thereafter the secretary, fraudulently and without authority, delivers the book to another and embezles the amount received, the association is not liable to the person defrauded,27 even though the latter holds a duly executed certificate of stock, nothing having been paid on the faith of such certificate.28

**BUILDINGS AND BUILDING RESTRICATIONS.**

**8 1. Public Regulations (487).**

**8 2. Private Regulation. Restrictive**

**8 3. Libability for Unsafe Condition of**

**8 2. Private Regulation. Restrictive**

**8 4. Libability for Negligent Operation of**

**Devators (492).**

**SS 1.**\_Public regulations.29--The construction or removal of wooden buildings 51 or the regulation of the disposal of sewage in tenement houses is a constitutional exercise of the police power,32 and is not void because applicable only to cities of the first class,33 nor is it a taking of private property for public use without compensation in so far as applied to existing buildings.34 The right to erect buildings in cities,35 or to interfere with electric wires in moving a building along a public way, is regulated by statute.36 Building regulations are to be given a fair interpretation 37 and a literal construction,38 and the terms of the statute must be definite.39 Noncompliance therewith is prima facie evidence of negligence,40 but in order to be made the basis of a recovery, it must have been the proximate cause of an injury 41 sustained by a person entitled to complain of such dereliction of duty.42 Where the duties of a building inspector and board of public works is quasi-judicial, mandamus will not issue to review their judgment,43 and in no event should it issue prior to action taken44 or unless authorized by law.45 A city cannot be held liable for failure of its board of aldermen to adopt a proper building code,46 nor for default of duty of a building superintendent who is not its agent or representative,47 nor is the superintendent liable in the absence of negligence.48

SS 2. $Private$ regulations.49 Restrictive covenants.50--The owner of an estate may bind it by restrictive covenant as against all except prior lenors.51 A mutual covenant by adjacent owners creates a servitude on the land of each,52 and a restriction for the benefit of certain property is appurenant to it and passes with a conveyance of it,53 unless the general scheme of improvement has been abandoned.54

therein, held to mean the side fronting on a certain street and not the square sur-

76 P. 734 Under an ordinance providing rounded by four streets. Patterson v.

that no building permit should be issued Johnson, 214 Ill. 481, 73 N. E. 761.

38. A stable in which stall room is leased to persons who care for their own horses

tutes an adjustment. Id.

is not one "for taking horses and carrigees

44. The office of a mandamus is not to for hire" within a statute prohibiting the

compel action by the building department

are of such a stable within 200 feet of

in advance of the preparation and adoption of plans, but only to compel action

O'Connell, 187 Mass. 236, 72 N. E. 1011. The provision of the tenement house act that

reasonably condemned. Hartman v. Col-all stairways shall be provided with proper

118, 94 N. Y. S. 63.

hanisters and railings does not require the

placing of a barrier across the entrance of

pel the building inspector to approve plans

tementen house callarrays. Consuring

Laws 1901, p. 889, c. 334; Tenement House

Code, $ 108, though without prejudice to Act, $ 86. Rothlin v. Stager, 88 N. Y. S. 921. Rev. St. 1899, $ 9036, relative to fire

quirements and require them to be com-

escapes in hotel buildings, was repealed by

Lets 1901, p. 219. Yall v. Gillham \[Mo.\]

$ 63.

86 S. W. 125. Building line restriction

(Acts 1904, p. 1077, c. 616, $ 1) is void as arbitrary classification. Storck v. Bali-

more \[Md.\]

$ 39. Acts 1904, p. 1077, c. 616, $ 1, attempting to regulate the limits within which it

shall be unlawful to construct steps for

houses from the grade of the sidewalk, is

void. Storck v. Baltimore \[Md.\]

61 A. 330.

40. Failure to comply with Building

Code, $ 102, p. 65, City of New York, re-

quiring buildings exceeding 100 feet in

height to be provided with stand pipes, is

prima facie evidence of negligence in an

action by one entitled to have the statute

complied with. Acton v. Reed, $ 3 N. Y. S. 911.

41. That a stairway was not provided

with railings and banisters as required by

the Tenement House Act \[Laws 1901, pp. 889, 900, c. 344, $ 36, 41\]. Kuhnen v.

White, 102 App. Div. 36, $ 2 N. Y. S. 104.

Failure to provide a building with stand pipes as required by New York City Building Code, $ 102, p. 65. Acton v. Reed, $ 3 N. Y. S. 911.

42. A statute relative to hoistways and

elevators enacted exclusively for the benefit of employees cannot be made the basis of

an action by a member of a fire department,

ment, Gen. St. p. 2346, $ 1 imposes duties

only for the protection of employees. Kelly

v. Henry Muh's Co. \[N. J. Law\]

59 A. 23.

5 Cur. Law. BUILDINGS AND BUILDING RESTRICTIONS SS 2. 489

A restriction cannot be enforced by one not in privity.\[54a\] Restrictive covenants are to be reasonably interpreted \[55\] and strictly construed,\[56\] and nothing is to be regarded as a violation that is not in disregard of express terms according to their meaning at the time the covenant was made.\[67\] They are enforceable against grantees who take with notice,\[68\] but not against those without notice.\[69\] Perpetual restrictions are not favored,\[40\] and whether one will be enforced is a question that cannot be raised on a petition under a statute to determine the

\\begin{tabular}{l|l} grantee against another. Morrow v. Haselman \[N. J. Eq.\] 61 A. 369. Covenants & Kitching v. Brown, 180 N. Y. 414, 73 N. E. 241. See, also, 3 C. L. 575, n. 10. A covenant fixing a building line except as to corneras do not apply to corner lots when a new avenue is extended to intersect the street. Halstead v. Attemburg, 94 N. Y. S. 1023. An agreement that no house should be built except in the center of a certain lot held to mean the center of the lot at the time the building was erected, a part of the lot having in the meantime been taken for a street. Frost v. Havlland \[Conn.\] 61 A. 543. \\ \\end{tabular}

Heid vindicated A bay window built up from a foundation is a house within a building restriction covenant. Righter v. Winters \[N. J. Eq. 51 A. 770. A restriction against the erection of a tenement house or any house except a private bowling is violated by the erection of a building, the interior of which is divided into three floors each finished to accommodate a separate family (Levy v. Schreyer, 177 N. Y. 299, 69 N. E. 598), and one that a lot shall not be occupied except for one dwelling house is violated by a building designed for two families; one on each floor and having separate entrances (Harris v. Rorapack \[Mich.\] 100 N. W. 391), and, also, the projection of bay windows on the upper stories of a building beyond a building line (Righter v. Winters \[N. J. Eq. 51 A. 770). 57. The meaning of "tenement house" at the time covenant was made (it havling at that time no well defined legal meaning) may be explained by witnesses familiar with the then conditions. As to whether it embraced an apartment house, Kitching v. Brown, 180 N. Y. 414, 73 N. E. 241. 58. A purchaser who has notice of a restrictive covenant is charged with notice of the purpose for which it was made. Hemsley v. Marlborough House Co. \[N. J. Err. & App.\] 61 A. 455. A reetal in a head that it is subject to the restriction in another deed is notice to the grantee of the restriction. Morrow v. Hasselman \[N. J. Eq.\] 61 A. 599. \\ \\end{tabular}

59 At that we can find a petition in the center of a certain lot to mean the center of a certain lot to mean the center of a certain lot. Morrow v. Shepard, Knapp & Co., 96 App.\] Div. 281, 89 N. Y. S. 201. A restriction against coal yards, slaughter houses or tenement houses 1s not one against the direction of a modern apartment house. \\ \\end{tabular}

nature of the covenant.64 The doctrine of equitable restriction is for the benefit of other land owned by the grantor and originally forming, with the land conveyed, one parcel.62 There is a conflict of authority as to whether land subsequently added by accretion is bound;63 but one who has participated in a general scheme of improvement will not be permitted to violate it.64

The jurisdiction of equity to enforce restrictive covenants is discretionary,65 but they will be enforced according to their terms,66 regardless of special damage shown,67 unless conditions of the property have so changed68 or other circumstances render enforcement inequitable.69 A restriction against the erection of a tenement house is not affected by a subsequent change in the character of the neighborhood.70 That immaterial violations have been excused does not preclude enforcement against offensive violations,71 but one who has violated such a covenant is estopped to complain of a similar violation by his neighbor.72

The law of another state relative to equitable restrictions is presumed to be the same as the common law of the forum.73

- \[leftmargin=0.4cm\]
- erected and is not a restriction in perpetuity. Welch v. Austin, 187 Mass. 256, 78 N. E. 972. Permanent restrictions being contrary to the policy of the law, equity in enforcing compliance will limit the decree by the duration of the conditions which form the basis of the equity calling for such enforcement. Robinson v. Edgesl \[V. Va.\] 49 S. E. 1027.
- \[leftmargin=0.4cm\]
- \[leftmargin=0.

5Cur. Law. BUILDINGS AND BUILDING RESTRIRCTIONS SS 3. 491 SS 3. \_Liability for unsafe condition of premises.74--A municipal corporation is not liable for injuries caused by defects in buildings used for a public or governmental purpose,75 but a private owner76 or one in control of premises must exercise ordinary care 77 to keep them reasonably safe 78 for persons who enter thereon by invitation79 or as a tenant80 or by other lawful license;81 but he owes no duty to trespasers82 or bare licensees,88 except to refrain from doing them affirmative injury; but circumstances may require him to keep the premises reasonably safe for persons who are neither licensees nor trespasers.84 For injuries caused a third person because of negligence in caring for leased premises, the tenant and not the 73. As to whether a condition in a deed creates an equitable restriction. Haken v. basement. Withers v. Brooklyn Real EssMathews, 184 Mass. 388, 68 N. E. 838. 84. See 3 C. L. 576. 75. See Municipal Corporations, 4 C. L. 720. 76. 77. 87.

landlord is liable,**\[**55**\] unless the landlord has covenanted to repair;**\[**88**\] but for injuries caused by continuance of premises in such bad condition as to constitute a public nuisance, both lessor and lessee are liable.\*\*\[**87**\]

SS 4. _Liability for negligent operation of elevators._\[**88**\]--In some states the owner of a passenger elevator owes a duty to persons invited to ride therein analogous to a common carrier and must exercise the highest degree of care consistent with practical conditions,**\[**89**\] and is liable for the slightest negligence,**\[**90**\] and even where this analogy does not prevail, he is required to exercise a high degree of diligence.**\[**91**\] The person who has control of an elevator is liable because of negligence relative to the elevator shaft,**\[**92**\] and not one who uses it but is under no duty to repair or guard it.**\[**83**\] As between master and servant the duty to inspect an elevator cannot be delegated.**\[**84**\] There is no liability for an injury which is the result of an accident\*\*\[**85**\] or of the contributory negligence of the injured person.**\[**86**\] At common law the owner of a store building owed no duty to a trespasser to maintain guards about an elevator shaft,**\[**87**\] nor is such a duty imposed by a statute requiring shafts to be guarded.**\[**88**\] To warrant a recovery for noncompliance with a law relative to elevators, such noncompliance must have been the proximate cause of the injury.**\[**89**\] The question of what constitutes negligence may be one of law,**\[**81**\] but ordinarily is one of fact.**\[**88**\]

**88. Failure to properly close a cellar door. Duffin v. Dawson \[Pa.\] 61 A. 76. Unless the landlord has covenanted to repair or the defect existed when the premise were let. Hirschfeld v. Alsberg, 93 N. Y. S. 617.**

**88. A landlord is not liable to a tenant unless he agrees to repair and is negligent in doing so. Galvin v. Beals, 187 Mass. 250, 72 N. E. 963. A landlord who covenants to make repairs is liable if by his negligence persons insurfully on the premise are injured because of his failure to do so. Barron v. Liedloff \[Minn.\] 104 N. Y. 289.**

**88. Kaceler v. Lederer Reality Corp. \[R.\] I.\] 53 A. 855. Where a building is leased to several tenants and the tenants are each given the right to use the elevator in common with the others, one inviting a person on the premises is liable with the Landlord for injuries sustained because of the dangerous condition of the elevator. Burner v. Higman & Skinner \[Iowa\] 103 N. Y. 802.**

**88. See 3 C. L. 576.**

**89. See 3 C. L. 577, n. 38. Edwards v. Burke, 36 Vwash. 107, 78 P. 610; Hensler v. Stix \[Mo. App.\] 88 S. W. 108.**

**90. Question of negligence held for the jury. Hensler v. Stix \[Mo. App.\] 88 S. W. 108.**

**108. Instruction requiring no more than ordinary care on the part of the operator of the elevator held erroneous. Id.**

**91. Sprine Val. Coal Co. v. Buais, 115 III. App. 196.**

**92. Landlord who rents a building to several familles. Burner v. Higman & Skinner Co. \[Iowa\] 103 N. W. 802. Evidence that owners of an apartment building procured indemmity insurance against liability for damages for injuries arising in operating the elevator is admissible to prove that they retained control of 14 Perkins v. Rice, 187 Mass. 28, 72 N. E. 323.**

**93. Not a tenant in an apartment who uses it. Burner v. Higman & Skinner Co. \[Iowa\] 103 N. W. 802.**

**94. Starer v. Stern, 100 App. Div. 393,**

**91 N. Y. S. 821. A servant 14 years of age**

**95. who 18 ordered to use an elevator which the knows does not work perfectly but which he does not know how nor is it his duty to repair it, does not assume the risk of Injury. Moylon v. D. S. McDonald Co. \[Mass.\] 74 N. E. 929.**

**96. Where the building superintendent moved the operator's stool and he on attempting to sit down lost his balance, clutched the lever and involuntarily started the elevator, injuring a passenger. Gibson v. International Trust Co., 186 Mass. 454, 72 N. E. 70.**

**96. Passenger entered after the elevator had started to ascend when she knew the operator did not notice her. Cullen v. Higgins \[III.\] 74 N. E. 698. One who stands partly within and partly without an elevator of which there is no one in charge and is injured by its movement without apparent cause cannot recover. Green v. Urban Contracting & Heating Co., 94 N. Y. S. 743. Question of contributory negligence of a licensee who fell into an un-guarded elevator well held for the jury. Wright v. Perry \[Mass.\] 74 N. E. 828.**

\*\*97.

5 Cur. Law. BURGLARY SS 1.

Evidence tending to show that defects in an elevator should have been discovered, to account for the failure of certain devices to work,\[4\] and as to how the mechanism is affected by the manner of its operation, is admissible.\[5\]

BURGLARY OF PROOF, see latest topical index.

BURGLARY.

\*\*SS 1. What Constitutes (403). \*\*SS 3. Evidence. Sufficiency (405). \*\*SS 2. Indietment and Proof Thereunder **SS 4. Instructions and Verdict (406).**

**SS 1.**_What constitutes._"-Burglary, at the common law, is the breaking and entering of the manson house of another in the nighttime with intent to commit a felony therein.\[7\] Statutes have very generally added to the common-law definition.\[8\]

Breaking and entry.\[9\]The breaking is an essential element of the offense.\[10\] The slightest force, however, such as the opening of a closed door,\[11\] the tearing away of a curtain to a transom,\[12\] or raising a window, that has been left partially open, sufficiently to effect an entrance,\[13\] is a sufficient breaking, if done with felonious intent.\[14\] An entry likewise is necessary but it need not be of the whole body,\[15\] though it must be without the consent of the owner.\[16\] The mere presence and assistance of a detective, in the burglary, if he did not instigate it and it was committed as to every ingredient of the offense by the accused, is not available as a defense.\[17\]

Intent.\[18\]The felonious intent in entering is an essential ingredient of burglary,\[19\] and it must be shown;\[20\] but where a breaking has been committed, the law inclines to impute the intent to commit theft, if an intent is to be inferred.\[21\]

**2. Evidence Insufficient to show negigigence in the operation of an elevator.**

degree, is in strict compliance with the Lyon v. Aronson, 140 Cal. 865, 73 F. 1063. \*\*Sufflerency of inspection held a question 460-463. People v. Perry, 144 Cal. 748, 78 for the jury. Starer v. Stern, 100 App. P. 284. **S**

Div. 393, 91 N. Y. S. 821. Question of negigence in leaving an elevator well un-guarded held for the jury. Wright v.

examination on this point. Adkinson v. Perry (Mass.) 17 N. C. 238. Question as to the liability of a contractor constructing a public building for injuries to a licensee because of the negligence of a servant of the contractor held for the jury. De

Haven v. Hennessey Bros. & Evans Co., 137 F. 412. **S**

\*\*3. See 3 C. L. 578, n. 53 et seq. That the wearing away of certain appliances was gradual. Starer v. Stern, 100 App. Div. 393, 91 N. Y. S. 821. **S**

4. That blocks of wood and tools were lying beneath the slack cable device. Starer v. Stern, 100 App. Div. 393, 91 N. Y. S. 821. **S**

1. Starer v. Stern, 100 App. Div. 393, 91 N. Y. S. 821. **S**

1. See 3 C. L. 578. **7**. Clark & M. Crimes, $ 400. **S**

1. Under the status of Tennessee, the word "burglary" is treated as a generic term covering several offenses described in the code. Shannon's Code, $ 6536-6538. **7**

Cronlin v. State \[Tren.\] 82 S. W. 477. An instruction that, if defendant entered the building in the nighttime, that is, between sunset of one day and sunrise of another, with the intent to commit lareven, he is The degree.22--The statutes of some states divide burglary into degrees as shown below.23

_Accomplices.24_

\_Nature and situation of building.25--Under the term "dwelling house" is included the other buildings that are occupied or used in connection therewith, as a chicken house on the premises,26 a smoke house,27 an outhouse,28 or a shed.29 And within the legal signification, the word "building" includes the cellar or basement as completely as it does the garret.30 The felonious entrance of a private room in a hotel or boarding house,31 or a "camphone,"32 is as much a burglary as the entrance of any other dwelling. The statutes of Texas make a distinction between a "house" and a "dwelling house;"33 and the statutes of Ohio, between "inhabited" and "uninhabited" dwelling houses.34

SS 2. \_Indictment and proof thereafter.36--The indictment must sufficiently set forth the offense charged.36 But it is not necessary, in an indictment for the burglary of a house other than a dwelling house, to allege that such house was not a dwelling house.37 The ownership of the premises may be laid in the occupant, whose possession is rightful as against the burglar.38 Special ownership of the

of to steal, as charged, approved. Carroll v. State \[Tex. Cr. App.\] 86 S. W. 1012, and 20. Taylor v. State \[Miss.\] 37 So. 498. The mere breaking is not sufficient to constitute an attempt to commit burglary; the ulterior purpose to commit the crime charged in the indictment must be shown. Price v. State \[Tex. Cr. App.\] 83 S. W. 185; Russell v. State \[Ala.\] 38 So. 29. 21. Price v. State \[Tex. Cr. App.\] 83 S. W. 185. Where the articles intended to be stolen are less than $50 in value there is no burglary, as no felony is intended to be committed. Jones v. State \[Tex. Cr. App.\] 87 S. W. 1157. 22. See 8 C. L. 579. 23. First degree. Pen. Code, SS 460, 463. People v. Perry, 144 Cal. 748, 78 P. 284. 24. 25. See 8 C. L. 579. 26. So held in a case where the charge was entering a house without consent of the occupant. Moore v. State \[Tex. Cr. App.\] 13 Tex. Ct. Rep. 701, SS 8. W. 230. 27. Under a statute making it a crime to feloniously break and enter a dwelling house or any house belonging to, or occupied wth, any dwelling house. Key St. 1903, $ 1162. Dunn v. Commonwealth \[KY.\] 84 S. W. 321. 25. 2 Ballinger's Ann. Codes & St. $ 1704. State v. Randall, 36 Wash. 438, 78 P. 988. 988: Abrams v. Commonwealth \[KY.\] 85 S. W. 173. 29. Although it was entirely closed by plankling, had no door and could not be entered without pulling off the plankling. Crow v. State \[Tex. Cr. App.\] 85 S. W. 1057. 30. State v. Brower \[Iowa\] 104 N. W. 284, ciling Mitchell v. Com., 88 Ky. 349, 11 S. W. 209. 31. Hofand v. State \[Tex. Cr. App.\] 85 S. W. 198. 32. Conviction of burglariously entering a "camphone," not shown to be a tension house, under Shannon's Code, SS 657, 6540. Cronin v. State \[Tenn.\] 82 S. W. 477. 33. A daytime burglary of a house, or the nighttime burglary of a house, is a distinct and separate offense from the premises or of the property stolen,"40 is sufficient to support an information for burglary. The misspelling of defendant's name, following the word "said," after it has once been correctly set forth, will not vitiate an indictment."41

\_Sufficiency of proof; variance.42--\_If the fact of the burglary is proved beyond all doubt, evidence connecting defendant therewith, beyond a reasonable doubt, is sufficient.43 The intent charged in the indictment,44 but not the actual commission of the intended felony,45 must be proved; and where commission in the nighttime constitutes an essential element of the offense, affirmative proof thereof must be adduced; 46 and it must be proved, like any other fact, beyond a reasonable doubt.47 It is unnecessary to prove the value of the property stolen,48 unless a particular value is necessary to constitute a felony.49 Proof that the occupant of the premises is a renter is not a variance from an allegation of ownership and occupancy; 50 nor evidence of the taking of a lodger's watch from his room, from an allegation of an intent to steal personal property belonging to the owner of the house.63 A charge of breaking and entering a building is sustained by proof of breaking and entering the eellar.52 And where the ownership of the property was laid in one "Neilson" and the proof showed the name to be "Nelson," the variance was held immaterial.53 But proof that the house burglarized was a private dwelling house is a variance from an indictment for burglary of a house.54

SS 3. \_Evidence. Sufficiency.55--\_Where a lareny has been committed by an unlawful breaking and entering, the unexplained possession of stolen property is sufficient to sustain a conviction of burglary.56 But the falsity of defendant's explanation of his possession of the property recently stolen, is not alone sufficient to warrant a conviction of burglary, where the state otherwise fails to make out a case.57 And the receipt of property burglariously stolen by others is not sufficient to make one a principal in the crime of burglary.58 Cases illustrating the sufficiency of evidence are grouped in the notes.59

40. A livery stable keeper's lien on 284, citing Mitchell v. Com., 88 Ky. 349, 11 horses, under Ballinger's Codes & St. 35. W. 209, 5971, 5972, 1s sufficient, even when taken 53. Flaafagan v. People, 214 Ill. 170, 73 by their actual owner. State v. Nelson, 36 Vash. 374, 54 Martins v. State \[Tex. Cr. App.\] 34 S. W. 821, 55. See 3 C. L. 581. 42. See 3 C. L. 580. 43. Evidence held sufficent. Keeeler v. State \[Neb.\] 103 N. W. 64. Evidence of intent. Russell v. State \[Lla.\] 38 So. 291; Taylor v. State \[Miss.\] 37 So. 498. 45. Under an indictment charging defendant with breaking and entering with intent to steal, it is sufficient to prove those facts, though nothing was actually stolen. Williams v. State \[Fla.\] 37 So. 521. 46. Such proof need not be direct, but may be circumstantial in character. State v. Richards \[Utah\] 81 P. 142. 47. Keeeler v. State \[Neb.\] 103 N. W. 64. 48. Though the words "things of value" were used as descriptive of the property in the place burglarized, it was held immeratrial that there was no evidence of the value of the watch found in defendant's possession. McCormick v. State \[Ala.\] 37 So. 377. 49. Jones v. State \[Tex. Cr. App.\] 87 S. V. 1157. 50, 51. Johnson v. State \[Tex. Cr. App.\] 13 Tex. Ct. Rep. 626, 88 S. W. 813. 52. State v. Browver \[Iowa\] 104 N. W. 695; McCoy v. State \[Tex. Cr. App.\] 85 S.

_Admissibility._"--Statements made by defendant to police officers relative to his possession of stolen property, before he had been charged with any offense, and without any threats or inducements, are admissible as admissions." Another breaking may be so connected with the one for which the defendant is being tried as to be admissible for the purpose of showing a corrupt combination and defendant's participation therein." The condition of a safe on the morning after the burglary is a material circumstance to show the intent with which the store was entered."

SS 4. _Instructions and verdict._"--Several instructions which have been discussed by the courts are mentioned in the note." A person cannot be convicted of both larency and burglary, under an indictment charging both, but the conviction of burglary embraces the charge of larency." Where the indictment charges that the breaking and entering was with intent to commit larency, particularly setting it out, there may be a conviction of larency from the house."

BUNT RECORDS; BT-LAWS, see latest topical index.

BY-LAWS--AMENDMENT AS AFFECTING EXISTING MEMBERSHIP CONTRACTS.\*\*

\[Special Article by Walter A. Shumaker.\]

It being well settled that the by-laws form part of the contract of membership," though not incorporated by reference in the membership certificate," unless of course they are expressly excluded by the terms of the certificate," the question how far the contract may be impaired by subsequent change of the by-laws is of frequent occurrence and incorrect importance, and the decisions are in hopeless conflict.

V. 1072: Carroll v. State \[Tex. Cr. App.\] but is prevented from so doing, shall be $6 S. W. 1012: Williams v. State \[Fla.\] 47 guilty of a misdemeanor. Coleman v. State 80. 521: Russell v. State \[Ala.\] 38 S0. 291; \[Ga.\] 50 S. E. 66.

Seott v. State \[Ga.\] 50 S. E. 49; State v. 60. See 3 C. L. 581.

Richards \[Utah1 81 P. 142; People v. Davis \[Cah.\] 80 P. 268.

\[Cah.\] 81 P. 716; State v. McPherson \[Cah.\] 81 P. 716; State v. McPherson \[Cah.\] 101 N. W. 738; Keeler v. State \[Nev.\] 101 N. W. 74. Where defendants \[Nev.\] 103 N. W. 64. Where defendants \[Nev.\] 104 N. W. 64. 85 C. L. 582.

Ga. 173, 48 S. E. 908. To warrant a finding that the burglary was committed in the nighttime. State v. Richard \[Utah1 81 P. 142; Simon v. State \[VWs.\] 103 N. W. 1100; Keeler v. State \[Neb.\] 103 N. W. 64.

To show intent to steal: Williams v. State \[Tex. Cr. App.\] State \[Fla.\] 87 So. 521. Testimony that the outer door of a building had been broken in and the cash drawers broken into. Brown v. State \[Miss.\] 87 So. 497. To sustain a conviction of breaking and entering an outhouse and stealing chickens. Abrams v. Commonwealth \[Key.\] 85 S. W. 173. To warrant a finding that defendants were the owners of burglary's tools, in a prosecution for having them in possession. Rev. Laws, e. 208, 41. Commonwealth v. Conflu \[Mass.\] 74 N. E. 551.

Evidence held inasmflement to support a conviction of burglary. Reid v. State \[Miss.\] 38 So. 320; Bridges v. State \[Miss.\] 38 So. 673: Bird v. State \[Tex. Cr. App.\] 87 S. W. 146. To show intent to commit a rapo. Price v. State \[Tex. Cr. App.\] 83 S. W. 185; Mason v. State \[Tex. Cr. App.\] 83 S. W. 689: Taylor v. State \[Miss.\] 87 So. 498. To support a conviction of being an accomplice in burglary. Denson v. State \[Tex. Cr. App.\] 83 S. W. 820. To convict under Pen Code 1895, % 180, which declares that one who enters with intent to steal, left v. People's B. L. & S. Assr's, 57 N. Y.

5 Cur. Law. BY-LAWS \[SPECIAL ARTICLE\].

\_Necessity of reserving power to amend.--\_A few states maintain the doctrine that the power to alter the by-laws and thereby affect the contract rights of members exists irrespective of any reservation; * but the weight of authority is that a member's contract rights are affected only by by-laws existing at the date of his certificate, unless the power of amendment is expressly reserved.\*

\_Effect of reservation of power to amend in general.--\_Where the power of amendment is reserved in the by-laws, it is usually held that the member is charged with notice of this as well as of other by-laws, and it is as much a part of the contract.6 "Time and experience will develop a necessity for changes in the by-laws, and if the consent was not required there would be a class of members bound by the changed laws and a class exempt from their operation." "It may sometimes happen that the interests of a few individuals may be impaired, but it is the right and indeed the duty of the society to protect the interests of the many rather than of the few."

Footnote 6: The author is grateful to the anonymous referee for the support of this work.

In view, however, of the cases of individual injustice, most courts have endeavored to restrict as far as possible the power of amendment. A few decisions, for example, read into the reservation a limitation to changes not affecting the essential character of the contract.9 But except as to extreme cases, the difficulty of judicially determining the importance of particular amendments is obvious.10 Akin to this is a limitation declared by a number of decisions that the reservation contemplates only such changes as are consistent with the member's contract and nothing that tends to unpair its obligation 11 or affect the contract rights of the member as distinguished from his membership rights.12 One of the most logical distinctions along this line is that drawn by the Pennsylvania court, viz., that so far as the contract consists of the by-laws, it may be amended if a power so to do is reserved, but that which is specially agreed outside the by-laws cannot be impaired.13 Another line of decisions limits the power of amendment to changes not impairing tested rights,14 as where a member was ill at the time sick benefits were

Supp. 611; House v. Eastern B. & L. Ass'n, 66 N. Y. Supp. 109; Stohr v. San Francisco M. F. Soc., 82 Cal. 567.

4. Supreme Lodge v. Knight, 117 Ind. 48; Lawson v. Hewell, 118 Cal. 613.

1. Covennant M. Life Ass'n v. Kentner, 188 Ill. 481; Pokreffy v. Detroit Piremens' Fund Ass'n, 121 Mich. 456; Slewerts v. Nat. 66 The general plan and purpose of the Ben. Ass'n, 95 Iowa, 710; Hughes v. Wits- organization. Messer v. Ancient Order of consn O. F. Ass'n, 98 Wits. 292; Krakowski United Workmen, 180 Mass. 321.

v. North New York B. & L. Ass'n, 27 N. Y. Supp. 314; Milner v. Tuttle \[Kan.\] 78 T. 88;

11. Smith v. Supreme Lodge, 83 Mo. 6. Vist v. Grand Lodge, 22 Or. 271; Appl. 512; McNeil v. Southern Tier, etc., Poultney v. Bachman, 31 Hum, 52; Ross v. Ass'n, 58 N. Y. Supp. 119. And see Insur-Modern Brotherhood, 120 Iowa, 692, 95 N. Ance Co. V. Connor, 17 Pa. 186; Covennant M. Life Ass'n v. Kentner, 188 Ill. 431; Wist v. Grand Lodge, 22 Or. 271.

01. Insurance Co. v. Connor, 17 Pa. 186; Ehrings Templers, etc., Ins. Co. v. Jarman, 104 F. 638; Pokreffy v. Detroit Tiremens' Fund Ass'n, 121 Mich. 456; Revere v. Boston Copper Co., 15 Pluck. \[Mass.\] 863; Campbell v. American Ben. Club Fraternity, 100 Mo. App. 249, 73 S. V. 342; Morton V. Supreme Council, 100 Mo. App. 76, 73 S. V. 259; Denble v. Grand Lodge, 172 N. Y. 665.

01. Hale v. Equitable Alto Union, 168 Pa. 377. And see Supreme Council v. Getz, 112 F. 119.

14, 15. Becker v. Berlin Ben. Soc., 144 Pa. 322; and see Kent v. Quicksilver Min. Co., 78 N. Y. 159; Savage v. People's B. L.

reduced,15 or before a by-law excluding from benefits diseases induced by certain causes.16 Other courts hold that "the right of a sick member to future benefits is not a right to receive, so long as such disability continues, the future benefits provided by the by-law existing at the time the disability begins, but simply a right to receive them subject to such changes as may be made by the society."17 In no cases is it doubted that after a present right to a certain benefit has accrued such right is vested beyond the power of recall.18

_Amendments must be lawful and reasonable.--Whether or not a power of amendment is reserved, amendments are subject to the limitations governing original by-laws, that they shall not be contrary to law or in conflict with the charter,19 and shall be reasonable in their character.20_

\_Application of rules to particular amendments.--\_Thongh there is conflict on almost every specification, the weight of authority seems to be that as to existing contracts for membership there is no power to reduce benefits 21 or restrict the member to certain funds for their payment.22 The right to increase dunes is involved in more doubt, though the better opinion seems to sustain such power.23 As to the making of new conditions of forfeiture, the weight of authority seems to sustain the validity of such changes, though the conflict of decisions is irreconcilable.24 Rulings on other amendments of less frequent occurrence are summarized in the footnote.25

& S. Ass'n, 45 W. Va. 275; Enterprise B. L. & S. Soc. v. Bolin, 12 Colo. App. 304.

16. Lloyd v. Supreme Lodge, 98 F. 66.

01. Palm v. Societe St. Jean Baptiste, 112

01. Man's. 319. And see Stohr v. San Francisco 392.

01. St. Patrick's Male Beneficial Soc. v. Meyey, 92 Pa. 510; Pokterky v. Detroit 30.

01. Kiheff v. People's B. L. & S. Ass'n, 19 Utah, 257; Horn v. Mutual Ass'n, Soc., 6 Cranch \[U. S.\] 192.

01. E. Plembra Fire Engine Co. v. Com., 93 Pa. 264; Thibert v. Supreme Lodge, 78

01. St. Patrick's Male Beneficial Soc. v. Meyey, 92 Pa. 510; Pokterky v. Detroit 30.

01. Kiheff v. People's B. L. & S. Ass'n, 37 App. Div. 340, 57 N. Y. S. 611; Interstate 6 Cranch \[U. S.\] 192.

01. Plembra Fire Engine Co. v. Com., 93 Pa. 264; Thibert v. Supreme Lodge, 78

01. L. &. Plembra Fire Engine Co. v. Com., 93 Pa. 263; Thibert v. Supreme Lodge, 78

01. C.o. W. Brockett, 58 Ill. App. 204; Pioneer S.

01. La Co. v. Miller, 58 Ill. App. 211; Berg v.

01. Radenesen, etc., Varelin, 88 N. Y. S. 429; Libert v. Mutual, etc., Ass'n, 81 Minn. 116, and see Messer v. A. O. U. W., 180 Mass. 32.

01. M. L. Mersers' n. Outa's assessment from level to clas-

01. Templars' & M. Life Ins. Co. v. Jarman \[C. C. AJ 104 F. 683; Stohr v San Francisco M. F. Soc. 25 Cal. 557, 22 P. 1125; Hale v. Equitable Alto Union, 188 Pa. 377, 31 A. 1066; Becker v. Berlin Ben. Soc., 144

01. Pa. 232, 22 A. 699; Gratstrom v. Frost Council, No. 21, 0, of C. F. 19 Mise, 180, 43 N. Y. S. 266; Pellazzio v. German Catho-

01. Ide St. J. Soc, 16 WVlky. Law Bui. 27. And see opinion of the attorney general

of Illinois in Re National Home B. & L As'n, 11 Nat. Corp. Rep. 459; Eerlin v. Eurvac Lodge, 123 Cal. 294; Supreme Coun.

32. Ul v. Jordan, 117 Ga. 808, 45 S. E. 33; Russ v. Supreme Council, 110 La, 588, 34 So. 697; Lanan v. Supreme Council, 174 N. X. 266, 66 N. E. 932; Simon v. Supreme Council, 91

01. App. Div. 580, 86 N. Y. S. 866; Supreme Council v. Batte \[Tex. Civ. App.\] 79 S. W.

01. S. W. W. 629; Newhall v. Supreme Council \[Mass.\]

01. N. E. 1; Gant v. Supreme Council, 107

01. Tenn. 603; Wuerfner v. Ancient Order of

01. Tenn. 613; Wuerfner v. Ancient Order of

01. Tenn. 116 W. 19 5 Cur. Law. BY-LAWS \[SPECIAL ARTICLE\]. 499

_Effect of invalid amendments.--If the amendment is invalid, the member may treat it as a repudiation of the contract and sue for damages or recover back the amount paid,28 and a suit on such recission is not subject to a time limitation stipulated for actions on the contract.29 He must, however, exercise his option within a reasonable time,28 being bound by the amendment if he consents or acquiesces.29_

CALENDARS, see latest topical index.

ness. Moerschbacher v. Supreme Council

submission of claims. Robinson v. Temmof R. L, 188 Ill. 9; Ellerbe v. Faust, 119 plar Lodge, No. 17, I. O. O. F., 117 Cal. 370, Mo. 653, 25 S. W. 390; State v. Gerland Lodge, 49 P. 170. Providing for periodical read-A. O. U. V., 70 Mo. App. 456; People v.

justment of Insurance. Korn v. Mutual Grand Lodge, A. O. U. V., 32 Misc. 528; 67 Assur. Soc., 6 Crannel \[U. S.\] 192.

N. Y. S. 330; Loeffler v. Modern Wood-A

Amendments held invalid: Restricting men. 100 WIs. 79, 75 K. W. 1012; Schmidt v. Supreme Tent, K. of M., 97 WIs. 528, 73 N. W. 22. Forfeiture for joining certain certain 48 N. Y. Wapp. 590; Wust v. Grand Lodge A. organizations. Lawson v. Hewell, 118 Cal. 613, 50 P. 76.

Amendments invalid: Becker v. Farmers'

benefierly by will. Nelson v. Gibson, 92

Mut. Fire Ins. Co., 48 Mich. 610. Forfeiting for suicide. Northwestern B. & M. Ald. Assn' v. Wanner, 24 Ill. App. 358; Smith v. Supreme Lodge, K. P., 83 Mo. App. 512; Shimman v. Protected Home Circle, 73 N. Y. S. 594. Forfeiting for arrears. Coyle v. Father Matthews T. A. B. Soc., 17 WKly.

Dig. TN. Y. 17; McNeil v. Southern Tier

M. R. Assn's 40, ADP. U. V., 581 N. Y. S. 119; Fire Ins. Co. v. Connor, 17 Pa. 136.

Forfeiture for engaging in saloon business.

Denble v. Grand Lodge, 172 N. Y. 658. Prohibiting certain employments without no-tice cites m. Tebo v. Supreme Council, 89 Minn., 8 93 N. W. 513.

25. Amendments sustained: Referring disputes to arbitration. Mackenzie v. Eveton & W. D. Permanent Ben. Bldg. Soc., 61 Law T. (N. S.) 680. Imposing certain conditions of membership. Taylor v. Edson, 58 Mass. 552. Repealing provision for payment of the amount paid paid, in case of forefiture. Senrick v. St. Louis

Mut. House Bldg. Co., 34 Mo. 423. Changing rules regulating redemption. Wilson v. Miles Platting Bldg. Soc., 22 Q. B. Div. 381; Rosenberg v. Northwell Bldg. Soc., 22 Q. B. Div. 373; Bradbury v. Wild, 1 C. 377. Limiting withdrawing members to a certain proportion of the receptions House v. Eastern B. & L. Assn's 22 App. Div. 163, 66 N. Y. Supp. 109; Pawelv v. Homeset Loon Assn's 15 Misc. 427, 31 N. Y. Supp. 164; Bearden v. People's B. & L. & S. Assn's \[Tenn. Ch. Appl. 49 S. W. 64; Stillwell v. People's B., L. & S. Assn, 15 Utah, 257, 57 P. 14. Restricting designa tion of beneficiaries. Baldwin v. Begley, 185 Ill. 186, 58 N. E. 1065; Roberts v. Grand Lodge A. O. U. V., 33 Misc. 536, 68 N. Y. S. 949; Hylstner v. Supreme Lodge, K. & L. 492 Mo. App. 627. Changing method of determining beneficiaries. Ma-sont Muth. Ben, Assn's & S. Sorenson, 71 Conn. 719; Supreme Council L. & H. V. Adams 68 N. H. 236. Changing conditions upon which loans are made. Raymond v. Interstate B. & L. Assn's, 112 Ga. 443. Repealing provision for payment of loans before maturity. Interstate B. & L. Assn's, 112 Ga. 443. Repealing provision for payment of loans before maturity. Interstate B. & L. Assn's, 112 Ga. 444. Repealing provision for payment of loans before maturity. Interstate B. & L. Assn's, 112 Ga. 445. Repealing provision

## 5 Canals.

Land acquired by a canal company by the exercise of the right of eminent domain, for canal purposes, is not acquired in fee simple, but as an estate determinable upon the abandonment of the land for nse as a canal.\[68\] A canal company, required by its charter to erect good and \_sufficient bridges across its canal and to keep them in repair, cannot relieve itself of that duty by leasing its canal and ap-purtenant property and franchises.\[69\] A canal company is not an insurer against percolations and seepage of water through the ground through and on which it is constructed; such percolations and seepage must be shown to be due to gross negligence to render the company liable.\[70\] The'landowner is under the duty of using reasonable care, skill and diligence to prevent injury through such seepage, but is not required to expend sums greater than that recoverable for the injuries caused.\[71\] In New York landowners may recover damages from the state for injuries to crops from overflows of the state canals, caused by negligence of employees.\[72\] The Washington statute providing for the excavation of public waterways by private contract, and for liens on tide lands for the compensation, is constitutional.\[73\] Since the state owned the tide lands affected at the time the act was passed, it could make any contract relative thereto which it chose, and purchasers from the state thereafter took with notice of the contract. Hence no question of due process or want of notice of the liens on the land could arise.\[74\] The statute in question did not give the credit of the state in aid of a private enterprise, nor did it create a debt for which the state is liable, so as to require submission of the act to the people at a general election;\[75\] nor is private property made liable, by the act, for a public debt.\[76\]

## 6 Cancellation of Instruments.

### 6.1 Nature of Remedy (501). Adequacy

\[ $2. Cause of Action and Grounds for Rechef of Remedy at Law (501). Rellef Obtainable, Inf (503).

and Conditions Precedent Thereto (501).

\[ $3. Procedure. Pleading (505). Parties Laches and Limitations (502). Venue (503).

### 6.2 Scope of title.

Only the nature of the remedy of cancellation, the grounds therefor, and questions of procedure are here treated. The question, what consti-

Dalx \[ C. C. A.J 180 F. 101; Supreme Coun-

\[ $2. Cause of Action and Grounds for Rechef of Remedy at Law (501). Rellef Obtainable, Inf (503).

and Conditions Precedent Thereto (501).

\[ $3. Procedure. Pleading (505). Parties Laches and Limitations (502). Venue (503).

### 6.3 Scope of title.

Only the nature of the remedy of cancellation, the grounds therefor, and questions of procedure are here treated. The question, what consti-

Dalx \[ C. C. A.J 180 F. 101; Supreme Coun-

\[ $2. Evidence held to show bank of

\[ $2. Why E. Evidence held to show bank of
tutes mistake, accident, fraud, duress, or undue influence, for which relief may be had in a court of equity, is elsewhere treated.\[17\] The law relating to conveyances in fraud of creditors is also given separate treatment.\[78\]

**SS 1.**_Nature of remedy.\[79\]_--Cancellation is a purely equitable remedy.\[80\] Revocatory actions can be sustained in Louisiana only under the provisions of the code relating to such actions.\[81\]

_Adequacy of remedy at law.\[82\]_--Equity will not take jurisdiction of a suit for cancellation, if complainant has an adequate remedy at law.\[83\] The legal remedy must be as complete, adequate and efficacious as that given by equity.\[84\] Where complainant has a defense to the enforcement of the obligation which is plain and palpable, and within his command at any time, equity will not deeree cancellation.\[85\] So if an instrument is void on its face, equity has no jurisdiction to cancel.\[86\] But if evidence outside the deed is required to prove it void, equity has jurisdiction.\[87\] In the latter case it is immaterial whether the instrument was void ab initio or became void after its execution by reason of a condition subsequent.\[88\] A void instrument will be cancelled if it constitutes a cloud on title.\[89\] A prior action at law may bar the suit in equity;\[90\] but if it appears that a pending legal action cannot be maintained, the property concerned having gone into the hands of a receiver, equity may grant relief.\[91\]

_Relief obtainable, and conditions precedent thereto.\[92\]_--Having acquired jurisdiction of a suit for cancellation or rescission, the court will retain it in order to settle all the equities of the parties relating to the transaction in suit.\[88\] Where a bill asks for a reconveyance after an accounting, the rights of all parties can be protected, and proper reimbursements ordered.\[94\] Plaintiff is not entitled to have

**77.** See Duress, 3 C. L. 1147; Fraud and Undue Influence, 3 C. L. 1520; Mistake and A. 951. A bill by a corporation to rescind a real estate purchase on the ground of fraud practiced by promoters and direct-155.

**79.** See 3 C. L. 584.

**80.** Only equity has jurisdiction to set aside a sealed instrument, knowingly signed, on the ground of fraudulent misrepresentations as to collateral matters or as to nature and value of consideration. Fowler Cycle Works v. Fraser & Chalmers, 110 Ill. App. 126. State court of general jurisdiction at law and in equity has jurisdiction of suit to cancel mortgage. Ridge v. Manker (C. C. A.) 132 F. 599.

**81.** Calcasieu Nat. Bank v. Godfrey \[Lal.\] 38 S0. S91.

**82.** See 3 C. L. 585.

**83.** Legal remedy held adequate equity will not ordinarily take jurisdiction of a suit to cancel a policy of insurance after the death of the insured, since the remedy at law is in such case usually adequate. Des Moines Life Ins. Co. v. Seifert, 112 Ill. App. 277. Equity will not take jurisdiction of a bill by an her to compel reassignment of a mortgage by the decedent on the ground of fraud, when re-lifer may be had by application to the ordinary court. Glekeson v. Thompson, 210 Pa. 355, 59 A. 114.

**Legal remedy held inadequate:** Where a promissory note has been obtained by fraud, equity has jurisdiction of a suit for cancellation, the remedy at law not being plain, adequate, and complete. Manning v. Berdan, 135 F. 159. A deed may be set aside for breach of the contract to support the grantor, the remedy at law being in such case inadequate and involving a mul a sale of the property in case of his failure to comply with the decree.95 Where a conveyance of a one-third undivided interest in land is set aside, plaintiff is entitled to recover the value of one-third the whole parcel.96 If reformation will protect the rights of the parties, and there are grounds for such remedy, an agreement, partly executed, should be reformed, and not canceled.97 One party having shown a right to rescid, the other cannot have specific performance.98

To obtain the relief desired, plaintiff must do equity and will be required to restore to the defendant property with which he has parted,99 unless defendant has been otherwise repaid, as by use of the property obtained under the contract.1 A grantor seeking to have his deed canceled for fraud need not tender to a subsequent grantee, who had notice of the fraud, the price paid by him.2 Where grantor seeks cancellation of a deed on the ground that his agent inserted the grantee's name in the deed without authority, restoration to the grantee of money paid by him cannot be required, when such money never came into the hands of the grantor.3 Plaintiff cannot be required to restore to defendant money paid to one who was in fact acting for defendant, though he represented to plaintiff that he was also acting for her.4 On cancellation of conveyance, defendant is entitled to credit only for the amount actually paid, and not for the face value of notes given in payment.6 While a bill for rescission may be sustained, though no rescission or offer to rescid has previously been made or attempted,6 yet if complainant has by his action, subsequent to notice of the alleged misrepresentations, elected not to rescid on that ground, equity will not grant relief.7 One who has been induced to enter into a contract by false and fraudulent representations, upon which he has relied, has the right to bring an action to establish the fraud and to be released from its provisions, whether or not there be a threatened or attempted enforcement of it.8

_Laches and limitations_.9--Since equity aids only the vigilant, the suit must loved their expenditures. Grant v. Bell \[R.\]. Cal. 370, 78 P. 872. Where deed of reality and personality, based on consideration of support of grantors and a payment of money to their daughter, was set aside after a number of years, the payment to the daughter could not be made the basis of an equitable claim against the grantors, the grantees having had personality, awarded to them, and having enjoyed use of the land meantime. ,Krause v. Krause \[W!s.\] 104 N. W. 2. Grantee erased word "trnstee" after name, and then transferred reversion after, giving two mortgages. Held, erasure being visible, no tender of reversion price necessary. Filttext v. Commonwealth Title Ins. & Trust Co. \[Pa.\] 60 A. 557. & Mitchell v. Squire \[Iowa\] 103 N. W. 783. & Villev v. Clements \[Cal.\] 79 P. 850. & Eighmy v. Brock \[Iowa\] 102 N. W. 444. & Du Bols v. Nugent \[N. J. Eq.\] 60 A. 339. An offer of restitution is not a condition precedent to the maintenance of a bill for cancellation of a conveyance procured by fraud, and such offer need not be made in the bill. Rule both in Massachusetts and New Hampshire. Thorpe v. Packard \[N. H.\] 60 A. 432. & 7. Evidence held to show election not to rescid exchange of lands on account of certain alleged false representations. Du Bols v. Nugent \[N. J. Eq.\] 60 A. 339. & P. Pryn v. Black, 93 N. Y. S. 995. & P. See 3 C. L. 588.

5 Cur. Law. Cancellation of Instruments SS 2.503

be brought within a reasonable time.10 Where a deed or other conveyance has been procured by undue influence, if it be not ratified by the party making it after the undue influence has ceased to operate, it may be set aside after his death at the suit of those who succeed to his rights.11 A cause of action for cancellation of a deed which had been returned to the grantor, and secretly obtained by the grantee and recorded, does not arise until the grantee so obtained possession of and recorded the deed.12 The five-year limitation statute in California is applicable to a suit by a widow to cancel a deed procured from her husband through fraud and undue influence.13

\_Venue.--\_A suit to cancel a deed is one affecting title to reality, and in Missouri must be brought in the county where the land is situated, though summons may be served on defendant anywhere in the state.14

SS 2. _Cause of action and grounds for relief.15_--\_Relief will be granted where it appears that the instrument or contract sought to be canceled was procured by fraud,16 duress,17 or undue influence; 18 or that the grantor or party executing the 10. On ground of duress. Bryan v. Hobbs \[Ark.\] SS 3. W. 341. Suit to cancel deed for unisrepresentations, and to compel restin- undue influence ten years after making it.

contract was incompetent.10 It is no defense to a suit for cancellation for fraud that the person defrauded intended to defraud another.29 If the false representations alleged are proved to have been made and to be false, it is immaterial whether or not their falsity was known to defendant.21 A ratification of an exchange of property with knowledge of a false representation as to quantity but without knowledge of other material misrepresentations does not estop the party so ratifying from seeking to rescind the contract.22 On discovery of the other misrepresentations, both the ratification and the original contract may be rescinded.28 A bill which sets up fraud in several transactions between the parties and seeks the vacation of such transactions is not demurrable by reason of the fact that rescission of the final transaction between them is not asked for.24 Fraud practiced by a wife on her husband is ground for cancellation of a deed from him to her induced thereby.25 Where a conveyance is executed by a husband for an inadequate consideration, in fraud of his wife's rights in the homesetad, at a time when he was non compos as to duties owed by him to her, equity has jurisdiction to enjoin ejcment by the purchaser, and to cancel the deed.26 Equity will not set aside a transfer voluntarily and freely made as a part of a fraudulent 27 or illegal 28 transaction; but where the parties do not stand on equal terms, one being superior to and influencing the act of the other by reason of greater knowledge and experience, the fact that the transferor acted voluntarily is no defense to a suit to set the transfer aside.29

In case of mistake, either mutual or unilateral, equity will reform the contract,so as to make it express the real intention of the parties,30 or rescind it if the minds of the parties have not in fact met upon the same terms.31 A mistake

consideration or brought about by undule \[24. Swinney v. Cockrell \[Miss.\] 38 So. influence. Ripple v. Kuehne \[Md.\] 60 A. 464. A conveyance by one mentally competent, and under no undue influence, but with him 3 days and then left him. Con-fear being in fact groundless, will not be set aside. Newman v. Newman \[Tex. Civ. 311. 377, 72 N. E. 391. App.\] 38 8. W. 635.

19. Finding that deed was void for want of mental capacity of grantor held supported by evidence. Parker v. Ballard \[Ga.\] 51 S. E. 465. Allestations of mental in-competency of grantor by reason of insanently held to state cause of action for cancelation. Logan v. Vanwardad \[Ky.\] 86 S. W. 981. Evidence held to show grantor incompetent and a conveyance without adequate consideration. Sterling, v. Sterling, 98 App. Div. 426, 90 N. Y. S. 306.

01. Gatje v. Armstrong, 145 Cal. 370, 78 P. 872.

01. Such knowledge must be proved in action at law for deceit, but such proof is unnecessary in equitable action for reselsion. Duis v. Nugent \[N. J. Eq. 60 A. 339. Where minor heirs relied on knowledge and experience of kinsman, and his attorney, who represented that they would be liable for debts, really barred by llimitations, and gave a deed of their interests at a reduced price on account of such debts, the heirs were entitled to a reselsion, unless the amount of such debts was paid them, even though the misrepresentations were unintentional, and in regard to law. Cornish v. Johns \[Ark.\] 85 S. W. 764.

01. Willey v. Clements \[Ca.\] 79 P. 850.

01. Under direct provisions of Civ. Code, 8 2314. Willey v. Clements \[Ca.\] 79 P. 850.

01. Swinney v. Cockrell \[Miss.\] 38 So. 380.

01. Conveyance procured by threats not to live with husband; thereafter she lived with him 3 days and then left him. Conveyance set aside. Hursen v. Hursen, 212 N. 377, 72 N. E. 391.

01. Moseley v. Larson \[Miss.\] 38 So. 234.

01. Ingersoll v. Weld, 93 N. Y. S. 291.

01. Contract providing that husband would put in no defense in divorce action if brought on certain ground, and for certain other considerations, held illegal; hence it could not be canceled, wife having entered into it freely, and no fraud appearing. Mc-Allen v. Hodge \[Minn.\] 102 N. W. 707. In absence of fraud, transfer of really as part of agreement of separation of husband and wife, will not be canceled. Anderson v. Anderson \[Wiss.\] 100 N. W. 859.

01. Ingersoll v. Weed, 93 N. Y. S. 291.

Where grantees induced execution of deed action at law for deceit, but such proof is unnecessary in equitable action for reselsion. Duis v. Nugent \[N. J. Eq. 60 A. 339. Where minor heirs relied on knowledge and experience of kinsman, and his attorney, who represented that they would be liable for debts, really barred by llimitations, and gave a deed of their interests at a reduced price on account of such debts, the heirs were entitled to a reselsion, unless the amount of such debts was paid them, even though the misrepresentations were unintentional, and in regard to law. Cornish v. Johns \[Ark.\] 85 S. W. 764.

22. Willey v. Clements \[Ca.\] 79 P. 8 5 Cur. Law. CANCELLATION OF INSTRUMENTS SS 3.505

of one party relative to the substance of the contract, such mistake being induced by false representations of the other party, or if not so induced, being participated in and made effective by the other, is ground for rescission.\[28\]

Contracts and conveyances made \[38\] or delivered \[34\] without authority may be set aside. A bill may be maintained for the cancellation of a void instrument, if it clouds the title of the real owner of property.\[35\] Where a deed deposited in escrow is delivered to the grantee without authority from the grantor, and the deed is recorded, equity will remove the resulting cloud on grantor's title by annulling the deed.\[34\] Willful and surreptitious breaches of immaterial parts of a contract constitute ground for rescission.\[37\] A breach of an agreement by a grantee to support the grantor is ground for cancellation of the deed.\[38\] Failure of the grantees to pay a debt of the grantor, which they verbally assumed, the debt being secured by deed of trust on the laft, is not ground for cancellation of their deed.\[39\] A voluntary deed cannot be set aside on the ground of inadequacy of consideration; \[40\] but a total failure of consideration is ground for cancellation of notes.\[41\] An executed gift will not be revoked by equity unless wrongfully obtained.\[42\]

SS 3. \_Procedure. Pleading.\[43\]--\_A bill for annulment of a stock contract for fraud need not allege that complainant has suffered pecuniary loss.\[44\] General averments of fraud in a petition seeking the setting aside of a deed and other relief are sufficient against an objection to the introduction of evidence under the petition.\[45\] A petition to set aside a deed for fraud may be amended by setting up a mutual mistake of fact.\[46\] Where a bill alleged a fraudulent sale of real estate to complainant, a prayer for rescission and damages is not inconsistent.\[47\] A bill by

**32. Schmitz v. Peterson \[La.\] 36 So. 915.**

where the deed provides for annulment in such case. Carney v. Barnes \[W. Va.\] 49 agents was not the one they were authorized to make, nor the one the principal supposed had been made, the principal was entitled to have it canceled. Board of Trade as he agreed, and that deed should be canceled according to its terms. Caudill v. N. W. 262. Lesser may have trust deed, measured by lesser contrary to terms of base, canceled. Gunning v. Sorg, 214 Ill.

where one under the stress of infirmity or base, canceled. Gunning v. Sorg, 214 Ill.

an assurance of support, the transaction is treated as creating a trust, and not a mere contract, and on failure of the grantees to the grantee named, contrary to the grantee or's intention. Spacy v. Ritter, 214 Ill.

Grant v. Bell \[R. J.\] 88. a91.

266, 73 N. E. 447. Deed, without consideration, delivered by third person to grant-App. J13 Tex. Ct. Rep. 146, 87 S. W. 578.

tee without authority and recorded by grantee, may be canceled at suit of grantee's letters. Peters v. Berkemeier, 184 Mo.

183, 83 S. W. 747. Equity has jurisdiction of a suit to cancel a deed on the ground that it had been fraudently taken from the grantor's safe and recorded, no delivery having been intended by the grantor. Crbbs v. Walker \[Ark.\] 85 S. W. 244. Petition held not to negative purposed delivery of deed to wife, and not to state cause of action for cancellation for nondulivery.

Newman v. Newman \[Tex. Civ. App.\] 86 S. W. 635.

**35. Though a contract relating to land was no longer effective owing to lapse of time, yet as it constituted, on the record, an apparent cloud, suit to cancel. It was held proper. Sawyer v. Cook \[Mass.\] 74 N. E. 356.**

**36. Dales v. Roberts \[Mo.\] 87 S. W. 914.**

**37. Bales v. Roberts \[Mo.\] 87 S. W. 914.**

A deed granting petroleum may be canceled for failure to perform its covenants.\[47\] A bill by a wife whose husband has conveyed the homesetead in fraud of her rights to enjoin ejectment by the purchasers, and to cancel the deed, is not multifarious.48 A bill seeking the reassignment of a mortgage on the ground of fraud must properly allege knowledge of the fraud by the assignee.49 Where a wife's amended complaint in divorce sets up facts showing a deed by her husband void, and makes his grantee defendant, the validity of such deed can be determined only on a cross petition by grantee against the wife, answer thereto, and proof on the issue thus made.50

_Parties.51_--All persons interested in the subject-matter and who will be affected by the decree are necessary parties.52 Cancellation of a contract to convey land will not be decreed where one to whom plaintiffs have pledged the contract to secure a loan has not been made a party and has not consented to cancellation.53 A suit by a corporation to rescind a real estate transfer on the ground of fraud practiced by directors who sold to the corporation, may be maintained without joining the representatives of a nonresident who held legal title and had a half interest in the contract of sale.54 In revocatory actions in Louisiana parties to the acts attacked must be made parties to the suit.55

Footnote 54: The author is grateful to the anonymous 5 Cur. Law. CARRIERS \[IN GENERAL\] SS 1. 50?

commenced by the mortgagor and continued by his grantee to set aside the mortgage on the ground of duress, the date of the filing of the original petition by the mortgagor, and the deed from the mortgagor to the present plaintiff, are admissible in evidence."

CARVIASS OF Votes; CAPIAS; Capital; CarlISE Tables, see latest topical index.

**CARRIERS.**

Part I. GENERAL Principles (507).

**SS 1. Definition and Dimitriosa (507). # 2. Public Control and Regulation (508).**

A. In General (508).\*\*

B. Duty to Undertake and Provide Carriage (509).\*\*

C. Charges (511).\*\*

D. Discriminations and Preferences (512).\*\*

**SS 3. Connecting Carriers, Draymen, and Transformer (512).**

Part II. CARRIAG or Goomes (514).\*\*

**SS 4. Delivery to Carrier and Inception of Labability (514).**

**SS 5. Bills of Lading and Other Contracts of Carriage (515).**

**SS 6. The Duty to Furnish Cars (516).**

**SS 7. Forwarding and Transporting Goods (516).**

Delay in Transportation (517).\*\*

**SS 8. Loss of or Injury to Goods (518).**

**SS 9. Delivery by Carrier and Storage at Destination (518).**

**SS 10. Libability of Carrier or Connecting Carrier (520).**

**SS 11. Limitation of Liability (521).**

**SS 12. Public Records of Traffic (522).**

**SS 13. Remedies and Procedure (522).**

Persons Who May Suc (523). Particular Remedies Available (522). Venue (523).\*\*

Pleading, Proofs, and Evidence (523).\*\*

**and Institutions (524).**

**SS 14. Freight and Other Charges (526).**

**Part III. CARRIAG or LIVE Stock (526).**

**SS 15. Duty to Carry and Contract of Carriage in General (526).**

**SS 16. Care Required of Carrier (527).**

**SS 17. Delivery (527).**

**SS 18. Libability of Carrier or Connecting Carrier (527).**

**SS 19. Limitation of Liability (527).**

**SS 20. Procedure in Action Relating to Stock (527).**

**SS 21. Damages (528).**

**SS 11. Definition and Distinctions.**

Part IV. CARRIAG or Passengers (529).\*\*

**SS 22. Who Are Passengers (529).**

**SS 23. Other Than Passenger Trains (529).**

**SS 24.**

**SS 25. General Rules of Liability for Personal Injuries (534).**

**SS 3. Nature and Extent of Liability Generally (534).**

**SS (535).**

**SS 54.**

**SS 55. Bills of Lading and Other Contracts of Carriage (515).**

**SS 6. The Duty to Furnish Cars (516).**

**SS 7. Forwarding and Transporting Goods (517).**

**SS 8. Delay in Transportation (517).**

**SS 8. Loss of or Injury to Goods (518).**

**SS 8. Delivery by Carrier and Storage at Destination (518).**

**SS 8. Distribution of Energy and Transporting Goods (519).**

**SS 10. Libability of Carrier or Connecting Carrier (520).**

**SS 11. Limitation of Liability (521).**

**SS 12. Public Records of Traffic (522).**

**SS 13. Remedies and Procedure (522).**

**SS 14. Freight and Other Charges (526).**

**SS 15. Duty to Carry and Contract of Carriage in General (526).**

**SS 16. Care Required of Carrier (527).**

**SS 17. Delivery (527).**

**SS 18. Libability of Carrier or Connecting Carrier (527).**

**SS 13. Libability of Carrier or Connecting Carrier (527).**

**SS 19. Limitation of Liability (527).**

**SS 20. Procedure in Action Relating to Stock (527).**

**SS 21. Damages (528).**

**SS 11. Definition and Distinctions.**

**SS 12. Value of Energy and Transporting Goods (529).**

**SS 13.**

\*\*SS 14. Freght and Other Charg

### 508 Carriers \[in general\] $ 2.a.

5 Cur. Law. him.2 The term includes, besides the owners of shipping,3 railroads,4 street railroads, express, and the like, the owners of elevators,5 telephones,6 telegraphs,7 sleeping cars8 and ferries,9 but not irrigation works,10 draymen11 or livery stable keepers.12

Footnote 2: The term includes, besides the owners of shipping,3 railroads,4 street railroads, express, and the like, the owners of elevators,5 telephones,6 telegraphs,7 sleeping cars8 and ferries,9 but not irrigation works,10 draymen11 or livery stable keepers.12

Footnote 3: The term includes, besides the owners of shipping,3 railroads,4 street railroads, express, and the like, the owners of elevators,5 telephones,6 telegraphs,7 sleeping cars8 and ferries,9 but not irrigation works,10 draymen11 or livery stable keepers.

5 Cur. Law. CARRIERS \[IN GENERAL\] SS 2B.

police powers the right to control and regulate common carriers both as to the manner of conducting their business and the rates to be charged for their services.\[16\] Thus, street surface railroads in New York are required under penalty to give transfers on payment of a single fare to any line under the same management,\[17\] and similar control by terms of franchise is common.\[18\] A contract between a railroad and a sleeping ear company for sleeping ear service is neither a violation of the anti-trust law, nor a monopoly, nor does it tend to affect transportation or charges therefor.\[19\]

(SS 2) \_B. Duty to undertake and provide carriage.\[20\] A common carrier is redfired to furnish reasonable facilities for transporting and to transport all persons and property legally offered for transportation,\[21\] and statutes declaring and

16 Though an express company is not try classification of freights and the ruling of the state railroad commission are legislative control as a common carrier. In other applicable to interstate shipments. United States Exp. Co. v. State \[Ind.\] 73 N. Greenov v. St. Louis, etc., R. Co. \[Mo. App.\]

E. 101. Express companies may be comnelled to deliver packages to the consignees at their residences or places of v. New York City R. Co., 94 N. Y. S. 653: business. Burns' Ann. R. 1901, 8 312a Griffin V. Interurban St. K. Co., 179 N. Y. does not clash with 14th amendment, nor 438, 72 N. E. 513. Only a single penalty can interfere with interstate commerce. United States Exp. Co. v. State \[Ind.\] 73 N. E. 101.

73 N. E. 517: McLean v. Interurban St. R. the company's office to consignees in person. Co., 102 App. Div. 18, 92 N. Y. S. 77. Held

Id. The summons in New York in an accumulative in Lux v. New York City R. Co., 45 Misc. 222, 92 N. Y. S. 109. Institution of

ets as required by statute must contain reference to the statute. Burdick v. Erio R. Co., 92 N. Y. S. 123. The corporate comnission of North Carolina cannot in con-sideration of a low rate of freight limit

guin one day for three separate penalties, the liability of a carrier for loss of goods through its negligence to less than their value. Everett v. Norfolk & S. R. Co., 138 N. C. 65, 50 N. E. 557. A city ordinance

predefined for passage is equivalent to re-prohibiting hanging on the outside of a street car passed at a time when horse

liable to the penalty. Harris v. Interurban cars were universal has no application to passengers riding on the running board of open electric cars. Frank Bird Transfer Co. v. Morrow \[Ind. App.\] 72 N. E. 189. A

car on which transfer was refused was destatute prohibiting common carriers trans-porting intoxicating liquors for delivery in towns in which licenses are not granted

Interurban St. R. Co., 92 N. Y. S. 653.

a common carrier. Commonwealth v.

beck, 187 Mass. 15, 72 N. E. 557. The railroad commission may require that specelfed trains must stop at a station in order that the community may be properly

c., 92 N. Y. S. 65.

that the community may be properly served. Proceedings held to constitute due process of law. Railroad Com'rs v. Atlantic Coast Line R. Co. \[S. C.\] 50 S. E. 641.

The tariffs that may be charged by railroad companies are within control of the state within reasonable limits. Matters to be considered in determining reasonableness. State v. Sebaboard Air Line R. Co. \[Fla.\] 37 So. 314. Particular rates may be prescribed lower than a general one. State v. Atlantic Coast Line R. Co. \[Fla.\] 37 So. 652. Rate held reasonable. State v. Atlantic Coast Line R. Co. \[Fla.\] 37 So. 657.

Burd's is on company to show unreason-ableness. State v. Sebaboard Air Line R. Co. \[Fla.\] 37 So. 658. Lease construed to bring two roads under one management so as to constitute but one road within rules of railroad commissioners regulating

freight rates. State v. Sebaboard Air Line R. Co. \[Fla.\] 37 So. 314. The state statu enforcing this duty are common.\[22\] Damages for failure to transport freight as agreed are recoverable,\[23\] and a connecting carrier is bound to receive a shipment when tendered it in the absence of any valid reason for declining.\[24\] Intersecting railroads are generally required to interchange business,\[25\] and may be required to build tracks,\[26\] and exercise the power of eminent domain where necessary to facilitate such exchange.\[27\] A statute prohibiting delay by carriers and providing a penalty for violation thereof is a proper exercise of the police power of the state.\[28\]

_The duty to furnish cars_\[29\] may be enjoined by statute,\[30\] under penalty,\[31\] and where so enjoined is properly enforceable by mandamus.\[32\] Cars may be appor-

\[Neb.\] 101 N. W. 23. Must furnish suitable tion of trains to and from two stations is cars. St. Louis, etc., R. Co. v. Marshall \[Ark.\] 86 S. W. 802. A connecting carrier is not obliged by a through bill of lading not stop at these stations. Traffic agreements between parties to lease cannot be cattle, but is only bound to forward them with reasonable diligence. Chicago, etc., \[Ky.\] 85 S. W. 712. In- 233. A common carrier cannot be required to receive freight on or along a private switch, but its duty in that regard is confined and limited to its own depots or shipping and receiving points. Bedford-Bowling Green Stone Co. v. Oman, 134 F. 41. That the enforcement of the duty will result in financial loss to the railroad is Immaterial. Commonwealth v. Louisville & N. R. Co. \[Ky.\] 85 S. W. 712. Persons who have no property rights in a private switch over another lands cannot empiel the fatter to permit the railroad to receive and ship their freight over the switch to the rallroad's own track. Bedford-Bowling Green Stone Co. v. Oman, 134 F. 41. A railroad company is under no legal duty to receive and transport passengers on a spedal train made up and used for the purpose of going to and returning from a wreck on the company's line. One who with full knowledge of the circumstances contracts with the conductor to be carried as a passenger on such train to and from the wreck, and who pays fare for his passage in going, has no right to an action ex delete against the company for its breach of the contract to furnish him return transportation. Du Bose v. Louisville & N. R. Co., 121 Eq. 308, 48 S. E. 913. A telephone company as a common carrier may be liable for refusal to grant connections to all making proper application. Gwyn v. Citizens' Tel. Co., 69 S. C. 434, 48 S. E. 460. Contract to furnish cars held not shown by telephone conversation with person answering at railroad company's office. Gulf, etc., R. Co. v. Fromme {Tex. Civ. App.} 86 S. W. 651. 22. It is the duty of railroads to furnish cattle yards to restrain cattle offered for transportation prior to their being loaded. Pub. St. 1901, e. 160, 8. 1. \[Fllur.\] 85 A. 938. The delivery of cars to shipper's private track scales is a public duty connected with carriage which may be regulated by the state. Norfolk & P. Belt Line R. Co. v. Commonwealth, 108 Va. 289, 48 S. E. 39. A petition founded on the statute of Indiana requiring railroad companies to keep stations open before the time of arrival of scheduled trains must aver that the train in question was scheduled. Burns' Ann. St. 1901, 8 518s. Draper v. Evansville & T. H. R. Co. \[Ind.\] 74 N. E. 89. An order of the railroad commission requiring the opera 5 Cur. Law. CARRIERS \[IN GENERAL\] $ 2C.

tioned in case of scarcity.\[33\] Damages for failure to furnish cars on demand or as contracted are recoverable.\[34\] It is not a discrimination to prefer shippers owning spurs over those who must load on the company's sidings which it needs for the conduct of its own business.\[35\]

(SS 2) \_C. Charges.\[94\]--\_The courts have no general supervisory jurisdiction over rates,\[37\] but the reasonableness of a rate of charge for transportation is eminently a question for judicial investigation.\[38\] Charges may be regulated\[39\] but cannot be reduced below an amount sufficient to allow the carrier to earn an amount equal to the legal and usual rate of interest in the locality on the amount actually invested.\[40\] Reasonable compensation for the service actually rendered is all that a common carrier is permitted to exact,\[41\] and railroads have no right to graduate their charges in proportion to the prosperity which attends the industries whose products they transport,\[42\] nor can they advance an already reasonably remunerative rate on a particular commodity because they need more revenue.\[43\] Limitations in the franchises of corporate carriers are enforceable.\[44\] A shipper is entitled under the common law to relief in a state court from unreasonable freight rates though the shipment was interstate and the rate has been filed with the interstate commerce commission as required by the Federal statute.\[45\] An agreement between as to percentage demanded, and may Fun 101 N. W. 1019. In California a carrier against officer of railroad. West Virginia once reddening a rate to compete with another cannot again raise it without the consent of the state. Const. art. 12, SS 20, 134 F. 198. Mandamus will not lie to enforce a contract between the carrier and shelppers prescribing the ratio of distribu- to consider for reduction. Edsonion of cargo. United States v. Norfolk & v. Southern Pac. R. Co., 144 Cal. 182, 77 P. W. R. Co., 138 F. 849. An action for a penalty for an over-charge is not supported by proof of a declaration by defendant's agent that there was an overcharge on a shipment coming from another state where no tariff or state fixing the rate is shown. Latta Martin etc., R. Co. v. Fromme \[Tex. Civ. App.\] 86 S. W. 651. Complaint held demurrable for failure to show demand on person authorized to furnish cars. St. Louis, etc., R. Co. v. Moss \[Ark.\] 86 S. W. 828. Injury to cattle from delay is recoverable. Texas & P. R. Co. v. Scott & Co. \[Tex. Civ. App.\] 86 S. W. 1065. Complaint held sufficient, Plaintiff held entitled to recover for expense of keeping teams used to load logs. Choctaw, O. & G. R. Co. v. Rolfe \[Ark.\] 88 S. W. 870.

35. Choctaw, O. & G. R. Co. v. State \[Ark.\] 84 S. W. 502.

01. See 3 C. L. 592.

01. Baritan River R. Co. v. Middlesex & S. Traction Co., 70 N. J. Law 732, 58 A. 332. In New Jersey the railroads have an uncontrolled discretion to establish such rates of freight and fare as their own interests demand, subject only to the maximum fixed by the legislature and the reserved right of repeater and modification. Id.

01. Tift v. Southern R. Co., 138 F. 753.

01. Louisville & N. R. Co. v. Brown, 123 F. 946. Street railroads may be required by the legislature to carry public school pupils at not more than half the regular rates. Commonwealth v. Interstate Con- sol. St. R. Co. \[Mass.\] 73 N. E. 530. A statute forbidding railroad companies to charge for transportation for any specific distance a greater sum than the charge for cartridge over a greater distance is within legislative discretion and its valid. Chi- cago, B. & Q. R. Co. v. Anderson \[Neb.\] a railroad company and a competitor that for a limited time the railroad company will not reduce its rates of fare unless required to do so by law is not against public policy.\[46\]

(SS 2) \_D. Discriminations and preferences.\[47\]--Unjust and unreasonable discriminations by common carriers are unlawful alike by common and statute law,\[48\] and statutes providing for the enforcement of the carrier's duty in this respect are common.\[49\] A railroad company may lawfully contract to furnish a shipper solid trains for the transportation of his freight unmixed with other freight, to use one engine only for such transportation and to deliver the shipment at a certain time.\[50\] A union depot company may grant an individual the exclusive right to solicit cab passengers on its grounds.\[51\]

SS 3. \_Connecting carriers, draymen, and transfermen.\[52\]--In the absence of a special agreement, the initial carrier's responsibility ends\[53\] and the connecting one double deck car, there is no extortion.\[O. Railroad, 145 U. S. 263, 36 Law. Ed. 699.--Nynn v. Wabash R. Co. \[Mo. App.\] 86 S. \[Co.\] 86. \[Co.

5 Cur. Law. CARRIERS \[IN GENERAL\] $ 3. 513

carrier's begins,\[54\] on the safe delivery to it of the article carried. By agreement between the carriers,\[55\] or by the terms of the ticket,\[56\] or bill of lading,\[57\] creating a partnership or agency between them all carriers participating in a contract of carriage may become responsible for the acts of each,\[58\] and in some states the

that Injury to freight in possession of car-

cial contract for the loss of goods happen-

rier was caused by its negligence has no

ing upon its part of the line. Barter & Co. application to discharge initial carrier. v. Wheeler, 49 N. H. 9, 6 Am. Rep. 434;

Mercedh v. Seebaord Air Line R. Co., 137 N. C. 478, 50 E. E. 1.

S4. A connecting carrier is not liable for

B. Dispatch Co., 187 Mass. 91, 72 N. E. 256;

a loss occurring while the shipmen is in

Montgomery & West Point Railroad Co. v. the hands of the initial or an intermediate

Moroc. 51 Ala. 394; Lotespich v. Central R. carrier, in the absence of agency or partner-

R. Co. of Georgia, 73 Ala. 396. Recovery ship. Chesapake & O. R. Co. v. Stock & _may be had of the initial carrier for injury_

Sons \[Va.\] $1 S. E. 161; Vincent v. Yazoo

to perihable goods shipped over connect-

& M. V. R. Co. \[L.\] $80, Sol. $15. There is a

presumption that goods lost from a pack-

dragging, though each carrier was guilty

age were lost by the connecting carrier

of delay, there being no evidence that the

where it appears that the package was in

damages were caused solely by the delay of

good order when delivered to the original

the subsequent carriers. St. Louis, L. M. R. carrier and also when delivered by it to the

Cv. Coolidge \[Ark.\] $83 W. 323. But a

connecting carrier. Bullock v. Haverhill &

more traffic arrangement for a division of

B. Dispatch Co., 187 Mass. 91, 72 N. E. 256.

the profits of transportation among differ-

Prfma facie case against last carrier

ent corporations does not create a joint con-

shown by evidence of damage to goods at

tract. Merrick v. Gordon, 20 N. Y. 96,--

time of delivery and delivery to the initial

Mich. L. R. 662.

carrier in good condition. Gulf, etc., R. Co.

Sq. A railroad company selling a coupon

v. Pitts & Son \[Tex.\] $1 S. E. 161.

tucket for transportation to a station be-

Connecting carrier not liable for defects in

Yond its own line may by special contract

car furnished by initial carrier. St. Louis

assume responsibility for safe carriage for

S. W. L. Co. v. Myrer \[Ark.\] $6 S. W. 399.

the entire trip, but in the absence of evi-

55. Carriers may issue through this of

lading and may make contracts for through

carrier acts only as agent of the connect-

shipments and for the interchange of bus-

message carrier, and its responsible only for safe

ness with each other. Graham v. Macon,

D. & S. R. Co. \[Ga.\] $49 S. E. 75. A bill of

V. Lotits \[Ohiol\] $7 A. N. E. 179; L. \[Ohiol\] $7 A.

lading guarantaring a through rate to dest-

N. E. 182. Where ticket is bought and bag-

nation does not establish an agency or partner-

srag checked to a certain station in a cer-

nership relation. Chesapake & O. R. Co. v.

tain city and passenger and baggare are

Stock & Sons \[Va.\] $1 S. E. 161. Where ac-

ceptance is not specially enjoined upon a

that the carriers line ends elsewhere, the

carrier by law, acceptance of freight from

a connecting carrier involves assent to the

that place. Hubbard v. Moblle& O. R. Co. terms of the bill of lading issued by the

\[Mop. App.\] $7 S. W. 52. Instruction pre-

original carrier. Bank of Commerce v.

dicating recovery on showing of defend-

Baltimore & O. R. Co., 15 Ohio Dec. (N. S.)

sars' negligence held error where partner-

32, 2 Ohio N. P. (N. S.)

ship is alleged. Woman died from exposure

carrier is not liable for the default of an

the cold cars. Hardin v. St. Louis S. W. R. other carrier in performing part of the

Co. \[Tex. App.\] $85 W. 440.

transport, where there was merely a

traffic agreement for division of profits

advisor at destination, and in that event

arising from the transportation. Wilson v.

Louisville & N. R. Co., 92 N. Y. 8. 101.

**Note** The theory of the action is that an

\[7\] $2 N. S. E. 105. A receipt for baggage which

and each of the corporations are liable 514 CARRIERS \[OF GOODS\] SS 4. 5 Cur. Law. initial carrier is responsible for the entire trip in the absence of express contract to the contrary.\[50\] The initial carrier is responsible for the effects of its own negligence though they do not develop until in the hands of the connecting carrier,\[50\] and connecting carriers are not liable for delay arising from the misrouting of the shipment.\[61\] An initial carrier is not negligent in delivering freight to a connecting carrier to be transported to a station on the connecting carrier's line which it has officially stated to be open for business but which is not so in fact.\[62\] An intermediate carrier concurring in causing delay is not relieved by showing that the others by the exercise of reasonable diligence might have delivered the shipment in time.\[63\] Where several are sued in Texas the jury may apportion the damages among them.\[64\] The act of one carrier in accepting for transportation a ticket that has expired does not bind the succeeding carrier.\[65\] Nor is the carrier which sells a special return ticket responsible for the acts of the agent of the connecting carrier at destination in stamping and signing it ahead of time and assuring the passenger that it would be honored for passage.\[66\] A carrier to whom money is paid, for the passage of a person from another point from which another carrier must be the initial carrier, is not liable for the initial carrier's delay in delivering the the ticket in accordance with telegraphic instructions.\[67\]

## Part II Carriage of Goods.

SS 4. _Delivery to carrier and inception of liability.\[68\]_--The liability of a common carrier does not begin until there has been a complete delivery of the goods for immediate shipment with the knowledge and consent of the carrier.\[69\]

carrier for delay, though each carrier was \[Tex. Cuy. App.\] SS 5. W. 302. Instruction wholly caused by subsequent carriers. St. Louis, etc., R. Co. v. Coolidge \[Ark.\] SS 5. W. 383. Certificate of state inspector as to quality of corn shipped held not admissible as against a last carrier not a party there \[done by each. Atchison, etc., R. Co. v. Wilianns \[Tex. Cuy. App.\] SS 5. W. 383. If the negligence of several concurs and is not rally separable, judgment may go against defendant alone. Pecos River R. Co. v. Lohann \[Tex. Cuy. App.\] 13 Tex. Cu. Rep. Civ. App.\] 38 S. W. 383. 59. 59. Baggage. Kansas City, etc., R. Co. v. Washington \[Ark.\] 85 S. W. 406: Little Rock, etc., R. Co. v. Record \[Ark.\] SS 5. S. W. 421. Carrier may limit responsibility to injuries inlicted by himself on interstate shipments. Gulf, etc., R. Co. v. McCampbell \[Tex. Cuy. App.\] SS 5. W. 1158. 60. Texas & P. E. Co. v. Stephens \[Tex. Cuy. App.\] 86 S. W. 933. Fallure to furnish proper cars. St. Louis, etc., R. Co. v. Marshial \[Ark.\] 86 S. V. 802. Furnishing passenger coach incapable of being warmed. Missouri, K. & T. R. Co. v. Foster \[Tex. Cuy. App.\] SS 5. W. 879. Cars improperly bedded by the initial carrier do not become on acceptance a part of the connecting carrier for equipment so as to relieve initial carrier for damaging effect of improper bedding device on connecting line. Texas Cent. R. Co. v. O'Loughin \[Tex. Cuy. App.\] 84 S. W. 1104. 61. Houston & T. C. R. Co. v. Buchanan \[Ark.\] 84 S. W. 107a. 62. Texas & N. O. R. Co. v. Kolp, Jr. \[Tex. Cuy. App.\]. 85 S. W. 417. 63. Texas & P. E. M. co. v. Slaughter \[Tex. Cuy. App.\] 84 S. W. 1085. 64. San Antonio & A. P. R. Co. v. Dolan \[Tex. Cuy. App.\] 85 S. W. 302. Instruction held not erroneous in making one responable for neglect of others. Houston & T. C. R. Co. v. Kothmann \[Tex. Cuy. App.\] 84 S. W. 1089. Plaintiff is not required to allege or prove the exact amount of damage done by each. Atchison, etc., R. Co. v. Wilianns \[Tex. Cuy. App.\] 86 S. W. 383. If the negligence of several concurs and is not rally separable, judgment may go against defendant alone. Pecos River R. Co. v. Latham \[Tex. Cuy. App.\] 13 Tex. Cu. Rep. Civ. App.\] 85 S. W. 392. 65. Baggage. Kansas City, etc., R. Co. v. Washington \[Ark.\] 85 S. W. 406: Little Rock, etc., R. Co. v. Record \[Ark.\] 85 S. W. 421. Carrier may limit responsibility to injuries inlicted by himself on interstate shipments. Gulf, etc., R. Co. v. McCampbell \[Tex. Cuy. App.\] 85 S. W. 1158. 60. Texas & P. E. M. co. v. Stephens \[Tex. Cuy. App.\] 86 S. W. 933. Fallure to furnish proper cars. St. Louis, etc., R. Co. v. Marshial \[Ark.\] 86 S. V.

5 Cur. Law. CARRIERS \[OF GOODS\] $ 5. 515

**SS 5.**_Bills of lading and other contracts of carriage._\*\*"Bills of lading and special contracts of arfreightment in so far as they are not illegal or violative of law "1 are binding upon the parties to them as are other contracts."2 Where a shipper contracts for the carriage of a certain number of cattle and within the knowledge of the carrier's agent includes with his own -sufficient of another's to make up the number, the third person is a party to the contract and can sue on it."3 A breach of contract to furnish cars is actionable,"4 and a carrier has authority to contract to furnish cars off its own line."5

_Interpretation._\*\*"--The legal qualities of a bill of lading are governed by the law of the place where it is issued."7 Where freight is accepted without any special agreement as to the charge for transporting it, the law implies an undertaking to pay the usual rate."8 A bill of lading issued by a railroad company for cotton to be delivered "ship side" merely means that it will be delivered at a wharf accessable to the railroad and is not notice that carriage has been contracted for

freight except at stations, but it may as a | M. Y. R. Co. v. Searles \[Miss.\] 37 So. 939. result of custom or as a consequence of an expression contract become obligated to refocused by printed matter in a evolve freight at a point on its line where through bill of lading delivered after the shipper is no station, depot, platform, cars or agent. Georgia, S. & F. R. Co. v. Marchmann, 121 Ga. 235, 48 S. E. 961. An agent who has a 129. Contract with live stockc authority to contract to place cars along a railway at points where there is no agent, etc., R. Co. v. Jackson \[Tex. Civ. App.\] 86 S. freight house or other accommodation to 516 CARRIERS \[OF GOODS\] SS 6. 5 Cur. Law.

on any particular ship.79 An express company's local or general custom with regard to the delivery of packages is not admissible to contradict the express terms of the shipping receipt.80

_Indorsement and transfer.81--Bills of lading and shipping receipts are not negotiable in an unrestricted sense,82 and such negotiability as they ordinarily possess may be defeated by a restrictive statement.83 But non-negotiable bills of lading like any other non-negotiable instrument may be transferred by assignment,84 which will transfer title to the property subject only to the rights of the parties to it.85_

86. \_The duty to furnish cars_84 is discussed above.

01. _Forwarding and transporting goods.84--During transportation the goods are ordinarily under the exclusive control and protection of the carrier, who has a right to their custody until delivery at destination.88 The shipper may, however, contract to care for them en route, and relieve the carrier from responsibility for resultant injuries.89 Loss occurring by reason of carrier's failure to ice car as agreed may be recovered,80_

01. _Lee v. St. Louis, etc., R. Co., 136 N. C._

of lading taken to the order of the seller is endorsed by him and attached to a draft upon the purchaser for the price, and the draft is then delivered to a bank for collection, or is discounted by the bank in reliance upon the security of the bill of lading, no title passes to the purchaser until by payment of the draft he has duly obtained possession of the bill of lading, Graysson County Nat. Bank v. Nashville & C. R. Co. (Tex. Civ. App.) J 79 S. V. 1994, citing cases. Evidence held to show that bank discounted draft attached to bill of lading and not that it held as a mere collector. \_Temple Nat. Bank v. Louisville Cotton Oil Co., 26 Ky. L. R. 518, 82 S. W. 253. The bank to which such a draft is sent for collection and which delivers the bill of lading without payment is liable only for the actual value of the goods, where they are defective and refused for that reason. People's Nat. Bank v. Brogden \[Tex. Civ. App.\]

84. _The assignee taking subject to the oquities between the original parties. National Bank of Bristol v. Baltimore & O. R. Co., 99 Md. 661, 59 A. 134._

01. _National Bank of Bristol v. Baltimore & O. R. Co., 99 Md. 661, 59 A. 134._

01. _National Bank of Bristol v. Baltimore & O. R. Co., 99 Md. 661, 59 A. 134._

01. \_The assignment of lading represents the property, and a valid title to it obtained by pledge or otherwise is as valid a title to the goods as could be obtained to the goods themselves. Graysson County Nat. Bank v. Nashville, etc., R. Co. \[Tex. Civ. App.\]

01. _The assignment of lading and shipping receipts are not negotiable in an unrestricted sense,82 and such negotiability as they ordinarily possess may be defeated by a restrictive statement.83 But non-negotiable bills of lading like any other non-negotiable instrument may be transferred by assignment,84 which will transfer title to the property subject only to the rights of the parties to it.85_

01. \_The duty to furnish cars_88 is discussed above.

01. _Forwarding and transporting goods.84--During transportation the goods are ordinarily under the exclusive control and protection of the carrier, who has a right to their custody until delivery at destination.88 The shipper may, however, contract to care for them en route, and relieve the carrier from responsibility for resultant injuries.89 Loss occurring by reason of carrier's failure to ice car as agreed may be recovered,80_

01. \_The support of lading taken to the order of the seller is endorsed by him and attached to a draft upon the purchase for the price, and the draft is then delivered to a bank for collection, or is discounted by the bank in reliance upon the security of the bill of lading, no title passes to the purchaser until by payment of the draft he has duly obtained possession of the bill of lading, Graysson County Nat. Bank v. Nashville & C. R. Co. (Tex. Civ. App.) J 79 S. V. 1994, citing cases. Evidence held to show that bank discounted draft attached to bill of lading and not that it held as a mere collector. _Temple Nat. Bank v. Louisville Cotton Oil Co., 26 Ky. L. R. 518, 82 S. W. 253._

01. \_The support of lading is not negotiable like a bill of lading, and the right is the right to the payment of the draft. \_The support of lading taken to the order of the seller is endorsed by him and attached to a draft.

5 Cur. Law. CARRIERS \[OF GOODS\] $ 7. 517

\_Delay in transportation. 91--\_The transportation must be accomplished with reasonable expedition, 92 the carrier being liable for all damages proximately caused by negligent delays, 93 and in some states for a destruction of the goods by act of God which they would have escaped but for the delay. 94 A statute authorizing special damages for detention does not apply to an action to recover the value of a shipment converted by the carrier. 95

\_Delivery to succeeding carrier. 96--\_In the absence of specific directions, the initial carrier has the right to route shipments beyond its own line, 97 but a contract of this sort may be changed or modified by subsequent oral agreement, 98 and for its breach by himself or a succeeding carrier, the initial carrier is held liable. 98

In the ordinary course of business. Chi-

the delay is recoverable in the absence of cargo, I. & L. R. Co. v. Reyman \[Ind.\] 73

notice of special loss. Lee V. St. Louis, etc., N. E. 587. But if actual delivery Is delayed

R. Co., 136 N. C. 533, 48 S. E. 809. Where beyond the usual time, there is an implica-

a carrier has no notice that delay in shipment that the carrier will protect the shipment from heat. Id.

90. Damage incurred after leaving initial

ence in market value of the goods when de-

carrier may be recovered against it. Houston & T. C. R. Co. v. Wilkerson Bros. \[Tex.

Traveling salesman working on commis-

Civ. App.\] $2 S. W. 1069. Seo, also, Chicago,

I. & L. R. Co. v. Reyman \[Ind.\] 73 N. E. 587.

91. See 8 C. L. 696.

01. Houston & T. C. R. Co. v. Foster

01. Houston & T. C. R. Co. v. Foster

94; Blbb Broom

95; Civ. App.\] $6 S. W. 44; Blbb Broom

Corn Co. v. Atchison, etc., R. Co. \[Minn.\] 102

96; N. W. 709. In order that recovery may be

had for delay in shipment, some evidence

must be produced of the length of time ordinality required. Johnston v. Chicago, B. &

97; N. W. 479. Where no

a. R. Co. \[Neb.\] 97 N. W. 479. Where no

time is provided in the contract, the time

must be reasonable. Slopop v. Wabash R.

pended by written contract containing no

Co. \[Moc. App.\] $4 S. W. 111. Keeping live

stock on track from 8 a. m. till 3 p. m., at

ligand. Ft. Worth & R. G. R. Co. v. Hadley

destination before delivery is gross negill-

\[Tex. Civ. App.\] $6 S. W. 932.

gence not covered by limitation in contract.

94. Whether the goods are perishable or

Smith v. Chicago, etc., R. Co. \[Moc. App.\] $7

non-perishable. Flood overtaking delayed

S. W. 9. Where freight is accepted without

shipment. Bibb Broom Corn Co. v. Atchison

notice that delivery will be delayed, the

carrier is not absorbed by a rush of busil-

99; Mefr. C. R. Louis Merchants' Bridge Terminal R. Co., 108 Mo. App. 565, 84 S. W. 158.

80. Not liable on theory of breach of contract

01. The mismarking of three of four

packages constituting a single shipment is

Pac. R. Co. \[Moc. App.\] $8 S. W. 117. Negil-

no defense to an action for a penalty for

gent delay in forwarding goods will not

failure to forward the one properly marked,

where the three mismarked ones were for

with the carrier was not

warded to the place addressed. Lexington

responsible, though they would not have

Grocery Co. v. Southern R. Co., 136 N. C. 396, 48 S. E. 801. The statute of North Car

Fire Extinguisher Co. v. Carolina & N. W.

olina subjecting to a penalty carriers who

R. Co., 137 N. C. 278, 49 S. E. 208. A carrier

delay shipments more than four days does

not relieve them of their common-law liability for delays less than that period. Laws

not reasonably have been foreseen, al-

1903, 2, 993, 50. Meredith v. Seaboard

Air Line R. Co., 137 N. C. 478, 50 S. E. 1. Evidence that a defective engine delayed a

shipment shows negligence, though the

train crew worked faithfully to put the

engine in order. McCrary v. Chicago & A. R. Co. \[Moc. App.\] $3 S. W. 82. The mistaken

act of a deputy collector of customs in re-

fusing a clearance to a ship while the shipment in question is on board is no excuse

to the carrier for failure to transport as

agreed. Northern Pac. R. Co. v. American

Trading Co., 195 U. S. 438, Loss of or injury to goods ${}^{\\lambda}$ not traceable directly to the shipper's fault,${}^{\\lambda}$ an act of God ${}^{\\lambda}$ or the public enemy,${}^{\\lambda}$ renders the carrier liable, within the valid stipulations of the contract, for the value of lost goods,${}^{\\lambda}$ or the amount of injury to goods not totally destroyed.${}^{\\lambda}$ If negligence of the carrier co-operates with a natural catastrophe in bringing about the loss of a shipment, the carrier is liable.${}^{\\lambda}$ A private carrier is liable only for negligence,${}^{\\lambda}$ and not for an injury by a third person that could not have been foreseen.${}^{\\lambda}$

## 9. Delivery by carrier and storage at destination

${}^{\\lambda}$The responsibility of land carriers as such does not end with the arrival of the goods at their destination, but the contract includes in the case of express companies their delivery to the consignee,${}^{\\lambda}$ and in the case of railroads, notice to the consignee and reasonable opportunity after notice to take them away.${}^{\\lambda}$ The liability for goods left in other line. Steidl v. Minneapolis & St. L. R. Co. \[Minn.\] 102 N. W. 701. The Initial carrier is liable for increase of freight caused by deviation from shipping directions where communication with the shipper was feasible. Fisher v. Boston & M. R. Co., 99 Me. 383, 59 A. 532. The diversion of the shipment by an intermediate carrier to a line other than that designated by the initial carrier is not negligent where the next succeeding carrier designated could not take it on account of floods and no injury from the diversion was reasonably to be anticipated. Empire State Cattle Co. v. Atchi-son, etc., R. Co., 135 F. 136. If the Initial carrier routes the shipment on the bill of landing and then delivers to another connecting carrier, it is liable. Eckles v. Missouri Pac. R. Co. \[Mo. App.\] 87 S. W. 99. 1. See S C. L. 597. 2. Liable though shipper inspected car furnished. St. Louis, etc., R. Co. v. Marshall \[Ark.\] 86 S. W. 802. Where the shipper selects a car from among many in his yard available for the purpose, the carrier is not responsible for damages arising solely from defects in the car discoverable by inspection. Consignee's agent in making the selection. Edward Frohlich Glass Co. v. Pennsylvania Co. \[Mich.\] 101 N. W. 223. Flood. Grier v. St. Lonis Merchants' Bridge T. R. Co., 108 Mo. App. 565, 84 S. W. 158. 4. In case of interference by strikers, carrier is liable for delay only in case of negligence. Sterling v. St. Louis, etc., R. Co. \[Tex. Civ. App.\] 86 S. W. 655. 5. Where an express company pays for a lost shipment on an agreement for reimbursement in case the shipment is subsequently restored in the same condition as when shipped, it is entitled to recover on evidence that it tendered the goods in apparent good condition. Platt v. Gross, 93 N. Y. S. 249. Delivery of a lady's bonnet in good order in the customary paper box for transportation from New York to Newark and its delivery ten days later to the consignee with the appearance of having been transpiled upon, the bonnet being ruined, makes a case. Jacoby v. Platt, 94 N. Y. S. 485. Where a transfer man deposited baggage on the station platform, he is responsible for it though the railroad company's servants knew it was his custom so to do. Alexander v. McNally \[Mo. App.\] 87 S. W. 1. 6. The consignor may refuse to receive a returned C. O. D. package offered in a damaged condition. Freeman v. Welr, 94 N. Y. S. 327. The owner cannot refuse to accept property injured in transportation and recover its full value but must accept it and save for the injury. Gulf, etc., R. Co. \[Minn.\] 102 N. W. 701. The initial carrier is liable for increase of freight caused by deviation from shipping directions where communication with the shipper was feasible. Fisher v. Boston & M. R. Co., 99 Me. 383, 59 A. 532. The diversion of the shipment by an intermediate carrier to a line other than that designated by the initial carrier is not negligent where the next succeeding carrier designated could not take it on account of floods and no injury from the diversion was reasonably to be anticipated. Empire State Cattle Co. v. Atchi-son, etc., R. Co., 135 F. 136. If the initial carrier routes the shipment on the bill of landing and then delivers to another connecting carrier, it is liable. Eckles v. Missouri Pac. R. Co. \[Mo. App.\] 87 S. W. 99. 1. See S C. L. 597. 2. Liable though shipper inspected car furnished. St. Louis, etc., R. Co. v. Marshall \[Ark.\] 86 S. W. 802. Where the shipper selects a car from among many in his yard available for the purpose, the carrier is not responsible for damages arising solely from defects in the car discoverable by inspection. Consignee's agent in making the selection. Edward Frohlich Glass Co. v. Pennsylvania Co. \[Mich.\] 101 N. W. 223. Flood. Grier v. St. Lonis Merchants' Bridge T. R. Co., 108 Mo the carrier's possession after delivery and acceptance by the consignee, \[13\] and for goods remaining on hand after reasonable attempts to deliver, is that of warehousemen. \[14\] Where there is a refusal to deliver, \[15\] or a misdelivery, \[16\] the carrier is liable for the value of the goods; and being responsible for misdelivery he is entitled to take all necessary precautions to assure himself that the claimant of goods is entitled to them, \[17\] and to protect his possession of the goods by all lawful means. \[18\]

\_Liability for conversion. \[19\]--\_Unexplained refusal to deliver a shipment as agreed amounts to conversion. \[20\] A carrier cannot set up title in himself to defeat

rect from the cars, delivery is not complete

until the car has been placed and the consignee notified. Bachant v. Boston & M. R.

cleanst evidence upon the face of the trans-

Co. \[Mass.\] 73 N. E. 642. Postal notice 18

action that notwithstanding such an approv-

sufficient. Normille v. Northern Pac. R. Co., 36 Wash. 21, 77 P. 1087. Especially where

sufficient to transfer the title to the buyer

the consignee is aware of a local custom to

the seller has determined to prevent this

give such notices. Friedman v. Metropolitan

tan S. S. Co., 45 Misc. 383, 90 N. Y. S. 401.

Evidence held insufficient to show that no-

mediate common carrier is required by state

tice of arrival of shipment was given. Rogers v. Fargo, 93 N. Y. S. 550. The mere

take notice of the fact that a bill of lading

setting out of a flat car on which freight

is loaded at a flag station is not a delivery

ery of the goods without the production of

to the consignee. If the carrier does not

put such a shipment in its warehouse and

terms as to freight charges and like condl-

it is stolen it is liable. Normille v. North

G mio R. Co., 36 Wash. 21, 77 P. 1087.

Ohio R. Co., 3Ohio N. P. (N. S.) 403, 15 Ohio

Where a consignee noticed a shipment of

freight on track and immediately took

steps to ascertain if it was his and if so to

delivery was made to the consignee's

mave It unloaded, no notice of arrival by

ploye as soon as his authority to receive

the carrier was necessary. Id. Where a

was produced. Moore v. Baltimore & O. R.

car containing freight is set out on a side

C., 183, 48 N. E. 887. The carrier

track at the destination, the consignee is

not guilty of laches in not being prepared

to take it away until the day following no-

tice of arrival. Id. Where there is no

dispute as to the facts, the question what

is a reasonable time for removal of goods

is a question of law for the court. Id. Car

load freight must be offered at the usual

place. Loeb v. Wabash R. Co. \[Mo. App.\]

85 S. W. 118.

13. Verification and receipt by consignee

for goods in car on track is a vaId delivery

and for subsequent theft the carrier is not

liable in the absence of gross negligence.

Kenny Co. v. Atlanta & W. P. R. Co. \[Ga.\]

50 S. E. 132.

14. After termination of the transit the

carrier's liability is that of warehouse

only. Southern R. Co. v. Aldredge \[Ala.\]

38 S. So. 805.

15. Refusal to deliver based on failure

to pay an unauthorized additional charge

for freight cannot be justified on the ground

of the absence of the shipping bill. Illinois

Cent. R. Co. v. Seitz, 105 I'll. App. 89. Car

rier cannot refuse delivery for underrating

due to fault of its clerks. Id.

16. An answer defending misdelivery on

account of similarity of packages and their

marks must show that plaintiff was responsible for the similarity. Ullman v. South

orn R. Co., 93 N. Y. S. 480. Where goods

have been transferred from one carrier to

another, the last carrier is bound to de-

liver them to the holder of the bill of lading issued by the first carrier. Grayson

County Nat. Bank v. Nashville, etc., R. Co.

\[Tex. Civ. App.\] 79 S. W. 1094. When the

seller takes a bill of lading which

expressly stipulates that the goods are to be

the carrier's possession after delivery and acceptance by the consignee, \[13\] and for

goods remaining on hand after reasonable attempts to deliver, is that of warehousemen. \[14\] Where there is a refusal to deliver, \[15\] or a misdelivery, \[16\] the carrier

is liable for the value of the goods; and being responsible for misdelivery he is entitled to take all necessary precautions to assure himself that the claimant of goods

is entitled to them, \[17\] and to protect his possession of the goods by all lawful means. \[18\]

\_Liability for conversion. \[19\]--\_Unexplained refusal to deliver a shipment as agreed amounts to conversion. \[20\] A carrier cannot set up title in himself to defeat

rect from the cars, delivery is not complete

dellvered at the point of destination to

until the car has been placed and the consignee, \[16\] his order an action for conversion,21 but evidence of his ownership is admissible on the question of damages.22 The damages for a conversion at the point of destination are the value of the property at that point less the unpaid freight charges.23

SS 10. \_Liability of carrier or connecting carrier_24 is discussed above.26

SS 11. \_Limitation of liability.26--\_In the absence of restrictions in the contract, a common carrier is liable as an insurer for the loss of goods intrusted to it for transportation unless caused by the act of God, a public enemy, some inherent defect in the goods, or by the shipper himself.27 It is competent, however, in most states for the shipper and carrier to agree that the carrier's liability shall extend only to losses through its actual or "gross" negligence,28 on its own line,29 and that its liability shall be limited to a stated amount unless a greater amount or value is declared in the bill of lading and an increased rate paid therefor.30 An agreement, in consideration of a reduced rate, that the carrier shall not be liable for failure to deliver at a particular time, is valid.31 Such contracts being drawn by the carrier for his own benefit are construed liberally in favor of the shipper,32 and strictly against the carrier,33 and will not as a rule avail to relieve the carrier

bowitz v. Metropolitan Exp. Co., 91 N. Y. S. tract to ship "released" must be construed to mean that carrier is only relieved from losses occasioned without his negligence. Id.

(Flishman v. Platt, 90 N. Y. S. 354). A mortgagor shipping cattle cannot recover against the carrier for commission where the carrier delivered them to a mortgage entitled to possession. Johnston v. Cblengo, B. & Q. R. Co. \[Neb.\] 97 N. W. 479.

21, 22. Valentine v. Long Island R. Co., 102 App. Div. 419, 92 N. Y. S. 645.

23. Missouri, K. & T. R. Co. v. Rines & Co. \[Tex. Civ. App.\] 84 S. W. 1092.

01. See 3 C. L. 600, 9 I.0.

01. See name $ .

01. See 3 C. L. 601.

01. Gulf, etc., R. Co., v. Roberts \[Tex. Civ. App.\] 85 S. W. 479. In states where illumination is not allowed, it is error to charge that the carrier owes only ordinary care. Bibby, Missouri, K. & T. R. Co. \[Tex. Civ. App.\] 84 S. W. 668.

01. Cau v. Texas & P. R. Co., 194 U. S. 427. 48 Law. Ed. 1063; Russell v. Erto R. Co., 70 N. J. Law, 808, 69 A. 150. Except as to such gross negligence or misfeasance, as public policy forbids such stipuation. Baltimore, etc., R. Co. V. Ross, 105 III. App. 54. A carrier cannot limit its liability for negligence by contract. Eckert v. Pennsylvania, R. Co. \[Pa.\] 60 A. 781; San Antonio & A. P. R. Co. v. Dolan (Tex. Civ. App.\] 85 S. W. 302; Bibby, M. Missouri, K. & T. R. Co. v. Johnson, King & Co., 121 Ga. Co. \[Tex. Civ. App.\] 84 S. W. 663; Trace v. Penn., K. & Zg. Super. Ct. 466; Baltimore & Wichout consideration will not be enforced. O. S. W. R. Co. v. Fox, 113 III. App. 180. Where the contract of shipment stipulates against liability for loss by fire unless occurring through the carrier's negligence, no liability is shown by mere proof of loss by fire. Michaels v. Adams Exp. Co. \[N. J. Law\] 59 A. 142; Anderson v. Mobile & O. R. Co. \[Miss.\] 88 S. 661. Liability for negecnogenic in supplying defective cars cannot be provided against. Nevicus v. Chicago, etc., R. Co. \[Vis.\] 102 N. W. 489. Burden is on carrier to plead and prove special contract limiting liability. Chicago Great Western R. Co. v. Dunlap (Kan.) 80 P. 54. And that loss occurred without his negligence. Georgia So. & F. R. Co. v. Johnson, King & Co., 121 Ga. 231, 48 S. E. 807. Con of liability for the full value of goods lost through his negligence.\[44\] The contract containing the limitation must be shown to have been asserted to by the shipper,\[35\] and founded on a sufficient,\[36\] though not necessarily an independent consideration.\[37\] Contracts of carriage are construed and enforced according to the law of the state where they are made,\[38\] except in the case of stipulations as to time to sue,\[39\] and the courts of the state in which the loss occurs will enforce a limitation of liability as the courts of the state where the contract was made would have done.\[40\] In states in which carriers are not allowed to limit their liability, they may make a special contract under which the shipper of live stock shall assume responsibility

**34. A regulation of the state corporate**

**plaintiff in ignorance of its contents held commission fixing a rate on certain goods**

**question for jury. Olds v. New York Cent.**

**limited to $5 per hundred-weight and "re-**

**& H. R. Co., 94 N. Y. S. 924. Plaintiffs who leased" does not relieve the carrier of lic-**

**had been shipping for years held bound by**

**blity for the full value of goods lost**

**contract. Texas & P. R. Co., 94 N. Y. S. 924.**

**\[Tex. Civ. App.\] 84 S. W. 1087. The use for**

\*\*for less than 1 for proper loading.\[41\] A provision that the shipper accepts the cars tendered and agrees that they are satisfactory does not relieve the carrier from liability for defects therein.\[42\] A special contract to haul a circus train limiting carrier's liability and providing for indemnity against injury to the circus company's officers, agents, etc., is not against public policy.\[43\]

_Provisions for notice of injury_ and limitations on the time to present claims "4 are upheld "5 if reasonable "8 in states where limitation of common-law liability is allowed," but such provisions may be waived.\[48\]

SS 12. _Public records of traffic.\[49\]_

SS 13. _Remedies and procedure. Timely notice of suit "0 is necessary when properly stipulated for and not waived.\[51\]_

_Persons who may sue.\[52\]_--Whoever holds the legal title to goods may recover for their loss,\[53\] but plaintiff cannot recover for the loss of goods where the evidence does not exclude the right of the consignor or consignee to recover also,\[54\] and consignors cannot recover in the absence of evidence to rebut the presumption of title in the consignee.\[55\]\_

_Particular remedies available.\[56\]_--A shipper may at his election bring either an action on the contract or in tort for injuries to goods shipped.\[57\] A suit for damages for breach of contract of affreightment is an action ex contract.\[58\] An action under the Georgia "Tracing Act" is an action for a penalty which cannot be converted into an action on a contract by amendment of the declaration.\[59\]\_

41. Texas & P. R. Co. v. Eddins \[Tex. Civ. App.\] 83 C. L. 603, 812.

App.\] 83 S. W. 253. Such a contract does not apply where the carrier himself does the loading. San Antonio & A. P. R. Co. v. Dolan \[Tex. Civ. App.\] 85 S. W. 302.

contract which stipulates that the shipper shall assume all risks of feeding, water-ing, etc., of the stock while in the cars, yards, etc., does not relieve the carrier from liability for its own negligence. Chicago, etc., R. Co. v. Mitchell \[Tex. Civ. App.\] 85 S. W. 286.

42. San Antonio & A. P. R. Co. v. Dolan \[Tex. Civ. App.\] 85 S. W. 302.

01. Wilson v. Atlantic Coast Line R. Co., 129 F. 774.

01. Baltimore, etc., R. Co. v. Ross, 105.

01. Mont in Texas, Chicago, etc., R. Co. v. Dolan \[Tex. Civ. App.\] 85 S. W. 286.

01. Wilson v. Atlantic Coast Line R. Co., 129 F. 774.

01. Baltimore, etc., R. Co. v. Ross, 105.

01. Bullmore, etc., R. Co. v. Ross, 105.

01. Bullmore, etc., R. Co. v. Hills, Jr., 114.

01. Bellmore, Jr., 114.

01. Bellmore, Jr., 114.

01. Texas, Baltimore, etc., Jr., 114.

01. San Antonio & A. P. R. Co. v. Dolan \[Tex. Civ. App.\] 85 S. W. 302.

01. Wilson v. Atlantic Coast Line R. Co., 129 F. 774.

01. Baltimore, etc., R. Co. v. Ross, 105.

01. Not in Texas, Chicago, etc., R. Co. v. Mitchell \[Tex. Civ. App.\] 85 S. W. 286.

01. Wilson v. Atlantic Coast Line R. Co., 129 F. 774.

01. Baltimore, etc., R. Co. v. Ross, 105.

01. Bullmore, Jr., 114.

01. Bellmore, Jr., 114.

01. Bellmore, Jr., 114.

01. Texas, Baltimore, Jr., 114.

01. San Antonio & A. P. R. Co. v. Dolan \[Tex. Civ. App.\] 85 S. W. 302.

01. Wilson v. Atlantic Coast Line R. Co., 129 F. 774.

01. Baltimore, etc., R. Co. v. Ross, 105.

01. Not in Texas, Chicago, etc., R. Co. v. Hobbs \[Tex. Civ. App.\] 85 S. W. 386.

01. Time one day longer than statutory minimum cannot be held unreasonable as matter of law. St. Louis & S. F. R. Co. v. Honea \[Tex. Civ. App.\] 84 S. W. 287.

01. Not in Texas. Missouri, K. & T. R. Co. v. Honea \[Tex. Civ. App.\] 87 S. W. 387.

01. Failure to object to notice on grounds raised at trial. Wabash R. Co. v. Johnson, 114 Ill. App. 545. Failure to object to sufficiency of notice valves it. Eckert v. Pennsylvania R. Co. \[Pa.\] 60 A. 781.

01. See 5 Cur. Law. CARRIES \[OF GOODS\] SS 13. 523

\_Venue.${}^{\\circ\\circ}$--\_Where two or more carriers, parties to an interstate shipment, operate their roads in Texas, all, any, or either of them are properly sued in any county into which the road of either extends.${}^{\\circ\\circ}$

\_Pleading, proofs, and evidence.${}^{\\circ\\circ}$--\_A declaration on a bill of lading or shipping contract ${}^{\\circ\\circ}$ must be accompanied by the bill or a copy,${}^{\\circ\\circ}$ and where plaintiff founds his action on a shipping contract he cannot contend that he is not bound by its terms.${}^{\\circ\\circ}$ Gross or willful negligence, against which a common carrier may not stipulate, must be alleged in order to obtain a finding to that effect.${}^{\\circ\\circ}$ A contract limiting the liability of common carriers need not be specially pleaded, but is available under the general issue.${}^{\\circ\\circ}$ In Texas a plea of lack of notice of injury in accordance with the contract must be sworn to.${}^{\\circ\\circ}$ Specific acts of negligence alleged must be proved.${}^{\\circ\\circ}$ Immaterial variances are disregarded.${}^{\\circ\\circ}$

The presumtion that title to goods passes to the consignee on delivery to the carrier is sufficient to support an action by the consignee against the carrier for their loss.${}^{\\circ\\circ}$ The doctrine of res ipso loquitur applies to goods,${}^{\\circ\\circ}$ and where goods received in good order by a carrier for transportation are lost ${}^{\\circ\\circ}$ or delivered in a damaged condition,${}^{\\circ\\circ}$ the carrier is presumed, in the absence of evidence to the contrary, to have been negligent.${}^{\\circ\\circ}$ In trover, a prima facie case is made by show-

able Bros. v. Louisville & N. R. Co., 137 F. 68. St. Louis & S. F. R. Co. v. Honea 981. \[Tex. Civ. App.\] SS 8. W. 267. 69. That defendar broke open car of 61. Gen. Laws 26th Leg. p. 214, c. 125. 69. Further and threw it about and threw other freight on it. Galim v. Wabash R. App.\] SS 8. W. 717; San Antonio & A. P. Ko. \[M. App.\] SS 8. W. 1015. 70. Where suit is brought on the common-law liability, a written contract not is not liable suit cannot be brought against effective to vary that liability does not creebters in a county through which neither of their roads, but only the initial carriers' runs. Missouri, K. & T. R. Co. v. Dolan \[Tex. Civ. App.\] SS 8. W. 302. 71. Bank of Irwin v. American Exp. Co. Pllea to jurisdiction on ground that a partiicular carrier not liable was fraudently joined to confer jurisdiction held not sustained. Atchison, etc., R. Co. v. Williams \[Tex. Civ. App.\] SS 8. W. 38. See, also, Achiison, etc., R. Co. v. Waddell Bros. \[Tex. Civ. App.\] SS 8. W. 655. Statute relates to venue rather than jurisdiction and the proper court of any county has jurisdiction. Not sufficient to show bill of lading stating union unless attacked by plea of privilege. 82 San Antonio & A. P. R. Co. v. Stribling \[Tex. Civ. App.\] SS 8. W. 374. Petition need not allege partnership joint contract, In the absence of proof of the origin of a or the damages resulting from each separa-rate carriers. Missouri, K. & T. R. Co. v. Allen \[Tex. Civ. App.\] SS 8. W. 168. Where the bill of lading makes each carrier independent such a suit cannot be brought in a county where the carrier has no road. Atchison, etc., R. Co. v. Waddell Bros. \[Tex. Civ. App.\] 13 Tex. Civ. App.\] SS 8. W. 89. 62. See 8. C. L. 604. 63. Requisites of declaration in assump-sit on contract of carriage. Chesapeake & O. R. Co. v. Stock & Sons \[Va.\] 61 S. E. 161. 64. Omission is ground for demurrer. Leave after demurrer to attack a copy not availed of does not amount to an amendment. Chicago, I. & L. R. Co. v. Reyman \[Ind.\] 73 N. E. 687. 65. United States Exp. Co. v. Joyce \[Ind.\] 72 N. E. 865. 66. 67. Baltimore, etc., R. Co. y. Ross, 105 111. App. 54. 68. 69. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 60. 68. 61. 65. 68. 69. 61. 60. 62. 64. 66. 67. 68. 69. 60. 63. 65. 66. 68. 69. 61. 62. 63.

ing delivery to the carrier and his failure to redeliver.\[76\] After the carrier has shown that the loss occurred from a cause excepted in the bill of lading, the burden is on the plaintiff to show that it occurred by the carrier's own negligence from which it could not be exempted.\[17\] The last carrier when sued has the burden of proving that goods properly delivered to the initial carrier were not lost or damaged on the last carrier's line,\[78\] and when he has shown this, the burden falls on the next preceding carrier to show likewise as to his line.\[79\] The burden is on the carrier to show that notice of claim for injury was not given.\[80\]

Admissibility of evidence is governed by rules applicable in other cases.\[81\]

Cases in which the sufficiency of evidence is discussed are mentioned below.\[82\]

_Trial and instructions_\[83\] are governed by familiar rules.\[84\]

ployment of competent engineer. Gulf, etc., the legal effect of the bill. Grayson County R. Co. v. Roberts \[Tex. Civ. App.\] 85 S. W. 479. In an action for injury to goods the burden is on plaintiff to show that defend-age undiverted was addressed differently that injured them or at least facts raising that presumption. Texas & P. R. Co., \[Cappel v. Weir, 92 N. Y. S. 365, opinion on Cappel \[Tex. Civ. App.\] 84 S. W. 664. Where goods are lost, the burden is on the carrier to account for it. Alexander v. McNally \[Mio. App.\] 87 S. W. 1. 7. 76. Grier v. St. Louis Merchants' B. T. R. Co., 108 M. App.\] 86. S. W. 188.

If there is no limitation in the con-issue of negligent delay. Sterling v. St. Luci, etc., R. Co. \[Tex. Civ. App.\] 86 S. W. 479.

If there is no limitation in the con-issue of negligent delay. Sterling v. St. Luci, etc., R. Co. \[Tex. Civ. App.\] 86 S. W. 482.

If there is no limitation in the con-issue of negligent delay. Sterling v. St. Luci, etc., R. Co. \[Tex. Civ. App.\] 86 S. W. 479.

If there is no necessity to prevent the failure of negligence. Sterling v. St. Luci, etc., R. Co. \[Tex. Civ. App.\] 86 S. W. 482.

If there is no necessity to prevent the failure of negligence. Sterling v. St. Luci, etc.

5 Cur. Law. CARRIFERS \[OF GOODS\] $ 13. 525

\_Damages.\_85--Only such damages as are reasonably in contemplation of the parties are recoverable. These generally extend only to the market value of the property at destination in case of loss,86 and to the difference in value caused by the injury 87 or delay 88 in case there is not a total loss. Loss of profits,89 time, and expenses, are not recoverable, nor can there be a recovery for the loss of property not carried, occasioned by failure to deliver that carried, in the absence of notice of special circumstances.90 Notice of special circumstances after shipment was made

tt on Saturday, is within a reasonable time

O. & G. R. Co. \[Ark.\] $5 S. W. 770. The is a question for the jury. Dressner v.

Mannhattan Delivery Co., 92 N. Y. S. 800.

Instruction held erroneous as assuming

and the time they would have reached it

that express company's driver bad authority to contract for delivery of a shipment

red is the measure of damages for delay.

by a particular tran. Pacific Exp. Co. v.

International & G. N. R. Co. v. Startra \[Tex.

Needham \[Tex. Civ. App.\] $2 S. W. 1071; Gulf, etc., R. Co.

Where plaintiff uses on an oral contract

V. Beattie \[Tex. Civ. App.\] $8 S. W. 367; and defendant defends on & written con-

Houston & T. C. R. Co. v. Foster \[Tex.

tract and facts are shown which invalidate

Civ. App.\] $6 S. W. 44. So of grain.

the written contract a charge that the oral

Chicago, etc., R. Co. v. C. Milli Elev. &

contract was not in force is properly re-

I. Co. \[Tex. Civ. App.\] $7 S. W. 763.

fused as on the weight of the evidence.

Shrinkage of cattle is to be considered.

Texas Cent. R. Co. v. Miller \[Tex. Civ. App.\] $2 S. W. 499.

Ness C. L. 606.

S6. Horses. Texas & P. R. Co. v. Sny-

V. Choctaw, O. & G. R. Co. \[Ark.\] $5 S.

W. 770. Rule where cattle are ship-

measure of damages for loss of goods is

ped to one point with privilege of changing destination to point further on at

from the time they should have been de-

through rate. Texas & P. R. Co. v. Nelson

livered, less unpaid freight. Carrier not

\[Tex. Civ. App.\] $6 S. W. 616. Rule where

entitled to time to investigate. Chesapeake

& O. R. Co. v. Stock & Sons \[Va.\] $1 S. E.

\[Tex. Civ. App.\] $5 S. W. 938. Negligence

161. The damages for misdelivery of goods

resulting in missing two successive contacts of sale. Texas & P. R. Co. v.

strew-

right charges if unpaid. Not the con-

ract price. Grayson v. County Nat. Bank

measure of damages when a carrier through

v. Nashville, etc., R. \[Tex. Civ. App.\] $9 S.

negligence or violation of duty delays the

W. 1094. Unless it is shown they have no

delivery of merchandise or baggage be-

market value, evidence of their intrinsic

yond a reasonable time is the difference

value, or of their market value at some

other place, as the point of shipment, is im-

have been made, and the value when de-

material. Gulf, etc., R. Co. v. Roberts

\[Tex. Civ. App.\] $5 S. W. 479.

man that a trunk contained samples does

87. Where the connecting carrier re-

fused to transport goods to their destination, but transported them to another place,

the damages for injury must nevertheless

be based on their market value at the con-

tract destination. Texas & P. R. Co. v.

Tracy \[Tex. Civ. App.\] $5 S. W. 833. Con-

tract price at which cattle were to be sold

is immaterial if the carrier had no notice

of it. Gulf, etc., R. Co. v. Wright \[Tex.

Civ. App.\] $7 S. W. 191. Market price at

nearest place where there is a market may

be shown. Atchison, etc., R. Co. v. A. S.

Veale & Co. \[Tex. Civ. App.\] $7 S. W. 202.

The carrier is entitled to the advantage of

a compromise between the consigner and

consignee settling the damage. St. Louis &

S. F. R. Co. v. McDermitt Grain Co. \[Tex.

Civ. App.\] $7 S. W. 355; Atchison, etc, R. Co.

v. Waddell Bros. \[Tex. Civ. App.\] $13 Tex. Ct.

Rep. 647, 88 S. W. 390.

SS. Decline in price of commodity during delay. Wood. Butterick Pub. Co. v.

Gulf, etc., R. Co. \[Tex. Civ. App.\] $13 Tex. Ct. Rep. 551, 88 S. W. 29 charges in the absence of evidence that any were paid,"2 and in an action for injuries, based on the value of the goods at destination, evidence of the amount of freight paid is immaterial."2 Demurrage paid by the shipper and made necessary by the delay may be recovered."4 For failure to adjust a claim within a stated time, a penalty is provided in several states to be recovered in addition to the amount of the claim."5

SS 14. _Freight and other charges._"6--The carrier has a lien on the goods carried for freight charges," charges advanced,"8 demurrage,"9 charges for steerage,1 and other extras," unaffected by the default of the preceding carrier causing injury to the goods." The lien, however, is lost by delivery,4 and does not arise as to goods delivered to it by a wrongdoer.5 A carrier is bound by the freight rates quoted by its agent and accepted by the shipper.6 He may, however, reclassify freight, the character of which was misrepresented, and hold it for the higher rate,7 but not in cases where there was no misrepresentation."

Footnote 1: The author is grateful to the anonymous referee for the support of the anonymous referee for the 5 Cur. Law. CARRIERS \[OF LIVE STOCK\] $ 20. 527

rier.11A station agent has implied authority to contract to furnish cattle cars for shipment from his station.12

SS 16. \_Care required of carrier.13--Common carriers of live stock are insurers to the same extent and degree that they are of goods, except as to losses arising from the nature or proper vices of the animals themselves,14 and are charged with certain extraordinary duties arising from the requirements of live animals as distinguished from dead freight.15 Reasonable diligence to transport stock within a reasonable time must be used.16 Failure to transport without rough handling is not negligent per se.17 An owner of live stock cannot recover for injuries to it caused by his own negligence in overloading.18

\_Rest and feeding_19 are duties imposed by statute,20 for the neglect of which penalties are imposed in several states.21

SS 17. _Delivery.22_

SS 18. _Liability of carrier or connecting carrier.23_

SS 19. _Limitation of liability.24_

SS 20. \_Procedure in actions relating to stock.25--The shipper may at his election bring an action on the contract or in tort for injuries.26 Pleadings are adjuded according to ordinary rules.27

11. Wilson v. Atlantic Coast Line R. Co., 129 F. 774. 12. Baltimore, etc., R. Co. v. Tison, 116. 111. App. 48. 13. See 3 C. L. 608. 14. Texas & P. R. Co. v. Snyder \[Tex. Civ. App.\] 86 S. W. 1041; Baltimore, etc., R. Co. v. Fox, 113. III. App. 180: Waabash R. Co. v. Johnson, 114 III. App. 545: Chicago, etc., R. Co. v. Woodward \[Ind.\] 73 N. E. 558. The carrier is an insurer as to such perils of transportation as it is his duty to provide against. Trace v. Pennsylvania R. Co., 26 Pa. Super. Ct. 466. Carrier held not responsible for loss of cattle from flood. Empire State Cattle Co. v. Atchison, etc., R. Co., 135 Tex. 135. 135. If the carrier negligently unloads cattle in infected stock yards thereby compelling the immediate slaughter of the cattle at a loss it is liable. Dorr Cattle Co. v. Chicago, etc., R. Co. \[Iowa\] 103 N. W. 1003. Where a railroad company accepts horses for transportation beyond its own line its duty is not only to carry them to its own terminus safely but also to deliver them to the connecting carrier in a car properly constructed and suitable for the purpose of carrying them to their final destination. Eckert v. Pennsylvania R. Co. \[Pa.\] 60 A. 781. It 1s prima facie negligent to give stock alkali water. Chicago, etc., R. Co. v. Mitchell \[Tex. Civ. App.\] 85 S. W. 286. Must use ordinary care in handling and deliver-ing to connecting carriers and afford reasonable opportunities for feeding and watering. Texas & P. R. Co. v. Byers Bros. \[Tex. Civ. App.\] 84 S. W. 1087. 14. Gulf, etc., R. Co. v. Beattie \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 598, 88 S. W. 367. 17. Missouri, etc., R. Co. v. Garrett \[Tex. Civ. App.\] 87 S. W. 172; Fit. Worth, etc., R. Co. v. James \[Tex. Civ. App.\] 87 S. W. 730. 18. Texas & P. R. Co. v. Edins \[Tex. Civ. App.\] 88 S. W. 253. 19. See 3 C. L. 609. 20. A carrier receiving live stock for shipment is bound to properly care for it or afford the shipper an opportunity to do so. Olds V. New York Cent., etc., R. Co., 94 N. Y. S. 924. Negligence to give impure water. Chicago, etc., R. Co. v. Mitchell \[Tex. Civ. App.\] 85 S. W. 286. Interstate shipments are governed by the Federal statute as to water, feed and rest and not by the state statute. International, etc., R. Co. v. Starts \[Tex. Civ. App.\] 82 S. W. 1071. 21. Sayles' Rev. Civ. St. 1897, art. 325. Houston, etc., R. Co. v. Brown \[Tex. Civ. App.\] 85 S. W. 44. 22. See 3 C. L. 610. See, also, ante, SS 9. 23. See 4 C. L. 610. See, also, ante, SS 3. 24. See 3 C. L. 611. See, also, ante, SS 3. 25. See 3 C. L. 612. 26. Eckert v. Pennsylvania R. Co. \[Pa.\] 60 A. 781. 27. Plea held sufficient to raise issue of undertaking to load and overloading stock. Texas & P. R. Co. v. Edins \[Tex. Civ. App.\] 83 S. W. 253. Where the answer in an action for injuries is that plaintiff knew the condition of stock pens and facilities for unloading, and assumed the risk and was guilty of contributory negligence, a finding that he The doctrine of res ipsa loquitur applies to the carriage of live stock,\[28\] and the burden is on the carrier to show that loss or death of live animals resulted from the nature or vice of themselves.\[29\] The burden, however, is on plaintiff to show that defendant's negligence was the proximate cause of injury to stock,\[30\] and in an action for negligent delay, the burden is on plaintiff to show that the delay was negligent, a mere showing of delay is insufficient.\[31\] In the absence of evidence to the contrary, it will be assumed that the servants of a railroad company did their duty with respect to watering stock.\[32\] Evidence is admissible under ordinary rules.\[33\] Cases discussing its sufficiency are cited below.\[34\] Instructions are governed by the ordinary rules.\[35\]

SS 21. _Damages\[36\]_--Where stock is injured the measure of damages is the difference between the market value of the stock at destination in an undamaged condition and the highest realizable value as actually delivered.\[37\] Additional expenses having effect to reduce the damages are recoverable.\[38\]

- 2S. Fire in car bededed with straw. Trace v. Pennsylvania R. Co., 26 Pa. Super. Ct. \[Tex. Civ. App.\] 84 S. W. 1089. Where ac-466; Texas & P. R. Co. v. Dishman \[Tex. Civ. App.\] 85 S. W. 319. Where a carrier takes a crate containing three dogs and delivers it containing only two without explanation of the loss, it will be presumed to have occurred from the carrier's negligence. Adams Exp. Co. v. Walker, 26 Ky. L. R. 1025, 83 S. W. 106.
- 2D. Baltimore, etc., R. Co. v. Fox, 113 Ill. App. 180: Chicago, etc., R. Co. v. Woodward \[ind.\] 72 N. N. E. 558.
- 30. Peterson v. Chicago, etc., R. Co., 102 N. W. 535.
- 31. McGarry v. Chicago & A. R. Co. \[Mo. App.\] 83 S. W. 82.
- 32. Peterson v. Chicago, etc., R. Co. \[S. D.\] 12 N. W. 595.
- 33. Opinions of experts are admissible as to what is a reasonable time in which to transport cattle. Chicago, etc., R. Co. v. Kapp \[Tex. Civ. App.\] 83 S. W. 233. Experts may estimate ordinary loss of weight from shipment and increase of loss from undue delay. Atchison, etc., R. Co. v. Watson \[Kan.\] 81 P. 499. Time made on previous shipments admissible to show delay. St. Louis, etc., R. Co. v. Gunter \[Tex. Civ. App.\] 86 S. W. 938.
- 34. Evidence held sufficient on which to find that a special contract for the carriage of cattle was made. Chicago, etc., R. Co. v. Woodward \[Ind.\] 73 N. E. 810. Evidence held to show that in making live stock contact joint sersa acting not for defendant but for another railroad company. Walter v. Missouri Pac. R. Co. \[Kan.\] 78 P. 1089. Evidence held sufficient to show carrier's negligence. Missouri, etc., R. Co. v. Russell \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 591, 88 S. W. 379. Whether any damage occurred on defendant's line held question for jury. Texas Cent. R. Co. v. West \[Tex. Civ. App.\] 88 S. W. 426.
- 35. Several instructions where cattle were delayed, and arrived in damaged condition from getting down and trampled on, discussed. Houston, etc., R. Co. v. Gray \[Tex. Civ. App.\] 85 S. W. 838. Instruction held not objectionable as allowing recovery for injuries arising from bumping together of cars in switching, irrespective of negli 5 Cur. Law. CARRIERS \[OF passengers\] SS 22. 529

Part IV. CARRIAGE OF Passengers.

SS 22. _Who are passengers._\[39\]--A passenger is one who travels in some public conveyance, by virtue of a contract, express or implied, with the carrier.40 Payment of fare is not necessary,41 but there must be an intent to become a passenger,42 and an intent or a willingness to pay if requested.43 A railway mail clerk is a passenger for hire.44 But neither is an express messenger,45 a sleeping car porter,46 nor a servant employed by a railroad company and riding home after the day's work on a work train, a passenger.47 Persons boarding a train to assist passengers to enter it are not entitled to the protection accorded passengers.48

\_Trains other than passenger trains.\_49--Ordinarily one is not a passenger who boards a train not designed for such traffic,60 and no implied acceptance as passenger of one who rides on place not designed for use of passengers;51 but a person of authority may permit one to so become a passenger.62 Caretakers of live stock in transit are passengers for hire,63 though they assume the risks and inconveniences

R. Co. v. Gunter \[Tex. Civ. App.\] SS 6S. W. O'Brien \[C. C. A.\] 132 F. 593. No liability arises from failure to light depot and grounds in favor of employee of express company at a time when no express train is due, though company has been given permission to use baggage room. Texas Cent. Rainlaw to furnish them. Baltimore, etc., R. Co. v. Tison, 116 Ill. App. 48. 30. See 3 C. L. 617. 40. See 3 C. L. 617, 122. 48. Flaherty v. Boston, etc., R. Co., 186 a passenger after the carrier has refused to enter such a relation (McNeill V. Durham & C. R. Co., 185 N. C. 682, 47 S. E. 765), is said to demonstrate that the "con-tactic test" to determine when the relation the transportation of passengers, and per-begins is fallible. 5 Columbia L. R. 53, pointing out that the relation springs from duty not contract. 41 Reynolds v. St. Louis Transit Co. \[Mo.\] SS 6S, W. 50. A carrier is liable for an injury to a child whom its servant has permitted to ride in excess of his authority. Denison & S. R. Co. v. Carter \[Tex.\] SS 8. W. 52. 42. A newshoy boarding a car merely to tell papers without intending to travel to any particular place or pay fare is not a passenger. Barry v. Union R. Co., 94 N. Y. S. 449. Reynolds v. St. Louis Transit Co. \[Mo.\] SS 6S. W. 50. Instruction assuming that boy who got on car on opposite side from conductor to ride short distance intending to pay fare if demanded was a passenger as a matter of law held error. Dallas R. Kapid Transit Co. v. Payne \[Tex.\] SS 2S. W. 649. 44. Chesapeake & O. R. Co. v. Patton, 23 Aple. D. C. 113. A mail clerk is entitled to the same degree of care that a passenger for hire is. Cavin v. Southern Pac. Co., 136 F. 592; Southern Pac. Co., v. Schuyler, 135 F. 1015. Postal clerk going between cars with notice of liability to bump together, held negligent barring recovery. Ribeiro v. New York Cent., etc., R. Co., 186 M. Mass. 521, 72 N. E. 79. 45. The liability of the railroad company to him is akin to that of one of its own employees. Chicago & N. W. R. Co. v. 5 Curr. L. - 34.

that necessarily attend upon the care of stock, and the means of transportation.\[54\] The servant of a shipper riding in the car for the mutual advantage of carrier and shipper is a passenger.

\_When relation begins.\[64\]--\_One may be a passenger who has neither paid fare, purchased a ticket,\[37\] or entered the conveyance, if he has properly indicated his intention,\[58\] and where one presents himself at a railway station a reasonable time before the scheduled departure of his train,\[58\] and purchases a ticket,\[69\] with intent to take passage,\[61\] he is a passenger and entitled to protection as such until his journey ends.\[62\]

\_When relation ceases or is interrupted.\[64\]--\_The relation continues until the passenger has had a resonably safe opportunity to alight from the train and make his way from the station by the ordinary course,\[64\] and while he is transferring from one car to another, he having been furnished a ticket enabling him to do so.\[65\] On alighting from a street car in the street, a passenger becomes at once an ordinary traveler on the highway.\[66\] One who has been ejected from a train notwithstanding his possession of a ticket entitling him to ride is not a trespasser on the track.\[67\]

54. Chicago, etc., R. Co. v. Troyce \[Neb.\] one a passenger. Vandegrift v. West Jersey 103 N. W. 680; Young v. Missouri Pac. R. & B. K. Co. \[N. J. Err. & App.J. 60 A. 184. Co. \[Mo. App.J 84 S. W. 176. 62. From the tire a person places him-self under the care of the carper by presenting himself at its station for carriage \[ 5 Cur. Law. CARRIERS \[OF PASSENGERS\] $\\lx@sectionsign$ 23. 531

$\\lx@sectionsign$ 23. \_Duty to receive and carry passengers.${}^{\\text{\\text{\\textregistered}}}$--A railroad as a common carrier must accept as passengers all persons fit or entitled to travel,${}^{\\text{\\text{\\textregistered}}}$ who expose tickets valid on the train on which offered,${}^{\\text{\\text{\\textregistered}}}$ or pay or tender the regular fare, must sell tickets on demand at proper times,${}^{\\text{\\text{\\textregistered}}}$ and provide transportation at the time and to the place agreed upon.${}^{\\text{\\textregistered}}$ A rule requiring passengers to purchase tickets before entering the cars is reasonable,${}^{\\text{\\textregistered}}$ but in order that it may be enforced by ejection of the passenger or charging him an additional fare, reasonable opportunity to purchase tickets must be given.${}^{\\text{\\textregistered}}$_Through trains.${}^{\\text{\\textregistered}}$--A railroad company may adopt regulations under which certain of its trains shall stop only at the more important stations and the mere possession of a ticket reading to a certain station does not entitle the holder to passage on a train not scheduled to stop there.${}^{\\text{\\textregistered}}$_

$\\lx@sectionsign$ 23. \_See 3 C. L. 620. \_Eq. A carrier may exclude and deny transportation to any person who on account of physical or mental disability is unable to care for himself, but if the appliment is in fact able to travel alone to the knowledge of the carrier, his exclusion is a actionable. Blind man. Tillions Cent. R. Co. v. Smith \[Miss.\] 37 So. 643. Not obliged to accept passenger too drunk to take care of himself. Price v. St. Louis, etc., R. Co. \[Ark.\] 88 W. V. 575. _NOTE_. \_Blindness as ground for rejection: The defendant's agent in accordance with the rules of the company refused to sell a railroad ticket to the plaintiff on the ground that he was blind and unacceptam-panied by an attendant. Held, that the defendant is not liable in the absence of proof that its agent knew, or had reasonable grounds to believe, that the plaintiff, though blind, was qualified to travel alone. Illinois Cent. R. Co. v. Smith \[Miss.\] 37 So. 643. \_The prima fzacle duty of a carrier to accept all persons who present themselves for transportation must necessarily be subject to certain limitations made for the protection of the company. In view of the rule that a passenger who is affected with a disability of which the carrier knows, or has reason to know, is entitled to greater care and attention than an ordinary passenger it seems but fzar that the company should have the right of refusing to assume this added responsibility by requiring such persons to be accompanied by attendants. Cf. Croom v. Chicago, etc. R. Co., 52 Minn. 296. 38 Am. St. Rep. 557, 18 L. R. A. 602; Column bus, etc., R. Co. v. Powell, 40 Ind. 37. The cases which hold that a railroad may refuse to carry drunken and lassine persons rest partly upon this principle of fairness to the company, as well as upon the policy of protecting passengers from annoyance and danger. Cf. Pittsburgh, etc. R. Co. v. Vandyne, 57 Ind. 576, 18 Am. Rep. 68; Meyer v. St. Louis, etc. R. Co., 54 F. 116. Blindness alone would appear sufficient cause for rejection, unless the company's agent has reason to believe that the person is able to take care of himself. Cf. Zacherry v. Mobille & O. R. Co., 75 Miss. 746, 65 Am. St. Rep. 67, 41 L. R. A. 855. _70_. _Two thousand five hundred not excessive for rude and insolent denial of admis-ston to car for which plaintiff had a ticket and in which he was entitled to travel.${}^{\\text{\\textregistered}}$_

$\\lx@sectionsign$ 23. _Duty to receive and carry passengers.${}^{\\text{\\textregistered}}$_--A railroad as a common carrier must accept as passengers all persons fit or entitled to travel,${}^{\\text{\\text{\\textregistered}}}$ who expose tickets valid on the train on which offered,${}^{\\text{\\text{\\textregistered}}}$ or pay or tender the regular fare, must sell tickets on demand at proper times,${}^{\\text{\\textregistered}}$ and provide transportation at the time and to the place agreed upon.${}^{\\text{\\textregistered}}$ A rule requiring passengers to purchase tickets before entering the cars is reasonable,${}^{\\text{\\textregistered}}$ but in order that it may be enforced by ejection of the passenger or charging him an additional fare, reasonable opportunity to purchase tickets must be given.${}^{\\text{\\textregistered}}$_Through trains.${}^{\\text{\\textregistered}}$--A railroad company may adopt regulations under which certain of its trains shall stop only at the more important stations and the mere possession of a ticket reading to a certain station does not entitle the holder to passage on a train not scheduled to stop there.${}^{\\text{\\textregistered}}$_

$\\lx@sectionsign$ 24. \_See 3 C. L. 620. \_Eq. A carrier may exclude and deny transportation to any person who on 532 CARRIERS \[OF passengers\] $ 23. 5 Cur. Law.

_Ejection of passengers._\[77\]--A passenger failing to produce transportation valid on its face,\[78\] or pay fare,\[79\] though without his own fault,\[80\] may be expelled at a reasonably safe place and time,\[81\] the carrier using no more force than is necessary for the purpose, and for such an ejection the carrier is liable only for actual damages.\[32\] If the ejection is unauthorized,\[83\] or is malicious,\[84\] or unnecessarily violent,\[85\] or insulting and humiliating,\[86\] and the carrier participates or ratifies r.s. Chicago, etc., R. Co. v. Stratton, 111 \[Co. v. Stratton, 111 \[III. App. 142\] Where the ticket upon its face one takes passage upon a train which he is one that does not entitle plaintiff to pass. knows does not stop at his destination, it sage, he cannot recover for ejection. Mile-size book made to "Mr." presented by worm-an. Parish v. Ulster & D. R. Co., 99 App. Div. 10, 90 N. Y. S. 1000. Ticket against which statue of limitations has run. Cas-situ v. Galveston, etc., R. Co. v. Wilming, 6 Ohio C. C. (N. 8) 137. App.\] $ 2 S. W. 806. A merely ambiguous ticket does not justify ejection, and where the passenger leaves at the next station, is was sold, no invalidity appears, Jevons v. On ejection. Boling v. St. Louis, etc., R. Co. \[Kam.\] $ 78 P. S17. An ejection is wrongful where the passenger tended a transfer which the carrier was about to and in fact did issue, though it claims that it did not at that time issue such transfers, Chier v. Interurban St. R. Co., 92 N. Y. S. 781. Statement of ticket agent to one who has lost his ticket that conductor will let him ride is not binding on the carrier. Texas & P. R. Co. v. Smith \[Tex. Civ. App.\] $ 8. W. 852. Refusal to stamp return ticket so as to validate it enclose passenger to ride on it unstamped. Texas & P. R. Co. v. Payne \[Tex.\] $ 87 S. W. 330. Return ticket stamped and signed to long before offered for passage. Boling v. St. Louis, etc., R. Co. \[Mo.\] $ 88 S. W. 35.

**79.** Conductor is not obliged to accept pawn of jevhers for passage, the company's rule requiring ticket or cash. Texas & P. R. Co. v. Smith \[Tex. Civ. App.\] $ 84 S. W. 852.

**80.** A passenger who is in fact without transportation to his destination, though without fault on his part, and because of the mistake or wrong of some agent of the carrier, should pay his fare and take his remedy against the carrier for breach of contract. Chicago, etc., R. Co. v. Stratton, 111 \[III. App. 142\]. Falling in this, he is liable to ejection. Id. Where plaintiff presented an order for a ticket to the agent and he told her she could travel on it and gave it back to her without a ticket, the carrier is liable for her ejection. Chase v. Atchison, etc., R. Co. \[Kam.\] $ 79 E. 153. Agent at destination told plaintiff ticket would be good. Boling v. St. Louis, etc., R. Co. \[Mo.\] $ 88 W. 35.

**81.** A passenger in a drunken condition who refuses to state his destination or pay fare may properly be ejected at a point where lighted houses are near. Korn v. Chesapeake & O. K. Co. \[C. A.\] $ 125 F. 897. The knowledge of a station agent of a passenger's stupor from the use of liquor or drugs is not necessarily imputable to the company, as it is not his duty to pass upon a passenger's fitness to travel or Inform the conductor as to it. Id. It is a trespass to eject a passenger either when the train is in motion or with unnecessary force, though he is subject to ejection. Chicago, etc., R.

the acts of its servant therein,\[87\] it is liable in substantial,\[88\] compensative and punitive damages,\[89\] though the passenger might have avoided ejection by paying another fare.\[90\] A carrier is not liable for an assault on an ejected passenger by the conductor after the ejection is complete.\[91\]

_Delays.\[92\]--The passenger is entitled to be transported with reasonable expedition,\[93\] or be reimbursed in such actual damages as may reasonably be anticipated by the parties.\[94\]_

SS 24. \_Rates and fares, tickets and special contracts.\[95\]--A ticket sold at full regular fare is generally regarded as a mere token or evidence of a contract which the law creates,\[96\] but a ticket sold at a reduced rate and purporting itself to be a special contract constitutes the contract, and lawful limitations expressed thereon are binding.\[97\] In the absence of fraud,\[98\] a contract of carriage of a passenger is binding alike on the passenger and the carrier,\[99\] and where the agent at destination refuses to stamp and sign a round trip ticket, the passenger has a right to ride on it without stamping and signing.\[1\] A carrier is liable for the injuries resulting from the act of its agent in improperly routing passengers.\[2\] The redemption

- \*\*S7. A street railroad company is not liable for the wrongful and unnecessarily violent ejection of a passenger by its conductor where it did not participate either by authorizing or approving it. Peterson v. Middlesex & S. Traction Co. (N. J. Err. & App.) 59 A. 456. Where an action against a street car company for wrongful and malicious election is founded on its approval by retaining the conductor in its employ, evidence that he had been presented minimally and acquitted is admissible. Id. The motorman of a street car whose only duty is to operate the machinery is not within the scope of his authority in ejecting a boy trying to ride on the running board of the car. Drchhagen v. Union Depot R. Co., 186 Mo. 258, 85 S. W. 344. \*\*S8. A passenger wrongfully ejected from a car after paying his fare is entitled to substantial damages. $20. Baltimore & O. R. Co. v. Kitchin \[C. C. A.\] 135 F. 520. \*\*S300 for ejection held excessive. Chicago, etc., R. Co. v. Stratton, 111 Th. App. 141. \*\*S400 reduced to $200 for being ejected. Gulf, etc., R. Co. v. Russell \[Tex. City. App.\] \*\*S5 S. W. 299. Insulting language is proper matter for aggravation of damages. Ostergoung v. St. Louis Transit Co., 108 Mo. App. 708, 84 S. W. 179. May recover for falling into cattle guard after ejection between stations. Houston, etc., R. Co. v. Berry \[Tex. Civ. App.\] 84 S. W. 255. A grid of 15 put off at the wrong station and invited to remain over night with family cannot recover or injuries received by immediately walking to destination. in rain. Cain v. Louisville & N. E. Co. (Ky.) 84 S. W. 583. Though no actual force was used. Summerfield v. St. Louis Transit Co., \[Mo. App.\] 84 S. W. 172. Refusal to change seat that screen separating races might be moved. Southern Light & Traction Co. v. Compton \[Miss.\] 38 So. 629. If excessive force is inspired by malice or ill wall, or plaintiff is reckelessly or wanundy thrown from the car, punitive damages are recoverable. Lexington R. Co. v. O'Brien \[Ky.\] 84 S. W. 1170. **90.** Breen v. St. Louis Transit Co., 108 Mo. App. 443, 83 S. W. 998; Summerfield v. St. Louis Transit Co. \[Mo. App.\] 84 S. W. 173. Agent at destination refused to stamp return ticket. Texas & P. R. Co. v. Payne \[Tex.\] 87 S. W. 330. Ability to pay fare may be shown on damages recoverable. Texas & P. R. Co. v. Lynch \[Tex. Civ. App.\] 87 S. W. 884. **S9.** Chicago, etc., R. Co. v. Stratton, 111 Th. App. 142. **S9.** See 3 C. L. 626. **S9.** The carrier must exercise such care and effort to avoid delay to a passenger as its due under the circumstances. Latour v. Southern R. Co. \[S. C.\] 51 S. E. 265. **S9.** Exemplary damages are not recovable for malicious acts of servants unless the carrier ratifies. Townsend v. Texas & K. D. R. Co. \[Tex. Civ. App.\] 13 Tex. C. Rep. 456. **S8.** W. 302. A compliant a-logging special damages for deisy in transportation arising from missing a business engagement and loss bf a contract depending thereon must aver the names of the parties plainly expected to meet. Id. **95.** See 3 C. L. 627. **96.** Buling v. St. Louis, etc., R. Co. \[Mo.\] 88 S. W. 35, citing cases. **98.** There is no fraudulent concealment on the part of a railroad company selling a round trip ticket arising from the fact that a strike of its employees is imminent, and it may not be able to perform the return portion within the time limit. Elliott v. Southern Pac. Co., 145 Cal. 441, 79 P. 420. \*\*99.

of unused tickets is required by statute in some states.3 Where a passenger is ejected by a connecting carrier because of a defect in his coupon ticket, his cause of action against the carrier selling him the ticket arises in the county where the ejection occurs and not where he bought the ticket.4 For negligent failure to furnish transportation as agreed, the carrier is liable; 5 but in the absence of notice of the purpose of the trip is liable only for lost time and necessary expenses.4

_Conditions and limits._'--The time within which a ticket sold at reduced rates may be used may be limited,8 likewise its negotiability, and it may provide for identification of the holder by signature or otherwise.9 A ticket containing no limitation on its face or under a regulation of the railroad company may ordinarily be used at any time within the statute of limitations; 10 but a condition as to the time of use plainly expressed on the ticket will be presumed to have been consented to by the purchaser in the acceptance and use of the ticket itself.11

_Dealing in nontransferable special rate tickets_ has been restrained.12

SS 25. \_General rules of liability for personal injuries. A. Nature and extent of liability generally.\_13--A contract limiting the liability of a carrier of passengers is against public policy; 14 but a railroad company may lawfully exempt itself by

3. The statute of Texas containing such \[405; Railroad Co. v. Price, 62 Kan. 327, 62 provision is vold. Laws 1893, p. 97, c. 73. Texas & P. R. Co. v. Mahaffey \[Tex.\] 84 S. R. 109 Iowa, 136, 80 N. W. 223; St. Clair v. Kan-

1. Georgia, etc., R. Co. v. Pearson, 120 Ga. 284, 47 S. E. 904.

1. Illinois Cent. R. Co. v. Head \[Ky.\] 84 S. W. 751; St. Louis S. W. R. Co. v. Culver \[Tex. Civ. App.\] 86 S. W. 628.

1. Damages for missing father's funeral are not recoverable. Illinois Cent. R. Co. v. Head \[Ky.\] 84 S. W. 751. Anxiety, distress and mental suffering of husband waiting for wits is recoverable. St. Louis S. W. R. Co. v. Culver \[Tex. Civ. App.\] 86 S. W. 628.

1. See 3 C. L. 628.

1. Elliott v. Southern Pac. Co., 145 Cal.

41, 79 P. 420. Where the carrier is not able to perform as to the return coupon of a round trip ticket within the time limit, the holder may return in any other manner and recover his damages; but he is not entitled to use the return coupon at any later period the may select. Id. Tickets may be limited as to time of use to a reasonable time. Limit of one day held reasonable. Freeman v. Atchison, etc., R. Co. \[Kan.\] 80 P. 592.

Note "Time Limit for Presentation of Railroad Tickets," a critical note citing many cases. See 3 Mich. L. R. 230.

9. Bolling v. St. Louis, etc., R. Co. \[Mo.\] 88 S. W. 35. A ticket sold to be used by one person going and another returning and which bears no signature is not void when presented by that other, though it states that it shall be used only by the original purchaser whose signature it bears. Jevons v. Union Pac. R. Co. \[Kan.\] 78 F. 817.

1. Freeman v. Atchison, etc., R. Co. \[Kan.\] 80 P. 592. A first class unlimited ticket is good only during the period of limitations which begins to run the date of its issue. Cassiano v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 82 S. W. 806.

1. Freeman v. Atchison, etc., R. Co. \[Kan.\] 80 P. 592, citing Dangerfield v. Atchison, etc., R. Co. \[62 Kan.\] 85, 61 Pac.

## 5 Cur.' Law. Carriers \[OF passengers\] SS 25A.

contract with an express or sleeping car company from liability for negligent injuries to employees of the latter companies.\[15\] Though there may be risks which a railway postal clerk must assume different from those of an ordinary passenger, those risks do not include negligence of the railroad company in the operation of its trains.\[16\] A conductor who accepts an unattended passenger too drunk to take care of himself acts within his authority.\[17\]

The carrier which owns the road is liable for the negligence of another which runs trains over it with the owner's authority, regardless of the provisions of the contract between them,\[18\] and a consolidated railroad company of South Carolina is liable for an injury to a passenger committed by a constituent company prior to the consolidation.\[19\]

Degree of care required.\[20\] A carrier of passengers is not an insurer of their safety,\[21\] but is bound to a very high degree of care which is variously defined.\[22\]

after the stock on the way. Held, that the \[44 L. J. Q. B. 164, 38 L. T. (N. S.) 306, 23 plaintiff's decedent was a bona flide employee of the owner of the cattle; that he \[47 Tr. 178, 41 L. T. (N. S.) 197\]; Bicknell v. was a passenger for hire; and that the release of liability for damages on account of the carrier's negligence was invalid.\[36; Meuer v. Chicago, etc. R. Co. S. D. Weaver v. Ann Arbor R. Co. Mich.) 102 N. 658, 49 Am. Str. Rep. 898, 25 L. R. A. 81,-3 Mich. L. R. 659.

This decision is interesting because of the Michigan holding that railroads are not common carriers of live stock. Railroad Co. v. McDonough, 31 Mich. 165, 4 Am. Rep. 466; Heller v. R. Co., 199 Mich. 5, 66 N. W. 667, 63 Am. St. Rep. 541; McKenzie v. R. Co. (Mich.) 100 N. W. 260. Many cases support the doctrine that a carrier may properly impose any condition it sees fit upon its granting a purely voluntary privilege.\[37\] Price v. St. Louis, etc., R. Co., 150 Arab. 365, 23 N. E. 205, 5 L. R. A. 846; 6 Cyc. 579, 53. Thus where a railroad company grants privileges to a sleeping car \[47\] where a railroad company has leased its company, a contract by which it relieves itself from liability for injuries to employees \[47\], it is liable for injury to a of such a company is valid. Russell V. Pittshurg, etc., R. Co., 167 Ind. 305, 61 N. 658, 61 N. 658, 61 N. 658, 61 N. 659, 61 N. 659, 62 N. 659, 63 Am. St. Rep. 215, 55 L. R. A. 253. And a contract relieving a railroad company from liability for injuries to express \[47\], which536 CARRIERS \[OF PASSENGERS\] SS 25$\\lambda$. 5 Cur. Law.

Carriers of passengers are held to the exercise of the highest degree of care consistent with their undertaking,\[28\] irrespective of the means of conveyance,\[24\] the rule applying equally to street railroads,\[25\] elevators,\[26\] and the like, from the time passengers approach to board the car until they alight,\[27\] and to injuries in the production of which the passenger is a factor.\[28\] There must be some negligence on the part of the carrier or its servants,\[29\] and the negligence complained of must be the proximate cause of the injury,\[30\] though it is no defense that the negligence of an 5 Cur. Law. CARRIERS \[OF passengers' $ 25B. 537

other "1" or an act of God, concurred." There is no liability for casualties which the exercise of reasonable foresight would not have anticipated or due care have avoided,"33 and carriers are not bound to so restrain their passengers that no act of their own can put them in unnecessary danger; 34 but a passenger too drunk to take care of himself is entitled to ordinary care."35 Failure to perform a statutory duty is negligent,"36 but speed ordinances are not available to a passenger leaving a moving train."37

(SS 25 ) \_B. Contributory negligence of passenger.36--\_A carrier is not responsible for injuries proximately resulting from the passenger's negligent failure to use his natural senses for his own safety.34 Passengers are required, however, to exercise only ordinary care,"40 having a right to assume that conveyances, stations and approaches are reasonably safe,"41 and if a passenger places him-

Parker v. St. Louis Transit Co., 108 Mo. 36. But failure to stop at a railroad App. 465, 83 S. W. 1016. Where, after a collision in which plaintiff was injured, persons from a moving train. Mercher v. Socone stated in her hearing that an-

Texas Midland R. Co. \[Tex. Civ. App.\] 85 other train was approaching and there

8 W. 468. Allowing passenger to leave car

would be another collision, whereupon she

in motion. McHugh v. St. Louis Transit

left the car and was poisoned by ivy along

Co. \[Mo.\] 88 S. W. 853.

the track, the collision was the proximate

77. St. Louis S W. R. Co. v. Highnote

cause of the poisoning. Estes v. Missouri

78. St. Louis S W. R. Co. v. Highnote

01. St. Louis S. W.

self in a position of danger while alighting in the exercise of ordinary care, he is not for that reason negligent.4 Contributory negligence cannot arise where a passenger too drunk to take care of himself is knowingly accepted for transportation and injured.43

\_Acts due to impulse of sudden danger_44 are regarded with less strictness than others.45

\_Acts done at direction of employees.46--Directions of the carrier's employes 47 may prevent an imputation of negligence,48 unless the danger is so apparent that no one of ordinary prudence would follow them.49

\_Boarding a moving train or car_50 is not generally negligence as a matter of law,51 unless the fact of motion is the sole producing cause of the injury sued for,52

form In front of an approaching train is not not fatal to recovery. Shanahan v. St. Louis negligent, he having a right to presume the carrier has made it reasonably safe. McGurre. Unterroborsh R. T. Co., 93 N. Y. S. 316. Passenger stepping into hole in platform is not negligent for not staying in waiting room until time of departure nor for deviating thirty feet from direct line from waiting room to conveyance. White v. Seattle, E. & T. Nav. Co., 36 Wash. 281, 78 P. 909. A passenger may leave the conveyance during the stop at an intermediate station for the purpose of transacting his private business and depend on the ordinary safety of the station premises with:

out being responsible for Injuries arising therefrom. Abbott v. Oregon R. Co. \[Or.\]

80 P. 1012. A passenger provided with a well lighted ear in which to wait for his train on a dark night is guilty of contributory negligence where he leaves it to walk for exercise on the unlighted station platform. Id. Heid not negligent for passenger to alight from long train in the night, part of train length from station platform and attempt to follow track to station. Chesapeake & O. K. Co., Harris, 103 Va. Law, 725, 58 A. 592. Flatmill may show 685, 95 B. E. 997: Chesapeake & O. K. Co., Smith, 103 Va. 326, 49 S. E. 487. Contributory negligence of passenger walking into open elevator shaft held question for jury. Morgan v. Saks \[Ala.\] 38 So. 848: Phillips Co. v. Pruitt, 26 Ky. L. R. 831, 82 S. W. 628. It is not negligence to stand or walk in an ordinary passenger coach on a passenger train. St. Louis, etc., R. Co. v. Taylor \[Ark.\] 84 S. W. 1035.

42. Johnson v. Yonkers R. Co., 101 App. Div. 65, 91 N. Y. S. 508. The passenger under the circumstances of this case was charged with the duty of looking. where she stepped in alighting from the car. Clinnati Traction Co. v. McKee, 6 Ohio C. C. (N. S.) 426.

01. Price v. St. Louis, etc., R. Co. \[Ark.\]

88 S. W. 575.

44. See 3 C. L. 645.

01. Whether passenger acted with ordinary prudence in leaping from moving carl under apprehension of danger is a question for the jury. Mannon v. Camden Interstate R. Co. \[V. Va.\] 49 S. E. 450; Cherio v. New Orleans R. Co., 118 La. 761, 37 So. 716; Kight v. Metropolitan R. Co., 21 App. D. C. 494. Failure to let go of car starting before plaintiff had time to board. Guenther v. Metropolitan R. Co., 23 App. D. C. 493; Shanahan v. St. Louis Transit Co. \[Mo. App.\]

88 S. W. 783. Plaintiff command to conduct to release him from moving carl held 5 Cur. Law. CARRIERS \[OF PASSENGERS\] $\\lx@sectionsign$ 25B. 539 or the speed of the train and the difficulties in the way are so obviously dangerous that a person of ordinary prudence would not attempt it.\[83\]

_Riding in dangerous position_\[54\] is generally negligent,\[55\] unless required or permitted under circumstances of necessity;\[56\] But a caretaker of live stock is not negligent per se in riding with the stock instead of in the caboose.\[57\]

_Riding on platform or running board of street car_\[58\] is not generally negligent as a matter of law,\[59\] the car being full,\[60\] and the carrier being accustomed to permit it,\[61\] but it may be negligent under special circumstances.\[62\]

_Riding on platform of railroad train_\[59\] is generally regarded as prima facie negligent, in the absence of excusing circumstances,\[64\] and statutes in many states provide against recovery in such cases.\[63\]

215 III. 289, 74 N. E. 155; McKee v. St. Lonis 55. See 3 C. L. 646. Transit Co., 108 Mo. App. 470, 83 S. W., 1013; Lewis v. Houston Zkoc. Co. \[Tex. City. App.\], Wash. 600, 77 T. 1055; Cincinnati, etc. R. Co. 13 Tex. Ct. Rep. 378, 88 S. W. 489. It is in Pennsylvania. Bonifrois v. United Tract. \[Ind. App.\] 72 N. E. 189. Passing along run-eral courts. Lauteruter v. Manhattan R. Co. \[C. C. A.\] 128 T. 540. Plaintiff stepped on moving car but before reaching place of N. J. Law. 725, 258. 497. To stand on the safety was struck by object near track. Tolm v. Pennsylvania R. Co. \[Pa.\] 60 A. 99. \[Theors is room inside is negligent per se. Depends on circumstances. Atchison, etc., R. Co. v. Holloway (Kan.) 80 P. 31. Held 59 A. 270. Riding on front platform of or-neglent. Meeks v. Atlanta & B. R. Co. \[Ga.\] 80 S. E. 99. Question for jury. Shan-unnecessary. Klefman V. Dry Dock, etc., ahan v. St. Louis Transit Co. \[Mo. App.\] 83 R. Co., 93 N. X. S. 741. Passenger who gets SW. 783. Whether plaintiff ought to have known speed had been checked not to take in the motion and is thrown off by a sudden fork on passengers but to get past break in crit-cut and that speed was subject to sudden acceleration held for jury. Len v. St. Louis Transit Co., 110 Mo. App., 458, 85 W. 137. \[Ind. App.\] 74 N. E. 34. Question for jury Car going no faster than man's walk. Spencer v. St. Louis Transit Co. \[Mo. App.\] 86 S. W. 593. Passenger on crowded car struck by pass- \[N. J. Law\] 58 A. 1018; Texas Midland R. Co., 93 N. X. S. 721. Passenger injured PASSenger attempting to board moving car in close proximity to barrier erected be- \[Coumba, 24 App. D. C. 59. Where a com-cause of excavation in street cannot recover for injury from it. Berry v. Utica Belt Line \[Th. App.\] 74 N. E. 970. One board- \[Th. App.\] 75 A. 1018. Ing a moving car at an unaccustomed place of obvious danger cannot recover for an in- \[Th. App.\] 760. Ing duty to so operate the cars as to main- jury there sustained. Evidence held to show that defendant was not a carrier of passenger. Coney Island & B. R. Co., 89 App. Div. 385, gers while its car was in car barn. Kroeger 85 N. X. S. 958, ctling many cases. v. Seattle Elec. Co. \[Vwash.\] 79 P. 111. 61. Custom of car company to permit rid- \[Kan.\] 80 P. 31. Speed of eight or ten miles an hour makes it negligent per se. Id. \[Th. App.\] 75 A. 1018. See 54. See 55 C. L. 646. 65. To attempt to ride on the bumper of an electric car is negligence and where in- \[Th. App.\] 760. Ing aways with there can be a recovery only in upon a showing of \[Th. App.\] 760. Ing aways with negligence on the part of employees of the company. Co- \[Th. App.\] 760. Ing aways with negligence on running board. Stone v. Lewiston, 236. 66. When passengers are permitted and \[Th. App.\] 760.

Allowing body to project from car. \[66\]--A passenger who because of illness thrusts his head from a car window over a screen covering the lower half of the window and is injured by a pole in close proximity to the car is negligent. \[67\]

Acts preparatory to alighting, \[68\] such as arising from one's seat \[69\] and going to the platform, \[70\] are not necessarily negligent. \[71\]

Leaving moving train or car \[72\] is negligent or not, dependent on the circumstances, \[73\] and is generally a question for the jury, \[74\] unless the injury proximately Jackson v. Natchez & W. R. Co. \[La.\] 38

Tract. Co. v. Hauthorn, 211 Ill. 367, 71 N. E. So. 701; Morgan v. Lake Shore & M. S. R. Co. \[Mich.\] 101 N. W. 836. A passenger who leaves the car after the station is called but before the train stops and stands on the platform cannot recover for an injury caused by the steps striking a baggage truck along the track. Fletcher v. Boston & M. R. Co. \[Mass.\] 73 N. E. 552.

Note Plaintiff was a passenger on defendant's excursion train. All seats and alsles were full and passengers were on the platforms. Plaintiff stood in the alsle of the smoker until he became faint, as a result of bad air. Not being able to get near a window, he went out on the platform, where he became unconscious and fell off. Held, he was not guilty of contributory negligence as matter of law. Morgan v. Lake Shore, etc. R. Co. \[Mich.\] 101 N. W. 836. The decisions are at variance as to whether riding upon the platform under such circumstances is contributory negligence as matter of law. It has been held not to be in Willis v. L. I. R. Co., 34 N. Y. 670, and Werie v. L. I. R. Co., 98 N. Y. 650. In Ward v. L. I. R. Co., 103 WIs. 216, 78 N. W. Chicago, etc., R. Co., 103 WIs. 216, 78 N. W. 442, it is held to be a question for the jury. In Rolette v. G. N. R. Co., 91 Minn. 16, 97 N. W. 431, it is held negligence if there be standing room in the alsles. Defendants' contention that riding on the platform is prima facie negligent seems to be supported by the weight of authority and is based on the following cases: Cleveland, etc., R. Co. y. Moneyhun, 146 Ind. 147, 44 N. E. 1106, 34 L. R. A. 141; Worthington v. Central Vt. R. Co., 64 Vt. 107, 15 L. R. A. 326; Elickey v. B. & L. R. Co., 14 Allen \[Mass.\] 429; C. & A. R. Co. v. Hoosey, 99 Pa. 492, 44 Am. Rep. 120, and Rolette v. G. N. R. Co., 91 Minn. 16, 97 N. W. 431. But the court held that all these cases recognize the rule that the passenger is necessarily on the platform because of conditions created by the railroad company, he is not precluded from recoverings damages. This tends to raise a question in each case as to what constitutes necessity. Two of the justices dissent on the ground thaj. plaintiff was justified by no serious necessity, \[33\] Mich. L. R. 406.

65. Comp. Laws, & 8303. Morgan v. Lake Shore & M. S. R. Co. \[Mich.\] 101 N. W. 836.

01. See 3 C. L. 647.

01. Christensen v. Metropolitan St. R. Co. \[C. C. A.\] 137 F. 708.

01. See 3 C. L. 647. Notice to a motorman of intention to alight is not sufficient to relieve a passenger from contributory negligence. Notice should be to conductor. Wehlenberg v. Cincinnati Tract. Co., 2 Ohio N. P. (N. S.) 271, 15 Ohio Dec. N. P. 101. Failure to take hold of the rail or bar while riding on the platform preparatory to alighting is not necessarily negligent. Chicago Union 5 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 26. 541

resulted from the act of alighting while the car was in motion and without invitation,78 or the speed was such that no reasonably prudent person would attempt it.78

\_Alighting at unusual place_71 is not necessarily negligent,78 and an invitation by one in charge of the train to alight at a place other than the station is sufficient authority for the passenger to do so.78

SS 26. \_Condition and care of premises.80--Reasonable care with respect to the safety of stations and grounds,81 and light and heat therein, is required.82

question of law. East St. Louis R. Co. v. **81.** Must exercise reasonable care in providing and keeping safe its depot and grounds, Glenn v. Lake Erte & W. R. Co. App. J83 S. W. 735: Chicago Union Trac. Co. v. Olsen, 211 III. 255, 71 N. E. 885; Birming-bam R., L. & P. Co. v. Wilm **(LaLa). 38 So.** and platforms as is sufficient to protect pass- and platforms as is sufficient to protect pass- and? **37 S. W. 467. An Instruction**

**where** may be construed as requiring a\*\*

**where** can be construed as requiring a\*\*
Separate waiting rooms for white and colored passengers are required in some states. \[82\]

SS 37Means and facilities of transportation, \[84\] such as tracks with their appliances, \[85\] engines or motive power, \[86\] cars, \[87\] with their platforms, \[88\] couplings, \[89\] and other accessories, \[90\] and passenger elevators, \[91\] must be maintained at the highest degree of efficiency that human care, vigilance, and foresight can achieve under the circumstances. Failing in this the carrier is responsible for every injury proximately resulting from the defect. Failure to equip a train with the tools usually carried for use in case of accident will render its owner liable for the additional suffering to which a passenger is subjected by reason of delay in releasing him from a wreck, irrespective of responsibility for the wreck or contributory negligence in being caught by it. \[92\]

Separate accommodations for white and colored passengers \[93\] are required by statute in many states, \[94\] and such statutes are enforceable by indictment, \[95\] to which unavoidable accident is a defense. \[96\]

SS 28Operation and management of trains and other vehicles. \[97\]That high degree of care which skillful and practical railroad operatives would exercise under similar circumstances, \[98\] including a reasonable degree of presence of mind

SSS. Accommodations need not be equally \[500: Falkins v. Boston El. R. Co. \[Mass.\] 74 commmodious. Indictment held bad for failures to specify Inequality. Choctaw, etc., R. Co. v. State \[Ark.\] 87 S. W. 426.

SS 4. See 3 C. L. 633.

SS5. That there was a stone on the track causing injury to a street car will not ab- \[W\]. R. Co. \[W\]. 80 P. 1100.

solve its owner unless it had used due care to prevent injury from that source. Indlan- \[W\]. R. Co. v. Schmidt, 163 Ind. 360, 71 N. E. 201. That the trolley post which struck plaintiff was slightly nearer the track than others does not establish negilience. Bridges v. Jackson EL R., Light & Power Co. \[Mass.\] 88. 788.

SS6. Kelly v. Chicago & A. R. Co. \[Mo. App.\] 87 S. W. 588.

SS7. Screens of large mesh across the lower half of windows of a trolly car on the side near which the poles stand are a sufficient protection and warning to passengers not to allow any portion of their bodies to project from the car on that side. Christensen v. Metropolitan St. R. Co. \[C. C., A.\] 137 F. 708. Instruction on duty to keep fastenings of windows safe held bad as taking question from jury. International, etc., R. Co. v. Hubbles \[Tex. Civ. App.\] 82 S, W. 1062. That the guard rail was down on the side on which plaintiff was struck by a trolly post is not per se negligent. Bridges v. Jackson EL R., Light & Power Co. \[Miss.\] 38 So. 788. Whether open car with seats projecting beyond floor is negligent as to children held question for jury. Northern Texas Tract. Co. v. Roye \[Tex. Civ. App.\] 86 S. W. 621. Not absolutely bound to furthest safe seats. Boyles v. Texas & P. R. Co. \[Tex. Civ. App.\] 86 S. W. 936. Injury by defective door fastening allowing door to slan on passenger. Texas & P. R. Co. v. Leekey \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 496, 87 S. W. 1168.

SS8. Leaving an open space between the platforms of cars made necessary by curves in the road, and allowing passengers to pass from car to car at stations without warning of the space is not negligent. Welch v. Boston El. R. Co., 187 Mass. 67, 72 N. E. \[S\]. 88. \[S\].

## 5 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 28.

in the presence of danger," must be exercised. High speed, when accompanied by other dangerous conditions,1 and unnecessary and unusual jerks and bumps,2 on cars and trains other than freight and mixed trains,3 are negligent. The over-crowding of cars4 and station platforms 6 may of itself be negligence, and over-crowding always imposes on the carrier a higher degree of care in the operation of its trains.6 Running a car or train past a station platform where passengers are waiting,7 or past another car or train where passengers are alighting,8 may be

negligent. Passengers are entitled to warning of dangers unknown to them but known to the carrier's servants." Reasonable regulations of the conduct of passengers may be adopted.10

SS 29. \_The duty to protect passengers_11_renders a carrier liable for an assault,12 an unintentional injury,13 a malicious arrest,14 or an injury to feelings because of insulting language 15 by a conductor,16 other employee,17 fellow-passengers,18 and strangers;10 but not for injury to reputation resulting therefrom,20 and not if the assault was brought on by the passenger's own acts,21 or was entirely beyond the

9. Failure to warn an intoxated pass-

senger of the danger of going out on the platform of a car when the servant of the

s47, 70 N. E. 857. Threats to arrest. Levi-carrier knows of his purpose is negligence,

dow w. Starin \[Conn.\] 60 A. 123. Insulting warnating a recovery for injuries from

language by conductor. Georgia R. & Elice,

being thrown from the platform. Fox v.

Mchoigan Cent. R. Co. (Michel.) 101 N. W. 624.

drasn to accept transfer and resistance to

Advice by the ticket agent to a belated pass-

passenger's efforts to leave ear. Five hun-

senger to get aboard a moving train is not

dred dollars punitive and $25 compensatory

an intentional wrong so as to entitle him

damages held not excessive. Mueller v. St

to punitive damages for a resulting injury.

Pickett v. Southern R. Co., 69 S. E. 445, 48

270. Whether carrier was negligent in

s. E. 466. Vhere passengers are invited

sither expressly or impligently to get off a

car and exposing them to insults of drunken

crain at a place other than that at which

men on car platform held question for jury.

they insually align, and there is any spe-

Cinchant, etc., R. Co. v. Taylor \[Ky.\] 85

cial danger attending their approach to the

S. W. 168.

station, it is the duty of the railway com-

pany to warn them of such danger and to

ad them in reaching the station in safety;

cax, is also the agent of the carrier in his

especially is this true in the night-time,

relations to passengers, Blake v. Kansas

Chesapeake & O. R. Co. v. Smith, 103 Va.

Clity So. R. Co. \[Tex. Civ. App.\] 85 S. W.

326, 49 S. E. 487; Chesapeake & O. R. Co. v.

430.

Harris, 103 Va. 326, 49 S. E. 987. Where

17. Brackeman. Illinois Cent. R. Co. v.

the conductor tells a passenger to pass

Winslow \[Ky.\] 84 S. W. 1178.

through the car to find a seat, it is his duty

18. Illinois Cent. R. Co. v. Winslow

to warn the passenger as to the existence

(Ky.\] 84 S. W. 1175. Fellow-passenger.

of a nearby-curve or to so control the car

Stutsky v. Brooklyn Heights R. Co., 94 N.

as to obviate the danger. Chicago City R.

Y. S. 433. Immaterial that no physical

Co. v. McCaughma, 216 IL 202, 74 N. E. 819.

Jury appears. Plaintiff was insulted and

10. Where the seats are all accepted and

a passenger is standing on the floor of the

car in front of another passenger, the con-

Civ. App.\] 85 S, W. 1065. Carrier is liable

ductor has no right to compel him to take

his place in front of some other passenger.

Guarello v. Union R. Co., 94 N. Y. S. 538.

11. See 3 C. L. 686.

01. Houston, etc., R. Co. v. Batchelter \[Tex. Civ. App.\] 84 S. W. 270. Passengers

Shooting and exploding dynamite unre-

Civ. App.\] 83 S. W. 902; Flynn v. St. Louis

Transil Co. \[Mo. App.\] 87 S. W. 560. Steam-

v. Flake \[Tenn.\] 88 S. W. 326.

boat owner is liable for assault by captain

and threats to arrest for attempting to

draw. Levidow v. Sthri \[Conn.\] 60 A. 123.

Evidence held insufficient to support ver-

did for plaintiff based on assault by con-

ductor. Guarello v. Union R. Co., 94 N. Y. S. 538.

s. E. 538. Duty exists until passenger has

safely alighted. Conductor followed passenger off car. O'Brien v. St. Louis Transit

to a passenger at the hands of a mob

Co., 185 M. 263, 84 S. W. 93.

13. The carrier is responsible for an

jury to a passenger caused by the conductor

falling against him irrespective of the con-

ductor's competency or the carrier's notice

thereof. Spinney v. Boston El. R. Co. \[Mass.

## 5 Cur. Law. CARRIERS \[OF PASSENGERS\] $ 30.

Scope of the employe inflicting it.22 A carrier is not responsible for the act of a passenger which it had no opportunity to anticipate and prevent.23 A passenger directed by the porter to ride in the smoker on entering the train and not requesting any other seat cannot recover for sickness caused thereby.24

SS 30. \_Taking up or setting down passengers.25--A carrier is bound to exercise the greatest care consistent with the operation of its cars towards its passengers, not only while they are on the cars but while they are in the act of boarding them.26 Trains must stop a sufficient time to allow passengers to board with safety,27 considering their age and physical infirmity,28 including all who are reasonably supposed to be passengers; 29 but a carrier owes no duty to hold its train for a belated passenger,30 and there is no negligence in starting after all are safely on except late comers and those as to whom there is no notice of intention to board.31 Slowing a car in obedience to a signal may be an invitation to board.32 Passengers must board the train within a reasonable time after it stops at the station.33 Persons boarding a train to assist passengers are not entitled to the protection accord passengers.24 In New York it is provided that no train on an elevated rail- to require submission to jury whether plaintiff or employee was aggressor. II- Linnis Centr. R. Co., V. Winslow \[Ky.\] 84 S. 1035. W. W. 1175.

25. _Shanahan v. St. Louis Transit Co._ 185 \[Mo. App.\] 83 S. W. 783.

01. _When a street car has been stopped_ _senger by a conductor after the relation has ceased to exist and while the conductor is_ _conductor to see that all are safely on_ _conductor flowing the signal to start. Guenther is not chargeable to the carrier. Plaintiff_ _followed conductor to company's office in_ _conductor on single track road must look_ _dispute over change. Fellily,_ _New York City R. Co., 91 N. Y. S. 319. Baggage agent_ _sers are about to enter. Redington v._ _assisting officer to make unlawful arrest of_ _PASSenger as he was about to enter train_ _renders the company liable, though not_ \_about the company's business. Texas Midland R. Co. v. Dean (Tex.) 85 S. W. 1185. Conductor following passenger of car dur- to the flight. Passenger held still entitled to protection. Flynn v. St. Louis Transit Co. \[Mo. App.\] 87 S. W. 560.

01. _Drunken passenger cut off rear rear car_ _and another was injured by concession_ \_when parts of train came together. Texas & P. K. Co. v. Storey \[Tex. Civ. App.\] 83 S. W. 852.

01. _Bresewitz v. St. Louis, etc., R. Co. \[Ark.\] 87 S. W. 127._

01. _See S. C. L. 637._

01. _Motorman inviting passenger to board by front platform owes same degree of care otherwise due. Brake handle slip-ping and striking passenger. Thompson v._ _Appl. 86 S. W. 593. One injured by an in-St. Louis & S. R. Co. \[Mo. App.\] 86 S. W. 465._

01. _Maggill v. St. Louis Transit Co., 108_

01. _Maggill v. St. Louis Transit Co., 108_

01. _Maggill v. St. Louis Transit Co., 108_

01. _Maggill v. St. Louis Transit Co., 108_

01. _Maggill v. St. Louis Transit Co., 108_

01. _Maggill v. St. Louis Transit Co., 108_

01. _Maggill v. St. Louis Transit Co., 108_

01. _Bresewitz v. St. Louis, etc., R. Co. \[Ark.\] 87 S. W. 127._

01. _See S. C. L. 637._

01. _Motorman inviting passenger to board by front platform owes same degree of care otherwise due. Brake handle slip-ping and striking passenger. Thompson v._ \_Appl. 86 S. W. 593. One injured by an in-St. Louis & S. R. Co. \[Mo. App.\] 86 S. W. 465.

road shall be permitted to start until every passenger on the platform desiring to enter shall have done so unless due notice is given that the cars are filled.45

Footnote 45: The name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name of the name name of the name of the name of the name of the name name the name of the name of the name of the name of the name name of the name the name of the name of the name of the name name of the name of the name name the name of the name of the name of the name name of the name the name of the name of the name name of the name name the name of the name of the name name of the name name the name of the name of the name name of the name name the name of the name of the name name of the name name the name of the name of the name name of the name name the name of the name of the name name of the name name the name of the name name of the name name the name of the name name of the name name the name of the name name of the name name the name of the name name of the name name the name of the name name of the name name the name of the name name of the name name of the name name the name of the name name of the name name of the name name the name of the name name of the name name of the name name the name of the name name of the name name of the name name the name of the name name of the name name of the name name the name of the name name of the name name of the name name the name of the name name of the name name of the name name of the name name the name of the name name of the name name of the name name of the name name of the name name of the name name of the name name of the name name of the name name of the name name of the name name of the name name of the name name of the name name of the name of the name name of the name of name the name of the name of name the name of the name of name the name of the name of name the name of the name of name the name of the name of name the name of the name of name the name of the name of name the name of the name of name the name of the name of name the name of name the name of the name of name the name of name the name of the name of name the name of name the name of name the name of the name of 5. Cur. Law. CARRIERS \[OF PASSENGERS\] $ 31. 547 to alight as agreed may charge the carrier with liability for injuries in alighting from a train moving too rapidly.\[48\] Whether the acts and conduct of the carrier's servants amount to an invitation to alight is generally a question of fact rather than of law.\[44\] It is the passenger's duty to alight with reasonable promptness,\[48\] and to exercise ordinary care in so doing; \[48\] but failure to alight does not render him a trespasser.\[47\] An ordinance requiring street cars to stop on the far side of the crossing is not available to show negligence of a passenger who attempts to alight at a point where the car has customarily stopped to receive and discharge passengers.\[48\]

SS 31. \_Duty to persons other than passengers.\[49\]--These usually fall within the category of employees,\[50\] or licensees, trespassers, and strangers.\[51\] A person boarding a train to assist a passenger is not entitled to the protection due a passenger,\[52\] but if the carrier suffers such a person to enter a car it owes him ordinary care until he leaves it.\[53\] For such a person to attempt to leave the car while in motion is negligence which will prevent recovery if it contributed to his injury.\[54\] To a person allowed to ride on a construction train gratuitously,\[55\] and to persons not passengers on its station platform, a carrier owes only ordinary care,\[56\] but owes

\[Ark.\] $5 S. W. 94. Where conductor was 47. Fanning v. St. Louis S. W. R. Co. on rear platform taking a drink with friends and gave signal to start when they \[48\]. Franklin v. St. Louis & M. R. Co. left without regard to other passengers, \[Mo.\] $7 B. V. 920. 49. See 3 C. L. 641. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 49. 48. 49.

no duty to a trespasser on one of its trains, except that of refraining from willful and wanton injury.\[57\] In removing a trespasser from a train the employes in charge thereof may use such force as is reasonably necessary to effect their purpose,\[88\] the company being liable for the conduct of its conductor in cursing and abusing him.\[59\]

SS 32. \_Remedies and procedure.\[90\]--\_The measure of damages differing in no respect from that in other personal injury cases is elsewhere treated.\[91\] The notice of injury required by the statutes of Wisconsin cannot be waived by acts of the claim agent of the railroad.\[92\]

\_Pleading.\[63\]--\_The plaintiff's statement of his case must show that he was a passenger,\[64\] that defendant was negligent,\[88\] and that that negligence was the proximate cause of his injury.\[66\] Matters going merely in aggravation or extenuation, and having effect to enhance or diminish the damages need not be pleaded.\[67\] If it appears therefrom that plaintiff's own negligence contributed to his injury, the pleading is bad.\[88\] Averment of inconsistent grounds of negligence presents an election.\[69\] That plaintiff was traveling on a pass under which he released defendant from responsibility for injuries must be specially pleaded.\[70\]

Jury resulting from the negligence of an employee in the handling of baggage. Atlantic & B. R. Co. v. Owens \[Ga.\] 51 S. E. 404.

57. Chicago & G. T. R. Co. v. McDonough, 112 Ill. App. 315; Strong v. North Chicago & R. Co., 116 Ill. App. 246.

01. Degree of force used in case of resistance should not be weighed with too much nicety. Clark v. Great Northern R. Co. \[Wash.\] 79 P. 1108.

01. Alabama & V. R. Co. v. Livingston, 84 Miss. 1, 36 So. 256.

01. See 3 C. L. 649.

01. See Dammages, 8 C. L. 997.

01. Rev. St. 1898, 4222, subd. 5. Smith v. Chicago, etc., R. Co. \[Vis.\] 102 N. W.

01. See 3 C. L. 649.

01. An averment that plaintiff was "then and there invited to become a passenger"

Is a mere conclusion of the pleader from inadequate or undiscelosed facts and is bad on demurrer. Kennedy v. North Jersey St. R. Co. \[N. J. Law\] 60 A. 40. It is not necessary to allege payment of fare by the passenger to the carrier in order to show the relation. Cleveland, etc., R. Co. v. Scott, 111 III. App. 234. A mere averment that plaintiff was a passenger where that is in issue is to plead a conclusion. Fremont, etc., R. Co. v. Hagblad \[Neb.\] 101 N. W. 1033. Complaint claiming status of passenger by reason of transfer held subject to motion to make more specific Rueb-sam v. St. Louis Transit Co., 108 Mo. App. 437, 83 S. W. 984. Where the petition alleges payment of fare, an amendment alleging the tender of a transfer does not set up a new case. Lexington R. Co. v. O'Brien \[Xy.\] 84 S. W. 1170.

65. Complaint charging negligence in causing plaintiff to fall from car while \[Gence held sufficient. Birmingham R., Light & Power Co. v. Lindsay, 140 Ala. 315, 37 So. 289. Averment of defendant's negligence held sufficient. Birmingham R., Light Power Co. v. Glover \[Ala.\] 88 So. 836. Complaint stating injury from concussion of cars held good. Kansas City, etc., R. Co. v. Butler \[Ala.\] 88 So. 1024. Petition counting on negligence in starting 5. Cur. Law. CARRIERS \[OF PASSENGERS\] SS 33. 549

_Issues, proof and variance._"11--As in other cases all substantial and necessary averments in the complaint must be proved,"2 in substantial conformity to the allegations, and evidence not so conforming is inadmissible,"3 though slight variances are disregarded."4 Recovery cannot be had on a theory substantially different from that set up in the pleadings."5

_Presumptions and burden of proof._"6--Accident to the means of transportation,"7 resulting in injury to a passenger,"8 of itself raises a presumption of negligence on the part of the carrier 7 sufficient to warrant recovery of damages, unless refuted by evidence on behalf of the company showing that the accident was not

was allighting and allowing her to leave car while in motion contrary to ordinance is double. McHugh v. St. Louis Transit Co. \[Mo.\] 88 S. W. 853.

_70._ Yazoo & M. V. R. Co. v. Grant \[Miss.\] 38 So. 502.

_71._ See 3 C. L. 650.

_72._ An allegation that plainfill's intestine, killed while riding In the private conveyance of another, was a passenger therein for hire, is an essential part of plainfill's case and must be proved. Lyndon v. Robert Smith Ale Brewing Co., 183 F. 830. A compliant charging that plainfill was injured by the starting of defendants' street car while he was boarding it and before he had an opportunity to reach a place of safety thereon does not require proof that the car started with more than ordinary violence. Fine v. Interurban St. R. Co., 45 Misc. 687, 91 N. Y. S. 43.

_73._ An allegation of the duty of exercising due care to transport safely is broad enough to raise the issue whether sufficient care was exercised in giving passengers opportunity to alight. Camden & S. R. Co. v. Rice \[C. C. A.\] 137 F. 326.

_74._ A variance between petition and proof as to whether a street car had come to a full stop at the time an accident occurred, whereby plainfill was injured in alighting from a car, or stopped three feet further on, is too slight to be prejudicial. Toledo R. & L. Co. v. Ketrow, 6 Ohio C. C. (N. S.) 254. Varlance held immaterial. Cars eolliding with vigorous. Chicago City R. Co. v. McClain, 211 Ill. 589, 71 N. E. 1103. Whether car started with jerk as plainfill was boarding. Lehner v. Metroglinst St. Co., 110 Mo. App. 215, 85 S. W. 110. Count charging failure of flagman to give proper signals to avoid collusion is not variant from proof that he signaled both cars ahead at the same time causing the collision. Taylor v. Grand Ave. R. Co., 185 Mo. 239, 84 S. W. 873. Where the gravament of the charge is stopping at unsafe place, an allegation that the ground was lower than the car and proof that it was higher than the car floor is immaterial. Sent v. St. Louis & S. R. Co. \[Mo. App.\] 86 S. W. 887.

_75._ A passenger injured by the car platform on which he was standing colliding with a baggage truck belonging to another carrier cannot recover against the owner of the truck on a mere allegation of duty on his carrier's part to carry him safely. Fletcher v. Boston & M. R. Co. \[Mass.\] 73 N. E. 562. Petition counting on sudden start while plainfill was alighting will not support recovery on proof that plainfill a slighted from slowly moving train. Bond caused by the negligence of itself or its employees.\[80\] This rule is applied with caution,\[81\] and never from the mere fact of injury.\[82\] More presence in a conveyance does not necessarily raise the presumption that the person present is a passenger,\[83\] and a caretaker of stock riding in the stock car rather than the caboose has the burden of showing that he was justified in riding where he did.\[84\] Contributory negligence may appear from plaintiff's case.\[85\]

_Admissibility of evidence_\[86\] is governed by the rules applicable to other cases.\[87\]

80. Proof that derallment was caused by \[80\]

senger thrown: in attempt to alight. Linguk on track does not absolve. Clark v. \[coln Traction Co. v. Webb \[Neb.\] 102 N. W. Lehigh Val. R. Co., 24 Pa. Super. Ct. 609. 258; Lincoln Traction Co. v. Heller \[Neb.\] Interference of strikes with track held 102 N. W. 262. It is not the injury but the sufficiently shown to rebut presumpton, \[L.\] 58 A. 881. \[L\] explanation of cause of explosions under \[181\]. Collision between street car and \[181\]. \[L\] and \[181\]. \[L\] and \[181\]. \[L\] and \[181\]. \[L\] are caused by \[181\]. \[L\] and \[181\]. \[L\] are caused by \[181\]. \[L\] and \[181\]. \[L\] are caused by \[181\].

5 Cur. Law. CARRIERS \[OF PASSENGERS\] SS 33. 551

_Sufficiency of evidence._"The presence or absence of due care or other grounds of recovery " must be determined from all the facts and circumstances of the particular case and is usually for the jury. Cases in which the sufficiency of the evidence to establish particular grounds of recovery, or to authorize the submission of the question to the jury, has been considered, are grouped in the footnotes." Plaintiff's evidence alone may be sufficient," but not when uncorroborated

press copy. Texas & P. R. Co. v. Lynch

**Reports made by conductors and motor- \[Tex. Civ. App.\].$ S. W. 884.**

**Subsequent statement of brakeman that**

**Thank to the claim agent of a street rail- he started to slap plaintiff and was sorry**

**way company are not privileged and must he did not do it, held not admissible. Ilinois Cent. R. Co. v. Vishalov \[Key.\].$ & 8.**

\*\*in action growing out of such an accident. W. 1175. Statement of conductor after ac-

\*\*cident as to what caused it is not admits-

**39, 16 Ohio Dec. N. P. 17.**

\*\*sible either as res reseste or as an admis-

**ss.**

and contradicted by disinterested witness." Physical facts may demonstrate falsity of oral testimony." Positive evidence of the death of a passenger," or its cause, is unnecessary." Ownership by defendant must be proved."

403; Adams v. Metropolitan St. R. Co., 99

Proximate ensue: Injuries held sufficiently App. Div. 621, 90 N. Y. S. 897; Gunther v. shown to have been caused by the accident Metropolitan St. R. Co., 45 Misc. 117, 91

compilined of Johnson v. Yonkers R. Co., N. Y. S. 588. Negligence in starting while 101 App. Div. 65, 91 N. Y. S. 588. Evidence plainff was alighting held for jury. Gorden v. Nassau Elec. R. Co., 98 N. Y. S. 487.

that plainff's blindness resulted from in-Negligence of street railway company using jury. O'Neal v. Metropolitan St. R. Co., 98

its own right-of-way in failing to provide

N. Y. S. 145. That plainff's injuries were safe place to alight held shown. Intrusion

caused by sudden start of train as plainff of conductor to alight held shown. Contribu-

sulting. St. Louis S. W. R. Co. v.ury negligence of passenger held not

Turner \[Tex. City, App.\] 84

shown. Topp v. United R. & Elec. Co., 99

92. An allegation that a ticket was from Md. 630, 59 A. 52. Whether plainff was just-

one to another of two stations is sufficiently

tiled in believing he had arrived at his dest-

proof by an uncontradicated statement of

tination and was negligent in alighting

plainff to that effect, though there is no

from moving train held question for jury.

evidence as to how the ticket in fact read.

Long v. Red River T. & S. R. Co. (Tex. City. App.\] 85 S. W. 1048. Evidence held to sus-

App. 142. Evidence held insufficient to rebut

tain recovery on theory that plainffits's testimony that the injury occur-

throw from train by jerk and was not in-

red, and sufficient to support theory that

jured by slipping on grass after alighting.

varvocolee resulted from It. Bial v. Inter-

St. Louis S. W. R. Co., W. Byrne \[Ark.\] 84

urban St. R. Co., 90 N. Y. S. 434. Where

S. W. 469. Evidence held sufficient to show that

plainffits's ticket called for a stop at

the station where he was injured in alighting

conductor of the car, testimony on the con-

ing. St. Louis S. W. R. Co. v. Turner \[Tex. City. App.\] 84 S. W. 1094.

**Means of transportation:** Where trolly

wire and pole fell while car was at high

jury to say whether his explanation was

speed, resulting in common and fright of

true. Kohner v. Capital Tract. Co., 22 App.

passengers during which plainffit either fell

or was thrown from car, negligence was

wrapped so hard as to throw her down

Jury. Stern v. Westchester Elec. R. Co., 90

N. Y. S. 870.

**Care en route:** Evidence held sufficient

from which to infer that street car was

being propelled at a dangerous speed at night

Chicago City R. Co. v. Bennett, 214 Ill. 26,

78 N. E. 443. Evidence held sufficient to go

to jury that plainffits were injured by jolting

of car. Murphy v. Interurban St. R. Co., 93

N. Y. S. 728. Evidence held insufficient to

show that carrier was responsible for

plainffits fall from moving train. Box v.

Atlantic & B. R. Co., 120 Ga. 105, 48 S. E.

427. Evidence held sufficient to support

theory that car window was broken by col-

lision with another car. Binsbacher v. St. Louis Transit Co., 108 Mo. App. 1, 82 S. W.

546. Evidence held sufficient to show neg-

ligence in running train over submerged

track. Chicago, etc., R. Co. v. Cain \[Tex. City. App.\] 84 S. W. 682. Negligence of elec-

vator operator held question for jury. Hersler v. Stix \[Mo. App.\] 88 S. W. 108. Negligence of

gence of conductor allowing frunken passenger

senger to go on platform and fall of hold

question for jury. Price v. St. Louis, I. M.

& S. R. Co., Ark.\] 88 S. W. 575.

**Contributory negligence:** Evidence of ad-

missions of plainfilt held sufficient to re-

quire charge on contributory negligence.

South Covington & C. St. R. Co. v. Riegler's

Admar're, 26 Ky. L. R. 666, 82 S. W. 382.

Contra, plainfilt leaving moving train.

St. Louis S. W. R. Co. v. Byrne \[Ark.\] 84

S. W. 469. Passenger slipping on incline.

Charge on contributory negligence for 5 Cur. Law. CARRIERS \[OF BAGGAGE\] $ 33. 553

_Instructions_ \[98\] as in other cases must submit the issues fairly,"" conform and \_

be confined to the evidence,1 and respect the province of the jury.2

Part V. CARRIERS of BAGGAGE and Passengers' Effects.

## 33 Rights, duties and liabilities.

The contract of carriage of a passenger implies the carriage also of baggage, consisting of personal effects proper and necknown. Baradeck v. Brooklyn Heights R. Hanan v. Metropolitan St. R. Co., 93 N. Y. Co., 91 N.-Y. S. 10. 98. See 3 C. L. 656. 108. 108. 109. 110. 111. 111.

554CARRIERS \[OF BAGGAGE\] $ 34. 5Cur. Law.

essary,\* and in a reasonable amount considering the length and purpose of the journey, and the circumstances of the passenger,\* and for such baggage, delivered to the carrier,\* a reasonable time before departure of his conveyance,\* the carrier is liable prima facie as a carrier of freight,\* whether or not the passenger in fact traveled on his ticket.\* The carrier's liability as warehouseman extends only to losses through negligence.\*

SS 34. _Care of baggage and effects._\[11\]--The general liability is that of an insurer.\[12\] A railroad company carrying a passenger and his baggage on a pass is a gratuitous bailee as to the baggage and responsible only for ordinary care.\[13\]

SS 35. _Limitation of liability._\[14\]--The carrier may contract for a reasonable limitation of its common-law liability for loss or damage to baggage not resulting from its negligence,\[16\] but the passenger must consent to the limitation \[16\] and have notice in such a way as to afford an opportunity to accept or reject.\[17\]

4. Business papers, though carried in a not accompanied by passenger in S C. L. 662, trunk by a business man, are not baggage and cannot be recovered for if lost, nor can damages be allowed for delay in transporting them. Yazoo, etc., R. Co. v. Georgia Home Ins. Co. \[LMSs\] $7 So. 500. A railroad bagage master has authority to accept merchandise from a passenger and contract to carry it as baggage without extra compensation. Saleeby v. Central R. of N. J. 99 App. Dlv. 163, 90 N. Y. S. 1042. Where the carrier undertakes to transport as baggage without extra compensation a traveling case, knowing that it contains merchandise and samples, it is liable for the loss thereof. Id. Whether shot guns are baggage held properly submitted to jury. Little Rock, etc., R. Co. v. Record \[Ark\]. $5 S. W. 421. In the absence of special agreement, the carrier's liability extends only to snch articles'as are baggage in a technical sense: but feewly, opera glasses, watches, bracelets, pins and rings may be baggage when carried in a woman's trunk for her personal use. Hubbard v. Mobile & O. R. Co. \[Mo. App.\] $7 S. W. 52. 5. 5. The carrier is liable for money necessary for traveling expenses and jeweley for personal use carried in a trunk. Battle v. Columbus, etc., R. Co. \[S. C.\] 49 S. E. 849. That articles lost were not suited to plaintiff's station in life is matter of defense not inquireable into on appeal in the absence of evidence or requests for instructions on the issue. Hubbard v. Mobile & O. R. Co. \[Mo. App.\] $7 S. W. 52. 6. Deposit at place designated by only person at station and notice that owner will appear shortly is delivery to carrier. Battle v. Columbia, etc., R. Co. \[S. C.\] 49 S. E. 849. Delivery of baggage to a carrier is not accomplished by unloading it in the absence of station officials onto a truck standing out of doors, where a safe and roadly accessible place is provided. Lennon v. Illinois Cent. R. Co. \[Howal\] 103 N. W. 343. 7. A steamship company is responsible for the loss of baggage delivered several days in advance of aiming for the carrier's convenience and by it kept on the deck. North German Lloyd S. S. Co. v. Bnlen, 111 Ill. App. 426. 8. Hubbard v. Mobile & O. R. Co. \[Mo. App.\] $7 S. W. 52. 9. Adger v. Blue Ridge R. Co. \[S. C.\] 50 S. E. 783. See note on liability for baggage 5. Cur. Law. CAUSS OF ACTION AND DEFENSES. $ 36. _Damages._${}^{18}$--Where defendant produces the baggage at the trial and tenders it to plaintiff, the damages are the reasonable loss and delay to plaintiff and the depreciation of value.${}^{19}$ SS 37. _Remedies and procedure._${}^{20}$--Where there is a failure to deliver baggage arriving at the passenger's destination, the burden is on the carrier to account for the default.${}^{21}$ The husband has title to wearing apparel of his wife and children,${}^{22}$ and may testify to the value of the articles after the wife has enumerated them.${}^{23}$ Cases in which some special questions of pleading,${}^{14}$ evidence,${}^{25}$ and new trial,${}^{20}$ appear are cited in the notes.

Cabrising Weapons; Cap Trusts, see latest topical index.

## 11 CASE, Action on.

An action on the case will not lie for breach of a contract to convey land, though the land be subsequently conveyed to another. The breach of the contract and not the conveyance to another is the proximate cause of injury.${}^{45}$ A declaration alleging the letting of a team of horses and a promise to drive them to a certain place and no other, in a moderate and proper manner, and that the team was driven to another place and greatly injured by immmoderate driving, states a cause of action in case.${}^{66}$ In an action on the case counts upon the statutory liability under the Pennsylvania dram-shop act may be joined with a common-law count for conversion of property.${}^{97}$

Case AGRED; Case Certified; Case Settiled; Cash; Catching Bargain. see latest topical index.

## 12 CAUSS OF ACTION AND DEFENSES.${}^{68}$

A cause of action consists in "a right possessed by one or more persons ${}^{69}$ and a violation thereof by another."${}^{68}$ The party plaintiff must derive such right

18. See 3 C. L. 663. 19. Wall v. Atlantic Coast Line R. Co. \[S. C.\] 51 S. E. 95. 20. See 3 C. L. 663. 21. Hubbard v. Mobile & O. R. Co. \[Mo. App.\] 87 S. W. 52; Southern R. Co. v. Eddmundson \[Ga.\] 51 S. E. 388. 22. 23. Battle v. Columbia, etc., R. Co. \[S. C.\] 49 S. E. 849. 24. A petition for loss of baggage is not converted into a petition for negligence so as to require proof thereof by a mere allegation that the loss was occasioned by the negligence of defendants' employees. Hubbard v. Mobile & O. R. Co. \[Mo. App.\] 87 S. W. 52. 25. Evidence held sufficient to go to jury on whether plaintiff satschel was purlioned by sleeping car porter. Hatch v. Pullman Sleeping Car Co. \[Tex. Civ. App.\] 84 S. W. 246. Evidence that a passenger's trunk was received by a carrier in good condition and that articles packed in it by the passenger were gone when received at destination makes a prima flece case. Hubbard v. Mobile & O. R. Co. \[Mo. App.\] 87 S. W. 52. 26. New tril for newly discovered evidence--the discovery of the lost trunk--held properly denied for lack of showing of evidence.${}^{68}$

## 13 CASE, Action on.

An action on the case will not lie for breach of a contract to convey land, though the land be subsequently conveyed to another. The breach of the contract and not the conveyance to another is the proximate cause of injury.${}^{65}$ A declaration alleging the letting of a team of horses and a promise to drive them to a certain place and no other, in a moderate and proper manner, and that the team was driven to another place and greatly injured by immmoderate driving, states a cause of action in case.${}^{66}$ In an action on the case counts upon the statutory liability under the Pennsylvania dram-shop act may be joined with a common-law count for conversion of property.${}^{67}$

Case AGRED; Case Certified; Case Settiled; Cash; Catching Bargain. see latest topical index.

## 14 CASE of ACTION AND DEFENSES.${}^{68}$

A cause of action consists in "a right possessed by one or more persons ${}^{69}$ and a violation thereof by another."${}^{68}$ The party plaintiff must derive such right

18. See 3 C. L. 663. 19. Wall v. Atlantic Coast Line R. Co. \[S. C.\] 51 S. E. 95. 20. See 3 C. L. 663. 21. Hubbard v. Mobile & O. R. Co. \[Mo. App.\] 87 S. W. 52; Southern R. Co. v. Eddmundson \[Ga.\] 51 S. E. 388. 22. 23. Battle v. Columbia, etc., R. Co. \[S. C.\] 49 S. E. 849. 24. A petition for loss of baggage is not converted into a petition for negligence so as to require proof thereof by a mere allegation that the loss from, or it must be recognized by, the laws of the state or nation.70 A right which is incident to another is not alone a cause of action.71 It must be fully matured 71 by demand if necessary,73 and all conditions precedent fulfilled.74 The injury may be but slight,78 though if nothing but a trifling amount be involved a cause may be disposed of as de minimns.76 Damage ensuing because of statutory bar to relief is not an injury.77 A party subject to be suad is essential.78 An entire cause cannot be severed,79 but in different aspects of a situation there may be one or several causes of action.80 The fact that a transaction was criminal does not bar a civil action, at least where the crime, if any, was in another state.81a A private cause of action may co-exist with a public wrong,81 and one may waive tort and sue in assumpist.82 A cause of action may be recognized, though created by foreign statute if consonant with domestic policy.83 Whether a cause is equitable is to be determined in a code state by the prayer when the facts might be either legal or equitable.84

_A defense_ must be that which if true furnishes a legal reason why the pleader should not be held in the action.85 It is no defense that another was also in the wrong,86 or that plaintiff has no right as against a third person,87 or that a wrong

such circumstances. Id. The right of pri-vacy has been recognized as such a primary right. Pavesich V. New England Life Ins. Co. \[Ga.\] 50 S. E. 68.

70. Courts will not decide the sole question whether one is Catholic or recuvant according to celestisical contact. Bonacum v. Murphy \[Neb.\] 104 N. W. 180.

01. Right to attorneys' fees under stipulation is incident to man contract. Thrasher v. Moran \[Call.\] 81 P. 32.

01. But on bonds before date specified for payment. Dame v. Cochit Reduction & Improvement Co. \[N. M.\] 79 P. 296. Distributive rights in an uncertain fund cannot be determined till it is ready for distribution. Hawpe v. Bumgardner \[Va.\] 48 S. E. 554.

01. Demand is necessary to sue for money entrusted. Hitchcock v. Cosper \[Ind.\] 73 N. E. 264. If reformation of an instrument is sought and enforcement as reformed, no demand is necessary. Johnson v. Sherwood \[Ind. App.\] 73 N. E. 180. Want of demand must be pleaded if relied on. Harrison v. Lakeman \[Mo.\] 88 S. V. 63.

01. Leave to private person to sue on undertaking given to public officer for his benefit. Goldstein v. Michelson, 91 N. Y. S. 33.

01. Peterson v. Lacey \[Iowa\] 102 N. W. 153.

01. $1.04 held de milnimus, Galm's Case, 39 Ct. Cl. 55.

01. Maxim "No wrong without a remedy" does not apply. Rowell v. Smith \[VIs.\] 102 N. W. 1;Pletsch v. Milbrath \[VVis.\] 102 N. W. 34.

01. Desha County v. State \[Ark.\] 84 S. W. 625.

01. Andreas V. School Dist. No. 4, Fractional Tp. of Leavitt \[Mich.\] 100 N. W. 1021.

Indivisible: Right to accrued salary as officer. Hartmann v. New York, 44 Misc. 272, 89 N. Y. S. 912.

Divisible: Assignee of part of claim may sue. Chase v. Deering, 93 N. Y. S. 434. Subscriptions to common object are several. Akins v. Hicks \[Mo. App.\] 88 S. W. 76.

80. Successive recoveries may be had under a contract of sale of personaity vacy has been recognized as such a primary right. Pavesich V. New England Life Ins. Co. \[Ga.\] 50 S. E. 68.

01. Courts will not decide the sole question whether one is Catholic or recuvant according to celesial contact. Bonacum v. Murphy \[Neb.\] 104 N. W. 180.

01. Right to attorneys' fees under stipulation is incident to man contract. Thrasher v. Moran \[Call.\] 81 P. 32.

01. But on bonds before date specified for payment. Dame v. Cochit Reduction & Improvement Co. \[N. M.\] 79 P. 296. Distributive rights in an uncertain fund cannot be determined till it is ready for distribution. Hawpe v. Bumgardner \[Va.\] 48 S. E. 554.

01. Demand is necessary to sue for money entrusted. Hitchcock v. Cosper \[Ind.\] 73 N. E. 264. If reformation of an instrument is sought and enforcement as reformed, no demand is necessary. Johnson v. Sherwood \[Ind. App.\] 73 N. E. 180.

Want of demand must be pleaded if relied on. Harrison v. Lakeman \[Mo.\] 88 S. V. 63.

74. Leave to private person to sue on undertaking given to public officer for his benefit. Goldstein v. Michelson, 91 N. Y. S. 33.

01. Peterson v. Lacey \[Iowa\] 102 N. W. 153.

01. $1.04 held de milnimus, Galm's Case, 39 Ct. Cl. 5 5 Cur. Law. CEMETERIES.

was done in an endeavor to rectify the wrong of a third person.\[88\] No action lies in aid of what is against the law or its policy.\[89\] Acts of plaintiff after suit may be pleaded as a defense.\[90\] Defenses are either a complete bar or an abatement of the action.\[91\] Premativity of suit resting in the terms of an instrument declared on is a bar,'but if it rests in a collateral agreement it is abatement.\[92\] Premativity does not affect separable claims set up but fully matured,\[93\] but one can recover only the sum due when action brought.\[95\] Equitable defenses may now usually be made at law.\[95\]

**CEMETETERIES.\[96\]**

Where the general public has acquired the right to use land as a burying ground, individuals cannot by staking off portions of the land into lots acquire any exclusive title therein.\[97\] The fact that numerous members of a church took part in improving the grounds, does not give the church any title or control over the land.\[98\] Generally, one receiving from a cemetery association a deed of a burial lot does not thereby take title to the soil itself.\[99\] The rights of burial are so far public that private interests in particular lots are subject to reasonable police regulations of the association having charge of the cemetery.\[1\] The association may be regarded as holding the fee in trust for the purposes for which the corporation was organized.\[2\] In the case of a city cemetery, the person in whose name a lot stands on the record is entitled to the use of it, no other special evidence of such right being required by the rules.\[3\] A lot owner, though not a member of a cemetery association, may maintain suit to enjoin a misappropriation of funds by

ings by railroad. Dowie v. Chicago, etc., R. Co., 214 Ill. 49, 78 N. E. 354.

SS. Allen v. Stowell, 145 Cal. 666, 79 P.

$11.

$9. No action lies to compel installation of telephone in bawdy house. Godwin v. Carolina Tel. & Tel. Co., 136 N. C. 258, 48 S.

E. 636.

$9. Wormser v. Metropolitan St. R. Co., 38 App. Div. 29, 90 N. Y. S. 714.

$1. Plea that bond was invalid because

exacted in proceedings which were vold is in bar. Birch v. King \[N. J. Law\] 59 A.

11. Improper person demand against decedent's estate is matter of abatement only. In re Morgan's Estate \[Or.\] 78 P.

01.

01. American Home Circle v. Schumm, 111 Ill. App. 316.

$9. Al.thony v. Smithson \[Kan.\] 78 P.

$14.

$9. City of Philadelphia v. Pierson \[Pa.\]

$60 A. 998.

95. Crosby v. Scott-Graff Lumber Co., 93 Minn. 476, 101 N. W. 610; Highlands v.

$17. Pase v. Symonds, 63 N. H. 17, 56 Am. Philadelphia & R. R. Co., 209 Pa. 286, 58 A.

$60. Equitable defenses may be interposed but the issue will be tried in chancey. American Soda Fountain Co. v. Futrail \[Ark.\] 84 S. W. 506. Recognition of equitable titles between vendor and purchaser does not extend to all actions between them. Martin v. Thomas \[Vw. Va.\] 49 S. E.

$9. See $ C. L. 665.

$9. So long as land remains unoccupied, the community at large has same right as those claiming to be owners. Kitchen v. Wilkinson, 26 Pa. Super. Ct. 75.

98. Kitchen v. Willkinson, 26 Pa. Super. Ct. 75.

01. Deed subject to by-laws and regulations gave grantee only limited right to use lot for burial purposes, subject to association's regulations. State v. Scoville \[Conn.\] 61 A. 63.

01. Wormser v. Metropolitan St. R. Co., 38 App. Div. 29, 90 N. Y. S. 714.

01. Plea that bond was invalid because

exacted in proceedings which were vold is in bar. Birch v. King \[N. J. Law\] 59 A.

11. Improper person demand against decedent's estate is matter of abatement only. In re Morgan's Estate \[Or.\] 78 P.

01.

01. American Home Circle v. Schumm, 111 Ill. App. 316.

01. Anthony v. Smithson \[Kan.\] 78 P.

$14.

$9. City of Philadelphia v. Pierson \[Pa.\]

$9. A. 998.

95. Crosby v. Scott-Graff Lumber Co., 93 Minn. 476, 101 N. W. 610; Highlands v.

$17. Pase v. Symonds, 63 N. H. 17, 56 Am. Philadelphia & R. R. Co., 209 Pa. 286, 58 A.

$60. Equitable defenses may be interposed but the issue will be tried in chancey. American Soda Fountain Co. v. Futrail \[Ark.\] 84 S. W. 506. Recognition of equitable titles between vendor and purchaser does not extend to all 558 Census and statistics. 5 Cur. Law. the company; ' and where the object of a company, as declared in its certificate of incorporation, is to maintain and use its property for cemetery and burial purposes only, a bill alleging that cemetery grounds were uncared for and in need of attention, and that the association was without funds to pay its debts, sets out grounds for enjoining a gift to a church, some members of which were also members of the company.\[6\] In Connecticut, violation of by-laws of cemetery association providing for the care and management of burial lots is made a criminal offense."

A cemetery is not necessarily a nuisance but may become so from location and the manner of its use.\[7\] The petition in a suit to enjoin location of a cemetery on certain lands must set out facts which show with reasonable certainty that injury will result to plaintiffs if the cemetery is located as proposed.\[8\] Here depreciation in the value of adjoining or nearby property is not ground for such injunction.\[9\]

That a city cemetery superintendent caused an old grave to be disturbed in the digging of a new one is not alone ground for his discharge, where there was nothing to indicate the existence of the old grave.\[10\]

The tax exemption of cemetery continues after abandonment for burial purposes until all the bodies have been removed.\[11\]

## Census and statistics.\[12\]

A statute authorizing supervisors to have the sensus of a township taken; and providing that when so taken it shall be the official census of the township, does not authorize the supervisors to declare by ordinance that the population is a certain number, no census having been taken.\[13\] The provision of the Greater New York charter, requiring filing of birth notices with the department of health, is sufficiently complied with by due mailing of the notice.\[14\] But when it appears that a notice has not been filed, the burden is upon the attending physician to prove the mailing of the notice, in order to escape the penalty for omission to file.\[15\] An undated, unsigned death certificate, the facts of which are not certified to by the health officer who certifies it to be a part of the records of his office, is not evidence of death of the person described therein.\[16\] Where a death certificate describes deceased as having lived in a certain county and gives only two initials, it cannot be presumed that such person is identical with one who lived in a city of the county, whose name was the same, except that he had a middle initial.\[17\]

4, 5. Clark v. Rahway Cemetery \[N. J. proposed not being set out. Elliott v. Ferguson. 61. 62. 61. 63. 64. 65. 66. 67. 68. 69. 60. 61. 61. 63. 69. 60. 61. 64. 65. 66. 68. 69. 60. 61. 65. 67. 68. 69. 61. 60. 62. 63. 64. 65. 66. 67. 68. 69. 61. 68. 69. 60. 61. 61. 62. 63. 64. 65. 66. 67. 68. 69. 61. 69. 60. 61. 63. 64. 66. 68. 69. 61. 64. 67. 69. 62. 65. 68. 69. 60. 61. 66. 67. 68. 69. 61. 68. 69. 60. 61. 69. 61. 60. 62. 63. 64. 65. 66. 67. 68. 69. 61. 69. 60. 61. 61. 62. 64. 66. 68. 69. 61. 63. 65. 67. 69. 61. 68. 69. 60. 61. 69. 62. 64. 66. 68. 69. 60. 61. 60. 63. 65. 67. 68. 69. 61. 69. 62. 65. 69. 61. 67. 68. 69. 60. 61. 69. 61. 60. 62. 63. 64. 66. 68. 69. 61. 69. 62. 65. 69. 61. 60. 63. 66. 67. 68. 69. 61. 69. 60. 64. 69. 61. 61. 62. 65. 66. 67. 68. 69. 61. 68. 69. 60. 61. 69. 62. 66. 69. 60. 61. 60. 63. 64. 66. 68. 69. 61. 69. 62. 66. 69. 60. 61. 61. 63. 64. 66. 67. 68. 69. 61. 69. 60. 61. 62. 66. 68. 69. 61. 60. 64. 69. 62. 66. 69. 61. 63. 65. 67. 69. 61. 64.

5 Cur. Law. CERTIGRARI SS 1. 559

CERTIGRARI.

**SS 1. Nature, occasion, and Propriety of**

**SS 4. Hearing and Questions Which May**

**SS 2. Right to Ceritorari, Parties (561).**

**SS 5. Judgment (565).**

**SS 3. Procedure for Writ; Writ, Service, and Return (561).**

**SS 6. Costs (565).**

**SS 7. Review of Ceritorari (565).**

**SS 1.** \_Nature, occasion and propriety of the remedy.\_18--The writ of ceritorari,19 sometimes denominated by statute the writ of review,20 is one of the extraordinary remedies, and lies only when an inferior court,21 tribunal,22 board,23 or. officer,24 exercising judicial functions,25 has exceeded jurisdiction,20 or acted illegally,27 and there is no appeal,28 nor in the judgment of the court any other plain, speedy and adequate remedy.29 The writ in many states has been extended beyond what it was at common law, and is not now confined to reviewing the decisions of courts, properly so called,30 but may also be used in certain instances to review the pro-

**19. Being a common-law ,writ, it carnot**

**been held that the determination of civil**

**be converted into a suit in equity to ad-**

**service commissioners in a competitive ex-minister a public charity created by will.**

**emination cannot be reviewed on ceritorari.**

**People v. Court of Appeals \[Colo.\] ? P. P. (On the ground that they were not judicial**

**1028.**

**20. See 3 C. L. 667, n. 75. The statutory**

**writ of review is substantially the same as the common-law writ of certorari, and**

**small \[M0.\] & 8. W. 867; People v. Court will lie when an inferior court or tribunal**

**of Appeals \[Colo.\] ? P. 1021. Berry v. has exceeded its jurisdiction, or exercised**

\*\*Robinson \[G8.\] ? S. E. 378. An affavit its judicial functions **Illegally or contrary to**

**the course of procedure applicable to the**

**matters before it. Oregon R. & Nav. Co. v.**

**Cunadilla County \[Or.\] ? P. 552.**

**21. Action of county court in calling a**

**counting year removal election. Kinsole -v.**

**draws v. Cook \[Nev.\] ? B. 803. Cancellation of liquor license. Croot v. Board of**

**in a recorder's court on defendant's own**

**Trustees of Manitou \[Colo. App.\] ? 78 P. 318.**

**confession. City of East Orange v. Richard-**

**Action of police Judge in summoning a jury**

**son \[N. J. Law\] ? 59 A. 897. Ceritorari to**

**in a misdemeaner case held not to be in review action of circuit court in granting**

**excess of jurisdiction. Wittman v. Police or denying writs of mandamus. City of**

**Court of San Francisco, 145 Cal. 474, 78 P.**

**Monroe v. Board of**

**board of Sup'rs of Monroe**

**Count \[Mich.\] 100 N. W. 896. Kenyon v.**

**27. Berkeley v. Thompson \[Iowa\] 102 N. W. 861. Canon \[Ark.\] ? 101 N. 134. Removal of county seat. Reese v. N. W. 861; Canon \[A.\] ? 84 S. W. 793.**

**28. See 3 C. L. 668, n. 86. Staples v.**

**22. In New Jersey the proceedings of**

**transmission**
**commissioners appointed by the court of**

**common pleas under the act relating to**

\*\*newly created municipalities (P. L. 1838, pp. 28, 393) are subject to review by cer-

**diorari, Washington Tp., Etna (N. J. Law) ? 8A. 1086.**

\*\*23. Cancellation of liquor license by town board. Croot v. Board of Trustees of Manitou \[Colo. App.\] ? 8P. 313. Re-

**viewing refusal of supervisors to audit claim for services. People v. Board of Sup'rs of Orleans County, 98 App. Div. 390, 90 N. Y. S. 818. State board of railroad commissioners held to be an inferior body whose proceedings are subject to review on ceritorari. Gulf, etc., R. Co. v. Adams \[Miss.\] ? 8S So. 348.**

**24. Reviewing action of commissioners of public safety in refusing adjournment of hearing on, charges preferred against plaintiff in ceritorari. People v. Webster, 98 App. Div. 581, 90 N. Y. S. 723.**

\*\*25. See 3 C. L. 667, n. 77. It is not essential that the proceedings should be strictly and technically judicial in the sense in which that word is used when applied to courts of justice. Kinsole v. Pogue, 213 Ill. 302, 72 N 560 CERTIGORARI SS 1. 5 Cur. Law.

ceedings of special tribunals, boards, commissions, and officers of municipal corporations.\[31\] In the latter class of cases, however, the office of the writ is confined to acts that are strictly judicial or quasi-judicial in their nature.\[32\] But certiorari will not lie to bring in question the legal existence of the court to which the writ is directed,\[33\] nor is it the appropriate remedy to try title to office; \[34\] neither will the writ lie where the relator must in any event fail.\[35\] The writ brings up nothing but the record of the tribunal to which it is directed, and whose proceedings it is sought to review.\[36\]

\_Ancillary certiorari.\[37\]--\_Frequently the writ issues as ancillary to another proceeding, as habeas corpus,\[38\] but it issues in aid of an appeal only when diminution of the record is suggested.\[39\] In cases over which the supreme court of the United States possesses neither original nor appellate jurisdiction, it cannot grant prohibition, mandamus, or certiorari as ancillary thereto.\[40\]

_Prerogative writ.\[41\]_

**31.** State v. Village of McIntosh \[Minn.\]

appellant's case Is not returned in five days "with objections," It shall be deemed ap- 103 N. V. 1017.

**Matters held reviewable on certiorari:**

proved, and where appellees attorney or- "action of assessors in assessing damages

on change of street grade. People v. Law."

when to serve a counter case, he was not "remote," 94 N. Y. S. 820. Refusal of justice

entitled to certiorari to have appellant's "of peace to fix amount of bond on appeal," 95 N. C.J 50

Saxon v. Curley, 112 111. App. 450. Action

S. B. 445.

of district court in quashing a jury panel

Heltman v. Morgan \[Idaho\] 79 P. 225. De-

cision of a court adjudicating one guilty of

\[Minn.\] 103 N. V. 1017.

contempt. Rogers v. Superior Court of

San Francisco, 145 CaI. 88, 78 P. 344. Action

Saxon v. Morton, 21 App. D. C.

tion of tax commissioners in fixing assessors.

ment. People v. Wells \[N. Y. J. 44 N. E.

Saxon v. Surf. Pure Super- "interaction of Public Instruction \[N. J. Law\]

incorporation of exceptions omitted from the case on appeal. Cameron-Barkeley Co.

v. Thornton Light & Power Co. \[N. C.\] 49

S. E. 16. Where there was no proof of the

'its opponent was appointed as preliminary venue, it was error to refuse to sanctions a

petition for certiorari, Simpson v. Lamp-

to the office. The correctness of the record

kin, 121 Ga. 167, 48 S. E. 944. Orders making an allowance to an administrator from

the funds of an estate for the services of

himself and an attorney pending setting:

ment of the estate, set aside on certiorari.

In re Sullivan's Estate, 36 Vash. 217, 78 P.

945. A proceeding in a county court to

eject an intruder cannot be carried by ap-

peal to the superior court. The remedy of

the party dissatisfied with the judgment in

such a case is by certiorari. Rigail v. Mir-

mans \[Ga.\] 51 S. E. 281.

Matters not reviewable on certiorari:

A writ of certiorari is properly denied

where it appears that the action in which

the same is sought is a collusive process

ing. Sampson v. Commissioners of Highways, 115 III. App. 443. A location of a

route filed by a railroad company under

section 8 (P. L. 1903, p. 650), is not the proper subject of certiorari. Essen v.

Dickinson \[N. J. Law\] 60 A. 110a. The er-

roneous discharge of a prisoner on habeas

corpus by a court having jurisdiction to

issue the writ and pass upon the applica-

tion for a discharge cannot be reviewed on

certiorari. State v. Simmons \[Mo. App.\] 87

S. W. 35. Certiorari does not lie to compact

a county clerk to transmit to the district

court a transcript of proceedings In con-

nection with the opening of a road.

Kinley v. Frit County \[Tex. Civ. App.\] 13

Tex. Ct. Rep. 571, 88 S. V. 447. Under the

North Carolina Code providing that if the

1.5
CURRENT LAW, NOVEMBER, 1905.

561

CERTIGARAI-Cont'd.

## 2 Right to certiorari; parties

At the common law the writ of certiorari was not a writ of right, but the granting or refusal thereof rested in the sound discretion of the court \[48\]. The parties to an application for certiorari cannot deprive the court of the exercise of its discretion by stipulating that the formal writ shall not issue and that no formal return need be made \[44\]. The writ will not issue at the suit of a stranger to the record \[48\]; on the contrary he must have been a party to the suit or matter in controversy \[49\], or show some interest \[47\] or injury peculiar to himself \[48\].

## 3 Procedure for writ; writ, service and return

Application \[50\] must be made seasonally \[50a\], contain proper allegations \[51\], specifically assign errors of law \[52\], and affirmatively show necessary jurisdictional facts \[53\]. Facts alleged in the petition must be treated as admitted where the return is silent with regard thereto \[54\]. A motion to dismiss a petition is in the nature of a special demurrer \[55\].

42. See 3 C. L. 670.

01. See 3 C. L. 671, n. 4. Leppel v. Dis-

A petition for certiorari is such a suit as can be renewed under the provisions of the Georgia Civ. Code 1895.\[56\]

_The statutory bond_\[57\] must be given."?"--At common law a bond for the writ as a supersedeas was not necessary.\[68\] The bond required by the Georgia Act of 1902 (p. 105) is merely an appearance bond."

_The writ."--Under the New York Code of Civil Procedure the writ must direct the return that is to be made."?" Where the clerk of the superior court, in issuing the writ of certiorari, made a clerical error in dating it, the judge of that court may pass an order authorizing the clerk to correct such error so as to make the writ bear the true date of its issuance.\[61\]_

_Notice of the writ."_ must be given as required by the local statute or rule of court.\[63\]

_Service of the writ."_ must be upon the officer whose decision is sought to be reviewed." In some jurisdictions notice of the issuance of the writ must also be served upon opposing counsel.\[64\]

_The return_\[57\] should consist of a full transcript of the proceedings sought to be reviewed,\[68\] and, when responsive,\[69\] and covering the points of error appearing

56. Civ. Code 1895, SS 3786. If, however, the petition be void for any reason, the anti cannot be renewed. Bass v. Milledgeville, 121 Ga. 151, 48 S. E. 919.

01. See 3 C. L. 672.

57a. Where a party has given a statutory bond with security for the payment of the eventual condemnation money, or to produce property sued for or leved on, or an officer authorized to make service or and a judgment adverse to the principal has been rendered, the security on such bond cannot be surety on a new bond required in proceedings seeking to secure a reversal, Woodiff v. Bloodworth, 121 Ga. 456, 49 S. E. 289. Where the only provision for certiorari proceedings, in an act creating a city court, indicates a legislative intent that the general provisions of the Georgia Civil Code of 1895, SS 4637, relating to such proceedings from "inferior judica-fories," should apply, no bond is required in criminal cases as a condition precedent to the issuance of the writ. Dixon v. State, 121 Ga. 346, 48 S. E. 311.

58. The court in the exercise of its discretion might however require it. Webb & Stagg v. McPherson & Co. \[Ala.\] 38 So. 1099.

If a bond be required by law to be given on the allowance of a certiorari for the protection of the defendant in certiorari in certiorari in case the proceedings below be affirmed, the court may, in its discretion, deny an application, presented on final hearing, for the dismissal of the writ because such bond was not given. Civ. of Orange v. McConnell \[N. J. Law\] 59 A. 97.

59. On affirmance of the certiorari, it is not lawful to enter judgment against the sureties on such bond. Tucker v. Moutirie \[Ga.\] 50 S. E. 61.

01. See 3 C. L. 672.

60a. People v. Partridge, 99 App. Div. 110, 91 N. Y. S. 258.

61. Neal v. Neal \[Ga.\] 50 S. E. 929.

01. See 3 C. L. 672, n. 38.

01. Mansf. Dig. $ 1273 (Ind. T. Ann. St. 1899, SS 775), providing that where either party conceives that the copy of the record is imperfect the clerk of the supreme court.

5 Cur. Law. CERTIGARI SS 3.

in the affidavit for certiorari, is conclusive.\[70\] Under the Georgia practice the defendant in certiorari may at the first term, and before the hearing, traverse the truth of the answer or return.\[71\] It is only where the return is defective that a further return may be required.\[72\]

\_Objections and amendments.\[73\]--\_The court issuing the certiorari is not authorized to consider a paper as a part of the statement of facts unless it was properly made a part thereof by the trial court, nor has the court power to amend or add to the statement of facts as actually prepared.\[74\]

\_Quashal or dismissal.\[75\]--\_The failure of a judge whose decision is sought to be reviewed by the writ of certiorari to file his answer by the first day of the term to which the writ is returnable may subject him to punishment for contempt, but will not authorize a dismissal of the certiorari, when the answer is made during the first term; and before a motion to dismiss the certiorari is filed.\[76\] Where a writ of certiorari shows on its face that it is insufficient in law and that it does not lie to review the acts complained of, the court granting the writ has the power to quash it before the return.\[77\] Failure to deliver a writ of certiorari and a copy of the petition to the officer whose decision is sought to be reviewed is cause for dismissal but does not render the proceeding void.\[78\] Where an appeal is entered in a justice's court, and judgment rendered therein against the appellant, and a writ of certiorari sued out, the judge of the superior court should not dismiss the certiorari on the ground that the appeal is void, unless its invalidity affirmatively appears.\[79\] Certiorari to review the action of the district court in granting an injunction and appointing a receiver will be dismissed where pending its disposition the district court has dissolved the injunction and discharged the receiver, although its action in so doing was based on erroneous grounds, and it did not consider or determine the questions raised on certiorari.\[80\] Where a writ of certiorari has been quashed for defect or sufficiency in the petition or proceedings and liberty to amend has been denied, another writ may not be had.\[81\]

any additional evidence or other matter |ple v. Van Brunt, 99 App. Div. 564, 90 N. Y. sent to the appellate court, except such as S. 845. is part of the record, and of file in the office of the celerk. Jones v. Gill, 121 Ga. 93, 48 filed at such a time as not to give the S. E. 688. Where the parties to an appeal plaintiff in certiorari an opportunity to pre- to the circuit court of appeals in bank- pare a traverse, the court should allow sufrupty were unable to agree as to the content of the appeal record, it was the duty V. State \[Ga.\] 51 S. E. 365. Where a certiorari has been sued out, taking a case celerk, pointing out specifically what records in his judgment, should be certified, leaving appellee, if in his opinion the records certified are insufficient, to suggest a diminution of the record and ask for certiorari. In re A. L. Robertshaw Mfg. Co., 135 F. 220.

**69.** An allegation in a petition that certain affidavits were considered by respondent when the source of information and grounds of relief are not disclosed is not an allegation requiring a denal. People v. Greene, 91 N. Y. S. 803. Return held sufficient. Harris v. Daly, 121 Ga. 511, 49 S. E. 609.

**70.** Hinchman v. Spaulding \[Mich.\] 100 N. W. 901; Wetmore v. Dean \[Mich.\] 103 N. W. 166; People v. Greene, 97 App. Div. 502, 90 N. Y. S. 162. Facts relating to audit of claim. People v. Miller, 91 N. Y. S. 839. Denilas and allegations of a return must be held true so far as they join issue with the material allegations of the petition. People v.

564CERTIGRARI SS 4.5Cur. Law.

SS 4._Hearing and questions which may be raised and settled._"2--Where the record of an inferior tribunal is brought before the appellate court by a common-law writ of certiorari, the only question before the court is the validity and sufficiency of the record certified to by that tribunal."8 In some jurisdictions, however, errors of fact as well as law may be reviewed,"4 and in New York the hearing is in the nature of a new trial and evidence is admissible."8 Where the court on certiorari is empowered to determine disputed questions of law and fact, the adjudication of the court on questions of fact is final and not open to review on writ of error, if there are any facts on which conclusion could be based."8 Upon the hearing of a certiorari a superior court can decide such questions only as are raised by proper assignments of error in the petition and verified by the answer, or as are made by motion in reference to the certiorari proceeding itself." The record as it existed at the time of the issue and service of the writ is all that can be considered by the court." A general reason is sufficient when the error is apparent on the face of the proceedings,"8 and, on certiorari to review refusal of circuit judge to issue a writ of mandamus, the answer to the order to show cause will be taken as true."8

82Sec 3 C. L. 674.

S3City of Roekford v. Henry Compton,

in such a case though there be no conflict 115 III. App. 406. Act of May 9, 1889 (Penn-

in the evidence to render a final judgment sylvania F. L. 168), does not enlarge scope

in his favor. Atlantic Coast Line R. Co. v.

of inquiry. Commonwealth v. Mills, 26 Pa.

Shuman, 121 Ga. 113, 48 S. E. 680. When the

Super. Ct. 549. The court will not review

evidence is conflicting, the discretion of a facts stated in the return to a writ of certiorari in proceedings to widen a highway

upon certiorari, a first new trial, will not

where they are founded on personal inspection and individual knowledge of the

50 S. E. 92. The supreme court will not dis-

locality. People v. Van Brunt, 99 App. Div.

turb the first grant of a new trial.upon cer-

564, 90 N. Y. S. 845. Certiorari to set aside

an order granting a liquor license is a direct attack thereon, and the court has power

to review the question whether the petition

on which the license was granted was suffinder

act to confer jurisdiction, notwithstanding

Williams v. Mangrun \[Ga.\] 50 S. E. 110. Evi-

the trial court's finding that it had jurisdiction

, State v. Tulloch, 108 Mo. App. 32, 82

therofter error to override certiorari. South-

S. W. 645. On certiorari to a ruling of the

band of review sustaining an assessment

of property, the court cannot investigate

the evidence and vacate the board's ruling

on the ground that it is contrary thereto

,

the apollate court by a comment on the question whether there is a

reasonable basis, from the standpoint of

the board, for its ruling, and, if there is

such a basis, its determination must be sus-

tained. State v. Fisher \[Ws.\] 102 N. W.

566. The decision of the court of appeals

that defendant, who appealed to the county

court from a justice's judgment, waived the

right to charge grounds of objection to the

justice's jurisdiction of the defendant's person, which were not presented to the jus-

tice, was, If incorrect, mere error, and not

reviewable by the supreme court on certiorari. People v. Court of Appeals \[Colo.\] 79

P. 1017.

84. In Tennessee errors of fact and law

may be reviewed on certiorari. Staples v.

Brown \[Tenn.\] 85 S. W. 254.

Georgia: When the only error alleged in

a petition for certiorari is that the verdict

therein complained of 18 contrary to law

and to the evidence, and it appears that the

evidence demanded a verdict for the plain-

iff in certiorari, the superior court should

, 5 Cur. Law. CHAMPERTY AND MAINTENANCE. 563

8 5. _Judgment._"--In certiorari cases the judge of the superior court may make one of four orders: (1) If there is no error the writ should be quashed; (2) If there is no question of fact and an error of law which must finally govern the case, the judge of the superior court must himself make a final disposition of of the cause; (3) if there is other form of error, he may grant a new trial generally, returning the case to the court from which it came; or (4) if such error has been committed, he may return the case to the lower court with instructions." Where such instructions are given, and not reversed on the application of the opposite party, they are to be treated as the law of the case, and must be given full effect on a second trial." Where in justice court a defendant's answer is unsworn, but may in that respect be amended, it is error for the appellate court on certiorari to enter judgment for plaintiff."

SS 6. _Costs._"

SS 7. _Review of certiorari._"90--No appeal lies from the judgment of a court of common pleas on a certiorari to a justice of the peace, where the record shows that the justice had jurisdiction." Where a case was carried to the superior court by certiorari, the answer of the justice of the peace traversed, verdict rendered against the traverse, and a motion for new trial made and overruled, a writ of error did not lie as the main case was still pending." Where there is some evidence open which the finding of a superior court might have been based, the discretion of the court exercised in overruling the certiorari will not be reviewed." The supreme court will not interfere with the order of the judge of the superior court refusing to sanction certiorari from a judgment of conviction in a county court, where the record fails to show that petitioner filed the affldavit required by the Penal Code of 1895, SS 765.' Statements of fact contained in the brief of counsel and the attached affldavit of the justice, explaining what he meant by his answer, cannot be considered in reviewing the order of the judge of the superior court in sustaining the certiorari and in directing a new trial." Michigan Circuit Court Rule 18, authorizing an extension of time to apply for new trial, includes the power to grant rehearing on certiorari."

CHALLERS; CHAMERS AND YAGATION, see latest topical index.

**CHAMPERTY AND MAINTENANCE.4**

An assignment by many to a few in order to facilitate the proceedings is not champertous, even though the assignees agree to take a certain percentage of the recovery in payment for their costs and expenses."

_Conveyances of land_" by one ousted of possession are void, unless made to the disseison." This rule, if ever in force in the District of Columbia, is obsolete in that jurisdiction."

91. See 3 C. L. 675.

92, 93. Willensky v. Brady, 121 Ga. 90, 48 S. E. 687.

94. The case should be remended for retrial. Stafford v. Willson \[Ga.\] 49 S. E. 800.

95, 96. See 3 C. L. 676.

97. Phoenix Iron Works Co. v. Mullen, 25 Pa. Super. Ct. 547.

01. Da Vall v. Broglen \[Ga.\] 51 S. E. 404.

01. J. T. Copeland & Son v. Stephens \[Ga.\] 50 S. E. 976; Horton v. State \[Ga.\] 51 S. E. 287.

01. King v. State \[Ga.\] 50 S. E. 64.

01. Faulkner v. Snead \[Ga.\] 49 S. E. 747.

01. Hirsch v. Fisher \[Mich.\] 101 N. W. 48.

01. See 3 C. L. 677. See, also, Hammon on Contracts, $ 239.

01. McEwen v. Harriman Land Co. \[C. C. A.\] 138 T. 797.

01. See 3 C. L. 677.

01. Gen. St. 1002, $ 4042. Where married woman executed a lease without her husband Jothing, held a subsequent conveyance of the property by her and her husband would be regarded as a conveyance of the reversion, and not of a right of entry. Winestine v. Zigliatzki-Marks Co. \[Conn.\] 59 An agreement by an attorney to pay all or some portion of the court costs to accrue in a suit which he is employed to prosecute is champertous," except where the consideration of such payment does not arise out of the claim in suit.10 Where an attorney purchases a litigious right in the form of a judgment, the remedy of the defendant is to oppose its execution when the attorney attempts to enforce it.11 An attorney at law is not entitled to recover any fees for services rendered in connection with the prosecution of a suit after he has made a champertous contract with respect thereto,12 but he is entitled to recover upon a quantum merit for all services rendered up to the time of the making of such contract.13

The defense of champerty14 is an affirmative one,15 and can only be interposed in an action between the parties to the champertous contract, and does not furnish any reason for refusing relief in the proceeding to which the champertous agreement relates.16

Maintenance.--In order to be guilty of maintenance, it is essential that the alleged maintainer have no real interest in the action.17

CIANGE OF VENUE; CHARACTER Evidence; CHARIABLE AND CORRECTIONAL INSTITIONS, see latest topical index.

CHARIABLE GIFTS.18

SS 1. Nature and Essentials; Validity \[SS 3. Interpretation and Construction (556). (570). (571). (572). (573). (574). (575). (576). (577). (578). (579). (570). (571). (571). (572). (573). (574). (575). (576). (577). (578). (579). (570). (571). (573). (574). (575). (576). (577). (578). (579). (570). (571). (572). (573). (574). (575). (576). (577). (578). (579). (570). (571). (572). (573). (574). (575). (576). (577). (578). (579). (570). (571). (572). (574). (575). (576). (577). (578). (579). (570). (571). (573). (575). (576). (577). (578). (579). (570). (571). (572). (573). (574). (575). (576). (577). (578). (579). (570). (571). (572). (573). (574). (575). (576). (577). (578). (579). (570). (571). (572). (574). (575). (576). (577). (578). (579). (570). (571). (573). (574). (575). (576). (577). (578). (579). (570). (571). (572). (573). (574). (575). (576). (577). (578). (579). (570). (571). (572). (573). (574). (575). (576). (577). (578). (579). (570). (571). (572). (573). (574). (575). (576). (577). (578). (579). (570). (571). (572). (573). (575). (576). (577). (578). (579). (570). (571). (573). (574 * 5 Cur. Law. CHARITABLE GIFTS SS 1.

trasted with the beneficial use for a private purpose or individual.\[20\] In order that a gift may come within the rules relating to charitable gifts, some charitable utility must be derived from its execution.\[31\] A gift for the benefit of a particular Christian church or for the advancement of religion is charitable.\[32\]

Gifts in trust for charitable purposes must designate with reasonable certainty the property donated,\[23\] the objects and purposes to be accomplished,\[24\] and the manner in which the trust is to be executed.\[26\] It is sufficient if the founder describes the general nature of the charitable trust, and he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery.\[20\] Hequests in trust for, or made directly to, unincorporated societies are valid, though no purpose is mentioned to which the fund is to be applied, provided the testator has made plain the objects of his bounty so that the courts may enforce the application of the fund as he intended.\[27\]

gulty of maintenance in defending an action by the employee against the insured. Bredeen

tainty in the amount directed to be ex-v. Yrankford Marine, Accident & Plate Glass

pended. Colbert v. Speer, 24 App. D. C. 187, Ins. Co., 110 Mo. App. 312, 85 S. W. 930. Complaint alleging that an insurance company

$5,000, to be equally divided between two unlawfully, malicously, and willfully ap-

pended a judgment in favor of plaintiff

should have half such sum. Id.

against a third party, and when on a new

**24. Colbert v. Speer, 24 App. D. C. 187.**

trial plaintiff again recovered judgment, the

**25.**

**defactual** was insolvent, held to state a

**36.**

**cause of action for maintenance. Id.**

**18.**

\*\*See, also, Asylums and Hospitals, 5

C. L. 301; Schools and Education, 4 C. L. 1401.\*\*

**For interpretation of instruments creating charites, see Deeds of Conveyance, 3 C. L. 1056; Trusts, 4 C. L. 177; Wills, 4 C. L. 1863.**

**19.**

**20.**

**30.**

**31.**

**32.**

**33.**

**34.**

**35.**

**36.**

**37.**

**38.**

**39.**

**38.**

\*\*39.

In many states it is regarded as inherent in public charities that the beneficiaries be somewhat uncertain; \[28\] but in others the ordinary rules as to private trusts apply and the beneficiaries must be certain or capable of being made certain. \[29\] Beneflect bequests will not, however, be defeated by mere misnomers, \[30\] but it is enough if the testator uses language sufficiently clear to enable courts by extrinsic evidence to identify the beneficiary and truste, \[31\] and parol evidence is admissible for that purpose. \[32\]

Statutes often provide that no charitable trust shall be held invalid because of the indefiniteness of the beneficiary, \[38\] or by reason of the objects being uncertain,

eign Mission Board now at Richmond, Vir- sign Fund" held to belong to the Universal- signia," held valid, though it did not appear that they were incorporated. Id.

2S. Charitable trusts must be for the ben- eit of an indefinite number of persons. Bis- Catholic Orphan Asylum's are good, though coe v. Thweatt \[Ark.\] $& S. W. 432: In re Meerchant's Estate, 143 Cal. $7, T7 #. 475. Request in trust for benefit and advance- ment of the Oakland Red Cross Society in California, to be used in equipping hospital if there was one in connection therewith and fo- benefit of soldiers coming from Pacific \< ... held to indicate an intention that the entire residue might be used for purpose of equipping such a hospital. Id. Finding that society at all times had a certain ascertained membership should be construed as finding that it had an organization sufficiently formed to take and not that it was necessary at all times composed of the same persons. Id. Request not for the benefit of persons composing society at time of testextrix's death, but for that of the society in its organized capacity, and through it for the charitable objects for which it was formed. Id. One of elements of a religious or charitable trust is its uncertainty. St. James' Parish v. Bagley \[N. C.\] $0. E. 841.

29. In the absence of statute, there must be a beneficiary capable of being designated, who can enforce the trust provision. Mount v. Tuttle, 99 App. Div. 433, 91 N. Y. S. 195.

Benetglary must be a definite, certain, ascer- tainable person, natural or corporate. Deed conveying property to certain persons "to be held by them in trust for Trinity Parish."

in a certain town, county, and state, held void or uncertainty. Weaver v. Spur \[W.\] $w. J. 48 E. E. 852. Benefelaries and nature and quality of their interests. Wood v. Trus- teets of Fourth Baptist Church \[R. I\] $1.

278. Gift to one in trust for the worthy poor of a specified city is void. Watkins v. Bige- lou, 93 Minn. 210, 100 N. W. 1104. Laws 1903, p. 188. c. 132, relating to trusts, held void because subject-matter of act is not expressed in title. Id. . Request of not to exceed certain sum to be expended under personal supervision of trustes for purchase of chinese, altar, or memorial window for some one to that time determine to whom the money is thought to be paid. Id. Evidence of the intention held by the trustees in regard to the uncertainty, no particular church having been named or described, and mother having died without naming any. Colbert v. Speer, 24 App. D. C. 187.

001. Cook v. Universalist General Convention \[Mich.\] 101 N. W. 217.

001. Request to "Universalist Japan Mis-

001. Where testatrix made bequest to the "Universalist Japan Mission Fund" for the support of the "Universalist Mission in Japan," to show that she was a Universitat, that she had previously contributed to such fund, and that the Universalist General Convention was only society of that denomina- tion having such a mission. Cook v. Uni- veralsist General Convention \[Mich.\] 101 N. W. 217.

See, also, Wills, 4 C. L. 1863; Deeds of Conveyance, 3 C. L. 1056.

33. N. Y. Acts 1893, p. 1748, c. 701. Mount v. Tuttle, 99 App. Div. 433, 91 N. Y. S. 195.

Act applies only to trusts which are to be executed within that state. Gift In trust to\* T. missionary bishop of Utah and Idaho, his successors, etc., to erect church and rectory

at such place in his jurisdiction as he should held by them in trust for Trinity Parish."

elet, held invalid. Id. Charitable trust pro- in a certain town, county, and state, held void or uncertainty. Weaver v. Spur \[W.\] $w. J. 48 E. E. 852. Benefelaries and nature

test to the creation of some charitable or ed- and quality of their Interests. Wood v. Trus- teets of Fourth Baptist Church \[R. I\] $1.

restriction as to character, except that it

278. Gift to one in trust for the worthy poor of a specified city is void. Watkins v. Bige- lou, 93 Minn. 210, 100 N. W. 1104. Laws 1903, p. 188. c. 132, relating to trusts, held void bequest-matter of act is not expressed in title. Id. . Request of not to exceed certain sum to be expended under personal supervision of trustes for purchase of chinese, altar, or memorial window for some one to that time determine to whom the money is thought to be paid. Id. Evidence of the intention held by the trustees in regard to the distribution prior to the time when it can take 5 Cur. Law. CHARITABLE GIFTS SS 1. 569

indefinite, or dependent upon the discretion of a last trustee.\[34\] In such case the court is given control of the property for the purpose of carrying out the intention of the donor as nearly as possible.\[33\]

In many states charitable gifts made within a specified time before the death of the donor or the testator are void.\[38\]

In New York any person having a husband, wife, child, or parent is prohibited from devising or bequeathing more than half his estate after the payment of his debts to any charitable, scientific, religious or 'literary society, association, or corporation, in trust or otherwise.\[37\] The act applies to a disposition of property for a foreign trust.\[38\] As a general rule the value of the widow's dower must be deducted from the gross value of the estate in determining the amount which may lawfully be given to charities,\[39\] but this does not apply where she accepts a provision given her by will in lieu of dover.\[40\] The act applies only to testamentary dispositions of property.\[41\] It is for the benefit of those named therein and those of the next of kin who would take in connection with them under the intestacy laws,\[42\] and may be waived by them.\[48\] Any one who would take any interest in the estate if the instrument should be declared invalid may invoke its provisions.\[44\]

The rule against perpetuities does not ordinarily apply to charitable gifts.\[45\]

34. Act April 26, 1855 (P. L. 328). Gift (death the college pay certain sums and annites to specified persons, since it is not tribute money among charitable institutions except missionary societies, and direction to distribute it among as large a number of such provision that on latter's death to secure greatest good not too indefinite to allow appointment of trustee. In re persons as he should by will direct, held, De Silver's Estate \[Eq. 50 40. 1408. 35. Acts 1893, p. 1748, c. 701. Supreme reminder of the fund took as apombutes under the dead and not as devisees under the N. Y. S. 195. Rothenchild V. Wise, SS 2 N. Y. S. 1976. Act April 26, 1855 (P. L. 328.) In re De Silver's Estate \[Eq. 50 A. 1048. 34. 36. In the District of Columbia gifts and devisees for religious purposes are void unless made at least one month before death.

New. St. 457. Colbert v. Speer, 24 App. D. C. 187. The mere fact that a secular institution is controlled by a religious body or is conducted under the auspices of a particular church does not make it a religious institution within the meaning of the act, where it is open to all. Id. "President and DI-retators of Georgetown College" and certain orphan asylums incorporated under the laws of the district held not religious institutions, though under auspices of Catholic church. Id. In Pennsylvania are void if made within thirty days before death. Act April 26, 1855 (P. L. 328). In re O'Donnell's Estate, 209 Pa. 63, 58 A. 120.

37. N. Y. Laws 1860, p. 607, c. 360. Lord v. Lord, 44 Misc. 530, 90 N. Y. S. 143.

01. Robb v. Washington & Jefferson College, 103 App. Div. 327, 93 N. Y. S. 143.

01. Is her property and not testator's. Lord v. Lord, 44 Misc. 530, 90 N. Y. S. 144.

01. Lord v. Lord, 44 Misc. 530, 90 N. Y. S. 143.

01. Not to declaration of trust. Robb v. Washington & Jefferson College, 103 App. Div. 327, 93 N. Y. S. 92. Does not apply to declaration of trust in favor of college of order in a part of the income during his life, and on condition that after his 570CHARITABLE GIFTS SS 2. 5Cur. Law.

## 2 Capacity of done or trustee

The power of a corporation to take gifts for charitable purposes generally depends on the terms of its charter.\[47\] It may hold and execute a trust for charitable objects which are in accord with, or tend to promote, the purposes of its creation, even though it would not have had authority to have established them or to have expended its funds therefor.\[48\]

Restrictions imposed by the charter of a corporation upon the amount of property it may hold can be taken advantage of only by the state in a direct proceeding, and not collaterally by individuals.\[49\] Hence where the state by special legislation enlarges its powers in that regard, its capacity cannot be questioned in any manner.\[50\] Where a testator devises his property to trustees to be held for a term of years and then to be transferred to a corporation to be organized for a charitable purpose, the fact that at the time of his death such a corporation is not permitted to hold property to the amount of the devise does not invalidate the gift as to the excess, since it is to a corporation only which is legally capable of taking,\[51\] and the legislature may, after his death, authorize the organization of such a corporation.\[52\]

A charitable devise to an unincorporated body is valid in Arkansas.\[53\] The burden is on the person attacking such gifts to prove that the organizations do not exist, or that their charitable purposes are too vague and uncertain to enable them to take.\[54\]

A charitable corporation cannot act as trustee in a matter in which it has no interest,\[55\] but where it has an interest either in the principal or the income, it may act as trustee for another or others having an interest in the whole or part of the income for life.\[56\]

## 3 Interpretation and construction

Charitable donations are favored by the courts and will be carried into effect if it is possible to do so consistently with the rules of law.\[68\]

The ordinary rules of interpretation apply.\[59\]

and their successors. Biscoe v. Thweatt 47. Laws 1895, D. 343, c. 158, relating to the organization of corporations to administrements and charity for the V.

5 Cur. Law. CHARITABLE GIFTS SS 4.

A gift of testator's residuary estate to his executors to be allowed to accumulate for a term of years and then to be transferred to a corporation to be formed for the purpose of maintaining a hospital for the care of the indigent sick in a certain country creates a charitable trust from the time of the probate of the will.\* Both the legal and equitable estates vest immediately, the former in the executors as trustees, and the latter in that part of the public which is to be benefited.\* Since the equitable interests vest from the death of the testator, a limitation over from one charity which speaks from his death to another is valid without regard to the technical character of succeeding changes in title, or the rule against perpetuities.\* Nothing passes directly to the corporation under the will, but it takes through a conveyance from the trustees, made in the execution of their trust.\* The income and accumulations of the property go with the corpus of the fund in so far as the title is concerned.\* A gift to an existing corporation or to one to be thereafter organized within the time limited by law, with directions or conditions as to the use or management of the subject-matter of the gift which are reasonably consistent with the corporate purposes of the donee, is not a gift in trust, but an absolute one to the corporation with-in the meaning of the statute of uses and trusts.\* S 4. _Administration and enforcement.\*_ A charitable or eleemosynary trust may only be created by grant or legislative act.\* In the incorporation of a charigued residue of estate to charitable corporation, and thereafter by codicial changed Brigham Hospital \[C. C. A.\] 134 F. 513. same so as to give a specific sum theorem to another charity, and such codicil was void, held, that the first named corporation where both the legal and beneficial owner was entitled to the entire residue, including the void bequest. Prison AssN of Virginia v. Russell's Adm'r \[Va.\] 49 S. E. 968. Where will provided for legacies to certain charitable institutions, but provided that, with one exception, they should not be paid until they had doubled by accumulation of interest, and of a designated locality held valid. Id. The royalties and the sale of certain land should be divided among the same charities, held, that the latter gift was not cumulative on the previous specific bequests, but merely directed the method in which they should be paid. In re Handley's Agastate \[Pa.\] 61 A. 350. 600. 500. 500.

table society, it is not necessary to minutely and precisely identify the ultimate recipients of the bounty." A gift is for the "benefit" of the donee if the donee is of such character that it stands for all those who may be actual beneficiaries."

The powers and duties of trustees for charitable purposes are generally fixed by the instrument creating the trust." Where a valid gift for charitable purposes has been made by will, the heirs have no standing in equity to question the powers or title of the devisee or of intervening executors." The mere fact that the society which is the beneficiary bestows its largess on other charitable institutions does not involve a delegation of its discretionary power to select beneficiaries."

If, on account of a change in circumstances, it becomes impracticalle to administer the trust in the precise manner provided by its creator, it will be administered as nearly as possible in accordance therewith."

Courts of equity have an original and inherent jurisdiction over charities both under the statute of charitable uses and independent of it." They may prevent any misappropriation of the trust fund or correct any abuse in its management by the trustees," provided such jurisdiction is invoked by some one interested in the trust, or in the name of the attorney general, as the representative of the state, in an action or proper proceeding authorized by law for that purpose." Unless such power is conferred by the instrument creating the trust, the court has no jurisdiction to act in the matter of his own volition and on his own motion without any information or action on the part of anyone."

It can only be created by grant when prop-

tenton, which is legal and possible of ful-

tenton, and only defect is a misnomer of

68. Smith v. Havens Rellef Fund Soc., 44

Misc. 594, 90 N. Y. S. 168.

Universalist General Convention \[Mich.\] 101

80. Where will created trust for people of

N. W. 217. Where will provides for creation

city and devised property to a church and

school, a decree finding that the trusts were

conveyed by trustees after a specified period,

established for the benefit of the church and

school instead of the city held not erroneous

be to organise such a corporation, but do-

ous, since they were public charitable

lentis who were to act as agencies in dis-

then match of administration will be found

pensing the charity. Worcester City Misionary Soc. v. Memorial Church, 186 Mass.

Codman v. Brighman, 187 Mass. 309, 72 N. E. 71.

108. Cy pres doctrine does not apply in

001. Devise of reality in trust to religious

soiety for creation of chapel, with direction

346. Instruments creating trusts for public

that society should "suffer and permit" same

to be under the "care, custody, and management of the decagons of the society as designated," held to give decagons control and

the management of the property independent of

htm cannot be followed. Biscoe v. Thweatt

the trustee holding the title, and of which

the latter could not deprive them. Worcester

City Misionary Soc. v. Memorial Church, 186

Mass. 517, 72 N. E. 71. Deacons held to have

been given similar powers in regard to leg-

acles for support of industrial school and to

defray expenses of maintaining minister, etc.

Id. Bequest in trust held to require net income to be used in defraying expenses of

maintaining minister and public worship,

even if the trustees anticipate a loss to the

principal, and should not be held back to

make good such losses. Id. Provisions in

israd to loans of trust fund for creation of

chapel held binding on trustees and to be

literally followed by them. Id.

71. Brighman v. Peter Benjamin Hospitan

pital \[C. C. A.\] 134 F. 513.

72. Smith v. Havens Rellef Fund Soc., 44

Misc. 594, 90 N. Y. S. 168.

73. Doctrine of cy pres does not apply

where there is no doubt as to testator's

tention, which is legal and possible of ful-

tenton, which is legal and possible of ful-

filament, and only defect is a misnomer of

the corporation named as trustee. Cook v.

Universalist General Convention \[Mich.\] 101

81. W. 217. Where will provides for creation

of corporation to which property is to be

conveyed by trustees after a specified period,

established for the benefit of the church and

the gift will not fall if it becomes impossi-

blo to organise such a corporation, but do-

ous, since they were public charitable

tentons which are to be applied, and some

other method of administration will be found

pensing the charity. Worcester City Misionary Soc. v. Memorial Church, 186 Mass.

Codman v. Brighman, 187 Mass. 309, 72 N. E. 71.

108. Cy pres doctrine does not apply in

001. Devise of reality in trust to religious

soiety for creation of chapel, with direction

346. Instruments creating trusts for public

that society should "suffer and permit" same

to be under the "care, custody, and management of the decagons of the society as designated," held to give decagons control and

management of the property independent of

htm cannot be followed. Biscoe v. Thweatt

the trustee holding the title, and of which

the latter could not deprive them. Worcester

74. Jenkins v. Berry, 26 Ky. L. R. 1141, 83

S. W. 594. Statute of 5 Cur. Law. CHARITABLE GIFTS SS 4. 573

The removal of trustees rests in the sound discretion of the court;" but a trustee appointed by deed or will should not be removed in the absence of such misconduct as to show a want of capacity or fidelity, putting the trust property in jeopardy."

The donor may, if he so desires, appoint trustees and confer the power of appointing their successors on them or on the beneficiaries." The trustees of an unincorporated academy have, in the absence of power conferred by grant, no authority to perpetuate their succession by filling vacancies in the board."

Equity will not allow an otherwise valid charitable trust to fail for want of a competent trustee, but will appoint one to take the trust property and carry out the charitable intent of the donor," provided there is nothing to show that the donor reposed special personal trust and confidence in the persons whom he himself appointed."

Statutes in some states specifically provide to the same effect."

On the dissolution of a charitable corporation supported by public moneys.it is competent for the legislature to direct that the proceeds of its property shall go to the county from whose treasury such moneys were in effect diverted."

torial or other supervision over hospital or control over trustees in the manner of mainstreaming or conducting it. Jenkins v. Berry,

or else in some other medical college in the District of Columbia, held one which could be executed by trustees appointed by the court. Id.

created for maintenance of school hold

S4. Pub. Laws R. I. 1893-99, c. 680, $ 1.

proper, where they were appointed by donor, who acquessed in their management until his death, as did his representatives after his decease. Haines v. Elliot \[Conn.\] 58 A. 718.

table, or scientific use shall fall for the want of a trustee. Act April 26, 1855 \[P. L. 328\].

S0, S1. Thompson v. Hale \[Ga.\] 51 S. E.

S2. Trustees of church appointed in place of unincorporated committee which was in-competent because of fluctuating membership. Wood v. Trustees of Fourth Baptist Church \[R. I.\] 61 A. 279. A trust for a particular charitable purpose where the duties of the trustees are pointed out by the will so that there is certainty in the purposes and objects of the charity. In such case is no ground to suppose that discretion of any particular trustee has anything to do with essence of the gift. Colbert v. Specer, 24 App. D. C. 187. Where executors are directed to hold property for twenty-five years and then turn it over to a corporation to be organized, the trust in the executors is not a personal one, but on their death before that time may be executed by their successors appointed by the court. Erigham V. Peter Bent Brigham

Hospital \[C. C. A.\] 134 F. 513.

S3. Where an estate is given by will to trustees to be applied to charity generally or to such charitable purposes and institutions as they, in their discretion; shall judge

both such money, held, that it was competent, and they become incapacitated or decline to act, the question whether others can be appointed to take their places depends upon the intention of the testator, to be gathered from the whole instrument. Colbert v. Specer, 24 App. D, C. 187. If it appears that the testator reposed special personal trust and confidence in the persons whom he himself appointed."

S4. Studies in some states specifically provide to the same effect."

On the dissolution of a charitable corporation supported by public moneys.it is competent for the legislature to direct that the proceeds of its property shall go to the county from whose treasury such moneys were in effect diverted."

total or other supervision over hospital or control over trustees in the manner of mainstreaming or conducting it. Jenkins v. Berry,

or else in some other medical college in the District of Columbia, held one which could be executed by trustees appointed by the court. Id.

created for maintenance of school hold

S4. Pub. Laws R. I. 1893-99, c. 680, $ 1.

Vood v. Trustees of Fourth Baptist Church who acquessed in their management until his death, as did his representatives after his decease. Haines v. Elliot \[Conn.\] 58 A. 718.

table, or scientific use shall fall for the want of a trustee. Act April 26, 1855 \[P. L. 328\].

S5. Thompson v. Hale \[Ga.\] 51 S. E.

Sequest to executors with discretionary power to distribute money among charitable institutions held not to fail by their death before distribution. In re De Silver's Estate

Ship. Wood v. Trustees of Fourth Baptist Church \[R. I.\] 61 A. 279. A trust for a particular charitable purpose where the duties of the trustees are pointed out by the will so that there is certainty in the purposes and objects of the charity. In such case is no ground to suppose that discretion of any particular trustee has anything to do with essence of the gift. Colbert v. Specer, 24 App. D. C. 187. Where executors are directed to hold property for twenty-five years and then turn it over to a corporation to be organized, to be used for educational purposes are not one, but on their death before that time may be executed by their successors appointed by the court. Erigham V. Peter Bent Brigham

S5. Where the arbitates' home was supported by ethics money and liquor fines collected in county in which it was located, and its property was principally purchased with such money, held, that it was competent for the legislature, on dissolving such home, to direct that the proceeds of its property be returned to the treasury of the county from which it had, in effect, been diverted, there being no evidence of any creditor, or of any person claiming or entitled to claim any part of the property by way of reversion. Avila v. New York, 94 N. Y. S. 1182. Trustees of dissolved
Chartel Mortgages SS 1.5Cur. Law.

**CHARTEL PARTY, see latest topical index.**

**CHARTEL MORTGAGES.**

**SS 1. What Constitutes a Chattel Mort-** **gage (574).**

**SS 2. Subject-matter. What May Be Mort-** **gaged (575).**

**SS 3. Consideration (476).**

**SS 4. Fraudulent Conveyances (576).**

**SS 5. The Instrument. Form, Execution, and Delivery (577).**

**SS 6. Filing or Recording and Notice of Title or Rights (575).**

**SS 7. Title and Ownership (580).**

**SS 8. Right of Possession (580).**

**SS 9. Llens and Priorities: Walver (581).**

**SS 10. Disposal and Use of the Property by the Mortragonor (582).**

**SS 11. Assignment of the Mortgage (582).**

**SS 12. Payment and Discharge (582).**

**SS 13. Redemption (583).**

**SS 14. Enforcement, Foreclosure; Sale (584).**

**SS 6. Filing or Recording and Notice of Title or Rights (575).**

**SS 7. Title and Ownership (580).**

**SS 8. Tight of Possession (580).**

**SS 9. Right of Possession (581).**

**SS 1.** \_What constitutes a chattel mortgage.\_90--The essential elements of a chattel mortgage are an indebtedness between the parties,94 a transfer of property by the debtor to the creditor to insure the payment of the debt,95 and a right in the debtor to have all that remains after the debt is paid.96 The intention of the parties governs;97 thus bills of sales,98 and conditional sales,99 have been held chattel mortgages. That an instrument absolute on its face is in fact a chattel mortgage may be shown by parol.1

**had been paid and no one claimed any of its property by reversion. Id.**

**SS 6. Real estate mortgages, see Mortgages, 4 C. L. 677, and Foreclosure of Mortgages on Land, 3 C. L. 1438.**

**SS 7. See Corporations, 3 C. L. 880.**

**SS 88. See Railroads, 4 C. L. 1181.**

**SS 88. See Street Railways, 4 C. L. 1556.**

**90. See Waters and Water Supply, 4 C. L. 1824.**

**91. See Bankruptcy, 5 C. L. 867: Assignment for Benefit of Creditors, 6 C. L. 286; Fraudulent Conveyances, 3 C. L. 1535.**

**92. See Limitation of Actions, 4 C. L. 445.**

**93. See 3 C. L. 682. Chattel mortgages distinguished from other transactions. See Hammon, Chat. Mortg. SS 1.**

**94. Hastings v. Fithian \[N. J. Err. & App.\] 60 A. 350. A chattel mortgage running to the mortgage as "truste" without naming a cesult que trust is void as to a third person, the mortgagor being in no wise indebted to the mortgage. Martin v.**

**SS 11. App. 199.**

**95, 96. Hastings v. Fithian \[N. J. Err. & App.\] 60 A. 350.**

**97. Certain instrument construed and held to constitute an assignment of certain rents and profits and not a mortgage thereof to secure an indebtedness between the parties. Seymour v. Ryan \[Minn.\] 101 N. W. 958.**

**98. A bill of sale being simply intended to secure the buyers on their liability as surety for the seller, and the latter reusing and selling the goods, held to constitute a mortgage. Rogers v. Nidiffer \[Ind. T.\] 82 S. W. 673.**

\*\*SS 9. A contract for the purchase of mill

**SS 9. A contract of the** purchase of mill

**SS 10.**

**SS 11.**

**SS 12. Payment and Discharge (582).**

**SS 13. Redemption (583).**

**SS 14. Enforcement, Foreclosure; Sale (584).**

**SS 6. Filing or Recording and Notice of Title or Rights (575).**

**SS 15. Remedies as Between the Parties (585).**

**SS 7. Title and Ownership (580).**

**SS 8. Right of Possession (580).**

**SS 8.**

_This topic deals exclusively with chattel mortgages,96 and does not treat of general trust deeds upon the property of corporations,97 such as railroads,98 street railways,99 and water companies.90 The effect of the mortgage as a preference or fraudulent transfer is treated elsewhere,91 as is the operation of limitations upon actions to enforce it.92_

Footnote 97: The name of the market is the name of the market.

Footnote 98: A contract 5 Cur. Law. CHATTEL MORTGAGES SS 3. 575

## 2 Subject-matter

What may be mortgaged.\[1\]--The mortgage may cover after-acquired property,\[2\] provided there is an interest in praesenti of which the future acquisition is the product, or in such wise incident to or connected with it, constituting a tangible and substantial predicate of a contract.\[3\] As to such property the lion attaches as between the parties upon the property coming into the possession of the mortgagor,\[4\] and, as between such parties, it relates back to the date of the mortgage.\[5\] Sharves of stock in a corporation may be mortgaged.\[6\]

\_Title and interest of mortgagor.\[7\]--The mortgagor must have some title or interest in the property,\[8\] but this title need not be absolute, a contingent interest being sufficient to sustain the mortgage;\[10\] thus a purchaser under a conditional sale has a mortgagable interest in the property;\[11\] but he cannot by executing a mortgage affect the rights of the seller.\[12\] Partnership property cannot be mortgaged by one partner without the consent of the other partner, for the purpose of securing his individual debt, so as to defeat the claims of partnership creditors.\[18\] Statutory provisions as to the power of a husband to mortgage his wife's property govern.\[14\]

\_Description of property.\[15\]--The description must be such as, aided by the inquiries which the mortgage itself indicates and directs, will enable third persons to identify the property.\[16\] Location may make the description certain,\[17\] but failure to give the location,\[18\] or an error therein,\[19\] the description being ample in other re-

1. See 3 C. L. 683.

Live Stock Commission Co. \[Mo. App.\] SS 4 S. Washington Trust Co. v. Morse Iron Works & Dry Dock Co., 94 N. Y. S. 495.

4. Fidelity & Deposit 'Co. of Maryland v. B. F. Sturtevant Co. \[Miss.\] SS No. 783. See Hammon, Chat. Morts. c. 2.

1. Crops to be grown. Thurston v. Osborne-McMillan Elevector Co. \[N. D.\] 101 N. W. 892.

1. In re Rogers, 122 F. 560; declaring the law of Vermont as indicated by Thompson v. Fairbanks, T5 VT. 361, 56 A. 11.

1. Clark & M. Corp. SS 624.

1. See 3 C. L. 683.

1. Richley v. Childs, 111 . App. 173. Mortgage given, by the vendor of a chatted after its sale, upon the false representation that he was the owner, held not enforceable as against the vendee's creditors, the vendee having posted a sign with its name on in the shop where the chatted was used. Ott v. Sutcliffe \[N. J. Eq.\] 60 A. 965. Evidence held to show that such a sign was posted. Id. Where wife held executory contracts for the purchase of land, the fact that the husband devotes his time and labor to the cultivation of the land does not prove that he has any interest in the crop so that a mortgage given by him will create any lien there-on. Thurston v. Osborne-McMillan Elevector Co. \[N. D.\] 101 N. W. 892.

Evidence held sufficient to show that the mortgagor had such title and Interest in the property as owner, as authorized him to execute the mortgage and render it valid against the estate of his deceased partner. Chapman v. Greene \[S. D.\] 101 N. W. 351.

10. Hammon, Chat. Morts. c. 2.

01. Washington Trust Co. v. Morse Iron Works & Dry Dock Co., 94 N. Y. S. 495.

01. Seller under a conditional sale takes free from mortgage given by purchaser, the latter having defaulted. Freed Furniture & Carpet Co. v. Sorensen \[Utah 17 9 F. 564.

01. Sedalia Nat, Bank v. Cassally Bros.

01. Eve Stock Commission Co. \[Mo. App.\] SS 4 S. W. 142.

01. Mississippi: Under Code 1892, SS 2293, a husband may subject cotton raised on his wife's plantation to the payment of family and plantation supplies furnished and used on the place. Dean v. Boyd \[Miss.\] 38 So. 297.

01. See 3 C. L. 683.

01. Fair v. Citizens' State Bank \[Kan.\] 79 P. 144; Kaase v. Johnston \[Ind. T.\] 82 S. W. 680; Williamson, V. Payne, 103 Va. 551, 49 S.

01. Ett & M. Corp. SS 624.

01. See 3 C. L. 683.

01. Richley v. Childs, 111 . App. 173. Mortgage given, by the vendor of a chatted after its sale, upon the false representation that he was the owner, held not enforceable as against the vendee's creditors, the vendee having posted a sign with its name on in the shop where the chatted was used. Ott v. Sutcliffe \[N. J. Eq.\] 60 A. 965. Evidence held to show that such a sign was posted. Id. Where wife held executory contracts for the purchase of land, the fact that the husband devotes his time and labor to the cultivation of the land does not prove that he has any interest in the crop so that a mortgage given by him will spects, does not invalidate the mortgage. The description being sufficiently definite to justify the admission of the mortgage in evidence, extrinsic evidence is admissible to identify the property.20

By statute in some states indefiniteness only impairs the title to the chattel while in the possession of the mortgagor.20a

The question of what is covered by the description is largely one of intent.20b

In order that the mortgage may be extended to after-acquired property, the intention to have it so apply must be clearly expressed in the instrument.20c

There is a conflict as to whether an after-acquired property clause extends to or covers the interest the mortgagor acquires in property as a purchaser under a conditional sale20d

but in no case can it affect the rights of the seller in such sale.20e

SS 3. \_Consideration.\_41--Like other contracts a chattel mortgage must be based upon a lawful consideration.22 The mortgage is wholly void if the consideration therefor is exaggerated with fraudulent intent.28

SS 4. \_Fraudulent conveyances.\_24--In the absence of circumstances raising a presumption of fraud, a chattel mortgage to be fraudulent must appear to have been given by the mortgagor and received by the mortgage with a fraudulent intent,25 and in this connection the fraud of an agent will be deemed that of his principal.28 A mortgage permitting the mortgagor to retain and sell the mortgaged property in the ordinary course of trade 27 though valid as between the parties,28 is in most 29 but not

ing recorded in the proper place. Kause v. V. Morse Iron Works & Dry Dock Co., 94 N. Johnston \[Ind. T.\] 82 S. W. 680. T. S. 495.

19. Tootle v. Buckingham \[Mo.\] 88 S. W. 619.

01. Colean Implement Co. v. Strong \[Iowa\] 102 N. W. 506.

20a. Connecticut: Failure to observe the requirements of Gen. St. 1902, SS 4132, in regard to definiteness of description by the terms of the statute only impairs the title to the chattel in the possession of the mortgagor, hence such defect is immaterial in trover and conversion against one taking the property from the possession of the mortgage. Aldrich V. Higgins \[Conn.\] 89 A. 498.

20b. Furgerson v. Twisdale, 137 N. C. 414.

49 S. E. 914. A mortgage by two persons on crops to be raised by them on land of one, held not to include a crop raised by one of the mortgagor alone on another part of the same tract of land. Id. Evidence held to show that the cattle sold defendant were covered by the mortgage in question. Scaling v. First Nat. Bank \[Tex. Civ. App.\] 87. W. 715.

A mortgage of land and of water rights held not to embrace certain stock in a water company. Bank of Visalia v. Smith \[Cal.\] 81 P.

20e. Cunningham v. Alryan Woolen Mills \[N. J. Eq. 61 A. 372: Pidelity & Depposit Co. of Maryland v. B. F. Sturtevant Co. \[Miss.\] 38 S. 183. Mortgage covering all of the mortgagor's property of every nature and description including all franchises, machin.

20a

The question of what is covered by the description is largely one of intent.20b

In order that the mortgage may be extended to after-acquired property, the intention to have it so apply must be clearly expressed in the instrument.20c

There is a conflict as to whether an after-acquired property clause extends to or covers the interest the mortgagor acquires in property as a purchaser under a conditional sale 20d

but in no case can it affect the rights of the seller in such sale.20e

SS 3. \_Consideration.\_41--Like other contracts a chattel mortgage must be based upon a lawful consideration.22 The mortgage is wholly void if the consideration therefor is exaggerated with fraudulent intent.28

SS 4. \_Fraudulent conveyances.\_24--In the absence of circumstances raising a presumption of fraud, a chattel mortgage to be fraudulent must appear to have been given by the mortgagor and received by the mortgage with a fraudulent intent,25 and in this connection the fraud of an agent will be deemed that of his principal.28 A mortgage permitting the mortgagor to retain and sell the mortgaged property in the ordinary course of trade 27 though valid as between the parties,28 is in most 29 but not

Footnote 37 5 Cur. Law. CHATTEL MORTGAGES SS 5.

all "o of the states held to be conclusively fraudulent as to creditors, unless, by the terms of the agreement, the proceeds of such sale are to be applied to the payment of the mortgage debt," or unless the mortgage is recorded, or the mortgage takes actual, open, notorious and unequivocal possession," and in the latter case its validity dates from the date possession is so taken." Statutory provisions govern." A statutory presumption of fraud raised by the mortgage failing to take immediate possession is not available to one attaching the property after the mortgage has taken possession." In the absence of insolvency in the mortgagor, or of any intent to hinder, delay or defraud creditors, the fact that the mortgage covers property worth much more than the debt secured does not invalidate the mortgage." The mortgage may, if he acts in good faith, by the terms of the mortgage appoint the mortgagor his agent in selling the mortgaged property." A mortgage being void as to creditors, it is void as against the mortgagor's trustee in bankruptcy."

SS 5. \_The instrument. Form. execution and delivery."--Like other contracts, a chattel mortgage is invalidated by fraud entering into the execution of the contract." A verbal chattel mortgage is binding on the parties and those having knowledge of its existence." A mortgage not executed in the manner and form prescribed by law is good between the parties." A signature by mark and the attestation thereof are not invalidated by the fact that the attesting witness was an agent or employe of the mortgage." An unsigned contract printed on the back of a mortgage, and not referred to therein, cannot in any way qualify the terms of the mortgage."\_Acknowledgment, affidavit and extension."\_Statutory requirements as to acknowledgement must be complied with in order to render the mortgage valid as to

Gardner, 5 S. D. 246, 58 N. W. 557.--From creditors. First Nat. Bank v. Beley \[Mont.\] 3 Mich. L. R. 661.

35. Fred Krug Brewing Co. v. Healey \[Neb.\] 101 N. W. 329.

01. Ward v. Parker \[Iowa\] 103 N. W. 104.

01. Such an arrangement is not void as to creditors. Kelly v. Tracy & Avery Co. \[Ohlo\] 73 N. E. 455.

01. In re Marine Construction & Dry Dock Co., 138 F. 921.

01. See 3 C. L. 686.

01. Fraud entering into a contract of exchange will not avoid a mortgage given by one of the parties to secure payment of a balance in his favor. Sylvester v. Ammons \[Iowa\] 101 N. W. 782. An instruction that if either the seller or his employee changed the cost tickets on the goods, for the payment of a part of the purchase price of which the mortgage was given, so as to make them show a greater price than the cost price, the mortgage was void, held correct. Id.

01. See 3 C. L. 686, n. 60. Under Rev. St. 1895, art. 3327, on a sale of chattel's, possess-transfer of personal property, other than a mortgage, when allowed by law, is conclusively presumed to be fraudulent, if not followed by change of possession, does not apply to any chattel mortgage. Stewart v. Hoffman \[Tex.\] 87 S. W. \[Mont.\] 81 P. 3, rvg. former opinion, 77 P. 689. Under Cu. Code, $361, the mortgage is gagor retaining possession, the mortgage is void as to attaching creditors unless it is accompanied by the affidavit of the mortgage that the mortgage was made in good faith, without design to hinder, delay, or defraud 5 Curr. L--87.

01.

third persons. \[40\] The signature of the affiant is not necessary, in the absence of a rule of court or statute requiring it. \[41\] An affidavit describing the affiant by name followed by the word "mortgagor" is a sufficient designation of him as the person who made the mortgage. \[48\]

\_Alleration and construction.--\_An intentional and fraudulent insertion of additional property in a chattel mortgage by the mortgage renders the instrument void \[49\] The mortgage being partly written and partly printed, the former controls the latter if the two are inconsistent. \[80\]

\_Proof of instrument.--\_A certified copy of a chattel mortgage is competent for the purpose of proving additions made to the original instrument, already in evidence, since its execution. \[51\]

\_Renewal affidavit.--\_An interested party may, as a notary public, administer the oath to a renewal affidavit. \[52\]

SS 6. \_Filing or recording and notice of title or rights. \[53\]--\_The recording of a chattel mortgage and the effect thereof are governed by the law of the state where the property is situated. \[54\] In some states a mortgage covering real and personal property is sufficient if recorded as a real estate mortgage. \[55\] In some states the mortgage must be recorded in the county where the mortgagor resides. \[54\] The index must be sufficient to give notice. \[57\] Failure of recording officer to discharge his duty in respect to mortgages duly filed with him does not affect the mortgages' rights. \[58\] A mortgage is valid between the parties, though unrecorded, \[59\] but void as to third parties who, not having actual notice of the mortgage, \[60\] have acquired adverse rights or suffered prejudice during the interval between execution and recording or taking possession by the mortgage. \[61\] To a certain extent recordation of the mortgage pro-

46. \[\] Under Rev. St. c. 95, SS 1, a chattel mortgage not acknowledged before a magistrate of the town where the mortgagor resided is void as against the rights and in- \[59, SS3, n. 77, 78\].

tests of third persons. Farson v. Gilbert, \[14\] 111. App. 17.

Oregen: A bill of sale intended as a mortgage but not executed and acknowledged as required by B. & C. Comp. $650, is invalid.

Cluver v. Randle \[Or.\] 78, P. 394.

47. 15 Del. Laws, p. 616, c. 477, SS 4, and

Rev. Code 1852, amended in 1893, c. 112, SS 9,

contruted. In re Shannahan-Wrightson Hard-

"L & M." and under the head of "Amount," ware Co. \[Del.\] 58 A. 1023. See Addavits, 5 "255, held sufficient to the amount of $25, C. L. 60.

48. In re Shannahan-Wrightson Hard-

surve Co. \[Del.\] 58 A. 1023.

49. Bedgood-Howell Co. v. Moore \[Ga.\] 51 App.\] 87 S. W. 715.

S. E. 420. See topic Alteration of Instruments, $ C. L. 110.

56. Code, $461. Sylvester v. Ammons

\[Iowa\] 101 N. W. 782. Printed clause per-

mitting the mortgage to take possession

wherever he might choose held inconsistent

with the written reservation of the right of the mortgagor to sell in the regular merchant way. Id.

51. W. W. Klimball Co. v. Piper, 111 Ill. App. 82.

01. Such defect at most renders the affidavit voidable; it does not impair its effect

as notice. Fair v. Citizens' State Bank \[Kan.\]

79 P. 144. So held where affidavit of a corporation was worn to before an officer and

stockholder in such corporation, Id.

53. See S. C. La 687. See, also, Notlce and

Record of Title, 4 C. L. 829.

54. Though mortgagor and mortgage re-

01.

## 5 Cur. Law. CHATTEL MORTGAGES SS 6.

tects the mortgage from prior unrecorded claims of which he had no knowledge.\[62\] A chattel mortgage being executed on property in one state, and duly filed for record, it will be binding on the property after its removal to another state,\[63\] even as against an innocent purchaser for value from the mortgagor.\[64\] In New York an unfiled chattel mortgage is absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith;\[65\] but only those who have obtained judgment and execution,\[66\] or placed the property in the custody of the court through the medium of a receiver,\[67\] can assert and take advantage of the invalidity. In New Jersey the chattel mortgage must be immediately recorded,\[68\] and knowledge of the existence of the mortgage does not preclude a creditor of the mortgagor from assailing the instrument for want of compliance with the statute.\[69\] Depositing with the clerk is a sufficient compliance, the mortgage being actually recorded.\[70\] In the absence of an agreement between the parties, a mere withholding of the mortgage from record is insufficient to render it fraudulent,\[71\] nor does such fact, no prejudice being shown, estop the mortgage from relying on the mortgage.\[72\] In New York failure to refle the mortgage does not render it invalid as against, nor subordinate to, a subsequent mortgage executed after the first mortgage has been recorded and while such filing is in force.\[73\]

The word "ereditor" as used in statutes, declaring unrecorded chattel mortgages to be void as against creditors and bona fide purchasers for value, means creditors

mortgage under an unrecorded mortgage, though entitled to priority as against prior creditors of the mortgagor, is not entitled to priority as against subsequent creditors without notice. In Tucker, 133 F. 711.

Michigan: Under Comp. Laws, $ 9523, providing that chattel mortgages not filed or accompanied by immediate change of the possession of the property mortgaged shall be void as against subsequent mortgages in good faith, a subsequent, unfiled mortgage has priority over a prior, unfiled mortgage Lingle v. Owosso Sugar Co. \[Mich.\] 102 N. W. 639. Under such statute an unrecorded chattel mortgage, there being no change in the possession of the property, is void as against persons who in good faith extend credit to the mortgagor without notice of the existence of the mortgage. Sachs v. Norn \[Mich.\] 102 N. W. 983.

Texas: An unrecorded chattel mortgage is void only as against lien creditors of the mortgagor, or subsequent purchasers and mortgages or themselves in good faith. Meyer Bros. Drug Co. v. Pipkin Drug Co. \[C. C. A.\] 136 F. 896, following Grace v. Wade, 45 Tex. 527: Overstreet v. Manning, 67 Tex. 567, 4 S. W. 248.

62. Held to take free from claim that mortgagor procurated mortgaged property by fraud. Henan v. Forest City Paint & Varnish Co. \[Mich.\] 101 N. W. 806.

01. F. E. Creelman Lumber Co. v. J. A. Lesn Co. \[Ark.\] 83 S. W. 320. One buying chattel's covered by a duly recorded mortgage is guilty of conversion, although he receives and sells such chattelis in a state other than that in which the mortgage is recorded. Scaling v. First Nat. Bank \[Tex. Civ. App.\] 87 S. W. 715. See Conflict of Laws, 3 C. L. 720, also see note in 64 L. R. A. 358, 856.

01. F. E. Creelman Lumber Co. v. J. A. Lesn Co. \[Ark.\] 83 S. W. 320.

01. Russell v. St. Marti, 180 N. Y. 355, 78 N. E. 81. Tin reeded, 138 F. 441.

01. In re Beede, 188 F. 441; Skilton v. Coddington, 93 N. Y. S. 460; Schwab Mfg. Co. v. Alzenman, 94 N. Y. S. 729.

01. Schwab Mfg. Co. v. Alzenman, 94 N. Y. S. 729.

01. Attaching creditor held prior to mortgage who recorded mortgage five months after execution and a week before issuance of the attachment. Murray v. Zeller \[N. J. Eq.\] 59 A. 261.

01. Murray v. Zeller \[N. J. Eq.\] 59 A. 261.

01. Failure to record, held deposit insuffin-cient. Murray v. Zeller \[N. J. Eq.\] 59 A. 261.

01. Ward v. Parker \[Iowa\] 103 N. W. 104.

NOTE. Delay in Mitig: As to the question of delay in recording a chattel mortgage, it is held by many courts that a mortgage is not rendered fraudulent, as to subsequent creditors, by mere failure to record, where there is no agreement between the mortgagor and mortgage that the mortgage shall not be recorded. Mull v. Dooley, 89 Iowa, 312, 55 N. W. 513; Stewart v. Hopkins, 30 Ohio St. 502; Grimes Dry Goods Co. v. Mc580 CHATTEL MORTGAGES $ 7. 5 Cur. Law.

having some sort of lien fixed by law or legal proceedings upon particular property, and does not include a mere general creditor.\[14\] The word "purchasers" includes mortgagees for value.\[78\] A "factor" is neither a creditor of the mortgagor nor a subsequent purchaser or mortgagee.\[78\] A mortgage debt being tainted with usury, the mortgagee is not a purchaser or creditor in good faith.\[78\] One having knowledge of the mortgage is not a bona fide purchaser.\[78\]

\_Notice of title or rights.\[78\]--\_The property \[80\] and parties \[81\] being correctly described in the mortgage, recording is equivalent to actual notice.\[82\] A mortgage, ineffective as notice to third parties for want of a sufficient description of the property when entered and recorded, cannot be made effective notice as to such third parties by thereafter writing into the original instrument the necessary descriptive words.\[88\] Actual, open and notorious possession by the mortgagee is just as efficacious as filing.\[84\] The mortgagee, asserting that the mortgagor's creditors had notice, must prove it.\[85\]

SS 7. \_Title and ownership.\[86\]--\_The general rule, following the common law, is that the mortgagee takes the legal title subject to be defeated on the performance of the conditions,\[87\] but the courts are not all in harmony with this rule.\[88\] Upon default of the mortgagor, the legal title to mortgaged chattels vests absolutely in the mortgagee,\[89\] and a subsequent tender of the amount due does not operate to revest the title in the mortgagor,\[90\] the latter's sole remedy being a bill to redeem,\[91\] and the mortgagor cannot, without proof of payment or other extinguishment of the mortgage, maintain an action against the mortgagee for a conversion of the property.\[92\] The alteration of the mortgage after execution and delivery does not divest the title of a purchaser acquired under the paper as made.\[93\]

SS 8. \_Right of possession.\[94\]--\_Upon default the mortgagee becomes entitled to

74, 75. _Rason v. Garrison \[Tex. Civ. App.\]_ 1844; P. L. p. 492, construed. Hastings v. 82 S. W. 800. _Fithian_ \[N. J. Err. & App.\] $0 A. 350. _Fro._ Greer v. Newland \[Kan.\] 78 P. 835, _S5._ In re Ducker, 133 F. 771. _Fro._ former opinion, 77 P. 88. _S6._ See S. C. L. 690. _S7._ Morris v. Bank of Attala \[Ala.\] 88. _S7._ Brass v. Green, 113 Ill. App. 58. _Re-So._ 804. _Exclusion of evidence on this point_ 94 N. Y. S. 87. Mortgagee takes title sub- 78. _Tootle v. Buckingham \[Mo.\] 88 S. W. 619. _S8._ See 3 C. L. 690. _S8._ See 3 C. L. 691. _S8._ See 3 C. L. 691. _S9._ Alexander v. Meyenberg, 112 Ill. App. 58. _S9._ Alexander v. Meyenberg, 112 Ill. App. 223; Fishback v. Garrison Milling & Sleva- 224; Vishack v. Garrison Milling & Sleva- 225; Vishack v. Garrison Milling & Sleva- 226; Vov. G. \[Colo.\] 79 P. 749; Fidelity Loan inserted his name as grantor, but another - 339. _S100._ W. _S111._ App. 58._ W. _S123._ Hazlett v. _S130._ W. _S141._ Asr's V. _S151._ Hazlett v. _S152._ Hazlett v. _S153._ Hazlett v. _S154._ Hazlett v. _S155._ Hazlett v. _S156._ Hazlett v. _S157._ Hazlett v. _S158._ W. _S160._ W. _S171._ Hazlett v. _S159._ Hazlett v. _S150._ W. _S161._ Hazlett v. _S151._ Hazlett v. _S152._ Hazlett v. _S153._ Hazlett v. _S154._ Hazlett v. _S155._ Hazlett v. _S156._ Hazlett v. _S157._ Hazlett v. _S158._ W. _S162._ Hazlett v. _S159._ W. _S172._ Hazlett v. _S150._ W. _S173._ W. _S174._ W. _S175._ W. _S176._ W. _S177._ W. _S188._ W. _S189._ W. _S190._ W.

5. Cur. Law. CHATTEL MORTGAGES SS 9. 581 the immediate possession of the property," and, except as against persons without interest," this possession must be taken within a reasonable time after default," a failure to so do destroying the lien of the mortgage as against subsequent purchasers and attachment or judgment creditors." What is a reasonable time must be determined by the situation of the parties and the special circumstances of each case," and the burden is upon the one claiming under such mortgage to establish a reduction to possession within the time required by law.1 This possession the mortgage is entitled to take from anyone who holds the property by a title subordinate to the mortgagor,2 and for the purpose of assuming this possession, replenvin is an appropriate form of action;2 in such action no issue is involved except the question as to the plaintiff's right of possession;2 hence it is not incumbent upon the plaintiff to join any person except the one who actually withholds possession.3 The effect of statutory provisions upon the mortgage's right to take possession is shown in the notes.4 The mortgage lawfully taking possession, a detention by him is not unlawful, no demand or tender being made.5

SS 9. \_Liens and priorities; waiver. Duration of mortgage lien.5--\_Upon what chattels the mortgage is a lien must be determined largely from the mortgage itself.6 The lien of a mortgage upon after-acquired property attaches as soon as the property is acquired by the mortgagor,7 and as between such parties it relates back to the date of the mortgage.8 The lien of the mortgage cannot be defeated by the fraud of the mortgagor and a purchaser from him.8

\_Conflicting liens; waiver.\_11--In the absence of consent by the mortgage,8 a mortgage is generally paramount to liens created by the mortgagor, if the lienors are

95. Fishback v. Garrison Milling & Elevator Co. (Colo. App.J 79 P. 749: Fidelity)

01. See 3 C. L. 693.

01. A mortgage to secure vendor's lien lien lien v. Hamilton Storage & Warehouse Co., notes covering crops grown on land "during the years 1897, 1988, 1899, 1900 and 1901," a chattels the mortgage after breach of a contlion can maintain claim and delivery under matured, creates a lien on each year's crop to secure the note maturing that year, and v. Randle (Or.J 78 P. 394. An affdaviu in an action of replenvin by a mortgage, alleging ownership in the plaintiff, is sufficient under each note without regard to the date of its manurity. O'Bryan Bros, v. Wilson \[Miss.\]

01. 609.

01. P. 41.

01. Fishback v. Garrison Milling & Elevator Co. (Colo. App.J 19 P. 749. That mortgage allowed statutory period to elapse does not entitle a mere ballee of the property to retain it as against the mortgage. Id.

87, 98, 90. Richley v. Childs, 114 III. App. 117. Where both parties resided in the same country, within a few miles of each other, and three days were suffered to pass after default without any effort being made to take possession, the delay is unreasonable as against the rights of third parties. Id.

1. Richley v. Childs, 114 III. App. 173.

2, 3. Hazlett v. Hamilton Storage & Warehouse Co., 94 N. Y. S. 580: Fidelity Loan Asy'n v. Connolly, 92 N. Y. S. 252.

4, 5. Haslett v. Hamilton Storage & Warehouse Co., 94 N. Y. S. 580.

6. New York: Municipal Court Act, $ 139.

providing that no action can be maintained in that court on a chatted mortgage, except to foreclose a lien, does not preclude a chatted mortgage from taking possession of chattels under the terms of the mortgage. Shelton v. Holzwasser, 91 N. Y. S. 828.

7. Shelton v. Holzwasser, 91 N. Y. S. 328.

1. See 3 C. L. 693.

1. A mortgage to secure vendor's lien notes covering crops grown on land "during the years 1897, 1898, 1899, 1900 and 1901," during which time the notes respectively matured, creates a lien on each year's crop to secure the note maturing that year, and not a running lien on all the crops produced during the term of years for the payment of each note without regard to the date of its maturity. O'Bryan Bros, v. Wilson \[Miss.\]

1. 609.

1. Thurston v. Osborne-McMillan Elevator Co. (N. D.) 101 N. W. 892.

1. In re Rogers & Woodward, 132 F. 560, declaring the law of Vermont as indicated by Thompson v. Fairbanks, 76 V. 361, 66 A. 11.

1. Mortgagor of cattle cannot by mixing other cattle of like description with those mortgaged defeat the mortgages, either in his own favor, or in that of subsequent purchaser of certain of the cattle from him, on the ground that a portion of the cattle sold were not the cattle mortgaged. Tootie v. Buckingham \[Mo.\] 88 S. V. 619.

1. See 3 C. L. 693. See, also, ante, SS 6, Re affected with notice of the mortgage.15 A second mortgage claiming priority by agreement, the burden is upon him to show such an agreement;15 and in this connection a mortgagor is not the agent of the mortgage so as to bind the latter by representations in obtaining a loan of another by mortgage on the same property.17 The mortgagor owning the mortgaged property individually the mortgage cannot be postponed in the collection of his debt to the adjustment of equities existing between the mortgagor and his partner.18 The mortgage takes subject to liens given priority by the law of the state where the parties to the mortgage reside and where the chattels are located, even though the property be removed to a state the law of which gives the mortgage priority.19 The mere taking of additional security does not necessarily waive the mortgage lien.20

**SS 10.**_Disposal and use of the property by the mortgagor.21_--In some states an unlawful disposition of mortgaged property is a crime.22 In a criminal prosecution for so doing the general rules as to the sufficiency of the indictment apply,23 and there must be evidence showing a sale and removal.14

**SS 11.**_Assignment of the mortgage.25_--An assignment of the debt carries the mortgage with it.26 A mortgage securing a negotiable note so far partakes of its character as to pass free from equities between the original parties to a bona fide inidorsee of the note.27 The assignor of a mortgage has no right to take possession as against a junior mortgage.28 In Illinois the mortgage cannot assign the legal title vested in him by virtue of the mortgage;29 but after he assigns the debt secured by his mortgage, he becomes a mere naked trustee of the legal title, with no power to release or discharge the mortgage lien or otherwise to dispose thereof, and he has no right, of his own motion and for his own benefit, to institute and maintain an action for the recovery of the property or for a violation of a right secured by such mortgage, and this notwithstanding he may be liable as an indorser, and the defendants may have been guilty of wrongful conversion; 20 nor does the absolute re-acquisition of the note and mortgage by the chattel mortgage after the commencement of the suit alter his rights therein.21

**SS 12.**_Payment and discharge.33_--The mortgage fixing no time for payment becomes due immediately upon the execution of the mortgage, and the mortgage may foreclose at any time.33 A promise to forbear, or extend the time of payment of a debt actually due, based upon a promise of the debtor to pay the sum with in-

15.\*\*The lien of a livery stable keeper for the board of horses and care of a buggy after the execution of a mortgage thereon by the 23.\*\*Under Code 1896, p. 335, an Indictment owner, of which the livery stable keeper has constructive notice, is inferior to the lien of the mortgage. Masterson v. Peli \[Tex\], prosecutor, who had a lawful mortgage Civ. Appl. 86 S. W. 56. Mortgage held to theorem, sold personal property described, de-cover future indebtedness as against a sub-sequent mortgage taken subject to the first certificate of prosecutor's claim, is sufficient. mortgage. Davie v. Carlisle \[Ind. T.\] 82 S. \[Talent v. State \[Ala.\] 38 So. 841. \[W.\] 82. \[T.\] 16, 17. Clitzens' State Bank v. Smith, 195 error to refuse a general charge requiring Iowa, 505, 101 N. W. 172. \[Tex\], 18. Scalling v. First Nat. Bank \[Tex. Civ.\], 38 So. 841. \[A.\] 25. See 5 C. L. 695. \[B.\] 26. Brass v. Green, 113 III. App. 58. \[C.\] 27. Cudahy Packing Co. v. State Nat. Bank \[C. C.\] 134 F. \[C.\] 135. \[T.\] 28. If he does so he is guilty of conver-

16, 17. Clitzens' State Bank v. Smith, 195 for some of which gives the mortgage priority.19 The mere taking of additional security is not necessarily waive the mortgage lien.20

**SS 10.**_Disposal and use of the property by the mortgagor.21_--In some states an unlawful disposition of mortgaged property is a crime.22 In a criminal prosecution for so doing the general rules as to the sufficiency of the indictment apply,23 and there must be evidence showing a sale and removal.24

**SS 11.**_Assignment of the mortgage.25_--An assignment of the debt carries the mortgage with it.26 A mortgage securing a negotiable note so far partakes of its character as to pass free from equities between the original parties to a bona fide inidorsee of the note.27 The assignor of a mortgage has no right to take possession as against a junior mortgage.28 In Illinois the mortgage cannot assign the legal title vested in him by virtue of the mortgage;29 but after he assigns the debt secured by his mortgage, he becomes a mere naked trustee of the legal title, with no power to release or discharge the mortgage lien or otherwise to dispose thereof, and he has no right, of his own motion and for his own benefit, to institute and maintain an action for the recovery of the property or for a violation of a right secured by such mortgage, and this notwithstanding he may be liable as an indorser, and the defendants may have been guilty of wrongful conversion; 20 nor does the absolute re-acquisition of the note and mortgage by the chattel

## 5 Cur. Law. CHATEL MORTGAGES SS 13.

terest on a later date, is without consideration and unenforceable." Payment being tendered and refused, the mortgage has no right to thereafter take possession of the mortgaged property.\[35\] The taking of a second note and mortgage does not of itself discharge the original security unless it is intended to so operate,\[36\] and this question of intent is generally one for the jury.\[37\] A surety upon a note secured by a mortgage, paying the same is entitled to be subrogated to the rights of the mortgage.\[38\] A release to be valid must be supported by a consideration.\[39\] Damages suffered by the mortgagor by reason of the mortgage's default may be deducted from the mortgage debt.\[40\] Though the mortgage provides for attorney's fees, such fees cannot be collected if the mortgagor has a meritorious defense to a part of the amount claimed.\[41\] Cases dealing with the sufficiency of the evidence are shown in the notes.\[42\]

One purchasing property months after the maturity of a mortgage appearing of record against it may rely upon the presumption that such mortgage has been discharged, and will be protected in his purchase, unless the mortgage has since the maturity of the mortgage debt exercised reasonable diligence to locate and obtain possession of such property,\[43\] and the burden of proving such diligence rests upon the mortgage.\[44\] No particular form of words is necessary to constitute a sufficient request to enter on the margin of the record of a mortgage a partial payment or payments on the mortgage.\[45\] All that is necessary in such notice is that the words used in the request are such as shall reasonably inform the mortgage that entry of payment is desired.\[46\] In an action to recover the statutory penalty for failure of a mortgage to record a partial payment, defendant cannot show that he recorded such entry after the expiration of the statutory time and after suit was commenced.\[47\]

_Revival._--A dormant mortgage may be revived and made effectual by the acts of the parties, but an instrument which has ceased to be valid cannot be thus revived by any act of the parties to it.\[48\]

Redemption.\[49\]--A second mortgage is an "assignee of the mortgagor" within the meaning of statutes designating parties who may redeem.\[80\] As a general rule a tender of the redemption money to be effectual must be kept good.\[51\] In some states a notice of intention to redeem is required.

## 14 Enforcement, foreclosure; sale

In order to foreclose the mortgagor must be in default;\[58\] but the fact that the mortgage is given the right to enter, take possession and sell upon default, does not bar the right to foreclose.\[58\] In order to foreclose under an insecurity clause, the circumstances must be such that a reasonable man thus situated might in good faith believe himself unsafe and insecure.\[57\] The parties may control the enforcement of the mortgage by a parol agreement, and an injunction may lie to enforce such parol agreement.\[58\]

A suit to foreclose is equitable in its nature,\[59\] and jurisdiction thereof is largely governed by statutes.\[60\] The bill to foreclose must show defendant's connection with the mortgage.\[61\] An answer alleging an agreement by the mortgage to exchange the mortgage for other securities, constitutes no defense, it not being alleged that the agreement was carried out.\[62\] The proof must conform to the issues,\[68\] and there must be no material variance between the description of the property in the mortgage and that in the petition.\[64\] The judgment must be supported by findings.\[65\] In the absence of proof of the value of the property claimed, or of evidence to authorize the finding of a money decree against claimants to property sought to be foreclosed, such decree will be reversed as to the claimants.\[66\]

Prior to the judgment of foreclosure, the court's power with reference to the property is limited to the appointment of a receiver.\[67\] As a general rule a receiver will be appointed when the property in controversy is in danger of being lost or materially injured.\[68\]

A mortgage, after due notice, may sell a sufficient amount of the mortgaged

## 15 See 3 C. L. 696

cure a loan. Fidelity Law Ass'n v. Connolly, 92 N. Y. S. 252.

filed chatlet mortgage foreclosing the same is a mere trespasser. Russell V. St. Mart, 180 N. Y. 355, 73 N. E. 31. Default being admitted the mortgage's right to foreclose is established, all other matters of defense being unsupported by proof. Hanson v. Kassmayer, 91 N. Y. S. 755.

66. Mortgage need not allege that such power is not taken away. Harris Automatic Press Co. v. Demorest Pattern Co., 94 N. Y. S. 462.

01. Tanton v. Boomgaarden, 111 III. App. 37. Evidence held sufficient to warrant foreclosure under such clause. Id.

SS. In a suit to restrain the enforcement of a note and mortgage, evidence held to establish a parol agreement at the time the mortgage was executed that defendant company would not enforce it so long as the complaint purchased his beer of it.

O'Brien v. Paterson Brewling & Malting Co.

\[N. J. Eq. 61 A. 487. In such case complaintant on ceasing to purchase defendant's beer, was entitled to restrain the enforcement of the note and mortgage on tendering to defendant the reasonable value of thextures. Id.

SB. Avery Mfg. Co. v. Smith \[N. D.\] 103 N. W. 410. Plaintiff is not entitled to a jury trial as a matter of right. Id.

60. County court has no jurisdiction of a suit to foreclose. Summers v. Robinson, 116 Ill. App. 489. Under Laws 1902, p. 153.

c. 580, 8 138, forbidding actions In the municipal court In cases of a chatlet mortgage to secure the purchase price of chatlets, does not deprive the municipal court of jurisdiction in the case of a chatlet mortgage to see.

- 5 Cur. Law. CHATTEL MOTTGAGES SS 15.

property to satisfy the debt.\* but if he sell more than sufficient to satisfy the same and costs necessarily incurred, he will be liable for conversion of such excess.70 A junior mortgagee or his assignee may sell the property subject to prior liens,71 and free from the interference of everyone but the holder of such a claim.72 A sale by agreement between the mortgagor and mortgagee is in effect a mortgage sale.73 The sale being conducted in bad faith and the mortgage bidding in the property for an inadequate price, the sale is void.74 A mortgagee taking possession under a void sale is guilty of conversion, and is liable for the value of the property at the time of conversion,78 and the action will lie, he having sold the property, thus rendering redemption inadequate.79 The proper measure of actual damage in an action for the wrongful and premature foreclosure of a chattel mortgage is the loss of the use of the property during the time it was out of the possession of the mortgagor.77 In such a case vindictive damages should not be allowed where no improper conduct attended the seizure, and no unnecessary damage was done.78 A mortgage being void as to creditors, the mortgagee is liable to account in equity to creditors for the value of the property seized and sold by him,79 and this suit for an accounting may properly be brought by a receiver in supplementary proceedings.80 The mortgagor cannot maintain trover for an alleged wrongful foreclosure, where with full knowledge of all facts and without objection or protest, he has accepted the surplus arising from the alleged wrongful sale.81

SS 15. \_Remedies as between the parties.82_Plaintiff need not allege facts that

- 69, 70. Skow v. Locke \[Neb.J 101 N. W. 71; Rose v. Page, 82 Mich. 105, 46 N.W. 840.
- 840.
- 85. **NOTE. Libility of mortgagee for selling**
- 86. **NOTE. Libility of mortgagee for selling**
- 87. **more property than enough to satisfy debt:**
- 88. **In arriving at the decision in the principal case, the court follows Omaha Auction &**
- 89. **Storage Co. v. Rogers, 35 Neb. 61, 52 N. W. 826. The same principles were adhered to in Griswold v. Morse, 59 N. H. 211, where the court held that a mortgagee is liable for conversion when he sells a part of the mortgagee is liable for**
- 89. **NOTE. Libility of mortgagee for selling**
- 90. \*\*NOTE.

will be presumed."" In replevin by the mortgagor to recover property from the mortgagee, want of consideration may be set up as a basis of plaintiff's claim." An injunction will not lie to restrain a default in the absence of a personal covenant on the part of the mortgagor."

SS 16. _Remedies against third persons."_--A mortgagee is entitled to an equitable lien on property substituted for the mortgaged property, the one exchanging property with the mortgagor having knowledge of the existence of the mortgage." $\\Lambda$ mortgagee may maintain an action against one wrongfully converting the mortgaged property or a part thereof," and it is immaterial whether or not the security remaining in his hands, if any, is exhausted or worthless, or has been converted by some one else," and this is true, though the mortgagee is not entitled to the possession of the property." A mortgagee having possession of the property may maintain conversion against one wrongfully attaching it." In such case it is not necessary to set out in the petition the particulars of plaintiff's lien." In trover by a mortgagee to recover the property from a creditor of the mortgagor, who had re-plevied the same, a draft which furnished the consideration of the mortgage is admissible." A factor selling mortgaged goods on commission without notice or knowledge of the mortgage does not derive such a benefit from the transaction as to authorize the mortgagee to waive the tort and recover in an action upon an implied contract." Cases dealing with the sufficiency of evidence are shown in the notes." In replevin the measure of damages for wrongful seizure, in case return of the goods cannot be had, is the value of the goods up to the amount of the indebtedness, with accrued interest." In conversion the amount of the damages is the amount of the debt if that be less than the value of the property converted," otherwise it is the value of such property at the time of the conversion." A claim by a mortgagee for the conversion of a definite amount of property of a stated value to the consequent impairment of his lien is susceptible of pecuniary measurement, and does not sound in damages merely within the meaning of statutes relating to the right of set-off."

**CHATTELS: CREATS; CHECKS; CHILDEN: CHINESE; CHATIONS, see latest topical index**

**CITIZENS.1**

The political status of an alien is presumed to continue,2 and long residence is insufficient to overcome this presumption." Nothing which a state can do will

**SS3. Where the mortgagor was allowed to remain in possession of a stock of goods and**

**SS4. Sylvester v. Ammons \[Iowa\] 101 N. W. 82.**

**SS5. Anheuser-Busch Brewing Ass'n v. Rahlf, 131 III. 649, 73 N. E. 414.**

**SS6. See 3 C. L. 69.**

**SS7. American Soda Fountain Co. v. Futral \[Arl.\] 84 S. W. 605.**

**SS8, 89, So. Scaling v. First Nat. Bank \[Tex. Civ. App.\] 87 S. W. 715.**

**SS1. Fred Krue Brewing Co. v. Healey \[Neb.\] 101 N. W. 829; Aldrich v. Higgins \[Conn.\] 59 A. 498.**

**SS8.**

**SS9. Fred Krue Brewing Co. v. Healey \[Neb.\] 101 N. W. 829.**

**SS10.**

**SS11.**

**SS12.**

**SS13.**

**SS14.**

**SS15.**

**SS16.**

**SS17.**

**SS18.**

**SS19.**

**SS10.**

**SS11.**

**SS12.**

**SS13.**

**SS14.**

**SS15.**

**SS16.**

**SS17.**

**SS18.**

**SS19.**

**SS18.**
5\. Cur. Law. CIVIL ARREST SS 1.

invest a foreigner with the rights and privileges of a citizen of the United States.4 An Indian tribe, having the characteristics of a distinct political community, has the power to admit to citizenship such persons as it may desire.5 Children born of alien parents in this country are citizens.4 The children of parents who have been duly naturalized under any law of the United States, being under the age of twenty-one years at the time of naturalization of their parents shall, if dwelling within the United States, be considered citizens thereof.7 Children at Ellis Island in the custody of the immigration authorities are not "dwelling in the United States."8 Under act of Congress an Indian allottee, on the receipt of his first patent becomes a citizen of the United States." An alien cannot be deemed a citizen of the United States because he resided in Colorado when the state was admitted to the Union, and has since exercised the rights of citizenship there.10 In determining the jurisdiction of a Federal court the fact that a party is a member and officer of a corporation creates no legal presumption that he is a citizen of the same state as the corporation; 11 the presumption that the members of a corporation are citizens of the state in which it is incorporated being indulged in only for the purpose of fixing the status of the corporation as a litigant in such courts.11

**CIVIL ARREST.**

**SS 1. Privilege From Arrest (SS7).**

**SS 2. Arrest on Mesne Process (SS8).**

**SS 3. Execution Against the Body (SS8).**

**SS 5. Liability for False Imprisonment (SS9).**

**SS 1.**_Privilege from arrest.13_--The provision of the bankruptcy act which exempts a bankrupt from arrest upon civil process except in certain enumerated

various specific subjects, such as Commerce,

3 C. L. 711; Intoxicating Liquors, 4 C. L. 252,

4 C.), being treated elsewhere.

**SS 2, S. Ehrlich v. Weber \[Tenn.\] SS 8. W.**

**SS 3.**\_Ehrelich v._Weber \[Tenn.\]_ SS 8. W.\*\*

**SS 4.**_Mayer's Case, 38 Ct. Cl. 553._

**SS 5.**\_Cherokee Nation has such power._Delaware Indians" Case, 38 Ct. Cl. 334._

**SS 6.**\_Ehrelich v._Weeber \[Tenn.\]_ SS 8. W.\*\*

**SS 18.**_See Aliens, 5 C. L. 96._

**SS 7.**_Rew St. U. S. 2172 \[U. S. Comp. St. 1901, p. 1384\]._

**SS 8.**_United States v. Williams, 132 F. 894._

**SS 9.**_24 Stat. at L. 388, ch. 119, construed._

**SS 10.**_In re Heff, 197 U. S. 488, 49 Law. Ed. 848._

**This is true though the act provides that the Indian's title shall not be alienated or in-cumbered for twenty-five years, and that the grant of citizenship shall not deprive the Indian of his interest in tribal or other prop-etry. Id.**

**SS 10.**_Mayer's Case, 38 Ct. Cl. 553._

**SS 11.**_Mayer's Case, 38 Ct. Cl. 553._

**SS 12.**\_Naturilization by accession of territory: Manifestly the nationality of the inhabitants of territory acquired by conquest or cessation becomes that of the government under whose domain they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise, as may be provided. \[WThits persons or persons of European descent born or residing in Colonies before 1776. United States v. Ritchle, 17 How. \[U. S.\] 525, 15 Law. Ed. 238; Inglis v. Trustees of Salitors' cases applies to the detention of a bankrupt taken into custody before bankruptcy \[14\] and in such case he may be discharged on a writ of habeas corpus \[15\]. The bankruptcy court may issue an order restraining the arrest of the bankrupt even though a petition for review of an order refusing to revoke a discharge is pending \[16\].

SS 2. _Arrest on mesne process. When allowable \[17\]._--In some states one failing to pay his taxes may be arrested \[18\]. The term "debt" as employed in a constitutional provision prohibiting imprisonment therefor does not extend to or embrace any pecuniary obligation imposed by the state as punishment for crime, whether the money, the payment of which is demanded, be for fines or costs, or even, in certain quasi-eriminal proceedings, other penalties of a money nature which may be lawfully inflicted by a court \[19\].

_Procedure to obtain order of arrest \[30\]._--In New York in an action of conversation, the affidavit must state facts showing the value of the articles alleged to have been converted \[21\].

_Validity and use of order._--An illegal and improper use of a writ of capias ad respondendum does not invalidate the writ or the act of the court issuing it \[22\], but plaintiff may be responsible to defendant for the improper use \[23\].

SS 3. _Execution against the body. Occasion and propriety. Procedure to obtain \[24\]._--There is no imprisonment for debt in Illinois; but refusal to surrender non-exempt property to satisfy a judgment is regarded as a fraud, which after hearing and trial by jury may be punished by imprisonment for a limited time at the creditor's expense \[25\]. In New York a defendant may be arrested in an action for damages for an injury inflicted through the negligence of defendant's servant \[26\], and wage-earners suing for wages earned are entitled to an execution against the person of their former employer \[27\] provided the action to recover such wages is commenced within one month after the accrual of the cause of action \[28\]. Also if the nature of the action is such that an execution against the person could be issued upon a judgment recovered by the plaintiff, such an execution may be issued against the plaintiff on a judgment against him for the costs \[29\], and this is true though the defendant, owing to its corporate character, is not subject to arrest \[30\].

What allegations are essential to the validity of the affidavit depends upon the local statutes \[31\]. Where the affidavit alleges fraud in general terms, and is such that the debtor might be entitled to have specifications filed, if seasonably requested, yet where no request is made for such specifications, or where the charge can be made specific by its reference to the action or otherwise, the debtor can be called upon to plead.\[32\]

_The order and writ.\[33\]_--An order correct in itself is not made erroneous because it follows upon a wrong conclusion or procedure of the court.\[84\] Upon appeal the order of the lower court will be sustained if possible.\[85\]

_Arrest and return.\[86\]_

SS 4._Supersedeas bail or discharge from arrest. Final process.\[87\]_--Under a statute providing for the release of the dettor where malice is not the gist of the action, the term "malice" implies a wrong inflicted on another with an evil intent or purpose.\[88\] The phrase "gist of the action" means the essential ground or object of a suit, and without which there is not a cause of action.\[89\] Under the Massachusetts statutes if the debtor voluntarily makes default he is not entitled to the benefit of proceedings for the relief of poor debtors.\[40\] In New Jersey the making of an assignment to the assignee appointed by the court of all the debtor's real and personal estate, except such property as is exempt, is necessary before the order of discharge can be made,\[41\] and an order of discharge will be set aside where it appears that the petition presented to the court was not filed with the clerk for more than two months afterwards.\[42\]

_Costs._--The misconduct of the debtor rendering the proceeding necessary costs may be taxed against him.\[43\]

SS 5._Liability for false imprisonment._--In an action on plaintiff's bond, the general rules of pleading apply.\[44\]

CIVIL DAMAGE Acts; Civil Death, see latest topical index.

CIVIL RIGHTS.\[45\]

Perfect equality in civil rights with the white race given by the 13th amendment is a right, privilege or immunity secured to members of the emancipated race by the Federal constitution.\[46\] A private citizen cannot, in a constitutional sense, prevent equal protection of the laws.\[47\] The right to have the state afford due pro-

32. Radovsky v. Sperling, 187 Mass. 202, the relief sought. Radovsky v. Sperling, 187 72 N. R. 849.

01. See 3 C. L. 701.

41, 42. Stokes v. Hardy \[N. J. Law\] 58 A.

34. Defendant was found guilty of fraud

01. Rev. St. 1898, 8 3038, considered. En-

was again before the jury under the Insolvent Debtors' Act. He was again found guilty

by the county court and remended to the

sheirff's custody. The proceedings in the

late court did not farm and may be re-

sarded as superfluous. Penoyer v. People,

105 Ill. App. 481.

35. A magistrate refusing to issue a body

execution on the ground "that the proof was

insufficient to grant the same," without specifying any defect in which the proof was

lacking, his decision in the matter will be

upheld if there is any inadequacy in the

proof. Salberg v. Tobina, 88 N. Y. S. 967.

36, 37. See 3 C. L. 701.

38. Rev. St. c. 72, $ 2. Penoyer v. People,

105 Ill. App. 481.

39. Penoyer v. People, 105 Ill. App. 481.

01. Rev. Laws, c. 168 $ 55. The debtor

drafting and being refused the poor debt-

or's oath, another court, to which the debtor

subsequently applied to be permitted to take

the oath, held without jurisdiction to grant

30.
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590 CLERKS OF COURT SS 1. 5 Cur. Law.

cess when a citizen is taken into custody to punish him for a crime is secured by or dependent upon the Federal constitution \[48\], and forcibly taking a prisoner from the custody of the state and murdering him destroys such right, privilege or immunity \[49\]. When a citizen is deprived of a right, privilege or immunity secured by the Federal constitution, though there is no dereiiction of duty on the part of the state, congress has power to punish the act \[50\]. "Plaes of public accommodation" in Civil Rights Acts does not include a bootblacking stand \[51\], and an apartment or family hotel where suites are rented on annual leases is not a hotel within a law requiring equal accommodations in hotels \[52\].

Failure to comply with statutes requiring carriers to furnish separate coaches \[53\] or waiting rooms of equal and sufficient accommodation for the white and black races is a public offense \[54\], unless it is the result of an accident \[55\]. The object of such statutes is to prevent discrimination \[56\]. A carrier who has violated the provisions of a law requiring the separation of the races cannot invoke minor provisions of it as a justification for ejecting a passenger \[57\].

CIVIL SERVICE; CLEARING Houses, see latest topical index.

CLERKS OF COURT.

SS 1. General Powers and Duties (590). **8 3. Liability on Bond (503).**

SS 2. Fees and Compensation (591).

SS 1. \_General powers and duties \[58\]--\_The clerk of a court of record is the custodian of its records and files and his certificate as to what is contained in the record must be looked to in preference to any other evidence \[59\]. A clerk has no judicial powers \[50\]; he has only such authority to satisfy judgments as is given him by statute \[61\], hence the receipt of money by a clerk for the satisfaction of a judgment, except as provided by law, is not an official act of the clerk \[52\], and he cannot be

fers only a right to a legal status which can be conferred in the first instance only \[58\]. S. W. 426.

by legislation, and when conferred can be impaired only by officials who yield state power. Ex parte Riggins, 134 F. 404.

45. Ex parte Riggins, 134 F. 404.

01. What constitutes due process in such case defined. Ex parte Riggins, 134 F. 404.

01. Ex parte Riggins, 134 F. 404.

01. A refusal to shine the shoes of a colored man does not subject the propriter of a bootblack stand to punishment under the Civil Right Act (Laws 1995). **97**, e. 1042.

01. Vender Laws 1895, p. 974, c. 1042, the propriter of such an establishment need not accept a tenant whom he does not desire. Alsberg v. Lucerne Hotel Co., 92 N. Y. S. 51.

01. Indictment following the language of the statute held to charge the commission of a public offense. Chesapeake & O. R. Co. v. Pitchard \[Ga.\] 51 S. E. v. Commonwealth \[Ky.\] 84 S. W. 566. Signs inscribed "white" and "black" are not "adjusttible screens," within a statute requiring the separation of white and colored races on street cars. Southern Light & 5 Cur. Law. CLERKS OF COURT SS 2. 591

amcerced for failure to pay over money so received."4 A clerk in making up a transcript of a record for an appellate court has no discretion to omit anything which is directed by either party to be inserted, if it is a paper or proceeding in the cause having relation or leading up to the order or decree appealed from."4 But he should omit all papers and proceedings in the same or another distinct cause which have no relation to, and which do not lead up to, the order or decree appealed from, even though such papers or proceedings have been directed to be inserted."5 The clerk's certificate of the transcript should follow the rules prescribed therefor."6 A clerk is not the agent of county commissioners to make contracts for services to be performed in his office, and cannot compel reimbursement where he has paid therefor."6 A clerk of a Federal circuit court has authority to issue a subpena duces team, when ordered to do so by the court, for production of documents on the taking of a deposition de bene esse before him."6 The issuance by a clerk of a Florida circuit court of a commission to take the deposition of an absent witness, when all the preliminary steps prescribed by law and the rules of practice have been complied with, is a mere ministerial act, and ordinarily the clerk has no right to refuse its issuance because he is of the opinion that the deposition, when taken, will be incompetent in the proceeding in which it is to be used; he should issue the commission, leaving the competency of the deposition to the court when it should be tendered as evidence."6 A clerk of the circuit court in Michigan may not object to an order of the court directing the filing with him of a certificate of deposit in lieu of a bond as security for costs."6 Under the North Carolina statutes an appointee to fill a vacancy in the office of clerk of the superior court, occurring during the term, holds only until the next general election and not for the unexpired term,"1 though the order appointing him purports to make the appointment for such unexpired term."7 Where a statement of claim shows on its face that plaintiff has no lawful demand or good cause of action, he is not injured by refusal of the clerk to file the papers and issue summons."8

SS 2. \_Fees and compensation.\_7 The allowance of fees is statutory,"8 and only such fees may be charged as are expressly provided for."6 A clerk of a circuit

**es. Rev. Codes 1899, SS 5555, 5556, do not**

\*\*73. United States v. Bell \[C. C. A.\] 135 apply. Milburn-Stoddard Co. v. Stickney \[N. F. 336. D.\] 103 N. W. 752. 74. See 3 C. L. 703. 64. It is immaterial that any paper is, in the judgment of the clerk, unnecessary to the court relating to commissions of acounts, petit jurors and grand jurors, is a Anderson v. Long \[71a\] 37 So. 665; Ray v. Trice \[71a\] 37 So. 582. 68. 68. 68. 68. 69. 70. 68. 69. 80. 69. 81. 82. 83. 84. 85. 86. 87. 88. 89. 80. 81. 83. 84. 86. 88. 89. 81. 84. 89. 82. 84. 85. 86. 87. 88. 89. 80. 81. 84. 88. 89. 81. 85. 86. 87. 89. 81. 88. 82. 83. 84. 86. 88. 89. 81. 89. 82. 84. 85. 87. 89. 83. 84. 88. 89. 84. 89. 85. 86. 87. 88. 89. 88. 89. 89. 80. 81. 89. 82. 83. 84. 89. 85. 86. 87. 89. 88. 89. 89. 80. 81. 89. 82. 84. 89. 83. 84. 89. 85. 86. 87. 88. 89. 89. 81. 89. 82. 84. 89. 86. 88. 89. 89. 81. 89. 83. 84. 89. 88. 89. 89. 80. 81. 89. 82. 84. 89. 89. 81. 89. 83. 84. 89. 85. 86. 87. 88. 89. 89. 89. 81. 89. 82. 84. 89. 89. 81. 89. 83. 84. 89. 85. 86. 87. 88. 89. 89. 89. 81. 89. 89. 81. 89. 82. 84. 89. 89. 81. 89. 82. 84. 89. 89. 83. 84. 89. 85. 86. 87. 88.

court who, under the statute, is also ex officio county recorder, fills but one office, and is entitled to but one salary, which must not exceed the limit fixed by law for the office of clerk of court."7" Costs taxed for copies in favor of a clerk are a part of the emoluments of the clerk's office necessary to discharge office expenses, and the clerk cannot be deprived of such compensation by the fact that parties make and furnish such copies."8" Where parties themselves, or by agents or assistants, inspect court records and make extracts therefrom, receiving no assistance from employes in the clerk's office, who merely watch and supervise as a part of their duty to keep the records safe, the clerk is not entitled to any fee or compensation." A clerk who certifies to facts as well as to a paper containing a statement of such facts is entitled to reasonable compensation therefor in addition to the fee allowed by statute for certification of the paper."80 Thus if a clerk makes a search of records to ascertain what liens, if any, exist against lands described in an abstract of title, and makes a statement of the result of his search on the abstract, he is entitled to reasonable compensation therefor."81 But if the search of the records was a necessary part of another duty, to the performance of which a fee is attached, he cannot make an additional charge therefor."82 A clerk extends credit at his peril and will be required to account for fees earned, whether the same are collected or not."83 A clerk is not required to account for fees collected by him for services rendered by his predecessor before the enactment of a statute limiting salary, though the fees were collected after such statute went into effect."84 I'e is chargeable with fees collected by him for compensating work left undone by his predecessor."85 In Illinois the county clerk is not entitled to a fee for acknowledging a tax deed, but is entitled to one for recording it."86 In Nebraska a clerk of the district court is required to account for fees earned by him as a member of the board of commissioners of insanity."87 In Arkansas a clerk of a circuit court is entitled to his fees in cases in which a noble prosequi has been entered."88 A clerk of a circuit court in Wisconsin may recover of defendant his statutory fees, on dismissal for want of prosecution, though he has not required payment of fees in advance or by the prevailing party before entry of judgment."88 The Indiana act of 1903 relating to salaries of clerks and sheriffs entitled such officers to unpaid salary from January 1, 1900."89 Where, in an action to enforce a penalty for exacting illegal fees, it appears that services not required by law were performed, and a fee charged for their performance, it will not be presumed that the charge was more than the services were reasonably worth."89

rated in the alternative writ. State v. Board of Police Com'rs, 108 Mo. App. 98, SS 8. W. 960.

"Tennesssee: Under Acts 1901, p. 357, c. 174, $ 57, a clerk of a circuit court can charge only one fee where several pieces of property sold for taxes are redeemed by one person at the same time, even though such parcels were assessed in the names of different persons and were located in different wards of a clerk, since he can issue only one receipt. Plyley v. Allison \[Tenn.\] SS 8. W. 475.

76. State v. Board of Police Com'rs, 108 Mo. App. 98, SS 8. W. 960.

01. Constructing Arkansas statutes and constitution regarding the office of clerk of circuit court. Durch or Greenwood Dist. of Sebastian County \[Ark.\] 83 S. W. 1048.

01. Copies of petition for mandamus. State v. Board of Police Com'rs, 108 Mo. App. 98, SS 8. W. 960.

01. State v. McMillan \[Fla.\] 38 So. 666.

80, S1, S2. Shelley v. Hurley \[Neb.\] 103 N. W. 1082.

83, S4, S5. Boettcher v. Lancaster County \[Neb.\] 103 N. W. 1075.

86. Village of Morgan Park v. Knopf, 111 N. App. 671.

01. Boettcher v. Lancaster County \[Neb.\] 103 N. W. 1075.

01. Under Kirby's Dig. $ 2470. Hemp-stcad County v. Harkness \[Ark.\] 84 S. W. 799.

01. Rev. St. 1988, SS 747, 748. Williams v. Willlock \[VVla.\] 101 N. W. 927.

01. Harrigs v. Perry County Com'rs \[Ind.\] 73 N. E. 915; Board of Com'rs of Perry County v. Lindemann \[Ind.\] 73 N. E. 912.

01. Constructing Cobey's Ann. St. 1903, 9 906, penalizing exaction of illegal fees. Shetbler v. Hurley \[Neb.\] 103 N. W. 1082.

01. Cur. Law. COLLEGES AND ACADEMIES.

United States courts."--Under the statute entitling a clerk of a circuit court to a commission for receiving, keeping, and paying out money, such a clerk is not entitled to a commission on proceeds of mortgaged property paid by the master making the sale directly to the mortgagee," nor on a fund paid by a master into a United States depositary, pursuant to an order of the court and subject to be withdrawn at its order, when the fund is so paid out," nor on railroad bonds deposited in a circuit court as collateral security, and kept in a bank vault to which the clerk has the key." A clerk of the circuit court may charge the statutory fees for copies of an injunctional order, though such orders were printed." A clerk of the district court is not entitled to a fee for each notice sent to creditors of the filing of a petition for a discharge in bankruptcy, but is entitled only to the actual expense incurred." Clerks are not entitled to fees for duplicates of their accounts to be retained in their offices as provided by law."

SS 3. _Liability on bond."--A clerk who certifies to an acknowledgment of a deed taken before one of his deputies, the signature and acknowledgment being in fact forged, is liable to the purchaser for the price paid, he having relied on the certificate of acknowledgment." Though a clerk's bond is given to the United States as sole obligee, any private suit who has suffered loss by failure of the clerk to discharge his duties may sue thereon."_ In Maryland, charges for work done in performance of duties of the office of clerk of the circuit court of Balti-more city, and the salaries of deputies, are in the nature of expenses of the office, payable before payment of the clerk's salary, and hence the clerk is liable therefor on his bond."\_ Under the statutory scheme for payment of such services, it is presumed, in the absence of contrary evidence, that the fees received were sufficient to pay for the maintenance of the office."\_

CLOUT ON Title; CLUBS; CORICILS; COROVITY, see latest topical index.

COLLEGES AND ACADEMIES."

An incorporated board of regents with power to sue and be sued is subject to suit for a claim which there is no legislative appropriation to meet, they being entitled to satisfy the judgment out of funds not otherwise specifically appropriated." A board of regents having statutory power to increase or diminish the number of professors and regulate their salaries may employ a professor for a period exceeding their term of office." A provision in a statute incorporating a board of regents which authorizes them to remove an instructor whenever the interests of the college require it, becomes a condition in a contract of employment for a specified time," and a removal prior to the expiration of the contract period is not, in the absence of fraud or bad faith, subject to judicial investigation." A ministerial board directed by law to issue certificates to practice to graduates of regular

92. See SS C. L. 704.

01. Constraining Rev. St. 1 $28. Michigan F. 338.

Cen. R. Co. v. Harsha \[C. C. A.\] 134 F. 217.

94, 95. Michigan Cent. R. Co. v. Harsha \[C. C. A.\] 134 F. 217.

96. Cudahy Packing Co. v. McGGuire, 135 F. 81.

01. In re Dunn Hardware & Furniture

18 not void, though the personnel of the board changes from year to year. Ward v.

98. Harts Case. 38 Ct. Cl. 571.

01. See 3 C. L. 704.

01. Samuels v. Brand, 26 Ky. L. R. 943,

92 S. W. 977.

118 F. 372.

schools has no power to determine whether a school is "regular" or to refuse a certificate to one having a diploma.6

Footnote 6: The author is grateful to the anonymous referee 5 Cur. Law. combinations and monopolies SS 2. 505

the combination and conspiracy complained of and the acts done under it which resulted in damage.1\* Parties who deliver their stock in competing lines to a holding corporation in violation of the act are in pari delicto and cannot recover their specific shares, but must be content with a stable distribution of the corpora assets.20

SS 2. _Combinations violative of state anti-trust acts and of the common law.21_--A pool or trust is a combination having the intention, tendency and power to monopolize business or to control production, interfere with trade or regulate prices.22 The form of an association will be disregarded and its actual operation examined to determine its legality; 22 but if the form and purpose of a combination is legal, it will not be denounced as illegal because it occasionally effectuates its purpose by exceptional rules,24 and a contract not inimical to public welfare will be upheld unless so operated as to be oppressive to private rights, or works public detriment.25 It is not necessary that any actual agreement to combine be entered into,26 nor that the combination result in a complete monopoly,27 or that prices be raised by virtue of it,28 or that evil intent or actual injury to the public be shown;29 but to render a combination to injure one in his business actionable, damage must result.20 Such combinations are inimical to public welfare 21 and contrary to public policy, and are condemned by the common law 29 and by statutory.

19. Complaint held bad for indefiniteness. |stitute the car service association an illegal Rice v. Standard Oil Co., 134 F. 464. |Computal held suffilecient: Allegations in a bill seeking relief against an attempt to monopolize commerce in fresh meat in violation of the Sherman Act held not defective as vague. Swift & Co. v. United States, 25 S. Ct. 276. A bill averrring the existence of a combination of a dominant proportion of the dealers in a commodity to fix the prices, secure unlawful freight rates to the exclusion of competitors, and other facts tending to show a monopoly in violation of the Sherman Act, is good as against objections of want of equity, multifariousness and failure to allege specific facts. Id. 20. |Harriman v. Northern Securities Co., 25 S. Ct. 495. |Sce 3 C. L. 708. |NOTE: Effect and construction of state anti-trust laws, see note to Whitwell v. Continental Tobacco Co. |U. S.\] 64 L. R. A. |Sce 699. See Helliwell Stock and Stockholders, |S$ 373-395. |Sce 713-395. |Sce 72. Under the statutes of Illinois the number of persons implicated, extent of territory covered, or tendency to injure the public, is immaterial. Chicago, Wilmington & V. Coal Co. v. People, 114 III. App. 75. The test as to the illegality of a combination is its tendency to endanger the public by controlling prices, limiting production and suppressing competition so as to re-strain trade and create a monopoly. Needles v. Bishop & Babcock Co., 2 Ohio N. P. (N.S.) |T7. Acts 1898, p. 57, e. 82, placing car service operations under the control of the railroad commission, held to show that they are not trusts prohibited by Code 1892, $ 4437, and Acts 1990, p. 125, c. 88. Yazoo & M. V. R. Co. v. Searles |Miss.\] 37 So. 929. |Miss.

596 Combinations and Monopolies SS 2. 5 Cur. Law.

\[title, 32 and statutes prohibiting them are a valid exercise of the police power. 9\* Contracts having for their purpose the creation of such combinations are void. 35 Agreements between public service corporations of a character to prevent competition in the interest of the public are condemned. by the common law 36 and are contrary to public policy. 37 Contracts not to engage in a particular line of business

for the purpose of limiting the production

etc., R. Co. 3 Ohio N. P. (N. S.) 109. A

of a commodity and regulating its price 1s

stipulation in a contract granting a sleeping illegal as in restraint of trade. Evans v.

car company the exclusive right for 15

American Strawboard Co., 114 Ill. App. 450.

years to furnish sleeping cars for use on

Not contrary to public policy: A contract

all the roads operated by a railroad com-

between two mercantile houses engaged in

pany or thereafter acquired and operated

the same line of business by which each ac

does not violate a provision prohibiting

ufres an interest in the gross profits of the

combinations from restricting the free pur

other, Fechteler v. Plam Bros, & Co. \[C. C. A.\] 133 F. 462. A contract between

a

D. C. R. Co. v. State \[Tex.\] 87 S. W. 386.

telegraph company and a board of trade

a

minimity the communication of quotations

hall the cars of a sleeping car company

by the latter. Bord of Trade Chicago v.

held not a violation of the Anti-trust Act

Christie Grain & Stock Co., 25 S. Cl. 637.

\[Laws 1993, p. 119, c. 94\], $ 2, defining a

Completion of the Gainesville road by the

monopoly as (2), where any corporation

Georgia held not to defeat or lesser compe-

acquires the franchises or rights of anti-

tion. Weed V. Gainesville, J. & S. R. Co.,

tinf the purposes of licensing compe-

119 Ga. 576, 46 S. E. 885.

tion, as the sleeping car company did not

33. Statutes violated: An agreement be-

acquire any franchise of the railroad com-

tween an association of master plumbers

pany. Id. A stipulation in a contract be-

and wholesalers, fixing the price of supplies

tween a railroad and sleeping car company

to members and increased the price of

that the latter might charge passengers on

supplies to members and increased price to

its cars such fares as were customary on

non-members, the master plumbers agree-

competing lines does not violate Anti-trust

ing not to sell supplies or labor below a

Act (Laws 1993, p. 119, c. 94), through in-

fixed price and to make their estimates on

reference with transportation of passem-

contracts relative to such prices violates

Pers. Id. Nor did the contract affect

Pub. Acts 1899, p. 409, No. 255, $ 1. Hunt v.

transportation or charges in that its provi

Riverside Co.-O. Club \[Mich.\] 12 Det. Leg.

sions required the railroad company to

264, 104 N. W. 40. Allegations of facts

pay the sleeping car company a certain

tending to show the creation of a monopoly

milage if the sale of berths did not

in fertilizer business hold to state a cause

amount to a certain sum. Id. Giving

of action under Civ. Code 1902, $ 2845, pro-

mire favorable terms to one who would

hibiting trusts. State v. Virginia-Carolina

handle his goods exclusively is not a vlo-

Chemical Co. \[S. Cl\] 81 E. 455. An agree-

lation of an act forbidding a sale on con-

ment to refrain rom purchasing salt within

dition that there shall be no dealing in the

the state or abroad and to discourage im-

goods of others. Commonwealth v. Strauss

portations by others violates City. Code, $ \[Mass.\] 17 A. E. 308.

1678, forbidding contracts in restraint of

- 84. A statute which prohibits trusts and

trade. Getz Bros. & Co. v. Federal Salt Co.

combinations which tend to lessen full and

\[Cal.\] $1 P. 416. Admitted facts held to

free competition is a valid exercise of the

show an unlawful combination to fix the

plice power in regulating monopolies. Not

price of coal in violation of Anti-trust Act

a violation of U. S. Const. art. 14, $ 1.

of 1891 (Hurds\* Rev. St. 1903, c. 38, $ 269a).

State v. Virginia-Carolina Chemical Co.

Chicago, W. & V. Coal Co. v. People, 244 Ill.

18. C.J $. E. 455.

01. One who leases his property to an

suitures not violated: A car service as-

other as a step in the creation of a mon-

sociation which is merely an agent of the

rallyroads in enforcing payment for car serv-

of a commodity cannot recover rent. Hafts

ice and demurrage charges but cannot con-

v. Eddy \[Mich 5 Cur. Law. Combinations and Monopoles SS 2. 597

in a certain place or district are generally held not to be in violation of anti-trust laws,\[48\] and contracts fixing and regulating the price of labor are not within such laws;\[30\] but such combinations cannot be specifically excepted.\[49\] An illegal combination may be enjoined from enforcing an illegal agreement to the injury of a person engaged in a competitive business,\[41\] and previous connection with an illegal combination will not deprive one who has been injured by it from being heard in equity.\[42\]

A combination by the producers of a necessary of life to control the output, price and sale of it is criminal,\[43\] notwithstanding the organization was voluntary and no articles of association were reduced to writing.\[44\] The fact that a combination does not have a complete monopoly,\[45\] or that the prices fixed may be reasonable and not have been advanced,\[46\] does not prevent it's being criminal. The criminal offense is complete as soon as the combination is formed,\[47\] and each member is bound by the acts of his fellows done in furtherance of the object sought to be accomplished.\[48\]

The common law relative to conspiracies to regulate and fix prices is not abrogated by a statute declaring certain acts to be conspiracies.\[49\]

etc., R. Co. v. Southern Ind. R. Co. \[Ind.\] \[ 598 Combinations and Monopoles SS 8. 5 Cur. Law.

A violation of the Illinois anti-trust law may be prosecuted by indietment, though an action of debt also lies to recover the penalty.\[50\] An indictment in the language of the statute is suffcient.\[51\] The place of organization of a corporation defendant need not be alleged or proved in a prosecution for violation of the Illinois anti-trust act.\[52\]

Rights in an action brought under a particular statute must be determined from such statute alone;\[53\] but a ruling that a certain act is not a violation of a general statute which embraces within its terms a specific one is conclusive that it does not violate the latter.\[54\]

Declaring the forfeiture of the license to do business of a foreign corporation, for violation of an anti-trust law is not taking property without due process,\[55\] and a foreign corporation subject to forfeiture of its right to do business and to criminal prosecution is not denied equal protection of the laws, though by virtue of other statutes certain excepted classes are not subjected to criminal prosecution.\[56\]

Anti-trust statutes are not retroactive.\[57\] Acts relative to specific contracts are not repealed by acts general in their terms.\[58\]

SS 3. \_Grants of privileges by statute, ordinance and contracts with municipalities tending to create monopoles.\[59\]--\_A law securing to the successful bidder the exclusive right to supply books to the public schools does not create a monopoly.\[50\]

Statutes putting obstacles in the way of new public service corporations are unconstitutional as tending to create a monopoly;\[61\] but authorizing a railroad company

50. Chicago Wilmington & V. Coal Co. v. People, 114 Ill. App. 75: Id., 214 Ill. 421, 73 N. E. 770.

In its scope and effect than the latter. Ft. People, 114 Ill. App. 75: Id., 214 Ill. 421, 73 N. E. 770.

51. Indictment for conspiracy held to charge that the combination was formed with fraudulent or malicious intent as required by Hurks Rev. St. 1908, c. 38. Chile was "Cool Co. v. People, 214 Ill.

case IV. & V. Coal Co. v. People, 214 Ill. App. 75. Where the object of the statute is to prevent combinations to fix prices, the fact that the statute reads "Corporations organized for the transaction of business within this state" does not require an indictment to sollege. Chicago, W. & V. Coal Co. v. People, 214 Ill. 421, 73 N. E. 770.

52. Chicago, Wilmington & V. Coal Co. v. People, 114 Ill. App. 75. Where the object of the statute is to prevent combinations to fix prices, the fact that the statute reads "Corporations organized for the transaction of business within this state" does not require an indictment to sollege. Chicago, W. & V. Coal Co. v. People, 214 Ill. 421, 73 N. E. 770.

01. Where an action is brought to recover penalties for violation of a state law, no rights can be predicated on the ground that the contract created a common-law monopoly or was in violation of the Federal Anti-trust Act. Ft. Worth & D. C. R. Co. v. State (Tex. City. App.) $8 W. 370.

Agreements in violation of a statute specifically prohibiting them will be controlled by such statute and not by the general Anti-trust Act. State v. Wilson \[Kan.\] 80 P. 639. Gen. St. 1901, $429-2441 forbids agreements to maintain minimum rates of commission for services in the sale of live stock, but not relative to services in purchasing live stock. Id.

54. A ruling that a certain contract is not in violation of the Anti-trust Act of 1903 is conclusive that it does not violate the act of 1899, since the former is broader 5Cur. Law. COMMERCE SS 1.

which has acquired more than three-fourths of the stock of another company and is unable to agree with the holders of outstanding stock for a purchase thereof, to condemn it, is not an exclusive privilege.\[62\]

**COMIMERCE.**

**SS 1. Nature of Commmerce; Domestic, Inerstate or Foreign (589).**

**SS 2. Regulation of Commeree (601).**

**SS 3. The Interstate Commmerce Commission; Its Functions and Proceedings Before It (605).**

**SS 4. State Railroad and Corporation Commission (607).**

**SS 1.** \_Nature of commerce; domestic, interstate or foreign.\[63\]--Commerce consists of intercourse between citizens and inhabitants, and includes not only the transportation of persons and property and the navigation of public waters for that purpose, but also the purchase, sale and exchange of commodities.\[64\] Thus the soliciting of orders is commerce,\[65\] but insurance is not,\[66\] nor is issuing contracts to be fulfilled in the order of their issue by the accumulation of funds from contributions by the holders of such contracts,\[67\] nor the carrying of a pleasure party on a steamboat.\[68\] nor a contract made by a resident agent of a foreign corporation to furnish labor and material for construction work in pursuance of which laborers and material are sent into a state.\[69\]

Interstate commerce consists of intercourse and traffic between citizens and inhabitants of different states.\[70\] Thus, a sale in one state of goods manufactured in another;\[71\] goods shipped to an agent to fill orders previously taken;\[72\] but not goods shipped to be held in stock and offered for sale on the open market.\[78\] A foreign corporation selling goods to be shipped into a state upon orders to be approved by it, whether taken by a local or transient agent, is engaged in interstate commerce.\[74\] A C. O. D. shipment of intoxicating liquors from one state into another is interstate commerce;\[75\] but a shipment cannot be given an interstate character 600

COMMERCE SS 1.5 Cur. Law.

by a mere subterfuge to evade local option laws,78 and it loses its interstate character when the carrier ceases to sustain the relation of carrier to it and holds it as a warehouseman or bailee.77 Interstate freight retains its character as such until actual delivery to the consignee,78 and an article of commerce though subject, on its arrived within a state, to the police regulations thereof, is not divested of its interstate character so as to entitle the consignee to immediately remove inspection marks and labels.79 Where the initial and terminal points of a telegram sent are within the same state, it is not interstate commerce, though the message is transmitted through another state.80 A passenger traveling on an independent pass between two points within a state is a state passenger, notwithstanding he commenced his journey on a different pass at a point outside the state and his baggage was checked through from the initial point to destination.81 It is not interstate commerce for an agent of a nonresident to solicit local business for a resident.82

\_Original packages.83--\_The original package exemption applies only when goods are imported in the form ordinarily used for the importation of that class of goods.84 Goods do not lose their interstate character so long as they remain in original packages.85 An importation may be divided into any number of original packages and still be subject to national control,86 and the mere fact that goods are subject to be opened and inspected by the purchaser before delivery does not deprive them of their interstate character;87 but their character is destroyed if the package is broken for the purpose of distributing its contents.88

75. Sedgwick v. State \[Tex. Cr. App.\] 85 business man, an interference with. interstate commerce. Ollure Mfg. Co. v. Pidder. American Exp. Co. v. Iowa, 25 S. Ct. 83. See 3 C. L. 717.

01. Packages of 10 cigarettes shoveled loose into a car and shipped are not original packages. Cook v. Marshall County, fecting commerce In Interdicted articles, 3 C. L. 710, n. 33.

01. Pedder selling original packages in not liable for a state pedider's license tax. Henderson v. Ortic \[La.\] 38 So. 440. Parts of a sewing machine packed together in highton laws is not the subject of interstate commerce. Crigler v. Com. \[Ky.\] 87 contract by an agent in Michigan to sell whisky to be shipped from Ohio to the purchaser in the original package is interstate commerce. Sloman v. William D. C. Moebs co. \[Mich.\] 102 N. W. 854.

01. Commonwealth v. Rearick, 26 Pa. Super. Ct. 384.

01. Package of sponges broken and then retied. Greek-American Sponge Co. v. Richardson Drug Co. \[VWis.\] 102 N. W. 88. The removal of an outer covering does not necessarily change the character of an original package. The vital element is the retention of the identity of the package as a unit of transportation. Commonwealth v. Rearick, 26 Pa. Super. Ct. 384.

01. Single brooms tagged with the name of the purchaser tied in bundles and shipped to an agent who untles and delivers them are not, after the bundle is broken, an original package. Commonwealth v. Rearick, 26 Pa. Super. Ct. 384. Where one takes orders and sends them to a wholesale house without the state where the different articles are made up in packages and shipped to him where the bulk is broken and the packages for each customer segregated and delivered on receipt of the price the transaction is not interstate commerce. Town of Canton v. McDaniel \[Mo.\] 86 S. W. 1092.

**5** Cur. Law. COMMERCE $\\lx@sectionsign$2A.

**SS 2.** \_Regulation of commerce. A. The "commerce clause" and its application to particular regulatory measures."--The commerce clause of the Federal constitution confers on congress the exclusive power to regulate interstate commerce," and commerce with the Indian tribes," and the eleventh amendment of the Federal constitution cannot be applied to nullify it." The power extends to retail as well as wholesale trade," and to commerce conducted by corporations as well as to that conducted by individuals; " but does not include the power to regulate the production of commodities to be used in such trade." Therefore a state cannot place restrictions on interstate commerce," and an attempt to regulate it cannot be sustained under the police power;" but if a matter is local and concerns the public policy of the state, though it incidentally affects interstate commerce, congressional inaction is an invitation to the state to regulate under its police power " but if a state law conflicts with a congressional regulation, the latter controls." A state may, however, enact reasonable police regulations which incidentally affect interstate commerce," but not unreasonable ones which directly affect it."\*\*

**S9.** See 3 C. L. 711.

**90.** The sole power to prescribe rules by which interstate commerce shall be regu-lated is in congress. Barnhard Bros. v. \[Ky.\] 447; Thames Bank v. Lovell, 18 Conn. Morrison \[Tex. Civ. App.\] 87 S. W. 376.

**91.** The commerce clause does not give v. Manson, 43 Wis. 255, 28 Am. Rep. 544; congress power to punish, under Act Jan-Carondext Canal Co. v. Parker, 29 La. Ann. jury 30, 1897, the sale of liquor within a 430, 29 Am. Rep. 339-From note to People state to an Indian citizen subject to the v. Wempple \[N. Y.\] 27 Am. St. Rep. 555.

**92.** Cannot prevent an action to restrain Commerce Act. Sparthin v. St. Louis S. W. a state railroad commission from enforcing an order prejudicial to interstate com-merce. Illinois Cent. R. Co. v. Mississippi with the interstate commerce clause, Rallroad Commission \[C. C. A.\] 185 F. 327.

**93.** Henderson v. Orte \[La.\] 38 So. 440.

**94.** Greek-American Sponge Co. v. Rich-v. Kirby \[N. J. Law\] 59 A. 558. Laws 1899, ardson Drug Co. \[VWs.\] 102 N. W. 888.

**95.** State restriction of the right to take sign merchants to make a report to the fish is not an interference with congress-signal powers. Ex part Fritz \[Miss.\] 28 not an interference with interstate commerce. State v. Edwards \[Minn.\] 102 N. So. 122. The state under its police power has absolute control of the production of articles of commerce. Id.

**96.** Belle City Mfg. Co. v. Frizzell \[Idaho\] 81 P. 58. A state cannot impose conditions or limitations upon the right of a foreign corporation to make contracts in the state for carrying on interstate commerce. Id.

**97.** So much of Civ. Code 1902, $\\lx@sectionsign$ 2845, as prohibits importation with a view to lessen competition is void. State v. Virginia-Caro-Iina Chemical Co. \[S. C.\] 61 S. E. 455.

**98.** Where congress has not acted rela-tive to a river lying wholly within a state, the state has jurisdiction as to the world except future congress. Corrigan Transit Co. v. Sanitary Dist. of Chicago \[C. C. A.\] 137 F. 851. Expenditure of money by the Federal government for the Improvement of river does not evidence an intent to exclude the state from all dominion over that part of the waterway which lies wholly within it. Id.

**NOTE.** Rivers, improvements toile: A state may authorize the improvement of a river within its borders by opening, widen-ing, deepening or straightening it, or making its limits (Commonwealth v. Gardner, 133 Pa. 284, 19 Am. St. Rep. 645, 7 L. R. A. 666).--From note to People V. Wempple \[N. Law. Ed. 816; Sands v. Manistee River \[Y.\] 27 Am. St. Rep. 563.

carcases of calves shipped from any point within a state to be tagged is a proper exercise of the police power,\[3\] and not an interference with interstate commerce, though broad enough to apply to carcasses to be shipped into another state.\[4\] The designation of a specific material to be used in a public work is not an interference with interstate commerce.\[5\] The imposition of a property, tax on an instrument of interstate commerce is not a regulation, though the value of property beyond the state be used in ascertaining the proper valuation.\[6\]

The selling of oleomargarine in unstamped or unmarked packages is made a crime by the Federal statutes.\[7\]

_Regulation of foreign corporations in general.\[8\]--A state may prescribe the conditions on which a foreign corporation may do business therein except to regulate interstate commerce;\[9\] therefore a state tax on a resident agent of a non-resident corporation is not an interference with interstate commerce where the agent also does local business to some extent,\[10\] but when such regulations impose conditions which restrict them in their right to make contracts pertaining to interstate commerce, it invades their constitutional right.\[11\]_

_Regulation of telegraph and telephone companies.\[12\]--A state may impose a penalty on a telegraph company for failure to transmit an interstate message.\[13\]_

A

- 2. Acts 1904, p. 186, c. 109, requiring separate cars for the white and black races and making it an offense for a passenger to refuse to occupy a car to which he is assigned is invalid as to interstate passengers. Hart v. State \[Md.\] 60 A, 457. Act South Carolina, Feb. 16, 1904 (24 St. at Large) prohibiting the transportation of any shad fish beyond the limits of the state, is an interference with interstate commerce. McDonald v. Southern Exp. Co., 134 F. 282.
- 3. That the legitimate as well as the illegitimate article is required to be tagged, does not affect the reasonableness. People v. Bishop, 94 N. Y. S. 773.
- 4. People v. Bishop, 94 N. Y. S. 773.
- 5. The designation by city officials of a certain kind of asphalt to be used in paving a street. Barber Asphalt Pav. Co. v. Field \[Mo.\] 8 S. W. 860. See Field v. Barber Asphalt Pav. Co., 194 U. S. 618, 48 Law.
- 6.114. A municipal ordinance requiring all contracts for public work involving the use of dressed stone to require the work of dressing the stone to be done within the state does not violate the interstate commerce clause. Allen v. Labsap \[Mo.\] 87 S. W. 926. Act March 4, 1903, p. 167, securing to the successful bidler the exclusive right to supply the public schools with books adopted by the state school board does not violate the Interstate commerce clause. Dickinson v. Cunningham, 140 Ala.
- 527, 87 So. 345.
- 6. Taking the entire valuation of the property of a railroad company without as well as within the state and dividing it upon the mileage basis for the purpose of fixing the value within one state, St. Louis, etc., R. Co. v. Davis, 132 F. 629.
- 7. Indictment held insufficient to allege a violation. United States v. Joyce, 138 F.
- 8. See 3 C. L. 712.
- 9. Attorney General v. Electric Storage Battery Co. \[Mass.\] 74 N. E. 467. A state-state
     -telegraph company transmitting a message from one point to another within the state is subject to state regulation, though the message is transmitted through another state.\[14\] A telephone company engaged in both interstate and intrastate commerce is not exempt from a license tax on its intrastate business.\[15\]

\_Regulation of traffic in intoxicating liquors.\[16\]--Under the Wilson Bill a state prohibition law does not attach until liquor shipped in from another state is delivered to the consignee.\[17\] State laws directly affecting interstate commerce in intoxicating liquor are void;\[18\] but laws which only incidentally affect it are valid.\[19\]

\_Inspection laws.--\_The state has power to pass inspection laws which incidentally affect interstate commerce,\[20\] though they are enacted for the sole purpose of detecting fraud or crime.\[21\] A valid inspection law is not rendered invalid because it operates to deter shipments into the state,\[22\] nor because it does not provide for an adequate inspection and imposes a burden beyond the cost of inspection.\[23\]

\_State burdens on foreign commerce.\[24\]--\_The Federal constitution prohibits a state from laying any duty on tonnage\[28\] or exports or imports.\[20\] A state may levy a property tax on an instrumentality of interstate commerce which has a situs within the state.\[27\] State pilotage regulations are not necessarily repugnant to the commerce clause in the absence of Federal regulation.\[28\] Compulsory pilot regulations authorized by Federal statutes do not violate the constitutional provision that the ports of one state shall not be given any preference over those of another.\[29\]

\_Regulation of railroads and other carriers.\[26\]--\_A state law requiring a carrier to observe a general duty is not an attempt to regulate interstate commerce,\[31\] nor is the imposition of a penalty for failure to furnish cars to a shipper on due application;\[32\] but the imposition upon the initial or any connecting carrier as a condition:\[33\]

14. Western Union Tel. Co. v. Hughes \[tion fee on intoxicating liquors held: for (Va.) $1 S. E. 225. Cardwell, J., dissenting. \[top fee on intoxicating liquors held: for- 15. If there is nothing in the law to in- 15. If there is nothing in the law to in- 15. If valid as to liquor of domestic manuacmerce, it will be upheld. Johnston v. \[top fee on intoxicating liquors held: for- 15. If there is nothing in the law to in- 15. If there is nothing in the law to in- 15. If valid as to liquor of domestic manuacmerce, it will be upheld. Johnston v. \[top fee on intoxicating liquors held: for- 15. If there is nothing in the law to in- 15. If valid as to liquor of domestic manuacmerce, it will be upheld. Johnston v. \[top fee on intoxicating liquors held: for- 15. If there is nothing in the law to in- 15. If valid as to liquor of domestic manuacmerce, it will be upheld. Johnston v. \[top fee on intoxicating liquors held: for- 15. If there is nothing in the law to in- 15. If valid as to liquor of domestic manuacmerce, it will be upheld. Johnston v. \[top fee on intoxicating liquors held: for- 15. If there is nothing in the law to in- 15.

tion of availing itself of a valid contract of exemption from liability beyond its own line, of the duty of tracing the goods and informing the shipper when, where and how lost or destroyed, is.\[33\] If adequate train service is furnished or if inadequate service can be otherwise remedied, a state commission cannot require through interstate trains to stop at particular stations.\[34\]

The Interstate Commeree Act forbids traffic pools,\[35\] and it is no justification for such a pool that it prevents unlawful rebates from connecting lines to shippers.\[36\] A contract for the division of earnings of competing lines of railroad violates the Interstate Commeree Act, whether or not actual division is made.\[37\] It is not a violation of the act for the carrier to pay a debt by carriage done at its legally established rates.\[38\] An interstate carrier may buy a commodity and sell the same to be transported over its lines at a less price than the cost, expense and its published rates, unless it is a mere device for covering a discriminatory rate;\[38\] but if the contract operates to give the purchaser an undue advantage to the prejudice of other dealers, it is a violation of the act,\[40\] and no action lies for breach of it.\[41\] .

_The Safety Appliance Act_\[42\] embraces locomotives,\[43\] and applies to all cars used in moving interstate commerce,\[44\] though not actually running at the time.\[45\] Conplers which will both couple and can be uncoupled without the necessity of men going between the cars is what is meant by this act,\[40\] and cars with a defective appliance are not to be put in service.\[47\] Reasonable diligence to keep the apparatus in repair is no justification for a violation of the act,\[48\] and if it was, is not shown to have been exercised where several cars cut out for delivery to connecting carriers were found with defective appliances.\[49\]

_Discrimination in rates.\[40\]_--Reasonable compensation for the service actually rendered is all that a common carrier can be permitted to exact.\[51\] The reasonableness of a rate is a question of fact\[52\] for judicial investigation.\[53\] The general following Houston & T. C. R. Co. v. Mayes \[Tex. Civ. App.\] 83 S. V. 53. Contract of Georgia R. Co. v. Murphey, 25 S. Ct. 218. 34. Code Mins. 1892, SS 3550, 4102, empowering it to require all passenger trains to stop at country seats, does not give it such power. IIIinois Cent. R. Co. v. Mississippi R. Commission \[C. C. A.\] 138 F. 327. 35. A rule between competing lines and their connections, reserving to the initial carrier power to route shipments beyond its line for the purpose of enabling such carrier to control and maintain the rate so fixed by preventing competition between their connecting carriers, is a traffic pool. Interstate Commerce Commission v. South-ern Pac. Co., 132 F. 828. Pooling may be effected by concert of action in mixing in advance the rates which in the aggregate would accumulate the earnings of naturally competing lines. Tiff v. Southern R. Co., 138 F. 753. 38. Pooling and rebates are both prohibited and one cannot be lawfully employed to prevent the other. Interstate Commerce Commission v. Southern Pac. Co., 132 F. 829. 37. Interstate Commerce Commission v. Southern Pac. Co., 132 F. 829. 38. Interstate Commerce Commission v. Chesapeake & Ohio R. Co., 128 F. 59. 39. Not a violation of section 2 of the act. Interstate Commerce Commission v. Chesapeake & Ohio R. Co., 128 F. 59. 40. Coal contract held illegal. Interstate Commerce Commission v. Chesapeake & Ohio R. Co., 128 F. 59. 41. Interstate Commerce Commission v. Chesapeake & Ohio R. Co., 128 F. 59. 42. See 3 C. L. 713. 43. 44. "Any car" used in the Federal state, requiring cars used in Interstate commerce to be equipped with automatic coupers, embraces locomotives. Act March 2, 1893 (27 Stat at L. 531). Johnson v. South-ern Pac. Co., 25 S. Ct. 158. 44. A loaded car consigned to a point in another state is "used in moving interstate commerce," though the initial carrier only undertakes to deliver it to a connecting car-tier within the state, United States v. Southern R. Co., 135 F. 122. 45. A dining car in constant'use, while waiting for a train to be made up for the next interstate trip. Johnson v. Southern Pac. Co., 25 S. Ct. 158. 46. Johnson v. Southern Pac. Co., 25 S. Ct. 158. The equipment of different cars with different types of automatic couplers which will not couple automatically does not satisfy the Federal statutes requiring interstate cars to be so equipped. Id. 47. United States v. Southern R. Co., 135 F. 122. Placing a "defect card" upon a car with a defective coupling apparatus is such a deliberate violation of the provision as to amount to a defiance of the law. Id. 48, 49. United States v. Southern R. Co., 135 F. 122. 40. See 3 C. L. 713. 51. Tiff v. Southern Pac. Co., 138 F. 753.

5 Cur. Law. COMMERCE SS 3. 605

rule is that the greater the tonnage of the commodity transported the lower should be the freight rate,\[94\] and railroads have no legal right to graduate their rates in proportion to the prosperity which attends industries whose product they transport.\[55\]

(SS 2 ) _B. Regulations of trade and commerce within a state.\[56\]_--The several states may regulate commerce within their borders.\[91\] They may regulate unincorporated carriers \[56\] and require a carrier to perform a general duty \[58\] within the terms of the law imposing it.\[59\] They may determine the reasonableness of inter-state rates,\[91\] and regulate trade in an article which, because of its peculiarities, fraud with reference to transactions relative to it may be readily perpetrated.\[92\]

That which of itself is not a business in a commercial or legal sense cannot be regulated as a business.\[58\] The trading stamp business is not contrary to public policy,\[94\] and equity will enjoin the purchase and resale as an article of merchandise the trading stamps issued and redeemable by another.\[95\]

SS 3. _The Interstate Commerce Commission; its functions and proceedings before it.\[60\]_--The Interstate Commerce Commission, though clothed with quasi-judicial functions, is an administrative body and its orders are not self-executing.\[97\] It is an expert tribunal empowered to determine in the first instance the reasonableness of a rate;\[98\] but has no legislative powers;\[99\] hence no power to fix rates.\[70\]

52 Whether a rate is reasonable or ex- (Lane R. Co. \[Fia.\] 37 So. 314. In determinisme whether rates flxed by a state commision to enforce an order for reparation.

ston are reasonable, the cost of construction New York & P. R. Co. v. Penn Te- (Minino Co. \[C. C. A.\] 137 F. 434. 53, 54. Tiff v. Southern R. Co., 138 F. 753. 53. Tiff v. Southern R. Co., 138 F. 753. 55. Tiff v. Southern R. Co., 138 F. 753. 55. Tiff v. Southern R. Co., 138 F. 753. 55. Tiff v. Westree was increase in an industry has resulted in large increase in net revenue to the carriers, an arbitrary increase of freight rates which practically destroy the industry, is unreasonable. The increased traffic (Lane R. Co. \[Fia.\] 49 S. E.

606 COMMERCE SS 3. 5 Cur. Law. Words used in the act are given their customary meaning.\[71\] In enforcing its orders, it represents the people, and relief will not be denied it because complainants before it participated in unlawful practices.\[12\] Though an action to enforce an order of the commission is triable de'novo, the cause of action must have been included in the order and have constituted the basis of it.\[78\] The Act gives a party claiming to be damaged by its violation a right to complain to the commissioner or bring action for damage, but he is confined to the proceeding he elects.\[74\] A bill by the commissioner alleging generally a violation of the Act, which,is denied, raises the issue as to every possible violation of the Act.\[78\]

The Act does not confer on a Federal circuit court jurisdiction to issue writs of mandamus in an original proceeding.\[79\] A state court has no jurisdiction of an action for a violation of the Act,\[77\] but has jurisdiction, in a case of interstate carriage, to afford relief from unreasonable freight rates exacted, notwithstanding such rates have been promulgated under the provisions of the Act.\[78\]

The findings of fact set out in a report of the Commission are in all judicial proceedings deemed prima facie evidence of the facts found,\[79\] and except for controlling reasons, the national courts should not disparage or discredit them;\[80\] but the mere opinions of the Commission are not evidence.\[81\] The lawfulness of an order does not necessarily depend on the evidence adduced before it, but on the existence of facts warranting the reparation ordered.\[82\]

70. An order requiring a carrier to change an artle of freight from one class to another is an attempt to fix rates. In- The contrary is held, however, in Murray terstate Commerce Commission v. Lake v. C. & N. W. R. Co., 62 P. 24. In Van PatShore & M. S. R. Co., 134 F. 942. See 5 C. L. 113, n. 56. 5.

5 Cur. Law. COMMON LAW.

The orders of the Commission must be enforced, if at all, in toto; a court cannot separate an illegal part from the legal." Only those who are parties to the hearing before the Commission are bound by its orders." No appeal or writ of error lies from an order of the Commission." The provision that an appeal from proceedings to enforce an order of the commission will not operate to supersede the order of the court appealed from does not affect the discretionary power of the court to grant a stay;" but a stay will not be granted where the damage resulting from enforcement will be less than that sustained by the other party if the order is suspended."

Where carriers have stipulated that if a rate is held unreasonable they will repay the unlawful exactions, a reference will be had to ascertain the amount and a decree rendered therefor."

SS 4. _State railroad and corporation commissions_" are not the state," and though given quasi-judicial powers, are not courts." A commission authorized to make reasonable rates cannot in consideration of a low rate limit the liability of the carrier for loss through its negligence to less than the value of the goods." The North Carolina Corporation Commission has power to fix the time allowed as free time for intermediate points and make regulations as to time of transit, but not to change the time allowed as free time at the initial point."

COMMENTS; COMMON AND PUBLIC, Schools, see latest topical index.

COMMON LAW.

\_In general."\_From the time of their acquisition by the United States until 1868, the common law was prevalent over the separate portions of the region from which the state of Kansas was carved, under all civilized forms of governmental organization established for them;" and from 1855 until 1868 the common law, not inconsistent with the constitution of the United States, the Kansas-Nebraska act, or statute law, was the rule of action and decision, notwithstanding any law, custom or usage to the contrary."

_Presumption of prevalence of common law in a sister state and proof thereof."_

In the absence of proof to the contrary, it is presumed that the common law prevails in a sister state." The unwritten law of another state may be proved by parol evidence."

SSs. Interstate Commmerce Commission v. The North Carolina Corporation Commission, though a court of record, is in many respects an agent of the state and may be route over which oil was transported at a disciplined by a Federal court as to non-judial-discriminating rate. Western New York & P. R. Co. v. Penn Refining Co. (C. C. A.) 137

SSs. Order denying or awarding reparagraph and its findings only tion for a violation of the act. Western New York & P. R. Co. v. Penn Refining Co.

\[C. C. A.\] 137 F. 343.

SSs. A provided by equity rule 93. Interstate Commerce Commission v. Southern Pac. Co., 137 F. 606.

SS7. Interstate Commmerce Commission v. The Mississippi Railroad Commission Southern Pac. Co., 137 F. 606.

SSs. Tiff v. Southern R. Co., 138 F. 753.

SSs. See 3 C. L. 713, n. 45 set seq.

90. A Federal court has jurisdiction of a suit against such a commission to enjoin it from enforcing an order which interferes with Interstate Commerce. Southern R. Co. v. Greensboro Ice & Coal Co., 134 F. 82.

SSs. A. A.

**CONFESION OF JUDGMENT.** 5 Cur. Law.

**Community Property; Comparative Negligence; Complaint for Aspect; Complaint in Pleading, see latest topical index.**

**COMPOSITION WITH CREDITORS.**

Any secret agreement between the debtor and any single creditor in contravention of equality is against the policy of the law, and, so long as it remains executory, it cannot be enforced,1 and if fully executed at or before the composition, the excess may be recovered by the debtor;2 but being made after the composition is effected, the excess payment cannot be recovered, though made pursuant to a prior agreement.3 The other creditors have no lien or other right, in the proper sense of the terms, recognized either by the common law or by chancery, with reference to any amount received by a creditor who obtained such an advantage.4

**COMPOUNDING OFFENSES.**\*\*\*\*

The commissioner of sea and shore fisheries in Maine has authority to settle prosecutions for having short lobsters in possession and may urge offenders to settle.6

**CONCEALED WEAPONS, see latest topical index.**

**CONCEALING BIRTH OR DEATE.**\*\*\*\*

**The Georgia statute covers the case of a child born dead, if it had ever been quick.6 The child of a married women begotten by one not her husband is a bastard.**

**CONDECLNATION PROREDINGS; Conditional Sales; Compression and Avoidance, see latest topical index.**

\*\*CONFESION OF JUDGMENT.\*\*\*\***10**

**An attorney has power to confess judgment on behalf of his client**11 \*\*in an action of debt brought for a statutory penalty.\*\*12 \*\*Authority to confess judgment is valid without a seal.\*\*13 \*\*A judgment entered without authority cannot affect the rights of defendant.\*\*14 **Authority to confess judgment without process must be clear and explicit,**

\*\*98. National Bank of Bristol v. Baltmore & O. R. Co., 99 Md. 661, 59 A. 134; Penn Mut. Life Ins. Co. v. Norcross, 163 Ind. 379, 72 N. E. 13; Midland Steel Co. v. Citizen Nat. Bank \[Ind. App.\] 72 N. E. 290; Southern R. Co., V. Cunningham \[Ga.\] 50 S. E. 979. 900. Attorney practicing in such state allowed to testify. Rieck v. Griffen \[Neb.\] 103 N. W. 1061. 1, 2, 3, 4. Batchelder & Lincoln Co. v. Whitmore \[C. C. A.\] 125 F. 355. 5. See Hammon, Cont. $\\sharp$ 236, as to contracts to compound. See, also, Contracts, 3 C. L. 805. 6. Prosecution of warden for extortion. State v. Hanna, 99 Mc. 24, 58 A. 1061. 7. Violation of statutes requiring registry of births and deaths, see Census and Statistics, 5 C. L. 558. 8. Evidence held smilement. McLeoud v. State \[Ga.\] 50 S. E. 145. 9. McLeoud v. State \[Ga.\] 50 S. E. 145. 10. See 3 C. L. 719. 11. In justice court as well as court of record. Town of Chalmers v. Tandy, 111 N. III. App. 252. 11. App. 252. 11. 12. 13. Judgment note held valid. Hazelton Nat. Bank v. Kintz, 24 Pa. Super. Ct. 456. 14. Judgment against married woman on note not signed by her or for her by anyone with authority will be stricken from record. Gottlieb v. Middleberg, 23 Pa. Super. Ct. 525.

## 5 Cur. Law.

CONFESSION OF JUDGMENT.

and must be strictly pursued; \[15\] and if there is no power to enter the appearance of the debtor and confess judgment, the judgment is a nullity and subject to collateral attack.\[16\] A judgment by confession can only be sustained by a warrant authorizing it at the time and in the manner and form in which it is entered.\[17\] Thus a power to confess judgment for rent due under a written lease cannot be construed as a power to confess judgment for rent due under an implied contract resulting from a holding over by the tenant, or for rent due under a subsequent agreement for renewal of the lease.\[18\] Under a joint warrant to confess judgment, a judgment can only be confessed against all the makers, and in case of the death of one, no judgment can be confessed against the survivors.\[19\] A warrant authorizing any attorney to appear and confess judgment does not give defendant the right to be heard before entry of judgement.\[20\] Where a warrant of attorney attached to a promissory note authorizes confession of judgment in favor of the holder, and judgment is confessed in favor of one not the legal or equitable owner of the note at the time of commencement of the suit, without service on or appearance of defendants, the judgment so entered is without due process of law,\[21\] and when suit is brought thereon in another state, it may be collaterally attacked, notwithstanding the full faith and credit clause of the constitution.\[22\] A surety on a judgment note who has paid the note on default of the principal may have judgment entered to his own use,\[23\] and such judgment cannot be attacked by the wife of the principal, without authority from the principal, and without interest in the note.\[24\] A provision in a promissory note authorizing confession of judgment before maturity makes the note nonnegotiable.\[25\] In Oregon an offer by defendant to allow judgment, served on plaintiff before trial, is deemed withdrawn if not accepted within three days, and cannot be used as evidence.\[26\]

Under the statute requiring afflavits for judgment on warrant of attorney to state the true consideration for the bond, and that the debt is justly due, judgment may be confessed on any actionable debt due at the time of confession, though not due at the date of giving the bond, provided such demand is supported by the same consideration as that which supports the bond.\[27\] Omission to state the, consideration, or a false statement of it, in the afflavit, renders a judgment entered pursuant thereto a nullity;\[28\] but substantial truth in the statement of

15, 16. Weber v. Powers, 218 Ill. 370, 72

18. -From note, Teel v. Yost \[N. Y.\] 13
    the consideration is sufficient.29 The fact that time of payment has been extended does not prevent entry of such judgment.30 Provided the indebtedness is unpaid, it is immaterial whether a right of action thereon has accrued or not.31 A judgment on bond and warrant of attorney, entered for the amount of the penalty and in pursuance of, the express direction of the warrant, is not illegal, though a part of the real debt had been collected by foreclosure of a mortgage given for the same debt.32

A judgment by consent is binding only on parties to the record.38 A consent decree entered between two terms of court is a nullity,34 and is not cured by a subsequent order in term time purporting to correct only an error in the description of one of the parties.35 Courts of law exercise after the term equitable control over judgments by confession.36 The opening of such judgments is largely discretionary.37 A judgment by confession may be opened by the court in the exercise of its equitable powers, on the application of any defendant having a meritorious defense, whether or not codefendants join in the application.38 A motion to open a judgment by confession questions the right of plaintiff to recover on the merits, and is a waiver of irregularities in procedure.39 Under the Rhode Island statute providing that on failure of defendants to plead to bills or petitions in equity within the proper time, judgment may, on motion of complainants, be taken as confessed, and that a decree so entered shall be conclusive unless motion to set it aside is made in five days, the court has the same power to vacate a decree so entered as in the case of default or mistake, or in the case of decrees in equity cases.40 In Illinois there can be no appeal from a judgment entered by confession, and a motion to dismiss such an appeal may be made at any time.41

CONFLIACT OF LAWS.

8.1. Extraterritorial Effect of Laws in General (610).

8.2. Contracts in General (611).

8.3. Effect of Status or Domileile (614).

8.4. Matters Relating to Personal Property (614).

8.5.1. Extraterritorial effect of laws in general.--As a general rule statutes have no extraterriorial force, but, except as to penal laws,42 rights arising under

28.Strong v. Gaskill \[N. J. Err. & App.\]

8.5.2.39. Judgment set aside for false statement of consideration in affdavivi. Kleeman v. I. & P. Blatz Brewing Co. \[N. J. Law\]

8.60.4.48.

20.2.1.20.1.20.1.30.40.

## 5 Cur. Law. CONFLIICT OF LAWS SS 2.

the statutes of foreign states will generally be enforced as a matter of conity. \[45\] The question of whether the statute is penal is to be determined by the court in which the action is brought, \[44\] and such court is not bound by the construction placed upon the statute by the courts of the place which enacted it. \[45\]

SS 2. _Contracts in general._ \[46\]--All matters bearing upon the execution, interpretation and existence of a contract, \[47\] and the measure of damages for the breach

cont. Town of Chalmers v. Tandy, 111 III. \[ion, which is made dependent upon the 'ontengency of their failing to perform some 'tour' required by the statute, is in the natu- 'etc.', No state will enforce the penal law: 'tour' of a penalty, and cannot be enforced bet- 'etc.', No. \[Tenn.\] 84 S. W. 618; Faison v. 'and the jurisdiction of the state.' First Chicago & A. R. Co., 215 Ill. 47, 14 N. E. 69. \[Neth.\] 87, 3 Am. Rep. 204; Halsey v. McLean, 13 July for the wrongful death of a person, held 'ppenal. Id.' Illinois statute giving single 'telson v. Smith, 27 N. J. Law, 166; Gardenings by way of compensation for the 'killings of stock by a railroad may be 'tour'. \[Man v. Eliss, 35 N. Y. 413; Harrisburg Bank on in Missouri, Stonebraker v. Chicago & A. R. Co., 110 Mo. App., 497, 85 N. W. 621; Vicks, 7 Lea (Tenn.) 140; Ringman v. Claf- 'Code Ala. 1896, SS 27, providing an action for wrongful death, is not a penal statute. \[Pelican Ins. Co., 127 U. S. 286, 32 Law.\]. \[Neth.\] 83. In determining the question whether 'tour' is a liability imposed by a statute is in 'tour's. \[Neth.\] 83. In 'tour's. \[Neth.\] 83. In 'tour's. \[Neth.\] 83. In 'tour's. \[Neth.\] 83. In 'tour's. \[Neth.\] 83. In 'tour's. \[Neth.\] 83. In 'tour's. \[Neth.\] 83. \[Neth.\] 83. \[Neth.\] 83. \[Neth.\] 83. In 'tour's. \[Neth.\] 83. \[Neth.\] 83. \[Neth.\] 83. \[Neth.\] 83. In 'tour's. \[Neth.\] 83. \[Neth.

thereof,\[48\] are determined by the law of the place where the contract is made; matters connected with its performance and legality of object are regulated by the law prevailing at the place of performance,\[49\] and matters respecting the remedy

Smith \[N. J. Eq.1 59 A. 327. The 14ibility of a retiring partner to a creditor of the firm

there conflict with any usurp law, it is

is governed by the law of the place where

an action is brought upon it, or whenever

the partnership was organized, though it

it is otherwise sought to be enforced,

carried on business in other counties. Eas-

though its payment was secured by a mortton v. Varestholm & Son \[C. A.\] 137 F.

gage or other security upon lands situate

524. Where a life insurance policy was is

sned in Massachusetts by a Massachusetts

empary and was to be executed there, it

was subject to Rev. Laws Mass. 1894, p. 67,

c. 522, as amended. Leonard v. State Mut.

Life Assur. Co. \[R. I.\] 61 A. 52. A note exe-

cuted in Illinois by a married woman as

surety, while domelled in that state, Is

valid and enforceable in Indiana, although

it is made payable at a bank in the latter

state and the statute thereof prohibits a

market woman from entering into a

center of waterlygin. Garrigue v. Keller

\[Ind.\] 74 N. E. 523. See Hammon, Cont.

p. 497, & 260, p. 617, & 312.

48. Garrigue v. Keller \[Ind.\] 74 N. E.

01. Measure of damages for failure to deliver a telegram. Hancock v. Western

Union Tel. Co., 137 N. C. 497, 49 S. E. 952;

Western Union Tel. Co., v. McNairy \[Tex.

Civ. App.\] 78 S. W. 960.

49. Easton v. George Wostenholm & Son

\[C. C. A.\] 137 F. 524; Stumpf v. Hallahan,

101 App. Dlv. 383, 91 N. Y. S. 1062. All matters connected with the payment of a prom-

sensory note, including presentation, notice,

demand, protest and damages for nonpayment (Garrigue v. Keller \[Ind.\] 74 N. E. 523),

and the liability of the maker (Mid.) land Steel Co. v. Citizens' Nat. Bank \[Ind. App.\] 72 N. E. 290), are determined by the

law of the place of payment. An indemity insurance policy being executed, counter-

signed and payable in New York, is governed as to interest by the law of New York, although the policy may have been

delivered in another state. Cudahy Packing Co. v. New Amsterdam Casualty Co.,

132 F. 623. As to whether or not contract

is nsuruous is to be determined by the law

of the place where it is to be performed. Allen v. Riddle \[La.\] 37 S. 680.

Where is contract to be performed?

where a firm doing business in California

and Costa Rica purchased goods in England

through complainant, as a purchasing

agent, under an agreement that complainant in England should advance the money

for the purchase, and to prepay freight, in-

surance and other charges for a commision, complainant's contract was to be performed in England. Easton v. Wostenholm

& Son \[C. C. A.\] 137 F. 524. Where residents of New York executed a bond to a

resident of New Jersey, secured by a mort-

gage upon property in the latter state, and

the mortgage was foreclosed in that state,

the rights of the parties held governed by

the laws of New Jersey. Stumpf v. Hallahan,

101 App. Dlv. 383, 91 N. Y. S. 1062.

NOTRE. Ventral law recovers as to usurry:

The general principles governing this and

other questions involved in the conflict of

laws are: I. That if a note or obligation

was valid where it was made, and did not

there conflict with any usurp law, it is

equally valid in any other state in which

in action is brought upon it, or whenever

it is otherwise sought to be enforced,

cripted on business in other counties. Eas-

though its payment was secured by a mort-

gage or other security upon lands situate

in a state other than of its execution. Con-

ner v. Donnell, 55 Tex. 174; De Wolf v.

Johnson, 10 Wheat. IU. S1 867, & Law. Ed.

433; Andrews v. Pond, 13 Pet. U.S.\] 65, 10

c. 522, as amended. Leonard v. State Mut.

Lafe. Ed. 61; Miller v. Tiffany, 1 WALL. \[U. L.\] 298, 17 Law. Ed. 540; Jewell v. Wright,

s. J. 259, 17 Law. Ed. 572; Davis v. Garr,

surely, while domelled in that state, Is

of the statute against usurp in the

it is made payable at a bank in the latter

state and the statute thereof prohibits a

able it is subject to the penalties imposed

married woman depend upon the lex fori.\[50\] The rules being based upon the principal of comity,\[51\] the first two are inoperative when the law of such state is in conflict with that of the forum,\[52\] and a state legislature may by enactment so limit the rules.\[53\] These rules are not changed by the taking of foreign security.\[54\] The parties may by intent, expressed or implied, make the law of a place, other than that indicated by these rules, controlling.\[55\] A contract is made where one party unqualifiedly accepts the offer of the other,\[56\] The state where a promissory note is delivered is the place where it is made.\[57\] A bill of lading is governed by the laws of the state where issued.\[58\] As a general rule where an insurance policy must be counter-signed by a local agent it is deemed to have been made in the state where it is so countersigned.\[50\] Goods being shipped to the purchaser, the sale occurs at the time and place of delivery to the carrier.\[60\] In North Carolina the place of delivery is the place of sale.\[61\] In considering statutes on this subject it should be remembered that the legislature has no power to arbitrarily fix the locus of a sale regardless of the rules of contract law.\[62\]

evade the law against usury of the state in which it was executed, it will be regarded as infected with usury. Pratt v. Adams, 7 Paige \[N. Y.\] 615: Railroad Co. v. Bank of Ashland, 12 Vwall. \[U. S.\] 226, 20 Law. Ed. 385: Andrews v. Pond, 13 Pet. \[U. S.\] 65, 10 Law. Ed. 61.-From note to Bank of Newport v. Cook \[Ark.\] 46 Am. St. Rep. 178, 201.

See, also, extensive note on conflict of laws as to interest and usury, 62 L. R. A. 33.

50. See post, $ 7. Application of rem-edges.

01. Corbin v. Houlehan \[Me.\] 61 A. 131.

01. See post, $ 4. Effect of public policy.

01. Legisature has power to say that principle shall not be extended to a contract, the result of which is to give one of the parties thereto the means of violating the laws of the state and its established policy in relation to the sale therein of com-modities believed to be prejudicial to the interests of its citizens. Rev. St. c. 29, $ 64, relating to intoxicating liquours construed. Corbin v. Houlehan \[Me.\] 61 A. 131.

01. A bond is governed by the laws of the state where made, though secured by a mortgage on reality located in another state.

Hough v. Maquip \[Ark.\] 84 S. W. 717.

55. Garfique v. Keller \[Ind.\] 74 N. E.

523; Midland Sav. & Loan Co. v. Solomon \[Kan.\] 79 E. 1077. That bond given was secured by a mortgage on property located in a foreign state does not abrogate the stipulation. Id. Contract between building and loan association and member held governed by the law of the state where the home \[S.\] 74 N. E. 523.

office of the association was located, it being so stipulated in the contract. Allen v.

Tiddle \[Ala.\] 37 So. 680. A statute of New York applying to insurance contracts made in New York with persons having a known postoffice address therein held not to apply where the insured lived in Texas, and the policy was delivered there, though the premiums and policy itself were payable in New York. Metropolitan Life Ins. Co. v. Bradley \[Tex.\] 82 S. W. 1081. In such a case held it could not be presumed that the parties intended such law to govern. Id.

56. Where offer was returned with a condition added, contract is made in the state where the amendment thus made was acclimated by the contract.

01. C. O. D. shipment. Keller v. State \[Tex.\] 82 S. W. 1081. In such a charges are paid by seller makes no difference. State v. Intoxicating Liquors, 98 Me.

01. If A. 798. Where principal filled order of agent and sent the liquor to him for delivery to the purchaser. James v. State

## 3 Effect of status or domicile

The law of the domicile of a decedent governs the construction and legal effect of his will 64 and the distribution of his personal property \[65\]. The formalities to be followed by officials in taking acknowledgments are governed by the law of the state where the acknowledgments are taken \[66\].

## 4 Matters relating to personal property

The title to tangible chattels is determined by the law of the situs \[48\]. The validity of a chattel mortgage is governed by the law of the state in which it is made \[49\]. A contract affecting personal property, being made within the state within which the property is at the time situated, is governed by the laws of such state, though the property be subsequently moved elsewhere \[70\].

## 5 Effect of public policy

The courts of a state will not enforce a law of a foreign state which is contrary to the public policy of the state of the forum \[73\], and this is true, though the contract sought to be enforced expressly stipulates that the law of the other state shall govern \[73\].

## 6 Protection of citizens in state of forum

The rights of a citizen of the forum should not be prejudiced \[75\].

\[Tex. Cr. App.1 78 S. W. 951. See note\] "Where is contract made?". Intoxicating Liquors, 4 C. L. 270. See, also, Intoxicating Liquors, 4 C. L. 352, and Sales, 4 C. L. 1318.

## 7 Under Laws 1903, 47. C. 434, 8. 2

## 8 Ratio v. Patternsoidal

The rights of a citizen of the forum should not be prejudiced \[75\].

\[Tex. Cr. App.1 78 S. W. 951. See note\] "Where is contract made?". Intoxicating Liquors, 4 C. L. 270. See, also, Intoxicating Liquors, 4 C. L. 352, and Sales, 4 C. L. 1318.

Interley \[Kan.\] 81 P. 605. In proceedings in the Federal court for the establishment of a claim by a non-resident creditor against his debtor's estate, the law of the state of the debtor's residence will be applied. Alice E. Min. Co. v. Blanden, 136 F. 252.

## 10 Werner v. Marx, 113 La. 1002, 37 So. 905.

## 11 See 3 C. L. 722.

## 12 See 4 C. L. 722.

## 13 See 4 C. L. 722.

The law of the domicile of a decedent governs the construction and legal effect of his will 64 and the distribution of his personal property \[65\]. The formalities to be followed by officials in taking acknowledgments are governed by the law of the state where the acknowledgments are taken \[66\].

## 14 See 3 C. L. 723.

The law of the domicile of a decedent governs the construction and legal effect of his will 64 and the distribution of his personal property. \[65\]. The formalities to be followed by officials in taking acknowledgments are governed by the law of the state where the acknowledgments are taken \[66\].

## 15 See 4 C. L. 724.

The title to tangible chattels is determined by the law of the situs \[48\]. The validity of a chattel mortgage is governed by the law of the state in which it is made \[49\]. A contract affecting personal property, being made within the state within which the property is at the time situated, is governed by the laws of such state, though the property be subsequently moved elsewhere \[70\].

## 16 See 3 C. L. 725.

The courts of a state will not enforce a law of a foreign state which is contrary to the public policy of the state of the forum \[73\], and this is true, though the contract sought to be enforced expressly stipulates that the law of the other state shall govern \[73\].

## 17 See 3 C. L. 726.

The rights of a citizen of the forum should not be prejudiced \[75\].

\[Tex. Cr. App.1 78 S. W. 951. See note\] "Where is contract made?". Intoxicating Liquors, 4 C. L. 270. See, also, Intoxicating Liquors, 4 C. L. 352, and Sales, 4 C. L. 1318.

## 18 See 3 C. L. 726.

The law of the domicile of a decedent governs the construction and legal effect of his will 64 and the distribution of his personal property. \[65\]. The formalities to be followed by officials in taking acknowledgments are governed by the law of the state where the acknowledgments are taken \[66\].

## 18 See 4 C. L. 727.

The law of the domicile of a decedent governs the construction and legal effect of his will 64 and the distribution of his personal property. \[65\]. The formalities to be followed by officials in taking acknowledgments are governed by the law of the state where the acknowledgments are taken \[66\].

## 19 See 4 C. L. 728.

The law of the domicile of a decedent governs the construction and legal effect of his will 64 and the distribution of his personal property. \[65\]. The formalities to be followed by officials in taking acknowledgments are governed by the law of the state where the acknowledgments are taken \[66\].

## 5 Cur. Law. Conflict of Laws SS 8.

### 5.7 Contracts respecting reality.

The law of the place where real property is situated governs as to all matters respecting such property.\[77\] The law of the situs governs all questions as to the title and possession of land held under a lease in another state,\[78\] and chattel interests therein.\[79\] Questions affecting the consideration of a mortgage are to be determined by the lex loci contracts.\[80\]

SS 8. Application of remedies.\[81\]--The lex for governs as to all matters of procedure and practice,\[82\] as the bringing of suits and the service of process,\[83\] the burden of proof,\[84\] the admission of evidence,\[85\] and the quantum of evidence requisite to place the cause within the province of the jury.\[86\] It governs as to the time, mode and extent of the remedy,\[87\] including limitations\[88\] and exemptions.\[89\] Hence the validity of stipulations in a contract limiting the time within which an action may be brought thereon is governed by the lex fori.\[99\] Statutes authorizing the attachment of choses in action can have no extraterritorial force and effect.\[91\]

Presumptions and judicial notice regarding foreign laws.\[92\]--In the absence of statutory provisions,\[93\] a court will not take judicial notice of the laws of another state,\[94\] but such laws, whether written or unwritten,\[95\] must be pleaded and proved \[96\] as a matter of fact.\[97\] In an action involving the law of a sister state, the decisions

zens upon a liability created by a statute of Colorado which places them in a worse position than that occupied by citizens of that state whose liability under the same statute is sought to be enforced. Id.

76. See 3 C. L. 728.

01. The law of real property in the Cher-okee country is to be found in the constitution and laws of the Cherokee nation.

Delaware Indians' Case, 38 Ct. Cl. 234. A power of attorney being executed for the conveyance of land, the power to convey and the manner of conveyance depend on the law of the state where the land is located. Lionn v. Moorhead, 209 Pa. 646, 59 A. 264.

78. Swearingen v. Barnsdahl, 210 Pa. 84, 59 A. 477. The validity of deceds of estate in expectancy (Mort v. Jones \[Va.\] 51 S. E. 220), and the validity of a mortgage lleh.

01. Under Acts 1901, p. 164, n. 98, Judibands issued and payable in another state

(Brambler v. Commoneillend Laund & Lumber Co., 26 Ky. L. R. 1176, 83 S. W. 599). It governs in respect to the right of the parties and the modes of transfer and distribuph.

134 F. 470. De-mised premises being located in Ohio, the right of a devise and legate of the lesser to sue an administrator of the lessee for rents is determinable by the law of Ohio.

79. Ohio law considered. Broadwell v. Bankks, 134 F. 470.

01. Conradt v. Lepper \[Wyo.\] 81 P. 307.

01. See 3 C. L. 724.

01. Abbott v. Goodall \[Mc.\] 80 A. 1030.

01. Garrigue v. Keller \[Ind.\] 74 N. E.

01.

01. Chicago Terminal Transfer R. Co. v.

01. Vandenberg \[Ind.\] 73 N. E. 990.

01. Garrigue v. Keller \[Ind.\] 74 N. E.

01. Supreme Lodge K. v. Meyer, 198 U. S.

808, 49 Law. Ed. 1145. Comptency of witness. Doll v. Equitable Life Assur. Soc. \[C. A.\] 138 F. 705.

86. Perteuson v. Cent. R. Co. \[N. J. Err. & App.\] 60 A. 882.

01. McCoy v. Griswold, 114 Ill. App. 556.

01. Adams Exp. Co. v. Walker, 26 Ky.

01. L. R. 1025, 83 S. W. 106. A statutory requirement that an action for wrongful death shall be commenced within a certain time is not a statute of limitations. Denn v. Atlantic Coast Line R. Co. \[S. C.\] 49

01. E. E. 869. See 3 C. L. 724, n. 28; Id. 725, n. 22.

01. Goodwsln v. Claytor, 137 N. C. 224, 49 S. E. 173; National Tube Co. v. Smith \[WY. Va.\] 50 S. E. 717. Injunction does not lie against a garnishment of money owing by the garnishee to a non-resident debtor on the ground that such money is exempt by the law of the state of residence of such cated. Lionn v. Moorhead, 209 Pa. 646, 59 A. 264.

01. Missouri, etc., R. Co. v. Goodair Commission Co. \[Tex. Civ. App.\] 87 S. W. 571.

01. Shannon's Code, # 5260, 5267. Klim-probability. Hornsbyof the supreme court of such state may be read, considered and introduced in evidence when bearing upon questions of law involved in the case on trial.\[98\] Where it is sought in the trial court to prove the law of a sister state by the introduction of portions of the reports of the decisions of the courts of that state the opinions relied upon, or excerpts, therefrom, must be set forth in hacc verba in the bill of exceptions in order that such proof may be before the appellate court.\[90\] Testimony of an attorney as to what he believed the law of another state to be is admissible.\[1\] In the absence of proof to the contrary, the law of a foreign state is presumed to be the same as the lex fori; \[2\] but this rule does not apply to positive statutory enactments.\[9\] In the absence of proof, it is presumed that the common-law rule exists in a sister state.\[4\] The common law of another state will be presumed to be the same as that of the state of the forum.\[9\]

\*\*SS 9. \_Torts.\[9\]-\_The right of action for a tort is governed by the law of the place where the cause of action arose.

5 Cur. Law. CONSPIRACY SS 1. 617

'Confusion of Goods; CONREETING CARERERETS; CONSideration; CONSOLIDATION, see latest topical index.

CONSPIRACY.

8 L. Civil Liability (617). **SS 2. Criminal Liability (618).**

**SS 1.**\_Civil liability.12--To constitute an actionable conspiracy there must be an agreement to do an unlawful act or to do a lawful act by unlawful means, and acts pursuant thereto causing damage,13 and such as would have given a cause of action against the door without regard to conspiracy.14 If neither object nor means are unlawful, a malicious motive does not make the combination actionable.15 Concerted refusal to sell to a particular person is not actionable, however wrongful the motive.16 A statute punishing such conspiracies is valid.17 A conspiracy to drive one from business is actionable if unlawful means are used,18 as is a conspiracy to procure one's employes to leave him.19 One entering a conspiracy after it is formed is liable for all acts from the inception of the conspiracy.20 A corporation may become a party to a conspiracy.21 Husband and wife cannot between themselves be guilty of conspiracy.22 Several injurious acts pursuant to a conspiracy form but one cause of action.23 After proof of conspiracy, acts and declarations of each conspirator in furtherance of the common purpose are admissible against all; 24 but not those accrning after the purpose of the conspiracy is completed.25 Reception of separate acts of alleged conspirators before prima facie proof of conspiracy rests in discretion.26 Admissibility 27 and sufficiency of evidence of particular conspiracies is shown in the footnote.28 Proof of an assault and bat-

enforceable in Texas. Missouri, etc., R. Co. **20.** Patch Mfg. Co. v. Protection Lodge v. Kellerman \[Tex. Civ. App.\] $ S. W. 401. **11.** Missouri, etc., R. Co. v. Kellerman \[V1. 60 A. 74. **12.** Enuk where stake money was deposited held a party to a conspiracy to fraud by means of a pretended foot race.

Provure sale of property on which plaintiff has a privilege if the proceeds of the sale are in court subject to plaintiff claim.

22.\*\* Merrill v. Marshall, 113 III. App. 447. **23.** Green v. Davies, 100 App. Div. 359. **24.** Green v. Davies, 100 App. Div. 359. **24.** Green k. I, 91 N. T. S. 470. **24.** Standard Oil Co. v. Doyle, 26 Ky. L. R. **54.** 25.\*\* Standard Oil Co. v. Doyle, 26 Ky. L. R. **55.** Standard Oil Co. v. Doyle, 26 Ky. L. R. **54.** 38.\*\* W. **27.** Conspiracy to steal and divide proceeds is not complete until the division is made. O'Brien v. State certain member of his membership gives no cause of action. Grand Lodge Order of \*\*N. Y. R. 837. **26.** Wright v. Stewart, 130 F. **905.**

26.\*\* Wright v. Stewart, 130 F. 905. **27.** Admissibility of evidence to show connection of various members of labor union with acts of intimidation. Patch Mfg. Co. v. Protection Lodge, No. 215, International Ass'n of Machinists \[V1. 60 A. 74. **28.** Evidence held to show conspiracy to prove sale of goods to irresponsible person. Lederer v. Adler, 91 N. T. S. 827. **29.** Evidence of conspiracy to prove sale of goods to irresponsible person. Lederer v. Adler, 92 N. T. S. 827. **29.** Evidence of conspiracy to prove sale of tory by several entitles plaintiff to recover, without proof of an averment that it was pursuant to a conspiracy.\[29\]

SS 2. \_Criminal liability.\[30\]--\_The Illinois statute relating to conspiracy to do an act injurious to public trade did not abrogate the common law relating to conspiracy to fix prices.\[31\] A conspiracy to commit a crime is complete when the agreement is made and no overt act is essential.\[22\] Overt acts beyond the jurisdiction will sustain the charge.\[33\] Mere approval of an unlawful agreement without co-operation or agreement to co-operate does not constitute conspiracy.\[34\] Each member is liable for the acts of all after the combination is formed.\[35\] It is no defense to a charge of conspiracy to bribe a juror that the court had no jurisdiction of the case in which such juror was empanelled.\[36\] To constitute conspiracy to de-fraud the United States, the contemplated fraud need not be such as would itself be a violation of a penal statute,\[37\] nor is it necessary that the conspiracy should contemplate depriving the United States of money or property, but any fraudulent interference with its functions is within the statute.\[38\] Conspiracy for offering to the United States in exchange under act June 4, 1897, lands in which another had an equity is a conspiracy to defraud the United States under $ 5440 Rev. St.\[39\] A conspiracy to induce one to bet and place property in the hands of a stakeholder is not a conspiracy to obtain title to the property.\[40\] A strike to compel an agreement for a closed shop is a conspiracy for an unlawful purpose.\[41\] A combination of producers to prevent competition in sale is unlawful irrespective of means.\[43\] A combination to control prices need not be formal or by written articles of association.\[44\] A tacit agreement without a formal contract is sufficient.\[45\] That a combination to fix prices did not result in a complete monopoly is no defense.\[45\]

\_Indictment.\[46\]--\_An indictment for conspiracy to def

## 5 Cur. Law. Constitutional Law.

lawful agreement which would result in fraud, need not allege intent to defraud.\[47\] An indictment for conspiracy to commit an offense against the United States must state as proposed all the legal elements of such offense.\[48\] An indictment for conspiracy to defraud the United States by causing a violation of a certain statute need not negative an exception in such statute.\[49\] An indictment is not double because it charges the commission of a felony pursuant to the conspiracy.\[50\] Where the statute forbids conspiracy to injure the business, property "or" rights of another an indictment in the conjunctive is good.\[51\] Overt acts need not be alleged with the same particularity as though they were the gist of the crime.\[52\] An averment that defendants fraudulently and maliciously conspired is sufficient under a statute prohibiting conspiracy "with fraudulent or malicious intent."\[53\] An indictment under the Anti-trust Act of 1891, relating to conspiracy by corporations need not allege that defendant corporation was organized to do business within the stat.\[54\] Where the alleged object is unlawful, unlawful means need not be alleged.\[55\]

\_Variance.--\_The overt act is not conclusive as to the purpose of the conspiracy, and accordingly the fact that it varied from the purpose charged does not require an acquittal.\[56\] An indictment for conspiracy to cheat by false pretenses will not sustain a conspiracy to steal.\[57\]

_Eridence.\[58\]_--Conspiracy may be established by circumstantial evidence.\[59\] Where declarations are admitted on promise to supply proof of conspiracy, they should be stricken out if such proof is not made.\[60\]

Constristutumal Law.

**SS 1. Adoption and Amendment of Consulttions (620).**

**SS 2. Operatlve Forece and Effect (620).**

**SS 3. Interpretation and Exposition (621).**

**SS 4. When Called For (621).**

**SS 5. Depvitation Without Due Process of Law, or Country to Law of the Land (622).**

**SS 4. Executive Legislative and Juddelient Funetlons (626).**

**SS 6. Compensation for Taking Property (645).**

**SS 7. Right to Justice and Guaranty of Remedles (645).**

**SS 8. Relative Powers of Federal and State or Other Subordinate Governments (625).**

**SS 8. Police Power In General (628).**

**SS 8. Liberty of Contract and Right of Property (631).**

**SS 8. Freedom of Speech and of the Press (632).**

**SS 9. Personal and Religious Liberty (632).**

**SS 10. Equal Protection of the Law (633).**

**SS 11. Privileges and Transurities of Clicicons (635).**

**SS 12. Grants of Special Privileges and Immunities; Class Legislation (636).**

**SS 47. United States v. Stone, 135 F. 392.**

**SS 48. United States v. Green, 136 F. 618.**

**SS 49. United States v. Stone, 135 F. 392.**

**SS 50, 51, 52. State v. Loser \[Iowa\] 104 N. W. W. 337.**

**SS 53, 54, 55. Chicago, etc., Coal Co. v. People, 214 Ill. 421, 73 N. E. 770; afg. 114 Ill. App. 75.**

**SS 56. State v. Loser \[Iowa\] 104 N. W. 337.**

\*\*SS 57. Offense held larceny and not cheat_This topic treats\_ of the organic law of the nation and the states and of the distribution of power between them. Several of the clauses which relate to a specific and indivisible subject matter like "Commerce," "Jury" and "Rights of Persons Acused of Crime" are treated in topics which are specifically devoted to such subjects. \[61\]

**SS 1.**_Adoption and amendment of constitutions._**--A** court cannot inquire into the legality of a constitution to which it owes its own life and existence;" but the regularity of the adoption of amendments may be questioned, \[44\] and whether an amendment has been regularly proposed, adopted and ratified, is a question for the courts and not for the political department of the government. \[45\]

Amendments \[46\] are usually required to be passed upon by the legislature acting with certain formalities similar to those prescribed for the enactment of statutes, \[47\] and publication of the proposed amendment, and its submission to the electors under certain restrictions as to form and subject-matter, are generally provided for, \[48\] though popular adoption will generally cure any purely technical defect in the proceedings. \[49\]

Proposed amendments to particular sections must be germane to the sections amended, though amendments to a constitution as a whole may embrace matters not mentioned in the original. \[49\]

A majority of the electors voting upon the question is generally sufficient for its adoption. \[71\]

**SS 2.**_Operative force and effect._**"**--Constitutions do not operate retrospectively, \[78\] or extra-territorially, \[74\] and laws in force at the time of adoption of a constitution and not in conflict therewith continue of force until expressly repealed. \[78\]

Statutes in conflict are repealed by implication. \[78\]

A treaty cannot supersede the Federal constitution. \[71\]

_Self-executing provisions_**"** are those which require no further legislation in order that the right given may be enjoyed and protected, or that the duty imposed may be enforced. \[79\]

Provisions limiting the indebtedness of municipalities, \[80\]

determining the tenure of officers appointed to fill vacancies, \[81\]

and those contained in the thirteenth and fourteenth amendments to the Federal constitution, \[82\]

have

**61.** See Commerce, $ C. L. 711; Jury, $ 4

v. Graham \[$ C.J 49 S. E. 1. A draining C. L. 558; Criminal Law, $ C. L. 979; Indictment and Prosentiation, $ C. L. 1; Search and Selzure, $ 4 C. L. 1416; and the Ilke.

**62.** See $ C. L. 730.

**63.** See $ C. L. 732, $ 4

**64.** In Federal court. Knight v. Shelton, $ 134 F. 423.

**65.** See $ C. L. 730, n. 4. Declaration of canvassing officer is not conclusive. Knight v. Shelton, $ 134 F. 423.

**66.** See $ C. L. 730.

**67.** A proposal to amend a constitution is not "legislation" that must be passed as statutes are passed. Need not be presented to the governor for his approval. Warfield v. Vandiver \[Md.\] 60 A. 538.

**68.** A requirement that where two amendments are submitted they must be submitted separately does not apply where the two amendments are dependant upon and connected with each other. Lobaugh v. Cook \[Lown\] 102 N. W. 1121.

**69.** See $ C. L. 731, n. 9.

**70.** See $ C. L. 731, n. 9.

**71.** See $ C. L. 731, n. 22. A majority of all voting at the election is necessary in Arkansas. Knight v. Shelton, $ 134 F. 423.

**72.** See $ C. L. 732.

**73.** See $ C. L. 732, n. 27. Arey v. Lindsay, $ 103 Va. 250, 48 S. E. 889; McCullough 5 Cur. Law. CONSTITITUTIONAL LAW SS 3A.621

been construed as self-executing. The contrary is said of a provision authorizing the mayors of cities to suspend and remove police officers.\[83\]

SS 3. _Interpretation and exposition. A. When called for.\[84\]_--Courts refuse to pass on the constitutionality of a statute unless absolutely necessary to a decision of the case,\[85\] and cannot attempt, prior to an actual controversy, to pass upon the validity of provisions that may never be properly questioned.\[85\] Thus, the validity of a statute cannot be questioned by one to whom it has no application,\[87\] or who is not injured by it,\[88\] or who has voluntarily complied with it,\[88\] or invoked its provisions,\[80\] or who may avail himself of its provisions or not as he elects,\[81\] or who has waived his rights.\[92\] Whether a statute would be unconstitutional under a construction that has not been given it will not be decided.\[85\]

Objections to a statute must point out what provision of the constitution is violated,\[94\] the manner of its violation,\[95\] and the objector must show facts sufficient

v. United States, 197 U. S. 207, 49 Law. Ed. 726. 83. City of Newport News v. Woodward \[Va.\] 51 S. E. 193. 84. See 3 C. L. 732. 85. See 3 C. L. 732, n. 40. King v. Concordia Fire Ins. Co. \[Mich.\] 12 Det. Leg. N. 160, 103 N. W. 616; Blanchard v. Barre \[Vt.\] 60 A. 870; White v. Sun Pub. Co. \[Ind.\] 73 N. E. 890; People v. Wells, 99 App. Div. 364, 91 N. X. 819; State v. Mal. 90. See 3 C. L. 733, n. 47. A. corporation heur County Court \[Or.\] 81 P. 568. Where an information, to which a demurrer was termed by the law of eminent domain is esvermiled, is fatally defective, the court will not pass on the constitutionality of the statute under which it was drawn. Ogless-by v. State \[Ga.\] 51 S. E. 605. 86. See 5 C. L. 732, n. 41. 86. See 5 C. L. 733, n. 41. 87. See 1 C. L. 571, n. 70: 3 C. L. 733, n. 42: John Woods v. Carl \[Ark\] 87 S. W. 621. 84. 87. 88. 821. 84. 87. 89. 821. 84. 87. 88. 89. 821. 84. 89. 80. 80. 81. 81. 82. 83. 84. 88. 85. 86. 87. 88. 89. 80. 81. 83. 84. 89. 81. 84. 89. 82. 85. 86. 87. 88. 88. 89. 80. 81. 84. 89. 80. 82. 86. 88. 89. 81. 85. 87. 89. 81. 86. 88. 89. 80. 81. 87. 89. 81. 88. 89. 82. 89. 80. 81. 89. 82. 83. 84. 89. 80. 83. 84. 89. 81. 85. 86. 87. 88. 89. 81. 88. 89. 82. 89. 83. 84. 89. 84. 89. 85. 86. 87. 88. 89. 88. 89. 80. 81. 89. 80. 81. 89. 82. 83. 84. 89. 81. 89. 82. 84. 89. 83. 85. 86. 87. 88. 89. 81. 89. 82. 84. 89. 83. 85. 87. 89. 88. 89. 80. 81. 89. 80. 81. 89. 82.

to bring himself within the protection of the clause invoked." In order that an appellate court may pass upon a constitutional question, it must generally have been properly raised below," decided adversely to appellant," and fully argued on appeal." The constitutionality of the statute or ordinance under which a conviction was had cannot be tested by habeas corpus.1

(SS 3) \_B. General rules of interpretation. Constitutions.\_2--The words in constitutions must be regarded as being used in their natural sense3 and to mean what they say,4 and technical words are given their technical meaning unless clearly used otherwise,5 though the intention of the framers must prevail, whatever the language used to express it.6 All parts relating to the same subject must be construed together, and every part, if possible, rendered effective.7 The position of an article in the instrument is not controlling.8 Conditions, existing when the constitution was adopted,9 debates of the members of the convention framing it,10 and contemporaneous construction by co-ordinate branches of the government,11 are resorted to in aid of doubtful provisions,12 though where the language is plain there is no room for conservation.13 A provision adopted from a particular state brings its construction with it,14 but not if the same provision is found in several constitutions and has received varying constructions.15 That the validity of a constitutional amendment is not free from doubt is of itself a sufficient reason for sustaining it.16

Footnote 13: See 3 C. L. 735, n. 63. State v. Kelly \[Kan.\] 81 P. 450. 11. See 3 C. L. 735, n. 64. Nye v. Foreman, 215. 215. 214. N. E. 140. In order that contemporaneous construction may be of force, the provision must be ambiguous, and the construction uniform and within a reasonable time after enactment of the provision. Knight v. Shelton, 134 F. 423. Practical construction by an inferior court is not controlling. Rodwell v. Rowland, 137 N. C. 617, 50 S. E. 319. See 3 C. L. 735, n. 65. Keller v. State \[Tex. Cr. App.\] 87 S. W. 669; Halsey & Co. v. Belle Plaine \[Iowa\] 104 N. W. 494. In the sense in which they were used in previous constitutions. Alford v. Hicks \[Ala.\] 88 So. 752. 4. See 3 C. L. 734, n. 60. If the language used is plain and clear, then the usual and ordinary significance shall be given it. Lord v. Equitable Life Assur. Soc., 94 N. Y. S. 65. See 3 C. L. 735, n. 68. See 3 C. L. 734, n. 61. Whether schedule was intended to be of temporary or permanent character must be determined from its provisions. State v. Galusha \[Neb.\] 104 N. W. 197. See 3 C. L. 734, n. 62.

S. A limitation on the legislative power is none the less effective because not printed under that head. Sheehan v. Scott 145 Cal. 684, 79 P. 350. 9. And the evil sought to be remedied or guarded against. Halsey & Co. v. Belle Plaine \[Iowa\] 104 N. W. 494. It is especially important to look into it if the constitution is the successor of another and in the particular essential changes have apparently been made. City of Newport News v. Woodward \[Va.\] 51 S. E. 193. 196. See 3 C. L. 735, n. 63. State v. Kelly \[Kan.\] 81 P. 450. 11. See 3 C. L. 735, n. 64. Nye v. Foreman, 215. 215. 214. N. E. 140. In order that contemporaneous construction may be of force, the provision must be ambiguous, and the construction uniform and within a reasonable time after enactment of the provision. Knight v. Shelton, 134 F. 423. Practical construction by an inferior court is not controlling. Rodwell v. Rowland, 137 N. C. 617, 50 S. E. 319. 12. See 3 C. L. 735, n. 65. 13. Keller v. State \[Tex. Cr. App.\] 87 S. R. 669, Legislative construction cannot prevail over plain language. State v. Galusha \[Neb.\] 104 N. W. 197. 14. See 3 C. L. 735, n. 66. Norfolk & W. R. Co. v. Cheatwood's Adm'x, 103 Va. 356, 49 S. E. 489. So of a provision adopted from a previous constitution of the same state. Alford v. Hicks \[Ala.\] 38 So. 752. 15. See 3 C. L. 735, n. 67. 16. See 3 C. L. 735, n. 69. 17. See 3 C. L. 735, n. 70; State Decisis, 4 C. L. 1512. Kane v. Erle R. Co. \[C. C. A.\] 133 F. 681. Kibbe v. Stevenson Iron Min. Co. \[C. C. A.\] 138 F. 147. Decisions of the supreme court of a state construing and applying a constitutional amendment are not conclusive on the Federal courts on the question of its proper proposal and adoption. Knight v. Shelton, 134 F. 423 5 Cur. Law. CONSTITUTIONAL LAW SS 3B. United States in interpreting the Federal constitution.18 Limitations imposed for the protection of the people, or a minority of them are not to be regarded as penal, but as remedial, and are to be so construed as to afford the protection contemplated.19

\_Statutes violative of the constitution_20 in the least degree are unenforceable it being unquestionably the duty of the courts to give effect to the organic law as the supreme will of the people.21 Enactments against the spirit of the constitution may be declared void, though not expressly prohibited in the instrument.22 The courts are not at liberty, however, to set a statute aside on the ground of natural justice and right,23 or public policy,24 nor can they inquire into its wisdom,25 the manner in which favorable consideration was obtained for it,26 or the motives of the legislature in passing it,27 the courts being bound to assume that the legislature acted in good faith and with a desire to promote the public good.28 A statutory construction law is only applicable when not inconsistent with the general object of a subsequent statute, or the context of the language construed, or other provision of the repealing law indicating a different intent.29

\_Every presumption favors the validity of a statute,\_20 a reasonable doubt as to its constitutionality being sufficient to sustain it.21 Doubful statutes are so construed if possible as to harmonise them with the constitution,22 and both the statute

22.

and the constitution will be liberally construed in favor of the validity of legislative action; \[33\] but the court cannot give a statute for the purpose of sustaining it a construction which its language forbids.\[34\] A statute unobjectionable but for an unjust exemption or discrimination may be sustained by extending the exemption to all persons.\[35\] The validity of a statute is to be tested, not by what may possibly be attempted, but by what it authorizes to be done.\[36\]

_A statute containing invalid provisions yields only to the extent of its repugancy to the constitution,\[37\]_ and a part may be unconstiutional without rendering the whole statute bad,\[38\] if the invalid part is so independent of the remainder that it may be eliminated without rendering the whole ineffective,\[39\] unless the invalid portion was manifestly the inducement for the passage of the remainder.\[40\] The presumptions, however, favor the unconstitutionality of the remaining portions,\[41\] and where the unconstiutional portion is essentially and inseparably connected in substance with that which is constitutional, the whole must be rejected.\[42\]

_Scope of Federal and state power.\[43\]_--The government of the United States exercises only granted powers,\[44\] while the state legislatures exercise all powers not expressly prohibited by the Federal or state constitution.\[45\] A grant of power implies also the grant of all others necessary to make it effectual.\[46\]

ers, the word "such" before the word "compose. Michigan Railroad Tax Cases, 138 "county" should read "each" so as to make \[F. 223\]

the law general and hence constitutional. The word "such" held to have regret in by \[38\]

Sate v. Scampini \[Vt.\] 59 A. 201; error. State v. Carlisle, 2 Ohio N. F. (N. S.)

687, 15 Ohio Dec. 287. A statute making failure of corporations to make reports \[F. 38\]

C. C. (N. S.) 217; St. Louis S. W. R. Co. v. evidence of nonsuwer will be construed as relating merely to a prima facte case, since to hold that it was meant to be conclusive

59 A. See S C. L. 737, in 90. Wheelwright evidence would invalidate the statute. Pepe v. Boston \[Mass.\] 74 N. E. 937; Title v. State p. V. Rose, 207 Ill. 552, 69 N. E. 762. A statute requiring the supreme court to weigh the evidence on appeal and give judgment according to the right of the matter will not be construed as conferring the right to trial de novo on appeals. Parkinson v. Thompson \[Ind.\] 73 N. E. 109. 33. State v. Kelly \[Kan.\] 81 P. 450. 34. City of Austin v. Cahill \[Tex.\] 88 S. W. 542. Plumber's act. Schnair v. Navarre Hotel & Imporations Co. (N. Y. J 74 N. E. 561. Peddeser' license law. Ex parte Deeds \[Ark.\] 87 S. W. 1030. Where the legislature distinctly refuses to limit an act prohibiting the shipment of "any shad fish" beyond the limits of the state to fish caught within the state, the court cannot do so for the purpose of sustaining the act. McDonald v. Southern Exp. Co., 134 F. 282.

35. Liquor law exempting sales of wine and cider by citizens of the state extended to all. State v. Scampini \[Vt.\] 50 A. 201.

01. City of Beatrice v. Wright \[Neb.\] 101 N. W. 1039. The essentially validty of a law is to be tested not by what has been done under it but by what may by its authority done. In re Grout, 34 City. Proc. R. 231, 93 N. Y. S. 711. Where the validity of a statute depends upon the power of the legislature to enact it, its validity must be tested by what might be done under its color and not by what has been done. State v. Stark County \[N. D.\] 103 N. W. 913. Status cannot be declared invalid on the ground that the officers acting under them fail to perform the duty which the statutes 5 Cur. Law. CONSTITITUTIONAL LAW SS 3B. 625

_The court cannot consider evidence altitude,\[47\]_ but is confined to the consideration of the law itself, and the material facts of which the court can take judicial notice.\[48\]

_Where the words of a statute are plain,\[49\]_ no construction is permissible.\[50\]\_ Every word must be given its due force and effect,\[51\] and all parts construed together and harmonized,\[52\] with all other statutes in pari materia if possible.\[53\]\_ A construction leading to an absurdity\[54\] or that would aid evasions of the statute is not favored.\[55\]\_

_A statute copied from a similar statute of another state\[56\]_ is presumed to be adopted with reference to its prior construction, but the presumption is not conclusive,\[57\] and is never indulged where the same statute exists in several states and has been varyingly interpreted.\[58\]\_

_A proviso\[59\]_ is considered strictly and takes no case out of the enacting clause not fairly within its terms.\[60\]\_

_The title is ordinarily no part of a statute.\[61\]_

_The punctuation of an act\[62\]_ is not controlling.\_

_A statute passed in contravention of the constitution is void,\[43\]_ and can be the basis of no rights,\[64\] legal or moral, against either an individual or the state,\[65\]\_

cumbers. Commonwealth v. Mathues, 210

\[Kan.\] $1 P. 450. The rule that statutes are Pa. 373, 59 A. 961. Qualifications may be increased as to offdes legislative ions--prospective operation 1s, like other rules of powered to establish. Sheehan v. Scott, 145

\[Interpretation, resorted to for the purpose Cal. 684, 79 P. 350. Exemption of railroads from taxation for a limited period is not an assudingly probable intention of the legislations of legislative power where not expressly denied. Bennett v. Nichols \[Ariz.\]\_

of themselves make the intention clear, and 80 P. 392. So far as the duties of county officers are not prescribed by the constituation, they may be by the legislature. Missouri River Power Co. v. Steele \[Mont.\] 80

\[Mon.\] 80 P. 1093. 46. See 3 C. L. 738, n. 20. 47. See 3 C. L. 739. 481 P. 450; Tenement House Department of New York v. Moeschen, 179 N. Y. 356, 72 N. E. 231. Coutrus will take notice of whatever is generally known within the limits of their jurisdiction, and if the judges memory is at fault, he may refresh it by resorting to any means for that purpose which he deems sate and proper. This extends to such matters of science as are involved in the cases brought before him. Viemeister v. White, 179 N. Y. 235, 72 N. E. 97, citing cases. The history of the times, the country and its topography and general conditions, and the general state of opinion, public, judicial and legis-lative, may be considered. McDonald v., Doust \[Idaho\] $1 P. 60; State v. Kelly \[Kan.\] $1 P. 450. The proceedings of the legislature may be looked to when the legislature intent is in doubt. McDonald & 30

\[Mon.\] $1 P. 450. The proceedings of the legislature may be looked to when the legislature intent is in doubt. McDonald & 30

\[Mon.\] v. Southern Exp. Co., 134 F. 282; McDonald v., Dost \[Idaho\] $1 P. 60; State v. Kelly \[Kan.\] $1 P. 450. Rejection of amendment that would have removed constitutional objection. McDonald v. Southern Exp. Co., 134 F. 282. Defeat of prior bill accomplishing all constitutional purposes in subsequently enacted bill McDonald v., Dost \[Idaho\] $1 P. 60. Legislative policy may be looked to. City of Austin v. Cahill \[Tex.\] $8 S. W. 542. 49. See 3 C. L. 739. 50. See 3 C. L. 739, n. T. State v. Kelly \[Kan.\] $1 P. 450. Rejection of amendment that would have removed constitutional objection. McDonald v. Southern Exp. Co., 134 F. 282. Defeat of prior bill accomplishing all constitutional purposes in subsequently enacted bill McDonald v., Dost \[Idaho\] $1 P. 60. Legislative policy may be looked to. City of Austin v. Cahill \[Tex.\] $8 S. W. 542. 49. See 3 C. L. 739. 50. See 3 C. L. 739, n. T. State v. Kelly \[Kan.\] $1 P. 450. The rule that statutes are Pa. 373, 59 A. 961. Qualifications may be increased as to offdes legislative power. Co., 134 F. 434; Scandale v., Schultz \[C.\] $1 P. 451. The rule that statutes are Pa. 373, 59 A. 961. Qualifications may be lowered to ensure a prospective treatment than a retrospective treatment.\[61\]\_

\[Mon.\] $1 P. 452. The rule that statutes are Pa. 373, 59 A. 961. Qualifications may be lowered to ensure a prospective treatment than a retrospective treatment.\[61\] though a statute colorably valid may be color of authority for acts done under it until its unconstitutionality is esablished by direct attack.\[66\] A state officer may refuse to act under a law which he deems unconstitutional and thereby secure judicial interpretation of it.\[67\]

SS 4. _Executive, legislative and judicial functions.\[68\]--Under the three phased form of government common to American constitutions, each branch is supreme in its particular division.\[69\]_

(SS 4) _A. Executive functions.\[70\]--The pardoning power is an executive function which may not be invaded by the legislature,\[71\] and neither legislative nor judicial powers may be conferred upon executive officers.\[72\]_

(SS 4) \_B. Legislative functions.\[73\]--A legislature cannot fetter a subsequent one.\[74\] State legislatures have all the powers not expressly or by necessary implication withheld by the state or Federal constitution.\[75\] Congress has the right to delegate to state legislatures the right to make additional regulations concerning mining locations.\[76\] It being within the power of the legislature to prescribe the formalities necessary to the formation of a corporation, it can legalize one whose organization was defective through failure to comply with those requirements.\[77\] Legislative power cannot be delegated,\[78\] except that municipalities may 5 Cur. Law. CONSTITITUTIONAL LAW SS 4C.627

be given power over matters of purely local concern.79 Local option laws are upheld.80 The fixing of parish boundary lines is a legislative function,81 and the public policy involved in apportioning representation in the state legislature, within the constitutional limits, is exclusive of legislative cognizance.82

(SS 4) \_C. Judicial functions.83--Judicial duties may not be imposed on nonjudicial officers,84 nor nonjudicial duties on the judiciary.85 Court will not sit merely to give advice,86 and have no power to control the exercise of the judgment and discretion reposed by law in executive officers,87 or the legislature.88 The

Ins. Co. \[Mich.\] 12 Det. Leg. N. 160, 103

N. W. 616. The banking law providing that

store to the witnesses of the will does not reports shall be made to the bank exam-

confer judicial power on them. O'Brien. v. iner as he may direct does not confer leg-

Bonfield, 213 Ill. 48, 72 N. E. 1090. An oralitative power on him. State v. Strubbe

dinance providing that a license granted

\[S. D.\] 104 N. W. 465. Law regulating practice of dentistry held not invalid, as confer-

proof of a violation of an ordinance does

ring legislative power on dental examining

not confer judicial power on the mayor.

board. In re Thompson, 36 Wash. 377, 78

Spiegler v. Chicago, 216 Ill. 114, 74 N. E. P. 899. A law delegating the power to the

718. Statute regulating instalment invest-

workhouse commissioners to commute sen

ment companies held not to confer judicial

ences for good behavior In their discretion

powers on the state banking hoard. State

is invalid. File v. State (Tenn. 8) 88 S. W.

v. Northern Trust Co. \[Neb.\] 101 N. W.

941. Power of congress to delegate to the

001. A statute providing for the cancella-

board of medical supervisors of the Dis

tron of a lease of state lands procured by

trict of Columbia authority to determine

fraud, etc., does not confer judicial powers

what shall constitute "unprofessional" or

on the land commission. American sulphur

dishonorable conduct" in a medical practitioner,

& Min. Co. v. Brennan \[Colo. App.\] 79 P.

tioner, quereere. Ccarra v. Board of Medical

750. Judicial duties are not conferred on a

Suprrs, 24 App. D. C. 251.

city council by an ordinance empowering it

79. Police regulations. Sluder v. St.

to assess omitted property on five days' no-

Louis Transit Co. \[Mo.\] 88 S. W. 648.

tice. Muir's Adm? r. Bardstown \[Ky.\] 87

80. Liquor laws. State v. Seamphi \[Vt.\]

01. A. 201: McGonnell's License, 24 Pa. Super.

01. See SS 5 C. L. 743, n. 72. Statute em

Ct. 642, holding otherwise vrd. 298 Pa. 327.

83. A. 615: State v. Barber \[S. D.\] 101 N. W.

01. The provision of the Brannack Law

N. E. 461. Statute empowering judges to

(97 C. L. 87), whereby forty per cent of the

voters of a resident district may fix the

An act authorizing the court to detach un-

boundaries of the district, is not an

glated farm lands from cities and villages

asion of legislative power. Ely v. Willard, 15 Ohio N. P. 318, 2 Ohio N. P. (N. S.)

571.

Steek laws. Davis v. State \[Ala.\] 37 So. 376: Town of Ormond v. Shaw \[Pls.\] 89 So.

154; Ormond v. White \[Miss.\] 37 So. 834.

81. But the courts have jurisdiction over

a controversy as to which of two lines the

state was intended to adopt. Parish of

Caddo v. De Soto \[La.\] 38 So. 273: Parish of

caid body, since the supervisors are not

Caddo v. Red River \[La.\] 38 So. 274.

82. Butler v. Stephens \[Ky.\] 84 S. W.

01. See SS 3 C. L. 743.

01. See SS 3 C. L. 743.

01. A statute vesting in jury commisioners appointed by the governor, the

power previously exercised by the sheriff

84. A statute for a person who is not an enreconment

on the judiciary. State v. McNay \[Mid.\] 60

A. 273: State v. Aspara, 113 La. 940, 37 So.

88. Judicial power is not conferred on an

auditor and "hef of police by an ordinance

which provides that if the former is not

satisfied with the description of vehicles

furnished by an applicant for a vehicle

license, the matter shall be referred to the

letter for examination and report. Sterling constitutional jurisdiction of the constitutional courts cannot be interferred with by the legislature,\[89\] though rules of procedure, not interfering with the course of justice, may be prescribed.\[90\] The power to punish contempt summarily is incident to courts of record,\[91\] and is beyond the control of the legislature,\[92\] though the legislature may regulate it.\[93\] The legislature may declare in a statute the sense in which it used certain words therein contained.\[94\]

SS 5. _Relative powers, of Federal and state or other subordinate governments.\[95\]_--Where there is a conflict between a state statute and a statute passed by the congress acting within its granted powers, the former must yield. Thus the Federal statutes respecting bankruptcy \[96\] and patents \[97\] supercede that state statutes on the same subject. These \[98\] and the regulation of commerce,\[99\] recognition of foreign judgments,\[1\] extradition,\[2\] treaties,\[2\] import duties,\[4\] and other matters of Federal administration and regulation, are discussed in separate topics.

SS 6. _Police power in general.\[5\]_--None of the provisions of the state and Federal constitutions protective of personal and property rights\[6\] are intended to interfere with the exercise of the police power by the states,\[7\] since all property and provision 'that there shall be at least two terms of court in each county.is only di-recracy to the legislature and confers no power on the supreme court to declare void 101, 34 Civ. Proc. R. 92, 90 N. Y. S. 772, a statute organizing a court and not complying with the provision, nor is the Judit-clarry empowered otherwise to enforce the provision. St. Louis S. W. R. Co. v. Hall \[Tex.\] 85 S. V. 786.

- 89. Cannot abridge or enlarge the original jurisdiction of the supreme court. Leppel v. Garfield County Dist. Ct. \[Colo.\] 78 P. 682. The legislature of Indiana cannot confer original jurisdiction on the supreme court in cases in which under the constitution it has only apellate jurisdiction. Parkinson V. Thompson \[Ind.\] 73 N. E. 109. The legislature can restrict the jurisdiction of the supreme court of Louisiana but cannot enlarge it. State v. Judge of First Dist. Ct., 113 L. 654, 87 S. So. 546. Cannot take away any of the criminal jurisdiction of the district courts. St. Louis-S. W. R. Co. v. Hall \[Tex.\] 85 S. W. 786. A statute providing for the confinement in the insane asylum of persons acquitted of capital felonies on the ground of insinsity and prohibiting their release except by act of the legislature is unconstitutional as an interference with the power of the courts to inquire into the legality of restraint. In re Boyett, 136 N. C. 415, 48 S. E. 789.
- 90. The legislature may declare what shall be prima facte, but not what shall be conclusive evidence of a fact. Failure to report as evidence of non-user of a corporate franchise. People v. Rose, 207 III. 352, 69 N. E. 762. Legislature may limit evidence of capacity of testator in first instance to testimony witnesses to the will. O'Brien v. Bonfield, 213 II. 428, 72 N. E. 1090. Prima facie evidence of wragering contract. Margins. State v. McGinnits \[N.C\] 51 S. E. 650. While the legislature may prescribe rules of procedure and pleading by which both courts and parties are bound, it cannot encroach on judicial domain by prescribing the manner and mode in which the courts shall discharge their judicial duties. Parkinson V. Thompson \[Ind.\] 73 N. E. 109. Statutes cannot take from the courts personal rights are held subject to that power," and hence any statute or ordinance, the sole object and general tendency of which is to protect the public health," safety,10 or morals,11 or promote the welfare of the community at large,12 is valid

\*\*8. See 3 C. L. 746, n. 80. State v. Durein \[Kan.\] 80 P. 987. Tenement House Dep't v. Moeschen, 179 N. Y. 325, 72 N. E. 231. All property in this country is held under the 96, 37 L. R. A. 108, ad. Holden v. Hardy, implied obligation that the owner's use of it shall not be injurious to the community. State v. Robb (Th. Ed. 80 A. 874. 98. See 3 C. L. 748, n. 44. A requirement that children shall be vaccinated as a condition of attending the public schools is proper. Vimeister v. White, 179 N. Y. 325, 72 N. E. 97. See, also, Jacobson v. Massa-chusetts, 197 U. S. 11, 49 Law. Ed. 643. See 3 C. L. 748, n. 58. Reasonable municipal regulations for the purpose of promoting the health of the citizens are clearly within the police power of the state. Regulations for collection of garbage. State v. Robb \[Me.\] 60 A. 874; City of Richmond v. Carrthers, 103 Va. 774, 50 S. E. 265. Smoke nualsances may be prohibited. Glucose Refining Co. v. Chicago, 138 F. 209; State v. Tower, 185 Mo. 79, 84 S. V. 10. Statutes may prohibit treatment of disease for a fee except by duly authorized and licensed persons. State v. Marble \[Ohio\] 73 N. E. 1083; Territory v. Newman (Th. M.) 79 P. 706. Statutes prohibiting sale of impure milk and fixing a standard are sustained. People v. Bowen (N. Y.) 74 N. E. 493. The practice of dentistry may be regulated. In re Thompson, 36 Wash. 377, 78 P. 899; State v. Brown, 37 Vash. 77, 89 P. 635; Wilson v. Comm. 26 Kly. L. R. 858, E. S. W. 427. Hours of labor in mines, smelters and reduction mills may be regulated. Ex parte Kalar \[Nev\] 80 P. 463. See 3 C. L. 748, n. 54. Vaccination may be required. Jacobson v. Massachusetts, 197 U. S. 11, 49 Law. Ed. 643. Drainage systems may be installed. New Orleans Gaslight Co. v. Drainage Commission, 197 U. S. 453, 49 Law. Ed. 831. NOTE. Eight hour law. Health regulation: Application for habeas corpus to be discharged from imprisonment for violation of St. of 1903, 33, 8, 10, making it a penal office for any man to work more than eight hours a day in underground mines, smelters and all institutions for the reduction or refining of ors and metals. Pettioneer contends that the law contravenes the constitutional provision guaranteeing that the right to acquire and posses property and the fourteenth amendment of the United States constitution. Held, that the law was sustainable under the police power of the state. Ex parte Kalar \[Nev.\] 80 P. 463. A number of interesting cases have arisen lately in many of the states in regard to the constitutionality of the eight-hour laws, and the decisions are not harmonious. Eight-hour laws, applied Indiserminately to all trades, are seemingly unreasonable, and the numerous authorities holding them void are supported by strong arguments; but, when they are to apply to workmen in underground works or other obonkous places or to women or children, another proposition confronts us. The state may within its police power look after the health, safety and comfort of its citizens.

630 CONSTITITUDIAL LAW SS 6. 5 Cur. Law.

and enforceable, though it may incidentally interfere with liberty \[13\] or property,\[14\] but neither the legislature' nor a municipality can under the guise of regulation

to sell for medical, mechanical and scien- \[gaard \[W!s.\] 102 N. W. 899; Ex parte Fritz tite purposes. State v. Durein \[Kan.\] 78 \[Miss.\] 38 So. 722; State v. Mallory \[Ark.\] p. 152; Newman v. Lake \[Kan.\] 78 P. 675. 83 S. W. 955. As a police regulation in the Law empowering city to license places \[interest of education the law may require within four miles of its limits. Jordan v. street railway companies to permit pupils Evansville, 163 Ind. 512, 72 N. E. 544. Females may be prohibited from entering sa- \[their cars without profit to the companies, loons for immoral purposes or to buy or be treated or to wait upon customers. State v. Durein loss. Commonwealth v. Interstate Nelson \[Hahab\] 79 P. 79. An ordinance pro- \[Miss.\] 38 No. 722; State v. Mallory \[Ark.\] hilbiting the sale of liquors in any side room, etc., is valid. Sandys v. Williams \[G. D.\] 104 N. W. 465. The \[Or.\] 80 P. 642. Common occupations which from their nature afford unusual opportunity for fraud may be regulated. Sale of seed cotton. Bazemore v. State, 121 Ga. 619, 49 S. E. 701. See 3 C. L. 750. In 76. Law in- \[Miss.\] 19 P. 459. Public meetings validating sales of merchandise in bulk unless certain formalities are compiled with \[Miss.\] 19 P. 459. The \[Miss.\] 19 P. 79. An ordinance pro- \[Miss.\] 19 P. 462. 73 N. E. 830. The \[Miss.\] 19 P. 462. Common occupations which from their nature afford unusual opportunity for fraud may be regulated. Sale of seed cotton. Bazemore v. State, 121 Ga. 619, 49 S. E. 701. See 3 C. L. 750. In 76. Law in- \[Miss.\] 19 P. 479. Public meetings validating sales of merchandise in bulk unless certain formalities are compiled with \[Miss.\] 19 P. 481. 73 N. E. 830. 722. Trusts and \[Miss.\] 19 P. 481. 73 N. E. 831. The \[Miss.\] 19 P. 481. 73 N. E. 832. See 3 C. L. 750. In 76. Hawk- \[Miss.\] 19 P. 481. The legislature may protect from waste the monwealth v. Rearick, 26 Pa. Super. Ct. 384. Murphy v. Columbus, 2 Ohio N. P. (N. (N. (N. (N. (N. (N. (N. (N. (N. (N. . .

arbitrarily invade personal or property rights,15 and all regulations of this sort to be sustained must be reasonable,16 and have a fair tendency to produce the result sought.17 The power may be delegated to municipalities.18

Footnote 22: The value of the price power power power power is not the same as the value of the price SS 8. _Freedom of speech and of the press \[22\] cannot be abridged; \[23\] neither can it be abused without liability._\[24\]

SS 9. _Personal and religious liberty,_\[25\] _including the right to choose employment,_\[24\] _cannot be infringed._

distribution by merchants with their sales, \[punish one for a contempt consisting of a Id., 137 F. 950; City Council of Montgomery, \[libelous article published in a newspaper is v. Kelly \[Ala.13 83 So. 67; State v. Merchants\] ) no invasion of the liberty of the press. Bur-Trading Co. \[L4.1 38 So. 443. Prohibition of \[v. Com. \[Va.\] 48 S. E. 878. The law trading stamp business held an unwarranted interference with legitimate business. People v. Zimmerman, 102 App. Div. 103, 92 N. Y. S. 497. A statute requiring surety \[v. Zimmerman, 102 App. Div. 103, 92 N.

5 Cur. Law. CONSTITITUDIAL LAW SS 10.

"Imprisonment for debt,"21 except in case of fraud, or other wrong,"28 is prohibited.

SS 10. Equal protection of the law,"29 as guaranteed by the state 30 and Federal constitutions,31 merely requires that the law shall have equality of operation 22 on all persons of the same class.33 Within this rule statutes imposing inspection fees

32. The fourteenth and fifteenth amendments of the Federal constitution have reference solely to acts of the state and have no reference to acts of individuals. EXCognized by municipal law, and its existence can be inferred from expressions used by the property of a railroad company at a well as judges in decided cases. Id. Library of speech and of the press when exercised within the bounds of the constituu- tional guaranties are limitations upon the exercise of the right of privacy. Id.

01. See 3 C. L. 754. A plumber's law requiring all members of a partnership to be registered whether they have anything to do with the actual work or not is.unduly restrictive. Schanier, V. Navarro Hotel & Importation Co. \[N. X.\] 74 N. E. 61.

01. See 3 C. L. 754. A commitment for contempt for failing to comply with an order requiring the payment for money is not imprisonment for debt within the meaning of the constitution. Perry v. Pernet \[Int.\] 74 N. E. 609.

01. Lamar v. Prosser, 121 Ga. 153, 48 S. E.

01. Clothing furnished one during imprisonment and unpaid for may be used as a basis for further imprisonment. Ex parte Diggs \[Miss.\] 38 So. 750.

01. See 3 C. L. 755.

01. Probably all of the state constitutions guaranty equal protection in terms as broad as the fourteenth amendment. Ohio BIII of Rights, SS 2, providing that all political power is inherent in the people and that government is instituted for their equal protection and benefit. Kane v. Errie R. Co. \[C. C. A.\] 133 F. 681; State v. Robins, 71 Ohlo St. 273, 73 N. E. 470. Special privileges or Immunities cannot be granted in Indiana. Board of Com's v. Lindemann \[Ind.\] 75 N. E. 912.

01. Equal protection of the laws is not denied by a statute requiring vaccination as a condition of attending the public schools. Vlemeister v. White, 179 N. X. 235, 72 N. E. 97. See 3 C. L. 756, in. 61. The fourteenth amendment, which expressly 4e-clares that no state shall deny to any person within its jurisdiction the equal protection of the laws, does not purport to extend to authority exercised by the United States. But it does not follow that congress in exercising its power of legislation within and for the District of Colombia may therefore deny to persons residing therein the equal protection of the laws. All of the guaranties of the constitution respecting life, liberty and property are equally for the benefit and protection of all citizens of the United States residing permanently or temporarily within the District of Columbia as of those residing in the several states, Imposition of license tax on brokers. Lappin v. District of Co-lumbia, 22 App. D. C. 68.

01. The fourteenth and fifteenth amendments of the Federal constitution have reference solely to acts of the state and have no reference to acts of individuals. EXCognized by municipal law, and its existence in 52. The assessment by a state board of the property of a railroad company at a higher percentage of its actual value than other property assessed, in violation of the state constitution and without statutory authority and contrary to law as declared by the supreme court of the state, is not an act of the state within the equal protection clause. St. Louis, etc. R. Co. v. Davis, 132 F. 629. Law requiring aurely company bonds held invalid or exempting officers giving bonds or less than $2,000.

01. A statute prohibiting the taking of fish and game by nonreflecting is unequal in so far as it prevents nonreflecting from using their own land as residents do. State v. Mallory \[Ark.\] 83 S. W. 955.

01. It is unnecessary that a statute passed in exercise of the police power shall apply equally and uniformly on all citizens; it need apply only to all of the same class. Wright v. Hart, 103 App. Div. 218, 93 N. Y.

01. A statute which contains inequalities in fact cannot be upheld on the theory of classification where the lines of division between persons or classes appear clearly to have no just relation to the subject-mat- ter. Sellers v. Hayes, 163 Ind. 422, 72 N. E.

01. That a law prohibiting school sinks in tenement houses applies only to cities of the first class does not invalidate it. Tenement House Dept. Y. Moosechen, 179 N. Y.

325, 72 N. E. 231. Railroads may be required to carry school children at half fare. Commownwealth v. Untersten Consol. St. R. Co. \[Mass.\] 78 N. E. 530. Salary law held operative on all of a certain class of sniffiffs and for that reason ambjectionable. Board of Com'rs v. Lindemann \[Ind.\]

73 N. E. 912. A statute regulating the use of automobiles on the highway is not assignable as class legislation. Christy v. El-liott, 216 Ill. 31, 74 N. E. 1035. A Jewish applicent for a public position is not dis- oriminated against by holding the examination therefor on Saturday which is his Sabbath. Cohn v. Townsend, 94 N. Y. S. 817. An arbitrary discrimination 634CONSTRITUDINAL LAW SS 10. 5 Cur. Law. and licenses,${}^{34}$ and providing for taxation,${}^{35}$ local improvements,${}^{36}$ regulations of business, trades and professions,${}^{37}$ and the operation of railroads,${}^{38}$ are sustained.

**34.** See 3 C. L. 756. Vehicle license order--

have because taxed a fixed sum per mile of

nance held not unjustly discriminative be

track for the privilege of doing business,

tween residents and nonresidential. Sterling

and the use of the streets and steam rail

v. Bowling Green, 5 Ohio C. C. (N. S.) 217,

roads are not similarly taxed, though they

26Ohio C. C. 581. A statute regulating the

practice of medicine and providing also for

ceive pay for it. Savannah, etc., R. Co. v.

the licensing of practorners of osteopathy

is not invalid because not also providing

Equal protection of the law is not denied

for Christian Scientists. State v. Maule

by a law taxing public service franchises
\[Ohio\] 78 N. E. 1663. Horsesearch's cannot

that exempts subsurface railroads, or that

be compelled to take outlicness. In an

provides for a deduction of the amount

brev, 36 Wash. 388, 78 P. 900. An exemption

annually paid by same holders for their

tion from a liquor law of wines produced

franchises. People of State of New York

from grapes grown in the state while in

v. State Board of Tax Corn's, 199 U. S. 1,

the hands of the producers or manufacturer--

50 Law. Ed.: Id., 199 U. S. 48, 50 Law. Ed.

ers in not unequal. Douth v. State \[Tex.

There is nothing in the Federal con-

Civ. App.\] 82 S. W. 5521. Id. (Tex.) 83 S. 3 stittin

that prevents a state from grant-

W. 755: McLaury v. Wateisky (Tex. Civ.

ving exemptions from taxation. People of

App.\] 13 Tex. Ct. Rep. 404, 87 S. W. 1045. A

State of New York v. State Board of Tax

factory inspection law applying to all fac-

Comrs, 199 U. S. 1, 50 Law. Ed.:

tories in the state is not assailable as dis

"36." See 3 C. L. 757. That a statute re-

criminating between those in the city and

quires a petition of resident freeholders to

those in the country. State v. Vickens, 186

intimate an improvement does not disermin

Mo. 102, SS 4 S. W. 908. A license tax on co-

inate against nonresidents. Taylor v.

cupations is not invalid because it excepts

Crawford \[Ohio\] 74 N. E. 1065. A drainage

professional men called to the city to at

law extending to those who wa valve objec

tend to some specific matter. Evers v.

tions to the special assessments the privil

Mayfield \[Ky.\] 85 S. W. 697. A statute

age of paying in instalments does not

againal pedding but exemptions resident

Jenny goal protection. Sisson v. Board of

mechants is invalid. Ex parte Deeds

Suprs \[Iowa\] 104 N. W. 454. Assessments

\[Ark.\] 87 S. W. 1030. An exception from

for paving by the front foot rule are valid.

a cigarette license tax in favor of whole-

Larber Asphal Pav. Co. v. Mannn, 185 Mo.

sales dealers doing an interstate business

552, SS 8 S. W. 1062.

does not invalidate it. Cook v. Marshall

37. See 3 C. L. 157. Unequal operation

County, 195 U. S. 261. 49 Law. Ed. 471.

of smoke ordinance as between owners of

38. See 3 C. L. 757. The fourteenth

chimneys serving one and more than one

amendment was not designed to enforce

fire box held not shown. Glucose Refining

uniformity of taxation (St. Louis, etc., R. Co. v., Chicago, 138 F. 209. A statute

Co. v. Davis, 132 F. 629), or compel the

validating as to creditors sales of goods

states to adopt an iron rule of uniformity

otherwise than in due course of trade un

(Michigan Railroad Tax Cases, 188 F. 223).

less certain formillates are compiled with

There may be classification, and different

states may be imposed on different classes.

Ind. 422, 72 N. E. 119), and unduly favors

It is enough that there is no discrimination

on the road of one as against another of the

(McKinster v. Bayer, 163 Ind. 671, 72 N. E. 824. Same class and that the method for the

854. Contra, Wright v. Harri, 103 App. assessment and collection of 5 Cur. Law. CONSTITUTIONAL LAW SS 11. 635

Criminal laws and procedure," and civil remedies and proceedings," are unassailable unless unequally oppressive as to particular persons.

SS 11. _Privileges and immunities of citizens._"--Those sections and amendments of the Federal constitution, guaranteeing the civil rights of the citizens of the several states and the United States, operate only on discriminations by the states in their sovereign capacity, and not upon the acts of individuals," and the rights, privileges and immunities which the fourteenth amendment and statutes for its enforcement were designed to protect are such as belong to citizens of the United States as such, and not as citizens of the state." Congress has power to legislate for the protection of such rights." The right to sell intoxicating liquors

38. See 3 C. L. 758. Railroads are recognized as proper subjects of classification there is an invasion of his civil rights. Ex and many statutes applicable only to them have been "upheld. Tax law. Michigan law with reference to criminal proceedings Railroad Tax Cases, 138 F. 223; Chicago, B. is one of the privileges and immunities & O. R. Co. v. Richardson County \[Neb.\] guarantined by the Federal constitution. Id. 100 N. W. 590; State v. Back \[Neb.\] 100 N. W. 592; Savannah, etc., R. Co. v. Savannah,

01. _Norge, Interference With Civil_ modifying the rule of fellow-servants as to

01. _Norge, Interference With Civil_

certain of the servants of railway commaples does not deny railroads the equal

discharge on habeas corpus, on the ground protection of the laws because not apply-

that the indicment under which petitomer ing to other employers. Kane v. Erete R. Co. \[C. C. A.\] 133 F. 681, rvg. 128 F. 474. A statute requiring all street railroads except one elevated railroad to carry school

panel offense for any person to interfere

children at half fare does not violate. Commonwealth v. Interstate Consol. St. R. Co. \[Mass.\] 73 N. E. 530.

39. See 3 C. L. 759. To invalidate a municipal ordinance fair on its face because

ored citizen, accused of a crime, in order of inequality in its enforcement, there must be certainty to every intent as to the discrimination. Ah Sin v. Wittman, 198 U. S. 500, 49 Law. Ed. 1142.

40. See 3 C. L. 759. Equal protection is not denied by a law depriving all persons

that interesting one, and the decision of for the sale of intoxicating liquors. Cor-

bin v. Houlehan \[Me.\] 61 A. 131. Section 6494, relating to appeal of motion to dissolve attachment, is not unconstitutional

because it gives to defendant the right to appeal which is not given to plaintiff. Ceel

c. Grant, 27 Ohio C. C. 449, Ohio C. C. (N. S.) 65; Hare v. Cook, 26 Ohio C. C. 289, 6 Ohio C. C. (N. S.) 73. A statute authorizing

the trial judge to reduce the witness fees and costs where cases are consolidated and

trid together is valid because it applies to

all of the class. Green v. Sklar \[Mass.\] 74

407, it is said, as to the last three amendments,

"one prevading purposes found in

torney's fee in actions against fire and life

inavance companies is valid. L'Engle v. Scottish Union & National Fire Ins. Co.

\[Fla.\] 37 So. 462.

41. See 3 C. L. 760. Compare title Civil

Hights, 5 C. L. 589. An ordinance requiring

that all cut stone used in municipal work

be dressed within the state does not interfere with the privileges and immunities

guarantied by the Federal constitution.

Allen v. Labsap \[Mo.\] 87 S. W. 926. A statute against pedding exempting from

its provisions resident merchants is invalid. Ex parte Deeds \[Ark.\] 87 S. W. 1030.

42. See 3 C. L. 760, n. 44. Where a mob

of white men take a negro from the jail

where he is waiting trial in defiance of the

the is not one of the privileges or immunities attaching to citizenship in the United States,\[45\] and a corporation is not a citizen within this section.\[46\] A state statute extending a certain special privilege to citizens of the state is not for that reason invalid, the constitution being effective to extend it also to the citizens of the several states.\[47\]

SS 12. _Grants of 'special privileges and immunities' class legislation.\[48\]_ Whether or not classifications of municipalities are reasonable or unjust and arbitrary generally arises with reference to whether statutes infringe the provisions against local and special laws. This question is elsewhere treated.\[49\] The fourteenth amendment is satisfied if all persons similarly situated are treated alike,\[50\] and a law which is uniform in its operation is not rendered invalid merely because of the limited number of persons who will be affected by it.\[61\]

_Licenses, and privilege and occupation taxes_\[52\] are unassailable unless raising invidious distinctions.\[58\]

_Taxation.\[54\]_--The subjects of taxation may be classified so long as the classification is reasonable.\[58\]

_Regulations of business, trades and professions_\[56\] are upheld unless unfairly oppressive of particular individuals or classes.\[57\]

_Railroad companies_\[58\] can properly be invested with 'special privileges,\[50\] and

10 Law. Ed. 1060; Logan v. U. S., 144 U. S. |ritory v. Newman \[N. M.\] 79 P. 706, An 288, 36 Law. Ed. 429; Ex parte Virginia, |ordinance interdicting the sale of liquors 100 U. S. 345, 25 Law. Ed. 676; Ex parte |in private rooms except in hotels does not Sibeloid, 100 U. S. 372, 25 Law. Ed. 717; |confer special privileges. Sandys v. Wil-United States v. Vaddell, 112 U. S. 80, 28 Laws. Ed. 673; Robb V. Connolly, 111 U. S. |invalid as conferring special privileges, |float, 28 Law. Ed. 542; Motex v. U. S., 178 U. |Town of Elba v. Rhodes \[Ala.\] 38 So. 807, |S. 458, 44 Law. Ed. 1160.--31 Mich. L. R. 574. 45. Sandys v. Williams \[Forl.\] 80 P. 642; |State v. Durenin \[Exan.\] 80 P. 897; Jordan v. Evansville, 163 Ind. 512, 72 N. E. 544. A statute attempting to levy a tax on salesman from other states selling liquors by sample is void. Sloman v. Williams D. C. Moebs Co. \[Mich.\] 102 N. W. 854. 46. U. S. Const. art, 4 & 5 2: 14th amendment. Atturney General v. Electric Storage Battery Co. \[Mass.\] 74 N. E. 467; In re Speeds' Estate \[Ill.\] 74 N. E. 809. 47. See 3 C. L. 760, n. 4%. State v. Scammipni \[Vt.\] 59 A. 201. 48. See 3 C. L. 761. 49. See 40. A statute authorizing suit against the state for certain bounties is not special legislation. Bickerdike v. State, 144 Cal. 681, 78 P. 270. A statute providing for the appointment of road overseers from "the qualified electers in each district" is not class legislation. State v. Newland, 87 Wash. 428, 79 P. 983. 51. See 3 C. L. 761, n. 62. Sanchez v. Forlcyc, 141 Cal. 427, 75 P. 56. Law empowering railroad company to condemn stock of another, majority of which it already owns. New York, etc. R. Co. v. Offled, 71 Conn. 417, 59 A. 510. A stock law applicable only to counties having a population of not less than 25,000 and not more than 25,100 is not class legislation in Tennessee. Murphy v. State \[Tenn.\] 86 S. V. 711. 52. See 3 C. L. 762. 53. The restriction of pedding of butter, eggs, vegetables, etc., to those who produce them, is unreasonable. Ex parte Camp \[Vwash.\] 80 P. 547. A medical license law is not available as class legislation. Ter * 5 Cur. Law. CONSTITITUDIALLAW SS 13.

burdened with special duties and liabilities " common to either persons or corporations.

_Insurance_ " companies may be treated as a class.

\_Liquor traffic.""--Liquor laws must not discriminate."

_Relations of master and servant_ " are a proper subject of regulation."

_Criminal laws and procedure."_

_Civil remedies and proceedings_ " may be regulated if arbitrary classes are not created."

SS 13. _Laws impairing the obligations of contracts,"_ _including state or municipal contracts,"_ _corporate charters or franchises,"_ _public service franchises,"_ _and tax and assessment laws,"_ _are void._"

- 50. New York, etc., R. Co. v. Offeld, 77

tached to the policy, applies to a by-lawn Conn. 417, 59 A. 510.

adopted after the policy is issued, and so construed the statute is not violative of gating rule of fellow-servant in part. Kane v. Erle R. Co. (C. C. A.1) 138 T. 681. A law

Lodge K. P. v. Hunziker \[Ky.\] 87 S. W. may apply to railroads only and to a particular class of railroad employees, without being unconsontinutial for lack of uniform- to or for denying equal protection of the laws to all. Ignatius Froelich v. Toledo & O. Cent. R. Co., 5 Ohio C. C. (N. S.) 6, 24 Ohlo C. C. 350.

tached to the policy, applies to a by-lawn Cond. 417, 59 A. 510.

tached to the policy, applies to a by-lawn Cond.

Regulations of remedies,\[75\] merely, are enforceable, provided they do not materially impair vested rights.\[76\]

SS 14. \_Retroactive legislation; vested rights.\[71\]--\_Save under those constitutions which forbid retroactive laws, they may be passed so long as other constitutional limitations are untouched.\[78\]

Ct. 544). An exemption of a railroad from taxation is a contract that cannot be abrogated by the state. Wicoomico County Comm'rs v. Nanoctif \[C. C. A.\] 135 F. 977; Hennett v. Nichols \[Ariz.\] 80 P. 892; Detroit, R. Co. v. Powers, 138 F. 264. Reasonable regulations passed in pursuance of a reserved power of amendment do not impair. People v. Rose, 207 Ill. 352. 69 N. E. 762. Exemptions from taxation may be repeated under reserved powers of amendment. City of Rochester V. Rochest cater R. Co., 98 App. Div. S21, 91 N. Y. S. 87. Where there is no reserved power of amendment, there can be no change in rautes without notice or hearing. City of lushv'ille v. Rushville Nat. Gas Co. \[Ind.\] 73 N. E. 87. Where a railroad's charter authorized it to condem land under the general law which did not require notice to the landowner, an amendment to the law requiring notice did not impair the charter, being merely of the remedy. Chicago, B. & Q. R. Co. v. Abbott, 215 Ill. 418, 74 N. E. 412. A statute providing for the assessment of the value and purchase of dissenting minority stockholder's shares on a merger of railroads does not impair. Spencer v. Sebaoard Air Line R. Co., 137 N. C. 107, 49 S. E. 96; New York, etc., R. Co. v. Offeld, 77 Conn. 417, 59 A. 510. A statute conferring exclusive powers on a local corporation that have heretofore been exercised by a foreign corporation does not impair the obligation of contracts. National Council Junior Order U. A. M. v. State Council Junior Order U. A. M. \[Va.\] 51 S. E. 166. A city has no contract rights with respect to the burdens of street repairs which it imposes on street railroads as a condition of their occupancy of the streets which will interfere with the right of the legislature to relieve street railroads from such obligations. City of Worcester v. Worcester' Consol. St. R. Co., 196 U. S. 539, 49 Law. Ed. 591. Impairment of contracts with Corporations, see Clark & M. Corp. 89 270, 271. See 3 C. L. 768. 72. Street railway franchise. Cleveland Elec. R. Co. v. Cleveland, 135 F. 868. A municipality has no power to contract away its taxing or police power. City of Rochester v. Rochester V. Rochest cater R. Co. (N. Y.) 74 N. E. 953. Immunity in street railway franchise from paying for pavement between tracks is not contractual and does not prevent city from requiring company to pay for its share of pavement subsequently laid. Id.; Marshalltown Light, Power & R. Co. v. Marshalltown \[Iowa\] 103 N. W. 1005. The imposition on a gas company of the cost of changing the location of its pipes made necessary by the installation of an improved system of drainage does not impair its contract rights. New Orleans Gaslight Co. v. DraImage Commission of New Orleans, 197 U. S. 453, 49 Law. Ed. 831. No contract right is impaired by the key of a 5 Cur. Law. CONSTITITUDINAL LAW SS 14. 639

_Vested rights (tm) including contract rights,(tm) interests in reality,(tm) and in some instances defenses to actions,(tm) cannot be diminished._

_Taxes, licenses and public rights.(tm)--Taxes cannot be levied retrospectively,(tm) but a healing act confined to matters which the legislature might previously have authorized or omitted is valid,(tm) and reassessment(tm) and regulations of procedure may be provided.(tm) Licensees may be withdrawn,(tm) and the conditions of obtaining them changed.(tm)_

_Laws affecting corporations(tm)_ are sustained if not retroactive on vested rights.(tm)\_

Mfg. Co., 77 Conn. 528, 60 A. 132. Statutes

which do not touch the substance of the of limitation may be retrospective provided contract, and are not based on equity or contracts or vested rights are not impaired. Justice. Merchants' Nat. Bank v. East Edelstein v. Carilie Colo.) 78 P. 680.

Grand Forka \[Minn.\] 102 N. W. 703. The

79. See 3 C. L. 770. A city has no vested

bar afforded by a statute that withdraws right in a statute authorizing it to call in

rights of actions from litigants who have outstanding warrants. Condon v. Eureka

not paid their privilege tax may be lifted Springs, 135 F. 566. A statutory right of

by an amenery act, even as to suits be-one county of the state to recover of an-mistor inasme Mercantile Ins. Co. v. Edwards \[Miss.\] 87

person is not a vested right, even as to

86. 748. An acknowledgement of a mort-support furnished before its repeal. Yet-

ferson County v. County of Oswego, 102

the acknowledging officer was a stock-App. Div. 232, 92 N. Y. S. R. 709. The obboc-

holder in the corporation may be cured by tion of a land grant railroad that an act

legislative act. Maxwell v. Lincoln & Fifth

of congress interferes with its vested rights

Ward Bldg. & Loan Ass'n, 216 Ill. 85, 74 N.

is waived by its acceptance of the act. E. 804.

Fumbird v. Avery, 195 U. S. 480, 49 Law.

83. See 3 C. L. 771.

01. A tax on the exercise of a power of

Ed. 286.

So. See ante, $ 12. Contract rights ac-

appointment under a will is valid and

quired under a prior interpretation of a

applies to a power created by a will made

state cannot be divested by a subsequent

before the taxing law was passed. In

reversal of that interpretation. Municipal

Pohos Issued under a law first held valid

E. 871. But if the power is never exer-and subsequently held invalid. Rees v.

cised, there can be no tax. In re Lansing's

Olmsted \[C. C. A.\] 135 F. 296. Federal

Estate \[N. Y.\] 74 N. E. 882. A statute

court is not bound to folow local constructive

leving a succession tax on all successions

tion of a statute with respect to a right

oercuring prior to that construction. Wi-

is not retroactive. Succession of Levy

comple County Comm's v. Dancert \[C. C. A.\]

12. J 89 So. 37.

135 F. 977. This distinction does not apply

85. Local improvement bonds. Chase v.

where rights arise solely by contract and

Trout, 146 Cal. 350, 80 P. 81.

not under any statute or constitution. City

S6. An ordinance providing for the as- of Biqux Pails v. Farmers' Loan & Trust

sessment of omitted property, though re-

Co. \[C. C. A.\] 136 F. 721. A statute

troactive, is not for that reason invalid, nor

viding that where a conditional vendor re-

takes the property he must sell it at public

town \[Ky.\] 87 S. W. 1096.

auction within a time stated and if he doesn

87. It is within the power of the legis-not be will be liable to the vended for the

lature after an assessment has been made

amount he has paid on the contract, cannot

and before sale to prescribe the conditions

operate to impair rights under contracts in

under which redemption may be had of the

existence at the time of its passage.

03, 186 Mass, 440, 11 N. E. 950.

S8. Law authorities court to permit wife

to dead her lands without husband's cons-

may be withdrawn. Newman v. Lake

sent is insufficient to destroy his life

\[Kan.\] 79 P. 675; State v. Durein \[Kan.\] 80

tate. Acts 1896, 42, No. 49. Hubbard v.

P. 887. A vested right is not conferred by a

land has passed to a city under condemn-

stature which merely prescribes a method

tion proceedings and the owner is entitled

to compensation, a statute which attempts

It is competent for the legislature to raise

to reveal the title and deprive him of his

## 640Constitutional law SS 15.

_Regulations of procedure._\[92\]--There's no vested rights in a rule of evidence,\[93\] but an extinct right of appeal cannot be revived.\[94\]\_

_Status of limitation_\[95\]_. affecting existing rights are not invalid if a reasonable time is given for the commencement of an action before the bar takes effect,\[96\] but where the bar has once attached, the legislature cannot disturb it.\[97\]_

SS 15. _Deprivation without due process of law, or contrary to law of the land.\[98\]--The fifth amendment to the Federal constitution is merely restrictive of Federal powers,\[99\] and the fourteenth operates only against deprivation by a state or under its authority, and adds nothing to the rights of any citizen against another.\[1\] The Congress may penalize acts designed to frustrate one's enjoyment of this guaranty.\[2\]_

_Due process of law_\[9\] does not necessarily require the exercise of the power of the courts,\[4\] but merely means the law of the land,\[9\] and is secured by laws operat-

313, c. 884, SS 30, imposing a liability on dil-

oner from the custody of state officers and

retors of a corporation for failure to file

ynehed him. They were indicted under a

an annual report, being an imposition of

Federal statute providing for the punish-

a penalty, did not create a vested right in

ment of persons who should conspire to

a party entitled to recover therecon. David-

prevent or hinder the free exercise or en-

son v. Witthans, 94 N. Y. S. 428.

g9. See S C. L. 771.

privilege secured to him by the constitu-

g9. That failure of a corporation to re-

port to the secretary of state is made by

that the defendants may be convicted of a

statute evidence of nonunser, which it was

not before, is no objection to the statute.

right under the Fourteenth Amendment to

People v. Rose, 2071 N. 52, 69 N. 762.

have the state afford him due process of

94. A statute providing that appeals

law. Ex parte Riggins, 134 F. 404.

which have been dismissed for nonpsy-

ment of register's te may be reinstated on

a guaranty only that the state shall not

terms on payment of the fee is as to ap-

peals dismissed before its enactment an

one process of law; and in the absence of

unconstitutional Impairment of vested

rights. Pub. Acts 1905, No. 16. Laborstor.

to deprivation, it is difficult to see how

fer v. Lohrstorfer \[Mich.\] 12 Det. Leg. N.

256, 104 N. W. 142.

g9. See 3 C. L. 772.

g9. July 1 to Jan. 11 following is sun-

cient. Pitzgeral v. Scovill Mfg. Co., 77

Conn. 528, 60 A. 132. One year to one who

has permitted adverse possession of really

republated. Civil Rights Cases, 190 U. S,

for nine years is reasonable. Schauble v. 3, 27 Law. Ed. 835. If the decision be

Schultz (C. C. A.) 137 F. 88. Six months

is reasonable as to the liability of a dil-

gro from voting at state elections could be

rector of a corporation failing to file

junished for a conspiracy to deprive him

annual report. Davidson v. Witthans, 94

of the right not to have state officials dis-

N. Y. S. 428. The time intervening between

criminate against him in excluding him

the passage of the act and the time it

from voting. It has been held, however,

takes effect is to be considered. Wooster

v. Bateman (Iowa) 102 N. W. 521. Un-

authority to punish such persons. Karen

reasonable restriction at time to sne on

V. United States, 121 F. 50, 61 A.

foreign judgment is vold. Lamb v. Powder

437. The leading case upon which the

Kiver Live Stock Co. \[C. C. A.\] 132 F. 44.

court relles rests only upon the power of

A statute providing that constructive pos-

session of unimproved lands shall be in the

person who with color of title pays taxes

theron for a period of seven years, three

134, 52 L. R. A. 660. If the decision be up-

of which must be subsequent to the pass-

sage of the act, is not void as interfering

with vested rights. Towson v. Denson

\[Arl.\] 86 N. W. 661.

par. Edelstein v. Carlille (Colo.) 78 P. 680.

g8. See 3-C. L. 772.

g90. Pratt Institute v. New York, 99 App.

Div., 825, 91 N. Y. S. 136.

1. See 3 C. L. 772. n. 19. A municipal

ordinance passed in contravention to the

law of the state is invalid and not within

the prohibition. City of Savannah v. Holst

\[

## 5 Cur. Law. Constitutional Law SS 15.

ing on all alike without discrimination.\[4\] It is satisfied by notice and a right to be heard,\[5\] and a review by an appellate tribunal is not necessary.\[6\] Legitimate judicial discretion is due process of law.\[7\] One whose property is taken for a public use by condemnation proceedings\[8\] or who is interfered with in the reasonable exercise of the police power is not deprived without due process.\[9\]

_Property_\[10\] within this clause includes the right of acquirement and use of property as well as the property itself.\[11\] A public officer has no property right in his office.\[12\]

the United States, even when he claims the a proceeding to compel it to provide re-right on the ground of being a natural sonable service at certain stations, it can-born citizen. United States v. Ju Toy, 198 not object that it has not been afforded due U. S. 253, 49 Law. Ed. 1040. An order of the interior department that merchants doing business in an Indian nation and refusing ing to determine rights of citizenship held due process of law. Zeevly v. Welmer \[Ind. \] not invalid for failure to provide notice to T.\] SS 2 S. W. 941. The appointment of a re-calver in bankruptcy before adjudiation should not be possible in the sense of a drainage tax seconded and the remaining member was in-acramento without due process of law. In re Francis, 136 F. 912.

5. McKinster v. Sager, 163 Ind. 671, 72 N. E. 854, citing cases. Means only that the omission of judgment under warrant of a man is to be tried as every other man is

attorney should pursue the power strictly.

tried. Lamar v. Proser, 121 Ga. 153, 48 S.

National Exch. Bank v. Wiley, 195 U. S. 257,

E. 977. Members of the legislature who

49 Law. Ed. 184. Cannot be deprived for have been expelled in the manner pre-failure to comply with a court rule.

scribed by the constitution are not deprived

of their office without due process of law.

606, 79 P. 281.

French v. Senate of State, 146 Cal. 604, 80

S. McCue v. Com. \[Va.\] 49 S. E. 623.

P. 1031.

Hence it may be allowed subject to such

G. Lamar v. Proser, 121 Ga. 153, 48 S. E.

Imitations as deemed expedient. Town

977.

S. E. 546.

9. What is a proper exercise of judicial

whether the corporation is doing business in state. Groel v. United Elec. Co. \[N. J. \] 496.

Eq.1 60 A. 822. Notice too late to attend the

10. New York, etc., R. Co. v. Offeld

hearing of a tax assessment is no notice.

People v. Wells, 181 N. Y. 252, 73 N. E. 1025.

Nc hearing need be provided before fixing

a taxing rate when the legislature has left

the taxing board a mere clerical function

of calculating the rate which it has no

power to change. Michigan Railroad Tax

sation, there is due process. Riley v. Cases, 138 F. 223. Right to be heard after-ward in a suit to enjoin collection of tax is

S. E. 485.

sufficient. Taylor v. Crawford \[Ohio\] 74

N. E. 1065. Where the statute names the time and place of meeting, personal notice

of liberty or property without due process

is not necessary. Chicago, etc., R. Co. v.

Richardson County \[Neb.\] 100 N. W. 950;

State v. Back \[Neb.\] 100 N. W. 951; City

of Beatrice v. Wright \[Neb.\] 101 N. W. 952; City

1033. Where the time and place of making the assessment is fixed and provision is

made for a public hearing, there is due

process of law. St. Louis, etc., R. Co. v.

Davis, 132 F. 629. If there is a right to be heard at some stage before the proceeding

becomes final, there is due process. Hacker

v. Howe \[Neb.\] 101 N. W. 255. Iowa muld

law, making liquor tax a lien on premises

where liquor is sold, provides sufficient no-

tice. Newton v. McKay \[Towa\] 102 N. W.

827. The law must provide notice. The fact that notice was in fact given in the particular case is immaterial. In re Grout,

34 Civ. Proc. R. 231, 93 N. Y. S. 711. Where

a railroad company has appeared and contested before the state railroad commission

S Curr. L. - 41.

S. R. Co. v. P. P. 1031.

S. R. Co. v. P. P. 1032.

S. R. Co. v. P. P. 1033.

S. R. Co. v. P. P. 1034.

S. R. Co. v. P. P. 1035.

S. R. Co. v. P. P. 1036.

S. R. Co. v. P. P. 1037.

_Liberty_ \[18\] means not only freedom from actual servitude, but the right to use one's faculties in all lawful ways.\[16\] A statute authorizing the issuance of a sub-pona to compel the attendance of a witness at a trial in another state is void.\[17\]

_Reasonableness of regulations_ \[18\] is not measured by any individual case.\[19\]

_Regulations of business and occupations_ \[20\] may be so restrictive of the right to contract and to choose employment as to amount to a denial.\[21\]

_Status creating a liability may be valid.\[22\]_

_Eminent domain proceedings_\[23\] which properly conserve the owners right to compensation are valid.\[24\]

on retaking the property shall sell it at \[74, n. 49. Sellers v. Hayes, 163 Ind. 422, 72 public vendue with certain formalities, failing in which the purchaser may recover all purchase money paid, is not invalid as a deprivation without due process. Massilion Engine & Thresher Co. v. Wilkes (Temn.)

\_IEEE S. W. 316. A statute extending to a foreign corporation the privilege of building its road in the state and conferring in general terms on it the powers granted by its foreign character cannot be effective to transfer to it the table to land of an individual which it has not condemned or paid for. Jones v. Nashville, etc., R. Co. \[A1a.\] 37 So. 677. An ordinance divesting one of his property in a dead animal immediately on its death and vesting it in a public contract for the removal of garbage without reference to whether it is dangerous to public health is unreasonable. Clity of Richmond v. Caruthers, 103 Va. 774, 50 S. E. 265. An attempted mutualization of a life insurance company and consequent deprivation of stockholders of control therein, not done under the formalities required by its character, deprives the minority stockholders of their rights without due process. Lord v. Equitable Life Assur. Soc., 94 N. Y. S. 65.

**14. A statute providing for removal of public officers by the appointing power does not deprive without due process. State v. Grant \[Vw.o\] 81 P. 795.**

**15. See 3 C. L. 714.**

**16. In re Aubrey, 36 Wash. 308, 78 P. 900. Law licensing horseshoers held invalid. Id. Stock-grazing on the public lands of the United States within the limits of the state may be regulated. Spencer v. Morgan \[Idaho\] 79 P. 459. The provision of a state constitution guarantying due process of law does not prevent a police officer from arresting a foreign seaman on the requisition of a consul according to treaty. Dallemagne v. Moisan, 197 U. S. 163, 49 Law. Ed. 709.**

**17. In re Commonwealth of Pa., 45 Misc. 46, 90 N. Y. S. 808.**

**18. See 3 C. L. 774.**

**19. Statute requiring removal of school sinks from temement houses and substitution of water closets at an expense greater than defendant's interest in property. Tencment House Dept. of City of New York v Moeschen, 179 N. Y. 325, 72 N. E. 231. Statute regulating smoke nuisances. State v. Tower, 185 Mo. 79, 84 S. W. 10.**

**20. See 3 C. L. 774.**

**21. A law invalidating as to creditors sales of stocks of goods otherwise than in the course of trade, unless certain formalities are compiled with is void. See 3 C. L. 774.**

\*\*174. In 49. Sellers v. Hayes, 163 Ind. 422, 72 N. E. 119; McKinaster v. Sager, 163 Ind. 671, 72 N. E. 854. Contra, Wright v. Hart, 103 Apr. Dlv, 218, 93 N. Y. S. 60. A law requiring express companies to deliver parcels to the consignees in cities having a specified population is not a deprivation without due process of law. United States Exp. Co. v. State \[Ind.\] 73 N. E. 101. A statute requiring foreign insurance companies to file with the insurance commiss6ner's stipulation that process against them may be served on him or an agent whom he shall designate does not denney due process. Old Wayne Mut. Life Ass'n v. McDonough \[Ind.\] 73 N. E. 703. An ordinance prohibiting the storage of oils within the corporate limits, though it operates to destroy an individual's business, is not a deprivation without due process. City of Crowley v. Ellworth \[LLa.\] 38 S. 199. An ordinance requiring railroads to reduce crossings to grade, being a proper exercise of the police power, is not a taking without due process. Houston, etc., R. Co. v. Dallas \[Tex.\] 84 S. W. 648. An ordinance requiring that all cut stone used in municipal work be dressed in the state does not deprive without due process. Allen v. Labsap \[Mo.\] 87 S. W. 926. The imposition of a mulet tax on the business of cigarette selling, making it a lien on the real property in which the business is carried on, does not violate the due process clause because no notice of the imposition of the tax is provided for. Hodge v. Muscataine County, 196 U. S. 276, 49 Law. Ed. 477. The revocation of the license of a foreign corporation for violation of a state anti-tr

## 5 Cur. Law. Constitutional Law SS 15.

Local assessments for improvements\[25\] require notice and opportunity to be heard.\[26\] Assessments by the front foot rule\[27\] and reassemments are allowable.\[28\]\_Drainage acts\[29\]\_providing proper safeguards\[30\] are sustained.\[21\]_Taxation.\[22\]_--Illegal taxation is a deprivation of property without due process of law.\[33\]\_Taxes properly assessed under authority of law,\[34\] after notice, actual or constructive, and opportunity to be heard,\[35\] and proceedings to enforce collection,\[36\] constitute due process, notwithstanding exemptions and inequalities.\[37\]\_The taxing of property proposed to be taken into a city by extension of its limits is not a taking or damaging of property without authority of law.\[38\]_Civil remedies and proceedings.\[39\]_--\_Status of limitation may be within the due process clause if unreasonably restrictive.\[40\]_Status providing remedies\[41\] and regulating procedure\[42\] are sustained unless violative of property rights.\[43\]_

deptive them of their property without due \[19\]\_U. S. 341, 49 Law. Ed. process. Gulf, etc., R. Co. v. Henderson\[177\]. Due process is not denied by a law \[Tex. Civ. App.\] SS 8, W. 371.

## 6 See C. L. 593, n. 31.

## 7 Mining tunnel. Bailille v. Larson, 138

See 3 C. L. 775. A statue providing for an issue of bonds to pay for a local Im-provement and fixing the rate of interest

A street railroad company cannot thereon does not deprive an owner of his property without due process of law. Hul-the law in the valuation of its franchise on the ground that it was ascertained by speculation and guesswork, when the valuation of was made by a state board to whom the company was required to make a written report, and a notice and hearing provided and opportunity for review afforded. People voted. Barber Asphal Pav. Co. v. Munn, 185

A street extension including a charge for planing is not unfair as to a non-owner who property extends beyond the planing. City of Seattle v. Kelleher, 195 U. S. 351, 49 Law. Ed. 232.

## 11 A statute providing for reassessment of levies invalidated by defective assessments

## 12 A statute providing for reassessment

The remainder of this section is a brief summary of the results of the present paper.

A street extension including a charge for planing is not unfair as to a non-owner who property extends beyond the planing. City of Seattle v. Kelleher, 195 U. S. 351, 49 Law. Ed. 232.

### 13 A statute providing for reassessment of levies invalidated by defective assessments

The remainder of this section is a brief summary of the results of the present paper.

A street extension including a charge for planing is not unfair as to a non-owner who property extends beyond the planing. City of Seattle v. Kelleher, 195 U. S. 351, 49 Law. Ed. 232.

644 CONSTITITUDINAL LAW SS 15. 5 Cur. Law.

_Criminal offenses and procedure.\[44\]_--Statutes defining, and punishing crimes\[45\] and regulating criminal procedure,\[46\] unless' violative of fundamental rights, are sustained.\[47\] A statute providing for a forfeiture of "good time" on conviction of a convict of another offense before expiration of his term is not objectionable.\[48\]

statute, and the statute may withdraw it. \[\] ment or by a similar clause in a state con-Id. A statute providing that constructive substitution. State v. Guglielmo \[Or.\] 79 P. possession of unimproved lands shall be in 577; Id. TO.T.\] 80 P. 102. A judgment refus-him who under color of title pays taxes \[ing a new trial but modifying the judg-thereon for seven years, three of which \[\] ment below and remanding defendant for must be subsequent to the passage of the sentence for a lesser degree than the one act, Is valid. Towson v. Denson \[Ark.\] 86 S. V. 681. \[\]
41\. A statute empowering the insurance commissioner to proceed against insurance companies violating the laws for the purpose of winding them np and providing for the above trial but modifying the judg-thereon. The reason is not a deprivation without due a withdrawing a judge on proof by process, the state having authority to say uppan what terms corporations shall do business. Monumental Mut. Life Ins. Co. v. Wil-kinson \[Md.\] 59 A. 135. A statute providing that a judgement may be enforced or carried into execution after the lapse of five years from the date of its entry by love of court, although no notice to the judgment debtor is required, affords due one accuited ohof de the ground of process. Harter v. Bassford, 145 Cal. 529, insunity does not deprive him of liberty without due process of law. Exx parte ment of damages in cases of contributory Brown \[Wash.\] 81 P. 552. Contra. In re negligence is valid. Savannah, etc., R. Co.\] Boycott, 126 N. C. 418, 48 S. E. 789. \[\]

v. Evans, 121 Ga. 391, 49 S. E. 308. A statute providing administration on the estate asencased of crimen Application for a writ of of a person absent for so long a period as nausea corpus to be released from an asay-to raise a presumption of his death ls valid, lurn, where petitioner was kept by order of all his rights being safeguarded. See 3 C. L. \[\] the judge of the superior court under L. \[\] 777, L. 99, L. C. 485, 49 Law. Ed. 1125. A vited of crimes and acquited on the statute authorizing execution against the ground of insunity are to be committed to income of trust funds of a judgment debtor asymins for the dangerous insane, at the in favor of a judgment for necessaries, if discretion of the judge, and are to be dis-applied fo a trust created before the stat-charged only by act of the general assem-ute took effect, is unconstitutional. Shoane v. Tridan, 34 City. Proc. R. 208, 93 N. X. S. \[\] 149. \[\] 42. The rule that the sheriff's return of with the powers of the courts to faufue service is conclusive does not deny due process. Smoot v. Judd, 184 Mo. 508, 83 S. E. 789. \[\] 43. A judgment of outs against a defendant in electment for failure to pay his half of the stenographer's fee is not due holding them unconstitutional is based upon process. Meacham v. Bear Valley Irr. Co., 145 Cal. 606, 79 P. 281. A statute compelling the hearing of preferred causes on particl-whether days on application of one party whether the other is able to go to trial or have escaped punishment, has led to the en-not is invalid. Riglander v. Star Co., 98 App. Div. 101, 34 City. Proc. R. 92, 90 N. X. S. \[\] 772. \[\] 44. See 3 C. L. 777. See, also, ante, first part of this section. \[\] 45. A statute providing for the confiscation of fish nets as nuisance is not viola- due process. Darden v. State \[\] 86 S. V. 681. \[\] 41. A statute providing the insurance commissioner to proceed against insurance companies violating the laws for the purpose of his 5 Cur. Law. CONSTITITUTIONAL LAW SS 17. 645

**SS 16.**\_Compensation for taking property "for public use is guaranteed by all constitutions,"60 and this guarantantly is invariably construed to mean that private property shall be taken for private use under no circumstances.61 A use is public when it will tend to promote the public interest.62 A taking occurs when any injury for the benefit of the public is done or permitted,53 though injuries resulting from mere police regulations need not be compensated.64 The limitations on the power of eminent domain imposes no restriction on the legitimate exercise of the police power.65 Uncompensated obedience to a regulation enacted for the public safety under the police power of the state is not taking property without due compensation.66

**SS 17.**_Right to justice and guarantantly of remedies.67_\*\*--A certain remedy at law for every injury is a natural right, confirmed by probably every constitution,68

People v. St. Savlor Sanitarium, 34 N. Y. is precluded by the charter of the condemn-App. Div. 362; In re Clayton, 59 Conn. 510, 21 Am. St. Rep. 128, 13 L. R. A. 66. The ruling as to the unconstitutionality of the provision in the statute, that the persons confined in the asylum are to be released only by act of the general assembly, is un-doubled? correct. The right to inquire into the legality of the restraint is exclusively within the province of the judiciary. Bus-Wel, Insanity; Palmer v. Judge, 83 Mich. 528; Doyle, Petitioner, 16 R. L. 537. 27 Am. St. Rep. 759, and note.--From 3 Mich. L. R. \[Iowa\] 104 N. W. 454. A union depot is a 318. Ex parte Russell, 92 N. Y. S. 68. 49. See 3 C. L. 773. See full treatment in Eminent Domain, 3 C. L. 1189. Where property is taken by the public, compensation need not be first made if it is secured. Sisson v. Buena Vista County but private property shall not be taken for Sup'rs \[Iowa\] 104 N. W. 454. An order of the Federal court requiring a suit to condemn a right-of-way over a railroad in the hands of its receiver to be brought in that court does not invade the state's right of the eminent domain. Buckhannon & N. R. Co. v. Davis \[C. C. A.\] 135 F. 707. 50. Jones v. Nashville etc., R. Co. \[Ala.\] 37 So. 677. Where the Federal government takes property, including streets and alleys, bridges as may be necessary to provide belonging to a municipality, it should pay for the water and sewer pipes, curbing, and the like. Town of Nahant v. U. S. \[C. C. A.\] 136 F. 273. St. St.ute providing for reassessment of defective assessments for local improvements held not to take private property for public use without just compensation. Chauc.ro, etc., R. Co. v. People, 212 N. E. 219. A police erghtople use without just compensation. Haubner v. Milyaukee \[Wis.\] 101 N. W. 930. A statute protective of fish and game does not take without compensation. Ex parte Fritz \[Miss.\] 38 So. 722. 51. See 3 C. L. 779, n. 72. Grande Ronde Electrical Co. v. Drake \[Or.\] 178 P. 1031. An act granting aid in money to worthy Infirm persons is not in violation of the provision of the Federal constitution against the taking of private property for private purposes. Davies v. State, 6 Ohio C. C. (N. S.) 417. 52. Taking shares of stock of connecting line by railroad already owning majority, for purpose of effecting a merger, is public. New York, etc., R. Co. v. Offel \[Conn.\] 59 A. 510; Spencer v. Seaboard Air Line R. Co., 137 N. C. 107, 49 S. E. 96. That condemnation by a railroad company of the few remaining shares of another company not already owned by it may be for a private use which right is not dependent on the frequency of its assertion.59 Constitutional rights may exist without a'renedy for their enforcement.60 A statute forfeiting the license of a foreign insurance company that removes cases against it to the Federal court is not in conflict with the Federal constitution.61

SS 18. \_Jury trials preserved.62--\_This right of trial by jury as it existed at common law has been almost universally preserved. Some constitutions dispense with unanimity. In some states the constitutional right is supplemented by a statutory right in cases where it did not exist at common law.63

SS 19. \_Crimes, prosecutions, punishments and penalties.64--\_Under American constitutions persons accused of crime 65 are entitled to a speedy and public trial by an impartial jury,66 to be informed of the nature of the accusation against them,67 to confront the witnesses against them,68 are protected from giving evidence against themselves,69 from ex post facto laws,76 and bills of attainder,71 from being placed twice in jeopardy for the same offense,72 and from excessive fines and cruel punishment.73 Disbardment proceedings against an attorney are not

ment law providing for reassessment of defective levies held not violative. Haubner v. Miliwaukee \[Wis.\] 101 N. W. 930. A statute limiting the period in which a land-owner must act to invalidate a special assessment does not violate. City of Denver v. Campbell \[Colo.\] 80 P. 142.

50. That invasions of a particular right are rare, or that a right has not been asserted for a long time, is not conclusive of its absence. Pavesich v. New England Life ins. Co. \[Ga.\] 50 S. E. 68. Where a case is new in principle, the courts cannot give a remedy, but where the case is new only in instance, it is the duty of the courts to give relief by the application of recognized principles. Id.

01. A provision that there shall be at least two terms of court in each country is unenforceable except by appeal to the legislature. St. Louis, S. W. R. Co. v. Hall \[Tex.\] 85 S. W. 786.

01. Prewitt v. Security Mut. Life Ins. Co., 26 Ky. L. R. 1239, 83 S. W. 611.

01. See 3 C. L. 780.

01. See a full treatment in Jury, 2 C. L.

01. 4 C. L. 358.

01. See 3 C. L. 780. See application of these guaranties fully discussed in Criminal Law, 3 C. L. 979; Indictment and Prosecution, 4 C. L. 1.

01. The term "crime" as used in the Federal and state constitutions forbidding involuntary servitude except as a punishment for crime includes misdemeanors and all offenses in violation of penal laws. Stone v. Paducah \[Ky.\] 86 S. W. 531.

01. The confinement in an insane asylum of one acquitated of homelide on the ground of insanity as required by law does not derive him of jury trial, infringe his right of counsel, inflict cruel punishment, nor do-prive him of his right to demand judicial investigation of his restoration to sanity. Ex parte Brown \[Was.\] 81 P. 552.

01. A statute authorizing criminal prosecution by Information and reserving to the circuit courts the right to convene grand juries when advisable is a proper exercise of legislative power under a provision aud-thorizing the modification or abolition of the grand jury. State v. Guistilme \[Or.\] 79 P. 577. Under a provision that no warrant present in the county jail not exceed 5 Cur. Law. CONSTITITUTIONAL LAW SS 22.647

criminal, and the customary safeguards thrown around persons accused of crime are not applicable.74 Involuntary servitude except as a punishment for crime is not permitted.75

SS 20. _Searches and seizures.76--Unreasonable searches and seizures are prohibited.77_

SS 21. \_Suffrage and elections.78--The provision that all elections shall be free and equal has no application to primary elections.79 Primarily, elections belong to the political branch of the government and are beyond control of the judiciary.89

SS 22. \_Frame and organization of government; courts; officers.81--The legislature may impose the duty of rebuilding a bridge between two cities upon them in such proportion as it sees fit.89

_The right to local self government,81_ is guarantied in terms in several constitutions,84 and prohibitions on the imposing on the people of counties and municipal subdivisions of the state, new liabilities in respect of past transactions are met with.89 But in the absence of such a provision a state can compel any of its political subdivisions to pay obligations not enforceable in the courts but which they in equity and good conscience ought to pay.89\_

\_Courts_87 and their jurisdiction are generally placed beyond control of the legislature except to a limited extent.89

ing six months or both for violation of a

tons, 4 C. L. 720. Right of local self government fully discussed. Brown v. Galves-

mines does not impose unreasonable fines

or excessive punishment. Ex parte Karir

parte Lewis \[Tex. Cr. App.\] 73 S. W. 811,

\[Nev.\] 80 P. 463.

44. Information or indictment. Trial by

App.\] 81 S. W. 973.

jury. Confrontation of witnesses. State v.

S4. Requirement that self imposed city

McRae \[Fla.\] 88 S. 605.

75. A statute compelling persons incar-

erated in jail for want of sureties to keep

teras. Grant v. Berristford \[Minn.\] 101 N. W.

the peace to harbor to an extent suffleient to

pay their board conflicts with the thirteenth

approve or reject charters proposed by in-

amendment. Stone v. Paducah \[KK.\] 86

habitants of certain cities in California.

S. W. 531. Compare the title Slaves, 4 C. L.

Sheehan v. Scott, 145 Cal. 684, 7 P. 350.

1494, for the law relating to peonage.

76. See 3 C. L. 783. See, also, Search and

viding for detaching unplatted farm lands

Selaire, 4 C. L. 1416.

from cities and incorporated villages, and

77. Automobile ordinance requiring users

for attaching them to adjacent townships,

to expose number of license in large figures

does not conflict with the provision for

held not to infringe provision against un-

local self government in the constitution of

reasonable searches. People v. Schneider

\[Mich.\] 103 N. W. 172. An article taken

Ohio C. C. (N. S.) 197, 27 Ohio C. C. 376. The

from defendants' house under an invalid

search warrant issued solely for the pur-

being county. McDonald v. Dousl \[Micho\]

pose of obtaining evidence against him is

is in evidence against him. State

i.e., 121 Iowa, 165, 96 N. W. 730. An

order of the common council of a city made

in the exercise of its charter powers com-

manding the production before it of the

books and papers of a corporation in aid of

investigations as to evasions of license

taxes is not a violation of the provision.

Ex parte Conrades \[Mo. App.\] 85 S. W. 150.

78. See 3 C. L. 784. Compare title Elections, 3 C. L. 1165.

01. Montgomery v. Chelf, 26 Ky. L. R.

01. 82 S. W. 388.

01. McWhorter v. Dorr \[W. Va.\] 50 S. E.

01. See 3 C. L. 784.

01. In re Opinion of the Justices \[Me.\]

60 A. 85.

83. See 3 C. L. 785. As applied to municipalities, see, also, Municipal Corpora-

01.

No offices may be created " except as authorized by the constitution. Nor may tenure, terms, or compensation be altered beyond such authority."

SS 33. _Taxation and fiscal affairs._"1--In the absence of constitutional restraint the legislature has absolute power with respect to taxation,"2 provided the power is exercised for a public purpose."3 This right to redeem from tax sales is specifically granted by the constitution of Nebraska."4

Equality and uniformity."5--The limitation upon the taxing power as to equality and uniformity of taxation has its foundation in state constitutions,"6 though taxes must not be so nonuniform as to violate the fourteenth amendment."7 Exact equality is not necessary,"8 and classification "9 and executions do not violate the provision.1

Double taxation."2

Exemption clauses " are strictly construed."4

of court shall be held in each county is en-

listed by a law reassessing the coat of a forceable only by appeal to the legislature.

local improvement, but providing that those St. Louis S. W. R. Co. v. Hall \[Tex.\] 85 S. W.

who have paid under a prior invalid assessment shall not be again assessed. Warren

86.

See 3 C. L. 786; 1 C. L. 605, n. 68. Also

Officers and Public Employees, 4 C. L. 854.

N. E. 1022. The equality and uniformity

90. Judicial officers are not public officers

clause in Nebraska requires that the value

within meaning of prohibition to increase

of its property and franchises within the salary during incumbency. Commonwealth

state the basis of taxation of every cor-

v. Mathues \[Pa.\] 69 A. 961. Change in size

poration both foreign and domestic. Aachen

of district attorney's district thereby indi-

& M. Fire Ins. Co. v. Omaha \[Neb.\] 101 N.

rectly reducing the amount of his emolivent

V. 3. Under a constitutional requirement

ments does not violate this provision. But-

if or a specific amount for a particular act

may not be extended. State v. Galuha

cannot be upheld as a valid property tax.

\[Neb.\] 104 N. W. 197.

Ten dollars on oil depot where oil is stored

91. See 3 C. L. 786. See, also, Taxes, 4

in bulk or tank. Standard Oil Co. v. Com.,

C. L. 1605; Municipal Corporation, 4 C. L. 26 Key. L. R. 988, 82 S. W. 1020. A statute

720; Municipal Bonds, 4 C. L. 706; Public

providing for redemption from tax sale for

Works, etc. (local assessments), 4 C. L. 1124.

42. See 3 C. L. 786, n. 38. If a tax

within the lawful power, the exercise of

that power cannot be judicially restrained

because of the result to arise from its ger-

97. Inequality in valuation must be sys-

else. Tax on employment agents procuring

tematic and intentional to be ground of

laborers for employment out of state. State

v. Roberson, 136 N. C. 687, 48 S. E. 695. In-

is not made on such a different scale of

heritance tax. Successation of Levy \[La.\] 39

values from that adopted elsewhere as to

So. 87. Tax on trading stamp business,

state v. Merchant's Trading Co., 38 S. 443.

annendar. Coulter v. Louisville & N. R.

93. Construction of road across flats to

01. 196 C. N. 599, 49 Law. Ed. 615.

see held to be of such public nature that

the state may do it with public money,

necessarily different taxing rate employed

Wheelwright v. Boston \[Mass.\] 74 N. E.

987. The sprinkling of city streets is a pub-

lie purpose for which a city can raise money

business. Aachen & M. Fire Ins. Co. v.

by taxation. Maydell, 1, Louisville, 25 Ky.

Omaha \[Neb.\] 101 N. W. 8.

L. R. 1042, 76 S. W. 1091. Liquor dispen-

99. Is not violated by an act assessing

earles established by municipalities to

control the liquor traffic as authorized by law

property. State v. Back \[Neb.\] 100 N. W.

constitute a public purpose for which pub-

1ic money may be lawfully invested and ex-

1. An act exempting religious bequest

pended. Equitable Loan & Security Co. v.

from the transfer tax contruted not to apply

Edwardsville \[Ala.\] 38 S. 80. 1016.

94. Decre on forceable of tax lien not

uniformity. In re Speed's Estate \[III.\] 74

providing for the constitutional redemption

N. E. 809.

Is erroneous. Logan County v. McKinley-

Lanning Loan & Trust Co. \[Neb.\] 101 N. W.

51.

01. See 3 C. L. 789.

01. City of Rochester v. Rochester R. Co.

01. See 3 C. L. 787.

01. Given a reasonable and just clasfini-

United States to a corporation for dry dock

cation of taxp 5 Cur. Law. CONSTITUTIONAL LAW SS 25.

_Public improvements._"Works of internal improvement by the state are prohibited by several, state constitutions."

_Debt limit, and limit of levy._"-Provisions limiting the indebtedness that may be incurred by the legislature in behalf of the state," or by the municipalities of the state," and limitations on the tax levy," are met with, and contracts and statutes having effect to increase indebtedness or levy beyond the limit are invalid."

_Submission of question of indebtedness._"

_Provision for payment of debts._"

_Public aid, donations and loans of credit._"-Donations of public funds to private individuals are invalid;" but it is within the general legislative power of the state to make provision for any legitimate class, recognized as such either by the constitution itself, or by a sense of justice and the common reason of the people of the state."

SS 24. _Schools and education; school funds._"-The constitutional provision for free schools is not violated by a law requiring children to be vaccinated as a condition of attendance."

Statutes applying school funds and property of various districts and imposing the burden of school support on them as the legislature sees fit are not available as interfering with property rights without compensation."

SS 25. _The enactment of statutes_" is hedged about with various inhibitions, such as those against local and special laws, laws addressed to a plurality of subjects, and not reciting their subjects in their titles, and amendatory acts not setting out that amended. The powers of special sessions are limited, and there are also provisions regulating legislative procedure, and some relating to interpretation and effect of statutes."

building & Dry Dock Co. v. Baltimore, 195

the tax was less than the limit, though the U. S. 375, 49 Law. Ed. 242. If a state unites

year in which the levy is made the regular in one undertaking an exercise of the po-

tax together with that for the previous

lice power with a commercial business, the

year exceeds the limit. City of Austin v.

national government cannot be compelled to

Cahill \[Tex.\] 88 S. W. 542.

aid the operation of the police power by

forgeoning its constitutional right to lay and

178. An indebtedness that only may but

collect an impost or exercise on the buslness part of the transaction (Iquor dis-

yond the limit is not invalid. Bickerdike

pensary system). State of South Carolina's

Case, 39 Ct. Cl. 257.

5. See 3 C. L. 790.

1. The oil refinery act of Kansas is Invalid under such a provision. State v. Kelly

(Kan.) 81 P. 450.

7. See 3 C. L. 790.

1. Claims for a bounty on coyotes held

not to constitute a debt within the limitation. Bickerdike v. State, 144 Cal. 681,

7. Breda authorized by a vote of the

people are not an indebtedness to be con-

sidered in respect to the limit. Id. Claims

of the same nature previously paid with

out authority are not to be considered. Id.

9. The legislature can neither authorize

nor compel a municipality to increase its

indebtedness beyond the constitutional

limit. In re Opinion of the Justices \[Me.\]

60 A. 85; Robertson v. Staunton \[Va.\] 51 S. E. 178. And the constitutional provision

will not be extended to include cases not

fairly within it. N. W. Halsey & Co. v. Belle

Plaine \[Iowa\] 104 N. W. 494.

10. Only one-half of one per cent. may

be levled to pay railroad bonds In Arkansas.

Desha County v. State \[Ark.\] 84 S. W. 625.

The limitation in Texas does not interfere

with a levy "for" a year previous in which

8. The enactment of statutes\_" is hedged about with various inhibitions, such as those against local and special laws, laws addressed to a plurality of subjects, and not reciting their subjects in their titles, and amendatory acts not setting out that amended. The powers of special sessions are limited, and there are also provisions regulating legislative procedure, and some relating to interpretation and effect of statutes."

building & Dry Dock Co. v. Baltimore, 195

the tax was less than the limit, though the U. S. 375, 49 Law. Ed. 242. If a state unites

year in which the levy is made the regular

in one undertaking an exercise of the po-

lice power with a commercial business, the

year exceeds the limit. City of Austin v.

national government cannot be compelled to

Cahill \[Tex.\] 88 S. W. 542.

aid the operation of the police power by

178. A hiedbtedness that only may but

collect an impost or exercise on the buslness part of the transaction (Iquor dis-

yond the limit is not invalid. Bickerdike

pensary system). State of South Carolina's

Case, 19 Ct. Cl. 257.

5. See 3 C. L. 791.

1. See 3 C. L. 792.

1. The oil refinery act of Kansas is Invalid under such a provision. State v. Kelly

(Kan.) 81 P. 450.

7. See 3 C. L. 790.

1. Claims for a bounty on coyotes held

1. Davies v. State, 6 Ohio C. C. (N. S.)

not to constitute a

## 26 Miscellaneous provisions other than the foregoing

The first two papers are the following:

- **1.**: _Miscellaneous provisions other than the foregoing,_\[22\] chiefly matters more properly belonging within the domain of legislation, are to be found in the more recent state constitutions. Among them are provisions respecting claims against the state,\[23\] public lands \[24\] and waters,\[25\] homeseteads and other exemptions,\[26\] married women,\[27\] master and servant,\[28\] usury laws,\[29\] regulations of carriers,\[30\] corporations,\[31\] the liquor traffic,\[32\] and provisions respecting actions for wrongful death.\[33\]

_Right to acquire information by compulsion._\[34\]--Production of 'papers cannot be compelled, where it is evident to the court that they must tend to subject the party to whom they belong to penalties and punishment.\[35\]

_The right to bear arms_\[36\] is subject to such reasonable regulations and limitations as may be imposed by the legislature.\[37\]

The full faith and credit clause is not violated by a state statute that prohibits suits between foreign corporations in the state courts, though construed to include foreign judgments.\[38\] This clause is oftenest invoked to protect foreign judgments.\[39\]

CONSULS, see latest topical index.

CONVICTS.\[1\]

- **1.**: **Nature of Contempt and What Constitutes (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (652).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (653).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (653).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (654).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (655).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (655).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (653).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (652).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (653).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (652).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (653).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (653).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (653).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (654).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (655).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (655).**: **Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).**: \*\*Elements of Contempt and Nature of Proceedings, Civil or Criminal (651).

5 Cur. Law. CONTEMPT SS 1C. SS 1. \_Nature of contempt and what constitutes. A. Elements of contempt and nature of proceedings; civil or criminal.\_1--Direct contempts are contempts in facie curiae. Constructive contempts are those committed outside the presence of the court, but tending by their operation to embarrass or prevent due administration of justice.2 When brought for the purpose of vindicating the power and authority of the court and maintaining its dignity, contempt proceedings are criminal. When brought for the purpose of collecting an indemnity for the damages sustained by a party to an action because of the misconduct of other party, they are civil.3

Footnote 1: See SS 1. \_B. Disrespect to the court in general.\_4--Disrespectful utterances to or concerning a judge in his official capacity, even respecting a case which has been terminated, are contempt; 5 but a proper assertion of legal rights,6 or a truthful answer to a question by the judge,7 cannot be considered as contempt.

Footnote 1: See SS 1. \_C. Acts in disobedience of court.\_8--Failure to comply with an order of court is contempt 9 if the order is a valid one and within the jurisdiction; 10

Footnote 1: See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See SS 1. \_See 1.

and mere irregularities do not excuse disobedience.\[11\] It must be one binding on the party sought to be charged.\[12\] Injunctional orders, however, are generally held binding on all who have knowledge thereof,\[13\] but not on persons without such knowledge.\[14\]

(SS 1) \_D. Official misconduct and obstruction or perversion of justice.\[15\]--Interference with property in custodia legis,\[16\] tampering with jurors \[17\] or witnesses,\[18\] publications designed to affect the event of pending actions,\[19\] presenting false affi-

\*\*E. 103. A sheriff is not in contempt in declining to honor and execute a void order. Lindsay v. Allen \[Ten.\] 82 S. W. 648. Refusal to answer improper question; 74 N. E. 431. Where injunction was ad-An attorney is not guilty of contempt from refusing to answer questions which would require him to divulse a privileged communication made to him by his client. El-Iott v. United States, 23 App. D. C. 456. A witness cannot be adjudged guilty of contempt for a refusal to answer questions and continues it in collusion with them to that are not legal and pertinent. Rogers v. Superlor Court of San Francisco, 145 Cal. 88, 78 F. 344. Questions calling for hearsay actually employed and paid by them or not, testimony. Ex parte J. H. Schoepf, 3 Ohio N. P. (N. S.) 93. 132 F. 978. A party may be punished for contempt for disobeying an injunction pro-

40. Whether order increasing alimony was properly served on defendant and whether he was bound to comply with it, was not determinable on motion to vacate commitment for contempt. Keller v. Keller, 100 App. Div. 325, 91 N. Y. S. 528. A party who refused to obey an order of court directing him to deliver certain property to a receiver could not defeat contempt proceed-

132 F. 978. A party may be punished for contempt for disobeying an injunction pro-

40. Whether order increasing alimony was properly served on defendant and whether he was bound to comply with it, was not

withstanding the defendants themselves determine on motion to vacate commitment for contempt. Keller v. Keller, 100

134. Unintentional violation of order of refused to obey an order of court directing him to deliver certain property to a receiver could not defeat contempt proceed-

001. Weare a perfect answer to the question of contradiction.

001. The commentement of an action show cause why a party should not be punished for contempt of court in violating a

001. The commentement of an action show cause why a party should not be punished for contempt of court in violating a

001. The commentement of an action show cause why a party should not be punish

001. The commentement of an action show cause why a party should not be punish

001. The commentement of an action show cause why a party should not be punish

001. The commentement of an action show cause why a party should not be punish

001. The commentement of an action show cause why a party should not be punish

001. 5 Cur. Law. CONTEMPT SS 3. 653

davits,20 presenting false claims to the court for allowance," putting in fictitious bail,22 and similar acts tending to the obstruction of justice, are contempt.

SS 8. \_Defense, excuse or purgation.28--\_While intent to contemn has been sometimes deemed essential,24 it is generally held that neither advice of counsel,25 nor the fact that contemn is animated only by zeal for a client28 is an excuse. Even impossibility of complying with an order has been deemed no excuse for disobedience where it was not presented in opposition to the passing of the order,27 but grounds of opposition which could not have been previously presented will be considered.28 Official duty of a Federal officer has been held to justify disobedience of the order of a state court.29

SS 3. \_Power to punish or redress; contempt or other remedy.30--\_The power to punish contempt of their authority is inherent in courts 31 of general 32 but not of

ing of the person indicted for the crime, less it clearly appears that it is acting in and of a paper found by the side of the body of the person murdered, followed by an analysis of the likeness and unlikeness in the handwriting, including interview with experts employed by the commonwealth, stating the methods of the prosecuting office in connection therewith, and discussing the interest of reading public in the specimens of handwriting constitutes contempt of court because interfering with the administration of justice. Globe Newspaper Co. v. Commonwealth \[Mass.\] 74 N. E. 682. The publication of a newspaper article which would constitute content of court if published during the trial or immediately before the trial of a cause cannot be justified on the ground that the trial to which it referred was not in progress or immediately to he begun, but would occur at a time to be afterwards fixed, though this fact should be taken into consideration in imposing sentence. Id.

20. An attempt to improperly influence the administration of justice by presenting false afflavits to the court constitutes contempt. Scastream v. New Jersey Exhibition, Co. \[N. J. Eq. 59 A. 914.

01. Under chapter 301, Comp. Laws of Michigan, the presentation of a false claim to the court for allowance is contempt. Ex parte Topeel \[Mich.\] 102 N. W. 369.

01. Under N. Y. Code Civ. Proc. **, 14,** limited jurisdiction,\[88\] and as such is usually held to be beyond legislative impairment,\[34\] though there are contrary holdings,\[35\] An act may be punished as contempt, though it is also punishable as crime.\[36\] The power to punish contemptuous publications does not invade the freedom of the press,\[37\] nor is a commitment for contempt for disobedience of order for the payment of money imprisonment for debt.\[88\]

## 4. Pleadings and other proceedings before hearing

Contempt in facie curiae may in the absence of statute be summarily tried;\[40\] but in all other cases a reasonably specific,\[41\] verified\[42\] charge must be filed,\[43\] and notice or process

- **if** the guilty party may be indicted for the same offense. O'Neil v. People, 113 \[Ill. App. 195\]
- **if** P. 584; State v. Scarborough \[S. C.\] 48 \[S. E. 866\]. Under $ 3610, Rev. St. Wyoming, which provides that all motions, demurrers and other matters not involving a trial or an issue of fact pending in any district court may be determined by the judge in vacation, held that one charged with contempt for interfering with a water distributor appointed by the court commissioner involved the trial of a question of fact and could not be punished for contempt by the judge in chambers or the commissioner. Mau v. Stoner \[Vy.o\] 76 P. 584.
- **if** M. Mahoney v. State, 83 Ind. App. 655, 72 N. E. 151. The court has power to enforce by punishment for contempt the compliance of any order which it had a right to make, notwithstanding the absence of statute giving it such authority. Ex parte Latham \[Tex. Cr. App.\] 82 S. W. 1046.
- **if** M. Harifor tribuals are without in-herent power to punish for contempt. In absence of statute this power is confined to courts of record. Farnham v. Colman \[S. D.\] 103 N. W. 161. Under the charter of the city of Macon, Georgia, providing that the city recorder shall be to all intents and purposes a justice of the peace so far as to enable him to issue warrants for offenses committed within the corporate limits of said city, the recorder has power to punish for contempt without reference to whether he is suing for the trial of offenses against the municipal ordinances or as a court of inquiry for investigation of offenses committed against the state within the limits of the city. Faircloth v. Macon \[Ga.\] 50 \[S. E. 915\].
- **if** M. Some courts hold, however, that the power of courts to command respect and enforce their decrees cannot be abridged, limited or taken away by the legislature either directly or indirectly by attempting to define the offense or undertaking to regulate procedure. Anderson v. Indianapolis Drop Forging Co. \[Ind. App.\] 72 N. E. 277.
- **if** The power of court to punish for contempt is inherent, but is subject to the limitations imposed by constitution and statute. O'Neil v. People, 113 \[Ill. App. 145\].
- **if** M. Harifor tribuals are within-dependent, but in- 5. Cur. Law. CONTEMPT SS 5. 653 must be served,44 unless the contemnor voluntarily appears.45 Constructive contempts in equity are properly punishable in a proceeding in the original suit.46 SS 5. \_Hearing; evidence; trial.47--\_Contempt proceedings are said to be criminal in their nature, and this statement has been applied so far as to invoke the presumption of innocence 48 and require clear and convincing proof,49 but has never been carried to the extent of importing into contempt proceedings the formalities of procedure guaranteed to persons accused of crime,50 such as jury trial 51 and confrontation with witnesses,52 nor does a rule to show cause violate the guaranty

violating an injunction restraining the In-fringement of a patent for an Improvement in valves for air brakes, served on defend-art's attorneys March 19, 1903, the affdata-vit's allege that an examination of the cars in which the infringing valves were found, after final judgment. Keller V. Keller, 100, 1903, and that someone "informed" one of the affants that the cars were "get up" between March 23 and 28, 1903, and that affl-ant "was also informed," without stating that a restraining order in supplementary by whom, that all the braking equipments were delivered by defendant on August 28, 1902; such afflavits were insufficient to show a violation of the injunction. West-inhouse Air Brake Co. v. Christensen En-gineering Co., 128 F. 749.

42. A complaint by an assistant district attorney, signed by him as a public officer, or, aft. aft. aft. aft. aft. aft. aft. aft. aft. aft. aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.aft.ft.aft.aft.aft.aft.aft.ft.aft.aft.aft.ft.aft.aft.aft.ft.aft.aft.aft.ft.aft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.aft.ft.aft.ft.aft.aft.ft.aft.ft.aft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aft.ft.aftft.aft.ft.aft.ft.aftft.aft.ft.aftft.aft.ft.aftft.aft.ft.aftft.aft.ft.aftft.aft.ft.aftft.aft.ft.aftft.aft.ft.aftft.aft.ft.aftft.aftft.aft.ft.aftft.aftft.aft.ft.aftft.

636 CONTEMPT $ 6. 5 Cur. Law. against self crimination.\[85\] At common law a person accused of criminal contempt is entitled to an acquittal and discharge on his sworn denial of the facts charged; and in case of his failure to deny, his punishment may be assessed without the hearing of evidence.\[54\] This rule does not apply to civil contempts.\[55\] Contempt proceedings in equity should be determined by the chancellor, though the investigation of the facts may be referred to a vice chancellor or master.\[56\]

**SS 6.**\_Finding and judgment.\[57\]--To support a conviction of contempt there must be findings reciting the convictions and the facts on which it is based.\[88\] and if the recited facts do not constitute contempt, the conviction will be set aside.\[59\] The court may of its own motion remit part of the fine.\[60\]

and it was proper to admit a deposition in default, in order to relieve them from pun-evidence. Davidson v. Munsey \[Utah\] 80 \[ishment for contempt. London Guarantee & P. 743.\]

53. It is not in violation of the constituu-tional provisions requiring that no one shall

ing a person guilty of contempt for aiding be compelled to give evidence against him-

others who had been enjoined from in-self in any criminal proceeding to enter a rule against a respondent to show cause

function of a patent in evading the in-why he should not be punished for crim-

business in his name with actual knowledge

Inal contempt. O'Neill v. People, 113 ILI App.

195.

Drill & Mach. Co. (C. C. A.) 137 F. 417.

54. Anderson v. Indianapolis Drop Forgr-

Ing C. (Inh. App.) 72 N. E. 277. Burn's

Ann. St. Ind. 1901, $ 1025. Under $ 654.

656, Code of North Carolina, authoring

the punishment as for contempt of unlawful

admitted that his saloon was open on the interference with the proceedings in an action, or acts tending to defeat or impair

therin. A denial of a change of venue was

rights or remedies in an action, a person

proceeded against as for contempt for at-

Iowa, 615, 101 N. W. 460. It is always with-

tempting to induce a witness against him

in the discretion of the court to allow a

to leave the state cannot purge himself of

party to disclaim contemptous intent and

the contempt by avovals of lack of intent.

In re Young, 137 N. C. 552, 50 S. E. 220.

195. Christensen v. People, 113 III. App. 84. A

001. Scastream v. New Jersey Exhibition

statute regulating contempts of court, pre-

Co. N. E. J. Eol. 59 A. 914.

serbing penalties and methods of proced

ure and authorizing, among other things,

58. When the court adjudes acts or con-

an aquittal on a sworn denial of the facts

duct to be a contempt, its adjudication is

charged as a contempt, but which provides

that nothing therein contained shall be

655, 72 N. E. 151. An order punishing a

constructed as affecting proceedings against

judgment debtor for contempt in supple-

any party for contempt "for the enforce-

ment of civil rights and remedies" has no

duct constituting contempt as "wilfully

application to contempt proceedings in

disobeying the order requiring him to ap-

chancey, brought for the violation of the

injunctive process of the court, in which

not objectionable on the ground that the

the rule has always been that the truth of

defendant's answers to interrogators may

the order, and did not set forth the act or

be controverted, and the whole matter

omission of which the debtor was adjudged

quired into and ascertained by the court.

Anderson v. Indianapolis Drop Forgring Co.

v. Siebert, 45 Misc. 357, 90 N. Y. S. 468.

\[Ind. App.\] 72 N. E. 277. Iowa Code 1897,

Under Call. Code Civ. Proc. $ 1211, provid-

it 21, e. 17, which prescribes the procedure

for the punishment of constructive con-

the immediate presence of the court, it may

tempts, and contemplates a trial on the is-

be punished summarily, and that an order

sases raised by accused's answer, instead of

trating that answer as conclusive, is not

in such immediate presence, adjudging that

uncontitutional as depriving the courts of

the person proceeded against is thereby

their inherent powers, but merely regulates

suitly of contempt and that he be punished

the exercise of such powers; nor does it take

as therein prescribed, it was held that the

wavy an inherent right possessed by the ac-

jurisdiction to punish for contempt is

cused or punish him without due process of

cla and limited and the authority of the

law. Drady v. District Court of Folk County

court to render judgment must be shown by

\[Iowa\] 102 N. W. 115. Where defendants

the record of conviction. Ex parte Hoar

were ordered to produce books and papers

\[Coa.17 P. 75. 853.\]

for inspection at a certain time and failed to

59. Under Ball. Ann 5 Cur. Law. CONTEMPT SS 7. & process. \[71\] Excessive punishment for contempt does not render the judgment void, but only invalid, if at all, as to excess. \[72\]

SS 8. _Discharge or pardon. \[73\]_--When a person is committed for failure to comply with an order requiring him to pay money, the court has power to discharge bim from custody on a showing that the failure to pay was due to actual inability to do so; \[74\] but where the imprisonment was to compel an act for the benefit of a party, the court can order a discharge without notice to such party. \[75\]

SS 9. _Review of proceedings. \[76\]_--Contempt proceedings were not appealable at common law, and in some states this rule obtains, \[77\] but in most jurisdictions, if the decision is final, \[78\] appeal or error lies. \[79\] Where there is no remedy by appeal or error, a more or less limited review on certiorari, \[80\] mandanus, \[81\] or habeas corpus, \[82\]

v. Justices of Superior Court \[Mass.\] 73 N. \[tions and judgments for contempt of court, E. 659. Where a party to an action is in \[\] an order of an orphan's court directing a contempt of court, a court of chancery has worr of attachment to issue for an alleged power to refuse to allow him to plead fur- \[contempt, made after hearing on an order that until he has purged himself of the con- \[contempt.\] 81 P. 632. \[N. J. St. p. 2600. In re Doland \[N. J. Eq.\] 71. Harley v. Montana Co., 27 Mont. 388, 59 A. 879. Where, he content proceeding, 71 P. 407: Sibley v. Sibley, 76 App. Dlv. 123, 78 N. Y. S. 743. And see Howey v. Elliott, 167 U. S. 409, 42 Law. Ed. 215, 72. Perry v. Pernet \[Ind.\] 74 N. E. 609. \[On the other hand\] 74 N. E. 609. Where a judgment for contempt assessing a fine and imprisonment is in excess of the \[cont's power so far as the imprisonment \[On the other hand\] 75. Weistenhouse Air Brake is concerned, the part imposing the fine \[On the other hand\] 75. Bute v. State \[Ark.\] 76. \[On the other hand\] 77. \[On the other hand\] 78 N. Y. S. 633. \[On the other hand\] 74 N. E. 677. \[On the other hand\] 74 N. E. 609. \[On the other hand\] 75.

## 5 Cur. Law. Continuance and Postponement $ 1.

is usually allowed, and remand on habeas corpus has been held not to be a bar to an application for certiorari.\[83\] The appellate court can look to the moving papers and the whole judgment in order to ascertain in what the adjudicated contempt consisted.\[84\] A statement filed by a judge and entered of record, relating to an alleged contempt in the presence of the court, imparts absolute verity,\[85\] and every intendment will be made in support of the decision;\[86\] but the reviewing court will not go outside of the record to determine whether there is matter other than that contained in the record which will support a charge of contempt of court.\[87\]

CONTINUANCE AND POSTPONEMENT.

\*\*SS 1.\*\*Power and Duty of Court (659).

\*\*SS 2.\*\*Grounds for Continuance or Post-

\*\*SS 3.\*\*In General (660).

\*\*SS 4.\*\*Subtleency of Amdavits or Moving

\*\*SS 5.\*\*Absence or Disability of Party or

\*\*Papers (663).

\*\*Counsel (661).\*\*SS 4.\*\*Appeellate Procedure (664).

Postponement of criminal prosecutions is elsewhere treated.\[88\]

**SS 1.**\_Power and duty of court.\[89\]\_The granting or refusal of an application

for a continuance is very largely discretionary, and a ruling of a trial court will not be disturbed unless an abuse of discretion clearly appears.\[90\] But where a legal and

a defendant for refusal to answer certain

judgment. Rogers v. Superlor Court of San

questions is reviewable on certiorari on the

Francisco, 145 Cal. 88, 78 P. 344.

question whether the questions were legal

84. Ex parte Latham \[Tex. Cr. App.\] 82

and pertinent. Id. Under SS 4154, 4466,

85. Mahoney v. State, 33 Ind. App. 655,

01. Iowa Code, the supreme court on certiorari may review the facts in contempt

72 N. E. 151.

proceeding. Wells v. District Court of Polk

86. Where the record in a contempt pro-

County \[Iowa\] 102 N. W. 106. A writ of

ceeding does not affirmatively show that

mandamus or certiorari will not be granted

the accused was present, or that he was

to review a motion to quash contempt pro-

not present, the presumption that he was

ceeding prior to the final determination

present will be induised on appeal. Ma-

thereof. Toepel v. Donovan \[Mich.\] 102 N.

honey v. State, 33 Ind. App. 655, 72 N. E.

W. 369. The sufficiency of the amdavit

151.

which was the basis of a proceeding to

punish a party for contempt may be re-

421.

vlewed on certiorari. Hutton v. Superior

C. L. 1.

\*\*SS.\*\*The circuit court cannot review by

mandamus the action of a committing mas-

istrate in refusing to punish a witness for

contempt. Farnham v. Colman \[S. D.\] 103

N. W. 161.

\*\*SS.\*\*A party committed to fail for contempt by a court without jurisdiction, there

being no legal authority for his commitment, is entitled to be discharged on a writ

v. Henserlang \[Tex. Civ. App.\] 86 S. W.

of habeas corpus. Elliott v. United States,

948. Abuse of discretion must affirmatively

38 App. D. C. 456. Habees corpus to

preure discharge of one committed for contempt of court is a collateral attack upon

(Cp. C. A.) 138 F. 333; Colorado Trading &

Transter Co. v. Oliver \[Colo. App.\] 78 P.

308; Richardson v. Ruddy \[Idaho\] 77 P. 972;

Crouch v. Dakota, W. & M. R. Co. Is. D.\]

tompt by a court without jurisdiction, there

being no legal authority for his commitment

101 N. W. 722. Especially where applica-

ment, is entitled to be discharged on a writ

v. Henserlang \[Tex. Civ. App.\] 86 S. W.

of habeas corpus. Elliott v. United States,

948. Abuse of discretion must affirmatively

appear to warrant interference with ruling.

Banker Min. & Mill. Co. v. Allen \[Colo.

tempt of court is a collateral attack upon

Appl.\] 78 P. 1070. There must have been a

the judgment of commitment and cannot

place of the applicent, clearly and affrma-

void. Errors, if any, committed by the

tively shown on the record, to warrant

recourt in contempt proceeding, can be re-

versal for refusal of continuance. Reynolds

viewed and corrected only on appeal. Perry

v. Pernet \[Ind.\] 74 N. E. 609.

thuance raises a question of fact for the

(Prial term. Hutchinson v. Manchester St.

R. Co. \[N. H.\] 60 A. 1011. Permission to

withdraw announcement of ready and ver-

try a ple is discretionary, and refusal is

not reviewable unless

### 660 Continuance and Postponement $ 2a. 5 Cur. Law.

valid excuse for a postponement exists, a party cannot be deprived of his right." Terms to be imposed on granting a continuance are also largely discretionary.\[92\] If a motion for continuance be overruled for insufficiency, the court may require an election to proceed to trial or consent to a reference, and a consent to a reference so given cannot be said to have been given under duress.\[83\] A stipulation by attorneys for adjournment of the cause to a certain day will be enforced by the court "" according to the reasonable construction of their agreement.\[95\]

The Wisconsin statute relative to loss of jurisdiction by justice courts by adjournment without sufficient cause does not apply to courts of record.\[96\]

SS 2. \_Grounds for continuance or postponement. A. In general.\[97\]--A continuance will not be granted unless it is made to appear that the moving party will be prejudiced by a denial of his motion.\[98\] Due diligence by the movant or his attorney in preparation of the case,\[99\] and in procuring the attendance of witnesses or counsel,\[1\] must also be made to appear. Distance of subject-matter from the place of trial is only one element to be considered in allowing time to prepare for trial, and is never alone conclusive.\[2\] Where plaintiff does not apply for a continuance, and does not show why he cannot at once proceed to trial, there is no error in overruling an objection to immediately proceeding.\[9\] Where a second motion for continuance is made on the same ground as the first and it is not claimed that any change of circumstances has occurred since the first was made, the denial of the first may be treated as an adjudication of the question and the second denied on that ground.\[96\] After a cause has been submitted and a final decree rendered in equity, a continuance will not be granted the defeated party merely to allow him to make further proof.\[95\] Submission of a cause in equity for hearing without a request for a continuance is a waiver of the right thereto.\[96\] A civil case for violation of a liquor law

cretion. Knapp v. Order of Pendo, 36 Wash. 601, 79 P. 299. Refusal of continuance on ground that transcript filed was irregular was proper, where court offered to continue if affAlavit setting up surprise was filed, and counsel stood upon his motion, without presenting such affAlavit. Estate of Shields v. Michener, 113 Ill. App. 18. 91. As engagement of attorney in other court, under New York court rules. Robinson V. De Fere, 94 N. Y. B. 847. 92. No error shown in not taxing withens fees to plaintiff on granting continuance to defend after amendments to complaint. Atchison, Topeka & Santa Fe R. Co. v. Jones, 110 Ill. App. 626. 93. Copper River Min. Co. v. McClellan \[C. C. A.\] 138 F. 333. 94. Case dismissed on nonappearance of parties on day set but reset for day agreed on, since court did not lose jurisdiction by first dismissal. Johnson v. Monahan, 94 N. Y. B. 351. 95. Defendant's offer to submit to adjournment and to admit supplemental proof, after he had amended his answer, if plaintiff was surprised, held to render denial of adjournment, requested by plaintiff. improper. Hennion v. Harris Co., 94 N. Y. B. 425. 96. Rev. St. 1898, 85 3630, 3631, does not apply to Rock county municipal court, which, under Laws 1881, c. 197, is a court of record. Snyder v. Malone \[Wis.\] 102 N. W. 354. 97. See 3 C. L. 801. 98. Thus a defendant asking for con 5 Cur. Law. CONTINUANCE AND POSTPONEMENT SS 2U. 661 will not be postponed until a criminal case based on the same violation has been disposed of.\[7\]

(SS 2) B. Absence or disability of party or counsel.\[8\]--Absence of a necessary ${}^{\\circ}$ party is ground for a continuance.\[10\] Where several continuances have already been granted on account of illness of a party, it is not an abuse of discretion to deny a motion for a further continuance,\[11\] especially where at preceding term the court has announced that the case will not be again continued, and that interrogatories should be sued out if the party's testimony be desired.\[12\] While absence of counsel does not entitle a party to a continuance as a matter of absolute right,\[13\] it will usually be granted on that ground,\[14\] as where it appears that counsel is ill or engaged before another court,\[16\] unless it also appears that the movant is represented by other competent counsel and will not be prejudiced by a denial,\[16\] or that movant had not been duly diligent in procuring other counsel.\[17\]

(SS 2) C. Absence of witness or inability to procure evidence.\[18\]--Absence of a material witness for sufficient cause is ground for continuance.\[19\] But it must be made to appear that the expected evidence is competent \[20\] and material,\[21\] that

7. Cowdery v. State \[Kan.\] 80 P. 953. 8. See 3 C. L. 802. 9. It is not error, in an action by one legate against the others to get aside a false report of fraud, to refuse a continuance of leading counsel is insufficient which does had died during the pendency of the accident and that no administrators had been competent counsel. City of Elgin v. Nofs, 113 Ill. 20, 72 N. 43. An afflavit

1. Cowdery v. State \[Kan.\] 80 P. 953. 8. See 3 C. L. 802. 101 N W. 722. Denial proper, where it did not appear that remaining counsel could not legate against the others to get aside a false report of fraud, to refuse a continuance of leading counsel is insufficient which does had died during the pendency of the accident and that no administrators had been competent counsel. City of Elgin v. Nofs, 113 Ill. 613. 101 N W. 722. 17. After two continuances had been granted for illness of an attorney, and party had been notified to procure other counsel, and case had been long pending and kept an estate tied up, refusal of third continuance on same ground held proper. In re Bollinger's Estate, 145 Cal. 751, 79 P. 427. 17. 17.

there are not other witnesses by whom the facts can be as well proved,\[22\] that it is not merely cumulative,\[23\] that due diligence has been exercised to obtain the presence of the desired witness,\[24\] and that it is reasonably certain that the witness will be present, competent to testify, when the case is again called.\[25\] Where continuance for a stated time is asked, it must appear that attendance of the witnesses cannot be sooner procured.\[26\] Due diligence of the movant must also appear to warrant a continuance for the taking of a deposition,\[27\] or for non-return of interrogatories.\[28\] In Iowa a continuance should be granted to take depositions, a party having elected to take testimony in that form.\[29\]

\_Admission of testimony to avoid continuance.\[30\]--\_Where the adverse party consents that the affidavit for continuance may be read as the deposition of the absent witness, a continuance is properly denied.\[31\] The testimony of witnesses as contained in the affidavit should be accorded the same credit as would be given the oral testimony of such witnesses if personally present and testifying.\[32\] Where two defendants are hostile to each other, a continuance should not be denied on the motion of one, on account of the admission by plaintiff of facts to which an absent witness would testify, unless the other defendant also consents to the admission of such facts as testimony.\[33\]

(SS 2) \_D. Surprise.\[34\]--\_A continuance should be granted where an amendment to a pleading presents a new issue,\[35\] or where evidence is allowed to be intro-

making affidavit of materiality of testimony of testimony of absent witness, on ground that he had announced "ready" and adjournment would be refused. Heid, party prejudated, and new trial granted. Schwarzschild & Sulberger Co. v. New York City R. Co., 90 N. Y. S. 874. 22. Conlan v. Murry, 92 N. Y. S. 85. 23. Where testimony of absent witness would not have affected result, since covered by other witnesses, refusal of continuance to procure his testimony is not ground for reversal of judgment. Houston, etc., R. Co. v. Ollis \[Tex. Civ. App.\] 83 S. W. 850. 24. Where subpoena was issued twelve days before trial, and was not served, and witness was not paid or tendered his fees, continuance to procure his presence denied. Hicks v. Porter \[Tex. Civ. App.\] 85 S. W. 437. Motion denied for want of diligence where it appeared that physician had ordered witness to leave county for his health ten days before, but it did not appear that the attorney did not then know of such fact, or that his deposition could not be procured, or that the witness was unable to be present. Banker Min. & Mill Co. v. Allen \[Colo. App.\] 78 P. 1070. 25. Where it appeared that insane person would not recover for months, and perhaps never, denial of postpement for his testimony proper. In re Burnbank's Ekstate, 34 Civ. Proc. R. 247, 93 N. Y. S. 866. Where two continuances had been granted to allow a party to procure a witness, and the sheriff, with bench warrant, could not find him, and it appeared to be doubtful if he could testify if obtained, owing to his mental condition, refusal of third continuance proper. Leghorn v. Nydell \[Wash.\] 80 P. 833. 26. Conlan v. Murry, 92 N. Y. S. 58. 27. When party was not diligent in re-taking deposition, and did not show what additional testimony was expected in case duced of facts not pleaded and of which the adverse party had no notice.\[46\] But the claim of surprise is untenable where the amendment merely conforms the pleadings to proof already in,\[87\] or merely amplifies and renders more specific matters already pleaded,\[88\] or where the proof, though constituting a variance from the complaint, conforms to the claim alleged and proved by defendant.\[30\] Failure of the adverse party to file a copy of an account is not ground for continuance where it does not appear that the moving party cannot prepare, and where he does not object to the evidence offered.\[40\] Unauthorized entries by the clerk, leading a defendant to believe a case had been discontinued, do not entitle him to a continuance at the ensuing term when the court subsequently struck out such entries and the case was regularly placed on the calendar.\[41\] An opposing party should not be forced to trial on the day a supplemental pleading is filed.\[42\] A demand for a bill of particulars is not alone equivalent to a request for a continuance.\[43\] A continuance will not ordinarily be granted on the ground of surprise following a ruling on a motion for a nonsuit.\[44\]

SS 3. _Sufficiency of affidavits or moving papers.\[45\]_--In deciding upon the sufficiency of an affidavit for continuance, no presumption favorable to the appellant will be indulged.\[46\] It is commonly required that the affidavit should allege that the application is not made for the purpose of delay,\[47\] and that the movant has been duly diligent,\[48\] and, if application is by the defendant, it must show that he has a meritorious defense.\[49\] The affidavit for continuance to procure attendance of absent witnesses should show what testimony was expected of the absent witness,\[50\] and should state that the expected testimony is true or that applicant believes it to be

\\begin{tabular}{l|l} jury action held to introduce new element, & ant of surprise untenable. Nieberg v. Green- not in previous actions, and to warrant & berg. 91 N. Y. S. 83. \\ postpement. Denial ground for new & 40. Banker Min. & Mill Co. v. Murnan \\ trial. McDonald V. Holbrook, Cabot & Daly \[Colo. App.\] 78 P. 1071. \\ Contracting Co., 93 N. Y. S. 920. & 41. Fisher v. Wheeling Roofing & Cor- nice Co. \[W. Va.\] 49 S. E. 1016. \\
36\. Request to withdraw juror should & 42. Plaintiff, on objection, should be allowed time after filling of supplemental an- notice was given. Brown v. Manhattan R. & swer. Sparks v. Green \[S. C.\] 48 S. E. 61. \\ Co., 82 App. Div. 22, 81 N. Y. S. 755. & 43. Especially where defendants did not ask for adjuument and had it specially entered on minutes that they did not. New York Lumber & Storage Co. v. Noone, 92 N. Y. S. 349. \\ \\end{tabular}

37. Claim of surprise untenable where counterclaim was amended so as to conform & 44. Parties are bound to be prepared for such ruling, especially when it is in accordance with law. Vulcan Ironworks v. Burrell Const. Co. \[Wash.\] 81 P. 836. \\
01. See 3 C. L. 805. & 46. Reynolds v. Smith \[Fla.\] 38 So. 903. \\
01. As in Georgia. Macon & B. R. Co. v. Anderson, 121 Ga. 66, 49 S. E. 791. \\
01. Application must state that due diligence has been used to procure testimony of absent witnesses. Rev. St. 1895, art. 1277. \\ Pacific Exp. Co. v. Needham \[Tex. Civ. App.\] 83 S. W. 22. & 83 S. W. 22. \\
01. City of Elgin v. Nofs, 113 Ill. App. \\
01. Denial of continuance for absence of counsel proper where defendant did not make such showing. City of Elgin v. Nofs, 213 Ill. 20, 72 N. E. 43. \\
01. Copper River Min. Co., v. McClellan \\
    \[C. C. A.\] 138 F. 833. Affoavit for continuance in bastardy case, setting out that absent witness would testify that he saw a man other than defendant having intervene with prosecurts at or about the time of conception, held sufficient without stating the name of the man so seen. State v. Gordy \[Del. Gen. Sens.\] 60 A. 977. \\ \\end{tabular}

true.\[51\] If the moving party does not personally know to what the absent witness will testify, he must present the affidavit of his informant upon that fact.\[52\] The affidavit for continuance because of the absence of a party to the cause should disclose fully the precise facts of the substance of the testimony expected to the proven by such party,\[53\] and that such facts cannot be sufficiently proven by other witnesses.\[54\] Where it appears that the absent witness is the only disinterested person by whom a material fact can be proved, the motion for continuance is not defective because of failure to allege that such material fact cannot be proved by any one else.\[55\] The verification of the application must comply with legal requirements.\[56\] That the motion is for a longer adjournment than the court has power to grant does not prevent a proper adjournment.\[57\]

SS 4. _Appellate procedure.\[58\]--Where an affidavit for a continuance is read in evidence as the deposition of an absent witness, the continuance being denied, on appeal, the same effect will be given statements in such affidavits as though contained in depositions.\[59\]_

Contract LABOR LAW, see latest topical index.

CONTRACTS.

81NatmreandFormalRequisites(685).

A.DefintionandKindsofContracts;

Parties(665).

B.OfferandAcceptance(670).

C.RealityofConsent(675).

A.GeneralRules(714).

B.AcceptanceandWalver(715).

A.GeneralPrinciples(684).

B.Subject-matterorConsideration(684).

C.Mutuality(686).

D.PublicPolicyinGeneral(688).

E.LimitationsofLiability(690).

F.RelatingtoMarriageorDivore(690).

G.ContractsTendingtoPromoteImmorality(691).

H.LitigiousAgreements(691).

I.CompoundingOffenses(691).

J.InterferringWithPublicService(692).

K.RestraintofTrade(693).

L.EffectofInvalidity(695).

84Interpretation(698).

A.GeneralRules(698).

B.WhatisPartofContract(709).

C.Character:JointandSeveralEntireorDivisible,etc,(710).

D.CustomandUsage(710).

_Scope of topic._ This article treats only of the general principles applicable to all express contracts. Questions relating to implied contracts,\[60\] building contracts,\[61\] and public contracts, are treated in separate articles.\[62\]

51Amfdavitinsuflectbecausefalling$;$ whichsetsoutthatfactssetforthinmoetstatedthatwhatapplicantexpectstoprovebyabsentwitnessistrueorthathebeltree.St.LouisS.W.hellevensIttobetrue.MetropolitanLifeInS.Co.v.Marovec,116Ill.App.271.

52Macon&B.R.Co.v.Anderson,121Ga.666,49S.E.791.

53,54Reynoldsv.Smith(Fla.)288So.903.

555Macon&B.R.Co.v.Anderson,121Ga.666,49S.E.791.

56,Verificationbyattorneyinsufficient(711).

E.AstoPlace,TimeandCompensation(711).

F.WhatLawGoverns(713).

S.MedificationandMerger(713).

S.DischargebyPerformanceorBreach(714).

A.GeneralRules(714).

B.AcceptanceandWalver(715).

C.ExcusesforBreach(718).

D.SufficiencyofPerformance(720).

E.RightsAfterDefault(722).

F.DamagnesforBreach(722).

S.ReselensandAbandAbandonment(722).

A.ByAgreementorUnderSpecialProvisionsoftheContract(732).

B.OccasionandRighttoReselendorAbandonWithoutConsent(724).

C.TimeandModeofRecissionorAbandonment(726).

D.Remedies(727).

S.H.Remedies(727).

S.H.RemediesforBreach(727).

A.TheRightandItsAccural(727).

B.ParticularRemediesandElectionBetweenThem(731).

C.DefensesandCounterRights(735).

D.ProcedureBeforeTrial(735).

E.Parties,Pleading,Evidence,etc.(735).

F.ProcedureatTrialVerdictandJudgment(748).

_Scope of topic._ This article treats only of the general principles applicable to all express contracts. Questions relating to implied contracts,\[60\] building contracts,\[61\] and public contracts, are treated in separate articles.\[62\]

51Amfdavitinsuflectbecausefalling$;$ whichsetsoutthatfactssetforthinmoetatedthatwhatapplicantexpectstoprovebyabsentwitnessistrueorthathebeltree.St.LouisS.W.hellevensIttobetrue.MetropolitanLifeInS.Co.v.Marovec,116Ill.App.271.

52Macon&B.R.Co 5 Cur. Law. CONTRacts $ 1A. 665

**SS 1.**_Nature and formal requisites. A. Definition and kinds of contracts; parties.${}^{\\text{\\text{\\tiny{63}}}}$--A_ contract is an agreement by which at least one of the concurring parties acquires a right to an act or a forbearance upon the part of the other or others.${}^{\\text{\\tiny{64}}}$ Anything not forbidden by law may legally become the subject or the motive of a contract.${}^{\\text{\\tiny{65}}}$ The right is limited by the consideration that the contract must be an honest and legal one, and the right of the other party to expect such a contract must not be impaired.${}^{\\text{\\tiny{66}}}$

Contracts are either executed or executory. An executed contract is one in which all the parties thereto have performed all the obligations which they have originally assumed, and an executory contract one in which something remains to be done by one or more of the parties.${}^{\\text{\\tiny{67}}}$

Contracts are also either written or oral. It has been held that they will be presumed to have been oral in the absence of a showing to the contrary; ${}^{\\text{\\tiny{68}}}$ but the general rule is that if writing is essential to the validity of a contract, it will be presumed.${}^{\\text{\\tiny{68}}}$ A written contract is not legal evidence of an oral one.${}^{\\text{\\tiny{70}}}$ It is not necessary in order to make a written contract that the terms thereof be reduced to writing in a formal way on one piece of paper, but it is sufficient if a written offer by or on behalf of one party is accepted by or on behalf of the other, and the language

**63. See 3 C. L. 806. 64.**

**64.** Hammon on Contracts, p. 6. Bought and sold notes made by broker negotiating a sale of tomatoes, and sent to buyer and seller respectively, do not constitute contract of sale, but are mere memoranda which may be received as evidence of its terms, in the absence of any entry on the sales book of the broker; but if there is any material variance between such bought and sold notes, they are nullities and the contract is not proved thereby. Eau Claire Canning Co. v. Western Brockerage Co., 115 III. App. 71. 64. An instrument admitting an indebtedness, providing for its payment on the happening of certain contingencies, and stating the manner of payment, is a contract, whether based on transactions had between the parties at its date, or the result of an agreement relating to past transactions. Noyes v. Young \[Mont.\] 79 P. 1063. In the latter case it is an account stated, and as such a contract on which an action may be based. Id. See, also, Accounts Stated and Open Accounts, 5 C. L. 25. 64.\*\*

**Grants of land covered by navigable water held contracts, the obligations of which could not be impaired by the state. Trustees of Town of Brookhaven v. Smith, 89 App. Div. 212, 90 N. Y. S. 646.**

**65.**

**which** **reciting** that\*\* **license tax was paid under protest held at a promise on his part to hold the money until the controversy as to liability was settled. Teter v. Wallace, 138 N. C. 264, 50 S. E. 761. 65.**

**65.**

**66.**

**La. Code, art. 1764. Oll lease held not absolute nullity on its face. Houssiere Latterille Oll Co. v. Jennings-Heywood Oil Syndicate \[La.\] 38 Sc. 932. 66.**

**66.**

\*\*Acts 1903, p. 110, regulating business of persons making contracts to be redeemed in order of their issue by accumulation of funds arising from contributions of those holding contracts. held valid. State v. Preferred Tontine Merchantile Co., 184 Mo. 160, 82 S. W. 1075. Good faith, boma flides, is an element of every contract, though not ex
666

CONTRACTS $ 1A. 5 Cur. Law.

used shows a meeting of the minds on some particular subject-matter.\[11\] The execution of one copy of a contract renders it effective and binding, even though a duplicate is afterwards executed.\[12\] If the original contract signed by defendant has not been changed, the fact that a purported duplicate offered in evidence is not the same as the original does not change or affect his liability.\[73\] A written contract need not necessarily be signed by both of the parties thereto.\[74\] An agreement to contract is, of course, not a final contract because something is left open.\[75\] Thus where the parties make the reduction of the contract to writing and its signature by them a condition precedent to its completion, it will not be a contract until it is reduced to writing and signed.\[76\] But where they assent to all of its terms, the mere reference to a future contract in writing will not negative the existence of a present and completed one.\[77\]

A quasi contract exists independently of the intention of the parties, and is founded upon the doctrine of unjust enrichment.\[78\] Its origin may be in the partial performance of a contract, as where a partial performance has resulted in benefit to the other party.\[79\] An express contract excludes an implied one covering the same subject.\[80\]

71. Report of creditors' committee ad-

defendants to furnish lease to plaintiff with vising compromise and agreement by cred-

option to purchase, and plaintiff refused to itor to accept compromise held to constit-

accept lease because of certain litigation

tute written contract. Corbett v. Joannes

to which defendants were not parties and \[Vhis.\] 104 N. W. 69. Evidence held to

for which they were not responsible, plain-

show contract made by correspondence for

iff could not maintain action for specific employment of plaintiff at a reasonable

performance or damages on such option. compensation to be fixed in future. Walker

Livesley v. Mackie \[Or.\] 80 P. 901.

Mfg. Co. v. Knox \[C. C. A.\] 136 F. 534. See,

76. Featherstone Foundry & Mach. Co.

also, post $ 1, B.

77. Rule that written contract cannot be

modified or altered by proof of what was

written draft of proposed contract of em-

said by the parties before or during the

playment, and told employee to go to work

making of it does not prevent proof of an

and it would be fixed up later, held, that

oral waiver of a provision made after the

there was a completed contract though

execution of one copy of the contract but

written contract was never signed, and

before the execution of a duplicate. More-

involve could recover compensation

house v. Terrill, 111 Ill. App. 460. Each

copy of a contract executed in duplicate is

store Foundry & Mach. Co. v. Criswell

primary evidence, and one party, by provoking that his copy is lost, has no right to

contract signed by one party and acted on

prove its contents by parol, where he has

taken no steps to cause the other party to

able so as to render such contract written

produce the duplicate copy in his posses-

instead of oral. Id. Defendant held

sion. Norris v. Billingsley \[Fla.\] 37 So.

topped by its conduct to contend that the

564.

execution of formal written contract for

73. Standard Mfg. Co. v. Hudson \[Mo.

of was condition precedent to plaintiff's

Appl. 88 S. W. 137.

right to recover for failure to furnish oil.

74. A contract for the sale of land need

vickeshurg Waterworks Co. v. Guffy Pe-

not be signed by the purchaser. Hyden v.

troeum Co. \[Miss.\] 38 S. W. 128.

Perkins, 26 Ky. L. R. 1098, S S. W. 128.

by defendant to enter into written contract

The fact that the vendee in a contract to

with plaintiff and others to furnish them

purchase land has not signed it does not

such quantities of fuel oil as they might

render it any the less binding on him

require during one year at a specified price,

where he has paid a portion of the purchase

held to be itself a binding and enforceable

price and gone into possession. Cannot by

contact, though it did not state the amount

actual fraud made possible by reason of

of oil to be delivered to each party. Id.

possession thus obtained, obtain title and

In suit on contract to employ plaintiff as

hold it adversely to vendor. Butterfield v.

attorney to recover claims against the gov-

Nogales Copper Co. \[Ariz.\] 80 P. 345.

current, held that defendant waived re-

Though the grantee in a deced containing

quigment that contract be reduced to writing. Carlisse v. Barnes, 102 App. Div. 573,

if he accepts the Instrument and places it

92 N. Y. S. 917.

on record with knowledge of its contents,

78. Dame v. Woods \[N. H.\] 60 A. 744.

he is bound thereby as effectually as

And see Implied Contracts, 3 C. L. 1690.

though he had done so. For a full discussion of the doctrine and the rights and lia-

not detriment incurred by plaintiff is basis

bilities of the parties thereunder, see

107. Charles v. Barnes, 102 App. Div. 573.

001. Carlisse v. Barnes, 102 App. Div. 573.

001. Applies to building contracts where 5 Cur. Law. CONTRracts SS 1A.

An alternative contract is one whereby a person promises to do one of several things specified. \[81\]

Parties. \[82\]--A person may become a party to a contract by entering into it himself, either directly \[83\] or through his duly authorized agent, \[84\] or by accepting a stipulation made in his favor by the contracting parties, \[85\] or by adopting as his own a contract entered into by third persons. \[86\] It has been held that one not a party to an offer may, by accepting it, become a joint contractor, \[87\] and of course if the offer is to the public generally, whosoever shall accept becomes a party. \[88\] One contracting on behalf of himself and another is estopped to deny the rights of the latter, though he made the contract in his own name alone. \[89\]

Everyone has the right to determine with whom he will contract and cannot have another person thrust upon him without his consent. \[86\] As a general rule only parties to the contract are bound thereby, \[91\] and they alone can enforce it; \[82\] but if

Burke v. Coyne \[Mass.\] 74 N. E. 942. An express contract as to the price to be paid by railroad company purchasing another for services controls, and where it exists time, of contract whereby latter agreed to maintain its offices and shops in certain what they are reasonably worth. O'Connell V. King \[LR. LJ 89 A. 926. For a full discussion of this subject, see Implied Contracts, 3 C. L. 1690.

**81.** Hammon on Contracts, p. 886. Bond whereby obligors agree to erect buildings or, on default, to pay a certain sum of money, while not technically an alternative contract, partakes of that nature. McCullough v. Moore, 111 Ill. App. 545.

**82.** See 3 C. L. 847.

**83.** Allen & C. Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980.

**84.** See Agency, 5 C. L. 84. City does not enter into contract for supplying water for fire department as agent of inhabitants so as to give them right of action for its breach. Allen & C. Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980.

**85.** He remaining a stranger until he becomes a party by accepting it. Allen & C. Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980. These two methods are necessarily exclusive of each other. Id. A stipulation pour autroit on which the beneficiary may sue may result by implication. Id.

**86.** Instead of reducing their agreement to writing the parties may, by reference or otherwise, adopt the terms of an existing contract between others. Contract of railroad company to build spur track. Butler v. Titton, T. & G. R. Co., 121 Ga. 817, 49 S. E. 768. In an action on an agreement between plaintiff and defendant made on the terms of a contract between defendant and a third person, held not necessary for O. plaintiff to show an assignment of the contract to him. American Electrical Works v. New England Elice. R. Const. Co., 186 Mass. 546, 72 N. E. 64. Is bound thereby in the same manner as though he had originally made it himself. Where contract canecelling previous one for sale of land rejected sales of timber by vendee to various parties and provided that latter might remove it within certain time, held, that vendor thereby adopted such contracts of sale. Watson v. Gross \[Mo. App.\] 87 S. W. 104. One purchasing the subject of a written contract and undertaking its performance defendant has also been guilty of a breach of duty to a third person as well as a breach of contract, he cannot escape liability to such third person by setting up such contract.92

The term priority denotes mutual or successive relationship to the same rights of property.94 Privity has been called "a mode of becoming a party."95

There is a conflict of authority as to the right of a third person to enforce a contract made for his benefit, to which he is not a party, though as a general rule

twine was not mentioned, held error to between plaintiff's father and deceased, render judgment for twine, where evidence, through showing contract by defendant with third person in regard to it, failed to show that plaintiffs had been substituted by ink against the parties in interest. Curtin V. Ingle, 143 Cal. 354, 77 P. 74. Tenant's wife not bound to care for landlords's room under tenant's agreement to do so, but if her services are, with her consent, rendered by way of performance thereof, his liability is thereby extinguished. Kennedy v. Swisher

\[Ind. App.\] 73 N. E. 724. A stipulation in a contract between the relief department of a railroad company and an employee that the bringing of a suit against the company by his representative or beneficiary of the payment by 'he company of any damages' recovered against it by reason of his death or injury shall release the department from all claims by reason of the employ's memership, is not void as attempting to bind persons not parties to it. Rights of beneficiary are fixed by contract. Baltimore & O. R. Co. v. Kay \[Ind. App.\] 73 N. E. 942. A contract signed by two persons as sureties for one about to enter an old men's home, but not by the latter, in which they covenant that he has no property and that he will convey any which he may acquire to the institution, is not the contract of the intimate and he cannot be held liable by virtue thereof. Baltimore Humane Imperial Soc. v. Pierce \[Md.\] 60 A. 277. Where plaintiff claimed proceeds of certain cattle deposited in bank to credit of R., agreement between plaintiff's agent and man-ager of company by which cattle were sold and impaired deposited that plaintiff should have time to investigate and bring suit to which neither the bank or R. were parties, was not binding on them. Turning's FlatCom. Co. v. Gerlach Bank, 107 Mo. 426, 81 S. W. 508. Where purchasers of land took with notice of a prior sale of timber thereon, a promise by their grantor to secure or release of the timber contract was unavailing as against those claiming under it. Broglack v. Morsbach \[Wash.\] 80 P. 275. Where a contract is under seal, no one can sure or be used to enforce the covenants therein contained, except those who are named as parties to the instrument, and who signed for deceased until he became of age in reply or agent, must be made in the name of the principal. Spencer v. Huntington, 100 Ap. Div. 463, 34 Civ. Proc. R. 30, 91 N. X. S. 561. This is true though a seal is not essential to the validity of the contract. Persons not parties to contract under seal for purchase of stocks, alleged to have been made for their benefit, held not liable thereon. Id.

\[command=

\] 92. A mere stranger to a contract cannot maintain an action thereon. Contract be is permitted to do so.96 The question whether a contract has been made for the

96. See Hammon on Contracts, p. 711, et

the contract when it was made. Stewart

seq., for full discussion of this question,

v. Rogers \[Kan.\] 80 P. 58.

with collection of authorities. See, also,

Am. & Eng. Eng. Law \[2nd Ed.\] 104, et seq.

testing provision in his favor which he has

Georgia: Railroad company, though not

sempty to agreement whereby its promoters

serged to render services in furthering the

980.

enterprise without compensation, held entitled, as matter of defense, to negative

may use on a bond given by a contractor

any implied promise to pay for such servICES by showing that they were rendered

for its benefit in pursuance thereof. Pow-

all v. Georgia, etc., R. Co., 121 Ga. 803, 49

so. E. T69.

In Minnesota he may do so. Thus if part of

the consideration for a conveyance is the

assumption by the grantee of a mortgage

of assignment it shall inure to benefit of

on the premises, the mortgagee may enforce

the agreement in an action at law for his

went a materialman who is the only cred-

benefit. Merriman v. Schmitt, 211 Ill. 263,

71 N. E. 986.

In Indiana may do so, though he was not

privy to it, and no consideration passed

from him to the party bound. Agreement

to place telephone in plaintiff's house in

considered of release of right of way by

other persons held mutual. Foster v. Lein-

to show sufficient privvy of contract be

inger \[Ind. App.\] 72 N. E. 164. Third person need not allege an acceptance thereof,

since an acceptance is implied from bring-

after for damages resulting from failure of

ing suit upon it. Id.

In Iowa, where one, for a sufficient

consideration agrees to assume and pay the

defendant knew that abstract was to be

debt of another, the creditor is impliedly

included as within the privity o the prom-

and that it would rely thereon. Western

ise and may use the promslory by direct

Loan & Sav. Co. V. Silver Bow Abstract Co.

tion. Malamany v. Fuller & J. Mg. Co.

\[Iowa\] 101 N. W. 640. In such case the

rights of the creditor are to be measured by the terms of the agreement, and he

takes subject to all the equities existing

between the principal parties thereto.

Where on sale of firm's business, purchaser

assumed a debt of the firm as part of con-

sideration therefor, and as between them

the seller assumed the obligation of surey

the creditor was bound to

observes such relation and release of one of

purchasing firm released seller. Acceptance by creditor note signed by both

forms did not change rule. Id. One who

on a sufficient consideration, agrees with

another to pay the future balance of the latter's open account to a third person,

is liable to pay balance found due on inves-

tigation of its accuracy. Rule not changed

because claim is on an account stated.

Runkle v. Kettering \[Iowa\] 102 N. W. 142.

In such case the defense of want of con-

sideration is as available to defendant as

though the suit had been brought by the

other party to the contract. Id.

In Kansas third parties not privy to the

contract or to the consideration thereof

may use thereon to enforce any stipulation

made for their expesial benefit or interest.

A contract by one of the creditors of a

decedent to pay all of the debts of the estate

in consideration of the other acknowledging payment of a judgment against the estate, and of the heirs conveying certain

tracts of land to them, may be enforced by the administration after the heirs have ratified it by making the required conveyances,

though neither he nor the heirs knew of

the contract when it was made. Stewart

v. Rogers \[Kan.\] 80 P. 58.

In Louisiana may sue on contract con-

taining provision in his favor which he has

accepted. Allen & C. Mfg. Co. v. Shreve-

port Waterworks Co., 113 La. 1091, 37 So.

980.

In Missouri laborers and materialmen

may sue on a bond given by a contractor

for a public improvement, conditioned on

less by showing that they were rendered

as a contract made for their benefit. Buff

all v. Georgia, etc., R. Co., 121 Ga. 803, 49

falo Forge Co. v. Cullen & S. Mfg. Co., 105

M. App. 484, 79 S. W. 1024. Provision

thorizing assignment of bond to laborers

and materialmen and providing that in case

of assignment it shall inure to benefit of

all laborers and materialmen does not pre-

the agreement in an action at law for his

vent a materialman who is the only cred-

benefit. Merriman v. Schmitt, 211 Ill. 263,

itor of the contractor from suing on it

without an assignment as a contract for

this benefit. Id.

Dr Montana a contract made expressly

from him to the party bound. Agreement

for the benefit of a third person may be

enforced by him at any time before the

considered by him at any time before the

parties thereto rescid it. Evidence held

other persons held mutual. Foster v. Lein-

to show sufficient benefit of a third person so as to entitle him to sue thereon is one of intention.97 There is a strong presumption, however, that the contract was made solely for the benefit of the parties thereto.98

One with whom or in whose name a contract for the benefit of another is made may sue thereon in his own name as the trustee of an express trust.99

A party signing a contract in his own name as an individual may properly sue thereon to compel payment for the work done, notwithstanding a private understanding between himself and a third person whereby the latter becomes a partner in the enterprise.1

Footnote 99: The contract is not a part of the contract, but it is not a part of the contract.

\_Execution.--\_To prove the execution of a chattel mortgage, where one of the subscribing witnesses is absent from the country, it is only necessary to call the other witness, and in case his recollection is at fault, the facts in regard to the execution may be proved by the mortgagor.2

Footnote 99: The contract is not a part of the contract, but it is not a part of the contract.

\_Delivery.--\_The necessity for the delivery of the contract generally arises in connection with deeds 3 or promissory notes, and questions relating thereto are therefore treated in connection with those subjects.4

Footnote 99: The contract is not a part of the contract, but it is not a part of the contract.

(SS 1) B. Offer and acceptance.5--\_Since no contract is complete without the mutual assent of the parties,6 their minds must meet as to all its essential terms.7

Footnote 99: The contract is not a part of the contract, but it is not a part of the contract.

- 5 Cur. Law.
- CONTRacts SS 1B.

Travelers' Ins. Co. \[N. D.\] 103 N. W. W. 405. * \[ per hour. Hirsch v. American District Tel. If evidence justifies conclusion that there was a misunderstanding as to whether promise was that defendants should pay or buildling, or that defendants' testator ever that obligation should be that of a corpo-action to be formed, no contract has been proved. Durgin v. Smith, 133 Mich. 331, 10 * \[ N. Y. S. 449. Agreement between plaintiff, Det. Leg. N. 215, 94 N. W. 1044. Mistake in amount of bid, not due to negligence, held to warrant its rescission. Board of School Com'rs of Indianapolis V. Bender \[Ind. App.\] 72 N. E. 154. See Mistake and Accident, 4 C. L. 674. * \[ Evidence held to establish contract: To pay for training, feeding, and shoeling certain mares. Durree v. Seale, 139 Cal. 603, 73 P. 435. To render services in promoting railroad without consideration. Powell v. Georgi, F. & A. R. Co., 121 Ga. 803, 49 S. E. 759. Instructions approved. Id. To pay notes in consideration of an agreement by plaintiff to pay certain others. Headley v. Leavitt \[N. Y. Err. & App.\] 80 A. 963. To indemnify plaintiff against the payment of a certain note as a consideration for plaintiff assignment of a mortrage given to secure it. Lost contract. Smith v. Nelson \[Or.\] 78 P. 740. To advance money to purchase land for plaintiff to take defend in his own name, and to convey to plaintiff on repairment of amount advanced. Lucia v. Adams \[Tex. Civ. App.\] 82 S. W. 335. To prosecute joint adventure in dealing in certain stocks in partnership and to divide profits equally. Van Tine v. Hlands, 131 F. 134. By railroad company for transportation of lead to Japan by stearear leaving on certain day. Northern P. R. Co. v. American Trading Co., 195 U. S. 433, 49 Law. Ed. 269. In action to recover for services under an alleged contract to design and prepare models for statue, instruction that evidence was insufficient to entitle plaintiff to recover held properly refused as ignoring plaintiff's own evidence. Hodges v. Pike \[M.d.\] 59 A. 178. In action on contract whereby defendant employed plaintiff to transport men to his camps, finding that defendant agreed to pay a certain sum for every man shipped to him rather than for every one received sustained on conflicting evidence. Id. v. San Francisco \[Ga.\] 51 S. E. 304. Evidence to establish \[Ga.\] 51 S. E. 304. Evidence in \[\]- special contract required by Iowa Code, $ treat: Authorizing work of installing min-ing machinery to be done on defendants' account. Abner Doble Co. v. McDonald, 145 Cal. 641, 79 P. 369. Evidence in action for specific performance of contract to convey land held to support finding that there was no independent verbal agreement made at the time of the writing redefandant to construct a house on the land. Bird v. Potter, 146 Cal. 286, 79 P. 370. In regard to sale of land and water right. Taicott v. Mastin \[Colo. App.\] 79 P. 978. To complete work under building contract by a specifed date. Bolter v. Kozlowski, 211 III. 79, 71 N. E. 858, 49. 112 III. App. 13. Heid that correspondence did not make previous oral negotiations in regard to forming corporation and employing plaintiff into a contract. Ellis v. Block, 187 Mass. 408, 73 N. E. 475. By messenger company to transport and deliver package of money, but only one to furnish messenger to be used by plaintiff as he sought fit, at fixed rate (see below). * \[ There must in every case be an offer by one party and an acceptance thereof by the other.8 An offer of course imposes no obligation until it is accepted,9 and may be withdrawn at any time before acceptance,10 but not thereafter.11 In order to convert it into a contract, the acceptance must be absolute and unconditional.12 A proposal to accept or an acceptance upon terms varying from those offered is a rejection of the offer, and puts an end to the negotiations, unless the party making the orig Final offer renews it, or assents to the modification suggested." It is a new proposal \[14\] which must, in its turn, be accepted by the party making the original offer.\[15\] The acceptance of an offer as made is not rendered conditional because accompanied by a request for departure from its terms as to time and place of performance.\[16\] A party having once rejected the offer cannot afterwards revive it by tendering an acceptance of it.\[17\]

In the absence of a stipulation to the contrary, an oral acceptance is sufficient.\[18\]

Where the parties have adopted the mail as a means of communication in their negotiations, the mailing of a letter accepting an offer makes a complete and binding contract dating from the moment of the deposit of the letter in the postoffice unless the offer is so qualified as to require a receipt of the letter to constitute an acceptance.\[19\] It is immaterial in such case that the acceptance is delayed or lost and never received by the party making the offer.\[20\] The fact that the parties have previously used the mail as a means of communication in conducting their negotiations,\[21\] or that their situation is such as to make it highly probable that each contemplates its use, justifies its use in accepting an offer.\[22\] Proof that the letter was actually received, accompanied by proof of when it was written renders it unnecess sary to show in detail that it was properly addressed, stamped, and deposited in the postoffice.\[23\]

Where it is expressly stipulated that acceptance must be made within a specified time, acceptance within such time is a condition precedent to the validity of the contract.\[24\] In case no time is fixed, the offer must be accepted within a reasonable time,\[25\] what is a reasonable time depending on the circumstances of each particular case.\[26\] When an offer is made by an agent having authority to sell, it may, if no time for acceptance is designated, be accepted at any time before the expiration of the agents authority.\[27\]

An offer made to a particular person can be accepted by him alone.\[28\] So, too, where the offer requires an acceptance by a particular officer of a corporation, it is not binding until so accepted.\[29\]

Where one of several parties to a contemplated contract, containing mutual covenants which are on each side the consideration for those of the other, refuses to become bound thereby or to perform, it is not binding on the others.\[30\]

_An option_ is a mere continuing offer.\[31\] It cannot, however, be revoked if

23. Campbell v. Beard \[V. Va.\] 50 S. E. 19ge of a rise in the market price and accept

01. Proof by a witness that he wrote a

open some future day. Id.

letter on a certain day, accompanied by

27. Campbell v. Beard \[V. Va.\] 50 S. E.

01.

it was written on the day on which it would

have arrived in due course of the mail, is

sufficient to support a finding that it was

758.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.
001.

5 Cur. Law. **CONTRACTS SS 2.** 675

based on a valuable consideration. \[32\] An election to exercise it converts it into an executory contract, specific performance of which will be enforced. \[33\]

(SS 1) _C. Reality of consent. \[34\]_--Since the mutual assent of the parties is necessary, \[35\] there can be no valid agreement where the contract is the result of mistake or accident, \[36\] ducress, \[37\] misrepresentation, fraud, or undue influence, \[38\] or where one or both of the parties are mentally incapacitated. \[39\]

SS 2. _Consideration. \[40\]_--A legal consideration is essential to the validity of every contract. \[41\]

_At common law_ a contract under seal imports a consideration, \[42\] and in such case lack of consideration is an affirmative defense which must be pleaded and

insurance company and palace car company

in consideration of one dollar and other

\[S. C.\] 50 S. E. 208. Held proper under the renew latter's policies at a specified rate,

\[S. C.\] 50 S. E. 208. Held proper under the held a mere option, though signed by both parties, and not to blind latter to take insur-

\[S. C.

proved by the party desiring to take advantage of it.\[43\] This rule has been modified or abrogated by statute in many states.\[44\] In some states the presumption of a consideration exists in favor of all written contracts.\[45\] There is no call for any further proof in regard to the consideration for a deed which itself reites a consideration.\[44\]

Where a contract of guaranty is entered into concurrently with the principal obligation, a consideration which supports the latter supports the former also.\[47\]

It is not necessary that the consideration move to the promisee,\[48\] but it must be furnished by one having a legal interest in the performance of the promise,\[49\] and at the instance of the promisor.\[50\] Thus where several agree to contribute proportionately, the promise of the others is a sufficient consideration for the promise of each,\[51\] contracts of subscription being the most common illustration.\[52\]

A consideration good as between the parties is good as to all the world.\[53\]

vents the contract from being attacked for

vent of consideration. Phillips v. Ameri-

& P. Co. \[Md.\] 60 A. 251.

can Tel. & Y. Co. \[S. C.\] 51 S. E. 347. Rule

48. Law v. Smith \[N. J. Eq.\] 59 A. 327.

does not apply when the question is as to

Agreement to purchase mortgage on its ma-

the return of the consideration before re-

trity supported by advancement of money

puditing the contract for fraud, and in

to corporation on the strength thereof. Id.

such case it may be shown that no consid-

Extension of credit to principal binds sure-

eration was received and none can be re-

ties on bond. White Sew. Mach. Co. v. turned. Id. Undertaking on appeal. Geim

Fowler \[Nev.\] 78 P. 1034. The consideration

v. Little, 43 Misc. 421, 89 N. Y. S. 488.

for a mortgage need not move to the mort-

43. Geln v. Little, 43 Misc. 421, 89 N. Y.

gagor, and the debt which It is given to

S. 488. Where complaint does not allege

secure may be that of another person. Per-

that contract was under seal, defendant

Ikn s. Trinity Keality Co. \[N. J. Eq.\] 61 A.

need not plead want of consideration In

167. A benefit accruing to the person ac-

order to take advantage of it, but he still

commodated is a sufficient consideration to

has burden of proof. Id.

sustain the liability of the accommodation

44. Hammon on Contracts, $ 272.

maker or indorger of a promissory note.

45. Promissory note. Rohrbacher v. Alt-

Ken, 145 Cal. 485, 78 P. 1054. The presumption of consideration for a note and mortg-

note to principal debtor. Chambers v. McG-

gage arising from their execution and tes-

Lean, 24 Pa. Super. Ct. 567. Caretaker ac-

timony that they were given to secure

companying shipment of cattle held passem-

money borrowed from the estate is not

ger, though consideration for carrying him,

overcome by the fact that they were not

which was included in price paid for ship-

mentioned in the account of the executrix.

It not appearing when she was executrix.

Adm? v. Rutland R. Co. \[Vt.\] 60 A. 143.

Ambrose v. Drew, 139 Cal. 665, 73 P. 543.

**49.** The consideration for a promise for

Release of a mortgage. Court not bound

the benefit of a third person. Promise of

to believe an interested witness to the con-

mother to support illegitimate child and to

trary, if presumption satisfies his mind.

Keeb him in particular place held considera-

Code Civ. Proc. $ 2061, subsubse. 2. Adams v.

tion, if there was any, for agreement by

Hopkins, 144 Cal. 19, 77 P. 712. Note and

matr gage. First Nat. Bank v. Bennett, 215

NII. 398, 74 N. E. 405. No consideration need

be proved as to one placing his name on the

to settle difficulties between her and the

back of a promissory note before it is de-

livered to the maker. Is an original prom-

v. Kramer \[N. Y.\] 74 N. E. 474.

isor maker. Charry v. Sprague, 187 Mass.

50. In order that a forbearance to sue

113, 72 N. E. 456. Civ. Code, $ 2169.

mary constitute a consideration for a prom-

stream acknowledging debt and promising to pay it on happening of certain con-

be given at the instance of the promisor.

timency. Noyse v. Young \[Mont.\] 79 P.

1063.

must be an agreement to forbear, either ex-

held immaterial. Gray v. Freeman \[Tex.

Civ. App.\] 84 S. W. 1105.

**47.** Where guaranty was at foot of prn-

cipal contract and was substantially con-

temperaneous therewith, though dated on

next day. De Reszke v. Duss, 99 App. Div. 35 CONTRacts $ 2. 677

\_What constitutes in general.\_54--Any benefit accruing to one party or any loss, trouble, or disadvantage undergone by, or change imposed upon, the other, is a sufficient consideration to sustain a promise.58 Thus the surrender of an existing

later than contract of employment, where parts were in different states and the two.

s1eration for subscription. Dolherty V. Ar. Kansas & O. R. Co. \[Th. T.\] 82 S. W. 899.

The test is whether the promisee has done, foreborne or undertaken to do anything

606. New agreement to carry out the terms real, or whether he has suffered any detriment, or has done something in return for

Koeper v. Royal Inv. Co., 102 Mo. App. 543, the promise that he was not bound to do, or has promised to do some act, or has ab-

viding for the converse of hand to defend-stained from doing something. Presbyterian Board of Foreign Missions V. Smith, 209

for plaintiff's promise to accept less than Pa. 51, 58 A. 689. Anything by reason of

was under the original agreement for which a party yields to the inducement to

do differently than to otherwise would have

convenance to defendant alone. Tucker v. done. Agreement to buy a piano to be

pald for partly in cash and partly by ad-

insufficient to show such an agreement. Id.

vertising, by self's furnishing advertiser-

Appeal bond which, though insufficient

ing and a walling himself of the resulting

under statute, operated to stay proceedings

benefits. Mail & Times Pub. Co. v. Marks,

125 Iowa, 622, 101 N. W. 458. Consideration

Misc. 421, 89 N. Y. 848. Contact where

for stock sub-superditions and for stock, see

Hellwell "Nic Stock and Stockholders, % 50,

at agreed wages, and plaintiff agreed not

51, 98-102.

Constracts held to be supported by a sum-

by argument without his written consent, SHI-

cient consideration: Paroal agreement reduc-

herman v. Schwarcs, 45 Misc. 352, 90 N. Y.

ing rate of interest on mortgage, by agree-

S. 832. Where plaintiff agreed with a pubment on part of mortgage to pay all taxes.

In re McDougaid's Estate, 146 Cal. 196, 79 P. 875. Where defendant contended that

did not, his rights should revert to him on

paper sold was property of his wife, and

hence agreement not to engage in news-

paper business was without consideration,

but he made all negotiations and nothing

voids in consideration of his permission

was said about her ownership and he signed

bill of sale containing warranty of title,

held that as between the parties, he was

the owner. Andrews v. Kingsbury, 212 Ill.

37, 72 N. E. 11, aff. 112 Ill. App. 518. Even

were purchased under agreement that they

if: property belonged to wife, yet, it defend-

ant was managing it for her as her agent,

inspection, they were rejected as contain-

any agreement made by him to further

the sale and-as a part of the consideration

therefor is binding on him. Id. Where evidence shows that agreement not to engage

cepted them. James V. Libby, 92 N. Y. S.

in newspaper business was left out of bill

of sale of paper by mistake, and that sub-

sionary society, by acceptance of obliga-

sequent agreement was executed to rectify

tion, receipt of payment on account, send-

it, the two will be regarded as parts of the

same transaction and the latter is supported

by the consideration for the sale. Id. Prominent

Board of Foreign Missions V. Smith, 209 Pa.

isa to pay certain debts, by executed agreement to turn over all the proceeds of a

ant was to present claim against govern-

farm to the promise. Runkle v. Kettering

ment for rent of and injury to his land by

\[Iowa\] 102 N. W. 142. Where fences on

trops while in possession of plaintiff as

lands leased for stock-raising were torn

kessee, and that plaintiff was to rece'e half

down and landlor refused to rebuild them

of the amount paid as rent and a specific

or allow tenant to do so, landlor's prom-

sum from the amount paid as damages.

lse to pay tenant all damages he might sus-

Romgardner v. Swarts, 26 Pa. Super. Ct. 268.

tain from absence of fence. Ensign v. Park,

Note given by builder to materialman in

69 KaN. 870, 77 P. 583. A contract by a city

part payment of order drawn by contractor,

for supplying its fire department with water

though order was not yet payable, where

finds its sanction in the right of the city

provision for payment after completion of

demand specific performance, or damages,

contract was waived. Potter v. Greenberg,

or the revocation of the contract for non-

24 Pa. Super. Ct. 502. Capital stock of cor-

performance, and not in any right of the

portion held good consideration for trans-

individual inhabitants to recover damages

for of property to it by person organizing

resulting from its breach. Allen & C. Mfg.

11, in absence of fraud. Gardner v. Haines

Co. v. Shreveport Water obligation 56 or right,57 the release of a mortgage 58 or judgment,59 the extension

convey to plaintiff when amount advanced

instalments, equaling the dues on plaintiff's was repaid, held a mere loan as between plaintiff and defendant, and interest therem

stock, it would reconvey the land, and the

on, which in the absence of agreement was

tain sum which he louned to its president

the legal rate, furnished a sufflclient con-

on his personal bond to pay the instalments

sideration therefor. Lucia v. Adams \[Tex.

Civ. App.\] 82 S. V. 325. Agreement between author and publisher succeeding to

fights of corporation owning copyrights of

certain of her books, by agreement of au-

thor to enlarge the work and to perform

revisory services in connection with its

publication. In re McBride & Co., 132 F.

285. Agreement not to engage in competent

in g business, by payment of sum in excess

of that to which defendant was entitled

under agreement in regard to certain stock.

Klamp V. Jarvis-Adams Co. \[C. C. A.\] 135 F.

1008; Bossert v. Jarvis-Adams Co. \[C. C. A.\] 135 F. 1015. Deed and lease executed by

same parties on or about the same date and

in relation to same subject-matter, held each

to be a consideration for the other. Stadler

v. Missouri River Power Co., 133 F. 214.

\*\*Contract held to be without considern-

tion: If a conveyance is made purely as a mortgage for the purpose of securing an

independent, that fact alone does not furnish any consideration for a promise to pay

a previous mortgage. Merriman v. Schmitt,

211 Ill. 263, 71 N. E. 886. Promise in letter

accepting offer to purchase fruit to wire

prices before shipping held not part of contract, but a mere voluntary

gratuity. Olcesse v. Mobik Pruul & Trading Co., 211 N. 529,

71 N. E. 1084, afg. 112 Ill. App. 281. Subsequent agreement to complete building

before certain date. Bolter v. Koslowski, 211 Ill. 79, 11 N. E. 886, afg. 112 Ill. App. 13. If

services of tenant's wife in caring for land-

lord's room were voluntarily rendered by

way of performing labor for her husband

and family, and not in pursuance of agree-

ment between herself and land landor, they

could not be a consideration for such latter

agreement. Kennedy v. Swisher \[Ind. App.\]

73 N. E. 724. Agreement whereby defendant was to furnish money for purchase of

certain land and divide the profits of its

to meet payments provided for by contract

sale with plaintiff. Forrest v. O'Bryan, 126

lowa, 571, 102 N. V. 492. Subsequent agreement giving plaintiffs longer time in which

for sale of land. Apking v. Hoffer \[Neb.\]

104 N. W. 177. Promise by one upon whom

there rested no duty or obligation to do so, to go after certain horses which had

strayed. Smith v. Corrigan \[Neb.\] 101 N. W.

321. Contract whereby husband placed deed

of property in escrow to be delivered to wire

in case he got drunk, and where at time of

his death deed had not been delivered, he

was owner of the property. Boseva v. Lent.

44 Misc. 437, 90 N. Y. S. 41. Agreement by

defendant to pay plaintiff a certain percent

on sales of improved property made by defendant and in regard to which plaintiff

under his contract as defendant's manager

and agent, had nothing to do. Wright v.

Fulling, 93 N. Y. S. 228. Where plaintiff

conveyed land to a bank and subscribed to

stock therein, the bank agreeing that in

consideration of a certain sum, payable in

in 5 Cur. Law. CONTRACTS SS 2. 679 of the time for the payment of an existing debt, \[60\] and the rendition of services, have been held sufficient. \[61\]

The consideration need not exist at the time of making the promise, but it is sufficient if the person to whom it is made incurs any loss, expense, or liability in consequence of, and in reliance upon, such promise. \[62\]

_Mutual promises_\[63\] operate as a consideration each for the other. \[64\]

_Forbearance_\[65\] or a promise to forbear from doing what one has a right to do may constitute a sufficient consideration. \[66\]

Thus forbearance to sue, \[67\] or the dis-

**60.** Will support mortgage. Creditor be- build klin. Frey v. Vignier, 145 Cal. 251, comes bona Hide purchaser within meaning 78 P. 733. Covenant of each of the parties of recording act, and mortgage takes prior- sufferment to support promise of other in try over one previously given but not re- contract between railroad company and corded until after second one, 'O'Brien' & Harm for exchange of freight business, Fleckensteln \[N. Y.\] 73 N. E. 80. Evidence sufficient to sustain finding that there was streambeat and railroad was to erect hoist extension of time. Id. \[61\]. Services to be rendered by plaintiffs \[62\]. In securing divorce for defenant held to S. R. C. \[Ga.\] 49 support agreement by her to execute ded \[63\]

of trust on certain property to secure their payment, provided they succeeded in vest- massal of a suit, will support a contract,"85 irrespective of whether or not the suit would have been successful."86

_The compromise of a doubtful right 70_ is, in the absence of fraud, sufficient consideration to support a promise,"11 and this is true, though the claim could not have been supported in whole or in part either at law or in equity."2

\_Marriage_17 is a valuable consideration and will support an antenuptial settlement,"14 but not a subsequent contract by the parties thereto."85

\_Legal duty.\_70--A promise to do or the doing of that which one is legally continuous tracts of land is supported by a sufficient consideration when there is actual doubt and uncertainty as to its true location. Oral agreement not valid unless there 5 Cur. Law. CONTRACTS SS 2.

bound to do by contract or otherwise is no consideration for a contract; " but this does not prevent one from binding himself by merging an oral agreement into a written contract, nor enable him to escape the written contract merely because the consideration passed to him prior to its execution." It has also been held that the duty of a husband to support his wife furnishes a sufficient consideration for his promise to support her after a contemplated separation."

A promise to forbear, or extend the time of payment of a debt actually due, based upon a promise of the debtor to pay the sum with interest at a latter date, is without legal consideration and unenforceable." The same is true of an agreement by a creditor to accept less than is due in full payment of a matured debt."

77. Bailey v. Devine \[Ga.\] 51 S. E. 603;

cancel the same by will at his death, upon Tucker v. Dolan \[Mo. App.\] 84 S. W. 1126;

the regular payment of interest. Trombly Noyes v. Young \[Mont.\] 79 P. 1063.

Centreres held void for want of consida.

N. W. 419. Agreement of wife to live with creation: Where interest on mortgage was,

and care for husband in consideration of on death of mortgagor leaving an insolvent

agreement to deed her certain property in estate, reduced from ten to seven per cent.

case he got trunk again. Bosea v. Lent, 44 by-Code Civ. Proc. $ 1494, In regard to rate

Misc. 437, 90 N. Y. S. 41. Agreement by of Interest on claims against insolvent es-

plaintiff's Intestate to cancel defendant's tates after publication of first notice to

note provided defendant would pay or cause creditors, a prior parod agreement between

to be paid a certain note and condemnation mortgagor and mortgagor reducing rate of

bonds of a railroad on which both were lia-

interest to seven per cent. on condition that

ble, held without consideration where,

the mortgagor pay all taxes, was unenforceable against the estate for want of

foreachable against the estate for want of

fendant was made receiver for such rail-

consideration. In re McDougald's Estate,

road and paid the note and bonds under

146 Cal. 196, 79 P. 875. Assignment by

widow of her righth to certain interest

v. Bamberger \[Utah\] 81 P. 887. Fact that

monoy under will of her deceased husband

in consideration of support for life, where

assignes were bound to furnish such sup-

most under previous agreement. In re Caster-

recolverts sale, held not to have furnished

ner's Estate \[Cal. App.\] 81 P. 991. Where

contractor was employed at an agreed fee by

organized prior to the execution of the defendant to defend her son who was in

agreement. Id. Family agreement held unen-

prison, a promise by her to pay him an ad-

conforeable where consideration therefor

ditional sum for another attorney employed

was son's signature to agreement which he

by persons held as witnesses for the state

was bound to sign as executor if it was ad-

against the son to secure their release,

is without consideration, since defendant ac-

aqueous he could not derive any benefit

quired no benefit therefrom. Bailey v. Devine \[Ga.\] 51 S. E. 603. Promise of first attorney to bring on son's trial at once if ad-

N. Y. S. 900.

torney to bring on son's trial at once if ad-

ditional sum was paid held no considera-

tion, since he was bound to do so under his

pening of certain contingency. Noyes v. original contract. Id. A promise to release

Young \[Mont.\] 79 P. 1063.

from an unlawful imprisonment which the

promisor himself made unlawful does not

afford any valid consideration for a con-

contract for furnishing support after separation. Patterson v. Patterson, 111 Ill. App.

payee of note, on failure of maker to pay

it, surrendered it and accepted guarantors

note for same amount, indisument of all

note to him, since the guarantor was en-

tilted to the old note on the execution of

the new one, and created no liability

against the guarantor as indorsor. Pea-

body v. Munson, 211 Ill. 324, 71 N. E. 1006.

Where one agrees for a consideration to

give another a mortgage on certain property,

a subsequent promise exacted from

the mortgage, as a condition to the execu-

tion of the mortgage, to pay certain debts

of the mortgagor not included in the prior

contract. Runkle v. Ketering \[Tow\] 102

N. W. 142. Agreement to advance certain

sum for purchase of grain and to grant ex-

tension of time for its delivery. Strange v.

Carrington, Patton & Co., 116 Ill. App. 410.

An agreement by the payee of a note to

the
An agreement to pay a price greater than that fixed by the contract must rest on a new consideration.\[82\] So, too, an agreement to pay one liquidated debt will not support a release by the creditor of another liquidated or unliquidated debt.\[83\]

_Natural love and affection_\[84\] is not, as a general rule, a sufficient consideration to support a promise,\[85\] but it will support a deed of real property between husband and wife, or relatives within the degree of nephew or cousin.\[86\]

_A.mere moral obligation_\[87\] is not ordinarily a sufficient consideration for a promise,\[88\] but the moral obligation of a father to support his illegitimate children is a sufficient consideration for his bond to do so.\[89\]

_Mere gratitude_ is not by itself a sufficient consideration for a contract,\[90\] but the sufficiency of valuable services as a consideration is not affected by the fact that the obligor felt and declared a sense of gratitude therefor, which was not at all intended to supplant or exclude a recognition of a legal obligation to pay for them.\[91\]

_Past consideration.\[92\]_--A promise by one to pay a past indebtedness of another cannot be enforced unless some new consideration moves to the promisor,\[93\] but if a surety is a party with his principal to a contract executed in consideration of some benefit to accrue to the latter, the consideration is sufficient as to him, and he is bound.\[94\] So, too, when one person is rendering services to another which he is under no legal obligation to perform and the party receiving the benefit expressly promises to pay therefor, upon the faith of which promise the services are continued, there is a sufficient consideration to support the promise to pay for all the services, past as well as future.\[96\]

_Adequacy.\[96\]_--A slight benefit to the promisor or a slight detriment to the promisor.\[97\]_--A_: 5 Cur. Law. CONTRACTS SS 2. 683

promisee is a sufficient consideration for any contract," so that it is not essential that the consideration be adequate in value." Courts of equity may, however, refuse to specifically enforce contracts for inadequacy of consideration when the inadequacy is so gross as to be evidence of fraud, or when accompanied by other circumstances tending to show fraud."

\_Failure of consideration.--\_If the consideration fails in whole or in part, plaintiff's right to recover must fail pro tanto." So, too, money advanced on a consideration which subsequently fails may be recovered back." The fact that one of several agreements constituting the consideration for a contract is unenforceable does not render the contract unenforceable." In order to entitle one to rescind for failure of consideration, the evidence must show more than mere inadequacy." The defense is premature where the failure is as yet merely anticipatory."

97. Tucker v. Dolan \[Mo. App.\] SS 4 S. W. \[entitle him to a deduction from purchase price. Schoonover v. Ralston, 25 Pa. Su- 1136. \[98. Sufficient though small or even non- per. Ct. 375. One giving note in payment inal, in absence of fraud. Forbes v. St. Louis, etc., R. Co., 107 Mo. App. 661, SS 2 S. \[failure of consideration because horse has W. 562. Gross inadequacy may become welcome of fraud. Walker v. Shepard, 210 plevin, where it appears that he permitted 111. 100, 71 N. B. 422. Insufficiency of the such judgment to be entered against him consideration for a lease cannot be sus- by default, and it does not appear that the trained in a suit exclusively for possession. \[the action, or had knowledge of its pend-wood Oil Syndicate \[La.\] 38 So. 952. Recency. Moul v. Pfeiffer, 23 Pa. Super. Ct. employment of injured employe, though vague and indefinite in duration, held to as to meet the demands of defendant's support release of defendant from liability trade, as plaintiff's agent represented It for injury, though he was shortly dis-

would do, held not to amount to a failure charged for other reasons. Forbes v. St. of consideration for a note given for the Louis, etc., R. Co., 107 Mo. App. 661, SS 2 S. \[ purchase price thereof, it not being defendant the whiskey had value. Shiref- quacy or inadequacy of the consideration \[234.\] 37 So. for a compromise fairly and deliberately made. Bowers Hydraulic Dreeding Co. v. not established by proof that indorescent Hess \[N. J. Err. & App.\] 60 A. 362. More was made relying on promise of plaintiff inadequacy not a failure of consideration. \[the\] number of mortgage is not necessary to make a valid consideration for its sat-

a breach of such agreement. Evidence held isfaction. Silight services sufficient. Sherman v. Martieu, 94 N. X. S. 565. Note for services. Yarwood v. Trust & Guarantee

a note. Auiman Threshing & Engine Co., 94 App. Div. 47, 87 N. Y. S. 947. Small-est spark of benefit or accommodation suff-

cient Presbrivian Board of Foreign Mis-

a set of papers. Smith, 209 Pa. 361, 58 A. 689. VIII

in consideration of a loan of their credit

a because of have been determined

b by the parties. Rease v. Kittle \[W. Va.\] 49 S. E. 150.

a 98. Rease v. Kittle \[W. Va.\] 49 S. E. 150.

The recited consideration of $1 is insulin-

cient to uphold an action for the specific

preformance of an oil and mining option

biantiffs for their indorstement and they

contract otherwise unsupported by a consideration, it being so trifring as to shock

not assume any obligation, held, that the

the moral sense. Berre v. Frisbie \[Ky.\] 86

a contract was at an end and plaintiffs were

a not entitled to recover the balance of the

inconsiderable as to be "Vile" and a mere

nothing. Houssetz Latreille Oil Co. v.

a Jennings-Heynwood Oil Syndicate \[La.\] 88

a. Tausfgtr v. Drucker, 90 N. Y. S. 380.

So. 932. Consideration for release of wife's

a threat in husband's property held so in

a adequate as to render its enforcement in

a equitable. In re Bell's \[Chat\] 80

a. Evidence held to show that parties

a. Footnote 1: See SS C. L. SS17.

b. See SS C. L. SS17.

a. Fact that vendee of land could not

a.

**SS 3.**_Validity of contract. A. General principles._\*\*--Mere unreasonableness or absurdity does not render a contract unenforceable.**8**

Contracts between corporations and their officers and directors, or with third persons, including ultra vires contracts,**9** the effect on its contracts of the failure of a foreign corporation to comply with the statutory requirements for doing business within the state,**10** the contracts of aliens,**11** infants,**12** and married women,**13** usurious 14 \*\*and gambling contracts,\*\*15 **and contracts made on Sunday, are treated in separate articles.**16****

**(SS 3)**_B. Subject-matter or consideration._**17**--If a statute directly prohibits the making of a certain class of contracts, or either enjoins or prohibits the doing of a certain class of acts, an agreement entered into in violation thereof, or which involves a violation thereof, is void.**18**\*\* There seems to be a conflict of authority as to whether the mere imposition of a penalty on any specific act or omission renders invalid a contract to do or omit to do such act. There is authority for the proposition that the imposition of such a penalty excludes all others, and that contracts in contravention thereof are not void unless it clearly appears that the legislature intended otherwise.**19**\*\* The generally accepted and more logical rule, however, appears to be that all such contracts are void unless the statute shows a contrary intent on the part of the legislature.**20**\*\* The presumption against their validity is particularly strong where the statute in question is one enacted for the public good.**21**\*\*

\*\*The mere fact that contracts are of a speculative character does not neces5 Cur. Law. CONTRACTS $ 3B. 685

sarily affect their validity.22 One may lawfully agree to deliver in the future something that he has not got, provided it is a thing which he may get; 23 but may not sell or transfer that which has no potential existence.24

Footnote 23: The $\\alpha$-function is not a function of the form $\\alpha=\\beta$, but it is not a function of the form $\\alpha=\\beta$.

An assignment of wages to be earned in the future under an existing contract of employment to secure a present debt or future advances is valid as an agreement, and takes effect as an assignment as the wages are earned; 25 but an assignment of wages to be earned without limit as to amount or time is void.26

Footnote 24: The $\\alpha$-function is not a function of the form $\\alpha=\\beta$, but it is not a function of the form $\\alpha=\\beta$.

An agreement lawful in its character and purpose is not rendered unlawful because some of the parties thereto attempt to put it to an unlawful use.27

Footnote 37: The $\\alpha\\

### 686 Contracts $ 3c.

5 Cur. Law. the court, after applying all the tests which the rules of law and of reason will permit, is unable to reasonably discover what the parties agreed to \[32\]. Mere indefiniteness of details does not render the contract void \[33\], nor can it be called uncertain because based on a contingency where the contingency has occurred \[34\].

(SS 3) _C. Mutuality_\[35\]--As a general rule the obligations of a contract must be mutual; that is, it must be capable of enforcement by either party against the other \[36\]. The rule, however, does not apply to contracts which have been executed

ceptible of enforcement, but to require **Contracts held mutual:** Contract be-those supplied to be of the kinds and as-stown railroad company and firm for ex-sortment supplied under previous contracts. Hardwiek v. American Can Co. \[Tenn.\] 88 **is. V. 797.**

\*\*32. Semon, Bache & Co. v. Copper, Zook & Mutschler Co. \[Ind. App.\] 74 N. E. 41. Even the appearance of a contract has **tract** for books, since statement on back binding effect after execution. Oll lase held binding. Houssiere Latrille Oil Co. **and deliver them. Allen v. Confedrate v. Jennings-Heywood Oil Syndicate \[La.\] 38 Co. 892.**

\*\*33. Contract to engage in business of manufacturing staves held not void for un-certinity because it did not precisely **not** led it to the other party in writing at its bought or what kind of staves manufacture. Alderton v. Williams \[Mich.\] 102 N. **c**ept or refuse it. Cotran v. Witham \[Go.\] W. 753:\*\*5 Cur. Law. CONTRracts $ 3C.

in whole or in part. \[37\] Neither is it necessary that the contract be enforceable by both parties in the same manner, \[38\] nor, when time is not of the essence of the contract, does the fact that specific performance could not have been decreed on the day it was made invalidate it. \[39\] Mutuality may also be waived by the conduct of the party against whom the contract could not have originally been enforced. \[40\]

ness. Alderton v. Williams \[Mich.\] 102 N. \[S. 41. Agreement whereby plaintiff prom-W. 753. An agreement that a contracter will do all the plumbing work and furnish all the material for a building at a maxi-his request." Smyth v. Grenean, 100 App. mum specified cost entitles him to be paid Div. 75, 91 N. Y. S. 450. A mere naked that sum on performance, though there is no specific promise to pay it and hence is not void. Filterott v. Allenhurst Club \[N. 3\] fore the arbitrants have agreed upon an award. Lacks mutuality unless both parties bound to abide the event. Selbel v. fixed wages, and plaintiff agreed not to strike and not to leave defendants employment without his written consent. Sll-hermal v. Schwarzer, 45 Misc. 352, 90 N. Y. S. 382. Contract for transportation of freight with proposed railroad providing that it shall terminate without notice whenever such road and another railroad shall cease to compete for business, held not to authorize the road to terminate it at its option, and hence valid. Lene Star Sail Co. \[Tex. Cliv. App.\]

V. Texas Short Line R. Co. \[Tex. Cliv. App.\]

86 S. W. 355.

**Contracts held to lack mutually:** Contract to furnish cement, not containing any agreement on the part of the other party to purchase any in any stated or otherwise define quantity, held mere offer to sell at stated prices during a given time. Hugging v. Southernastern Lime & Cement Co., 131 Ga. 311, 48 S. E. 933. Contract where-by bank agreed to advance to manufacture certain sum of money but not binding when the other party acting him to accept any of it unless he found it necessary in conducting his business. Swindell & Co. V. First Nat. Bank, 121 Ga. 714, 49 S. E. 673. Where there is no consideration for the promise of one party to furnish or sell to the other so much of a commodity as he may want except the promise of the latter to accept and pay for or tenders purchase price before its with-arwal. Bird v. Potter, 148 Cal. 38, 79 P. whatever, and no method exists by which it can be determined whether he will want, not binding on the buyer, the manufacturer is bound to furnish goods to the extent that they are in fact ordered under the contract before its withdraw. Simon, Eache & Co. V. Coppes, Zook & Mutschler Co. \[Ind. App.\]

74 N. E. 41.

**38.** Sufficient if enforceable by both in some manner. Lone Star Sail Co. v. Texas Short Line R. Co. \[Tex. Cliv. App.\] 86 S. W. 355.

**39.** Though vendor of reality is not able to make good title at time of sale, equity may enforce specific performance if he can do so before final decree. Gibson v. Brown, 214 Ill. 380, 78 N. E. 578.

**40.** Where contract for sale of land lacks mutuality for want of interest in vendor, purchaser who investigates title and makes requisiltions or concurs in proceedings for remedying defects is thereafter precluded from setting it up. Gibson v. Brown, 214 Ill. 380, 78 N. E. 578.

(SS 3) _D. Public policy in general._"--Speaking generally, public policy is that principle which holds that no one can lawfully do that which tends to injury to the public or is contrary to the public good." Contracts restricting the freedom of employment," to pay witnesses more than the fees allowed by law,"44 a contract by a guardian to sell his wards realty made without any legal authority," and agreements designed to defraud third persons,"40 or the public,"47 or to induce one to commit an unlawful act,"48 or which are unconsionable or extortionate,"49 have been held invalid as contrary to public policy.

A contract valid elsewhere will not be enforced if condemned by positive law, or inconsistent with the public policy of the state, the aid of whose tribunals is invoked for the purpose of giving it effect." Neither will the courts of a state enforce a contract of sale made in another state and valid where made if the purpose of both parties was to violate the laws of the forum and the vendor has done some act in furtherance of such purpose."

Contracts by corporations to repurchase their own stock,"52 or guaranteeing dividends thereon,"53 a provision in a contract for the sale of a majority of the stock

41. See 3 C. L. SS20. As to what contracts

lation of the property rights of others of agency are illegal, see Clark & Skyles,

Misc. 402, 90 N. Y. S. 455.

42. Baltimore Humanic Impartial Soc. v.

Pierce \[M.\] 60 A. 277; Poling v. Board of

Der week, Irrespective of the usury laws.

Tract is not void as against public policy

wuless it is inurious to the interests of the

38 So. 298. Contract required to be executed

public or contravenes some established interest of society. Osgood v. Central Vermont R. Co. \[Vl.\] 60 A. 137.

43. Contract whereby an employer agrees

not to employ any one not a member in

good standing of a certain labor union, and

to abide by the rules of such union. Note

given to union as collateral security for

performance held unenforceable. Jacobs v.

Cohen, 97 App. Div. 481, 90 N. Y. S. 854.

44. Witness in charge of grade proceedings held not an expert.

Ramschasel's Estate, 24 Pa. Super. Ct. 262.

45. Le Roy v. Jacobosky, 136 N. C. 443,

45 S. E. 796.

46. A contract which has for its object

the practice of deception or fraud upon a

third party, or to take advantage of con-

fidential relations with him for the purpose of drawing him into a bargain by

which the party undertaking to so use hfs

Influence will secretly receive a benefit from the seller. Evidence in action for commissions by real estate agent held insufficient

to show such a contract. Instructions approved. Torney v. Murray, 93 Minn. 482, 101

N. W. 609. Creditors of a party thereon.

Bryant v. Wilcox (Mic.l.) 100 N. W. 918.

47. Contention that arrangement where

by mortgase was executed was entered into

for purpose of avoiding the payment of

taxes on mortgage and hence was unenforceable because a fraud on the public, held

untenable, since note which it was given to

secure was taxable. Smith v. Nelson \[Or.\]

78 P. 740; Pape v. Standard Oil Co. 5 Ohio

C. C. (N. S.) 252; Id., 2 Ohio N. P. (N. S.) 514.

48. Hold, that contract for publication

of book could not be reasonably construed

as an attempt by plaintiff to induce defenant to commit an unlawful act by undertaking the publication of a story in violation of

49. See 3 C. L. SS20. As to what contracts

lation of the property rights of others

of agency are illegal, see Clark & Skyles,

Misc. 402, 90 N. Y. S. 455.

49. Laon contracts providing for pay-

Pierce \[M.\] 60 A. 277; Poling v. Board of

ment of interest at the rate of 35 per cent.

Der week, Irrespective of the usury laws.

Woodson V. Hopkins \[Miss.\] 37 So. 1000; Id.,

38 So. 298. Contract required to be executed

by one about to become the immate of an

terest of society. Osgood v. Central Vermont R. Co. \[Vl.\] 60 A. 137.

49. Contract whereby an employer agrees

not to employ any one not a member in

Baldimore Humanic Impartial Soc. v. Pierce

\[M.\] 60 A. 277.

50. Where provision limiting time with-

In which suit may be brought on a con-

tract is void in state of performance and

state where it is sought to be enforced, it

will not be enforced on removal from state

to Federal courts. Northern Pac. R. Co. v.

Kempton \[C. C. A.\] 138 F. 992. If against

the settled policy of the state where it is

songht to be enforced. Unreasonable lim-

tation of carrier's liability. St. Louis S. W.

R. Co. v. McIntyre \[Tox. Civ. App.\] 82 S. W.

346. Statute prohibiting married woman

from becoming surety does not render the 5 Cur. Law. CONTRACTS $ 3D. 689

in a corporation that a certain person shall hold certain corporate offices for a designated period,54 conditions in life insurance policies against the suicide of insured while insane,55 a stipulation in a contract between the relief department of a railroad company and an employee that the payment by the company of any damages recovered against it by reason of his death or injury shall operate as a release to the department of all claims by reason of membership therein,56 the business of issuing trading stamps to merchants,57 and agreements to waive mechanics' liens have been held to be valid.58 The fact that the lender of money causes the note and mortgage given therefor to be made payable to an alien for the purpose of avoiding local taxation thereon does not render the contract invalid or prevent the foreclosure of the mortgage.59

A stipulation in a contract that neither party may resort to the courts is void; 50 but a provision in the laws of a society conditionally prohibiting its members from resorting to the courts for the redress of membership grievances until they have exhausted the remedies provided by the laws and rules of the society is valid.61

There is a conflict of authority as to the validity of provisions limiting the time within which an action may be brought on the contract. They are prohibited by statute in some states.62 Some courts hold them to be contrary to public policy as attempts to vary the statute of limitations.63 Others hold them valid-provided the limitation is reasonable.64 Such a stipulation may be waived.65

By statute in Texas no stipulation in any contract requiring notice to be given

54 Even though it might be invalid as against subsequent stockholders and creditors, where all the stockholders joined. In which action could be brought for dam-Kannier V. Benninger, 214 Ill. 589, 73 N. E. 874, rvs. 112 Ill. App. 295.

55 Northwestern Mutual Ins. Co. v. Civ. Code S. D. 1376 Limitation on time Churchill, 105 Ill. App. 156; Id., 105 Ill. App. 156.

56 Provision is reasonable and binding on one accepting contract knowing of it.

60 Baltimore & O. R. Co. v. Ray \[Ind. App.\] 73

N. E. 942.

57 When honestly conducted. Sperry & Hutchinson Co. v. Temple, 137 F. 992.

58. Building contractor. Gray v. Jones \[Or.\] 81 P. 813.

01. Unlawful purpose was collateral and incidental, and formed no part of consideration. McKinnon v. Waterbury, 136 F. 489.

01. Provision in compromise agreement that judgment entered in pursuance thereafter and, in general, the state of the art is not be appended from. Hager v.

of shall not be appended from. Hager v. Shuck \[Ky.\] 87 S. W. 300. An agreement

than six months after breach. Id. Provision advance of the arising of a controversy to submit a question of law to a private person for his decision is invalid as an attempt to renounce one's right of appeal to the courts for the redress of his wrong. Whether defendant was, under contract, charged with duty of providing right of way for canal. Sanitary Dist. v. McMahon & Montgomery Co., 110 Ill. App. 510.

61. McGuinness v. Court Elm City, No. 1, Forecisters of America \[Conn.\] 60 A. 1023. Member of beneficial association convicted, lined, and suspended under alleged invalid order not entitled to use in civil courts to restrain enforcement of sentence until he had exercised his right to appeal to appeal that tribunal of order as authorized by by-laws. Id. See, also, Associations and Societies, 5 C. L. 293; Fraternal Mutual Benent Associations, 5 A. 1503.

54 Cur. L. -44.

55. Even though it might be invalid as against subsequent stockholders and creditors, where all the stockholders joined. In which action could be brought for dam-Kannier V. Benninger, 214 Ill. 589, 73 N. E. 874, rvs. 112 Ill. App. 295.

01. Northwestern Mutual Ins. Co. v. Civ. Code S. D. 1376 Limitation on time Churchill, 105 Ill. App. 156; Id., 105 Ill. App. 156.

01. Provision is reasonable and binding on one accepting contract knowing of it.

01. City. Code Mont. $ 2245; Rev. Codes

Baltimore & O. R. Co. v. Ray \[Ind. App.\] 73

N. D. 1889, $ 3925. Limitation of time with-

77. When honestly conducted. Sperry & Hutchinson Co. v. Temple, 137 F. 992.

01. Adams Exp. Co. v. Walker, 26 Ky.

01. Building contractor. Gray v. Jones \[Or.\] 81 P. 813.

01. Auspalmedum v. Aetna Indeminity Co. \[Or.\] 81 P. 577. Limitation of six months in

incidentally undertaking to secure perform-

ation. McKinnon v. Waterbury, 136 F. 489.

ance of building contract held unreasonable

60. Provision in compromise agreement

and Inoperative where amount of liens filed that judgment entered in pursuance thereafter and, against building could not be determined of shall not be appended from. Hager v.

until they were foreclosed, which was more

Shuck \[Ky.\] 87 S. W. 300. An agreement

than six months after breach. Id. Provision advance of the arising of a controversy of any claim for damages as a condition precedent to the right to sue thereon is valid unless it is reasonable, and any stipulation fixing the time within which such notice shall be given at a less period than ninety days is void." The burden is on the party setting it up to show by proper pleading and proof that the limitation is reasonable.67 It will also be presumed that the required notice has been given unless want of notice has been specially pleaded under oath.68

(SS 3) \_E. Limitations of liability.69--\_Contracts between master and servant relieving the former from liability for injuries caused by his negligence, or from statutory duties, are contrary to public policy and void.70 So, too, common carriers cannot by contract relieve themselves from liability for their own negligence, though they may, for a valuable consideration, limit their common-law liability to passengers and shippers.71

Contracts breaking down common-law liability and relieving persons from just penalties for their negligent and improper conduct are not favored, and will not be given an enforcement beyond that demanded by their strict construction.72

(SS 3) \_F. Relating to marriage or divorce.73--\_No recovery can be had under a contract for services to be rendered in promoting or bringing about a marriage.74 Contracts and undertakings made with a view to procure a marriage between the defendant in bastardy proceedings and the complaining witness are valid and enforceable.75

A promise to marry a married women is contrary to public policy,76 but an antenuptial agreement made in consideration of marriage is not invalid by reason of the fact that the man has a wife living, where the woman is ignorant of that fact.77

66. Rev. St. 1895, art. 3379. 'Stipulation allowing ninety-one days cannot be declared unreasonable and vold as a matter of law, but question is one of fact. St. Louis & S. F. R. Co. v. Honea \[Tex. Civ. App.\] 84 S. W. 267. Provision requiring notification of injury to stock transported within one day after their receipt, held invalid. Chicago, etc., R. Co. v. Mitchell \[Tex. Civ. App.\] 85 S. W. 286. Statute not a restriction on interstate commence. Id. Stipulation relates only to the remedy, and hence law of forum governs as to its validity. Missouri, etc., R. Co. v. Godair Commission Co. \[Tex. Civ. App.\] 87 S. W. 871.

01. Missouri, etc., R. Co. v. Godadir Com. Co. \[Tex. Civ. App.\] 87 S. W. 871.

01. Rev. St. 1895, art. 3379. Burden is on defendant and plea alleging failure to give notice raises no issue unless sworm to. St. Louis & S. F. R. Co. v. Honea \[Tex. Civ. App.\] 84 S. W. 267. Where plea in action on contract for shipment of cattle was not sworn to, erroneously sustaining determiner thereto on ground that stipulation was unreasonable as a matter of law, held harmless. Id.

01. See 3 C. L. 821.

01. See Master and Servant, SS 3a, 4 C. L. 545.

01. See Carriers, 5 C. L. 507. An agreement by one to whom a railroad company leases a part of its right of way for the election of a coal and lumber shed that he will save the company harmless from all liability for damages to himself or his property resulting from the company's negligence or otherwise is valid as to injuries 5 Cnr. Law. CONTRracts SS 31. 691

Agreements between husband and wife whereby one may forfeit to the other any part of his or her property by reason of certain shortcomings on his part are invalid."So, too, are agreements whereby they seek to change or avoid the obligations of their marriage, in so far as they contravene public policy or disregard duties imposed by law." Agreements made in furtherance of divorce " or tending to procure a separation between husband and wife are void;" but a contract by the husband looking to the support of his wife after separation is valid."

(SS 3) _G. Contracts tending to promote immorality._"--Contracts tending to promote immorality are contrary to public policy."

(SS 3) _H. Litigious agreements._"--Agreements tending to promote litigation," or to prevent the settlement of cases, are contrary to public policy."

(SS 3) _I. Compounding offenses._"--Contracts founded upon agreements to compound felonics, or to stifle public prosecutions of any kind are contrary to public policy."

78. Deed placed in escrov to be deliv-

contract used In referring to date of wedered to wife if husband got or trunk again.

ding as the date of the contract is immate-

Bosea v. Lent, 44 Misc. 457, 90 N. Y. S. 41.

rial in fixing the true date. Has not same

79. Patterson v. Patterson, 111 Ill. App.

01. Agreement by husband to support

01. Though made directly by the parwife who separates from him held no bar

ties. Patterson v. Patterson, 111 Ill. App.

to her suit for separate maintenance. Id.

342. A separation agreement between hus-

Such suit held not waiver of right to install

hand and wife, through the intervention of

ments due under contract. Id.

a trustee, by which the wife, in consideration

$0. Agreement whereby wife released

tion of certain payments made and to be

statory interest in husband's property for

made her by the husband, releases him

a sum of money on understanding that he

from liability for her support and agrees

should use for divorce and that she would

not to institute suit for separate main-

not depend on or demand alimony. In re Bell's

tenance, is valid. He led her to proceedings

Estate \[Utah\] 80 P. 615. Evidence held to

show that agreement was made on understanding that husband should secure dif-

trustee not entitled to enjoin its violation.

vore, and was agreement for that purpose.

Bailey v. Dillon, 186 Mass. 244, 71 N. E. 538.

Id. Contracts tending to stimulate divorces

83. See 3 C. L. 822.

or to discourage defenses in divorce suits,

84. Hammon on Contracts, $ 226, p. 389.

or which in any way impose on the court.

85. See 3 C. L. 822.

Silberschmidt v. Silberschmidt, 112 Ill. App.

86. See, also, Champerty and Mainte-

01. Agreements as to alimony pending a

a name,

5 C. L. 856. An agreement whereby

sult for divorce without the sanction of the

an attorney in consideration of the assignment. Agreement made antecedent to

ment to him of a nonnegligible chose in ace-

cree fixing alimony held not to affect power

tion undertakes to enforce the same by

of chancellor to fix aJimony and that he

suit, he to pay all the expenses, and to re-

might entirely disregard it, particularly as

mit to the assignor half the proceeds and

it was unfair, unreasonable, and inequitable. Id. Courts do not favor such agree-

suit and other services therefore rendered

ments but rather ineline against them as

leading to collusion between the parties

Zeitfuss, 77 Conn. 457, 59 A. 406.

and to facilitate divorces. Id. A contract

87. When the whole legal and equitable

intended to facilitate the procuring of a de-

title to a cause of action rests in plaintiff

vore by either of the parties thereto.

and the sole responsibility to answer his

Transfer of property to husband to induce

claim rests upon defendant, an agreement

him to allow wife to procure divorce. Davis

by plaintiff with his attorney not to settle

v. Himan \[Neb.\] 103 N. W. 668. Contract

the case without the latter's consent is

whereby plaintiff and her husband agreed

that if she would dismiss pending action for

right to compromise, if he acts in good

divorce and would release all claims against

falth, even if it is enforceable as against

third persons for aliating his affections,

plaintiff. Weiler v. Jersey City, etc., R.

he would not defend an action for divorce

Co. \[N. J. Err. & App.\] 61 A. 459.

on the ground of cruel and lihman treat-

88. See 3 C. L. 822.

ment and would pay her a certain sum, held

illegal. McAllen v. Hodge \[Minn.\] 102 N.

prosecution of obligor's son for felony

W. 707.

which obligree represented the son had comn

sll. Courts of equity will not enforce

contracts tainted with an understanding,

or not. Corbett v. Cute, 137 N. C. 546, 50

contemporaneous with the marriage, look-

S. E. 21 693 CONTTRACTS $ 3J. 5 Cur. Law.

(SS 3) _J. Interfering with public service._\[90\]--Contracts tending to do away with competition at public sales,\[91\] or to pay public officers extra compensation for services which they are required by law to perform,\[92\] or by which public officers assign their salaries,\[93\] and contracts by a city with a corporation in which a member of the city council is a stockholder, are contrary to public policy and void.\[94\] So, too, is a contract whereby an executor undertakes to sell his right to administer on the estate of his testator.\[95\] It is also contrary to public policy to procure the consent of property owners to the licensing of a dramshop by the payment to them of any valuable consideration.\[96\]

Agreements to use improper methods in obtaining public contracts,\[97\] or to improperly influence legislation, are void;\[98\] but if a contract contemplates only legitimate services, it is not illegal merely because an agent employed under it may use corrupt methods.\[99\] Contracts to procure legislation at a compensation contingent on success are generally regarded as contrary to public policy, without regard to whether improper means are contemplated or used in their consummation;\[1\] but there seems to be some conflict of authority in this regard.\[2\]

pose to prosecute son criminally for dis-thereof to plaintiff. Mercantile Finance posng of mortgaged property. Agreement also a penal offense under Pen. Code, art. 291. Medearis v. Granberry \[Tex. Civ. App.\] p34. Contract for city printing requiring payments to be made out of city treasury. 84 S. W. 1070. An agreement by the country Hardy v. City of Gainscville, 121 Ga. 327, 48 attorney to dismiss a criminal prosecution 8. E. 921. Not validated by the subsequent on payment of a certain sum. Johnson v. 84 S. W. 945. Evidence held to establish that note was given by de-

cedent for a valid consideration and was

not part of a transaction for the compound-a part of their fees. Oakeshott v. Smith, 93 Ing of a Felomy. Currie v. Michle, 123 Wis. 120, 101 N. W. 370. Contract for lease of

**96.** Frontage cannot be counted when so buliding at stipulated rental and on condi-obtained. Theurer v. People, 211 N. 296, 71 tion that defendants would not prosecute

**97.** Where payment of rent to owner plaintiff's husband for burglary. Graham

of property was conditioned on issanance of v. Hlesel \[Neb.\] 102 N. W. 1010. One executive a deed trust for the purpose and

**98.** Accepting contract in regard to sale

until the understanding that his son shall

not be prosecuted by the beneficiary is not

**99.** Kerr v. American Phemmatic Service

Co. \[Mass.\] 73 N. B. 857. Evidence in action on contract for services in procuring

Civ. App.\] 84 S. W. 1105. Agreement of government contract held to sustain findings that the exercise of improper or cor-discharge of one from arrest. Sellers v. 84 S. W. 1105. W.

5 Cur. Law. CONTRacts $ 3K. Contracts made without the consent of the state, which disable public service corporations from performing their functions are contrary to public policy and void.${}^{\\rm 3}$ An agreement by a railroad company, in consideration of the conveyance to it of a right of way and certain other Ihnds, to establish and perpetually maintain on the latter its machine shops and general offices, is valid.${}^{\\rm 4}$ The right of such a company to contract in regard to the construction of depots and the time and place of the stoppage of its trains is restricted by the rights of the public, and public policy must be considered in determining the validity of such contracts.${}^{\\rm 5}$ Though there is no such restriction on its right to contract with reference to the construction and maintenance of spur tracks to private enterprises,${}^{\\rm 6}$ a court of equity will refuse to decree specific performance of such a contract, since it would or might be detrimental to the public interests.${}^{\\rm 7}$

(SS 8) _K. Restraint of trade.${}^{\\rm 8}$--A contract in total restraint of trade is contrary to public policy and void;${}^{\\rm 9}$ but a contract in partial restraint of trade which is reasonable in its provisions as to time and place and is supported by a valuable consideration is valid.${}^{\\rm 10}$ The test of reasonableness is whether the restraint is such as is necessary to afford a fair protection to the interests of the party in whose favor it is given, and not such as to'unreasonably restrict the other party, or to interfere with the interests of the public,${}^{\\rm 11}$ the legality of the contract depending as not being the subject of a legal contract._

exercise its discretion In the matter. City Consaul v. Cummings, 24 App. D. C. 36. of Tyler v. St. Louis S. W. R. Co. \[Tex. Civ. 2. A contract between an attorney and client for purely professional services is not necessarily invalid because a part of the services to be rendered thereunder is the procurement of legislative action, no- because it provides for a contingent fee (Stroemer v. Van Orsdel \[Neb.\] 103 N. W. 1053); but it will be enforced unless it appears that it contemplates the use of unlawful or improper means, or that such means were employed in pursuance thereof and to attain the object for which it was made. Contract for such services as might be necessary in submitting to the Indians and the government claims of those who had purchased Indian land, which involved appearance before congressional commitutes in support of proposed bill, held valid. Stroemer v. Van Orsdel \[Neb.\] 103 N. W. 1053. Contract between complainants and the receiver of a street railway company and a city by which company was permitted to permanently discontinue its railway on a certain street, held void. Thompson v. Schenectady R. Co. \[C. C. A.\] 131 F. 577. Contract between railroad company and a firm by which the latter was to acquire and operate a steamboat, and each party was to receive and deliver its freight to the other at the usual rates, in consideration of which the railroad agreed to erect a host for the handling of freight transferred, held valid. Graham v. Macon, D. & S. R. Co. \[Ga.\] 49 S. E. 75. 4. City of Tyler v. St. Louis S. W. R Co. \[Tex. Civ. App.\] 87 S. W. 238. 5, 6. Butler v. Tifton, T. & G. R. Co. 121 Ga. 817, 49 S. E. 763 See Railroads, 4 C. L. 1181, for a full discussion of this subject. 5. Existence of necessity for removal not an issue in the case, it being sufficient that general public might at some time be injured by depriving company of right to upon the facts of each case.\[12\] The restraining covenant must be ancillary to the main contract,\[13\] but the fact that a separate consideration is paid therefor does not necessarily render it void.\[14\]

-

on the subsequent passage of an act pro- 278, 101 N. W. 168. Evidence held to con-highting them, and such act is not thereby given a retroactive effect. Id. The restriction may lawfully extend to all territory wherein plaintiff's trade is likely to go, having regard to the nature of the business. East of Denver held valid. Knapp v. Jarvis Adams Co. \[C. C. A.\] 135 F. 1008; Bossert v. Jarvis Adams Co. \[C. C. A.\] 125 F. 1015. Ordinarily a contract prohibiting one of the parties from carrying on a specific trade or business without any limitation as to time or place is void. Total restraint of right to engage in insurance business. Evidence held not to justify its limitation to a particular city. Roberts v. Lemont \[Neb.\] 102 N. W. 770. Not enforceable where the business is of such a character that it presumably cannot be restrained to any extent whatever without prejudice to the public interests. Charleston Nat. Gas Co. v. Kanawha Nat. Gas, Light & Fuel Co. \[V. Va.\] 50 S. E. 876. Thus any agreement between competing public service corporations, the consequence of which is the controlling of prices, limiting of production, or suppressing of competition, so as to create a monopoly thinings useful to the public, is contrary to public policy, and void. Agreement between two natural gas companies parceling out the territory between them, giving to each the exclusive right to sell gas in a given boundary, fixing prices and pro- 33 5. Cur. Law. CONTRACTS $ 3L. 695 The mere loaning of money to a competitor is not a breach of an agreement not to engage in a business similar to that of another.${}^{18}$ Statutes in some states make all contracts restraining one from exercising a lawful business or profession void unless they accompany the sale of the good will of such business.${}^{19}$ A combination tending to prevent competition and create a monopoly is unlawful at common law as against public policy, and all contracts for the accomplishment of such purpose are void.${}^{17}$ (SS 3) \_L. Effect of invalidity.${}^{18}$--Neither a court of law nor of equity will lend its aid to the enforcement of contracts which are illegal or immoral or which are contrary to public policy.${}^{19}$ If executed, either wholly or in part, it will leave the parties where it finds them.${}^{20}$ Thus a party cannot recover money paid under an illegal contract or money due him as profits thereunder where he is obliged to make out his case by showing the illegal contract or transaction, or through its medium, or when it appears that he was privy to the original illegal contract or transaction.${}^{21}$ The rule is not changed by the fact that the parties acted in good and restrictive covenant regarded as in aid 19. Corbin v. Houlehan \[Mc.\] 61 A. 131: of and collateral to sale. Id. 15. Injunction restraining breach of agreement made by one member of a firm, 100 N. V. W45: Overholt v. Burbridge, 28 on its dissolution, not to engage in a similar business within the state, held not eroneous in so far as it refused to restrain consideration. Fletcher v. Johnson \[Mich.\] for that purpose, or to restrain son from 102 N. W. 278. Question of agency, whether revocable or irrevocable, has no bearing in a suit under a contract which is invalid as against mortality or public policy. Pape v. Standard Oil Co., 2 Ohio N. P. (N. S.) vendor of stock in corporation binding him 514. For effect of illegality on contracts not to engage in same business as corporation is void, since he cannot sell good will pp. 78-96. 200. Where both are equally culpable, v. Dodge, 145 Cal. 380, 78 P. S79. Agreement made in connection with purchase and maiter as between them. Contract to deale of salt, not to purchase salt from any- 100 N. W. 918. Though it has been per- 1000 for cause any to be imported, and to dis- 1000 for the benefit they so that the other has courrage importations by others, held void and no recovery can be had on checks given for consideration. Getz Bros, & Co. v. Federal Salt Co. \[Cal.\] 81 P. 416. Gen. Laws 108 N. W. 668. Though the objectionable 1899, a 559, relating to trusts and monopoles, does not apply to agreement by seller remains only the distribution of the pro- 1000 of business, as part of consideration for asle, not to engage in such business for they years within ten miles of certain town. Espenson v. Koepke, 93 Minn. 278, 101 N. W. 168. Promise by partner on purchase of business by copartner not to engage in same business in that town- so long as the latter remains in the business there is not void at common law or under Laws 1903, p. 119, e. 54. Crump v. Llgon \[Tex. Civ. App.\] 84 S. W. 250. Instruction in action for breach of such contract held to substantially present the issues. Id. 3 How. Ann. St. $ 9354j does not invalidate contract whereby stockholders of corporation, on sale of its business, agree not to engage in similar business for ten years in spec- 1000 for the benefit of the 1000 of the 10 faith and under the mistaken belief that their agreement was legal, where they had knowledge of the facts and the law.\[22\] But when an illegal contract has been fully executed and the interests and differences of the parties agreed upon, and the proceeds deposited to the credit of one of the parties, the person with whom it is deposited cannot set up the illegality of the original contract in an action to recover the money brought by the party to whom it was due.\[23\] A contract valid on its face and which has been partially performed may not, in a court of equity, be shown to be invalid as against public policy in order that plaintiff may do that which he has contracted not to do, and thus take advantage of his own wrong.\[24\]

If the contract is executory, neither party can enforce it \[25\] or recover damages for its breach.\[26\]

The law lends itself to him who would destroy an unlawful contract and only refuses to have anything to do with the matter when both parties are equally guilty and an enforcement of the illegal contract is sought.\[27\] While public policy forbids the enforcement of an illegal or immoral contract, it is equally insistent on the enforcement of contracts which are lawful and contravene none of its rules,

not maintain a bill to recover the money \[to show conclusively that work was per- and for an injunction and receiver. Woodson v. Hopkins \[Miss.\] 37 So. 1000; Id. \[Miss.\] 38 So. 298. Cannot recover that with which he has parted in pursuance of contract in fraud of creditors. Rich v. Hauf \[Minn.\] 104 N. W. 129. Fraudu-Hayes, 99 Me. 51, 58 A. 62. See, also, Monahan v. \[Vt.\] 59 A. 159 Stockholm: to solve the problem of two competing railroads cannot recover specific shares delivered to another corporation in return for its stock in pursuance of a combination subsequently declared illegal. Are only entitled to rattable porportion of assets on dissolution of such corporation. Harriman v. Northern Secur-tiles Co., 197 U. S. 24, 44 Zw. Ed. 739.

**22.** Because they believed that combination for consolidation of competing railroads did not violate Sherman anti-trust act. Harriman v. Northern Securities Co., 197 U. S. 244, 49 Law. Ed. 739.

**23.** Bucket shop accepting margin to cover short sale of stock to third party, who thereafter paid to it for the seller the difference between the market price and sale price of the stock, ended only as self-er's agent, and could not assert illegality of transaction when used by seller for profit. Overholt v. Burbridge, 28 Utah, 408, 79 P. 561.

**24.** On intervention of husband in action by wife for alienation of his affections he obtained an injunction restraining the prosecution of the action on the ground that she was precluded from prosecuting it by a contract of settlement between them. Held, that she could not set up the illegality of the contract without returning the consideration. McL Allen v. Hodge \[Minn.\] 102 N. W. 767.

**25.** Corbett v. Clute, 137 N. C. 546, 50 S. E. 216: Pape v. Standard Oil Co., 51 Ohio C. C. (N. S) 252. Indorsement of certificate of deposit to partner in pool selling business for purpose of enabling indirect to engage in co-operative racing business held not to pass title thereto. Thomas v. First Nat. Bank of Belleville, 116 71. App. 20. Contract fraudulent as to creditors. Rich v. Hayes, 99 Me. 51, 58 A. 62. Pleadings in action to recover for work and labor held not to be covered by the parties.

**26.** Medearis v. Granberry \[Tex. Civ. App.\] 84 S. W. 1070; Poling v. Board of Education \[W. Va.\] 49 S. E. 148. Fraudu-Ient contracts. Somers v. Johnson, 10 N. J. Law, 695, 59 A. 224. Of agreement to represent bank in another state in which he knows it is not entitled to do business. People v. Mercantile Co-op. Bank, 93 N. Y. S. 521. Judgment against plaintiff in for-mer suit against bank for damages suffered in prosecution for doing business in such other state without compliance with its laws by the bank, in which his knowledge of the illegality of the agreement must have been directly involved, held conclusive on that question in subsequent suit for breach of such contract. Id. For breach of a promise to marry a woman already married. Johnson v. Iss \[Tenn.\] 85 S. W. 79. Agreement to purchase farm and hay cut and cocked for a lump sum, plaintiff to take care of the hay, is wholly void under the statute of frauds, and damages cannot be recovered for failure to care for the hay. Schults v. Kosbab \[Vis.\] 103 N. W. 237.

**27.** The fact that one gives a mortgage in consideration of the compounding of a felony does not prevent him from avoiding 5 Cur. Law. CONTRracts $ 3L. 697

and no contract should be held invalid or set at naught on a mere suspicion of illegality.23

If a contract is not severable, the illegality of a part of it renders the whole void.29 If severable, the illegal portion may be rejected and the legal portion retained and enforced.30 The rule is equally applicable whether there are two distinct promises, one to do a legal act and the other to do an illegal one, or one divisible promise, or whether the consideration for the two promises is entire or apportionable.21 Public policy will not avoid a contract embracing an unlawful clause which was mutually disregarded.32

If the principal obligation is void for illegality, the infirmity will extend to and vitiate a contract guaranteeing it, and will constitute a defense open to the guarantor in an action on the guarantor itself.33 Where the consideration for a

It on the ground of duress. Gray v. Free-

enable from agreement to pay guarantied

man \[Tex. Civ. App.1 84 S. W. 1105.

dividends, and enforceable irrespective of

28 Stromer v. Van Orsdel \[Neb.\] 103 N.

Co. v. Greene & W. Tel. Co. \[Iowa\] 101 N.

29. Osgood v. Central Vt. R. Co. \[Vt.\]

W. 742. Evidence held to support finding

60 A 137. Where several parties join in an

that mortgage was a separate transaction

entire contract in which all the promises

of each party form an entire consideration

to influence legislation. Reynolds v. Brit-

for the promises of each of the others, the

intre contract is void if any part of the

onfiguration is illegal. Bensinger v.

miming or shipping coal in territory trav-

Kantler, 123 III. App. 293, revd. on other

greends. 214 III. App. 385, 73 N. E. 874. Con-

tract for sale of salt and agreement not to

business outside of the state, but valid in

import salt or cause it to be imported, and

so far as it relates to business within it.

not to purchase from anyone else. Plain-

Monomgahela River Consol. Coal & Coke Co.

iff could not recover on checks given pur-

V. Jutta, 210 PA. 288, 59 A. 1088. Mortgage

sunar thereto. Gete Brox. Co. V. Federal

saint Co. \[Cal.\] 81 P. 416. Note and trust

husband's debts and to compromise a crim-

dead based on illegal combination agree-

man, in part at least. Evans v. American

to amount used for former purpose and in-

Strawboard Co., 114 III. App. 450. Subscription by defendant for one share of telegone, the

Grown, 69 S. C. 559, 48 S. E. 624. Contract

phone stock and lease of telephone, the

leave being void for want of mutually, the

catracker exempting company from liability

whole contract is void. Co-operative Tel.

To my inties to cattle in excess of agreed

Co. v. Katus \[Mich.\] 10 Det. Leg. N. 187,

amount and from any liability for injury to

103 N. W. 814 One entire consideration

caracter. Sprigs" Adam" v. Rutland R.

cannot be separated, though composed of

Co. \[Vt.\] 60 A. 143. Though contract by

distinct items, some of which are legal and

one erecting shed on railroad right of way

some illegal. Note given for services of

to indememify company for injuries result-

cowbys in earring for cattle in an unlawful

ing from its negligence or otherwise is in

inclusive on the public domain. Tandy v.

valid in so far as it relates to injuries in

Elmore-Cooper Live-Stock Commission Co.

which the public has an interest, it is sev-

\[Mro. App.\] 87 S. W. 614. Agreement be

reuse public service corporations tending

to injuries to plaintiffs property in which

to create a monopoly. Charleston Nat. Gas

public has no interest. Osgood v. Central

Co. v. Kanawha Nat. Gas, Light & Fuel Co.

Vt. R. Co. \[Vt.\] 60 A. 137. Provision in con-

\[W. Va.\] 50 S. E. 876. Agreement to

tract for sale of stone that seller would

pure consent of property owners for con-

struction of trolley line in front of their

by the carrier, if illegal, is separable. Min-

property and to procure municipal fran-

nesota Sandstone Co. v. Clark, 35 Wash. 466,

chise. Susana v. Porter, 137 F. 161.

77 F. 803. Where mortgage is last of se-

30. Whether rendered illegal by statute

ries of three, and each of previous ones be

or common law. Osgood v. Central Vt.

came merged in it, invalid only in so far as

Co. \[Vt.\] 60 A. 137. Part of contract for dig-

it was given as security for margins in illeg

gling drainage canal relating to collateral

legal stock transaction. Conrad v. Lepper

channel held severable and its invidity

\[Wy.\] 81 P. 307. Evidence held to sus-

did not affect validity of contract for dig- mortgage is legal, it is no defense to a suit by the assignee thereof to foreclose it that the consideration for the assignment was illegal.\[34\] It has, however, been held that a bank sued by the endorsee of a certificate of deposit may show that the indorsement was made in pursuance of an illegal contract.\[38\] If property is sold absolutely and unconditionally, mere knowledge on the part of the vendor that it will thereafter be illegally sold, or will be applied to some illegal or immoral use, will not bar an action for the purchase price, unless it is part of the contract that it shall be so sold or used, or unless the vendor aids or participates in the illegal objects otherwise than by the mere act of making the sale.\[38\] A member of a firm cannot preclude recovery by his innocent co-partner of his share of the partnership profits by showing that they were realized in an unlawful manner.\[37\]

The court should admit and consider legal evidence offered to show that the cause of action springs from an illegal or corrupt agreement,\[38\] even though the objection is not pleaded;\[30\] and whenever the evidence of either party, whether introduced for that purpose or not, shows illegality, should of its own motion direct a nonsuit.\[40\] So, too, the appellate court will not enforce such a contract, though the question was not raised in the lower court and is not urged on appeal.\[41\]

SS 4. _Interpretation. A. General rules.\[42\]--The primary rule of construction is to give effect to the intention of the parties.\[43\]_

34. Because assigned as consideration \[ton, 186 Mass. 217, 71 N. E. 550; Hardwick for illegal stock transactions. Conradt v., Carnelean Ca. Co. \[Tenn.\] 88 S. W. 197; Lepper \[Vyo.\] 81 P. 307. \[C.\] 82 C. \[W.\] 83 C. \[W.\] 84 D. \[W.\] 85 D. \[W.\] 86 D. \[W.\] 87 D.

5 Cur. Law. CONTRACTS $ 4A. 699

pe1, 145 Cal. 241, 78 P. 784. Finding that contract did not call for monument similar in design and size to another one held proper. Braun v. Hothan, 87 App. Div. 611, 84 N. Y. S. 8. Contract held to render defendant's liable to plaintiff only for such Iron as was actually used in the building for which it was furnished. Weber v. Farrell, 84 N. Y. S. 272. Iron used in necessary temporary work held to be included in contract. Id. Assignment of contract to variety held absolute and not merely for security, though the Instrument so recited. Aetna Indem- nity Co. v. Ladd (C. C. A.) 135 F. 86. Contract held to enable plaintiff to furnish as much granite as was necessary to make construction walls for bridge and apvances and not merely as much as defendant might call for. United Engineering & Contracting Co. v. Broadmas (C. C. ). A. 136 F. 351. Contractor held to have assumed risk of depth of excavation required, and could not recover extra compensation because levels on plans were inaccurate and it was necessary to go to a greater depth than indicated. Connors v. U. S., 130 F. 609. Agreement to install heating plant "in a good and workmanlike manner," held to require installation in such a manner that it would operate with reasonable success in heating building. Ideal Heating Co. v. Kramer \[Iowa\] 102 N. W. 840. Provisions of contract for construction of breakwater held to require contractors to maintain stakelengths in the proper positions, and to keep them properly trimmed and burning, and they were liable for injuries to vessel resulting from extinguishment of light. Harrison v. Hughes \[C. C. A.\] 125 F. 860. Contract held not to restrict contractors in placing lights to those prescribed therein or to those ordered by the officers in charge of the work. Id. Contract held to require construction of complete damm and not merely the furnishing of materials therefor. Montgomery \[Iowa\] 132 F. 138. Contract for building wall and sloping bank held to entitle plaintiff to 81 per yard for all sloping in excess of 300 yards neccessarily removed, in absence of objection to his removing such excess, though defendant did not expressly consent to such removal, and though plaintiff began to slope at bottom of wall instead of at top. Necessary a question for jury. Dugan v. Kelly \[Ark.\] 86 S. W. 831. Contract for railroad construction work held not give engineer authority to waive written orders for extra work, to make allowances for loss or damages for doing work for which price was fixed by contract, or to bind principal by parol modification. Baltimore & O. R. \[1\] 8250 to plaintiff for drawing plans, as se- Co. v. Jolly Brogs & Co., 71 Ohio St. 82, 72 N. E. 88. Contract held to require compliance the construction of such free escapes as would satisfy tenement house department when completed, and production of their certificate entitled plaintiff to recover.

700 CONTRACTS $ 4A. 5 Cur. Law.

profit. La Favorite Rubber Mfg. Co. v. H. Ceeds, less the amount of a debt owing declannon Co., 118 Ill. App. 491. Contract for payment of advances to agent to be repaid was entitled to compensation for supervising farm before safe. Chaffee V. Conway ing defendant to remain in plaintiffs employment so long as he was in debt to him, held not to constitute such advances a debt which could be recovered by plaintiff on failure of the venture. Arbough v. Shock-ney, 34 Ind. App. 258, 72 N. E. 668, 71 N. E. 322. Use of word "debt" did not import personal liability. Id. Advancements provided for in contract which was supplemental to one employing plaintiff as insurance so-licity, held a part of and not in addition to commissions provided for in primary contract. Id. (Ind. App.) T1 N. E. 232, rehearing denied, 34 Ind. App. 268, 72 N. E. 668. Evidence held to show that use of farm was given plaintiff in return for services rendered in caring for his father and that he was not entitled to recover additional compensation for services rendered prior to subsequent agreement to pay him an additional sum. Durr v. Durr, 26 K.r. L. R58, 82 S. W. 581. Use of farm after father's death held to balance amount of additional compensation to which he was entitled under latter agreement. Id. Where defendant agreed to continue employment if trial for four months was satisfactory, he was not bound to notify him at the end of that period that it was unsatisfactory, on pain of the con-tract. Carter & Co. v. Weber \[Mich.\] 101 N. W. 818. Held that plaintiff should have inferred that it was unsatisfactory from defendants' conduct. Id. Defendant not as-topped from claiming that it was unsatisfactory by failure to answer plaintiffs letters. Id. Minimum compensation provided for held to be $50 per week. Welik v. Wil-Ilamson-Gunnking Advertising Co. \[Mo. App.\] 84 S. W. 144. In action on contract to pay broker certain sum for selling land, instruction that defendants' proposition contained in a certain letter only required plaintiff to secure a purchaser for all the land if it contained an average quantity or timber, held erroneous where letter was silent in that regard. Veatch v. Norman \[Mo. App.\] 84 S. W. 350. Plaintiff held entitled to defendants' exclusive services. Seaburn v. Zachmann, 99 App. Div. 218, 90 N. Y. S. 1005. Contract allowing the employer to disregard orders sent in by a salesman, from persons of doubtful financial responsibility does not authorize him to disregard orders sent in at prices below those authorized. Highland Buggy Co. v. Parker, 5 Ohio C. (N. S.) 838. Evidence insufficient to support plaintiff's claim for extra compensation for nursing and caring for defendants. Services held to have been rendered in pursuance of contract between plaintiff's husband and decedent. Normille v. Osborne, 207 Pa. 56, 86 A. 937. Contract of theatrical employment held not to entitle defendant to make deduction from plaintiffs salary for performance omitted because of absence of other actors, for which neither plaintiff nor defendant was to blame. Wentworth v. Whitney, 25 Pa. Super. Ct. 100. In action for an accounting under agreement whereby defendant was to sell farm acquired under mortrage for-closure and account to plaintiff for pro-closure.

5 Cur. Law. CONTRACTS SS 4A. 701

promised that he would pay the expenses and that a certain per cent. of the pre-of procuring loan to pay third mortgage

miums on all policies issued to plaintiff owned by him on property of plaintiffs, not

and certain of its officers should also be to exceed a certain sum, he was only liable

applied on the note, held not to bind plaintiff

for the actual expense proved. Marks v.

iff to take out any insurance, or at least

Appelbaum, 92 N. Y. S. 239.

that any obligation to do so was conditional

Mnil ecntner requiring contractor "to

take the mail from and deliver it into the

stalments by defendant. Old Dominion Min.
postOffees, mail stations, and cars, held to

& Concentrating Co. v. Daggett & Co.

require him to carry it from his wagons up

\[Vash.\] 80 P. 839. Yeudee of mortgaged

to the stations or cars of an elevated rail-

land agreed with mortgagor to pay what

road. Utah Stago Co.'s Case. 39 C. Cl. 420.

was "actually due" on the mortgage debt.

**Mining contracts** See, also, Mines and

Minerals, 4 C. L. 649. Contract providing

vendee sued to restrain a foreclosure, alleg-

that money advanced for formation of mining a tender of the amount actually due.

ing company shall be repaid out of the pro-

Held, that injunction should have been conceeds of "ore sales, compromises, or other-

tuned to final hearing to determine

wise," and that no other money shall be

whether words "actually due" meant the

paid out, except for necessary operations,

face of the note or the amount legaily due.

until after such reaprament, held to mean

Erwin v. Morris, 137 N. C. 48, 49 S. E. 53.

that if net proceeds of ore sales and com-

Defendants converged land to plaintiff by

promises does not amount to enough to

w warranty deed. Later it appeared that there

liquidate such claim within a reasonable

\[r\]er outstanding tax claims against it

\[r\]em, the obligation shall become absolute.

\[r\]em, regarding his liability

McIntyre v. Ajax Min. Co., 28 Utsh, 162, 77 P. 613; White v. Century Gold Min. & Mil Mil Mil.

to plaintiff as security a house subject to a

Co. 28 Utsh, 331, 78 P. 868. Limitations do

not begin to run against plaintiff's cause of

counted a contract to plaintiff guaranteeing

action until expiration of reasonable time

the "payment of the taxes" in my event and

after creation of the obligation, and pla of

that they should suffer no loss. The house

limitations cannot avail on appeal where it

was sold under the mortgage and plaintiff

does not appear from records or findings at

never realized anything from it. Held, that

what date reasonable time elapsed. Id.

a verdict was properly directed for defend-

Relating to mortgages: A contract by a

ant. Bigelow v. Stearns \[Mich.\] 100 N. W.

mortgage not to enforce his unsecured

125.

claims against the equity of redemption of

A guaranty of "the payment of all billing

the mortgagor does not preclude him from

payable by this contract" includes a bal-

acquiring legitimate claims of other par-

ance of the total amount of the minimum

ties and enforcing them, unless at the time

attract price remaining unpaid. Kloster-

it was executed mortgage entertained

man v. United Elec. Light & Power Co.

sign of thereafter doing so for purpose of

\[Mid.\] 60 A. 251. Agreed consideration for

preventing mortgagor from obtaining ben-

contract whereby plaintiff was to receive

\<fit of the contract. Rich v. Hayes, 99 Me.

money on deposit and pay it out to defend-

51, 58 A. 62. Release by mortgagor to mortgagor to mortgage

and yet creditors held to have been the use by

gage held broad enough to embrace equity

plaintiff of the deposit, which was not to be

of redemption. Leusenho v. Einsfeld, 93

allowed to fall below a certain sum, and

App. Div. 68, 87 N. Y. S. 268. Contract held

to authorize retention of senior mortgage

\[ng of the orders would afford him, and he

until advancements were paid and to pre-

vent purchase of equity under junior mortgage

\[Fla.\] 36 So. 59.

operating as payment of senior mortgage.

Sales: Seo, also, Sales, 4 C. L. 1318. Con-

Continental Title & Trust Co. v. Devlin, 29

\[r\]act held agreement for shipment of cot-

Pa. 380, 58 A. 843.

Payment: Contract authorizing defendant

to pay out of sums due on with whom he

\[r\]em, M. V. People's Bank \[Ark.\] 84

had & contract for cutting certain timber

"the actual labor claims incurred in cutting,

printing press at a certain time requires

removing, and logging said timber," and

\[n\] installation of one fully equipped to do the
CONTRACTs $ 44.

5 Cur. Law.

only such Iron as they would naturally and might be ordered from time to time, held, reasonably accumulate in such business as then conducted, and not iron purchased from wholesalers on drop in price. Helper and fact that contractor became bankrupt v. MacKinnon Mfg. Co. \[Mich.\] 101 N. W. and that contract was annnled did not reflect. Hardwick v. American Can Co. \[Tenn.\] 88 S. W. 791. Contract for sale of telephone line held not to have vested title there or exclusive control in the buyers before the expiration of five years. Murphy v. \[Tex. Civ. App.\] 84 S. W. 678. Contract held to mean that title to lumber bought with money advanced by bank should remain in it until such money was repald, when when remained was to be transferred to and become property of plaintiff. Dennis v. Montesano Nat. Bank \[Wash.\] 80 P. 764. Agreement by sellers of fishing plants not to engage or become interested in business of catching certain fish or manufacturing their products along the Atlantic coast for twenty years, held personal in its nature and to preclude them from engaging in such business on Chesa-peake Bay. Fisheries Co. V. Lennen \[C. C. A.\] 130 P. 533. Evidence held not to show contemporaneous oral contract to furnish defendants with employment. Id. Provision in contract for purchase and sale of specified quantity of goods "deliveries to be made as wanted until further agreement" helped not to give purchaser right to refuse to accept goods no matter when tendered, but he was bound to accept within a reasonable time. Dunn v. Mayor Mills \[C. C. A.\] 134 P. 804. Under contract to furnish government supplies in such quantities as the product of the 5 Cur. Law. CONTRacts $ 4A. 703

was breach. Mason v. Edward Thompson son's hands, dependent upon decision of the Co. \[Minn.\] 103 N. W. 507. Contract under which G. was to be permitted to use certain premises for piling granule to be fur- tudy of the law by proceedings under trus- nished plaintiff, held to entitle him only to toe process. Id. Subsequent death of so much of the space thereon as he actually deduptor and insolvency of his estate did not needed, and where he was furnished that affect creditor's rights. Id. Contract be- much he was not excused from performance because he did not have it all. Degonon-Me- lealer, whereby latter was to carry a special-Lean Const. Co. v. City Trust; Safe Deposit & Surety Co., 99 App. Div. i%5, 90 N. Y. S. 1029. Contract whereby defendants agreed to settle "by return of lamps * * to be at the expense of all actions and legal proceedings necessary for obtaining or maintaining certain railroad franchises, held to give dealer option to pay note by held not to entitle plaintiffs to employ their own attorneys to take part in any litigation regardless of whether they were in- terested therein or not, and regardless of the necessity thereon, and defendants were not liable for fees of attorneys so employed. \[Mich.\] 12 Det. Leg. N. 131, 103 N. W. Johnson v. Atlas Imp. Co., 92 N. Y. S. 556. Contract de furnish water power Mere fact that defendants consented to co- operation of attorneys so employed held not to make them liable. Id. Plaintiff held en- tiled to recover for cutting up of meadow by street railway company under oral Mine Co. v. Boston & M. C. Copper & Silver agreement to compensate him thereon, though not entitled to do so under written agreement for use of a part of the land for a right-of-way. Quigley v. Montgomery & C. Elec. R. Co., 208 Pa. 238, 57 A. 512. Contract whereby each of two mercantile houses acquired interest in gross profits of the other held not to provide for such a sharing of profits as to create a partner-ship. Fechteler v. Palm Bros. & Co. \[C. C. A.\] 133 F. 462. Acceptance of order for payment of money held conditional only on the value of certain lumber on the switch between the date of the order and the time named therein for its payment. Flecter v. Simms \[Ark.\] 86 S. W. 993. Evidence held to show that plaintiff had authority to sell a certain farm and hence he was entitled to part of commissions received by defendant for making sale, under agreement between them to divide commissions on business turned over to defendant by plaintiff. Roush v. Gesman Bros., 126 Iowa, 493, 102 N. W. 495. Contract to furnish fuel oil hold to show intention that it should be modified to conform to new conditions in case 'ertain wells should cease to gush, and parties not having been able to make new contract, court could not make one for them. \[Lal.\] 38 So. 958. Money which a debtor on disclosure claimed as exempt was deposited with a third person and agreement in writing entered into to the effect that the creditor should commence suit against the debtor as principal and the third person as trustee, and reciting that said arrangement was made for the purpose of testing the creditor's right to the fund, and that it was agreed that all provisions of law should be available in defense as though the fund had remained in the debtor's hands. In suit commenced by trustee process, it was decided that the fund was not exempt. Held, but the703 N. Held, 486 S. W. 1029. Contract whereby defendants agreed to settle "by return of lamps * 704 CONTRACTS $ 4A. 5 Cur. Law.

If the language of a written contract is clear and explicit, it alone must govern."

Courts cannot interpolate terms as to which the minds of the parties have not given assent," but stipulations which are necessary to make the contract reasonable and conformable to usage will be implied with respect to matters concerning which no contrary intention is manifested."

A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties." When two constructions are pos-

to the operation of the works. Lone Star be sought from the language used. Kep-Salt Co. V. Texas Short Line R. Co. \[Tex. \] hart V. Budecke \[Coq. App.\] 89 P. 501. If Civ. App.\] 86 S. W. 355. Contract in settle-

possible must be ascertained from the in-

ment of will context providing that one

strument itself without resort to extrinsic

party should have all property standing in

circunstances. Carnegie Nat. Gas Co. v. name of deceased at time of his death

South Penn Oil Co. \[W. Va.\] 49 S. E. 548.

"which said property is more particularly

The purpose of the court is to arrive at the

described in a quicklam dead executed in

meaning of the parties as it may be gath-

conformity with this agreement," held to

credit him to reality which was discovered,

necessarily what may have been in their

after execution of instrument, to have been

imals. Harmon v. Thompson \[KY.\] 84 S. W.

so owned by deceased, though not described

569. One writing a contract may not ques-

in the dead. Lamona v. Cowley, 3i Wash.

tion the plain and obvious meaning of its

297, 71 P. 1049. Provision giving author

righth to object to assignment of copyrights

held valid and to prevent their sale by publisher's trustee in bankrupty. In re McBride & Co., 132 F. 285.

what his language, under the circumstances

Bridge & Co., 132 F. 285.

In the

Lense of lot "as a cattle feeding lot" held

not to require lessce to divide lot into pens.

something different, which he did not ex

or to pin cross-fences, or pipins, or feed-

press, and which a person dealing with him

ing troughs, but merely to give him

reither understood or had reason to under-

mission to do so with privilege of removing

them at end of lease. Lillard v. Kentucky

Distilleries & Warehouse Co. \[C. C. A.\] 134

the completion of the work provided for in

F. 168. Contract to quarry marble held to

a written contract is left blank, the court

give plaintiff right to demand pay for all

cannot say that the parties intended to fill

marble stripped by him which he should

turn, or what insertion they intended to

quarry before a specified date provided he

Rullified contract in all respects, and hav-

afd. 211 Ill. 79, 71 N. E. 858. Even if a party

ing failed to quarry amount required by

that authority to fill thanks in written

contract, he could not recover damages for

defandants' refusal to permit him to quarry

marble so stripped. Freedley v. Wilson \[C. \] C. A.\] 136 F. 586.

44. Fletcher v. Simms \[Ark.\] 86 S. W. 993; Midland Sav. & Loan Co. v. Solomon

\[Kan.\] 79 P. 1071; Dennis v. Montesan Nat.

Bank \[Wash.\] 80 P. 764. Wilson's Rev. & Ann. St. 1903, **SS 789**, 790. American Soda

Foundation Co. v. Gerrer's Bakery, 14 QUL. 258.

78 P. 115. Whatever may be the result, and

whether foolish or not. Santa Fe St. R. Co.

v. Schutz \[Tex. Civ. App.\] 83 S. W. 39. The fact that the profits under a contract are

large does not prevent its enforcement,

where, in an action for loss of profits on

a contract which defendant refused to permit

to fully perform, the contract

is established and the cost of doing the

work merchant is found by the jury on

sufficient evidence, the fact that the cost

would have been much less than the

tract price is immaterial, and does not

end a verdict for the difference excessive.

Norton v. Shields, 132 F. 873. Provision as

to what laws shall govern. Midland Sav. & Loan Co. v. Solomon \[Kan.\] 79 P. 1077. Con-

tracts are matters of fact to be decided by

their terms and stipulations and the intent

of the contracting parties. As to place of

sale of Invalcating liquor. Keller v. State

\[Tex. Cr. App.\] 87 S. W. 669. Intention must

\[ 5 Cur. Law. CONTRACTS $ 4A. 705

sible, that will be adopted which is most equitable, and which will not give an unconscionable advantage to one party over the other.48 So, too, a reasonable construction will be preferred to an unreasonable one,49 one rendering the contract binding and operative to one rendering it inoperative,50 and one rendering it lawful to one which would make it unlawful.51 Agreements waiving legal rights will not be construed or extended beyond the fair import of their terms.62 Explicit provisions control those which may be implied.53

Footnote 48: Allemong v. Augusta Nat. Bank, 103

Work injury to either party. Czarnowski Va. 243, 48 S. E. S97. Courts contrure agreements so as to prevent a failure of justice.

SI. Vilson's Rev. & Am. St. 1903, $ 794. and hold dependent covenants to be independent when the necessity of the case and the ends of Justice require it, notwithstanding the form. Id. Provision in compromise agreement in regard to alleged void conveyance of land, for satisfaction of an in-dividual indebtedness released by one of the parties, and a pro rata division of the balance of the proceeds of a sale by a trustee, held not dependent upon provision for sale for particular sum, so as to require a pro rata deduction of the amount to be applied on the debt on forced sale for less amount. Id. Where sale was never made, held that action would be in equity to compel sale and distribution. Id.

- 49. Czarnowski v. Holland, 5 Aris. 119, 78 P. 890; Allemong v. Augusta Nat. Bank, 103

An actual delivery was contemplated. Wig-Va. 243, 48 S. E. S97. Civ. Code, 5 1643.

Edin v. Federal Stock & Grain Co., 77 Conn. Adams v. Hopkins, 144 Cal. 19, 77 P. 712.

Contract for manufacture and sale of ice as intended to be made in violation of the held not to require plaintiff to manufacture

law whenever by any reasonable construccion it can be made consistent wfth the defendant, but that latter was bound to pay

law. Note executed by married woman as for the amount called for by the contract which plaintiff was ready to manufacture.

rather than Indiana contract which would Citizens' Bank v. Taylor & Co. \[Va.\] 61 S. E.

rendez it invalid, notwithstanding fact that

159. Provision in contract for sale of land that it should be void in case title thereto

manent. Garrigue v. Keller \[Ind.\] 74 N. E.

was not good or could not be made good

152. Particularly true in a criminal case.

held to apply to defects arising subsequnity, as where wife refused to join in

tract for sale of liquor. Keller v. State

ded to homesetad, and to be available to

\[Tex. Corp.\] 87 S. W. 669. In action on

contact to pack fish, providing for stipu-

104 N. V. 10.

cando damages in case plaintiff failed to

pack specified number of cases per day, in-

78 P. 890: Semon, Bache & Co., Coppese,

struction that he could not be charged for

Zook & Mutscher Co. \[Ind. App.\] 74 N. E.

any shortage occurring on Sunday and

41: Hardwick v. American Can Co. \[Tenn.\]

could not offset amount packed on Sunday

88 S. W. 797. Option on oil and mineral

against amount of shortage on other days

rights, on its being accepted, held to bind

help proper, there being no evidence that

plaintiffs to explore land within two years

contract required him to work on Sunday, by sinking wells, and to operate same so as

\[Mo Fum.\] 74 N. E. 314. Contract by defendant

so Grum v. Fidridge Island Canning Co., 87

to yield defendant a royalty, and they were

wash. 238, 79 P. 797.

not in any event entitled to deced provided

for by option until gas, oil, or minerals

were found in paying quantities. Berry v.

Frisble \[Ky.\] 86 S. W. 588. Should be construed as to make the obligations imposed

78 P. 890. Should be construed as to make the obligation imposed

mutually binding unless such construction

is wholly negatived by the language used. Hardwick v. American Can Co. \[Tenn.\] 88

88 N. V. 797. That construction will be

adopted which makes performance possible

or avoids a forfeiture, or is reasonable and

just. Rankin v. Rankin, 111 Ill. App. 403. A construction

unbolding the contract

should be preferred to one nullifying it,

where it appears that the enforcement of

the contract is reasonable and will not

5 Curr. 4 4S.

- 706 CONTTRacts $ 4A. 5 Cur. Law.

sible being given to every word and clause.\[55\] Words which do not add to or take from a written contract in any legal sense may be rejected as surplusage,\[56\] but no provision should be ignored or expunged if it is possible to avoid it, nor unless it clearly appears that such provision is annulled intentionally by other provisions,\[57\] and no word regarded as superfluous if a meaning which is reasonable and in harmony with the other parts of the contract can be assigned to it.\[58\] Repugnant words may be rejected in favor of a construction which renders effectual the evident purpose of the entire instrument.\[59\] In case of a repugnancy between clauses, the one which essentially requires something to be done to effect the general purpose of the contract itself is entitled to greater consideration than one tending to defeat a full performance.\[60\]

The most obvious and natural construction should be adopted,\[61\] technical rules being disregarded in favor of the meaning and intention as gathered from the whole instrument.\[62\]

Co., 144 Cal. 670, 78 P. 287: Kephart v. Bud-

councity physician held to relate to some decke \[Colo. App.\] 80 P. 601; Westfall v.

antecedent or consequent, evidently omit-

Albert, 212 Ill. 68, 72 N. E. 4; Morrill &

ted by mistake, in the absence of which it W. Const. Co., W. Boston, 186 Mass. 217, 71

failed to perform any office. Id.

N. E. 550: Allemm v. Augusta Nat. Bank.

103 Va. 243, 48 S. B. 897: Carnegie Nat. Gas

569.

Co., Youth Penn Oil Co. \[Vw. Va. 149 S. E.

583: Kephart v. Buddecke \[Colo. App.\] 80

548: Vocalion Organ Co., V. Wright, 137 F.

P. 501. Bond given by bank and sureties

313. The intention is to be ascertained by

an examination of the whole instrument,

and of its effect upon any proposed con-

and that bank should keep, etc., "all said

struction, and such a construction should

be adopted as will carry that intention into

afforesaid," held to cover deposits made

effect, although single clause considered

for to execution. Id.

alone would lead to a different construction.

59. Morrill & W. Const. Co. v. Boston,

186 Mass. 217, 71 N. E. 550.

A. 1657. Provision in contract to furnish

e0. Contract for creation of building

help to require contractor to do plastering.

self to furnish current at any particular

Morrill & W. Const. Co. v. Boston, 186 Mass.

time after contract was signed held to have

been intended only to cover delays due to

strikes, etc. Klosterman v. United Elec.

Light & Power Co. \[Md.\] 60 A. 251. Word

"hell" should be read in connection with all

the other stipulations of the contract in

determIngher whether a present sale or a

contract to sell is intended. Pacific Export

Lumber Co. v. North Pacific Lumber, Co.

\[Or.\] 80 P. 105.

55. Kephart v. Buddecke \[Colo. App.\] 80 P. 501; Westfall v. Albert, 212 Ill. 68, 72 N.

N. E. 4; Wheaton v. Bartlett, 105 Ill. App. 326;

Cochran v. County of Vermillion, 113 Ill.

App. 140: Carnegie Nat. Gas Co. v. South

Penn Oil Co. \[Vw. Va.\] 49 S. E. 548. Dead

and contemporaneous contract. McCoy v.

Griswold, 114 Ill. App. 165. Defendant held

liable only for such delays in procuring

right of way for drainage canal as it could

not in the exercise of good faith and re-

sonable diligence prevent. Sanitary Dis-

trict of Chicago v. McMahon & Montgomery Co., 110 Ill. App. 610. General words

will not be restricted by previous particu-

lar ones when result would be to require

their rejection as surplusage. Gage v.

Cameron, 213 Ill. 146, 72 N. E. 204, rvs.

Cameron v. Sexton, 110 Ill. App. 381.

56. Minnesota Sandstone Co. v. Clark, 36

with a 466, 77 P. 803. May be excluded or

disregarded when necessary to effectuate

intention. Cochran v. County of Vermillion,

113 Ill. App. 140. Word "such" preceding

word "residents" in resolution employing

114 Ill. App. 141.

56.

01. Cur. Law. CONTRACTS SS 4A.

Words should be given their popular and accepted meaning in the absence of anything showing a different intention.63 So, too, the contract should be given its natural, grammatical construction.64 The spirit and intention, however, will control the literal meaning.65 Technical words are to be construed as usually understood by persons in the profession or business to which they relate.66

Footnote 63: The word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word _"_ is the word \_"\_is the word _"_ is the word \_"\_is the word \_"\_is the word \_"\_is the word \_"\_is the word \_"\_is the word \_is the In case of ambiguity the practical interpretation put upon the contract by the parties themselves may be looked to to determine their intention.\[70\] Ambiguity calling for construction may appear from language clear in itself but leading to some absurd result when applied literally to the situation with which it deals.\[71\] Written or typewritten provisions control printed ones.\[72\] When an enumeration of specific things is followed by general words or phrases, the latter are usually held to refer only to things of the same kind or class as those specified.\[73\] The rule does not, however, apply unless the word "other" is used,\[74\] nor where its application would operate to defeat a larger intent as gathered from the whole instrument,\[75\] or to deprive the general words of all meaning.\[76\] Laws existing at the time and place of making a contract and where it is to be performed enter into and form a part of it as though incorporated therein.\[77\] If ambigious the contract will be construed most strongly against the party preparing it,\[78\] and in the sense in which the promisor believed at the time of making it that the promisee understood it.\[79\] Co. v. Gerrer's Bakery, 14 Okl. 258, 78 P. \[the parties. Camardella v. Holmes, 97 App. 115. The intention of the parties, to be \[Div. 120, 89 N. Y. S. 616. Agreement to in- ascertained from the words employed, the \[t\]\] water system and hydraulic ram held connection in which they are used, and the \[t\]\]\]\]\]\]\]\]\]\]\]\]\]\]\]\]\]\]\])))))))))))))))(( 5 Cur. Law. CONTRacts SS 4B. 709

(SS 4) _B. What is part of contract._\[80\]--Where a contract consists of several different instruments, each will be read and construed with reference to the others, and the contract will, if possible, be given effect as a whole.\[81\] So, too, several agreements between the same parties made at the same time and referring to the same subject-matter will be construed together as though constituting a single instrument.\[82\]

to exist. The promisor is presumed to be | SL. Constitution of benefit association such party. Czarnowski v. Holland, $ Ariz. | and application for membership. Sterling |119, 78 P. 890. Contract for shipment of | V. Head Camp, PacInte Jurisdiction, Wood-cotton. Allen-Vrest Commission Co. v. Peo- men of the World, $28 Utah, $26, 80 P. 1110, |Elsls |Ark.| $4 S. W. 1041; Leslie v. Contract for purchase of books and notes given pursuant thereto. Mason v. Edward read require defendant to use every effort to Thompson Co. \[Minn.\] 108 N. W. 507. A set aside a sale of certain landing on a judge- butliding contract and the plans and special-ment, and, in the event that he succeeded |facing. First Nat. Bank v. Mitchell, 46 in doing so, to recovery 80 acres and |Misc., 80, 93 N. Y. S. 231. Compromise |tain the balance as his compensation. Id. Agreement and "addendum" thereto. Ben-where defendant, falling to recover the land'by suit, redeemed from the execution |of several contracts for the purchase of sale, held that he would be deemed to have acted under the contract and would be held |of the others and the stock bought under to a reconvayance of the $0 acres, whether one stood as security for the performance |of it alone. Wiggin v. Federal Stock & or not. Id. Empployment. Silberman v. Granin Co., 77 Conn. 607, 59 A. 607. Held |Schwarez, 45 Misc. 352, 90 N. Y. S. 882. |Mater drawn by subcontractor in favor |where the terms of a grant are ambiguous or self-contradictory, they are to be construed in connec-strued most favorably to the grantee. Lesee held to have had right to hold for two |rel1, $4 N. Y. S. 275. |Mater in settlement of stock, and agreement in |standing notice of termination by lessor, or |to quit at end of first additional year. |202. Power of attorney to vote shares of |Mater on stock held irrevocable under agreements |Mater on the parties. Id. McCoy v. Gris- sell defendants a half interest in mining |Mid. 111. App. 556. Civ. Code, $ 1642. |Mater for purchase of salt. Contract not be made by defendants for litigation and |to purchase from any one else and to re-improvements to apply on purchase price. By subsequent contract such advances were |be imported, and checks given in pursuo- to be requal defendants, and by third |Mater on transaction. Getz Bros. & Co. v. |Mater was conveyed, did |"assume and |Mater on execution of dead of conveyance. per" the first contract. Held, that words |"as per" referred to the advancements and did not qualify the words |"assume and agree to pay" and did not abrogate provisions of second contract providing for |Mater on the parties. Gibson v. Milner, 28 Utah, $38, 79 P. 556. Where the terms of the contract are plain and unambiguous |Mater on the parties and theirs are |Mater on the parties. Id. The reason why the contract was drawn by contractor property |Mater on the parties.

\*\*

**(SS 4)** _C. Character; joint and several, entire or divisible, etc._**--Whether the contract is joint, several, or joint and several, generally depends upon the intention of the parties.**

The question whether the contract is entire or divisible is one of construction, the intention of the parties controlling.**\[85\] A severable contract is one in its nature and purpose susceptible of division and apportionment, having two or more parts in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each other and not intended to be.**

**(SS 4)** _D. Custom and usage._**\[87\]--The general customs and usages of the trade in respect to which the contract is made form a part of it,** and proof thereof is admissible to annex a term, or to explain ambigious or technical terms, but not to vary or contradict the plain meaning of the language used.\*\*\[89\]

**for sale of slop by distilling company and**

**lease of land by purchaser to company to be**

**ceeds of sale of such stock in accordance**

**used for feeding purposes held separate**

**with the contract. Id. So as to enable and distinct contracts, each complete in it-**

**spurchaser of goods to keep part and re-self and requiring no reference to the other**

**turn part because not according to sample.**

**to be understood. Lillard V. Kentucky**

**Barnett v. Becker, 25 Pa. Super. Ct. 22. Distilleries & Warehouse Co. \[C. C. A.\] 134**

**Contract whereby complainant agreed to**

**F. 168.**

**S3. See 3 C. L. 832. See, also, SS9a, post,**

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5\. Cur. Law. CONTRracts SS 4E. 711 (SS 4) _E. As to place, time; and compensation._"0--Where a contract is by its terms to be performed on a day named, both parties have the whole of the business day in which to tender performance."

A contract silent as to the time of performance must as a general rule be performed within a reasonable time." So, too, performance according to the terms of the contract having been prevented by one of the parties, the other has a reasonable time after request in which to fulfill, if he so desires."

At common law, time is always of the essence of the contract, and the same rule applies in equity if it appears from the contract that the parties so intended." The modern rule, however, appears to be that time is never regarded as of the essence of the contract unless the parties expressly so stipulate, or the nature of the subject-matter or the surrounding circumstances renders it probable that-they so intended." One cannot enforce a forfeiture of a contract to convey the contract. Id.

tion see Customs and Usages, 3 C. L. 988. (see, also, Hammon on Contracts, SS 394, p. 95. Evidence held to show that time was not of the essence of. a contract whereby L. 1680, as to rules for Computation of plaintiff furnished certain bags to defendtime; and Payment and Tender, 4 C. L. 955, as to medium and manner of payment.

- 91. Brauer v. Macbeth \[C. C. A.\] 128 F. 97. Under option to purchase land to extend 20 days from February 3rd, vencee has' whole of February 23rd in which to purchase. Holmes v. Myles \[Ala.\] 37 So. 588. (see, also, Time, 4 C. L. 92. Tingue v. Patch, 93 Minn. 437, 101 N. 10. 11.

land for the purchaser's failure to make payment in time, without the consent of one to whom he has conveyed it as collateral security. \[90\]

A contract to give one permanent employment for as long as he desires to retain his position and his services are satisfactory is not enforceable unless he fixes the period of his services at the time he presents himself for work. \[97\]

Electing one an officer of a corporation does not ordinarily constitute a contract of employment with him for a stated time. \[98\]

Where the relations of the parties to a contract of employment are continued after the expiration of the year for which it was made without making any change or new agreement, the terms and conditions of the old contract are thereby continued. \[99\]

_Payment._\*\*--\*\*Parties may agree upon the commodity in which payment for services may be made, and having done so may not insist on some other measure of their value. \[2\] In the absence of a stipulation to the contrary, the character of money current at the time fixed for performance of the contract is the medium in which payments may be made. \[3\] Where the mode of measurement for ascertaining the amount to be paid is specified in the contract, that mode, and no other, must be followed. \[4\] In case such method is impossible, plaintiff may recover on a quantum merit, resort being had to the best evidence obtainable to ascertain the amount due. \[5\] Where a contract of sale is silent as to the mode of payment, it is competent to prove a general custom among dealers in that regard. \[6\]

Where no time is fixed for payment for personalty sold \[7\] or services rendered,

Swank v. Fretts, 209 Pa. 625, 59 A. 264. See,

aiso, Vendors and Purchasers, 4 C. L. 1769.

96. Under the circumstances held proper

less where it was conceded that United

to refuse to cancel contract, and to decre

States money was within the contemplation

specific performance. Shaw v. Benesh, 37

of the parties when the contract was made,

Wash. 457, 79 P. 1007. See, also, Vendors

and Turkish shares, 4 C. L. 1769.

97. Hickey v. Klam \[Tex. Civ. App.\] 83

01. W. 716. Contract held not for definite

01. Contract for lighting streets in Porto

term. Id. Where by the contract of emplovern the term of employment depends

the medium of payment. Id.

on the mere volition of the employer, he

4. Souther Iron Co. v. Leedede Power Co.

may discharge the employe without giving

\[Mo. App.\] 84 S. W. 450. Where construc

employe opportunity to exercise his right

to fix the term. Id.

submitted to arbitration, held that, in an

98. In absence of showing that plaintiff

corporation agreed to continue its business

during president's term of office, or to re-

train him as general manager after it ceased

doing business, it was not liable for his

sslarry after a sale of its business to de-

fendant, and hence defendant was not

bound to repay salary thereafter paid him,

under agreement to hold plaintiff harm.

1d.

less from all claims, on account of con-

tracts, debts, etc. Busell Trimmer Co. v.

Coburn \[Mass.\] 74 N. E. 334.

99. Morgan v. McCaslin, 114 III. App. 427.

L. See 3 C. L. 834, 88; see, also, & 4a,

ante.

**Z.** Plaintiff agreed to purchase piano

for part cash and balance in advertising.

Held, that he could not repudiate his obll-

gation to receive piano' and recover pay-

some other adequative appliance must be

ment for advertising in money because all

the advertising contemplated had not been

done, defendant having waived his right to

the balance. Mail & Times Pub. Co. v.

Marks, 125 Iowa, 622, 101 N. W. 458.

**3.** Error in instructing that time of

making contract was to be alone consid-

ered in determining what was the foreign

sslarry after a sale of its business to be

5 Cur. Law. CONTRACTS SS 5.

payment must be made on performance.\* Where a contract for services provides for payment of a certain sum per month, payment is not due until the end of the month, in the absence of provision to the contrary.\* One voluntarily, and in variation or change of the contract, making a payment which the contract requires the other party to make cannot recover it from him on rescission of the contract.\[10\]

(SS 4) _F. What law governs._\[11\]--As a general rule the lex loci contractus governs in determining the validity and effect of the contract, and the lex fori determines the course of procedure in giving redress thereon.\[12\]

SS 5. _Modification and merger._\[13\]--The parties to a contract may at pleasure and by mutual assent, alter or modify it,\[14\] and cannot limit their right to do so.\[16\] An agreement to modify a previous one must be supported by a new consideration \[16\] and have all the essential elements of a contract.\[17\]

As a general rule the alteration must be made by an instrument of equal dignity with the original contract.\[18\] By statute in some states a contract in writing may be altered by a contract in writing or by an executed parol agreement, and

Kibler v. Capilla \[Mich.\] 12 Det. Leg. N. 57,

deducted from the contract price, mutual 103 N. VV. 631. Payment for hides due

agreement of the parties during progress

when they were prepared as required in

of the work that plans shall be changed

contract. Id.

and part of contract wavled does not work

S. Services under contract for drilling

an abandonment of the old contract and

well. Poland v. Thomaston Face & Ornamental Brick Co. \[Me.\] 60 A. 795.

Gray v. Jones \[Or.\] 81 P. 813. Acceptance

of bill of lading by shipper held not to

in the middle of which she rescended it.

asment to assent to alteration of contract

Seymour v. Warren, 93 N. Y. S. 651.

of shipment so as to relieve company from

10. Taxes. Seymour v. Warren, 93 N. X.

Iiability after delivery of lead to steamship.

S. 651.

Northern Pac. R. Co. v. American Trading

Co., 195 U. S. 439, 49 Law. Ed. 269.

12. This subject is fully discussed under

the title Conflict of Laws, 5 C. L. 610.

13. See 3 C. L. 834.

01. A prior contract may be rescended by

a subsequent one where the latter in terms

purports to reseach or modify it. Berkey

v. Lefebure & Sons, 125 Iowa, 76, 99 N. W.

710. Where one selling several invokes of

goods to be paid for on specified dates afterwards entered into verbal agreement

wherehy the time of payment on invokes

not yet due was accelerated, held, that he

could, after the last date for payment mentioned in the original agreement, sue upon

a part of the invokes based on his book account, and was not bound to sue on the

verbal agreement, It not having operated

to extingh the original debt, but merely

to modify and change the terms of sale.

Wess v. Marks, 23 Pa. Super. Ct. 602. Evidence held to show that agreement In re-

gard to payment for certain fixtures was

subsequently changed, and hence suit was

not prematurely brought. Allum v. Nolle,

25 Pa. Super. Ct. 220. Evidence held not to

show modification of contract between manufacturer of electric lamps and dealer by

subsequent oral agreement. Union Trust

Co. v. Michigan Elice, Co. \[Mich.\] 12 Det.

Leg. N. 131, 103 N. W. 566. Evidence held

not to show extension of time for payment

of notes. Mason v. Edward Thompson Co.

\[Minn.\] 103 N. W. 567. Where building contract provided that alterations and additions might be made during the progress of

the work without affecting its validity, the value of the changes to be added to or not otherwise.19 Such a provision does not, however, preclude the application of the doctrine of equitable estoppel to defeat an action for nonperformance, where sufficient cause therefor exists.20

In order that a contract may be a renewal of a former one, it must be between the same parties.21 An undertaking to be liable only in the event that another person fails to pay cannot in law be a renewal of an obligation to pay absolutely and at all events without regard to the liability of another.22

\_Merger.23--\_The taking by a creditor of the debtor's note for the existing indebtedness does not merge or extinguish the indebtedness.24

SS 6. \_Discharge by performance or breach. A. General rules.25--\_A contract is broken when either party wholly or partially refuses to perform the obligations imposed on him thereby.26

19. Civ. Code, SS 1698. Parol agreement

when default is made in payment, creditor reducing rate of interest on mortgage pro- may sue upon the original demand and vlided mortgagor would pay all taxes, held valid as far as executed. In re McDou-

the trial. Hildebrand v. Falitot, SS 2N. Y. S. gald's Estate, 145 C.196, 79 P. 876. Rev.

804. See Negotiable Instruments, 4 C. L. Codes, 1599, SS 3936. Where, by mistake, 787, for a full discussion of this question.

land was erroneously described in contract

26. Arbaugh v. Shockney, 34 Ind. App.

of sale, held, that contract was modified by acceptance of deed for that intended to be covered in accordance with offer of deed.

688. One engaged in the commission busi-fendant. Benesch v. Travelers' Inc. Co. IN. D.\] 108 N. W. 405. Plaintiff's conduct held such as to induce defendant to believe that

be accepted his offer to modify contract, and hence he would not be heard to say that he did not intend to do so. Id. Extinguished by defect in premises, which defend-

tion of written contract, and complete sat-

isfaction, which relieved defendant from liability for breach of contract. Id. Okl. St. 1892, c. 16, art. 5, $ 7. Neverman v. Bank of Cass County, 14 Okl. 417, 78 P. 382. Wilson's Rev. & Ann. St. 1903, SS 829. Unsecuted parql modification of contract to sell land unenforceable. Halsell v. Renfrow, 14 Okl. 674, 78 P. 118.

20. Civ. Code S. D. & 1287. Plaintiffs estipped to maintain action for loss due to failure of defendant to keep buildings insured where such failure was due to their own objections. Fransen v. Regents of Education of South Dakota \[C. C. A.\] 133 F. 24. Complaint held to set forth but two causes of action, one on a quantum merit for services rendered to deceased, and the other for breach of a contract between plaintiff's father and deceased for plaintiff's benefit. Cooper v. Claxton \[Ga.\] 50 S. E. 399.

01. Contract between plaintiff and deedent made after the former became of age held not a renewal of a former contract between the latter and plaintiff's father providing that plaintiff should work for decedent until he became of age, since it was between different parties and the services under the first contract had been fully performed. Cooper v. Claxton \[Ga.\] 50 S. E. 399.

01. Indonesian of note signed by others held not a renewal of former note on which indorser was primarily liable. Lowry Nat. Bank v. Fickett \[Ga.\] 50 S. E. 396. Allegations that note sued on was given in renewal of existing indebtedness not sustained by proof of indifferent of note. Id.

01. See 3 C. L. 835.

01. Note merely evidence of debt, and 5 Cur. Law. CONTRacts SS 6b.

_Repudiation._"--If one party to a contract to be performed in the future announces his intention not to perform, the other may, if he so desires, elect to treat such announcement as a breach and sue at once therefor.28 The repudiation must, however, be absolute and unequivocal, go to the whole of the contract, and be accepted and acted upon by the other party.29 A party has no rights under a contract which he has repudiated.29

One may treat a contract as abandoned by the nonperforming party when failure or refusal to perform substantially deprives the innocent party of some benefit that he would have otherwise derived.21

(SS 6) \_B. Acceptance and waiver.\_32--Fraud in procuring a contract is waived by a party performing after knowledge thereof.38 So, too, one who permits another to rely on a contract to his detriment cannot thereafter avoid it for indefiniteness.34

ant instead of six. Hummel v. Ackerman, # after reduction of amount of plaintiff's ben- #3 N. T. S. 555. Fact that defendant, for either certificate held election not to rescind. Id.

funeral, demanded and received from a re- #29. A mere remunication of an exeentropy #29. A pre- #3 The provisions of a written contract may be waived by participation in or assenting to acts done in disregard of it.\[35\] Thus, an absolute and unconditional acceptance with knowledge of all the facts is a waiver of any deficiency in the

invalid because indefinite as to time of pay- \[the sale because report differs from its acment. Tingue v. Patch, 93 Minn. 437, 101\] **N. V. 792.**

**35. Evidence held to show waiver:** Of **Western Brokrange Co., 115 III. App. 71.**

**proviston for joint supervision of construction of party wall and of strict perform- \[upon a notice of defects therein thereby since in other respects. Evans v. Howell, 211 III. 85, 71 N. E. 854, afg. 111 III. App. 167.**

**of provision in contract for shipment of**

**forract. Advance Thresher Co. v. Curd horses requiring claims for injuries to be**

**(Ky.) 85 S. W. 690. Hei, that defend, presented to the general freight agent of**

**by permitting plaintiffs' timber to be depos- \[the carrier.**

**Wabash R. Co. v. Johnson, 114**

**III. App. 545. Of written notice of termina- \[the option of contract of employment. Arbrabny v. Shockney, 34 Ind. App. 268, 72 N. E. 668.**

**See, also, Id., 71 N. E. 232. Of provision**

**contractor to complete building on time held that continued use of threshing outfit after**

**foray' trial should constitute an acceptance. Westinghouse Co. v. Meixel \[Neb.\]**

**and owner stepped to resist payment on**

**101 N. V. 238. By defendant of right to per- \[the contract. Crocker-Wheeler v. Varick**

**fornance of option to purchase property within time limited, so that he could not**

**fornance the negotiations continued after**

**the expiration of the option without previous notice. Henion v. Bacon, 100 App. DIV.**

**102. App. 101 N. V. 8. 399. Of right to rescind on- \[the effect of failure to make payments when due. Kuhn v. Skelley, 25**

**Pa. Super. Ct. 185. Of provisions in build- \[the contract requiring extra work and materials to be ordered in writing, and that the compensation therefor should be estimated at the rates**

**fornance of the**

**standstand for**

**shinn that**
**were returned by similar work, and each party held estopped by his acts from enforcing them**

**canist the other. Killby Mfg. Co. v. Hinchmann- \[the effect of failure to make**

**Retonto Fire Provding Co. \[C. C. A.\] 132 F.**

**1957. One furnishing logs to another to be cut, knowing that they cannot be cut until**

**after the performance of another contract,**

\*\*cannot recover damages caused by delay in- \[the effect of the latter contract. Crawford v. Thomas \[Ark.\] 86 S. W. 285. The right to object that plaintiffs purchased tomatoes for others than defendants in violation of the contract is waived by failure to repidate the contract until after purchases and shipments have been made by defendants, where plaintiffs had knowledge of the facts before that time. Massey v. Greenabbaum Bros. \[Del. Super.\] 58 A. 804. Party for whom well was being bored cannot complain that work was not stopped at his request when water was reached, where he deferred to opinion of superintendent that supply was insufficient and allowed him to continue work without objection. Council v. Teal \[Ga.\] 49 S. E. 806. This is true though sufficient supply of water was subsequently obtained at same depth in another well near at hand. Id. A party cannot evade payment of his proportion of the cost of a party wall on account of an apparently inadvertent deviation from the contract of which he, through his representative, had knowledge in ample time to remedy the same. Evans v. Howell, 211 III. 85, 71 N. E. 854, afg. 111 III. App. 167. One accepting and retaining a report of a sale of goods by a broker v.'h- \[the effect of 5 Cur. Law. CONTRACTS $ 6B.

time or manner of performance.\[36\] A condition precedent is not necessarily

do so, and does so with his acquiescence, he

shlipment he would ship without notice, and

cannot prevent recovery by the contractor

thereafter shipped one car which was paid

of the difference between the contract price

for. Buyer did not reply to letter. Held,

and the cost of completing the work by con-

that seller had not waived buyer's obliga-

tending that the contract is an entire one

and there can be no recovery for part

could not rely on variation in its terms in

formance. Asbestos Mfg. Co. v. Burns, 24

lich \[Mich.\] 102 N. W. 1057. Plaintiff does

payments for ice have not been made

weekly as provided by the contract, the

member cannot make a sudden, unconditional,

letting the contract at the latter's request

and absolute recission on that ground, the

seller being solvent and not having will-

damses and that he does not thereby

fully refused to pay bills overdue, but no

vative them. Where contractor placed crib

tice of seller's intention to insist on strict

for waterworks in wrong place through

compliance with contract in future must

mistake of city engineer, and notified city

first be given. Portland Ice Co. v. Connor,

that he would hold it handle for damages

24 Pa. Super. Ct. 493. Action of builder in

and board of public works required him to

giving materialman a note on account of

proofed to complete the contract, which he

order drawn in latter's favor held waived

did by putting crib at right place and re-

of provision of order that it should not be

pairing damages caused by dislocation

payable until after completion of work,

under protest of any waiver of extra ex-

where note became due before completion.

penses incurred in so doing, held, that he

Petter v. Greenberg, 24 Pa. Super. Ct. 502.

did not waived righth to recover such ex-

Railroad cannot set up provision that ship-

penses. O'Neill v. Milwaukee, 121 WIs. 32,

per shall attend to loading and unloading

g8 N. W. 963. Evidence held to show that

at his own risk where it assumed control

check was not accepted in full for plain-

of such matters. San Antonio & A. P. R.

lfs services rendered under contract to pay

Co. v. Dolan \[Tex. Civ. App.1 85 S. W. 802.

their reasonable value. Walker Mfg. Co. v.

Author entitled to royalty on "wholesize"

Knox \[C. C. A.\] 136 F. 334.

price of her books accepting as full pay-

36. One who voluntarily accepts goods

ment checks based on a price twenty per

cent. below the publisher's list price, held

content of sale is bound to pay for them,

to have acquiesced in construction so placed

on contract, and payment operates as an

in bar of the suit, though he may recoup

acord and satisfaction. In re D. H. Mc-

the damages suffered by him in conse-

Bridge & Co., 132 F. 285.

quence thereof. Gibboney v. Wayne & Co.

Aets held not 'to constitute waiver's

Vh where defendant agreed to return certain

bags filled with grain to plaintiff by cer-

the kind and quality contracted for and

tain date, and to pay or account for any re-

that it was accepted by the buyer, as to

maining in his possession on that date,

warrant submission of question of accept-

statement of account sent to defendant

a once to the jury. Olesse v. Mobile Frutt &

year later charging him with bags, to which

Trading Co., 211 N. 539, 71 N. E. 1084, afg.

defendant made no reply, held to amount to

112 NII, App. 281. Instructions as to proper

nothing in evidence, where suit was not

cours of buyer who has accepted goods and

based on account stated, and defendant had

afterwards discovered that they are not of

previously stated to plaintiff that he did

not intend to acquiesce in his statements

plicable under the evidence. Id. Where

by failure to reply to them. Curtin v.

v. wedge of goods sold at specific price

Ingle, 143 Cal. 354, 77 P. 74. Assignment

of void street railway franchise held

to best advantage and recover difference

pas no rights so that its acceptance by

assignee, and dismissal by assignor of

price. Id. The acceptance of plumbing done

tion against assigance based thereon, did not

under a building contract is a waiver of

preclude him from urgling assignor's non-

any defects therein. Burke v. Coyne (Mas.)

performance of other portions of contract

of which assignment was a part, in order

of the contract, one cannot, after allowing

to defeat an action on such contract. Mon-

the time for payments to pass, rescind and

arch v. Owensboro City R. Co. \[Ky.\] 85 S.

l declare the other parties' rights forfeited

W. 193. Notification to plaintiffs to

without reasonable notice of his intention

tinue deliveries of iron under contract

to do so. Contract for sale of land. Kuhn

after discovering that they were purchasing-

v. Skelley, 25 Pa. Super. Ct. 185. Applies

5 Cur. Law. CONTRACTS $ 6C. 719

As a general rule, one who unqualifiedly undertakes to do a particular thing is not excused because performance is prevented by the act of God or a vis major,\[48\] or is rendered impossible by some unforseen contingency; * but this rule does not apply where the parties have expressly stipulated to the contrary,\[50\] nor where the contingency is of such a character that it cannot reasonably be supposed to have been in the contemplation of the parties, though the general words used are large enough to include it.\[61\]

Though the contract provides that a party shall not be liable if performance is prevented by hinderances beyond his control, he is nevertheless bound to use all reasonable and proper effort to overcome any hinderances which may arise,\[52\] and, of course, is not thereby relieved from performance by a hinderance of his own making.\[58\]

Where a party is prevented by the visitation of God, as by sickness or death, from performing in full, he or those in succession may recover the amount of the compensation promised, subject to the deduction of such loss or damage as is sustained by the other party.\[54\]

If the contract is of a continuing character, or to be performed at a future time and is dependent upon the continuing existence of a particular person or thing, or the continuing ability of the obligor to perform, subsequent death, de * 720 CONTRracts SS 6D. 6 Cur. Law.
\*struction, or disability will excuse performance.\[55\] Thus, when complete performance of an entire contract to do work upon another's building or other structure is prevented by its total destruction, completion is excused and the contractor may recover pay at the contract price for the portion of the work done.\[56\] So, too, where a verbal contract contains no guaranty that the work to be done under it shall secure a particular result, and such result may become impossible from the nature of things, the law implies a condition that both parties may be excused from their obligations when it becomes reasonably certain that a continuance would be useless.\[57\]

Performance is excused when rendered impossible by act of law,\[56\] and the rule applies equally whether the law is in force when the contract was made\[59\] or is enacted thereafter.\[60\] In such case, however, the parties are bound to make a tender of the best possible performance under the circumstances.\[61\]

The mere fact that performance would render a party liable in damages to third persons is no excuse.\[62\]

(SS 6) _D. Sufficiency of performance.\[63\]_--A contract must be fairly performed according to its terms.\[64\] Ordinality complete performance is necessary

- 55. Where person having right to use 59. Defendants excused from perform-canal boats owned by canal company accepts note as collateral to agreement sold to plaintiff at a specified port at a cer-when they he gives maker right to use boat, and maker agrees to pay certain sum after fused to allow it to be landed because com-each trip, and canal is abandoned, maker Crossman, 100 App. Div. 499, 82 N. Y. S. 656. is not liable for any further installments, Werts v. Klinger, 25 Pa. Super. Ct. 523. 56. Hasley v. Waukesh Springs Santarium \[Wis.\] 104 N. W. 94. In an implied warranty that it will continue to exist.
- Young v. Chicope, 186 Mass. 518, 72 N. E.
- 63. On destruction of building to be re-paired, the contractor may recover for the amount of contract work done which had become so far identified with the structure that, but for its destruction, it would have 61. Defendants held to have made such tured to the owner as contemplated by the tender where they offered to transport co-fee, which board of health had refused to allow to be landed, to any point designated by plaintiff, on assumption and under bona of lumber used and that no work should be done until material for half the work should be upon the job, held that, on de-fact, they would not have done so. Labarex struction of bridge by fire before completion, plaintiff was entitled to recover for the number actually used but not for that which he had distributed along the bridge but not used. Id. See, also, Building and Construction Contracts, 5 C. L. 455.
- 57. Contract to drill well held not to guaranty results and it would be fully performed when sufficient amount of water had been obtained, or when it became reasonably certain that further drilling would be useless. Poland v. Thomason Face & Ornametll Pick Co. \[M.\] 6 A. 795.
- ES. Labarex Co. v. Crossman, 100 App. Div. 499, 93 N. Y. S. 656. Refusal of deputy collector of port to permit vessel to sail while carrying lead because it was con-taband of war held no excuse for breach of contract to ship it by that vessel, when contract was not unlawful when made and was not rendered so by a subsequent legis-, such difficulties might arise. Southern P. R.
- C. V. American Trading Co., 195 U. S. 439, 49 Law. Ed. 269.
- 58. Defendants excused from perform-canal boats owned by canal company accepts note as collateral to alignment with a specified port at a cer-when maker agrees to pay certain sum after fused to allow it to be landed because com-negl to the payment of the contract.
- 59. Defendants excused from perform-canal boats owned by canal company accepts note as collateral to alignment with a specified port at a cer-when maker agrees to pay certain sum after fused to allow it to be landed because com-negl to the payment of the contract.
- 60. Passage of law making it necessary for corporation to abolish expense fund from which plaintiff's compensation was to be paid, held to release defendant, particu-, larty where contract provided that it should have right to change its method of doing business when required to do so by law. Wood v. Iowa Bldg. & Loan Ass'n, 126 Iowa, 441, 102 N. W. 410.
- 61. Defendants held to have made such tender where they offered to transport co-fee, which board of health had refused to allow to be landed, to any point designated by plaintiff, on assumption and under bona fide belief that board would allow it to be landed elsewhere, though, as a matter of fact, they would not have done so. Labarex & Co. Vrossman, 100 App. Div. 499, 92 N. Y. S. 656. Plaintiff could not contend that tender was insufficient because it could not have been performed where they did not refuse it on that account, but because they elected to stand on the liberal terms of the contract and insist on a strict performance. Id. Evidence held not to show that defendants should have made further efforts to induce board to change its attitude. Id.
- 62. Defendants is not entitled to refuse performance of a contract to manufacture and sell certain machinery on the ground that outstanding patents would be infringed thereby. Bliss Co. v. Buffalo Tin Can Co. \[C. C. A.\] 181 F. 51.
- 63. See 3 C. L. 841.
- 64. Any deviation therefrom is at the risk of the party making It. Building contractor has no right to substitute earthen sever pipes for 5 Cur. Law. CONTRACTS $ 6D. 721

to enable one to recover on the contract,\[85\] but in the case of building or construction contracts, a substantial performance is sufficient, provided the contractor acts in good faith.\[66\]

One who performs work in accordance with the terms of the contract is not liable for damages resulting from faults in the contract itself.\[97\]

In the absence of a stipulation to the contrary and where no element of special trust and confidence is involved, the promisor is not bound to perform the contract himself, but may do so through the medium of a third person.\[88\]

A stipulation in a contract that a party for whom work is to be done or to whom an article is to be furnished may reject the work or article unless it is satisfactory to him, gives him the right to reject it as unsatisfactory in any respect if he acts in good faith, but does not authorize him to reject it arbitrarily,\[99\] that is, he must find some substantial fault in the work or article itself, and not merely a reason for changing his mind regarding the project he had in view, and for which he ordered the work or the article.\[10\] The same is true where performance is to be to the satisfaction of a third party.\[11\]

If there has been a novation of parties promisor, the promisee cannot object that the original promisor failed to perform.\[72\]

Schultze v. Goodstein, 180 N. Y. 248, 73 N. E.

of his services in securing the sale of goods did not stipulate that he was to be the sole score of commission on sale of defendants\[74\] factor in accomplishing the sale, he was entitled to recover, though he did not do all performed and commission fully earned.

Mfg. Co. v. Knox \[C. C. A.\] 138 F. 334.

Plaintiffs contracted to obtain options for defendants to purchase reality in case they should elect to do upon examination, and entered into negotiations with third person to obtain such an option and brought matter to defendants' attention. Held, that on defendants' purchasing land before formal option was obtained, they they were liable to plaintiffs as upon a full performance. Emerson v. Nash \[Vis.\] 102 N. W. 921.

e5. See post, $ 9a.

e6. See Building and Construction Contracts, 5 C. L. 455. Substantial compliance with the terms of a contract of subsripttion to a railroad, made for the purpose of procuring its extension, is sufficient to entitle the railroad to collect the subsripttion. Instructions approved. Doherty V. Arkansas & O. R. Co. (Ind. T.1 82 S. W. 899.

e7. Contractor not liable for damages caused by tamping concrete as required by the contract, though contract was faulty in requiring such tamping to be done, unless he failed to do the tamping in the way it should have been done. Novelty Mill Co. v. Helnzerling \[Wash.\] 81 P. 742. Question whether piers were weakened by reason of default or neglect on contractor's part held for the jury under the evidence. Id.

e8. Contract to bore well. Council v. Team

e9. Is there a conflict between the contractor and the contractor, and the contractor, and the contractor (SS 6) _E. Rights after default._\[18\]--A party subjected to injury by breach of a contract is required to make reasonable exertions to render it as light as possible,\[14\] and if he negligently or willfully allows his damages to be unnecessarily enhanced, the increased loss falls on him.\[15\] The burden of proving that the damages could have been prevented rests upon the party guilty of the breach.\[70\]

SS 7. _Damages for breach._\[17\]--The subject of damages is fully treated elsewhere.\[78\]

SS 8. _Recission and abandonment. A. By agreement or under special provisions of the contract._\[70\]--The parties to a contract may provide for its discharge or annulment and fix and limit the rights of each in the event of a failure to perform.\[80\] If a remedy is fixed by the contract itself it is exclusive.\[81\] Though a business to which it related, would furnish a reasonably substantial ground for cancellation, and not to a mere whim or wish. McMahon & Montgomery Co., 110 Ill. App. 167\]. Does not render contract lacking in mutual-510. Where a buyer of goods, who has accepted them, refuses to remove them from the cars, the seller is not bound to exercise any further control over them or to receive questions if received, or to cancel such portions of order as had not been taken in work, and likewise the balance of the contract. McLeoff, 211 Ill. 539, 71 N. E. 1084, aff. 112 Ill. App. 281\]. Where building contract does not abandon work but in good faith endeavors to fulfill the contract, the owner is not bound to take charge and complete the work himself to lessen the amount of damage he may claim for delay. Leghorn v. Nyg-dell \[Vwash.\] 80 P. 833\]. Can charge the other party only with such damages as he could not, with reasonable expense and exertion, prevent. Lillard J. Kentucky Disilleries & Warehouse Co. \[C. C. A.\] 134 F. 168\]. Buyer of distillery slop for feeding purposes not precluded from recovering damages for breach of provision requiring seller to de-liver it in suitable troughs and tubes because he did not himself erect proper appliances, when he relied on repeated promises of the seller to do so. Id. Fact that injured party relied on such premises unreasonably long and thereby suffered a greater loss than he reasonably should have does not prevent recovery of damages sustained before he was bound to take the necessary steps to save himself from loss. Id. Whether he did so a question to be determined on the evidence. Id. Evans v. Howell, 211 Ill. 85, 71 N. E. 854, aff. 111 Ill. App. 167\]. Bladder for government supplies failing to execute contract cannot be heldiable for difference between contract price and price paid government printer three months after default, where articles could have been purchased in open market for several weeks after default at less than the contract price, especially where it does not appear that the price subsequently paid was market price. United States v. Withers \[C. C. A.\] 120 F. 696\]. See, also, Damages, 8 C. L. 997\].

76\]. Lillard v. Kenucky Distilleries & Warehouse Co. \[C. C. A.\] 134 F. 168\].

77\]. See S C. L. 844\].

78\]. See DAMages, 3 C. L. 99\]. See S C. L. 844\].

80\]. The right to cancel a contract in case of an "emergency" refers only to some unforseen event or unexpected combination of circumstances, which, in view of the business to which it related, would furnish a reasonably substantial ground for cancellation, and not to a mere whim or wish. McMahon & Montgomery Co., 110 Ill. App. 167\]. Does not render contract lacking in mutual-510. Where a buyer of goods, who has accepted them, refuses to remove them from the cars, the seller is not bound to exercise quotations if received, or to cancel such portions of order as had not been taken in work, and likewise the balance of the contract, held not to make right to cancel de-liver. McLeoff, 211 Ill. 539, 71 N. E. 1084, aff. 112 Ill. App. 281\]. Where building contract does not abandon work but in good faith endeavors to fulfill the contract, the owner is not bound to take charge and complete the work himself to lessen the amount of damage he may claim for delay. Leghorn v. Nyg-dell \[Vwash.\] 80 P. 833\]. Can charge the other party only with such damages as he could not, with reasonable expense and exertion, prevent. Lillard J. Kentucky Disilleries & Warehouse Co. \[C. C. A.\] 134 F. 168\]. Buyer of distillery slop for feeding purposes not precluded from recovering damages for breach of provision requiring seller to de-liver it in suitable troughs and tubes because he did not himself erect proper appliances, when he relied on repeated promises of the seller to do so. Id. Fact that injured party relied on such premises unreasonably long and thereby suffered a greater loss than he reasonably should have does not prevent recovery of damages sustained before he was bound to take the necessary steps to save himself from loss. Id. Whether he did so a question to be determined on the evidence. Id. Evans v. Howell, 211 Ill. 85, 71 N. E. 854, aff. 111 Ill. App. 167\]. Bladder for government supplies failing to execute contract cannot be heldiable for difference between contract price and price paid government printer three months after default, where articles could have been purchased in open market for several weeks after default at less than the contract price, especially where it does not appear that the price subsequently paid was market price. United States v. Withers \[C. C. A.\] 120 F. 696\]. See, also, Damages, 8 C. L. 997\] contract provides that a failure to make payments at a specified time shall render it null and void, release both parties from further liability thereunder, and work a forfeiture of the amounts previously paid thereunder, it is generally held that a mere failure to make a payment does not terminate the contract in the absence of an election on the part of the innocent party to enforce the forfeiture.\[82\] In order that a party may take advantage of a provision giving him the option of resinding before a specified date on return of all that he has received, he must notify the other party of his disaffirmance, and return or offer to return the property within the time limited by the contract.\[83\] A party cannot revoke authority conferred by one part of a contract which he is not entitled to revoke as a whole.\[84\]

The right given by a contract for services to revoke it at any time does not include a right to deprive the other party of compensation for services already rendered under it,\[85\] and in such case he may recover on quantum merit a reasonable compensation therefor.\[86\]

A contract may be rescided at any time by mutual consent of the parties \[87\]

cover difference between cost and contract price. Sparhawv. United States {C. C. A.\] **S3.** Contract for purchase of certain mining stock, a certain part of the purchase **S1.** Schwab v. Baremore \[Alinn.\] **104 N.**

**W.** 10. Under contract for sale of reality providing that it should become void in case the title was not good and could not be made so and that the part of the purchase or return all that they received. Guss v. price already paid should in that event be refunded, where vendor's wife refuses to join in conveyance verdace is not entitled to per-ent state. Evidence held to show that other party was not notified. Id. \[84\]

formance to extent of vendor's ability, viz., and subject to wife's one-third interest in remainder, nor to damages for failure to perform, in the absence of fraud. Id. Stockholder in corporation sold his stock to director on latter informing him that option had been given for sale of all the corporate property, and on understanding that if sale should not take place he could reassert his right to the stock. After expiration of option director offered to return stock, but offer was refused, and stockholder filed bill praying that director be required to pay him difference between selling price and actual value of stock, or that he be given option to be reinstated as stockholder, alleging that sale was induced by false representations. Held that complainant, having refused offer to return stock in accordance with the agreement, could not maintain the suit. A provision for the termination of a newspaper carrier route contract held not to prevent either party from terminating it as his election subject to liability to the other for such damages as he may have sustained.by reason of the fact that it was not done in the manner provided. Provision for arbitration held not to apply to right to terminate contract but only to as-certainment of amount to be paid on its termination. Harlow v. Oregonian Pub. Co., 45 Or. 520, 78 P. 737.

**S2.** Will not be held to ipso facto terminate it unless the intent of both parties to that effect be made apparent by clear, precise, and unequivocal language. Weyer v. Grufirth, 210 Pa. 13, 59 A. 315. The presumption is that such forfeiture clause is for the benefit of the vendor, and enforceable at his election, and in case he fails to enforce it and waives it by his conduct he thereby 734 CONTRACTS $ 8B. 5 Cur. Law. unless third persons have acquired vested rights thereunder, in which case their consent is also essential.\[88\]

An executory parol contract may be discharged by word of mouth.\[89\] An executory contract for the sale of land, whether written or oral, may, in equity, be waived or rescended by parol, provided that possession be given up or the writing be destroyed.\[90\]

A contract may be discharged by the parties thereto or the beneficiaries therein by an entirely new contract entered into by them with reference to the same subject-matter, the terms of which are co-extensive with, but repugnant to, the original contract.\[91\] There must, however, be a meeting of the minds of the parties.\[92\]

(SS 8) _B. Occasion and right to rescind or abandon without consent.\[93\]_

A contract may be rescended for fraud, misrepresentation, or undue influence,\[94\]

and mill had been turned over to defendants as their property. Id. An agreement that all rights of the parties under a former of land. Marsh v. Despard \[V. Va.\] 49 S. contract shall cease and determine releases as a right of action thereunder. Swarts v. Narraensent Elec. Lightning Co., 26 R. I. 388, have become a part of contract, authorizing 59 A. 71. This true though second con-him to sell another tract by reference to contract stated that first was abrogated in conformer one, and the subsequent merger of section of a notice therefore given, and such notice was of itself infecult to work such abrogation. Id., 26 R. I. 436, 59 A. 111. Defendant held to have been released from these the latter covers the entire subject-matter of the former, or two are so incon-plaintiff on repaying money loaned him and releasing plaintiff from liability as his variety. Seattle Brewing & Malting Co., 18 P. 1007. Consent must be mutual. Contract for transportation cannot be rescended by one party merely modifying other of his intention to rescind. The central of Georgia R. Co. V. Gortaudsky & should not be in a "good serviceable condition" \[Gal. 51 S. E. 469. Goods having been received by railroad company for transportation and the freight paid for under their classification, it could not reclassify afterwards and charge a different rate. Illinois Cent. R. Co. v. Seitz, 105 III. App. 89. 88. Insured cannot warrender life policy for cancellation without beneficiary's consent, unless right to do so is specially reserved in the policy. Mutual Life Ins. Co. v. Allen, 212 III. 134, 72 N. E. 200. Proof of abandonment is sufficient evidence of the existence of such agreement unless the contrary is shown. Wilson v. Maxon \[V. Va.\] 49 S. E. 123. Any circumstance or course of conduct from which an agreement to put an end to the contract can be clearly deduced well in amount to a rescission. Marsh v. Despard \[V. Va.\] 49 S. E. 24. The uncoribrated oral evidence of a party may be sufficent proof of the oral rescission of a written contract, but in such case the evidence must be clear, cogent, and convincing as against the party denying the resission and seeking to sustain the writing. Evidence held to show reslesion of written agreement as to division of profits and commissions from sale of reality, and the substitution of a different oral agreement therefor. Cooke v. Cain, 35 Wash. 353, 77 P. 682. 89. Wilson v. Maxon \[V. Va.\] 49 S. E. 123. 90. Must be something done by way of rescission or waiver. Marsh v. Despard \[V. Va.\] 49 S. E. 24. 91 S. E. 24. 92. Execution and acceptance of leases held to have put an end to contract of sale of land. Marsh v. Despard \[V. Va.\] 49 S. E. 24. Provision in contract authorizing agent to sell large tract of land., held to raganst Elec. Lightning Co., 26 R. I. 388, have become a part of contract, authorizing him to sell another tract by reference to former one, and the subsequent merger of section into one. Campbell V. Beard \[V. Va.\] 50 S. E. 747. Execution of new contract does not work abrogation of former one unless the latter covers the entire subject-matter of the former, or two are so incon-dististent that both cannot stand. Berkeley v. Lefebure, 125 Iowa, 76, 99 N. W. 710. Warranties in contract for sale of station that he was sound and a good foal getter held not abrogated by note subsequently given for part of purchase price reciting that it should be void if at end of two years he too as a stallion, and sound as he now is.\[92\] 92. Enttire transaction must be looked to determine the intention. Berkey v. Lefebure, 125 Iowa, 76, 99 N. W. 710. Taking notes for balance and pinning them to contract with certain indentances held not to abrogate the promise to pay made in contract. Walkau v. Manitowoe Seating Co., 165 III. App. 130. Contract to supply borough with water held not to have been rescended or abandoned by company's offer to enter into a new one upon the same terms as the old, except as to the price, which offer was not accepted, nor was company thereby estopped to use on old contract. Ephrata Water Co. V. Ephrata Borough, 24 Pa. Super. Ct. 353. See J C. L. 844. 94. See Fraud and Undue Influence. 15 C. 152. The right to rescind for fraud is one acvering to the parties under the law and is separate and distinct from any right of rescission given 5 Cur. Law. CONTRACTS $ 8B. 725

accident or mistake," 4 dures," or a failure of consideration in whole or in part through the fault of the other party." 57 On failure or refusal of one party to perform, the other may rescind the entire contract and demand to be restored to his former position," but this rule does not apply where the party seeking to rescind has himself done some act justifying the other in refusing or delaying performance, or has failed to perform his part of the contract." 59 Where the contract is an entirety or there is but one consideration for a number of conditions, it must. generally be rescinded as a whole if rescinded at all.1

will only be bound by representations and form compromise agreement on his part stipulations contained in the contract itself, and not by statements of any of its officers or agents. Butler v. Standard Guaranty & Run You C. \[Ga.\] 50 S. E. 152.

75 See Mistake and Accident, 4 C. L.

96 See Dures, $ C. L. 1147.

97 Civ. Code, $ 1689, subd. 2. Refusal of defendant to receive any more payments on debarture contract, and statement that it had decided to go out of business, held fail-

one of such payments. Ross Meehan Foun-

ure of consideration entiling plaintiff to dry Co., 118 Tenn. 370,

rescind and recover what it had padd. Mc-

88 S. W. 167. Complahl held to allege

Donald v. Pacific Debenture Co., 146 Cal. 667,

80 P. 1090.

Bk, Mason v. Edward Thompson Co.

103 N. W. 507. Where in ejecentent

99. Evidence held to show breach by fail-

plaintiff proved that defendant went into

proposaling under a written contract of pur-

chase from plaintiff's grantors and had re-

Thompson Co. \[Minn.\] 103 N. W. 507. Fall-

tanned possession ever since, held that it

was error to refuse to allow plaintiffs to

contract relieves contractor. Koeprer v.

prove a breach of such contract by defendant

87 Tuc. Co., 102 Mo. App. 543, 77 S. W.

ant since it was essential for them to show

307. Derendant had entitled to terminate

a breach by him under such circumstances

of negligence as showed an abandonment

"Comety Act," where performance as given

by him, after notice fixing a reasonable

time for its performance, and since, if debartant had not lost his rights under the

derchant contract. McLaughlin v. Ham-

contract, it operated as an estopel and a

defense to the suit. Morris v. Billingsley

\[Fla.\] 37 S. 664. Insubordination and dis-

under an agreement that another would be

respectful conduct on part of employee held

to justify rescission of contract of employ-

ment. Parker v. Farlinger \[Ga.\] 50 S. E.

98. Evidence held to show that tender and

demand for dead under contract for sale of

reality were not in good faith so that pur-

ported reseission based thereon did not pre-

clude decree for specific performance. Gibson v. Brown, 214 11. 35. 78. N. E. 578.

88 T. Instr Instr. Instr.

726 CONTRACTS SS 8C. 5 Cur. Law.

(SS 8) \_C. Time and mode of rescission or abandonment.'--\_Since the remedy is largely equitable,3 a party having a right to rescind must elect to do so within a reasonable time 4 and in some unequivocal manner.5 He must restore * or offer to restore everything of value which he has received from the other party under the contract,7 unless the latter is unable or positively refuses to do likewise,8 or it seems probable that there will be nothing due him on final adjustment.9 It is sufficient if one seeking to rescind for fraud tenders back the consideration in his petition.10

Footnote 10: The author is grateful to the anonymous referee for his constructive suggestions.

It is ordinarily sufficient if the other party is placed in substantially the same position he occupied before the contract was made.11 If it is impossible to restore

of equity rather than by the rescended con-

lease from liability under former contract

tract. Lytle v. Scottish-American Motrig-

and surrender of bond to secure its perform-

Co. \[Ga.\] 50 S. B. 402.

ance, such release must be surrended and

2. See 3 C. L. 456.

bond restored. Id. See, also, Vendors and

3. For procedure in suits to rescind, see

Purchasers, 4 C. L. 769.

Canellation of Instruments, 5 C. L. 500.

7. Need only make a fair offer to re-

1. Guss v. Nelson, 14 QUE. 296. 78 P. 170:

turn what he has received, and demand what

Seattle Nat. Bank v. Powles, 33 Wash. 21,

he has parted with. If refused, it is suff-

73 P. 857: Buskirk Bros. v. Peck \[W. Va.\]

cient if he proves such fact at the trial, and

50 S. E. 432. The court having found that

makes restoration in such manner as the

defendant fully performed his contract so

court may direct. Corse & Co. v. Minnesota

that an action to rescind it would not lie,

Grain Co. \[Minn.\] 102 N. v. 728. Evidence

recretion of evidence to show that plaintiff

held to show offer to restore consideration

was not dilatory in commencing the action

is immaterial. Boyd v. Liefer, 144 Cal. 336,

what it had received. Id. A party relying

77 T. P. 953. After recovery from intoxa-

upon the resission of a contract must ten. Fowler v. Meadow Brook Water Co.,

der a return of the property or security

208 P.a. 478. 57 A. 959. Where owner of lot

which was the subject-matter of the contract

agrees that owner of adjoining tot may in-

except in cases where it is entirely worth-

sert beams in wall which he is about to

less or has ceased to exist. Frawd. Runney

buld, with a provision that the occupant

v. Shaw, 25 Pa. Super. Ct. 386. One cannot

shall run with the land, he cannot declare

rescind sale for fraud without returning or

the contract void ten years thereafter as

offering to return what he has received.

against the grante of the second lot unless

Affdavi of defense to note insufficient.

he can show that the latter had notice of

Brian v. Merrill, 23 Pa. Super. Ct. 629. Evl-

the invalidity of the agreement when he

dence held to justify instruction that there

purchased. Immaterial that purchaser had

was nothing for defendant to return. Pa-

no notice of agreement. Knappenberger v.

cific Export Lumber Co. v. North Pacific

Fairchild, 210 Pa. 178, 59 A. 886. Frawd.

Lumber Co. \[M.\] 80 P. 105.

Rumsey v. Shaw, 25 Pa. Super. Ct. 386.

S. Civ. Coto, 1691, subd. 2. Where de-

Stockholders held prevented by laches and

fendant positively refused to refund money

acquiescence from rescinding contract

received under the debenture contract under any

whereby they delivered stock to corpora-

circumstances held that plaintiff was not

tion, formed pursuant to unlawful com-

bound to tender or offer to return contract

bination, in return for its stock. Harriman

prior to commencing action. Sufficient where

v. Northern Securities Co., 197 U. S. 244, 49

produced them at trial and offered to cancel

Law. Ed. T39.

ccl then or turn them over to defendant.

5. Seattle Nat. Bank v. Powles, 33 Wash.

McDonald v. Pacific

21, 73 P. 887.

667, 80 P. 109.

6. Civ. Code, & 1691. Green v. Duvergey,

1. Action to rescind contract of sale for

146 Cal. 379, 80 P. 284. Original status must

non payment of purchase price. Succession

be restored, or an equivalent there must

be provided in the contract by furnished by

law. Div. Cv. Code 1895, **3710**, 3711, 3712.

Lvitle v. Scottish-American Motrig. Co. \[Ga.\]

question of unreasonable delay being re- 5 Cur. Law. CONTRacts SS 9A. 727

the original conditions, the innocent party may, without a formal rescission have compensation in damages for the injury sustained, either as an equitable defense to an action on the contract, or to be recovered in a suit for that purpose.\[12\]

(SS 8) _D. Remedies.\[13\]_--On repudiation of a contract the innocent party may recover the consideration paid by him.\[14\] In such case resort should not be had to a court of equity, unless for some special reason the remedy at law is unavailing or inadequate.\[15\]

The statutes of California provide for rescission by complying with certain rules therein prescribed, and that if such rescission is not acceded to it may be enforced by action.\[10\]

The rescission of a contract necessarily constitutes a bar to its performance by either party,\[17\] and the rescinding party thereby loses his right of action for its breach.\[18\] Where the evidence shows plaintiff to be entitled to a rescission, defendant's claim for specific performance is necessarily eliminated from the case.\[19\] If the contract is to all intents and purposes wholly executory at the institution of the suit, any question.of part performance as interfering with plaintiff's right to rescid is also eliminated.\[30\]

SS 9. _Remedies for breach. A. The right and its accrual.\[21\]_--On breach of a continuing agreement, the innocent party may use at once for his entire damage without waiting for the expiration of the contract period.\[22\] The same is true where performance is prevented by the other party,\[23\] or where he intentionally

the certificate intact, but was sufficient if

17. Marsh v. Despard \[W. Va.\] 49 S. E. he was able to return the amount of money

01. represented thereby. Id.

01. Plaintiff, by taking property into her

01. Running v. Shaw, 25 Pa. Super. Ct.

01. In action to recover balance of pur-

whereby defendant agreed to care for it and

chase price of option on stock, where it appears that defendant secured new option

19.

makes performance on his own part impossible,\[24\] or where he repudiates the contract before the time when performance is due.\[25\]

As a general rule in order to recover on an entire contract, plaintiff must show full performance,\[26\] or, in case the contract calls for concurrent acts, a readiness to perform on his part,\[27\] or that performance was prevented by the other

24. As where firm, whlch has agreed to vendor until the purchase money is paid pay balance of purchase price of mining and delivery is made to purchaser subject property from the proceeds of its resale, to certain conditions to be performed by conveys it, for a nominal consideration, to seller before possession or title can pass, a "poration formed by them. Guthiel v. Iatter cannot, before he has substantially performed such conditions, elect to treat 25. See ante, SS 6 A.

property as that of purchaser, and sue for 26. Massey v. Greenabaum Bros. \[Del. Super.\] 5A. 804; Tobner v. Schaefer, 45 Misc.

purchaser to accept the property and pay 615, 91 N. Y. S. 3: Lassen v. Burt, 92 N. Y.

the purchase money as agreed. American S. 796; Pacific Mill Co. v. Imman Paulsen & Soda Fountaln Co. v. Gerrer's Bakery, 14 Co. \[Or.\] 80 P. 424; Trumbower v. Wootley, 26 Pa. Super. Ct. 249, City, Code. 5 1439.

gight cases of tobacco returns for as not ? Plaintiff held not entitled to any interest in mine where he failed to make payments recovery for whole eight cases, plaintiff provided for in contract. Cameron v. Burnham, 146 Cal. 580, 80 P. 929. If a contract calls for successive acts, first by one party and then by the other, there is no breach by one if the precedent act has not been performed by the other. Osgood v. Skinner, 211 Ill. 239, 71 N. B. 869, aff. 111 Ill. App. 606, Finding that plaintiff had delivered all the wire called for by defendant by contract held warranted by evidence that defendant had exercised option given him by making necessary payments. American Electrical Works v. New England Elec. R. Const. Co., 188 Mass. 546, 72 N. E. 64. Cannot be enforced by one who has not performed conditions precedent. O'Connell v. New York, etc., R. Co., 187 Mass. 27, 72 N. E. 979. Strict performance is a condition precedent to recovery on a building contract itself, in the absence of a waiver. Burke v. Coyne \[Mass.\] 74 N. E. 942. Building contract. Wagner v. St. Peter's Hospital \[Mont.\] 79 P. 1054. Where services and materials furnished under special contract are such that they can be rejected, and obligee can avoid receiving any benefit therefrom and refuses to accept same, there can be no recovery without complete performance. Dame v. Woods \[N. H.\] 60 A.

744. Right to compensation for services in consolidating corporations contingent on obtaining funds from underwriting syndicate, which plaintiff failed to do. Fry v. Miles \[N. Y. Ert. & App.\] 59 A. 246. Refusal to receive 250 barrels of cement a week as required by contract held breach on plaintiff part. Pitts v. Davey, 40 Misc. 96, 81 N. Y. S. 264. Failure to prove performance by plaintiff in matter of inspection of electrical installation and presentation of certificate held to justify judgment for defendant. Electrical Equipment Co. v. Feuerlicht, 90 N. Y. S. 467. Under contract authoring plaintiff to insert defendants' advertisement in his publication for a period of 34 insertions, for which defendants agreed to pay a certain sum "in monthly payments as due," proof of 7 insertions between dates specified in complaint held to entity plaintiff to recover the order of a year. McKillop, Walker & Co., v. New York Preparatory payment when work was completed, and is sold on time, the title to remain in the 5 Cur. Law. CONTRACTS $ 9A. 729

party.\[28\] Ordinarily there must be an actual tender of performance,\[29\] but this does not apply where the other party has repudiated the contract,\[30\] or has put it beyond his power to perform.\[31\]

The rule requiring full performance has been relaxed in many states to the extent that, though it is still necessary in order to recover on the contract, yet if defendant has accepted and used what plaintiff has done in a partial compliance therewith, he will be held liable for the benefit he has received, on an implied promise to pay for the same.\[32\] One cannot, however, recover on a quantum

\\begin{tabular}{l|l} lading for more than the amount due, de- & gore up, and on account of buyer's delay, \\ & fendernst tender of price by buyer before \\ & slon of the machinery without tendering the & suns for nondelivery unnecessary. Bla- \\ & & lock v. Clark, 137 N. C. 140, 49 S. E. 88. \\ & & 31. Where one party puts it beyond his \\ & cover in an action for the nondelivery of & power to perform, the other is thereby \\ & goods sold to him, he must show that when & solved from the duty of placing himself in \\ & he demanded it be was able to pay for it in & readiness or ability to perform, and it is \\ & the manner fixed by custom. Blalock v. & sufficient if he renders performance in his \\ & Clark, 137 N. C. 140, 49 S. E. 88. \\ & & 28. Foster, 23 Ind. App. 669, \\ & & \\ \\end{tabular}

72 N. E. 164; Fry v. Miles N. J. Err & App. 1. Where one party to an executor contract \\ & & \\ \\end{tabular}

59 A. 246; Trumbower v. Woodley, 26 Pa. & has placed it out of his power to perform, \\ & Super. Ct. 249. Refusal of plaintiff to pay & a tender of performance by the other party \\ & a monthly instlument when due under a & is not necessary to entitle him to rescind \\ & contract for furnishing electric power is not & and recover a payment made thereon, when \\ & a breach on his part, where the bill is for & the time for performance by the other has \\ & an amount in excess of that actually due & expired. Seibel v. Purchase, 134 F. 484. \\ & and defendant, at the time, owes him more & 32. Where there has been an imperfect \\ & than the amount of such instlument. Soutin- & performance of a contract for irrigating \\ & er Iron Co. v. Laclede Power Co. Mo. App.\] & crops which has been accepted, the water \\ & & \\ \\end{tabular}

84 S. W. 450. As where contract with amusement company provides that plaintiff shall & up to the full amount thereof if the crop \\ & install his apparatus only in localities assigned to him by defendant, and latter refused to assign space and & has been benefited that much, but the debt \\ & signed to him by defendant, and latter refused to assign space and & will be offset by any loss that may have \\ & ground so that it would have been impracti- & resulted from the deflection of the consortium so that it would have been impracti- & tractor. Hunter Canal Co. v. Robertson's \\ & cal for plaintiff to construct and operate his & Helrs, 118 La. 833, 87 So. 711. In such case \\ & concessions. Claudius v. West End Hights & only the excess of the rent can serve as a \\ & Annusement Co. IMG. App.\] 84 S. W. 354. & basis for sequestration. Id. For benefits \\ & structusions approved. Id. Where defendant's leesse, after partially performing a & such as improvement of the other's property, the sale and delivery of goods to him, \\ & contract to grow the land, was notified by & or work done for him. Cann v. Report, etc. \\ & him to do no more, defendant could not & of Church of the Redeemer \[Mo. App.\] 85 S. S. \\ & contend, in an action for plaintiff result. & $\\psi$. 994. One may reoever on the theory of \\ & ing damages, that since the evidence showed & $\\psi$. Woos \[N. H.I\] \\ & that plaintiff was in possession and was not & $\\psi$. 744. Any liability to pay for a partial \\ & prevented from carrying out the contract. & performance which does not result in such \\ & he could not recover. Campbell v. However. & benefit must rest wholly on the special conton \\ & ton \[Tex. Civ. App.\] 87 S. W. 370. Letter of & tract. Id. Plaintiffs held entitled to rea- \\ & purchaser held not a refusal to accept so or & sonable value of work and labor performed \\ & to execute delivery. Southern Car Miff. & in pursuance of contract to cut, bale and de- \\ & Supply Co. v. Scullin-Gallagher Iron & Steel \\ & & liver hay, less damages suffered by defendant on account of failure to fully perform. \\ & & \\ \\end{tabular}

29, Osgood v. Skimmer, 211 III. 229, 71 N. W. 1069 730 CONTRACTS $ 9A. 5 Cur. Law.

meruit for services rendered under a special agreement by the terms of which his compensation is contingent on performance.38

If the contract is divisible, either party, having fully performed any one of the several covenants therein contained, may maintain an action against the other party for a breach without pleading or proving performance of the entire contract on his own part.34

A material breach of the contract justifies the innocent party in refusing to be longer bound thereby, and entities him to recover for what he has already done.38

One who has violated his obligations under a contract cannot compel performance by the other party or complain of his refusal to perform,38 nor can one

performed. Dame v. Woods \[N. H.\] 60 A. 744. One contracting to furnish and install

agrees to pay on delivery at a specified rate

heating plant for a sum to be paid on com-

volumes as delivered, so that an action can

pletion is not entitled to recover on theory

be maintained for the price of any volumes

of quasi contract to pay for benefits on

delivered before delivery of twe entire set.

ground of necessary acceptance from day

Barrie v. Jerome, 112 11. App. S29. As to

to day, where the work is destroyed by fire

what contracts are severable and what en-

before completion, it not appearing that

there, see $ 4 c, ante.

materials could not have been removed for

reasonable sum had they not been

destroyed. Id. One who himself breaches a

held that defendants' failure to furnish pipe

contract- has no interest in future profits

thereunder, but is entitled only to the pres-

end value of his interest, in an action by the

v. Columbian Oil, A. & R. Co., 144 Cal. 670, 78

breach. Hodges v. Price \[Vash.\] 80 P. 287. The value of the services rendered

202. Evidence held to sustain finding that

are based prevented by the act or de-

defendant was the first party guilty of a

breach. Id.

make payments on account. Poland v.

33. Where contract provided for com-

penstation of plaintiffs for consolidating

corrections on condition that they secured

It within time provided by contract, seller

could not recover where failed to secure

them. Fry v. Miles \[N. J. Err. & App.\] 59

A. 246.

34. Pacific Mill Co. v. Inman Paulsen &

Co. \[Or.\] 80 P. 24. Where, under a con-

vances to insurance solitor as required by

tract of sale, delivery, acceptance, and pay-

ment were to take place in instalments, the

the latter was employed, and refused to con-

vendor may maintain an action to recover

time him in his service unless he entered

any instalment when it becomes due with

into new contract, could not receeover for

out pleading or proving full performance on

failure of solitor to further perform. Ar-

his part. Sale of entire mill cut of timber

baby. W. Shockney, 34 Int. App. 268, 71 N.

for the season. Barnes v. Ledigth \[Or.\] 79

2, 322, reharing denied 72 N. E. 668. Claim-

P. S1. Contract for loan for which borrower

ants repalred machinery under contract re-

was to give nine notes secured by trust

quirling payment when work was completed,

dead held not indivisible so as to preclude

and shipped same to defendant with draft

lender, who did not advance the whole

attached to bill of lading. Defendant re-

amount contemplated, from maintaining an

action on the notes and dead for the amount

draft. Claimant did not have a part of the

actually advanced. Less V. English \[Ark\]

necessary material and intended to com-

87 E. W. 447. Contract to furnish brick re-

plete work after delivery to defendant.

quired by contractor to construct walks for

Held, that defendants, having themselves

city, price to be paid monthly for those fur-

breached the contract, could not be heard to

hashed during the month, as they were used,

held severable, and failure of purchaser to

pleted the work. Dutton v. Shaw \[Miss.\]

pay one instalment did not release seller

28 So. 682. Cannot recover damages for

from contract. Iowa Rick Mfg. Co. v. Her-

breach of a contract where the failure to

rick, 126 Iowa, 721, 102 N. V. 787. A con-

comply therewith was his own. Plaintiff

tract may be entire and the performance

cannot recover damages where defendant

severable so that a part of the payment or

ererererises option to declare contract for sale

performance on one side may be recovered

of land at an end for plaintiffs failure to

before the whole consideration has been

made payment on specified date. Apking v.

paid by the other. Subscription contract

Hofer \[Neb.\] 104 N. W. 117. Cannot re-

whereby set of books containing S1 volumes

cover damages for neglect of duties de-

to be issued at the rate of two volumes per

volving on his own agent. Brown & Co. v.

month is subscribed for, and subscriber

St. John Trust Co. \[Kan.\] 80 P. 27.

5 Cur. Law. CONTRACTS $ 9B. 731 who has directly or indirectly prevented performance by the other party recover for the breach primarily due to his own act or neglect.\[37\]

(SS 9) _B. Particular remedies and election between them.\[38\]_--Every material breach entitles the injured party to an action at law for his resulting damages.\[39\]

A party discovering facts entitling him to rescind may either do so and demand the return of what he has paid, or elect to affirm the contract and sue for his resulting damages.\[40\]

After a breach of the contract the party not in fault may either sue for damages, or rescind, and, after returning what he has received, recover the value of what he has paid or done.\[41\] In certain cases he may also sue in equity for specific performance.\[42\] If there has been no delivery of personal property sold, the vendor may either sell it and sue for the unpaid balance of the contract price, or he may treat it as the property of the vendee, notwithstanding a refusal to accept it, and sue on the contract for the whole contract price.\[43\]

37. Pitts v. Davey, 40 Misc. 96, 81 N. Y. : land takes possession, and the vendor's title fails or he is unable to make conveyance as manded copy for advertisement and finally stipulated, he may rescind, and, after re-published defendants' business card as he storing or offering to restore possession, re-

had a right to do under the contract, and cover what he has paid, or he may retain otherwise fully performed, held, that de-

possession, pay the purchase price, and ac-

fendant could not defend on the ground of

get such title as the vendee can give, but

a misunderstanding with plaintiff's solicitor

he cannot retain both the land and the

as to the subject-matter of the advries-

money until the vendor can give perfect

ment. Kestnston v. Flaherty, 101 Apr. Div. 605, 91 N. Y. 8. 588. S. D. Rev. Civ. Code, $

title. Livesley v. Mackle \[Orl. 80 P. 901. 605, 91 N. Y. 8. 588. S. D. Rev. Civ. Code, $

title.

On failure of defendant to obtain conveyance on day named, time being of the es-

for loss due to defendants failure to keep

sentence of the contract, vendee may disaffirm

building insured as required by contract,

where failure was due to their own objections. Fransen v. Regents of Education of

S. D. \[C. C. A.\] 133 F. 24. Instructions as

to necessity of showing that plaintiff had

offered performance and that defendant had

refused to perform, approved. Brauer v.,

ages for its breach. New York Architect-

Macubeth \[C. C. A.\] 138 F. 977. Cannot In

in such case avail himself of nonperformance

with time limited. Lehman v. Webster &

Co., 110 Ill. App. 288.

38. See 3 C. L. 846.

01. In the absence of a provision to the contrary, one who is prevented from performing his contract by the other party

there to s entitled to compensation interior.

Sunitary Dist. v. McMahon & Montgomery

Co.; 110 Ill. App. 510. Where deceased

agreed to compensate plaintiff for services

by beeaatching him certain goods, but failed

to do so, he was entitled to recover the

value of such services from the estate. Evyl-

dence sufficient to justify finding that such

agreement existed. Shane v. Shersmith's

Esstate \[Mich.\] 100 N. W. 1923. Where deco-

dent promised to compensate claimant for

services by a sufficient provision in her will,

but failed to make any provision, she was

entitled to compensation as a creditor of the

state for the value of the services, whether

the omission was intentional or not. Bair

v. Hager, 97 App. Div. 558, 90 N. Y. 8. 27.

40. Fraud. Cores & Co. V. Minnesota

Grain Co. \[Min.\] 102 N. W. 278. Exchange

of horses. Smeseters v. Schroeder, 123 Wits.

116, 101 N. W. 363. Sale of land. Schooner

over V. Ralston, 25 Pa. Super. Ct. 375.

41. Seattle Nat. Bank v. Powles, 33

Wash. 21, 17 P. 887. Where the vendee un

der an executory contract for the sale of

v. Hager, 97 App. Div. 558, 90 N. Y. 8. 27.

40. Fraud. Cores & Co. V. Minnesota

Grain Co. \[Min.\] 102 N. W. 278. Exchange

of horses. Smeseters v. Schroeder, 123 Wits.

116, 101 N. W. 363. Sale of land. Schooner

126 Iowa, 44, 102 N. W. 410. For discussion

41. Seattle Nat. Bank v. Powles, 33

Wash. 21, 17 P. 887. Where the vendee un

der an executory contract for the sale of

v. Hager, 97 App. Div. 558, 90 N. Y. 8. 27
732CONTRacts $ 9B. 5Cur. Law.

An election of remedies once made is final ,and cannot thereafter be re-scinded. \[44\] The actual commencement of a suit predicated on either theory is plenary, and complete proof of the exercise of such election. \[45\]

The remedy of the maker of a promissory note which has been sold by the payee to an innocent purchaser for value, in direct violation of the contract of the parties, is an action for damages for the amount of the note with interest. \[46\] The fact that the contract provides for the recovery of a partial payment thereunder on the happening of a certain contingency does not prevent its recovery on the happening of another contingency, not provided for, which prevents performance by the other party. \[47\]

Where the contract has been broken, the other party may fulfill it for himself, provided he does so in a reasonable manner and does not incur unnecessary expense in so doing. \[48\] He is not, however, bound to do so before suing for damages for the breach. \[49\]

Ejecment will not lie to enforce the performance of a contract which is the consideration for a deed of conveyance. \[50\]

One who maliciously interferes and induces one party to break a contract to the injury of the other is liable in damages to the latter. \[51\]

E. 869, aff. 111 III. App. 606. See Sales, 4 and asks only for the reasonable value of $\\mathrm{C}$. L 1318, for a full discussion of this sub-fact.

744. Where all grounds warranting re-scission were in existence and complete when plaintiff elected not to resend, he can-

Plaintiff by suing in indebitious assumpmit not, more than two years thereafter, make

a second election reversing former one. Superm thereby consents to the termination preme Council A. L. H. v. Lippett \[C. C. A.\] 134 F. 524. Defendant held to have

O. Brick Co. \[Me.\] 60 A. 755.

elected to affirm contract for sale of reality. Schoonover & Nalston, 25 Pa. Super. Ct. 375.

Ten contract not to sell them. Myrick v. Where he does some decisive act-

Purech \[Mfin.\] 103 N. W. 902.

ing his choice of such remedies, he thereby

494. Failure to obtain conveyance from

adopts such position finally, and cannot or

dinary receive therefrom. Evidence held to

744.

show election to resend contract for exchange of horses, and he could not thereafter

after sue for breach of warranty. Smeseters

v. Schroeder, 123 WIs, 116, 101 N. W. 365.

In action for price of brick sold, held that

notices by defendant to plaintiff that brick

were of inferior quality and that he would

purchase brick elsewhere and charge difference to plaintiff, did not amount to an election of remedies so as to preclude defendant from recovering other damages for plaintiff's breach of contract, where plaintiff did not claim that he relied on the alleged election. Iowa Brick Aff. Co. V. Herrick, 126 Iowa, 721, 102 N. W. 787. For a full discussion, see Election and Waiver, 3 C. L. 1177.

45. Smeseters v. Schroeder, 123 WIs. 116,

101 N. W. 363. The fact that the terms of the contract are stated in the petition is not determinative of the question whether a plaintiff, who has been prevented from

completely performing by the other party, is suing for damages for breach of contract,

or has waived such damages and is suing on a quantum merit for the value of the work actually performed. Cann v. Rector, etc., of Church of the Redeemer (Mo. App.) 85 S. W. 994. He may state a contract and its breach by defendant, and yet state a cause of action on quantum merit, if he

avers a waiver of damages for the breach 5 Cur. Law. CONTRracts $ 9B.

The disaffirmanee of a contract which is merely voidable does not impair the right of the other party to recover money earned thereunder prior to such disaffirmance.\[83\]

If the contract is fully executed and nothing further remains to be done on the part of the plaintiff, he may sue and recover upon the common counts.\[85\]

_Remedy by injunction.\[84\]_--Equity may by injunction restrain conduct contrary to the terms of the contract where the remedy at law is inadequate, even though it is not a case where specific performance could be decreed.\[85\] Thus the court may, in proper cases and where irreparable injury is shown, enjoin a violation of negative covenants therein.\[86\] An injunction will not, however, issue to restrain the breach of a personal contract or one relating to personal property, or a mandatory injunction to compel specific performance thereof, where the recovery of damages at law would adequately redress the impending injury.\[87\] The breach of valid agreements in restraint of trade may be restrained by injunction provided they are established by clear and satisfactory proof,\[88\] even though plaintiff will not

505, 19 L. R. A. 408; Benton v. Pratt, 2 Wend.

sumpenti will lie. Contract price the reason- \[N. Y.\] 385, 20 Am. Dec. 623; Snow v. Judson,

abs measure of value in absence of show- 38 Barab. TN. Y.\] 210.

It has also been held that the person so

haton F. O. Brick Co. \[Mc.\] 60 A. 795. See,

over. Dooremus V. Hennessy, 176 Ill. 608, 52

also, Assumpenti, 5 C. L. 297.

**A. E. 924**, 54 N. E. 524, 68 Am. St. Rep. 203.

**A. E. 96.**

There is, however, a line of cases holding that an action will not lie against one who

substantial justice will be thereby accomod-

from malicious motives, but without threats,

pilished by obliging defendant to carry out violence, fraud, falsehood, deception, or benefit to himself induces another to violate his

contract with plaintiff, with whom he does

not stand in any personal relation. Boysen

parc Marget Co., 26 R. I. 295, 58 A. 977. De-

v. Thom, 98 Cal. 57, 33 P. 492, 21 L. R. A. 233; Glencoe Land Co. V. Hudson Bros., etc.,

v. Lo, 138 Mo. 439, 40 S. W. 93, 60 Am. St. Rep. 560, 36 L. R. A. 804; Chambers v. Baldwin,

had expended money and entered into con-

91 Ky.\] 121, 15 S. W. 57, 44 Am. St. Rep. 165,

tracing party who is about to be injured by

11 L. R. A. 545; Bourilve v. Macauley, 91 Ky.,

135, 34 Am. St. Rep. 171, 15 S. W. 60, 11 L. R. A. 550. See, also, Ashley v. Dixon, 48 N. Y.

430, 8 Am. Rep. 559.--From the Raymond

v. Yarrington \[Tex.\] 97 Am. St. Rep. 923.

52. People v. Republic Sav. & Loan Assn',

97 App. Depr., 31, 89 N. Y. S. 582.

53. Massey v. Greenabaux Bros. \[Del. Super.\] 58 A. 804. Where work has been

performed and nothing remains to be done

but to pay for it. Leach v. Alphons Custodis

Chimney Construction Co., 110 Ill. App. 338;

Sanilary Dist. v. McMahan & Montgomery

Co., 110 Ill. App. 510. Party wall agreement.

Evans v. Howell, 211 Ill. 85, 71 N. E. 854, aff.

111 Ill. App. 167. A real estate broker's

speculations, plaintiff, under showing made,

commission that has been fully earned under

and express contract may be recovered under

as there was no showing of irreparable in-

the common counts, and the contract itself

jury, or that plaintiff had no adequate rem-

admitted in proof of the particulars of the

general right so set up. Risley v. Beaumont

Lackner, 99 App. Div. 251, 90 N. Y. S. 954.

\[N. J. Law\] 59 A. 145. This is true though

Under contract appointing plaintiff exclu-

the contract is one required by the statute

sive selling agent of defendant's paper spec-

of frauds to be in writing. Id. Where a

ciatilates, affladavits showing sale of chop

contract of sale has been executed and noth-

ing remains to be done but the payment of

chosen does not show breach, where ma-

the purchase price, the seller may declare

generally in indebitatus assumpenti. Olces

v. Moble Fruit & Trading Co., 211 Ill. 539,

71 N. R. 1084, aff.

suffer any substantial injury, or though he has an adequate remedy at law.58 Third persons may be restrained from inducing the violation of the contract by those who are parties thereto.60 Pending a suit for specific performance, equity may enjoyin further violation of the contract for the purpose of maintaining the status quo.64 Obelience to a final decree in a suit for specific performance may be

violation of a valid agreement not to engage in a particular business in a specified territory for a designated period. Mononga-ther control over them. Id. When, under hea River Consol. Coal & Cooke Co. V. Jutte, 210 Pa. 288, 59 A. 1088. Because of the difficulty of estimating damages, and to prevent a multiplicity of suits. Davis v. Booth & Co. to its transfer or use by any contract they may see fit to make. Id. But when stamp escapes from control of first party who took N. E. 11, aff. 112 Ill. App. 518.

60. Plaintiff sold proprietary medicines to wholesale and retail drugists under contract providing that they should only be sold at uniform prices and to dealers who became the violation of the contract is a suit on the came parties to the contract. Defendant who was not a party to the contract, ob-tailed medicines from one who was, and customers from acquiring such stamps from riches therefrom, sold medicines at reduced prices. Held, plaintiff was entitled to pre-the regular way and distributing them for immunity injunction restraining defendant from inducing parties to contract to violate it, and from selling medicines as plaintiff," as in other than original packages and at less than contract price to the injury of plaintiff's business. Dr. Miles Medical Co. V. Gold-thwaite, 133 F. 794. Use and distribution of quotations of prices on sales of grain, etc., for future delivery collected by board of trade, and which cannot be obtained without a known breach of the confidential terms on which they are communicated by the board to its customers, may be enjoined, even though such quotations relate to "pre-tended buying and selling" within II. Act June 6, 1887, prohibiting the keeping of places where such transactions are made. Board of Trade v. Christle Grain & Stock Co., 25 S. Ct. 637.

Trading stamps. New Jersey ruling: Trading stamps which, under the contract between the company issuing them and the merchants purchasing them, are redecamble when issued and collected in the regular way without limitation except as to the minimum number which can be presented at one time, are choses in action. Sperry & Hutchinson Co. v. Hertzberg \[N. J. Eq.\] 60 A. 368. When so issued and collected they are a property right, bought and paid for by the collector, and are assignable, in the absence of a provision to the contrary in the contract. Id. Where stamps are issued without any limitation on the right of holders to transfer them, the company cannot thereafter, by any change of its plan or its contracts with merchants, limit such right as to stamps previously issued and acquired by the holders in the regular way. Id. The retention by the company of the title to the stamp as a chattel after it has been issued does not interfere with its use as the token or evidence of the chose in action, and such title cannot, in a court of equity, be asserted adversely to the holder of the right of re-demption. Id. When the transferable obligations represented by the stamps have been put upon the market subject to cer 5 Cur. Law. CONTRACTS $ 9E. 735

enforced by prohibitory or mandatory injunction, or both, according to the exigencies of the case.${}^{\\text{\\text{\\textregistered}}}$

(SS 9) _C. Defenses and counter rights.${}^{\\text{\\textregistered}}$--Performance is of course a defense to an action for breach of contract.${}^{\\text{\\textregistered}}$_

An agreement in a contract for arbitration is no defense to an action thereon, where no demand for arbitration was made until after the trial.${}^{\\text{\\textregistered}}$

Failure of one party to perform his contract entitling the other party to a modification or extinguishment thereof may be pleaded as a defense or counterclaim.${}^{\\text{\\textregistered}}$

In cases where recovery may be had for partial performance, defendant is entitled to counterclaim for any damages suffered by him because of plaintiff's breach.${}^{\\text{\\textregistered}}$ So, too, negligent performance may be considered as a ground for recoupment of damages.${}^{\\text{\\textregistered}}$

(SS 9) _D. Procedure before trial.${}^{\\text{\\textregistered}}$--The question of venue depends upon the statutes of the various states.${}^{\\text{\\textregistered}}$_

(SS 9) _E. Parties, pleading, evidence, etc.${}^{\\text{\\textregistered}}$ Time of commencing action.--_

The action must, of course, be commenced within the time fixed by the statute of limitations,${}^{\\text{\\textregistered}}$ and, in states where such provisions are valid, within the time fixed

gas and oil. Carnegie Natural Gas Co. v. Support Penn Oil Co. \[W. Va.1 49 S. E. 548,

ground for recoupment of damages. Else. #2. Carnegie Natural Gas Co. v. South Penn Oil Co. \[W. Va.1 49 S. E. 548,

Flem. Oil Co. \[W. Va.

by the contract itself.73 So, too, an action commenced prior to the time fixed by the contract for payment is premature.74 Where the contract provides for payment on the happening of a contingency, limitations do not begin to run until it happens.75

Footnote 73: The contract is not a legal contract, but it is not a legal contract.

_Parties.76--Whether one of several parties to a contract may sue thereon without joining the others depends on the nature of the interests of the parties.77 If that is several, separate actions may be maintained, even if the promise is joint.78 But where the language used is joint, in order to enable one to sue alone he must allege and prove that the relations are several.79_

Footnote 77: The contract is not a legal contract, but it is not a legal contract.

_Pleading.80--The ordinary rules of pleading apply to actions on contracts,81 including those as to jounder of causes of action,82 and amendments.83_

contrary," is it need not be set out in words and figures, but it is sufficient to definitely state its substance."66 Where the contract is annexed to the complaint and made a part thereof, the rights of the parties are to be determined by it rather than by the general allegations of the complaint concerning its effect."87 So, too, the contract prevails over inconsistent allegations of its effect."88

In the absence of a distinct averment, nothing will be presumed to defeat a contract valid on its face."89 Fraud, accident, or mistake,"90 illegality based on matter not alleged in the complaint,"91 want or failure of consideration," the laws

contract as defense insufficient for failure |ner, 99 App. Div. 281, 90 N. Y. S. 954. Where to fully set out contract. Julius Kessler & Co. v. Perilloux & Co. \[C. C. A.\] 132 F. 908. |duced when and where the court may direct," but only sets out a part of its pro-copy of contract to be annexed to statement |visions, a copy of the contract attached to claim is mandatory. Write v. Sperling, the answer cannot be added to, and contract no alleged in connection with the complaint.

Attendon River Power Transmission Co. v. contract upon which the statement shows the action is founded is in writing, and statement is not accompanied by copy, defendant has shown a valid reason why summary judgment should not be entered against him, even though he does not set forth = perfectly valid defense upon the merits. Id. In action on book account, where defendant allegers written contract as basis of the action and relies on its breach for a defense, and plaintiff is ruled to produce it and denies its existence under each and thereby obtains judgment, but its existence in plaintiff's possession is subsequently shown, the judgment should be opened. Id.

Error to enter judgment on plaintiff's affda-vit without giving defendant opportunity to show existence of contract by depositions. Id. In such case the fact that defendant did not give the exact date of the contract is immaterial, where he otherwise sufficiently designated it. Id.

S6. Mansfield v. Morgan, 140 Ala. 567, 37 So. 393. Complaint setting out contract in haec verba is not demurrable because such contract is somewhat indefinite and obscure in its terms, where it is capable of being rendered certain by matter allunde. Cliff Foy & Bro. v. Dawkins, 138 Ala. 235 So. 41. A mere allegation of duty is insuffment, but there must be an allegation of facts sufficient to show such duty or obligation. Complaint in action for breach of contract to furnish water for irrigation purposes held insufficient in failing to show that said contract was binding upon the parties at the time of the alleged breach. Spencer v. Bessemer Waterworks Co. \[Ala.\] 39 So. 91. Complaint alleging that defendant had exclusive right to furnish water to the citizens of the city, but failing to allege that defendant was under any contractual obligation to the city to furnish water to plaintiff, or that there was a contract between plaintiff and defendant for the water, or what rate was to be paid for the water, or that either plaintiff or the city was under any obligation to pay for it at all, held bad. Id. Petition in action on alleged contract on the part of testator to give plaintiff half his estate by will in consideration of his services held too vague and indefinite to withstand damurrer on ground that it fails to set forth terms of the contract. Cooper v. Claxton \[Ga.\] 50 S. R. 899.

S7. Samuel Cupples Envelope Co. v. Lack-

6 Curr. L.--47.

of a foreign state," the failure of a foreign corporation to comply with the laws of the state where the action is brought,"44 and a breach,"55 or rescission of the contract,"00 must be pleaded. There is a conflict of authority as to the necessity of pleading waiver and estoppel."

A consideration must be alleged \*\* unless the contract itself imports one or shows one on its face,"99 or unless the complaint shows a partial performance."

One relying on performance 2 or nonperformance must ordinarily allege it,"

cient. Snyder v. Knight, 23 Pa. Super. Ct. 1 tract for breach of warranty, failure of 309.

93. In order that a contract may be declared invalid under the laws of a foreign state where it was made they must be pleaded. Perkins v. Trinity Reality Co. \[N. J. Eq.\] 61 A. 167. Lex loci contractus must be pleaded in order to control construction. Otherwise lex fori will control. Neverman v. Bank of Cass County, 14 Okl. 17, 8 P. 382. In order to protect itself under a contract made in another state, and void in the state in which the action is brought, a carrier must show that the contract was valid in that state and that the loss occurred there. Adams Exp. Co. v. Walker, 26 Ky. L. R. 1025, 83 S. W. 106. In action in Massachusetts on South Dakota contract there is no presumption that the statute law of the two states is the same, but it will be presumed that the common law is, in the absence of proof to the contrary. Cherry v. Sprague, 187 Mass. 113, 72 N. E. 456. Promisors note payable in South Dakota and sent to payee in that state is a South Dakota contract. Id. Averment that contract was executed in New York held denial of allegation that it was executed in Pennsylvania, and not new matter subject to demurrer under Code Civ. Proc. $ 494. Onderdonk v. Peale, 93 N. Y. S. 505.

01. New York Architectural Terra Cotia Co. v. Williams, 102 App. Div. 1, 92 N. Y. S. 808. In an action by a foreign corporation on a contract alleged to have been executed and delivered in another state, held that its failure to secure the certificate required by statute could not be pleaded in bar of the action in the absence of an averment that it was doing business within the state. Onderdonk v. Peale, 93 N. Y. S. 505.

01. Complaint held to sufficiently allege breach of contract to save' plaintiffs harmless in sale of certain property under a mortar to furnish and put on a slate roof held gage. Cliff Foy & Bro. v. Dawkins, 188 Ala.

232, 35 So. 41. Complaint In action on contract for purchase of stock on margins held to sufficiently allege breach of duty by defendant. Wiggins v. Federal Stock & Grain Co., 77 Conn. 507, 59 A. 607.

17 Pleadings held insuffleent: A declaration in assumpist for breach of a mutual compact to make a donation, which recites no consideration and fixes no time for performance, where no breach other than a conveyance of the property which was to be donated is alleged, and there is no allegation of a demand and refusal of performance. Foulds v. Watson, 116 Ill. App. 130. Answer in action on contract whereby plaintiffs agreed to send defendants orders only from first class firms who would pay them commissions on wheat sold for them and would pay cable expenses. Durgev v. Parker, 94 N. Y. S. 981. In an action to recover money paid for threshing qutit and to rescind con but performance or a readiness to perform need not be alleged where defendant has repudiated the contract, affirmatively refused to perform, or denied liability under it."

A plea is subject to demurrer where the only damages alleged appear to have been suffered by one not a party to the suit."

In order that extraneous evidence may be admitted to explain an ambiguous contract-there must be a plea on which to base it."

Anything showing that plaintiff is not entitled to recover is admissible under a plea of nonassumpsit.' The defense that no contract was in fact made," that the contract has been satisfied," or that plaintiff himself breached the contract is admissible under a general denial.10 In an action on an oral contract, a defendant who pleads a general denial need not also plead want of consideration.11 The illegality of a contract valid on its face,12 fraud in the procurement of the contract,13 or that it was so modified after its execution as to release defendant from his obligation thereunder, is inadmissible under the general issue.14 Performance of conditions precedent may, in some states, be proved under the common counts.15 If the obligation to pay depends on a contingency, its occurrance

he was. Harmon v. Thompson \[Ky.\] 84 S. W. 569. In action for monthly instalment oral agreement is alleged, the conditions of contract price of power furnished where plaintiff claims that defendant has resched into the contract and is therefore liable for prossure specifics. If the contract has a dislegative proof, must be alleged.14 A denial that plaintiff has performed all the conditions precedent is not a negative pregnant.17 In some states a denial of execution must be made under oath.18

Where recovery is sought on the theory of a contract performed, and the answer denies full performance, defendant is not required to give a bill of particulars showing in what particulars plaintiff has failed to perform.19

Where defendant denies performance and alleges by way of offset, without counterclaim, that he has expended money for labor and materials in completing the contract, plaintiff is entitled to a bill of particulars with reference thereto.20

Footnote 20: The author is grateful to the anonymous referee for the support of this work.

\_Evidence.21--\_The burden is on plaintiff to establish by a preponderance of the evidence that a contract valid under the statute of frauds was entered into between the parties, its breach, and his damages.22 The burden of proving consideration is ordinarily on plaintiff,23 unless the contract itself imports one.24 He also has the burden of showing performance.25 The burden of proof is on defendant to show by a preponderance of the evidence that he did not sign the contract sued on.26

Footnote 20: The author is grateful to the anonymous referee for the support of this work.

Footnote 21: The author is grateful to the anonymous referee for the support of this work.

Footnote 22: The author is grateful to the anonymous referee for the support of this work.

Footnote 23: The author is grateful to the anonymous referee for the support of this work.

Footnote 24: The author is grateful to the anonymous referee for the support of this work.

Footnote 25: In an action for refusal to accept goods tendered under a contract of sale, of which he has expended money for labor and materials in completing the contract, plaintiff is entitled to a bill of particulars with reference thereto.20

Footnote 26: In the author is grateful to the anonymous referee for the support of this work.

Footnote 27: The author is grateful to the anonymous referee for the support of this work.

Footnote 28: The author is grateful to the anonymous referee for the support of this work.

Footnote 29: The author is grateful to the anonymous referee for the support of this work.

Footnote 20: The author is grateful to the anonymous referee for the support of this work.

Footnote 21: The author is grateful to the anonymous referee for the support of this work.

Footnote 23: The author is grateful to the anonymous referee for the support of this work.

Footnote 24: The author is grateful to the anonymous referee for the support of this work.

Footnote 25: In an action for refusal to accept goods tendered under a contract of sale, of which he has expended money for labor and materials in completing the contract, plaintiff is entitled to a bill of particulars with reference thereto.

5 Cur. Law. CONTRACTS SS 9E. 741

The rule applies with the same force to exclude such proof for the purpose of varying an implication of law arising from the writing, or in other words, its legal.

a previous oral promise has not been kept, nor reformed on the ground that such a promise was made and not included in the writing, unless it be shown that its omission there was due to mistake, fraud, or accident. Smith v. Rust, 121 III App. 84. A party signing a written contract cannot testify as to an understanding of its meaning different from the plain language of the writing. Bound to know its contents, and bound by contract, though he signs without reading it or on the representations of a stranger. Standard Mfg. Co. v. Hudson \[Mfg. App.\] 88 S. W. 137. Cannot testify as to his undlosed intention. Not to consider cost of coal in determining price to be charged for excavating trench, where con- and "Hurston" "H effect, as it does to a charge of the written terms themselves; 22 nor is it changed by the fact that the contract contains a patent ambiguity,\[30\] nor because the contract is general in its terms.\[41\] Conditions precedent to its taking effect enumerated in a written contract will be presumed to be exclusive and others cannot be added by parol.\[32\] The fact that the contract contains an express warranty or representation does not exclude an implied warranty upon another matter concerning which it is silent.\[33\] An objection that parol evidence contradicts a written contract is untenable where the writing alleged to be contradicted is not in evidence.\[34\]

intended as a temporary security pending the removal of objections to the mortgaged premises. Law v. Smith \[N. J. Eq.

- 5 Cur. Law. CONTRracts SS 9E.

If the contract is ambiguous, the situation of the parties when it was made and all the surrounding circumstances may be shown for the purpose of arriving at their intention. \[36\] So, too, in such case, parol evidence is admissible to show the relation of the language to the subject-matter, or to identify any person or thing mentioned in the contract, \[26\] or to show the sense in which the parties used a word of vague meaning, \[37\] or the meaning of words peculiar to a particular business or trade, which are not in common use and have no settled judicial meaning, \[38\] or to supply omitted terms. \[38\]

fully express the agreement of the parties

Helper v. MacKinnon Mtg. Co. \[Mich.J 101 does not exclude an implied warranty where

N. W. 804. Evidence as to purpose for one would otherwise be found. Implied warranty of fitness of heating apparatus for

show meaning of words "as needed" and

contemplated use. Id.

34. Mason v. Postal 'Tel. Cable Co. \[S. C.\]

Lancele Cont. Co. v. Moss Tie Co., 185 Mo.

50 S. E. 781.

35. See, also, Interpretation, SS 4A, ante,

referred to im memorandum transferring the L'EnEngle v. Scottish Union & Nat. Pire Ins.

contract from railroad to construction com. Co. \[Fla. J 37 So. 462; Sanitary Dist. of Chil.

pany, to show what contract was meant. Id.

cago v. McMahon & Montgomery Co., 110

Oral and written statements of parties con-

III. App. 510. Contract for excavating held

non ambiguous, Dugan v. Kelly \[Arl. 8\]

tween attorney and client, to show what

S. W. 831. The acts, conduct, and declarations of the parties, to explain what the payment was to be made. Barcus v. Gates,

contract actually covers or to what conditions or subject-matter it applies, where its

A.J 136 F. 184.

meaning in that regard is not obvious on

36. To show what property was meant,

inspection. Conduct and declarations of parties

these admissible on question whether con-

sale as farm consisting of about twenty

soldation of two corporations, was limited

to consolidation resulting from negotiations

sible where question is which of two par-

then pending or applied to one resulting

cells was meant. Hydca v. Perkins, 86 KY.

from future negotiations, where contract

L. R. 1099, SS 5. W. 128. To show who was

was silent on the subject. Donner v. Alford

meant by offer to furnish "you" ties as

\[C. C. A.\] 136 F. 150. An ambiguous contract is

tract is open to explanation by parol. Evil-

185 Mo. 25, SS 4 S. W. 76. Evidence which is

dence held to show contract to convey land

explanatory of the subject-matter of the

to defendant on payment of purchase price.

written contract, consistent with its terms,

Tingrie v. Patch, 93 Minn. 437, 101 N. W. 792.

and necessary for its interpretation. Cox v.

Civ. Code 1895, SS 5202. Where contract of

Wilson, 25 Pa. Super. Ct. 635. Where, in

sale of business was ambiguous as to

the application of the contract to the sub-

method of paying part of purchase money,

jet-matter, an ambiguity or uncertainty

held competent to prove prior agreement

arises which cannot be removed by an

that it was to be paid out of profits of a

amination of the instrument alone, parol

certain enterprise, and, if there were no

evidence of the circumstances under which

profits, nothing further was to be paid.

It was made and of statements made in the

Morrison v. Dickey \[Ga. 50 S. E. 178.

prior negotiations is admissible to resolve

Evidence held admissible: Where ded

the ambiguity and prove the real intention.

provides that grantee shall assume mort-

Admissible to explain indefinite provisions

gages, taxes, and claims of any and every

building contract in regard to paving

description, to show what claims were

proaches to certain sheds. Kilby Mfg. Co.

meant. Gage v. Cameron, 211 III. 146, 72

V. Hinchmann-Renton Pire Proofing Co. \[C.

N. E. 204, rvs. Cameron v. Sexton, 110 III

C. A.\] 112 F. 957. To explain the meaning

App. 381. To show condition of property

of the language used to its relation to the

which was subject of contract for sale of

facts. Where memorandum for sale of

standing timber with view to arrive at in

gent of parties in terms used. Walker v.

admissible to identify him as a partner in

Johnson, 116 III. App. 145. Contemporane-

desendant firm, and to show that he con-

ous conversations in regard to when goods

to be shipped would be wanted. Semon,

Rache & Co. v. Coppes, Zook & Mutschler

T. C. A.\] 134 F. 84.

Serenal character of the business of the

parties. In suit on contract to purchase

scrap iron, evidence that plaintiff, on a

run," in contract of sale. Barnes v. Leldigh

drop in the price, purchased Parol evidence is also admissible to show the execution of the contract,40 its actual date,41 a subsequent modification thereof,42 or an independent collateral agreement not inconsistent with it,43 to show fraud,44 accident or mistake,45 illegal-

bracing a part of the contract, or as de- to make repairs prior to the beginning of fining the obligation assumed, evidence in regard to them is admissible for the purpose of fully showing the terms of the contract. Letters admissible to show that the first grain sold off the place. Saffer v. agreement to pay drafts was not limited to acceptance for invoices mentioned in first letter, and to throw light on general course of dealing between the parties. James v. Lyons Co. \[Cal.\] 81 P. 275. Where one of the terms agreed upon has not been incorporated into the written contract, and the latter appears to be incomplete or uncertain as to the object or extent of the engagement. Union Special New. Mach. Co. v. Lockwood, 110 Ill. App. 387. Rule does not apply where the apparent omission is supplied by implication of law. Id. Contract to furnish advertising not so ambiguous as to justify admission of parol evidence to retain when publication was to begin. No time being specified, law will imply agreement to furnish copy within reasonable time. Mail & Expresse Co. v. Wood \[Mich.\] 12 Det. Leg. N. 244, 103 N. W. 844. Where a contract for the transportation of live stock is silent as to the time and manner of performance, parol evidence is admissible to show that it was customary to trans-port stock amounting to ten cars or more in separate train when demanded. North-ern Pac. R. Co. v. Kempton \[C. C. A.\] 138 F. 982.

40. Where defendant denied that memor- andumf of sale of hops reciting consideration of $1 was ever executed or delivered as a contract, but claimed that it was signed as a part of the negotiations for the sale, which negotiations were never consumulated, held, that evidence as to such negotiations and as to the amount to be paid for the hops was admissible for purpose of sustaining such contention and not incor-, yet as varying the terms of a written contract. Schwarz v. Lee Gon \[Or.\] 80 P. 110.

01. To show that building contract containing stipulation against liens, which was dated October 3d and filed October 19th, was not executed until October 18th. Cut-ter v. Plerson, 26 Pa. Super. Ct. 10.

01. Evidence as to conversations between the parties, had on same day but after contract to furnish information as to timber and homestead locations had been entered into and information had been given, in which defendants undertook to get plain-, iffs to reduce the price, held admissible in action for contract price. Cummings v. Weir, 37 Wash. 42, 79 P. 487.

01. Where company's regulations provided for special charge for delivery of telegrams beyond free limits but did not require its prepayment, held possible for parties to contract with reference to custom of company to make such deliveries without prepayment without thereby con-, traversing the terms of the written contract of which such regulations formed a part. Western Union Tel. Co. v. Bowman \[Ala.\] 87 So. 493. An independent oral agreement

## 5 Cur. Law. Contracts $ 9E.

**ivity,46** failure of consideration,47 or the true consideration, even though it is different from that stated,48 that a deed absolute in form was intended as a mortgage and that it was never delivered to the grantee or accepted by him,49 that the delivery of a deed was conditional and that the condition essential to make it absolute never arrived,50 or to show the true relation of the parties to a note where it appears that the payee knew that certain of them signed as sureties only.61

One's financial condition or possession of property is relevant to the question of whether he received the money or property alleged as the consideration.\[65\]

The performance of conditions precedent must be proved.\[66\]

The general rules as to the admissibility of evidence apply. Particular examples will be found in the note.\[97\]

note, but admissible in any event where

agreement whereby lessee was to erect failure of consideration is pleaded. Id. Evidence sufficient to support finding that con-

lowed to set off its value against rents for

ditions had been compiled with, and hence

last two years of term, letters written by

there was a failure of consideration. Id.

one of the lessons to the lessee tending to

55. Admissible that bank account showed

prove that building was erected under some

no deposit corresponding to alleged loan.

such agreement. Chamberlain v. Jha, 181

Wright v. Davis, 72 N. H. 448, 57 A. 385.

X. Y. 486, 74 N. E. 481. In action for non-

56. See, also, 9 A.A., note. Provision that

delivery of cotton, option for the sale of

third person shall decide all questions rela-

which plaintiff had accepted by telegram,

tive to execution of contract and that his

it was competent to prove the telegram by

decision shall be final and binding held not

the operator at the sending office, though he

condition precedent to maintenance of ac-

was not the one who sent it, where he tes-

tion on contract. Sanitary Dist. of Chil-

cago v. McMahon & Montgomery Co., 110 Ill.

Blalock v. Clark, 187 N. C. 140, 49 S. E. 88.

App. 510. Where plaintiff was only en-

As to terms of the contract. Evidence

tilded to recover under order accepted by

beld admisshile: On issue as to terms of

defendant for iron actually used in building,

confract for drawing plans for defendant's

ing, the burden was on him to show defendants' wife in

hove, declarations of defendants' wife in

hivery and progress of the work to a point

that regard, made in his presence when the

where payment became due. Weber v. Far-

terms were being considered, coupled with

rell, 84 N. Y. S. 272. Where the bond and

his acquiescence in her wishes. Hight v.

contract sued on are pleaded according to

klingensmith \[Ark. 87 S. W. 138. Where

their legal effect, and no conditions precedent appear therein, an objection to the

is offered showing market price, it is not

troduction of evidence on the ground that

performance of such conditions is not al-

buttal showing what a fair price would be

leged is untenable, in the absence of a

more, of the particular work. Schmidt v. Tur

tion to make the complaint more definite

ner, & Ohio C. C. (N. S.) 492. Memorandum

and certain. Building contract. Leghorn v.

Nydelel \[Wash.\] 80 P. 833. Where promise

of secretary of navy to pay persons sub-

them, a copy of which was shown to have

mitting designs for vessels depends

tirely upon subsequent adoption of plans,

their adoption or use must be established

sut involving an alleged breach by it,

in order to recover. Lundberg's Case, 39 Ct.

C1. 23.

57. See, also, Evidence, 3 C. L. 1334.

As to execution of contract: Evidence

by plaintiff was to move buildings across

held admissible. In action to recover wages

waten on scows, where each party claimed

which it was alleged deceased had depos-

that it was the duty of the other to

political in a bank and promised to hold subject

cure the scows, conversations by plaintiff

to plaintiff's order, evidence as to the

perpy and circumstances of deceased. Tripp

Anderson v. Hilker \[Wash.\] 80 P. 848.

v. Macomber, 187 Mass. 109, 72 N. E. 361.

Under a complaint alleging merely the ad-

And as to conduct of plaintiff in regard to

claim after death of deceased. Id. Also

use and benefit, a bond executed by defend-

delearations of testor made in his life-

ant to plaintiff recling the defendant's

time to defendant, or testor's sister, or

contained in his will, under Rev. Laws,

the same by plaintiff to show the nature of

c. 175, 87 GT. Id. Where the plaintiff

the transaction between the parties. Actan

nies the existence of an express contract,

evidence that the amount alleged by de-

fedant to have been called for by the con-

the terms of a parol contract of employ-

ract is the reasonable value of the work.

Guglielino v. Cahill, 185 Mass. 375, 70 N. E.

contracts with other employes is irrelevant.

435. In action on alleged oral contract by

That none of them were paid commissions.

stechholder of one of two corporations,

Fearstore & Foundry & Mach. Co. v. Cris-

which had united to form the plaintiff com-

well \[And. pp. 175 N. E. 30. In action for

pany, to make good the loss resulting from

the cancellation of a certain contract with

plaintiff in defendant's books containing

it by transferring to plain 5 Cur. Law. CONTRacts SS 9E.

Variance.58--As in other actions, a party can recover, if at all, only on the cause of action alleged in his pleadings, and hence pleading and proof must correspond.59 One suing on an express contract cannot recover on an implied one,60

less. Tyndall v. Van Auken's Erstate, 94 N. \[tion to extension of railroad merely re-quired that it should be of standard gauge.\]

Offers of compromise: Under B. & C. Comp. \[of the same material\]

$ 552, relating to offers to compromise, a tender by defendant which is not accepted

completed to certain town and first train

Is not an admission of the terms of the contract shed on and of the breach alleged.

late, evidence as to whether railroad had

Young v. Stickney \[Or.\] 79 P. 345.

As to damages. Evidence held admissible: In action for breach of contract for sale of

hides made in Detroit, trade paper showing

that market value in Chicago, it having

speed of trains (Id.), and as to whether it

been shown that more were taken off in the

latter city than in any other place in the

held immaterial (Id.). Evidence as to account

country. Kliber v. Capilis \[Mich.\] 12 Det. \[cidence of proposition and commencement

Leg. N. 57, 103 N. W. 531. Evidence that

plaintiff had to go on the market and buy

admissible. Id. Evidence that first class

cotton at an advance by reason of defend-

suel was subsequently replaced properly

ant's failure. Blalock v. Clark, 137 N. C.

stricken because not showing who made

140, 49 S. E. 88. In any event it was harm-

the change. Id. Letters complaining of

less where no price was given and court

subsequently ruled it out upon issue of dam-

completion of the contract are incompetent

ages. Id. Where there is a dispute as to

in an action on the contract, because if the

whether the work was performed under a

the work was performed under a

special contract or as defendants' agent,

evidence as to the reasonable value thereof.

proving them is enough. Inman Mfg. Co.

Radel v. Leshler \[C. C. A.\] 137 F. 719. Where

v. American Cereal Co., 124 Iowa, 737, 100

jury found that recovery should be for

N. W. 860. They are also incompetent where

work, labor and materials, evidence as to

previous difficulties have been waived by an

amount actually expended for materials

extension of the time for completion. Id.

held properly admitted. Id. Where defend-

In action to recover contract price for

ant agreed to pay plaintiff a reasonable

sour for his services, evidence as to the

mar period, evidence as to the condition of

usual amount paid for similar services held

the water company's reservoir and the

not objectionable because failing to show

ficiency of its water supply at a time sub-

any fixed custom to pay any definite price.

venient to such period. Ephata Water Co.

V Walker Mfg. Co. v. Knox \[C. C. A.\] 138 F.

v. Ephata Borongh, 24 Pa. Super. Ct. 353.

As to payment: In action for services re-

In action on contract for transporting men

plaintiff long prior there and inferentially

to defendant's camp, original book in which

plaintiff entered names of men shipped held

consideration, held inadmissible. Birch v.

admissible as book of original entries up

Birch \[M. App.\] 86 S. W. 1108. Held no

to the time when such names were copied

evidence to show payment for goods pur-

from the way bis. Idol v. San Francisco

Chased for defendant by plaintiff which

Constr. Co. \[Cal. App.\] 81 P. 665. In any

fendant admitted that had received. Car

event its admission was harmless where

plaintiff's evidence as to the number of men

**Miscellaneous evidence:** In action for

carried was uncontradicted. Id. In an action by a broker to recover commissions

sended because of its breach by defendant,

for the sale, evidence that the proposed pur-

chaser is financially able to pay the price

what had been done with monthly payments

demanded. Czarnowski v. Holland, 5 Ari.

received by defendant therendor. McDon-

119, 78 P. 890. Letters of plaintiff and his

alg. V. Pacific Defuente Co., 146 Cal. 667, 80

agents and evidence that other letters were

written to refute defendant's evidence that

plaintiff had done nothing in matter of pro-

curing certain government contracts. Parke

& Lacy Co. v. San Francisco Bridge Co., 145

Cal. 534, 78 P. 1065. In action for breach of

contract to convey land, deeds and corre-

spondence from owner and third persons, to

show defendant's ability to give title and

disprove alegations of had faith. Hard-

man v. Kelley \[S. D.\] 104 N. W. 272. In

action for nondelivery of cotton, it is com-

petal for plaintiff to testify that he was

prepared to pay for it when he went to get

it. Blalock v. Clark, 137 N. C. 140, 49 S. E. 88.

\*\*Evidence inadmissible nor on a quantum merit on proof of partial performance, though the proof may otherwise warrant it,\[61\] nor can one sue on a parol agreement and recover on proof of a written contract.\[62\]

(SS 9) \_F. Procedure at trial; verdict and judgment. Questions of law and fact.\[63\]\_The construction of an unambiguous written contract is a question of law

other is invalid, and praying that the en-

tive contract be set aside and canceled, is

not supported by evidence that it was in-

valid as to only two of the three contract-

tion parties. Barlow v. Strange, 120 Ga.

sion and liable to account for rents and

1015, 48 S. E. 344. Cannot set up forbear-

profits. Johnson v. Stephens, 107 Mo. App.

ance to sue as consideration for agreement

of third person not to sue, where different

sinced of all the conditions of the contract

consideration is alleged. Gilman v. Ferguson, 116 Ill. App. 347. In action for con-

ing a waiver of some of them. Contract to

tract price of brick, evidence that buyer

havl logs. Young v. Stickney \[Or.\] 79 P.

was unable to pay for those furnished be

cause of his financial condition held inad-

miscible, there being no such issue in the

will be limited to his allegations. If evl-

case. Iowa Brick Mfg. Co. v. Herrick, 136

ence discloses fact that he has not done

ows, 721, 102 N. W. 787. There is no material variance between an allegation that

with his allegations. Carpenter & Co. v.

a contract was entered into between two

Vulcanite Portland Cement Co. 'Pa.1 51 A.

reditors and the heirs of a decedent and

75. It cannot be said that there is a variant

proof that it was entered into by the cred-

more because the writing offered in sup-

itors and afterwards ratified by the helrs.

port of the contract declared on also con-

Stewart v. Rogers \[Kan.\] 80 P. 58. No

rains words not pleaded, if they do not in

ance between an allegation of an unconditional promise to pay and proof of a prom-

pleaded. Id. Where plaintiff declares on

ise to pay when able. Mattingly v. Shortell

contract based on telegram letter of same

\[Ky.\] 85 S. W. 215. In action on notes guar-

dated containing copy of telegram which was

sanced by defendant and given for fertilizer,

plaintiff is not entitled to claim that the

except that it contained the additional

report of the analysis of the fertilizer by

the agricultural experiment station is the

since they did not alter effect of defendant's

only competent evidence of its quality,

where it fails to alleg that it has com-

under it fails to alleg that it has com-

plied with the statute requiring such analy-

sia, and under such circumstances testimony

of persons who have purchased the

caimer to prove the contract pleaded

tilizer is admissible as to its quality. Hardy

Packing Co. v. Sprigg \[Ky.\] 84 S. W. 532.

Where defendant gives notice of recomp-

action of tresses on the case in assumpasit

ment based on breaches of the contract,

evidence as to alleged fraudulent represen-

tations leading to its making is inadmissi

and its breach, held not supported by evl-

ble. Mail & Express Co. v. Wood \[Mich.\] 12

Det. Leg. N. 244, 103 N. W. 864. In action

to recover overcharges on shipmen of ties,

where plaintiff counted on a contract for

the transportation of "lumber," he was en-

tilled to recover only for a breach of such

contract, and a recovery could not be had

on the ground that defendant embraced ties

in the word "lumber" in its published tariff

correspondence in February as alleged,

sheets and thereby expressly or impliedly

agreed that they would be carried at

lmm-

poned until September. Walker Mfg. Co. v.

her rates, though the classification might

assist plaintiff in showing that ties were

66. For transportation of livestock,

among the articles called lumber, and hence

that agreement to carry lumber at specified

1.40, 402, 73 N. E. 148.

rate was agreement to carry ties. Instructions

61. For services. Hunt v. Tuttle, 125

tion held erroneous. Greason v. St. Louis,

1.01 N. W. 509. Suit by broker to

etc., R. Co. \[Mo. App.\] 86 S. W. 722. Opin-

concern commissions under contract by

tion of interstate commerce commissioning that

fendant to pay certain price if he obtained

puschaser for entire tract of timber. Veatch

lumber held irrelevant and prejudicial. Id. v. Norman \[Mo. App.\] 84 S. W. 350. Not

Where compliant alleged and evidence

without an amendment. Manning v. School

shoved that defendant accepted deep under

Dist. No. 6 of Ft. Atkinson \[VWs.\] 102 N. W.

agreement that he should pay plaintiff any

356.

surplus remaining on sale of the property

after deducing the amount of a debt owing

Evansville & T. H. R. Co. v. MvKinney, 34

him by plain 5 Cur. Law. CONTRACTS $ 9F.

for the court, \[64\] but when its language is indefinite or ambiguous, or it is averred that some provision was, by mistake, left out of it and parol evidence is admitted to explain what the parties intended, it is for the jury to determine its meaning from the evidence. \[65\] So, too, where its terms are definitely known, the interpretation of an oral contract is for the court, \[66\] but on conflicting evidence it is for the jury to determine both the existence of the agreement \[67\] and what its terms really were. \[68\] Where the contract consists both of oral negotiations and subsequent correspondence, it is for the court to instruct the jury as to the effect of the writing

64. Dugan v. Kelly \[Ark.\] $ 6 S. W. $31; 112 III. App. 218, afd. 211 III. 333, 71 N. E. Green v. Soule, 145 Cal. 96, 78 P. 337; 1010. Fletcher v. Slimms \[Ark.\] $ 6 S. W. $93; 67. Question of acceptance of offer in re-Dunn v. Crehfield, 214 III. 392, 73 N. E. $38; 68. Hard to transportation. Central of Georgia

Higble v. Rust, 112 III. App. 218, afd. 211 R. Co., v. Gortavsky \[Ga.\] $ 15 S. E. 469,

Ill. 333, 71 N. E. 1010; Brown & Co. v. St. Subscription for extension of railroad. Do-John Trust Co. \[Kan.\] $ 0 P. 37; Greason v. Arkansas & O. R. Co. \[Ind. T.\] $2 St. Louis, etc.: R. Co. \[Mo. App.\] $ 6 S. W. $99. Whether tenant's wife cared for

723; Young v. Van Natta \[Mo. App.\] $ 8 S. W. $123. Whether

V. 123; Dunn v. Mayo Mills \[C. C. A.\] 134

ment between latter and tenant that it

F. 804; Dennis v. Montesano Nat. Bank

should be eared for in payment of the rent,

IWash.\] $ 0 P. 764; Norton v. Shields, 132 or

ruder under an independent agreement be

F. 873; Donner v. Alford \[C. C. A.\] 136 F.

tween herself and the landford. Kennedy v.

750. Where a written contract is so explicit

Swisher, 34 Ind. App. 676, 73 N. E. 724. in its terms as to be susceptible of but one

Whether a certain person was plaintiff's construction, It is the duty of the court to

advise the jury as to its meaning and effect.

grad to an advertising contract. Mail & Ex-

Locke v. Lyon Medicine Co. \[Ky.\] $ 4 S. W.

press Co. v. Wood \[Michel.\] 12 Det Leg. N.

307. It is for the court to say what is meant

244, 103 N. W. $84. Whether new contract

by a word in a written contract used, as far

was made between defendant and plaintiff,

as appears, in its ordinary, instead of a

independent from that between plaintiff and

technical or trade sense, or a peculiar one

the contract, whereby plaintiff was to

adopted by the parties. Greason v. St. Louis,

nish defendant with material previously or

etc., R. Co. \[Mo. App.\] $ 8 S. W. $72. Error

dered by contractor. Spring Brook Lumber

to leave question to jury where meaning Is

free from doubt. Grureber Engineering Co.

Whether conversations over telephone in re-

v. Waldron \[N. J. Err. & App.\] $ 60 A. $86. In assumption, where there is no substantial

lation to purchase and sale of copper wire,

In assumption, where there is no substantial

supplemented by subsequent written order,

dispute as to the facts but the case turns

constituted a contract, in view of the cus-

on the construction of a written contract,

tom of the trade and the course of dealing

it is proper for the court to enter judgment

without the intervention of a jury. Con-

of offer was not to be binding until submit-

tental Title & Trust Co. v. Devlin, 209 Pa.

ted to main office, and whether agent had

380, 58 A. $43.

authority to make contract. Direction of

65. Locke v. Lyon Medicine Co. \[Ky.\] $ 4

verdict at close of plaintiff's evidence held

S. W. $307. Held error for court to assume

that contract for sale of patent medicine

required seller's agent to go over territory

but once, and then only to introduce goods.

contract between two railroads for the use

Id. Letters held not to so clearly express

the terms of a contract employing plaintiff

as salesman as to make it error for the

court to refuse to treat them as embody-

ing the whole contract or to charge the

jury as to their purport and meaning.

Cohn v. Sherman Refining Co. \[Tex. Civ. App.\] $ 8 S. W. $138. Question whether,

under contract of hiring, the work at which

laying water pipe required contractor "to leaving it to then to determine whether a contract, and if so what contract, was made by the negotiations and the writings taken together.69

What is a reasonable time for the acceptance of an offer,70 except where the time is so reasonable or unreasonable as to leave no doubt in regard to the matter,71 whether an offer was accepted before it expired,72 whether work was done under an express contract or under the general authority of an agent,73 whether the contract is severable or entire,74 whether the contract was modified,75 abandoned,76 or re-scinded,77 whether the reemission was promptly made,78 whether the contract has been performed,79 whether performance was prevented by plaintiff,80 whether performance has been accepted,81 what is a reasonable time in which to perfom82 or to accept performance,88 and the reasonable value of services rendered,84 are questions for the jury on conflicting evidence.

_Judgment, verdict, and findings.85--A ruling on demurrer as to the validity of the contract in suit is not conclusive under the evidence introduced on the trial before another judge at a subsequent term.86_

The court having found that defendant fully performed his contract so that an action to rescind it would not lie, a failure to find upon defendant's assurances that he was ready to carry out the contract is immaterial.87

69. Error to allow jury to determine effect of writing. Ellis v. Block \[Mass.\] 73 N. E. 475.

01. Where the answer to the question de- pends on many different circumstances, which do not continually recur in other cases of like character, and with respect to Pachele Lumber Co. \[O.\] 80 P. 105.

01. Subscription for extension of rall-down. Question held for the jury. Boyd v. Merchants & Farmers' Peanut Co., 25 Pa. \[Ind. T.\] 82 S. W. 899. In action for breach of contract for sale of sausages evidence held to present question for jury as to happen in the same way, day after day, and present the question upon the same data in continually recurring instances, and where the time is so clearly reasonable or unreasonable that there can be no doubt in Pachele Lumber Co. \[O.\] 80 P. 105.

01. The question whether a letter and telegram accepting an option were received before it expired. Kibler v. Caplis \[Mich.\] 12 Det. Leg. N. 57, 103 N. W. 531.

01. Whether the construction of an electric railroad was under an express contract, or under general authority given by defendant which virtually made plaintiffs his agents in the doing of the work. Radel v. Lesher, 137 F. 719.

01. Sale of eight cases of tobacco by separate sample for each case. Error to take case from jury. Barnett v. Becker, 25 Pa. Super. Ct. 22.

01. Contract to furnish heat. Shenan-dash Steam, Ht. & Power Co. v. Beddall, 25 Pa. Super. Ct. 3. Whether services of architect were rendered under written contract or whether it was subsequently moi-fied by parol. Ritchie v. State \[Wash.\] 81 P. 79.

01. Koerper v. Royal Inv. Co., 102 Mo. App. 543, 77 S. W. 307. Whether contract for sawing timber had been abandoned by consent. Turnbowner v. Woodley, 26 Pa. Super. Ct. 249.

01. By mutual consent. Central of Georgia R. Co. v. Gortatowsky \[Ga.\] 51 S. E. 469, Whether orlghan agreement of ball-down.

01. Every contract is made by the author, but it is not possible to use the author to make it as possible to * 5 Cur. Law. CONTRIBUTION SS 1. CONTRIBUTION SS 1. CONTBACTS OF FIRE, see latest topical index. CONTRIBUTION.

SS 1. General Principles (751).

SS 2. As Between Joint Tort Fensors and Persons in Particular Relations (751).

SS 1. General principles.\[88\]--Contribution is the right of a joint debtor paying more than his share to be reimbursed by his co-debtors thereby benefited.\[89\] It does not exist where the payor is secured by his principal,\[90\] or where he could not have been compelled to pay,\[91\] or where he pays only his proportionate share of the indebfedness.\[92\]

SS 2. As between joint tort feasors and persons in particular relations.\[93\]--No obligation in contribution arises in favor of one joint wrongdover as against another where the former has been compelled to pay damages for the joint wrong,\[94\] except where the joint tort feasor agrees to bear equal proportions of the damages.\[95\] Accommodation indorsers may have contribution between themselves.\[96\] The devisees of a deceased person may be called upon for contribution by one of them paying the debts of the estate.\[97\] A tenant in common in possession paying off a recorded mortgage is entitled to bring an action for contribution against a bona fide purchaser of his co-tenant's interest at an execution sale,\[98\] and it would seem that where persons were engaged in a joint venture that the right of contribution existed between them.\[98\] No action lies where two persons at a judicial sale purchased two separate parcels both covered by a common incumbrance.\[100\]

SSs. See SS 3. C. L. SS65.

SSs. One who with others executes a note is liable in contribution for an excess paid by his co-surety regardless of whether they are joint makers or co-sureties. Willks v. Vaughan \[Lark.\] 83 S. W. 913. Where one isured pays the entire debt of both, the other is liable to him for his share thereof. Wash v. Sullivan & Co. \[Tex. Civ. App.\] 84 S. W. 388; Strickler v. Githel, 14 Qkl. 523, 78 P. 94. A Joint maker cannot compel another to contribute toward payment of any portion of a debt for which he was primarily liable. Saulsberry v. Saulsberry, 26 Ky. L. R. 735, 82 S. W. 415. Where one of the persons liable is insolvent, the loss is to be apportioned among the solvent sureties. Id.

SS 4. In re Skiles' Estate \[Pa.\] 61 A. 245.

SS 5. Purely paying debt barred by statute of limitations cannot recover in contribution. Saulsberry v. Saulsberry, 26 Ky. L. R. 735, 82 S. W. 415.

SS 6. Where one surety pays the entire note and the other relying on the assur-ance of the creditor that nothing has been paid pays to him his proportionate part, he carried to recover it back from the creditor. Wash v. Sullivan & Co. \[Tex. Civ. App.\] 84 S. W. 388.

SS 7. See 3 C. L. SS66. Right of stock hold-ers paying corporate debts, see Clark & M. Corp. 8 330.

94. Robertson v. Trammell \[Tex. Civ. App.\] 83 S. W. 255; Wnack v. Michels, 114 III. App. 631. A terminal company held jointly liable with a railroad for neglect to discover a defective brake, on payment of all the damages cannot compel the railroad to contribute any portion thereof. Union

stock Yards Co. v. Chicago, etc., R. Co., 196

SSs. One who with others executes a note is liable in contribution for an excess paid by his co-surety regardless of whether they are joint makers or co-sureties. Willks v. Vaughan \[Lark.\] 83 S. W. 913. Where one isured pays the entire debt of both, the other is liable to him for his share thereof. Wash v. Sullivan & Co. \[Tex. Civ. App.\] 84 S. W. 388; Strickler v. Githel, 14 Qkl. 523, 78 P. 94. A Joint maker cannot compel an-other to contribute toward payment of any portion of a debt for which he was primarily liable. Saulsberry v. Saulsberry, 26 Ky. L. R. 735, 82 S. W. 415. Where one of the persons liable is insolvent, the loss is to be apportioned among the solvent sureties. Id.

90. In re Skiles' Estate \[Pa.\] 61 A. 245.

01. Surety paying debt barred by statute of limitations cannot recover in contribution. Saulsberry v. Saulsberry, 26 Ky. L. R. 735, 82 S. W. 415.

01. Where one surety pays the entire note and the other relying on the assur-ance of the creditor that nothing has been paid pays to him his proportionate part, he carried to recover it back from the creditor. Wash v. Sullivan & Co. \[Tex. Civ. App.\] 84 S. W. 388.

01. See 3 C. L. SS66. Right of stock hold-ers paying corporate debts, see Clark & M. Corp. 8 330.

01. Robertson v. Trammell \[Tex. Civ. App.\] 83 S. W. 255; Wnack v. Michels, 114 III. App. 631. A

## 3 Proceedings to enforce

The right as between co-obligors rests not on the contract which they assume but on a collateral contract implied between them

Where sureties stand as such not only in equity but also in law, as-sumpsit lies

but the paying surety cannot take an assignment and bring as-sumpsit on the original obligation

except to recover from a co-surety the proportion which he owes as his share primarily

A court of equity can wind up the affairs of a partnership and decree contribution among the parties thereto

but the right cannot be enforced by a decree or suit until after a final accounting

The burden of proving joint liability is upon the person seeking to recover

and is a question for the jury

In an action by one surety against another, the whole amount of principal and interest paid on behalf of the defendant may be recovered together with interest on the entire sum from the date of such payment

While the holder of a note made out in blank may have authority to insert the name of the payee, this does not extend to one of the joint sureties in an action against another for contribution

The statute of limitations runs from the time of payment by the party and not on the original obligation or judgment

earnings. Hart v. Sickles, 45 Misc. 174, 91

N. Y. S. 897.

100. Senft v. Yanek, 110 Ill. App. 117.

001. See I. C. L. 705.

001. Sherling v. Long \[Ga.\] 50 S. E. 935.

Where all the partnership accounts are wound up except a few outstanding credits

note payable to one of their number and in-

which are barred by statute of limitations,

correspond for accommodation of their corpora

ration. The payee paid it and took an as-

108, 109, Strickler v. Gitehell, 14 Okl. 78 P. 1056.

103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 187, 189, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 211, 222, 233, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 259, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 282, 284, 286, 287, 289, 291, 288, 289, 292, 293, 294, 295, 296, 297, 298, 299, 300, 311, 320, 321, 333, 341, 342, 353, 361, 371, 389, 390, 323, 391, 335, 392, 393, 394, 395, 396, 397, 398, 399, 400, 411, 422, 433, 444, 45, 461, 472, 473, 4 5 Cur. Law. CONVERSION AS TORT SS 1. CONTRIBUTORY NeoligENCE, see latest topical index. CONVERSION AS TORT. $ 1. What Constitutes (753). $ 3. Elements Necessary to Maintain the $ 2. Property Subject to Conversion (754). $ 4. Defenses (756). $ 5. Practice and Procedure (756). $ 1. \_What constitutes.\_1--Generally speaking, every act of dominion over personal property in violation of the owner's right is a conversion.2 It has been said to be any unauthorized act which permanently deprives a man of his property.3 There must be some unlawful act either of taking 4 or of detention,5 and the detention must be wrongful 6 and unequivocal,7 such as a wrongful disposition of goods by a bailee 8 or pledge;9 but storing goods in a warehouse by a lessor when lessee refuses to take them away or receive them is not a conversion.10 An unauthorized attachment 11 or sale 12 is conversion, and the purchaser is equally liable therefor.18 The refusal of a corporation to transfer stock, asserting its right to 1. See 3 C. L. $66. 2. Custadian forbade owner to take his property. Lucas V. Sheridan \[Vis.\] 102 N. W. 1071. Refusal of agent to surrender title is conversion, Wesoloski v. Vysoski, "privileges" held for certain purpose, but used in violation of orders, held conversion. Vroom V. Sage, 100 App. Div. 285, 91 N. Y. S. 456. Code of Montana makes a sale by one partner of all partnership property unlawful. Buyers under such circumstances are guilty of conversion. Doil v. Hennessy $ 11 P. 625. Melting metal owned by plaintiff held to be a conversion. Great Western Smeiting & Refining Co. v. Eventime News As'in (Mich.) 102 S. N. W. 286. But it is not conversion by a vendor if he sells property to which he is $ 11 P. 625. 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. 91. 93. 97. 99. 91. 94. 97. 98. 99. 99. 92. 99. 93. 99. 94. 99. 95. 96. 97. 99. 98.

cancel the same,14 or a wrongful change of registered bonds to bonds payable to bearer is a conversion.18

SS 2. _Property subject to conversion.16--Reality is not subject to conversion,17 but any personal property18 of value19 is._

SS 3. _Elements necessary to maintain the action.20--As a general rule, to maintain trover the plaintiff must have legal title;21 but a beneficiary of an insurance policy may sue,22 and one having possession and claiming a lien on property may also bring an action for its conversion.23 Some cases hold that bare possession is sufficient to enable the plaintiff to maintain replenvin or trover against a mere stranger to the property.24_

_Immediate right of possession and ownership25 of property at the time of the conversion are necessary in order to recover.26 If plaintiff sues in conversion he must show that he is entitled to possession or is the owner of the property.27_

_Demand and refusal26 are evidences of conversion.29 If original taking is wrongful, plaintiff can maintain trover without demand;20 if lawful, demand is necessary,31 unless it in some way appears that a demand would have been futile.32_

14. Humphreys v. Minnesota Clay Co. passed to defendant. Newman v. Mercantile Trust Co. \[Minn.\] 103 N. W. 338. Refusal to make transfer on book of corporation. Herrick mortgagor has lost his right to possession v. Humphrey Hardware Co. \[Neb.\] 103 N. W. 685. See Clark & M. Corp. $ 379. the mortgagor, the former cannot maintain 15. Jennie Clarkson Home for Children Co. V. Missouri, etc., R. Co. \[N. Y.\] 74 N. E. 671. See 3 C. L. 868. 17. But rails by being laid as a part of a railroad track do not lose their character of personality where a railroad company that possession or not. The tort feasor is has no easemment or exclusive right of way _charged with notice of plaintiff's right, al-over the property._

_A though conversion takes place in another state. Seebing v. First Nat. Bank ITex._

_Pas until rails were paid for. Lorain Steel_

\_Cv., v._Norfolk & B. St. R. Co. \[Mass.\] 73 N._

$D$ stands a crop cannot harvest it when an- orher has rightful possession.

5 Cur. Law. CONVERSION AS TORT SS 3.755

When demand is necessary it must sufficiently comply with the law.\[83\] The party who makes a demand must have authority to do so.\[34\]

\_Right to maintain and persons liable.\[36\]--A beneficiary of an insurance policy may maintain trover against an insurance company for conversion by the agent of the latter.\[36\] Action may be brought by a trustee in bankrupty.\[37\] An attaching creditor of the mortgager is liable in trover when he takes from the mortgagee property in the latter's possession.\[48\] Although a vendor owns a fourth of the property sold by him, the owner of the remainder can recover from the vendee.\[49\] An agister having a lien superior to a prior mortgager may recover from an innocent commission merchant who sells property for the mortgagor.\[40\] An owner of property may maintain an action of trover against a purchaser of property levied on, although he has failed to file a claim on the property.\[41\]

When a statute of a state provides that one partner cannot sell all of partnership property, a purchaser acquires no title regardless of good faith.\[42\] If timber cut is to be property of vendor if not removed by a certain date, after failure to remove, the vendor cannot sue the former for converting the same.\[48\] A crop planted by a trespasser cannot be harvested by him when another has lawful possession.\[44\]

One cannot sue in trover on theory that he is the owner and subsequently sue on contract as if title had passed.\[49\] A party cannot maintain both trespass and trover or replevin.\[49\] When goods have been sold the plaintiff may waive the tort and bring an action for money had and received.\[47\] Although plaintiff had elected to bring action for conversion, he may under Bankrupty Act of July 1, 1898, prove a debt originating upon an open account or upon a contract express or implied.\[49\]

A principal is liable for a conversion by his agent.\[49\] A party ratifying or

istrates court showed fixed resolve not to lies when he brings an action purely at return property. Turner V. Cedar, 91 N. Y. Isaw for conversion. McNeil v. Hall, 94 N. Y. S. S. 758. Formal demand and refusal unnecessary when defendant claims purchase of goods from a third party. Great Western Smelting & Refining Co. v. Evening News Ass'In \[Mich.\] 102 N. W. 286. Under Fe'e Bankrupty Act of 1898, c. 154, 600, 30 Stat. 602, value of property transferred to a mortgage as a preference can be recovered from him without a demand. Jacksmann v. Eau Claire Nat. Bank \[VWs.\] 104 N. W. 98.

33. Cousins v. O'Brien \[Mass.\] 74 N. E. 289.

01. No authority of agent was shown in. Jesse French Piano & Organ Co. v. Johns-ton \[Ala.\] 37 So. 924.

01. See 3 C. L. 870.

01. This is so although assured reserved right to change the beneficiary at any time. Mutual Life Ins. Co. v. Allen, 113 Ill. App. SS.

01. Action against wife of bankrupty. Mowry v. Reed, 187 Mass. 174, 72 N. K. 938.

01. Aldrich v. Higgins \[Conn.\] 59 A. 498.

01. Property set apart for plaintiff as a year's support. Title in plaintiff. Neal v. Smith \[Ga.\] 50 S. E. 922.

01. Owner of cattle turns them over to mortgagee without the agister's consent. Everett v. Parse Live Stock Commission Co. \[Mo. App.\] 88 S. W. 165.

01. Lawless v. O'Brien \[Ga.\] 50 S. E. 85.

01. Action by one of two partners against a third person. Doll v. Hennessy Mercantile Co. \[Monol.\] 81 P. 625.

01. Plaintiff cannot avail himself of equal- 756 CONVERSION AS TORT SS 4. 5 Cur. Law

adopting the issuance and execution of an illegal writ is liable to owner of property for wrongful seizure.80

SS 4. \_Defenses.81--Defendant may plead title in himself 82 or title in a third person unless he obtained possession under plaintiff.83 Condemnation of property by board of health excuses a defendant from liability for conversion.84 An offer to return the goods 85 or to substitute like property instead of that converted is not a defense but may be evidence to show mistake and disprove conversion.85 A tender of property to constitute a defense must be made before a complaint demanding "money judgment or property" is amended so as to demand only a money judgment.87 Consent to an alleged wrongful sale will prevent recovery;88 but failure to object at the time of the wrongful appropriation will not preclude him from asserting his legal rights.89 Whether an acceptance of part payment by a principal from his agent constitutes a waiver is a question of fact.80 When a mortgagor has agreed to accept surplus arising from a sale, trover cannot be maintained by alleging the sale to be wrongful.81 A plea of infancy is a good defense in an action in the form of conversion, if the fraud originated in a contract.82

SS 5. _Practice and procedure.83--When defendant comes into possession lawfully, the statute of limitations runs from time of demand and refusal.84_

_Parties.85_

_The complaint.86--A complaint need not allege the particulars of a lien,87 nor the value of the property,88 but it must allege ownership or right to possession.89 The complaint need not allege a tender of payment for repairs in addition to allegation of unlawful refusal to surrender the property,80 but such allegation of tender has been held necessary where property has been pledged.81 An allegation of a conversion on a certain date will aLimit evidence of conversion several months_

50. The writ was not signed by justice

goods. Webb v. Downes, 93 Minn. 457, 101 N. W. 966.

\_Fendants ratifying issuance were held lia-

59. Refusal of defendant to allow plainble, Sanger Bros, v. Brandon \[Tex. Civ.

iff to remove timber from former's land

APD.\] 88 S. W. 431.

51. See 3 C. L. 871.

01. One buying from an executor who

has title can't plead ownership of property.

N. W. 950.

Curry v. Lanning, 94 N. Y. S. 855. A defendant who has become owner of timber

62. Contract to return a watch unless which plaintiff has failed to remove by

soid. Stone v. Rabinowitz, 45 Misc. 405, 90 specified date can defend by showing title

N. Y. S. 801.

in himself. McNell v. Hall, 94 N. Y. S. 920.

63. See 3 C. L. 872.

01. Andrews v. Carl \[Vt.\] 59 A. 167.

01. When a ballee does not claim title at

65, Geo 3 C. L. 872.

67. Mortgagor in possession brings con-

on the ground of ownership to avoid re-

version. Fred Krug Brewing Co. v. Healey

cover by ballor. Title may, however, be

\[Ncb\] 101 N. W. 329.

pleaded to lessen damage. Valenting v.

68. Value of the stock converted need

Long Island R. Co., 102 App. Div. 419, 92 N. Y. S. 645.

69. Value of the stock converted need

N. Y. S. 645.

65. Property condemned and taken from

\[Min.\] 103 N. W. 338.

defendant. Willeta v. Curth, 102 App. Div.

616, 92 N. Y. S. 174.

65. Lucas v. Sheridan \[Vis.\] 102 N. W.

01. Alleged conversion of notes. Brooke

01. A complaint alleging ownership but

v. Lowe \[Ga.\] 50 S. E. 146.

67. First Nat. Bank v. Cleland \[Tex. Civ.

subject to an attack for the first time by

ApAp.\] 82 S. W. 337.

58. Haynes v. Kettenbach Co. \[Idaho\]

81 P. 114. Where plaintiff attends an al-

40. But brought by one of partners for

leged wrongful sale and makes no object

tion to the manner in which property is

51. Call 49 S. E. 891.

soid, he cannot use for conversion because

70. Alling v. Weissman \[Conn.\] 59 A. 419.

articles were sold separately. Yiblin and

71. Plaintiff is not entitled to recover

carpenter's tools described as household

amount that property is worth above loan 5 Cur. Law. conversion as tort SS 5.

previous.\[12\] A conversion by demand and refusal can be shown under an allegation of conversion by sale.\[73\] If a complaint can be construed as a contract or tort, the latter will prevail.\[74\] In the note different constructions are referred to.\[78\]

\_The answer or plea.\[76\]--An answer alleging infancy is a sufficient defense if the fraud originated in a contract.\[77\] Under a general denial, defendant is permitted to show title in another.\[78\] A refusal to allow an amendment to an answer when defendant would still be liable is not error.\[79\] Where conversion is denied by answer, consent to an alleged wrongful sale may be shown.\[80\]

\_Proof.\[81\]--Burden to establish conversion,\[82\] to show the amount of loss,\[93\] and to prove ownership of property at time of conversion, is on the plaintiff.\[84\] Burden is on a carrier to establish that loss was without negligence.\[85\] When a statute provides that innocent purchaser for value acquires a good title unless a conditional sale is recorded, burden of proof is on plaintiff to show lack of good faith when the contract is not of record.\[86\] If defendant is permitted to lessen amount of damages by proof of unintentional conversion, burden of proof is on him.\[87\] Plaintiff must prove conversion\[88\] as well as ownership,\[89\] right to possession,\[90\] and value.\[91\] To prove conversion by mortgage in possession, proof of payment or release of mortgage is necessary.\[92\] When there is failure of proof plaintiff cannot recover.\[83\] To show title something more than proof of a parol agreement to will real estate and personality is necessary.\[94\] It is not necessary to prove that defendant was in possession at the time of filing the suit.\[95\]

_Damages.\[86\]_

mn\*de to him. Brown v. Seary, 100 App. Div. \[Vt.\] 60 A. 657. \[A.\] 619 N. Y. S. 63. \[A.\] 620 A. 657. \[A.\] 630 A. 658. \[A.\] 6419. \[A.\] 659 A. 660. \[A.\] 661 A. 662. \[A.\] 670 A. 671. \[A.\] 672. \[A.\] 673. \[A.\] 674. \[A.\] 675. \[A.\] 676. \[A.\] 677. \[A.\] 678. \[A.\] 679. \[A.\] 670. \[A.\] 671. \[A.\] 672. \[A.\] 673. \[A.\] 674. \[A.\] 675. \[A.\] 676. \[A.\] 677. \[A.\] 678. \[A.\] 679. \[A.\] 670. \[A.\] 671. \[A.\] 672. \[A.\] 673. \[A.\] 674. \[A.\] 675. \[A.\] 676. \[A.\] 677. \[A.\] 678. \[A.\] 679. \[A.\] 670. \[A.\] 671. \[A.\] 672. \[A.\] 673. \[A.\] 674. \[A.\] 675. \[A.\] 676. \[A.\] 677. \[A.\] 678. \[A.\] 679. \[A.\] 670. \[A.\] 671. \[A.\] 672. \[A.\] 673. \[A.\] 674. \[A.\] 675. \[A.\] 676. \[A.\] 677. \[A.\] 678. \[A.\] 679. \[A.\] 670. \[A.\] 671. \[A.\] 672. \[A.\] 673. \[A.\] 674. \[A.\] 675. \[A.\] 676. \[A.\] 677. \[A.\] 678. \[A.\] 679. \[A.\] 670. \[A.\] 671. \[A.\] 672. \[A.\] 673. \[A.\] 674. \[A.\] 675. \[A.\] 676. \[A.\] 677. \[A.\] 678.

- 1. Definition and Nature of Doctrine $ 3. Reconversion (759).
- 2. **Effect of Conversion (760).**

**SS 1.**_Definition and nature of doctrine._${}^{97}$--Equitable conversion is a change of property from reality into personality or from personality into reality presumed by construction or intendment of equity to have taken place, though it has not in fact.${}^{98}$ The basis of the doctrine is the maxim that equity regards that as done which ought to be done.${}^{99}$

**SS 2.**_How effected._--The doctrine is applicable to wills, conveyances to trustees, marriage settlements, contract for the sale of land, and to realty belonging to a partnership.${}^{2}$

_By will._${}^{3}$--The most usual application of the rule is found in the case of a devise of reality to trustees with a direction to sell the same and distribute the proceeds among designated beneficiaries, or a bequest of personality with directions to convert it into reality,${}^{4}$ and where such direction is found, equity will regard the subject of the gift as that species of property into which it is directed to be converted.${}^{6}$ The question whether a conversion takes place in such case is one of intention,${}^{8}$ the doctrine being applicable only in furtherance of testator's intention, and never to defeat it.${}^{7}$

To constitute a conversion it must be the duty of the grantee of the power to sell in any event,${}^{6}$ a mere unexecuted discretionary power,${}^{9}$ or a power to sell if

- 2. **Effect of Conversion (760).**
- 3. **Effect of Conversion (760).**
- 4. **Effect of Conversion (760).**
- 5. **Effect of Conversion (760).**
- 6. **Effect of Conversion (760).**
- 7. **Effect of Conversion (760).**
- 8. \*\*Effect of Conversion (760).

5 Cur. Law. CONVERSION IN EQUITY SS 3. 759

necessary to pay testator's debts being insufficient.10 There must either be a positive direction to sell,11 or the will must disclose a clear intention that a sale shall take place.12 An intention to convert will be implied where the executor or trustee is authorized to sell, and there is an absolute necessity for so doing in order to carry out the provisions of the will.13

The conversion takes place only for the purposes for which it is authorized, and, in so far as such purposes do not extend or do not take effect, the property is regarded as remaining in its original condition and passes accordingly.14

Neither the lapse of one of the legacies to be paid out of the proceeds of the sale,15 nor the assignment by a legatee of his interest to the executor, prevents a conversion.14

As a general rule the conversion is to be considered as having been effected on the death of the testator,11 even though the sale is postponed,18 or the time of sale is made discretionary with the executor;19 but a discretionary power of sale does not work a conversion until the sale takes place.20

SS 3. \_Reconversion.21--\_Before there has been any actual change in the property, there may be a reconversion, which takes place when the direction to convert is countermanded by the persons entitled to the property.22 In order to work a re-conversion, all the parties beneficially interested must, by some explicit and binding action, direct that no actual conversion shall take place, and elect to take the property in its original form.23 Such an election, if properly made, extinguishes the power of sale under the will, and entitles the beneficiaries and their grantees to

among certain named legates, the doctrine as _inestestate_ personality or _in_ form of money, of equitable conversion at the time of tes-

no intention to the contrary appearing. tator's death will not be applied so as to

Lash V. Lash \[III.\] 70 N. E. 1049.

attle the legates to interest from that

17. Lash v. Lash \[III.\] 70 N. E. 1049.

If refused to act or had not acted in good

positive direction to sell works an Imme-

falth, but a reasonable time will be all-

date conversion. Kennedy, Dickey, 93

lowed for the performance of the trust. In

McM. 295, 57 A. 621.

re Schabacker, 94 N. Y. S. 80,

18. In re Raleigh's Bstate, 206 Pa. 451, 55

Lash V. Lash \[III.\] 70 N. E. 1049.

If the wIII A. 119.

discloses a clear intention that the sale

shall made. In re Severns' Estate \[Pa.\] 60 A. 492.

12. In re Severns' Estate \[Pa.\] 60 A. 492.

80 A. 492. Where will provided that reality

There must be an implication of a direction to convert so strong as to leave no sub-

and proceeds divided among children, cons-

stantial doubt of such an intent. Monjo v.,

Widmayer, 94 N. Y. S. 835.

13. Where he is authorized to sell and

01. In re Severns' Estate \[Pa.\] 60 A. 492.

to purchase, and it is clear that he in-

Fact that time and terms of sale are dis-

tended that power should be exercised, it

cretionary does not give executra authority to prevent it, or postpone it indefinitely.

operate as a conversion. In re Severns' Estate \[Pa.\] 60 A. 492. Where will empowers

executive to sell really and divide proceeds

among children, without making any alter-

native disposition of it. Sale imperative in

order to make such disposition. If. Unless

the purpose of the testator will fall with

out a conversion, equity will not presume it.

Monjo v. Widmayer, 94 N. Y. S. 835. Devise

of reality to wife for life, with power to

devise same to her children or grandchildren

dren in such shares as she might deem best,

held not to work conversion. Id.

14. Kennedy v. Dickey, 99 Md. 295, 57 A.

01.

01. Death of one of the children to whom

proceeds of sale are to go, before testator

and without issue, does not prevent convert

sion when it is necessary to the other purposes of the wIII, but lapsed bequest passes

conservation.14

16. Death of one of the children to whom

proceeds of sale are to go, before testator

and without issue, does not prevent convert

sion when it is necessary to the other purposes of the wIII, but lapsed bequest passes

conservation.25

sion when it is necessary to the other purposes of the wIII, but lapsed bequest passes

conservation.36

sion when it is necessary to the other purposes of the wIII, but lapsed bequest passes

conservation.47

sion when it is necessary to the other purposes of the wIII, but lapsed bequest passes

conservation.48

sion when it is necessary to the other purposes of the wIII, but lapsed bequest passes
hold the property as it is.\[24\] In case the beneficiaries are all sui juris, the election may be made by deed in which all join, or by answer expressly stating that the parties desire to hold the land as it is, or partly by deed and partly by answer.\[25\] If some of them are infants, an election cannot be made either by or for them except by sanction and order of the court after due inquiry.\[26\]

SS 4. \_Effect of conversion.\[27\]--A direction in a will to change property from real to personal will have the effect, in equity, of changing the legal character at once, and the will should be construed as one of personality only.\[28\] Gifts of the proceeds will be regarded as bequests of personality,\[29\] and distribution should be made on the theory that the donation was made in money in the first instance.\[30\] The land will also be considered as personality for the purpose of devolution and transfer,\[31\] and the beneficiaries have no interest in the reality as such, and cannot sell, convey, mortgage, or devise it.\[22\]

Where the proceeds of the sale are only partially disposed of in fulfillment of the purposes for which it was made, the surplus passes as money.\[33\]

CONVUCTS.\[1\]

Only prisoners convicted of a violation of penal laws can be condemned to involuntary servitude.\[2\] One sentenced to hard labor cannot be detained an unreasonable length of time before commencing service of his sentence.\[3\] A convict cannot be deprived of substantial rights by an ex post facto law,\[4\] and in Kansas one under sentence of death is not rendered incapable of managing his estate.\[5\] A life convict is not disqualified as a witness.\[6\] A convict leased out by the state does not assume the risks of employment which a free man engaging therein would be charged with having assumed,\[7\] but he cannot voluntarily incur unnecessary risks,\[8\] Nor is there any liability if he sustains injury as the result of an accident.\[9\] An escaped convict is entitled to the benefit of his contracts up to the time of his re-

24. Duckworth v. Jordan \[N. C.\] 51 S. E. 109.

01. Are also other methods. Answer expressly stating that defendant desires re-conversion held sufficient election. Duckworth v. Jordan \[N. C.\] 51 S. E. 109. Under a statue giving the husband the right to administer on his deceased surfe's estate and making him sole distribute, he has, in the absence of any indebtedness, the sole beneficial interest in her share of property directed to be sold, and is alone required to make the election as to such share. Id.

01. Cannot elect by answer simply, though represented by guardian. Duckworth v. Jordan \[N. C.\] 51 S. E. 109.

01. See 3 C. L. 878.

01. Primm v. Primm, 111 Lj. App. 244.

01. Lamb v. Lash \[Lill.\] 70 N. E. 1049. See, also, McCullough v. Laumann \[Wash.\] 80 P.

01.

01. Where conversion takes place at date of testator's death. Nelson v. Nelson \[Ind. App.\] 72 N. E. 482. Where will gave trustees power to manage and control estate with power to make sales as fully as testator himself had power and to reinvest proceeds, held, that proceeds which had been reinvested in securities should be distributed as personality. Kennedy v. Dickey, 99 Md. 295, 67 A. 621.

01. Duckworth v. Jordan \[N. C.\] 51 S. E. 109.

01. Where conversion takes place at testator's death. Nelson v. Nelson \[Ind. App.\]

72 N. E. 482.

33. Kennedy v. Dickey, 99 Md. 295, 57 A.

01.

01. Management and discipline of penal institutions, see Prisons, Jails and Reformatories, 4 C. L. 1067.

01. Stone v. Paducah \[Ky.\] 86 S. W. 531.

01. Ex parte Bertis \[Ala.\] 37 S. 640.

01. Right to earn diminution of sentence. People v. Johnson, 44 Misc. 550, 90 N. Y. S.

01.

01. Sentence to be executed at a time appointed by the governor after the expiration of a year from date of conviction is not a sentence for life nor for a term less than life. Gray v. Stewart \[Kan.\] 78 P. 852.

01. One in a territorial prison may testify in a criminal case, but the fact of his conviction may be considered as affecting his credibility. Martin v. Territory, 14 Okl. 598, 78 P. 85.

01. Because he does not engage in the series of his own free will, Simmonds v. Georgia Iron & Coal Co., 133 F. 776.

01. If he does he cannot recover for an injury sustained. Simonos v. Georgia Iron & Coal Co., 133 F. 776.

01. Evidence held to show that the question of accident was not in the case. Simonos v. Georgia Iron & Coal Co., 133 F. 776.

5 Cur. Law. COPYRIGHETS.

capture.\[10\] After recapture judicial proceedings are not necessary to his confinement for the unexpired term with the period of his absence added.\[11\] In Alabama convicts working beyond the limits of the county wherein they were convicted are under the control of the board of convict inspectors.\[12\] On convicted of a misdemeanor who fails to perform a contract of service with a surety who confessed judgment for him is subject to punishment, though the confession of judgment was for costs only.\[13\]

**COPYRIGHETS.**

_Acquisition, extent and loss of copyright.\[14\]--A photograph contains such expression of idea, thought or conception as to be susceptible of copyright.\[16\] and a combination of separate pictures taken at different times and which connectedly tell a story likewise is.\[16\] Multicolored pictures impressed from plates of metal, each carrying one color, are prints and not "chromos or lithographs"\[17\] and are copyrightable, though not from plates made in this country.\[18\] The "Interim Copyright Act" for the protection of foreign publications exhibited at the Louisiana Purchase Exposition does not protect a foreign publication previously. published in this country.\[19\] The notice prescribed by statute must at least in all substantial particulars be followed.\[20\]_

**10. Where he engages as a seaman but**

make a valid contract, although perhaps is injured and leaves the service before the expiration of the term of his shipment. Mc-Kynnaird v. Leslie, L. R. L. C. P. 839. This Carron v. Dominion Atlantic R. Co., 134 F.

question has recently been passed upon by the Federal district court in Massachusetts

**NOTE. The right of a convict to con-**

as one of novel impression. A convict who threat A distinction was early made between

had escaped was allowed to recover, after the rights of one under attainder of treason

his subsequent recapture and service of or telony and one civilly dead. A person at

sentence, upon his contract made during tainted was at times spoken of as "civiliter"

the period of his escape. McCarron v. Domortis"

Domion Atlantic R. Co., 134 F. 762. In the

but the results of such attain were not the

yes of the law, a convict's disqualifications

same as the results of civil death. The latter term was synonymous to natural death

continue wherever the may go by authority and was strictly confined to cases of per- or by his own escape. Miller v. Trinkle, 1

sons banished, or abjured the realm, or who

had entered the church (Platner v. Sher-

\[Va.\] 790. No distinction can, therefore, be

wood, 6 Johns. Ch. \[N. Y.\] 118). Certain

proprietary rights were preserved to a man

an escaped convict and one who Is still in-attainted. He did not forget his freehould

so long as he lived until office found or

the principal case, a convict's position to-entry by the king. Doe v. Pritchard, 5 E.

day would seem to be analogous to that

of one under attainder rather than one

Am. St. Rep. 588, 1 L R. A. 264. Until this

entry was made, a grant by one under attainder

civilly dead. In the absence of a statute

tainted found all persons, but the king and

the lord, of whom the lands were held. Sheppard's Touchstone, 231; Perkins' Profitable Book, 62. Likewise where the fore-

future of the estate was limited to the life-time of the one attainted, the remainder of

the estate could be devised by the felon.

Rankin's Heirs v. Executors, 6 T. B. Mon.

\[Ky.\] 531, 17 Am. Dec. 161.

It seems perfectly clear that the rights

to personal safety of the one attainted were

Invidated. He was not absolutely at the disposal of the crown, for until execution,

the creditors had an interest in his person

for securing their debts and after pardon

granted, he could bring an action for personal injuries received during imprisonment. See Ramsay v. MacDonald, Foster's

Crown Cas. 62, note. Whether his contract

rights were preserved is not so clear. It is

intimately that an attainted person could

could 762 COPYRIGHTS. 5 Cur. Law. Publishers cannot by a printed notice (following copyright notice) restrict the dealer's license to sell below a fixed price books in which the publisher reserves no property or control.\[21\] A dealer purchasing such a book for resale is not a licensee or agent \[22\] and reselling below price was not within Rev. St. U. S. SS 496.4,\[23\] nor is the marketing of such books by the publisher, subject to such restriction, a mere license, but a sale.\[24\] A restrictive condition as to the retail price does not constitute a limitation of the retailer's title,\[25\] and where books were purchased at the full price demanded and were sold at a loss, there was no infringement, though the resale was at less than the price fixed by the publisher.\[26\]

At common law property in intellectual productions is lost by publication.\[27\] Exhibition of a painting in a gallery admission to which is limited and without permission to copy is not a free publication.\[28\] On the question of free publication, evidence that it was in a gallery and subject to certain restrictions is admissible.\[29\]_Assignments and royalty contracts._--An assignment to a publisher for publication on royalty with conditions against further transfer and for a reversion is a personal engagement of the publisher.\[30\] When assigned absolutely, a copyright is property transmutable to the assignee's trustee in bankrupty.\[31\] A privilege of revoking a license for nonpayment of royalties may be exercised, even though tardiness of the licensee's agent was the only reason for delay in payment.\[32\] Acceptance of royalties in arrest does not reinstate a contract of license forfeited for nonpayment.\[31\]_Infringement.\[34\]_--The use of a compiled work as a guide to original sources is not improper,\[35\] and one who has followed up such information and found it to be correct may publish it, though it is the same as that in a competing work.\[36\] He may work by taking memoranda from a copyrighted work and on investigation

terpolation of the word "published." Hills by the supreme court. Since it is only by inference that a notice,--Copyright 1902. Note: This is decided on the authority of Published by Hills & Co.," states who obstrHills & Co. v. Austria, 120 F. 862, whichtained the copyright either author or held that this notice was "good with the propritor, and if the latter, whether he is rule" in Bolles v. Outin's Co., T' 7, 964, 46 also the publisher; it is difficult to see how L. R. A. 712. But Bolles v. Outin's Co., it could be sustained under the rule laid simply held that a notice was not old whom the Lawa, Ed. 1040.

5 Cur. Law. CORONERS.

of the original sources may check his memorandum as correct and retain it, or may change it or reject what is erroneous, and publish the result.\[47\]

_Laches_\[38\] is not imputed until reasonable time to sue.\[30\]

_Remedies and procedure.\[40\]_--If matter has been copied from one compilation into another without resort to original sources, injunction may issue.\[41\] Proof of damages is not essential.\[42\] Infringement of copyright of cartoons and of a copy-righted dramatic composition based on them may for convenience be joined in one bill.\[43\] A demurrer to such a bill will not reach the question whether there was any dramatic possibility in such cartoons.\[44\] It seems that an assignee of dramatic rights is a mere licensee unable to sue in his own name.\[45\] If a copyrighted publication is attached to the bill and profit made, it will be examined as part of the bill.\[46\] The granting of a preliminary injunction is discretionary,\[47\] and will be denied if complainant's right is doubtful.\[48\] If complainants allege infringement of what was itself not original, that fact should first be challenged on hearing for the preliminary injunction.\[49\] Unless it appears that the infringeing matter cannot be expunged, the injunction will merely restrain sale whilst such infringing matter appears and will not be made general.\[50\] A bill should be dismissed where there is no equity and an immediate appeal thus facilitated rather than to enter an interlocutory order refusing an injunction.\[51\]

The penalties in case of piracy of a photograph are assessed according to the number of copies found, but not less than $100 nor exceeding $5,000.\[52\]

CORAM NORIS AND CORAM VOINS, see latest topical index.

CORONERS.\[53\]

The record and finding of a coroner's jury are inadmissible in an action on an insurance policy on the issue of the cause of death.\[54\] In Michigan the presentation by a coroner of a false and fictitious claim to the circuit court for allowance against the state, the claim purporting to be for expenses of an inquest upon the

**37. General directory. Sampson & Murdock Co. v. Seaver-Radford Co., 134 F. 890.**

**38. See 3 C. L. 879.**

**39. A year and a half held not laches. Werner Co. v. Encyclopaedia Brittanica Co.**

\*\*31. Encyclopaedia Brittanica Co. v. Wer-

**32. Fev. St. U. S. 4965, as amended 28**

**33.**

**34.**

**35.**

**36.**

**37.**

**38.**

\*\*39.

body of a stranger, renders the coroner punishable for contempt.58 Only the coroner of the county where one is found dead or the coroner of the county where his death is supposed to have been caused may hold an inquest on the body.56

Footnote 58: Under Comp. Laws, c. 301, SS 1, and Comp. Laws, SS 11, 828. Ex parte Topepl \[Mich.\] 102 N. W. 363.

CORPORATIONS."

**SS 1. Definition and Nature of Corpora-**

**SS 2. Classification of Corporations (765).**

\*\*SS 3. Creation, Name and Existence of Corporations, and the Amendment, Extension and Hevival of Charters (766). Corporate Name (768). Purposes (768). Fees (769). Proof of Incorporation (769).

\*\*SS 4. Effect of Irregularities In Organization, and of Failure to Incerporate (769). De Facto Corporation (770). Estoppel to Deny Incorporation (770).

**SS 5. Promotion of Corporations; Acts Prior to Incorporation; Incorporation of Partnerships, etc. (771). Fraud of Promoters (772).**

**SS 6. Citizhenigh and Residence or Domil-**

**SS 7. Powers of Corporations (773).**

**SS 7.** In General (773).\*\*

**SS 8.** Power to Take and Hold Property (774).

**SS 7.** Power to Transfer or Incumber Property and Franchises (775).

**SS 9.** Power to Contract and Incur Debts (776). Mode of Execution of Contracts (776).

**SS 10.** Power to Take and Hold Stock (777).

**SS 8.** Effect of Ultra Vires and Hlegal Transactions (778). Estoppel to Assert Ultra Vires (780). The Plea of Ultra Vires (781).

**SS 9.** Torts, Penalities and Crimes (782).

**SS 10.** Actions By and Against Corporations (782).

\*\*SS 11. Legislative Control Over Corporations (785).

**SS 12.** How Corporations May be Disolved; Forfeiture of Charter; Effect of Disolution; Winding Up Under Statutory Provisions (786).

**SS 13.** Succession of Corporations; Organization; Consolidation (787).

**SS 14.** Stock and Membership (789).

**SS 15.** Membership in Corporations in General (789).

**SS 16.** Capital Stock and Shares of Stock (783).

**C.** Subscriptions to Capital Stock, and Other Agreements to Take Stock (791). Calls and Assessments (793).

**D.** Miscellaneous Rights of Stockholders (794). The Right to Dividers (794). Right to Inspect the Books and Papers of the Corporation (795). Remedles for Injuries to Stockholders or to the Corporation (796). Stockholders Suring for Corporation (797).

**Sung for Corporation (797).**

**Couts and Allowances (799). Receivers and Injunctions (799). Contribution Between Stockholders (799).**

**SS 17.** Under Comp. Laws, c. 301, SS 1, and Comp. Laws, SS 11, 828. Ex parte Topepl \[Mich.\] 102 N. W. 363.

**SS 18.** Under Comp. Laws, c. 301, SS 1, and Comp. Laws, SS 11, 828. Ex parte Topepl \[Mich.\] 102 N. W. 363.

**SS 19.** Transfer of Shares (799). Mode of Transferring Shares, Registration, New Certificates (800).

**SS 15.** M Management of Corporations (802).

**SS 17.** Control of Corporation by the Stockholders or members (802).

**SS 2.** Dealings Between a Corporation and Its Stockholders (802).

**SS 20.** By-Laws (803).

**SS 21.** Corporate Meeings and Elections (804).

**SS 22.** The Rights to Vote (805).

**SS 23.** Propointment, Election and Tenure of Officers (805).

**SS 24.** Safety or Other Compensation of Officers (806).

**SS 25.** How Directors Must Act; Directors' Meeings, Records and Stock Books (807).

**SS 26.** Powers of the Directors or Trustees (807).

**SS 27.** Powers of Other Officers and Agents Than the Directors or Trustees (808). The President (809). The Vice-President (810). The Secretary (810). The Treasurest (810). Business Managers, Salesmen, etc. (811). Evidence of Authority (811).

**SS 28.** Apparent Authority of Offleers and Agents and Estoppel of the Corporation and of Others (811).

**SS 29.** Notice to or Knowledge of Officers or Agents as Notice 5 Cur. Law.

CORPORATIONS $\\lx@sectionsign$ 2.

D. OMEers and Stockholders as Credittors:

Ors: Preferences (827).

E. Liability of Stockholders on Account of Unpald Subscriptions, and Remedles (827). Limitations (829).

F. Personal Liability of Stockholder for Debts of Corporation, and Remedies (829). Persons Liable as Stockholders (831). Ascertain-

SS 1. Definition and nature of corporation.88--A corporation is usually deemed a "person" within the meaning of statutes,89 but is not such a "person" as can be licensed to practice medicine,89 or within the terms of some constitutional provisions81 The fundamental idea of business corporation is the advantage coming from an aggregation of wisdom, knowledge and business foresight, resulting from bringing a large number of stockholders and directors into a common enterprise.82 But courts of equity will sometimes disregard the corporate form, where justice requires it and where its retention is not needed to protect some interest requiring protection.83

SS 2. Classification of corporations.84--The objects and purpose of a corporation must be determined from the provisions of its charter and not from the declarations of its officers or agents.85

4. 57. This article treats generally of do-

Compressed. State v. New Orleans Water mestic private corporations. Foreign corporations are made the subject of a later

Supply Co. \[La.\] 36 So. 117. A corporation organized to manufacture and sell mineral article (3 C. L. 1455). Taxation of Corporations is discussed in the article Taxes, 4 C.

ing corporation, within Millis' Ann. St. Rev. L. 1805. Consultations for questions pe-

Supply. $ 481. Carlsbad Water Co. v. New

cular to corporations for particular purposes, Banking and Finance, 5 C. L. 847;

to receive from each of its members a

Building and Loan Associations, 6 C. L. 478;

stated sum at stated intervals, until a

Exchanges and Boards of Trade, 3 C. L. 1495;

specified sum is received, and to invest the

1397: Fraternal Mutual Benefit Associa-

money for the benefit of its members, is an

tions, 3 C. L. 1499; Insurance, 4 C. L. 157;

instant investment company within the

Failroads, 4 C. L. 1181; Religious Societies,

meaning of the Nebraska statutes, Chap-

4 C. L. 1275; Street. Railway, 4 C. L. 1556;

ter 29, p. 269; Laws 1903; Comp. St. 1903, c.

Telegraphs and Telephones, 4 C. L. 1657;

16, 831 216, 227, and Cobbeys' Ann. St. 83 Varehousing and Deposits, 4 C. L. 1820;

6649, 6860. State v. Northwestern Truat Co.

Waters and Water Supply, 4 C. L. 1824. Releted articles are Associations and Societies, 5 C. L. 1495.

the analysis here adopted is embraced in

that of Clark & Marshall on Corporations,

stock and acquiring no property other than

The searcher who so desires may find the

earlier cases on a proposition by using this

with the provisions of Pub. Acts 1903, p.

article and those at I. C. L. 710, and 3 C. L. 290, No. 171, for the incorporation of associa-

880 in connection with Clark & Marshall.

cations not for pecumary profit. Ameri-

88. See 3 C. L. 881.

01. The statute of limitations. Colonial

& U. S. Mortig. Co. v. Northwest Thresher

Co. \[N. D.\] 103 N. W. 915.

60. Under c. 35, Comp. St. 1901. The qualification of a medical practitioner is

personal to himself. State Electro-Medical Institute v. State \[Neb.\] 103 N. W. 1078.

61. Not a citizen within clause of 14th

amendment forbidding airdignment of privileges or imminities of citizens. Acta

Iges or imminities of citizens. Acta

Ins. Co. v. Brigham, 120 Ga. 925, 48 S. E.

348.

001. Audeurled v. East Coast Mill Co. \[N. J. Eq.\] 59 A. 577.

001. Perkins v. Trinity Reality Co. \[N. J. Eq.\] 61 A. 167.

001. See 3 C. L. 881.

001. And the question of whether it was

organized for an illegal purpose must be so

ment of Corporate Liability and

Exhaustion of Remedy Against

It (832). Limitations (832). Parties (833). Defenses (833). Procedure (833).

cedure (833).

cations (833).

G. Rights and Remedles of Credittors

Against Directors and Other Offecors (833).

348.

001. Audeurled v. East Coast Mill Co. \[N. J. Eq.\] 59 A
     3 Creation, name and existence of corporations, and the amendment, extension and revival of charters

Corporations can be created only by some sovereign authority

the grant of corporate existence being a grant of special powers and privileges to the incoporators, to pursue the objects of the incorporation, and transact corporate business the same as an individual does

In this country charters are generally granted either by special acts of the legislature or obtained under general statutes regulating the subject

When a corporation is created by special act, that constitutes its charter

but when formed by the adoption of articles of incorporation, in pursuance of general laws, such articles, in connection with the statutes, answer the same purpose as a special charter

and the same rules of construction apply to them as to special charters

Unless there is a constitutional requirement, no particular forms are necessary to effect a grant of corporate franchises

but where certain things are required in the organization of a corporation and a form of charter prescribed, they must be followed

, although a substantial compliance with the statute will be suf-

68. See 3 C. L. 882.

01. Lord v. Equitable Life Assur. Soc.,

sons, although they have no actual notice thereof. Id.

68. Booth & Co. v. Weigand \[Utah\] 79 P. 570.

01. Flerschelm & Co. v. Fry \[Mo. App.\] 84 S. W. 1023; Lord v. Equitable Life Assur. Soc.,

94 N. Y. S. 65. They are creatures of statute

of local laws--and, except for such laws, would have no existence. Booth & Co. v. Weigand \[Utah\] 79 P. 570. There is no common-law rule in respect to the granting of charters to private business corporations. Hence no presumption can be in-

dulged as to what the law of another state is in regard to granting them. Florschelm & Co. v. Fry \[Mo. App.\] 84 S. W. 1023. The general law provides and indicates the essentials of the charter of a corporation to be created thereunder. Lord v. Equitable Life Assur. Soc.,

94 N. Y. S. 65. The constitution of New York is not mandatory

that corporations shall be formed under general laws, but permission. Art. 8, & 1. Whether a special act is necessary or not

rests entirely in the discretion of the legislature and is not reviewable by the courts. Smith v. Havens Relief Fund Soc.,

44 Misc. 594, 90 N. Y. S. 168.

70. Lord v. Equitable Life Assur. Soc.,

94 N. Y. S. 65.

71. Dempster Mfg. Co. v. Downs,

126 Iowa, 80, 101 N. W. 735. All applicable

provisions of the general law, not expressly

set forth in the certificate or articles of in-

corporation, are to be read into, and taken

to be a part of the charter. Lord v. Equitable Life Assur. Soc.,

94 N. Y. S. 65. The very object of requiring the filing and re-

cording of the articles is to give them the same publicity, as nearly as may be, as

statutory charters. Dempster Mfg. Co. v. Downs,

126 Iowa, 80, 101 N. W. 735.

The articles of association are expressive

of the relative obligations of the company

and stockholders and where in the certifi-

cates of stock, in whosrover hands they

may come. Dempster Mfg. Co. v. Downs,

126 Iowa, 80, 101 N. W. 738. They form the very basis of corporate existence. Every-

one who deals with the corporation or its

stock is charged with knowledge of their contents. Liens on stock, created by the

control where the principal office of the 5 Cur. Law. 8. 767

ficient to show a corporation de facto,76 and a defective organization may be legalized.76

For all purposes connected with the collection of subscriptions to its capital stock, the organization of corporation is complete when its entire capitalization has been unconditionally subscribed.77

A corporation has no legal existence without the limits of the jurisdiction which created it,78 and unless it has both existence and some rights and powers in the state of its domicile, it cannot invoke the doctrine of comity to give it any in another state.79

In Indiana an act to continue the corporate existence for thirty years of private corporation created by special act of the legislature is unconstitutional.80

Cases involving the amendment of charters are collected in the note.81

company is located is an essential condition -- capital stock subscribed and its directors -- precedent to legal organization. Hurd's -- elected. Act of 1869, Biln v. Riggs, 110 -- Rev. St. Ill. 1899, c. 32, SS 4. Elgin Nat. -- Ill. App. 37. Incorporators in Mississippi -- Watch Co. v. Lovisal, 132 F. 41. The ac- become a corporation upon the approval of --knowledgments required to certificates of -- their proposed charter by the governor, -- incorporation cannot be taken before one -- and the certification of such approval by -- of the signers of the certificate. Laws -- the secretary of state, under the great seal. -- Notwithstanding certain conditions pre- of -- Railroad Com'rs, 93 N. Y. S. 854. The validity of a corporate charter is not affected -- have not been compiled with. Wells Co. v. -- Gastonia Cotton Mfg. Co.,198 U. S. 177, 49 -- davits required to be made upon application -- Luw. Ed. 1003.

78. Booth & Co. v. Weigand \[Utah\] 79 P. ter not required by the statute. Laws of 1890, c. 154, SS 6. No held in South Dakota. -- Provenent Co., 14 Okl. 158, 78 P. 185. -- T9. In an action between the corpora-- and a private person. San Diego Gas -- L21, c. 80. -- Clark v. American Cannel Coal Co. v. Frame, 137 Cal. 441, 70 P. 295. -- A CO. -- Drnd. 78 N. 1808. --reasonable latitude is allowed as to what -- may be included in the certificate of incorporation. All matter required by the law -- must be inserted, and other provisions may -- be inserted, germone to the purposes of -- the corporation and not contrary to law or -- public policy. Smith v. Havens Relfer -- Fund Soc., 44 Misc. 594, 90 N. X. N. 168. -- The other whose duty it is to file or record ar- itcles of incorporation, while a ministerial, and not a judicial officer may exercise discretion in the premises, as to whether the -- articles are entitled under the law to be -- ifed or recorded. The inclusion in a certificate of incorporation of powers not per- -- mitted held to justify the recording officer in refusing to accept it for record; also, -- formalities apparent on the face of the certificate in the matter of its execution. -- Dancy v. Clark, 24 Apr. D. C 487. -- It being within the power of the legislature to prescribe the necessary formalities. An act passed to remove the limit of the amount of property that a -- charitable society might take had the ef- -- to -- Union R. Co., 113 Tonnt. 96, SS 8. V. 155, society which exceeded the limit in its -- The right of a corporation in New York to -- Teller Fund Soc., 44 Misc. 594, 90 N. Y. S. 168. -- T77. It is immaterial that a part of its -- stock was issued without consideration. -- Merrick v. Consumers Ret -- Elec. Co., 111 -- In App. 153. An insurance company is or -- shares of stock, without a corporate member, under the Illinois statute, for all -- purposes except issuing policies, when its -- stockholders. Lord v. Equitable Life As- -- and approved by the attorney general, its -- adopted by a membership corporation after Corporate name.\[82\] The corporate name is a necessary element of the corporation's existence,\[83\] and though it is an artificial and impersonal thing, selected arbitrarily by the corporators themselves,\[84\] it is a thing of value, when connected with a profitable business,\[85\] and any imitation of it, in such manner as to deceive the public, may be restrained.\[86\]

A mere change in the name of a corporation has no effect upon its legal status, or upon the rights of creditors.\[87\]

Purposes.\[88\] In determining the purposes of a corporation, the charter will be strictly construed.\[89\]

its organization, not in conformity with its

nary consequences of the act, regardless of charter or certificate of incorporation, is

the intent or motive, being the test. Nesne invalid. A corporation organized and in-

v. Sundet, 93 Minn. 293, 101 N. W. 490. The corporated as a club for social and literary purposes could not be changed into a

and the "J. S. Dodge Company," consider-

political club, by a change of constitution.

Stein v. Marks, 44 Misc. 140, 89 N. Y. S. 921.

s2. See 3 C. L. 852.

s3. Chicago Landlords' Protective Bureau v. Koebel, 112 Ill. App. 21.

s4. Dodge Stationery Co. v. Dodge, 145

call. 380, 78 P. 879. A corporation may

the corporate name, for the purpose of

adopt the name of its president for the execution of commercial obligations, bills of

to that word by another, the use of the exchange and promissory notes in the

usual course of its business. Midland Steel

V. Citizens' Nat. Bank \[Ind. App.\] 72 N.

E. 290.

s5. Chicago Landlords' Protective Bu-

the Mines of a certificate of incorporation,

reau v. Koebel, 112 Ill. App. 21. Where a

In which the name adopted so nearly re-

stockholder confers upon a corporation the

right to use his name in the corporation

be calculated to deceive, the action of the name, he cannot, upon selling his stock in

secretary of state is not conclusive, and

the corporation, resume the use of his own

name in carrying on the same business,

in equity. "The Columbian Chemical Com-

during the life of the corporation, so as to

pany" held to resemble the name of rela-

mislead the public. Equity will give the

corporation relief in such a case. McFell

nearly as to be calculated to deceive; but

Elec. & Tel. Co. v. McFell

Elec. Co., 110 Ill.

coritoral held not to lie to review the sec-

App. 182. Nor can he, by becoming a

stockholder in a new corporation, confer

on it the right to adopt a name similar to

s7. Allen v. North Des Moines M. E.

the business of the new corporation as that

Church \[Iowa\] 102 N. W. 808. And an un

of the old one. Dodge Stationery Co. v.

authorized changes of name will not render

the president of a corporation, whose individual name was included in the corpora-

sequent liabilities. Two stockholders of a

tion name, continued to do business in the

name of the corporation after its failure,

such subsequent business will be regarded

as his personal business and not a continuation of the corporation's business.

Royle v. Northwestern Nat. Bank of Su-

Dodge, 145 Cal. 380, 78 P. 879. But where

perlor \[Iwis.\] 103 N. W. 1123.

s6. Exact simillitude is not a condition of

relief; it is enough that the simillitude is

such as to be calculated to mislead the

public. The use of the name "Landlords'

Protective Department" was enjoined at

the suit of plaintiff. Chicago Landlords'

Protective Bureau v. Koebel, 112 Ill. App.

21. In the absence of statutory provisions

regulatms the subject, parties organilang

a corporation must choose a name at their

peril, and the use of a name similar to one

adopted by another corporation will be en-

joined at the instance of the latter, if

lending and calculated to injure its busi-

ness; and the fact that the name was as

sumed by the second corporation in good

faith is immaterial, the probable and ordi-

a corporation will be on the same level of

s82. Under a statutory for the organization of any

of corporations for the transaction of any

commercial business, a corporation may be

formed for warehousing goods for shipment

Civ. Code, $ 393 (25). Orient Ins. Co. v.

Northern Pac. R. Co. \[Mont.\] 78 P. 1036.

- 5 Cur. Law. CORPORATIONS SS 4.

_Fees_ 90 for filing articles 91 and for continuing in existence are imposed in most states.92

\_Proof of incorporation.93--\_The fact of incorporation may be inferred,94 or established by admissions,95 and proof may be waived;98 but the denial of corporate existence in a suit by it puts the burden of proof upon the corporation.97

**SS 4. Effect of irregularities in organization, and of failure to incorporate.**\_Stockholder as partner or agent.98--\_The parties in an unsuccessful attempt to organize a corporation may be liable and held as partners.99

In the District of Columbia, a company 95. A mortgage in the form of a decl, cannot be incorporated to do all the "testing that the ded is subject to the classes of business for which corporations claim of the "Angio-Californian Bank, may be formed under the general law, but "Limited," Imports that the bank is incorporated to engage in only one "rated and "is prima facie evidence of corporation business or enterprise. Sub. chap. 4, rate character, and the acceptance of such "an Instrument 1s an admission that the certain conditions a company may extend "bank mentioned at that time was a corporation, and that condition having been once "by law" means extension by taking in something cognate to its original "until the contrary is shown. Anglo-Call-business. Dancy v. Clark, 24 App. D. C. 487. But a statute providing for the formation of corporation for mining manu-facturing, mechanical, quarrying "and other "heart" brought. Campbell & Zell Co. v. American ful business," does not limit the formation of corporations to purposes similar to those enumerated. Ann. St. D. 1901, 3812. Vokes V. Eaton \[Ky.\] 85 S. W. 174.

90. See 3 C. L. 883.

01. A reincorporation, after the expiration of a charter, held to be the creation of "cater", "Floreseheim & Co. v. Fry \[Mo. a new corporation and subject to the payment of the organization tax, under Ky. St. 1903, 8 4225. Commonwealth v. Licking Valley Bldg. Assn, 26 Ky. L. R. 730, 82 S. V. 435.

01. The "yearly license fee or tax," imposed by the law of New Jersey, is imposed arbitrarily as a condition to the confend the validity of its incorporation. At "Commonwealth v. Philadelphia, etc., R. Co., 1884 (P. L. 1884, p. 234, $ 4). The state "does not lose the right to enforce such fee "g. See 3 C. L. 883, n. 44. Ohio Oil Co. v. against the property of an insolvent corporation, because, at the time of its assessment, it is in the hands of a Federal re- "Puryury" under the laws of a sister state is deing Mach. Co., 133 F. 329. Where instru- "ments purporting to be certificates of pre- "mere" it. Floreseheim & Co. v. Fry \[Mo. guage, the corporation is estipped, by a "Appl.\] 84 S. W. 1023.

declaration in its articles, that money rep- "g. See 3 C. L. 884.

resented by such certificates is a part of "g. Mitchell V. Jensen \[Utah\] 81 P. 165.

its capital stock, from asserting the contract that defendant is "library in a proceeding to fix its liability to the franchise tax. People v. Miller, 180 N. of the "flag" of the organization of the "Mechanical" or "molesale and retail ice business is not "must be framed upon that theory in order "Iiable for the mercantile license tax" of "p. Pennsylvania, under Act of May 2, 1839, P. contains no such argument, the sole quess- "l.", which is intended only to deal with "mercantile pursuits", "Commonwealth v. Po- "cono Mountain Ice Co., 23 Pa. Super. Ct. 267.

92. See 3 C. L. 883.

01. A certified copy of the designation, by a foreign insurance company, of a resident agent for the service of process, in accordance with law, is sufficient evidence of incorporation. So made by St. 1871-72, P. 826, c. 568, $ 1, as amended by St. 1899, P. 111, c. 94, $ 1. Anglo-California Bank v. Field, 146 Cal. 644, 80 P. 1080.

5 Curr. L. -49.

_Fees_ 90 for filing articles 91 and for continuing in existence are imposed in most states.92

\_Proof of incorporation.93--\_The fact of incorporation may be inferred,94 or established by admissions,95 and proof may be waived;98 but the denial of corporate existence in a suit by it puts the burden of proof upon the corporation.97

**SS 4. Effect of irregularities in organization, and of failure to incorporate.**\_Stockholder as partner or agent.98--\_The parties in an unsuccessful attempt to organize a corporation may be liable and held as partners.99

In the District of Columbia, a company 95. A mortgage in the form of a decl, cannot be incorporated to do all the "molesoles" of the "Angio-Californian Bank, may be formed under the general law, but "moles" that the bank is incorporated to engage in only one * 770 CORPORATIONS SS 4. 5 Cur. Law.

_De facto corporation. Collateral attack._\[1\]--Where the law authorizes a corporation and there has been an attempt in good faith to organize, and corporate functions are thereafter exercised, there exists a corporation de facto,\[2\] the legal existence of which cannot be questioned collaterally,\[3\] either by the state or by a private individual,\[4\] but only in a direct proceeding brought for that purpose.\[5\] There cannot be a corporation de facto, where there could not have been a corporation de jure,\[6\] as under an unconstitutional statute,\[7\] and the existence of such a corporation is subject to collateral attack.\[8\] So may the performance of acts, which are essential steps in the process of incorporation and prerequisite to corporate existence, also be challenged by private parties, unless estopped from doing so, whenever the question of corporate existence becomes material to them.\[9\]

_Estoppel to deny incorporation._\[10\]--Whether or not a corporation exists, which may sue or be sued, is always open to challenge by a proper plea, in an action by or against it as such.\[11\] But one who deals with an association as a corporation is estopped from denying its corporate existence.\[12\]

corporated without formal dissolution and (ticular business cannot be determined colon-notice thereof, and continues dealing in the old way, the persons comprising such as link in the chain of title. Thomas v. the change of name does not convey information of the incorporation. Wesse \[S. D.\] 101 N. W. 1072.

V. Gray's Harbor Commercial Co., 111 NL App. 467. An association of individuals, formed under the statutes of Ohio to carry on a private banking business, but not incorporated, is a partnership and subject to be adjudged a bankrupt, though it is entitled to exercise some of the attributes of a corporation. Lanning's Rev. Laws Ohio, $ 4891 et seq. (Bates Ann. St. $ 3170-1 et seq.). Burkhart V. German-American Bank, 137 F. 958.

1. See S C. L. 884.

1. Feld, that a de facto corporation existed under the facts in this case. Lusk v. Riggs \[Neb.\] 102 N. W. 88; Shawnee Commercial & Ray, Bank Co. v. Miller, 24 Ohio Circ. R. 198. To constitute a corporation de facto, there must be (1) a valid character or law under which a corporation of the kind in question might be formed; (2) a bona fide attempt to incorporate theured; (3) a colorable compliance with the charter or law; and (4) the exercise or user of corporate powers. Clark v. American Cannel Coal Co. \[Ind. App.\] 73 N. E. 727, citing Doty v. Patterson, 165 Ind. 60; Clark & M. Corp. $ 82. See, also, Clark v. American Cannel Coal Co. \[Ind.\] 73 N. E. 1083. It is essential to the existence of a corporation de facto that there be a user of such corporate rights as could be authorized by law, and not merely such as might be exercised by individuals or unincorporated societies. Elgin Nat. Watch Co. v. Loved-land, 132 F. 41.

1. Mitchell V. Jensen \[Utah\] $1 P. 165; Terry V. Chicago Packing & Prov'n Co., 105 III. App. 663; Lusk v. Riggs \[Neb.\] 102 N. W. 88. Under the statutes of California (St. 1862, p. 110, $ 6) Irregularities and defects will not defeat incorporation, where the questions are raised collaterally, _cs_ where the articles were filed with the county recorder instead of the county clerk. San Diego Gas Co. v. Frame, 137 C. 441, 70 P. 295. Whether or not a corporation was properly organized to engage in a par 5 Cur. Law.

CORPORATIONS SS 5.

**SS 5.**\_Promotion of corporations; acts prior to incorporation; incorporation of partnerships, etc.\[13\]--Promoters,\[14\]\_including every person acting by whatever name in the forming and establishing of a company at any period prior thereto,\[15\] occupy a fiducary relation toward the corporation they seek to promote,\[14\] and subscribers for stock of a proposed corporation, before they are incorporated, are partners in the business they have in hand.\[17\]

A corporation is not bound by contracts between its promoters unless it rationalizes or adopts them.\[18\] The specific performance of a contract to incorporate will

P. 1073. One who sells a chose in action, even under false representations, to a purported corporation, is estopped to assert a want of legal corporate existence, as against a bona dide transferee. Green v. Origs, 98 App. Div. 44, 90 N. Y. S. 565. Persons whose claims arise out of transactions with a company as a corporation cannot assert the invalidity of a trust deed given by it, on the ground that it was not legally incorporated. Hasbrouck v. Rich \[Mo. App.\] 88 S. W. 181. When one deals with a corporation, knowing that it is not in fact a de jure corporation, he, as well as the corporation, is estopped to deny its legality and cannot hold its manager Habble individually or its stockholders liable as partners. Fairbairn v. Houghten \[Michel.\] 102 N. W. 284. The members of a corporation are not liable, where it is a corporation de facto, though not de jure, and the plaintiff has dealt with it as a corporation. Love v. Ramsey \[Michel.\] 102 N. W. 279. Where as corporation is acting within the general scope of its powers, it, as well as any person contracting with it, may be estopped to deny that it has compiled with the legal formalities prerequisite to its existence or action, because they might have been compiled with. Doherty v. Arkansas & O. R. Co. (Ind. T.) 82 S. W. 899. 13. See 3 C. L. 885. 14. A promoter is one who brings about the incorporation and organization of a company, who brings together the persons who become interested in the enterprise, who aids in procuring subscriptions and sets in motion the machinery which leads to the formation of the corporation itself. The Telegraph v. Loestcher \[Iowa\] 101 N. W. 773; Shawnee Commercial & Sav. Bank Co. v. Miller, 24 Ohio C. R. 188. 15. Defendant agreed with the owner of a patent to assist him in organizing a company to exploit the patent, receiving a cash consideration for his services. Defendant afterward became a director and assisted as such in the purchase of the patent. Held, that defendant was a promoter and liable to account to the corporation for the amount received from the patentee for his services. The Telegraph v. Loestcher \[Iowa\] 101 N. W. 773. Persons who act as promoters of a corporation do not necessarily cease to be such when the corporation is organized to do business. If they continue to act for the corporation by inducing persons to subscribe for stock, their relations as promoters continue. Pietsch v. Milbrath, 133 Wis. 647, 101 N. W. 388. 16. The Telegraph v. Loestcher \[Iowa\] 101 N. W. 773; Old Dominion Copper Min. & Smellting Co. v. Bigelow \[Mass.\] 14 N. E. 653; Shawnee Commercial & Sav. Bank Co. 188. 198. 201.

not be enforced by equity where a large proportion of the proposed incorporators are insolvent.19

\_Fraud of promoters.20--\_Promoters cannot secretly obtain profits from the corporation they cause to be organized,21 and where a promoter fails to fulfill promises made to induce subscriptions to stock, the default vitiates the contract.22 False and fraudulent representations in a prospectus issued by promoters, as to the value of property to be transferred by them to the corporation, afford ground for equitable relief against the corporation in behalf of one who relied on such representations in his suscription for stock.23

Footnote 23: The author is grateful to the anonymous referee for the support of the work of * \[37\] Law. CORPORATIONS SS 7A.

- \[38\] each state the privileges and immunities of the citizens of the several states. \[29\] An action against a corporation created by an act of congress can be maintained only in a Federal court of the district of which it is an inhabitant. \[30\]
- \[39\] \_Powers of corporations. A. In general. \[81\]--A corporation is endowed with no natural attributes. \[82\] It possesses only such powers as are expressed or fairly implied in the statute by or under which it is created. \[33\] Its charter, however, is to be read in the light of any applicable general laws, \[34\] and its powers, in effecting its objects, are as broad and comprehensive as those of an individual, when not expressly prohibited. \[35\] Where the primary object and powers of a corporation are stated in its organization, the exclusion of all others not fairly incident is strictly implied. \[36\]
- \[40\] Crants of corporate franchises are construed most strongly against the done, \[37\] and any doubt respecting the possession of any particular power, \[38\] or whether or not a conflict exists between a company's special charter and a general law of the state, will be resolved against the corporation. \[39\]
- \[41\] _Quasi public corporation can exercise no power_
- \[42\] _Quasi public corporation can exercise no power_
  not expressly conferred or necessarily implied for the purpose of carrying out the powers expressly granted; \[41\] nor on the other hand can it avoid the public burdens imposed on it without legislative permission.\[42\]

(SS 7) _B. Power to take and hold property.\[43\]_--Though the capacity of a corporation to take and hold property is measured solely by the statute,\[44\] only the state, or a claimant of property claimed by the corporation, can raise the question of power.\[45\] If authorized generally, they may acquire title in any recognized mode,\[46\] and public and quasi public corporations can be vested with the power of eminent domain.\[47\] A stockholder has no property in any of the assets of a corporation.

41. A corporation organized to supply a municipality and its inhabitants with water. New Albany Waterworks v. Louisville Banking Co. \[C. C. A.\] 122 F. 776. The special act incorporating the Chicago city railways, and the amendments thereto, constituted a grant directly to the companies named, over the streets designated or to be designated, and was not a mere grant to the city to grant, in turn, a franchise to the railways. Laws 1859, pp. 530-532; Laws 1861, p. 340; Laws 1865, p. 587. As to ordinances passed by the city prior to its com-ing under the general municipal act of 1872 (Act April 10, 1872; Laws 1871-72, p. 239, art. $ 1, subd. 24), giving cities a general control over the operations of street railways, programs, there exists, between the companies and the city, a contract relation; but as to those streets occupied under ordinances since then, the contract relation is to be looked for solely in the ordinances themselves. Govin v. Chicago, 132 F. 848.

01. Where a public duty is imposed upon a corporation by its charter, it cannot receive itself of that duty by a lease of its property and franchises, under a general authority to lease. Defendant was not released from its obligation to maintain bridges over its canal, by a lease of the same with all its boats, etc., and franchises to a railroad company. Ryerson v. Morris Canal & Banking Co. \[N. J. Law\] 59 A. 29. Legislative assent to such action must be unequivocally given, or necessarily implied, in the terms of the grant of powers. No such power is conferred upon companies, for example, to supply municipalities and their inhabitants with water, by the laws of Indiana. New Albany Waterworks v. Louisville Banking Co. \[C. C. A.\] 122 F. 776. A corporation, whose business to gather and sell news reports to newspapers, such business being public in its nature and impressed with a public interest, is so far of a public character as to be required to render its service to its members without discrimination. News Pub. Co. v. Associated Press, 114 III. App. 241.

01. See 3 C. L. S86.

01. Lake Drummond Canal & Water Co. v. Com., 103 Va. 337, 49 S. E. 506. Railroad companies incorporated under the general law may acquire and operate steamboats in connection with their lines of road. So held under the general law of Georgia. Graham v. Macon, D. & S. R. Co. (Ga.) 49 S. E. 76.

A banking corporation may have a good wills, which constitutes a species of prop-ery. Lindemann v. Rusk \[VWs.\] 104 N. W.

119. A trading corporation may acquire the good wills of a business, as well as a ation, in the sense that he may control it, otherwise than as the charter directs.48 The books and papers of a private corporation are not public, but private, records and documents.49

(SS 7) \_C. Power to transfer or incumber property and franchises.50--Corporations may, in the ordinary course of business, transfer their property with the same freedom accorded to individuals. A transfer of all the assets and franchises of a corporation, however, is unauthorized, except under express statutory authority, as to effect a consolidation,51 unless it be for the purpose of closing up a losing venture,52 and even in that case, such a transfer will not be effective to wipe out the corporation's liabilities.53 They may lease 54 and encumber 55 their prop- that a telephone company is a telegraph - deed of its receiver of all the corporation's company within the meaning of that stat- - asets. Austin v. Lauderdale \[Tex. Civ. Inte. Pennsylvania Tel. Co. v. Hoover, 24 App.\] SS 8. W. 413. In the absence of any Pa. Super. Ct. 86. Act of July 10, 1901, P. L. showing that the county did not pay full 632, held not to confer upon a state normal value or that the company did not have in school power to condemn a public street on its treasury the consideration received, its own land, over which the public had had available for its creditors, held that the passage for more than twenty-one years, transfer of a toll road to the county, under South Western State Normal School, 26 Pa.

provisions of law therefor, passed the title Super. Ct. 99, citing Pennsylvania R. Co.'s Appeal, 93 Pa. 150; Groff's Appeal, 128 Pa.

tors of the company. Under the "free 621. In Kentucky railroad corporations or, single.). Roush v. Vanceburg, etc., Turnpike game as corporations of that state before Co. \[Ky.\] 86 S. W. 735.

thely can acquire the right to control and 54. A lease of the real estate used by a operate railways therein. Const. Ky. **SS 211**; Ky. St. 1903, SS 763, 785, 841. Evansville & not constitute an abandonment of its pur- 134 F. 973.

48. Huct v. Piedendorn Springs Lumber Co., 138 N. C. 443, 50 S. E. 846. Where a corporation, whose sole asset consisted of a lease of convicts, by agreement among its - a lease of convicts, by agreement among its - a lease of convicts and with the consent of the - a set

## 776Corporations & 5 Cur. Law.

_erty in pursuance of the purposes for which they are organized, and are generally authorized to pledge their credit, in pursuit of their other corporate business,_${}^{\\tt eg}$ _but not otherwise._${}^{\\tt eg}$

(SS 7) _D. Power to contract and incur debts._${}^{\\tt eg}$--Business corporations are impliedly authorized to borrow money,\_${}^{\\tt eg}$ _contract for the sale of their bonds,_${}^{\\tt eg}$ _guaranty dividends upon their stock,_${}^{\\tt eg}$ _and make all contracts necessary and proper to expedite the business for which they are formed._${}^{\\tt eg}$ _In the absence of express statutory authority, however, a corporation cannot enter into a partnership._${}^{\\tt eg}$\_\_

_Mode of execution of contracts._${}^{\\tt eg}$--A corporation in contracting can act only through its officers and agents,_${}^{\\tt eg}$ _pursuant to authority lawfully granted to them by the corporation,_${}^{\\tt eg}$ _though the presence of the corporate seal on a contract is prima facie evidence of its validity._${}^{\\tt eg}$ _power to mortgage its property generally, it can, in the absence of any restraining_ _that, mortgage after-acquired property,_ _that the services of its members and Cummings v. Consolidated Mineral Water,_ _other legality authorized physicians. State_${}^{\\tt eg}$_,\_ _\[R. I.\]_ _G1 A._ _353: Georgetown Water Co._ _\[R.\]_ _G1 A._ _353:_ _Govergetown Water Co._ _\[R.\]_ _G1 A._ _354:_ _Govergetown Water Co._ _\[R.\]_ _G2 A._ _355:_ _Govergetown Water Co._ _\[R.\]_ _G3 A._ _356:_ _Govergetown Water Co._ _\[R.\]_ _G4 A._ _357:_ _Govergetown Water Co._ _\[R.\]_ _G5 A._ _358:_ _Govergetown Water Co._ _\[R.\]_ _G5 A._ _359:_ _Govergetown Water Co._ _\[R.\]_ _G6 A._ _359:_ _Govergetown Water Co._ _\[R.\]_ _G7 A._ _351:_ _Govergetown Water Co._ _\[R.\]_ _G8 A._ _352:_ _Govergetown Water Co._ _\[R.\]_ _G9 A._ _353:_ _Govergetown Water Co._ _\[R.\]_ _G1 A._ _354:_ _Govergetown Water Co._ _\[R.\]_ _G1 A._ _355:_ _Govergetown Water Co._ _\[R.\]_ _G2 A._ _356:_ _Govergetown Water Co._ _\[R.\]_ _G3 A._ _357:_ _Govergetown Water Co._ _\[R.\]_ _G4 A._ _358:_ _Govergetown Water Co._ _\[R.\]_ _G5 A._ _359:_ _Govergetown Water Co._ _\[R.\]_ _G5 A._ _350:_ _Govergetown Water Co._ _\[R.\]_ _G6 A._ _351:_ _Govergetown Water Co._ _\[R.\]_ _G7 A._ _352:_ _Govergetown Water Co._ _\[R.\]_ _G8 A._ _353:_ _Govergetown Water Co._ _\[R.\]_ _G9 A._ _354:_ _Govergetown Water Co._ _\[R.\]_ _G1 A._ _355:_ _Govergetown Water Co._ _\[R.\]_ _G1 A._ _356:_ _Govergetown Water Co._ _\[R.\]_ _G1 A._ _357:_ _Govergetown Water Co._ _\[R.\]_ _G2 A._ _358:_ _Govergetown Water Co._ _\[R.\]_ _G3 A._ _359:_ _Govergetown Water Co._ _\[R.\]_ _G4 A._ _350:_ _Govergetown Water Co._ _\[R.\]_ _G5 A._ _351:_ _Govergetown Water Co._ _\[R.\]_ _G5 A._ _352:_ _Govergetown Water Co._ _\[R.\]_ _G6 A._ _353:_ _Govergetown Water Co._ _\[R.\]_ _G7 A._ _354:_ _Govergetown Water Co._ _\[R.\]_ _G8 A._ \_355 5 Cur. Law.

CORPORATIONS $ 7E.

(SS 7) \_E. Power to take and hold stock.\_68--In the absence of constitutional, charter, or statutory prohibition, corporations have inherent power to buy, to sell, and to retire their own stock,69 but one corporation cannot become a stockholder in another corporation unless authority therefor is clearly granted by statute.70

edness, is not proof of such fraud as willi vires, illegal, nor immoral Wisconsin Lumurrant the cancellation of the sheerf's ber Co. v. Greene & W. Tel. Co. \[Iowa1 101 decd. Relender v. triggers \[Colo. App.\] 79 P. N. W. 742. The transfer of its own stocks to a corporation, under an agreement on its sell. The act of the corporation was part to pay annuity to the former owners, executed by corporate authority. Kirkpatrick. Burnes v. Burnes, 132 F. 485. The trick v. Eastern Milling & Export Co., 135 F.

Footnote 68: See SS C. L. 888.

Footnote 69: Burnes v. Burnes \[C. C. A.\] 137 F.

Footnote 71: Unless the transaction renders it insolvent and operates as a traud on its creditors. In re Smith Lumber Co., 132 F. 618. Notes given by it in part payment for such purchase are invalid. Id. An agreement by a corporation to repurchase stock in case of sale of its franchise is neither ultra \[Minn.\] 108 N. W. 102.

## 8 8. Effect of ultra vires and illegal transactions

An ultra vires contract, in the proper sense, is not voidable only, but wholly void \[22\] and incapable of ratification \[73\] or becoming effective by estoppel \[74\] by the acts of either party, though where such a contract has been fully performed on both sides, what has been done will not be undone at the suit of either.\[75\]

To determine whether the acts of a corporation are ultra vires or not, recourse must be had primarily to its charter,\[76\] and they must be shown to be neither within the scope of its charter, nor within its express or implied powers,\[77\]

Exch. v. Lyndonville Nat. Bank, 76 Vt. 303, 72. Anglo-American L. M. & A. Co. v. Lombard (C. C. A.) 132 F. 721; Doherty v. Arkansas & O. R. Co. (Ind. T.) 82 S. W. 899; Metropolitan Stock Exch. v. Lyndon-ville Nat. Bank, 76 Vt. 303, 57 A. 101. Notes given in a transaction foreign to the purpose for which a corporation was created are ultra vires and void, Richmond Quano Co. v. Farmers Cotton Seed Oil Mill & Gin-mery Co. (C. C. A.) 126 F. 712. When acts of corporations are spoken of as ultra vires, it is not intended that they are necessarily unfavful. First Nat. Bank v. Guardian Trust Co., 187 Mo. 494, 86 S. W. 109. There is a well-defined distinction between acts mala in se, or mala prohibita, and those which are merely ultra vires; in the former the peace and good order of the state is involved and every contract is performed such an act, or in consideration or furtherance of such performance, is absolutely void, while that which is merely ultra vires does not necessarily involve moral turphato or illegativ. A street railway company might, through its directors, make a subscription to build a church, or an orphans' home, or an asylum, and the contract would be ultra vires, but there is no illegativ in such enterprises. Peoria Star Co. v. Cutri, 115 Ill. App. 492. Where a statute specifically prohibits the doing of an act by a corporation, neither the corporation nor the person dealing with it will be allowed to rely on such transaction, or assert any benefits that grow out of it. Flidelity Ins. Co. v. German Sav. Bank \[Iowa\] 103 N. W. 958. By the Missouri constitution, a corporation is both impliedly and expressly prohibited from exercising any power other than those granted in its charter or the law under which it is formed. Anglo-American L. M. & A. Co. v. Lombard (C. C. A.) 132 F. 721. Bonds held to be ultra vires under the New York statue, prohibiting the issue of bonds by a corporation, except for money, labor, or property actually received for its use and lawful purposes. Stock Corporation Law 1892, p. 1835, c. 688, 42. In re Voterlo Organ Co. (C. C. C. A) 134 F. 341. The business of defending physicians against civil suits for malpractice is a professional business, and within the inhibition of section 8225, forbidding the carrying on of a professional business by a corporation. State v. Lyxlin, 1

In reminently V. Ordinal Longshoremen's 3 Ohio N. P. (N. S.) 185; 15 Ohio Dec. N. P. 77. Flaherty V. Portland Longshoremen's 360.

**73.** Because it could not have been authorized by either. Anglo-American Land, 111 Mopte & A. Zo. V. Lombard (C. C. A.) 132 F. 721; Doherty v. Arkansas & O. R. Co. (Ind. T.) 82 S. W. 899; Metropolitan Stock Exch. v. Lyndonville Nat. Bank, 76 Vt. 303, 57 A. 101. A creditor of a corporation is not estopped from asserting the ultra vires character of a contract, because the is capable of contracting. Anglo-American Land, 11 Mopte & A. Co. v. Lombard (C. C. A.) 132 F. 721. A contract between two corporations, which is ultra vires as to one, is as invalid as though beyond the powers of both. Id.

**75.** Anglo-American L. M. & A. Co. v. Lombard (C. C. A.) 132 F. 721, citing Mc-Indove v. St. Louis, 10 Mo. 755; Chambers v. St. Louis, 29 Mo. 543; Land v. Coffman, 50 Mo. 248; 255; Ragan V. McElroy, 98 Mo. 349; Connecticut Mot. Life Ins. Co. v. Smith, 117 Mo. 261, 38 Am. St. Rep. 656. Where a contract with a city has been substantially performed, equity will not enjoin its further performance at the suit of a stockholder of the contracting (private) corporation on the ground that the contract is ultra vires. Fisher v. Georgia Vitirified Brick & Clay Co., 121 Ga. 621, 49 S. E. 679. Where a statute specifically prohibits the doing of an act by a corporation, neither the corporation nor the person dealing with it will be allowed to rely on such transaction, or assert any benefits that grow out of it. Flidelity Ins. Co. v. German Sav. Bank \[Iowa\] 103 N. W.

the conclusion being a legal one, to be drawn from the facts.78 Several contracts assailed as ultra vires are discussed below.79

$\\Delta$ corporation, having no authority under its charter to exercise certain pow-

Matters pertaining to the manner in which |oration. National Bank v. Snyder Mfg. stock is issued, the price paid or to be paid |Co., 94 N. Y. S. 982. If a covenant by a therefor, the manner in which such stock |tunnel company not to exercise the right is voted and the use which is made of the |or remnant domain over lands belonging to money arising from the sale of stock can- |a railroad company, is valid, still it cannot not be said to be acts ultra vires. Bradbury |v. Waukegan & W. Min. & Smelting Co., |113 |Th. App. 600. |78. Spencer v. Seaboard Air Line R. Co., |137 |N. C. 107, 49 S. E. 96. |79. A corporation is inapapable of being a director. O'Connor v. International Silver |or transfer of its property and franchises, by Co. |N. J. Eq.1 |59 A. |21. Letters of ad- |mination on an estate cannot be granted |a a transaction, when the company is not to a corporation as a creditor of decedent. In re Rhoda, 93 N. Y. S. 973. The board of trade has not the power to pass upon the |mighting Co. |C. C. A.| 132 |F. 176. |property rights of its members without their consent. Bank of Montreal v. Waite, |105 |Th. App. 373. A mutual building and |law association cannot contract that stock will mature in a definite time. People's |Bldg. & Loan Assa'n v. Purdy |Colo. App.| 78 |Th. App.| 72 |Th. App.| 73 |Th. App.| 74 |Th. App.| 75 |Th. App.| 76 |Th. App.| 77 |Th. App.| 78 |Th. App.| 79 |Th. App.| 78 |Th. App.| 79 |Th. App.| 78 |Th. App.| 79 |Th. App.| 78 |Th.

ers and franchises, cannot acquire such powers and franchises by the purchase of all the property of another corporation possessing them.\[50\]

Each state may determine what powers shall be possessed by corporations organized under its authority, and what effect shall attach to acts done by corporations beyond their powers.\[81\] And only the state,\[82\] or stockholders or creditors whose rights would otherwise be injuriously affected,\[83\] can take advantage of the want of power of a corporation to perform an act not clearly within the terms of its charter or the law. When the courts are appealed to to restrain the performance of an ultra vires act, the rule is applied with great stringency to the corporation.\[84\] Questions as to the powers of a national bank to buy or hold real estate can be raised by the Federal government only.\[85\]

_Estoppel to assert ultra vires.\[86\]_--A corporation cannot deny its power to make a contract fully executed by the other party,\[87\] and of which it has received the benefit,\[88\] unless it is illegal, immoral, fraudulent, or contrary to public policy.\[89\]

- **So. Southern R. Co. v. Mitchell, 139 Ala.**
- **First.**: **First.**: **Second.**: \*\*Second.

5 Cur. Law. **CORPORATIONS SS 8.**

But where any part of the contract remains executory, its invalidity may be effectively asserted, notwithstanding its partial performance; 90 and courts will not only refuse to compel execution of such contracts, but will interfere upon proper application to restrain performance of them. 91

Stockholders who authorize ultra vires acts cannot afterward avoid the same in equity, 92 and third parties may also be estopped to set up the defense of ultra vires, by their dealings with the corporation and recognition of its right to act. 93

'To enable stockholders to set aside ultra vires acts which the corporation itself may not take advantage of, they must show that the conduct of the officers or directors works a substantial injury. 94 Stockholders cannot defeat the sale of the corporations's franchise by asserting the want of legislative or charter authority of the purchasing corporation to buy the same. 95

_The plea of ultra vires 98_ is not looked upon with favor. 97 Where the petition

which it has received consideration, in any

98. A person who has conveyed real estate where the status quo ante cannot be

tate to a corporation is estopped to deny restored. Perkins v. Trinity Deo Co.

Its right to take and hold real estate. My-

\[N. J. Eq.\] 61 A. 167, citing C. & A. R. Co.

att v. Ponca City Land & Imp. Co., 14 Okl.

188, 78 P. 185. The maker of a note can-

530; Breslin V. Fries-Heslin Co., 70 N.-

not defend an action brought thereon by a Law, 274, 58 A. 313. In some cases a corporation, or its privy, on the group=l

poration which has received the benefit of

that the corporation had no power to take

an ultra vires contract may be sued on a

the note. Russell V. Cassidy, 108 Mo. App.

quantum merit, without reference to the

577, 84 S. W. 171. Defendant estopped, by

attempted contract. Metropolitan Stock

failure to object to a list of subscribers to

Exch. V. Lyndonville Nat. Bank, 76 V. 303,

stock, to raise the question afterward that

57 A. 101.

58. Peoria Star Co. v. Cutright, 115 Ill.

poration and it did not appear that such

App. 492; Wisconsin Number Co. v.

corporation had power to purchase and

Greene & W. Tel. Co. \[low * \[5\] 9. 5 Cur. Law. does not disclose the incapacity of a corporation to make the contract sued on, the defense of ultra vires cannot be made under a general denial, but must be specially pleaded." Where a corporation in its answer sets up the plea of ultra vires, facts not inconsistent with the petition may be pleaded in the reply, in the nature of an estoppel, or to show that, under the circumstances, the corporation might enter into the contract in question."

- \[6\] 9. _Torts, penalties and crimes._--A corporation is liable for the negligence of its officers or agents, who may be jointly sued with it; 2 but only when they are acting under the authority of the corporation,2 and within the scope of their authority.4 A corporation may be liable for an assault,5 for maintaining a nuisance,6 for neglect of a quasi public duty,6 and, in some cases for acts connected with, or growing out of, an attempted ultra vires contract.8 A corporation may be punished criminally for pedtling through the medium of an unlicensed agent."

- \[7\] 10. \_Actions by and against corporations.\_10--Corporations are ordinarily empowered to sue and be sued as natural persons.11 Several matters of proof-

- \[8\] 11. 12. 13. 14. 15. 16. 17. 18. 19. 18. 19.

## 5 Cur. Law. CORPORATIONS SS 10.

ure, including questions of name,\[12\] process,\[13\] pleading,\[14\] defenses,\[15\] evidence,\[16\] and judgments and the enforcement thereof\[17\] are discussed in the notes.

titled to the same recognition In other states, unless it was formed for purposes like legal, or was doing acts prohibited under the laws of such other states. MacGinnis & v. Amalgamated Copper Co., 45 Misc. 106, 91 N. Y. S. 591. A requested instruction that the defendant corporation was entitled to the same treatment in court as a private individual would be under the same circumstances, held correct, in itself, but & 995. Yource v. Home Town Mut. Ins. Co., properly refused because accompanied by improper and misleading language. Chilcago & E. I. R. Co. v. Burridge, 211 Ill. 9, 71 N. B. 838. A corporation can sue in its own name, without designating its presi-dent or any other officer in its petition.

(New Orleans Terminal Co. v. Teller, 113 La. 733, 37 S. 624), and until its charter & App. J 83 S. W. 855. The secretary of a has been forkeled by proper proceedings, local assembly of a fraternal benefit asso-the corporation is the only proper party to defend an action brought against it. Its "receptors of money and membership, is a directors have no right as trustees to intervene. Rippsion v. Haynes Medina Valley R. Co. (Tex. City. App.) 85 S. W. 314.

**12.** A private corporation having its 55. But the officer's return must show the principal office in a certain county cannot be used in another county for a trespass (brand v. United Arkansas \[Or.\] 79 P. 347. committed therein, when it has no agent, In the absence of any showing as to his agency or place of business in the latter county. Civ. Code 1895, 8 1900. Tuggle v.

corporation, a member of its advisory com-Enterprise Lumber Co. \[Ga.\] 51 S. L. 433.

mittee is not an "agent," within the mean-The venue of a cause of action on a certifi- "ing of the statutory provisions for service cate of a fraternal benefit association is of process upon corporations. Fahrig v. the county of the member's residence at Milwaukee & Chicago Brewerlies, 113 Ill. the time of his death. Hildebrand v. United

Ap. 525. The service of summons against a corporation, on a stockholder who has 13. Service of process on the "last vice-president" of an insolvent corporation, the operation has ceased to do business, has no president being a nonresident, under Rev.

binding force on the other stockholders. St. 1899, 8 955. Yource v. Honne Town Mut.

Stanton v. Gilpin \[Wash.\] 80 P. 290. Valid Ins. Co., 180 Mo. 153, 79 S. W. 175. Return of service of process cannot ordinarily be of service of summons by delivery of copy to the secretary at the company's business (which is temporarily within the state, office in the county, he being in charge thereof and the president not being found in the county, held to give the circuit court jurisdiction. Under Rev. St. # 994-997.

Taussig v. St. Louis & K. R. Co., 186 Mo.

T. A. 268, 85 S. W. 878. Sheriff's return of serv.

Laws, 1897, 460 T. Territory of New Mexico of process on a corporation held good, loco v. Baker, 196 U. S. 432, 49 Law Ed. 540, under clause & , 24. Act of July 9, 1901, P.

The secretary of a nonresident corporation, L. L. 614. Ben Franklin Co. v. Penna.

who was temporarily in the state, not hav-Water Co., 25 Pa. Super. Ct. 628. The serv-

ing transacted "business for the corporate of summons upon an agent of a corporation," did not come within the provisions ration whom its general counsel stated was

of the statute which renders it possible to authorized to accept service, cannot be

savem process on such persons. Southern questioned by the corporation. Taylor

Sawmill Co. v. Aadams Exp. Co. 1N. J.

per Co. (La.) 83 So. 977. But service of

Law\] 59 A. 10.

"Held Insuffient: Service by leaving a copy of the writ with the secretary and

untarily to adjust differences between treasurement of the corporation in another

plaintiff and the corporation, relating to county, where it had no business office, the

the subject-matter of the suit, was sufficient to confer jurisdiction of the corporation. Brush Creek Coal & Min. Co. v.

v. Current River Land & Cattle Co., 187 Mo.

Morgan-Garner Elc. Co., 136 F. 505. It

is not necessary that a summons against

resident attorney, who had been retained

c.poration state facts showing that defendant is a corporation. Fisher v. Trad-

which had never transacted business in the state, notwithstanding Acta 1887, p. 387, c.

26, 8 3 (Shannon's Code), 3 4546) provides that process may be served on any agentcase, are merely descriptive and do not constitute an allegation of incorporation. Boyce v. Augusta Camp, No. 7,429, M. W. A., 14 Okl. 642, 78 P. 322. A petition which does not show whether plaintiff is a partnership or corporation may be amended, after demurrer, so as to state that it is a corporation. Lucile Min, Co. v. Fairbanks, Morse & Co. \[K.Y\] 87 S. W. 1121. The use of the name "The Georgia Co-Operative Fire Association," in a petition, together with allegations relative to the transaction of business, imported a corporation. It was not necessary, even, as against a special demurrer, to allege the corporate existence of the plaintiff. Georgia Co-op. Fire Ass'n v. Borehayt & Co. \[Ga.\] 51 S. E. 429. Under a statute prohibiting any corporation from setting up a want of legal organization as a defense to any action, the petition need not allege facts showing compliance with the statute in organization, but a simple allegation that defend is a corporation is sufficient. Ky. St. 1903, & 566. A corporation cannot defend against an action by the state to recover its or-sanization tax, on the ground that under Ky. St. 1903, & 4225, its organization was incomplete on account of non payment of the tax, and hence it was not liable. Commonwealth v. Licking Valley Bldg. Ass'n No. 3, 26 Ky. L. R. 730, 82 S. W. 458. Where the petition alleged that defendant was a corporation organized under the laws of Illinois, and, upon denial of orgdization under the laws of Illinois, an amended petition was filed, identical with the original but allegging organization under the laws of Iowa, held, that the contention that two separate corporations were described was not well taken. The place of,incorporation was immaterial to the cause of action stated. Sands v. Marquardt \[Mo., App.\] 87 S. W. 1011. A corporation by appearing in an action admits its corporate existence. Herald Shoe Co. v. Oklahoma Pub. Co. \[Okl.\] 79 P. 111.

**Verification of pledings:** When a corporation is a party to a suit, the verification of a pleading in its behalf may be made by a "managing or local agent thereof," as well as by an officer. Under Code, & 258, amended by Laws 1901, p. 854, c. 610. Godwin v. Carolina Tel. & T. Co., 136 N. C. 258, 48 S. E. 636. An afflawt of defense may be made by an agent of a corporation in its behalf and at its request, stating that he is the only party that has knowledge of the facts set forth in the plaintiff's statement, or the answers filed. Citizens' Natural Gas Co. v. Vwaynesburg Natural Gas Co., 210 Pa. 137, 59 A. 822.

\*\*Varinneer A trifling variance in designating a corporation in a pleading is immaterial. "Underwrites" Fire Association at Dallas" held to be a harmless variance from "Underwriters" Fire Association of Dallas." Underwriters" Fire Ass'n v. Henry \[Tex., Civ. App.\] 79 S. W. 1072, A variance as to the word "the" in the corporate name of defendant steammship company held in-sufficient to justify a reversal of the judgment for plaintiff. Carlson v. White Star S. S. Co. \[Wash.\] 81 P. 838. Where a railroad company was used in its true corporate name, but the word "company" was omitted therefrom, the misnomer was an

**5** Cur. Law.\*\*

CORPORATIONS SS 11.

SS 11. _Legislative control over corporations._\*\*18--\*\*The legislative control over corporations of its own creation in the matter of publicity is complete,\*\*19 \*\*and reasonable control of charter powers exercised pursuant to reserved powers,\*\*20 \*\*or in the exercise of the police powers of the state,\*\*21 **is upheld. Where a corpora-**

three years for the administration of corporate affairs after the termination of its charter existence. Rev. St. 1898, 8 1764, and regulations of domestic corporations being reserved. Iowa Code, $ 1619. Mar-An action to wind up the corporation's affairs may be prosecuted to judgment more than three years after the termination of the life of the corporation. Id. In Ar-Kansas, the property of planttiff, acquired and held for the sole purpose of maintain-\*\*

**20. The right of legislative control over porate affairs after the termination of its charter existence. Rev. St. 1898, 8 1764, and regulations of domestic corporations being a charitable trust, holding only**

**3049.** 3052-3055. Woman's Christian Na-\*\*

**3060.** In New York the constitutional residential Library Ass'n. V. Fordeye \[Ark.\] 86 S. W. 417.\*\*

**18. See 3 C. L. 893. See, also, Foreign Corporations, S C. L. 1455.**

**19. The public policy in regard to corporation affairs is absolute publicity of all unless the statute creating it or authorizing its creation, expressly or Impliably pro-qurement of the receipt and record, by the county clerk, of semi-annual reports from St. p. 600, $ 8. Lord v. Equitable Life As-**

**the officers of corporations, showing their**

**307.** 308.\*\* 417.\*\*

**309.** 418.\*\*

**310.** 418.\*\*

**320.** 418.\*\*

**331.**

**332.**

**333.**

**334.**

**335.**

**336.**

**337.**

**338.**

**339.**

\*\*339.

tion makes a contract of employment, subject to any change of method in doing business occasioned by a change in the state laws, an act of the legislature necessitating the abolishment of the "expense fund," from which the compensation was paid, terminates such contract.\[22\]

SS 19. _How corporations may be dissolved; forfeiture of charter; effect of dissolution; winding up under statutory provisions.\[22\]--A corporation is dissolved and ceases to exist when its charter expires,\[24\] unless there is some statutory provision to the contrary;\[25\] and it is then not even a de facto corporation.\[26\] But corporate existence is not affected by the pendency of a creditor's suit, or the appointment of a receiver, or a decree for the sale of its assets;\[27\] neither will failnre to elect officers,\[28\] nor to transact business,\[29\] dissolve a corporation._

_Dissolution by consent of stockholders or directors.\[30\]--The act of dissolution, like the act of association, is not a corporate act but an act of the members of the corporation.\[21\]_

_Forfeiture of charter in proceedings by the state.\[32\]--Forfeiture will be decreed only for serious or intentional violations of the law,\[23\] involving public rights,\[34\]_

**22. Code, SS 1919, makes corporations for**

Home Town Mut. Ins. Co., 180 Mo. 153, 79 pecuinary profit subject to such legislative control as is deemed necessary for the pub- life food. Wood V. Iowa Bldg. & Loan Ass'n, 180 Mo. 155, 79 S. W. 175.

126 Iowa, 464, 102 N. W. 410.

**23. See SS 1. C. 893.**

**24. Clark v. American Cannel Coal Co. (Ind. App.) 17 N. E., 727, citing Brookville & G. Turnpike Co. v. McCarty, 8 Ind. 392, 393, 65 Am. Dec. 175; Ft. Wayne, etc., v. Deam, 10 Ind., 663-655; Morgan V. Law-renceburgh Ins. Co., 3 Ind. 506; Guang Iron Co. v. Dawson, 4 Blackf. 262; Clark & M. Corp. SS 82c, 247.**

\*\*25. Under the direct provisions of Burns' an. St. 1901, 8 3429, the existence of a corporation in Indiana is continued three years after the expiration of its charter, for the prosecution and defense of suits. Clark v. American Cannel Coal Co. (Ind.) 73 N. E. 1083. And in Michigan, corporations whose charters have been annulled, by forfeiture or otherwise, do not at once cease to exist, but continue or three years for the prosecution or defense of suits by or against them, under Comp. Laws, 8 , c. 230, p. 2627. Held, that the receiver of such a corporation, under order of the Michigan court where the receivership proceedings were had, could save out a writ of error in the Illinois supreme court in the name of the corporation. Eau Claire Canning Co. v. Western ProKexang Co., 213 Ill. 561, 73 N. E. 430. Proceedings on petition of the bank commissioner, under the statutes of New Hampshire, to wind up a banking corporation, do not'at once dissolve the corporation, so as to preclude a judge-ment against by a Federal court. Pub. St. N. H. 1901, c. 162. Cheshire Provident Inst. v. Anglo-American Land Mortg. & Ag. Co. \[C. C. A.\] 182 F. 968.

26. Clark v. American Cannel Coal Co. \[Ind.\] 73 N. E. 1883.

01. Atlas R. Supply Co. v. Lake & River R. Co., 134 F. 503; Youree v. Home Town Mut. Ins. Co., 130 Mo. 153, 79 S. W. 175.

Such proceedings do not prevent the corporation from acting as such, nor from in- curring indebtedness (Atlas R. Supply Co. v. Lake & River R. Co., 134 F. 503), nor from using its corporate name (Yource v.

- 5 Cur. Law. CORPORATIONS SS 13.

and then only at suit of the state, in direct proceedings for that purpose.\[35\] The state may, by acquiescence or recognition, be estopped from questioning the validity of an act of incorporation.\[38\]

_Custody and sale of property.\[37\]_--When a business corporation dissolves and losses legal capacity to preserve its estate, equity will, if necessary, lay hold of its assets to compel a final liquidation of its affairs and a distribution of the capital among stockholders as in partnership associations.\[38\]

_Statutory proceedings_\[39\] for dissolution are provided in most states.\[40\]

SS 13. _Succession of corporations; reorganization; consolidation.\[41\]_--Consolidations and mergers, not creative of monopolies,\[42\] and reorganizations safeguard-

In a proceeding by the state to revoke the \_nonuser of a part of its line cannot be charter of a corporation, great effect could raised. Commonwealth v. Philadelphia, etc., be given the fact that the tendency of the \_R. Co., 23 Pa. Super. Ct. 235. An order of business was to deceive investors into mak-

reference of a rejected claim against a _ing an investment which must necessarily_ banking corporation, in proceedings for disambiguation them. Vokes v. Eaton (Ky.) 85

solution, made without notice to the attor-

ney general will be reversed. Laws 1883,

lease of its plant by a corporation is not _p._ 559, c. 378, $ 8. Eustace v. New York a ground of forfeiture of its franchise, Eldig. Loan Banking Co., 98 App. Div. 97,

years after the avoidance of the lease and

90 N. Y. S. 784.

the resumption by the corporation of its

36. As where it has, with knowledge of

duthes. State v. Cumberland Tel. & T. Co.

\[Tenn.\] 86 S. W. 390. Nor does the failure

large sums of money, by the company, and

to pay the franchise tax imposed authorize

the sekterary of state to declare a charter

the faith of its grant, and by neglecting to

forfeited. Art. 5241, Sayles' Ann. Cir. St.

1897. Ribpstein v. Haynes Medina Valley

R. Co. \[Tex. Civ. App.\] 85 S. W. 314.

34. In Louisiana Insolvency of a corporation, evidenced by a return of no property found on execution, is ground for the

forfeiture of its charter. Rev. St. 688.

Jones Co. v. Hoffman \[LA.\] 88 S. So. 763.

Courts have discretionary power as to declaring a forfeiture of a charter of a corporation for an act or omission which is not expressly made a ground of forfeiture

by the charter, and will exercise such dis-

cretionary powers in favor of the corporation, where the violation of the charter appears doubtful and no public interest requires a forfeiture. State v. United States

Endowment & Trust Co., 140 Ala. 610, 37

So. 442. A charter will not be declared forfeited forfeiting omissions, where they do not appear to have been Wilfult, or prejudicial to any one, and a judgment of ouster would cause loss to the stockholders. As

failure to keep books at the place required by the charter for the maintenance of its

principal office, for a limited time after organization; or the failure of its president

to make the first annual report to the

auditor of state. Id.

35. Such acts as may work a forfeiture

of corporate rights, after the corporation

has been brought into legal existence, can

be taken advantage of only by the government in direct proceedings to forfri the

charter. Elgin Nat. Watch Co. v. Loveland,

132 F. 41. In Alabama, anyone who will

give the required security for costs may in-

sittute quo warranto proceedings to annul

the charter of a corporation. Code 1896,

# 3417, 3418. State v. United States En-

dowment & Trust Co., 140 Ala. 610, 37 So.

442. On an indictment of a railroad com-

pany for a nuisance in maintaining an alleged illegal crossing over a highway, the question of forfeiture of its charter for

nonuser of a part of its line cannot be

n'eased. Commonwealth v. Philadelphia, etc.,

be given the fact that the tendency of the

R. Co., 23 Pa. Super. Ct. 235. An order of

between two weeks to deceive investors into mak-

reference of a rejected claim against a

ing an investment which must necessarily

banking corporation, in proceedings for dis disappointment. Vokes v. Eaton (Ky.) 85

solution, made without notice to the attor-

ney general will be reversed. Laws 1883,

lease of its plant by a corporation is not _p._ 559, c. 378, $ 8. Eustace v. New York a ground offeiture of its franchise, Eldig. Loan Banking Co., 98 App. Div. 97,

years after the avoidance of the lease and

90 N. Y. S. 784.

the resumption by the corporation of its

36. As where it has, with knowledge of

the facts, encouraged the expenditure of

\[Tenn.\] 86 S. W. 390. Nor does the failure

large sums of money, by the company, and ing the rights of lien holders, and others interested," when authorized by law and conducted in accordance therewith, are sustained." Transfer of corporate liabilities to a succeeding corporation depends upon whether the identity of the original corporation survives.45

153: New Albany Waterworks v. Louisville

prior consolidation. In Missouri Rev. St. Banking Co. \[C. C. A.\] 122 F. 778.

43. A reorganization committee appointed

Co., 185 F. 163. In Alabama Code 1896, by the bondholders, pending foreclosure

18 1202-1204. The rights of the parties in proceedings, upon whom almost unlimited powers were conferred, was bound to act

damages, pending at the time of a second in good faith so as to protect the interests of all the bondholders. A bondholder who

by. Birmingham R., Light & Power Co. v. was deprived of his right to withdraw his

Benslen \[Ala.\] 39 So. 74. In conferring the bonds, in accordance with the understanding

power of consolidation upon a railroad cor-among the bondholders, by the committee's

poration, the legislature cannot require a failure to prepare its plan of reorganization

dissenting stockholder to surrender his

tion before flocclosure, had a right of a

stock and accept stock in the consolidated

action against the committee for damages.

corporation in lien thereof, but it may in-

Industrial & General Trust v. Tod, 180 N. X.

voke the power of eminent domain and pro-

215, 73 N. E. 70. Reorganization pending

vide for the condemation of such stock

proceedings in insolivency to settle the aff

for a public use, by making compensation

fairs of a corporation, by the organization

therefor. Priv. Laws 1901, p. 463, c. 168, is

of a corporation and transfer of stock

such an exercise of the power of eminent

therein to creditors in exchange for their

domain. A stockholder who waited more

claims against the old corporation. McEwen

than two years before asking the court to

v. Harriman Land Co. \[C. C. A.\] 138 F. 797.

declare the consolidation void was held

Transfer of indebtedness by creditors of an

guilty of laches and to be sufficiently pro-

Insolvent corporation for stock in a reorganized

ganized corporation held not to be a payment of the indebtedness, but a vesting in

the value of her stock. Spencer v. Sebaord

ment of the indebtedness, but a vesting in

Air Line R. Co., 137 N. C. 107, 49 S. E. 96.

the new corporation of all the rights of such

Corporations created by different states can

creditors as against the old one and its as-

consolidate only under concurrent legisla-

sets. Id.

44. The right of corporations to consolid

its a separate and distinct corporation in

date can exist only by virtue of positive legisla

sclative grant; such power cannot be Im-

piled. Jones v. Missouri-Edisson Elec. Co.,

corporations attempted to consolidate with-

135 F. 153. The corporate existence of a

nominally consolidated corporation, formed

in the absence of legislative authority, may

be collaterally attacked, its acts and con-

byt
. Whaley v. Bankers' Union of the

tracts are void, and it cannot be held liable

for the debts of one of the corporations at

48 S. W. 259.

tempting to consolidate. Whaley v. Bankers' Union of the World \[Tex. Civ. App.\] 13

Tex. Ct. Rep. 431, 88 S. W. 259.

A consolidate.

tion of corporations made pursuant to an

invalid statue is inoperative and void. The

act of 1872, for the change of name and con-

and tranchises, is not liable for the general

collidation of corporations, not having been

submitted to the people, was therefore void

to banking corporations, under Const.

art. 11, 5 S. Boder v. Tolman, 113 III. App. 322. Corporations cannot consolidate, unless the power to do so is expressly con-

forced upon both corporations. Priv. Laws

1901, p. 463, c. 168, authorized defendant

corporation to consolidate with any rall-

road or transportation company in the

United States, and authorized any such company

pany incorporated in North Carolina to con-

collidate with defendant. Held to authorize

Cignette Co., 94 N. Y. S. 345. A contract

the consolidation of defendant with the Raj

leigh & Gaston Railroad company. Spencer

v. Sebaord Air Line R. Co., 137 N. C. 107,

49 S. E. 96. Even where the right to amend

a private chartr has not been reserved, the

legislature may pass an act authorizing the

corporation to consolidate with another, for

that is but an enabling act and imposes no

duty or obligation on the corporation. Id.

Stitutes authorizing the consolidation of

corporations of the same nature apply to a

corporation which was itself created by

a

error consolidation. In Missouri Rev. St. Banking Co. \[C. C. A.\] 122 F. 778.

189, 8 1334. Jones v. Missouri-Edisson E 5 Cur. Law. --CORPORATIONS SS 14B. --SS 14. --SS 14.

stitutes, according to the holding of some courts, a trust fund for the benefit of the creditors.\[58\]

A share of stock is the interest or right the owner has in the corporation.\[54\] "The shares are personal estate and a species of incorproeal property,\[57\] whose location is in the the state where the corporation is created,\[58\] and whose value is represented by the assets of a company.\[59\]

uses of the corporation is made the founda-

funded, who can follow the assets of a cortion for the issuance of certificates of cap-

poration paid to stockholders as dividends,

ital stock. Smith v. Dana, 77 Conn. 543, 60

regardless of the good faith of the stock-

A. 117, citing State v. Norvchouk & W. R. C. Co.,

holders or of the corporation. Comp. Laws,

30 Conn. 290; Bailey v. Clark, 21 Wall. U. U. S. J. 284, 22 Law. Ed. 651; Christensen v. Eno,

scribes to stock, acts as director, particul-

106 N. Y. 97, 60 Am. Rep. 429; Iron R. Co. v. Lawrence C. 49 Ohio St., 102;

eives the dividend, is deemed a stock-

Reid v. Eastonton Mfg. Co., 40 Gan. 103, 2

Am. Rep. 563; Commonwealth v. Charlottes-

ville, etc., Co., 90 Va. 790, 44 Am. St. Rep.

950. Sometimes the term is used to designate that portion of the assets, regardless

of their source, which are utilized for the

conduct of the corporate business and for

the purpose of deriving therefrom gains and

profits. Iowa St. Sav. Bank v. Burlington,

88 Iowa, 739; People v. Feitner, 67 N. Y. 1

Supp. 833; Hemmenway v. Hemmenway, 181

Mass. 406. And frequently the term is em-

ployed in a still wider sense, as descriptive

of all the assets, gross or net, of a corpora,

tion, whatever their source, investment or

employment, Security Co. v. Hartford, 61

Conn. 89; Batterson's Appeal, 72 Conn. 374;

People v. Coleman, 128 N. Y. 433, 12 L. R. 4

A. 762; Ohio & M. K. Co. V. Weber, 96 Ill.

443; State v. Lewis, 118 WIs. 432. The cap-

ital stock of a corporation is one of its assets (Calet v. Wyandotte Reality Co.(Kan.)

78 P. 816), and is the basis of its credit. It

is a substitute for the individual liability of

those who own its stock (Macbeth v. Bank-

field (Or.) 78 P. 693).

55. Allen v. Grant \[Ga.\] 50 S. E. 494;

Easton Nat. Bank v. American Brick & Tile

Co. \[N. Y. B.\] 60 A. 54; Smith v. Dana, 77

Conn. 543, 60 A. 117; Calef v. Wyandotte

Reality Co. \[Kan.\] 78 P. 816. This is commuj called the "American doctrine," and

is somewhat criticised in this case. Mac-

both v. Banfield \[Or.\] 78 P. 693. The distribution of the capital stock among stockholders, without making adequate provision

for the payment of debts, or the issue of

fictitious paid-up stock, is a fraud upon

creditors contracting with the corporation

in reliance upon its capital remaining intact, or in reliance upon the processed capital having been paid up in full. Id. The

creditors of a corporation have a llem upon

its capital stock in equity. If diverted, they

may follow it so far as it can be traced, and

subject It to the payment of their claims,

except as against bona fide holders for a

valuable consideration and without notice.

Easton Nat. Bank v. American Brick & Tile

Co. \[N. Y. E.\] 60 A. 54. The receiver of an

inadvertual bank can recover from stockholders

ders dividends paid to them out of the cap-

ital stock of the bank. Corn v. Skillern

\[Ark.\] 87 S. W. 142. In Michigan, if the

capital stock of a corporation is withdrawn

and refunded to the stockholders before the

payment of all debts, the stockholders are

liable to creditors to the amount so re-

re-

Figure 11: The value of preferred stock is not affected by the issue, large or small, of common

and the stockholders are

Table 10: The value of preferred stock is not affected by the issue, large or small, of common

by the issue, large or small, of common

stock, since the latter ranks below the pre-

table to creditors to the amount so re-

Figure 12: The value of preferred stock is not affected by the issue, large or small, of common

Figure 13: The value of preferred stock is not affected by the issue, large or small, of common

Figure 14: The value of preferred stock is not affected by the issue, large or small, of common

Figure 15: The value of preferred stock is not affected by the issue, large or small, of common

Figure

5 Cur. Law. CORPORATIONS SS 14C.

Scrip, in corporation parlance, is the certificate or evidence of the right to obtain shares in a corporation. \[90\] A certificate of stock is not the stock itself, but is the evidence of its existence \[91\] and such ownership as is stipulated in the articles, \[95\] and of the holder's rights as a stockholder to the extent therein specified. \[93\] A certificate of stock is not essential to the existence of the property represented by it. \[94\]

At common law a corporation has no lien upon the shares of its stockholders for debts due from them to the company, and the courts refuse to enforce them against stock, unless created by statute, charter, or by-law of the company. \[95\] Such lien may be incorporated in the articles of incorporation, as well as in special charters, \[96\] or in the by-laws, \[97\] and when so incorporated is good betwen the company and the stockholders, but it is not good against those who, at public or private sales, purchase without notice of its existence, nor against bona fide creditors who, without notice, advance money on the shares and thereby acquire the position of quasi purchasers. But the judgment creditor does not occupy so favorable a position and his lien is inferior to that created by the by-laws. \[98\]

In the absence of statutory provisions, shares of stock are not subject to execution or attachment. \[99\]

(SS 14) _C. Subscriptions to capital stock, and other agreements to take stock. \[90\]_--Unless prohibited by statute, payments for stock are governed by the contract as to time and manner of payment, \[11\] and so long as good faith is exer

## 792 CORPORATIONS SS 14C.

5 Cur. Law.

eised,12 property as well as money may be received.78 Subscriptions can be enforced only on compliance with the terms,74 and may be avoided for fraud or false

by plaintiff to defendant held not to have

and the issue of stock, in payment, to the been loans, but payments for his stock in

value thereof, and, providing that such the company, Hollins v. American Union

stock shall be deemed full-paid, does not

Elec. Co., 65 N. J. Eq. 457, 60 A. 359. Where

conflict with the constitutional prohibition

a contract for the purchase of stock pro-

of the sale of stocks, except for labor done,

vides for payment of instalments of the services performed, or money or property

purchase price at fixed periods after the

actually received. 1 Mills' Ann. St. # 490,

call of the directors, held that such Instalments became due automatically and the

358). Speer V. Bordeleau \[Colo. App.\] 79 P.

sstante of limitations ran against each in

32. The laws of Maryland, which author-

silment as it so became due. Williams v.

Matthews, 103 Va. 180, 48 S. E. #61. Subscriptions for stock, under agreement that

after payment of twenty per cent, subserb-

of its business, authorize the acceptance of

ers should not be liable for any balance of

the stock of another corporation in pay-

subscriptions, except on such shares as

ment, where the organic act of the corporation authorizes it to purchase and hold

at the time of subsequent assessments.

Bean v. American Alkali Co. \[C. C. A.\] 1388, art. 23, $ 69, 70, amendatory of the

F. 57. Required subscriptions for stock in

general Incorporation act of 1868. South-

a telephone company must be paid in be

ren Trust & Deposit Co. v. Yeatman \[C. C.

fore the probate court can grant a degree

A.J 134 F. #10. A corporation having

vsing mode of use of the streets. City of

used its stock as fully paid, in exchange for

Cincinnati v. Queen City Telephone Co., 2

property transferred at an agreed valua-

Ohio N. P. (N. S.) 349, 15 Ohio Dec. N. P. 43.

tion, cannot thereafter, without the consent

72. A secret understanding for a subscription for a smaller number of shares

partially paid and assess him for the dif-

cannot be set up as a defense against an

action to recover the 'subscription price of

property and the par value of the stock is

the number of shares subscribed for, in a

certificate for a charter signed and sworn

6.50.

6.5.50.

7.5.50.

8.5.50.

9.5.50.

10.5.50.

11.5.50.

12.5.50.

13.5.50.

14.5.50.

15.50.

16.5.50.

17.5.50.

18.5.50.

19.5.50.

20.5.50.

21.5.50.

22.5.50.

23.5.50.

24.5.50.

25.50.

26.5.50.

27.5.50.

28.50.

29.5.50.

30.5.50.

40.5.50.

50.50.

51.50.

52.50.

53.50.

54.50.

55.50.

56.50.

57.50.

58.50.

59.50.

60.50.

7.

5 Cur. Law. CORPORATIONS SS 14C. 793

representations of fact.\[76\] A purchaser may, upon demand, obtain a certificate of shares, but, unless demanded, it need not be issued.\[77\]

_Calls and assessments_\[78\] may be made as provided in the contract and as authorized by law.\[79\]

The purchase of stock by a minor may be disaffirmed the same as other contracts.\[80\]

Restrictions may be created by a contract mutually agreed to by the stockholders,\[91\] and the owners of the entire stock of a corporation, upon selling a majority thereof, may impose conditions that will be binding upon the vendees.\[92\]

dependent upon a lease of a telephone, which lease contract was unentroneable for

tost is to assess the stockholder's proportevant of mutually, was held invalid. Co-

right to have the corporate purposes car-

operative Tel. Co. v. Katus \[Mich.\] 12 Det.

Leg. N. 187, 103 N. W. 814. A condition attached to a subscription for corporate stock

solution. Sweetsir, Chandler, 98 Me. 145, can be waived by the subscriber. But such

s4C. 584. An agent for the owners of

walver must be made with full knowledge

stock of a corporation, having no interest of the rights the intends to waive and it

himself therein, who caused the transfer of

must clearly appear that he knew his

rights and intended to waive them. Wright

the company, who had no interest in the

v. Agelasto \[Va.\] 51 S. E. 191.

stock, the actual ownership not being

75. Either as against its the corporation it-

changed, did not render himself liable for

self or as against its assignee for the bene-

an assessment when no fraud or deception

fit of creditors, where there was no failure

was practiced. American AlkCo. v. Kurtz

to exercise due to discover the fraud.

Kentucky Mut. Ins. Co.'s Assignee v. Schae-

the holder of corporation stock as collateral

fer \[Ky.\] 85 S. W. 1098. False statements

by officers of a corporation that none of it

on. Code, $ 1656. A bank that paid as-

had been sold for less than par, will war-

sessments on stock, held as collateral se-

rant a rescission. Hubbard v. International

curity for a loan is not entitled to have the

Mercantile Ag. \[N. J. Eq.1 S 9 A. 24. A

amount so paid made a superior Item on the

sale of corporate stock, induced by fraudu-

stock. Iowa Nat. Bank v. Cooper \[Iowa\]

lent representations of the purchaser, is

101 N. W. 455. Under the terms of the sub-

not vold, but only voidable at the election

scription contract, defendant held not lia-

of the seller. Hooker v. Midland Steel Co.,

ble for assessments on stock placed by him,

215 Ill. 44, 74 N. E. 445. Representations

as agent of an Indiscol principal, in the

made by an officer of a corporation to in-

name of a dummy. American Alkali Co. v.

duce the purchase of stock held insufficient

Kurtz, 184 F. 668. An assessment to be

to sustain the charge of fraud. German

held and treated as an "assessment loan"

Nat. Bank's Receiver v. Nagel, 26 Ky. L. R.

until met and paid by all the stockholders

748, 82 S. W. 438. False statement to

and then to become absolute. Steck v.

plaintiff, as to the financial condition of a

Bridgeport Water Co., 24 Pa. Super. Oct. 188.

corporation, by its general manager, held

79. Seeley v. Seeley-Howe-Le Van Co.

not to warrant a rescission of the contract

\[Iowa\] 103 N. W. 961.

of sale of stock by defendant, a stockholder,

So. An agreement for the distribution

and director, to plaintiff. Garrett Co. v.

of stock in a corporation to be formed in-

Appleton, 101 App. Div. 507, 92 N. Y. S. 136;

Powaker Co. v. Hunter, 100 App. Div. 131, 91

Smith v. Bank of Lewisport \[Ky.\] 85 S. W.

N. Y. S. 620. The substantial value of the

sociation is presumed to know the by-laws

patronse enjoyed by a corporation, due to

and the cannot be heard to say that he was

its reputation for excellence in its business,

deceived by its agent in the purchase of

or its "good will," recognized as a factor

stock, when the agent's representations,

taken in connection with the by-laws, etc.,

stockholders agreement for the purchase of

are no more than mere expressions of opinions.

Guaranty Sav. & Loan Ass'n v. Simko

member, by the other stockholders, at a

\[Ind. App.\] 74 N. E. 278.

price to be fixed by arbitration. In re

76. So held under the laws of West Vir-

ginia. Lipscomb's Adm'r v. Condon \[Vv.\]

An agreement among stockholders that the

va.14 S. E. 322. A provision in a contract

stock held by them

## 794 CORPORATIONS SS 14D. 5 Cur. Law.

Under the Civil Code of California an agreement, by the vendor of stock, not to engage in the line of business conducted by the corporation, is void.\[32\]

(SS 14) \_D. Miscellaneous rights of stockholders.\[8\]--\_Though a stockholder bias tested rights as such, yet those rights are subject to the will of the majority of the stockholders, expressed in a lawful manner and for the general welfare of the corporation.\[8\] A stockholder has no primary or preemptive right to subscribe at par for increased stock, as against an outsider, when the same stock can be sold to other parties at a great advance on its par value.\[8\] Where a stockholding corporation was formed by the stockholders in two competing interstate railway companies, and afterward declared void, the stockholders can not reclaim specific shares of stock delivered by them to the unlawful organization, but must content themselves with a ratable distribution of the corporate assets resolved upon by the stockholding corporation.\[8\]

Injunction will not lie to interfere with the proceedings of a corporation acting regularly under valid by-laws.\[8\]

\_The right to dividends.\[8\]--\_In the absence of statutory provisions,\[9\] directors have a rightful discretionary power to determine at all times, within reasonable limits, the destiny of profits and of accumulated profits represented by surplus.\[9\]

years at a specified salary, 1s not void as of Trade of Chicago v. Weare, 105 III. App. contrary to public policy. Kantler v. 289.

S8. See 3 C. L. 503.

S8. Civ. Code, SS 1673, 1674. Contracts by which one is restrained from exercising \[N. J. Eq. 1\] 59 A. 505. In New Jersey, un-laavful professor or business are void, less otherwise provided in the certificate of unless made by one who sells the good-will incorporation or in a by-law adopted by a of a business. Dodge Stationery Co. v. Dodge, 145 C.L. 380, 78 P. 879.

of a corporation are required by statute (Corporation Law, SS 47 (Laws 1896, p. 293J

S4. The issue of preferred stock, by consent of two-thirds of the stockholders, un-). V. United States Steel Corp. (N. J. Eq. 1\] 59

der an amendment of the law, although

A. 95. To declare annually a dividend of when the objecting stockholder purchased his stock the law required unanimous conserve.

Sent, was valid. Hinckley v. Schwarzschild

S0. Smith v. Dana, 77 Conn. 543, 60 A.

& Sulzberger Co., 45 Music. 176, 91 N. Y. 8, 117, citing Gibbons v. Mahon, 136 U. S. 549,

S93. A purchaser of stock in a business corporation takes it subject to the reserved (C. A.) 135 F. 1008. Profits may be dis-pover of the legislature to amend the statute and arrived. They may be, in whole

or in part, retained and utilized for the cor-chaser of stock, while corporations were

practice advantage. They may be used for prohibited from issuing preferred stock excipt by unanimous consent of its stockhold.

be permanently used in the business. Smith

S7. Dana, 77 Conn. 543, 60 A. 117. Directors stock by consent of two-thirds of the stockholders under a subsequent amendment of common, as well as preferred stock, even the law. Laws 1901, p. 895, a 354. Id.

S5. Where an increase of stock was reg- not for the interest of the corporation to do

ularly and in good faith voted by the off-

so, although such profits may otherwise be

cers, directors, and a majority of the stock-

holders, to be sold to a certain person at stock. Stevens v. United States Steel Corp. 4 and one-half times its par value, held

(N. J. Eq. 1\] 59 A. 505. A resolution of the

that a dissenting stockholder could not re-

directors of a bank to pay the taxes on the

cover damages for the refusal of the corporation to sell shares to him at par, pro-

back stock, held to be a declaration of a

portionate to the number of shares already

stockholders. Redhead v. Iowa Nat. Bank

Beld by him. Stokes v. Continental Trust

(Iowa) 103 N. W. 796.

Co., 99 App. Div. 377, 91 N. Y. 8, 238.

The power of the directors to declare

86. Harriman v. Northern Securities Co.,

dividends is not absolute and a court of

197 U. S. 244, 49 Law. Ed. 739. Such dis-

equity will intervene on behalf of a stock-

tribution of stocks to its stockholders was holder who may complain, in case of abuse.

an equitable arrangement and should not

Stevens v. United States Steel Corp. (N. J.

be enjoined. Northern Securities Co. v. Esq. 55 A. 905, citing Laurent Springs Land

Harriman \[C. C. A.\] 134 F. 331.

S7. Investigation by Board of Trade di-

Fougeary v. Cord, 50 N. J. Eq. 185, 197;

rectors of charge against a member. Board

Grilling v. Grilling Iron Co., 61 N. J. Eq. 269, 5 Cur. Law.\*\*

CORPORATIONS SS 14D.

The stockholder has no title to the surplus earnings of the company, until his share is segregated by the board of directors, \[91\] but when a dividend has been declared, a debt at once becomes due from the corporation to each stockholder, recoverable by each in a separate action at law. \[92\] As a general rule, as between life tenants of corporate stock held in trust and remaindermen, a cash dividend is regarded as income and a stock dividend as capital. \[93\]

\_Right to inspect the books and papers of the corporation. \[94\]--A stockholder has a right to inspect the books of the corporation, \[95\] enforceable by mandamus, \[96\] which should not be granted for speculative purposes, but only to protect the in-

271: 2 Cook, Corp. \[4th Ed.\] SS 545: Knopp or surplus have been invested in permanent v. Jarvis Adams Co. \[IC. C.\]. 135 F. 1008. A stockholder, however, cannot compel the declaration of a dividend, by suit in equity, where it does not appear that he has made capital, instead of income. Smith v. Dana, application there to the directors, or that \[77\]. Conn. 543, 60 A. 117. The withdrawal of such application would not be considered (Maced v. Buffalo Bill's Wild West Co., 182 P. 280), and his right to invoke the aid of equity may be waived by acquascence. Where a corporation adopted a by-law unanimously, giving the board of directors power to declare or withhold dividends, and the board, under such by-law, for a series of years used the profits for expanding the business, there was a waived by the stockholders to invoke the aid of equity to com-pel the declaration of a dividend, especially in the absence of any showing that the expansion policy adopted by the directors was unreasonable. Reynolds V. Diamond Mills Paper Co. \[N. J. Eq.\] 60 A. 941. After a reduction of stock, asserted to by plaintiff, held that she was entitled to dividends on the amount of stock held, but not on the amount of the reduction, for the time prior to the reduction, during which no dividends had been paid. Roberts v. Roberts-Wicks Co., 102 App. Div. 118, 92 N. Y. S. 287. 128, and clearly stated in Wheeler v. Northwestern Shelip Co., 29 F. 347. Knopp v. Jarvis Adams Co. \[IC. C.\]. 135 F. 1008. Until a dividend is declared, the entire assets of a corporation including accumulated profits, belong to the corporation, and the corporation owes no debt in respect there to the stockholders as individuals. 2 Cook, Corp. $ 534. Stevens V. United States Steel Corp. \[N. J. Eq.\] 59 A. 905 92. Stevens v. United States Steel Corp. \[N. J.\]. 59 A. 905. But such Indebtedness does not pass with the assignment of the stock. Redhead v. Iowa Nat. Bank \[Iowa\] 103 N. W. 796. A division of profits without the formality of declaring a dividend is the equivalent of declaring a dividend. Hartley v. Pioneer Ironworks, 181 N. Y. 73 N. E. 576. Dividends payable at the pleasure of the corporation are payable within a reasonable time, and, some having been paid, all are payable. Billingshaven v. Gleason Mfg. Co., 101 App. Div. 476, 91 N. Y. S. 1046. Dividends, until paid, are held in trust for the stockholders and a demand is essential as a condition precedent to bringing suit, unless the corporation has refused to pay the dividend. Redhead v. Iowa Nat. Bank \[Iowa\] 103 N. W. 796. 93. The fact that undistributed profits 796 CORPORATIONS SS 14D. 5 Cur. Law.

terests of the stockholder.97 He cannot maintain a suit in equity to require the corporation to bring its books into the state, merely that he may have access to them.98 The granting and the refusal of the right of inspection rests in the sound discretion of the court; and will not be ordered, unless the application therefor is made in good faith, and not for the purpose of injuring or annoying the corporation, and to learn something which the stockholder has a right to know for his protection.99 The state in which a corporation is organized has alone authority to compel inspection of the books by a stockholder.1 On an application to a Federal court for a mandamus, by a shareholder in a national bank, to compel the inspection by him of the list of shareholders, it must appear that the matter in dispute exceeds the value of $2,000, to confer jurisdiction.2

\_Remedies for injuries to stockholders or to the corporation.\_3--Courts of equity are prompt to redress the injuries of minority stockholders against the wrongdoing of majorities.4 They are bound to seek relief through the corporation at a meeting of its shareholders or by application to those in charge of affairs; 5 but if relief cannot be had by either of these means, then they themselves can come into equity seeking it." An action brought by a stockholder for relief from fraudulent transactions of its directors or officers is really an action by the corporation to redress a corporate wrong.7 Where the officers and directors of one corporation are domi-

97. A stockholder induced by fraudulent representations to transfer valuable property to the corporation may compel inspection of the records to ascertain the condenser & Power Co. v. Fisher \[Va.\] $1 S. E. 198.

truth or falsity of the representations. State v. Pan-American Co. \[Del. Super.\] $1 \[Tenn.\] $1 \[Tenn.\] $1 S. W. 1970.

A. 398. Section 44 of the general corpora.

tion act of New Jersey (P. L. 1896, p. 292),

providing for a summary order by the court of chameery for the production of

forced to the directors, in purchase of pat-

bockles, applies only where the books are

required for some judicial purpose. Maeder

of law, an action to compel the directors

v. Buffalo Bill's Wild West Co., 132 F. 280.

**99.** Peonle v. Keeseville, etc., R. Co., 94

monity stockholder who purchased a

N. Y. S. 555.

**1.** Motion for mandamus denied by a

court of the state of New York, in the case

of a New Jersey corporation. Mitchell v.

Northern Security Oil & Transportation Co.,

Press v. Montauk Fire Detecting Write Co.,

44 Misc. 514, 90 N. Y. S. 60.

**2.** Large v. Consolidated Nat. Bank, 137

For a corporation brought suit against an off-

F. 168.

**3.** See 3 C. L. 904.

**4.** McCampbell v. Fountain Head R. Co.

\[Tenn.\] $7 S. W. 1070. It is too late for

interference by injunction, after directors,

having power to sell, have consumulated a

sale of corporate stock. Huet v. Pledmont

Springs Lumber Co., 18 N. C. 443, 50 S. E.

$46.\*\* Under the Code of Washington, bar-

ring an action for fraud in three years, a

stockholders' action for relief against a

fraudulent reorganization scheme, involv-

ing the sacrifice of mortgaged property on

foreclosure, was held barred where the

plaintiff had knowledge of the transaction.

Baldinger's Ann. Codes & St. $480. Griffith

v. Seattle Consol. St. R. Co., 36 Wash. 627,

79 P. 314.

**5.** But where the acts of one controlling

a majority of the stock constituted a wrong

toward the corporation, it was not necessary for a stockholder to apply at a stock-

say for a stockholder to apply at a stock-

borders' meeting for action to redress the

wronss, before commencing action for the

appointment of a receiver. Virginia Passenger & Power Co. v. Fisher \[Va.\] $1 S. E.

198.

**6.** McCampbell v. Fountain Head R. Co.

\[Tenn.\] $7 S. W. 1970.

**7.** In order to obtain equitable relief in

such cases, the corporation must do equity.

Mosher v. Sinnott \[Colo. App.\] 79 P. 742.

providing for a summary order by the

Where the entire capital stock was transferred to the

ferred to the directors, in purchase of pat-

bockles, applies only where the books are

ent rights at a price below par, In violation

required for some judicial purpose. Maeder

of law, an action to compel the directors

v. Buffalo Bill's Wild West Co., 132 F. 280.

**99.** Peonle v. Keeseville, etc., R. Co., 94

monity stockholder who purchased a

N. Y. S. 555.

**1.** Motion for mandamus denied by a

court of the state of New York, in the case

of a New Jersey corporation. Mitchell v.

Northern Security Oil & Transportation Co.,

Press v. Montauk Fire Detecting Write Co.,

44 Misc. 514, 90 N.

5 Cur. Law. CORPORATIONS SS 14D. 797

nated by another, contracts between two will be set aside when they are not fair and reasonable.8

\_Stockholders swing for corporation.9--\_Stockholders may bring suit to enforce the rights of the corporation,10 but the action must be predicated upon a demand

8 Montgomery Traction Co. v. Harmon, 137 F. 882. To prevent the destruction of a common to two corporations enter into a contract between the two for the purpose to cancel a leasa. Being an action in behalf of defrauding one of them for the benefit of the other, stockholders of the one sought to be defrauded have a common-law right

Footnote 13: The 137 F. 882 is a 137 F. 882. To prevent the destruction of a common to two corporations enter into a contract between the two for the purpose to cancel a leasa. Being an action in behalf of defrauding one of them for the benefit of the other, stockholders of the one sought to be defrauded have a common-law right

Footnote 14: The 137 F. 882 is a 137 F. 882. To prevent the destruction of a common to two corporations enter into a contract between the two for the purpose of defrauding one of them for the benefit of the other, stockholders of the one sought to be defrauded have a common-law right

Footnote 15: The 137 F. 882 is a 137 F. 882. To prevent the destruction of a common to two corporations enter into a contract between the two for the purpose of defrauding one of them for the benefit of the other, stockholders of the one sought to be defrauded have a common-law right

Footnote 16: The 137 F. 882 is a 137 F. 882. To prevent the destruction of a common to two corporations enter into a contract between the two for the purpose of defrauding one of them for the benefit of the other, stockholders of the one sought to be defrauded have a common-law right

Footnote 17: The 137 F. 882 is a 137 F. 882. To prevent the destruction of a common to two corporations enter into a contract between the two for the purpose of defrauding one of them for the benefit of the other, stockholders of the one sought to be defrauded have a common-law right

Footnote 18: The 137 F. 882 is a 137 F. 882. To prevent the destruction of a common to two corporations enter into a contract between the two for the purpose of defrauding one of them for the benefit of the other, stockholders of the one sought to be defrauded have a common-law right
798 CORPORATIONS SS 14D. 5 Cur. Law.

and rcfusal,\[11\] or unreasonable neglect \[12\] on the part of the proper officers to act, unless the circumstances are such that any application to them would be an idle ceremony.\[13\] In such actions the relief sought is for the benefit of all like intercsts,\[14\] and the money recovered goes to the corporation and not to the individual complainants.\[15\]

The corporation must be made a defendant in an action by stockholders for misappropriation or fraudulent diversion of its funds by its officers or directors;\[16\] also in a stockholders' suit for an accounting for moneys alleged to have been received and disbursed by defendant as president of a corporation, since any judgment against defendant must be rendered in favor of the corporation, and judgment cannot be rendered in favor of one not party to the action;\[17\] and in such an action against the corporation and some of its officers and stockholders, certain stockholders who took part in the alleged wrongful acts are proper parties defendant, although no specific relief is asked against them.\[18\]

Complaining stockholders must show that they have been diligent in seeking redress;\[19\] but they are not guilty of such laches as to lose their right of action,

11. Kavanaugh v. Commonwealth Trust

selves guilty of misconduct and fraud. Co., 181 N. Y. 121, 73 N. E. 562; Whitney v. Bowne v. Smith, 44 Misc. 575, 90 N. Y. S. Hazzard \[S. D.\] 101 N. V. 346; Donald v. 204. Or were the partismans of the wrong-Manufactures' Export Co. \[Ain.\] 38 So.

411. Van Arnien v. American Tuebworks

140 Ala. 505, 37 So. 371. Where the corporation has 74 N. E. 640; Bowne v. Smith, 45

ration management was under the control of this city. Kern v. Arbeitet Un-Misc. 575, 90 N. Y. S. 204. It is only under

the equity parties. Kern v. Arbeitet Un-Misc. 575, 90 N. Y. S. 204. It is only under

terstuelzungs Verein \[Mich.\] 102 N. W. holder can maintain such an action: he

146; Von Arnien V. American Tuebworks must have exhausted all the means within

hls reach to obtain redress within the corporation. Virginia Passenger & Power Co., v. Fisher \[Va.\] 51 S. E. 198. Even where

the officers' acts are ultra vires or other-vise illegal, a complaining stockholder

mycat first seek his remedy with the corporation. Virginia Passenger & Power Co. v. Fisher \[Va.\] 51 S. E. 198, citing Dunphy v.

146 Mass. 485. A complaint by a stockholder on behalf of a corporation is denururable, when it does not allege a request by plainIf of the corporation to use and the refusal of such request. O'Connor v. Virginia Passenger & Power Co., a Misc. 228, 92 N. Y. S. 201; Kavanaugh v. Commonwealth Trust

147 Kavanaugh v. Commonwealth Trust

148. Kavanaugh v. Commonwealth Trust

149 N. Y. S. 205; Kavanaugh v. Commonwealth Trust

148. Kavanaugh v. Commonwealth Trust

149 N.

## 5 Cur. Law.

CORPORATIONS SS 14E.

where they begin it as soon as they obtain the evidence of the fraudulent transaction.\[20\] Stockholders may in many cases b3 estopped from complaining, by express assent or tacit consent, to a corporate act,\[21\] even though it may be an ultra vires transaction; \[22\] but minority stockholders, who neither took part in, nor sanctioned the proceedings, are not bound thereby.\[23\]

_Costs and allowances.\[24\]_--After minority stockholders, suing in behalf of the corporation, have established the corporation's cause of action and the inability or unwillingness of the directors to sue, they are entitled to charge the necessary expenses and counsel fees to the corporation.\[25\]\_

_Reccivers and injunctions.\[20\]_--At the suit of a stockholder to compel a fraudulent trustee to account, a court of equity, if necessary to the preservation of property for the benefit of the parties entitled thereto, will appoint a receiver; \[27\] and where the majority stockholders, as directors, are clearly violating the charter rights of the minority by diverting all the profits to themselves, either directly or indirectly, a court of equity will appoint a receiver although the corporation is solvent.\[28\] But where, in a suit against a corporation and its directors, it was shown that the business was not confined to the execution of contracts which had been fraudulently rescinded by the directors, nor that the directors had any adverse interest in the other business, nor that there was any mismanagement of the corporation in relation thereto, equity could not appoint a receiver.\[29\]\_

_Contribution between stockholders.\[30\]_--The right of a stockholder to compel contribution from his fellow stockholders is not conditioned on the insolvency of the corporation.\[31\] In an action by a stockholder to compel contribution for the payment of a corporate debt, the corporation is not a necessary party.\[32\]\_

(SS 14) _E. Transfer of shares.\[23\]_--Contracts for the purchase and sale of stocks between individuals are governed by the same rules as other contracts,\[34\]\_

Costa Water Co., 104 U. S. 450, 26 Law. Ed. 327.

**20.** Whitney v. Hazzard \[S. D.\] 101 N. W. 174, 91 N. Y. S. 897.

345.

**21.** Lord v. Equitable Life Assur. Soc., 94 N. Y. S. 86. A stockholder suing to prevent the delivery of a lease executed by defendant to another corporation, having sold his right to subscribe for stock, the value of which depended upon the validity of the lease, held estopped to object to its validity. Wormser v. Metropolitan St. R. Co., 98 App. Div. 29, 90 N. Y. S. 714.

**22.** Perkins v. Trinity Reality Co. \[N. J. Eq. 61 A. 167.

**23.** McConnell V. Combination Min. & Milli Co. \[Month.\] 76 P. 194: Id. \[Mont.\] 79 P. 248.

**24.** See 8 C. L. 908.

**25.** Such counsel fees may be fixed by the court as an incident of the litigation, and to that end the court may hear evidence or may refer the matter to a commission to take evidence and report. Louisville Bridge Co. v. Dodd \[Ky.\] 85 S. W. 683.

**26.** See 3 C. L. 908.

**27.** Chandler Mortie. Co. v. Loring, 113 Ill. App. 423.

**28.** On the ground that there is no complete, prompt and effective remedy at law. Columbia Nat. Sand Dredging Co. v. Washed Bar Sand Dredging Co., 136 F. 710.

**29.** Donald v. Manufacturers' Export Co. \[Ala.\] 38 S. 841.

**30.** See 5 C. L. 909.

**31.** Payment of a corporate note by oneare not to be strained for the purpose of bringing them within a criminal statute prohibiting gambling contracts in stock.\[35\] Title to certificates of stock passes by mere delivery, without the necessity of notice to the company,\[36\] and the assignment and delivery of the certificates constitute a symbolical delivery of the shares represented,\[37\] though a certificate is not necessary.\[38\]

\_Mode of transferring shares, registration, new certificates.\[29\]--Shares of stock are personal property, and, subject to statutory provisions, are transferable as such in the manner provided by the by-laws of the company.\[40\] Unless otherwise provided by statute or by-law,\[41\] a transfer may be good between parties without registration on the corporate books;\[42\] the law requiring the keeping of transfer books

14 Okl. 296, 78 P. 170. Antecedent indebted- of certificates, the buyer cannot defeat his mess is a sufficient consideration for the liability for the price, by a revocation prior transfer of stock. H. transferred stock to a tender of the certificates, if made with-B. In compliance with a judgment therefor; in a reasonable time. Mason v. Lievre, 145 B. transferred part of it to her attorney in **Cal.**, 514, 78 P. 1040.

compensation for services and the latter **39**, See 3 C. L. 910.

transfered it in payment of indebtedness, **40**, I Millis' Ann. St. 480. Talcott v. to defendant. Then the judgment was re- versed. Held, that defendant was entitled to rely on the unverversed judgment and valid unless entered on the stock book of was a bona flide purchaser, entitled to hold the stocks. Thaxter v. Thain, 100 App. Div. 485, 91 N. Y. S. 729.

35. A contract to repurchase stock transferred in the purchase of other property, at a future time, at the option of the trans-fereeds, held not to be a gambling contract, under a statute prohibiting option contracts for the sale of stock for future delivery, by statute, the transferee must show, as I Starr & C. Ann. St. 1896, p. 1295, 58, par. 255. Osgood v. Skinner, 211 Ill. 229, 71 N. E. 869. An agreement to pay at least $50 per share for four hundred shares of stock of a corporation, at the expiration of five years from date, is not a gambling contract within the meaning of the criminal code of Illinois, although the vendor reserves the option to retain his proportion of said four hundred shares. Hurd's Rev. St. 1903, p. 640. Kantler v. Beninger, 211 11. S89, 73 N. E. 874.

01. Osgood v. Skinner, 211 Ill. 229, 71 N. E. 869. But more physical delivery of certificates of stock, Indorsed by a blank power of attorney to transfer them, signed by the party to whom they were issued, will not pass title, even if value is paid, when the purchaser knows that the party assuming to dispose of them has not the right to do so. New Jersey Trust & Safe Deposit Co. v. Bodine \[N. J. Eq.\] 60 A. 387.

01. Osgood v. Skinner, 211 Ill. 229, 71 N. E. 869. Evidence held not to show a joint ownership of stock between the party holding the certificates and another who assumed to act as his agent in the purchase.

01. The length of the contract is **111**,

## 5 Cur. Law.

CORPORATIONS SS 14E.

of stock, being intended for the protection and convenience of the corporation and shareholders,\[43\] and to give the company notice of who its stockholders are.\[44\] Ordinarily the officers of the company, in conducting the elections or distributing dividends, will not look behind the books to ascertain who are the real owners of the stock.\[45\] In the absence of equities between the corporation and the stockholder, the purchaser is entitled to registration and transfer.\[46\] When corporate stock is so far subject to the control of the corporation that its formal transfer cannot be perfected without the action of the corporation, garnishment process may be effectually served upon the corporation at its domieille.\[47\]

Courts should not order the issuance of a duplicate certificate, while the original is outstanding, without requiring an indemnity bond, unless it is reasonably certain that the original will not reappear in the hands of a bona fide holder.\[48\]

\_Pledge or mortgage of shares.\[49\]--\_The pledge of stock takes only a special property in it, the general property remaining in the pledgor;\[50\] and the pledgee cannot foreclose and cut off the owner's rights by a mere notice to pay within a certain time.\[51\] The requirement of a record of transfers of stock with the county clerk does not apply to transfers by way of pledge,\[52\] and when a pledgee gives notice of the pledge, the corporation must respect his rights, though the transfer

\\begin{tabular}{l l|l}
**poration.** & **U. S. 3689.** & **White River Sav.** & **is entitled to cast a vote. Civ. Code, SS SS 378, Bank v. Capital Sav. Bank & Trust Co. \[Yt.\] 312. But, in the absence of evidence from the stock and transfer book, the testimony stock is delivered for a valuable consideration of a stockholder as to the number of shares tion acquires, as between himself and the other party, a mere equitable right to have** & **held by him will prevall over the unsupported reclt of the secretary in his minu- the legal right transferred to her on the volle Min. Co., 146 Cal., 19, 79 P. S.89, the corporation and third parties. Boone v.** & **46. The requirement by by-law of the Van Gorder \[Ind.\] 74 N. E. 4. The equitable payment of all indebtedness to the corpora-owner of a stock certificate is not entitled to enjoin a levy and sale of the stock on stock, does not authorize the refusal of the execution by attaching creditors of the registered a transfer reported before** & **isterod owner. Under Burris' Ann. St. 1901, the owner became so indebted. White River Sav. Bank v. Capital Sav. Bank & Trust Co. \[Yt.\] 59 A. 197. Without the production and valid title of an equitable owner, of which the purchaser has notice at the time of the** & **showing of their loss or destruction, the sec-sale. Id. An unregistered transfer of stock,** & **retary is justified in refusing to make an entry of transfer of stock. Under Mill's made for a valuable consideration and without** & **Ann. St. 508. A mere order from the** & **out fraud, vests a 'title superior to the holder of the stock, reciting a sale of the claims of a subsequent attaching creditor** & **same, is not sufficient. Isbell V. Gravilli, of the transferor. Lipsonch's Adm? v. 19 Colo. App. 508, 76 P. 550. Where the by-Condon \[W. Va.\] 49 S. E. 592. Where the purchaser of stock, under order of court,** & **stock to be made on the books the corporation itself for transfer, but was met with a refusal and a denial of his rights as a** & **transfer, such refusal is a conversion of stockholder, he was entitled to attend a stockholder' meeting, although his stock** & **Co. \[Neb.\] 103 N. W. 685.** \\ \\end{tabular}

**was not transferred on the books, as provided by law. Comp. Laws & 1052. Noller v. Wright \[Mich.\] 101 N. W. 553.** & **43. Section 21, ch. 53, Code of 1899, so interpreted. Lipsonch's Adm? v. Condon \[W. Va.\] 49 S. E. 392.** & **44. Herrick v. Humphrey Hardware Co. \[Neb.\] 103 N. W. 685. Any one having actual notice of the transaction stands in no better relation to it than one would, had it been completed of record. White River Sav. Bank v. Capital Sav. Bank & Trust Co. \[Yt.\] 59 A. 197.** & **45. Herrick v. Humphrey Hardware Co. \[Neb.\] 103 N. W. 685. The "stock and transfer book," required by law to be kept, is the erlterion for determining the amount of stock held by any person, and for which he** & **5 Cur. L--51.** & **50.** & **51.** \\ \\end{tabular}

\*\*of stock, being intended for the protection and convenience of the corporation and shareholders,\[43\] and to give the company notice of who its stockholders are.\[44\] Ordinarily the officers of the company, in conducting the elections or distributing dividends, will not look behind the books to ascertain who are the real owners of the stock.\[45\] In the absence of equities between the corporation and the stockholder, the purchaser is entitledwas not registered on its books.\[53\] In an action to foreclose a lien on stock, the corporation must be made a party.\[54\]

SS 15. \_Management of corporations. A. Control of corporation by the stockholders or members. Power of the majority.\[55\]--The stockholders do not own the corporate property; the corporation owns it, but, in a broad sense, the stockholders own the corporation,\[54\] and they are, therefore, the equitable owners of the corporate property,\[57\] or the actual and beneficial owners,\[58\] being, in a sense, partners, and holding a joint interest in the property of the company.\[59\]

Corporations are governed by the republican principle that the whole are bound by the acts of the majority.\[60\] The minority stockholders have no right, vested or otherwise, which is infringed by the action of the majority in amending the corporate by-laws in the manner provided therefor.\[61\]

(SS 15) B. Dealings between a corporation and its stockholders,\[62\]--A mere stockholder, unlike a director, is under no duty to serve his corporation, and he may deal with it or with its debts or property as any stranger.\[63\] Stockholders or directors may lawfully loan money to the corporation, and they may be lawfully preferred, by the transfer of enough of the corporate property to secure or pay them.\[64\]

A corporation, as an artificial entity, owes no fiduciary obligations to its shareholders, except to protect their legal title to shares owned by them by giving proper attention to transfers and reissues of shares.\[15\] And a corporation is not precluded from recovering for a fraud on it, because the party committing the fraud is a stockholder.\[66\] If a stockholder gives his note to the corporation in pay-117.

son v. Bank of Pine Bluff \[Ark.\] 87 S. W. shareholders, should have the power, at any time, by a contract among themselves, for their advantage, to fix the status of the corporation for years to come. A provision in v. Capital Sav. Bank & Trust Co. \[Vt.\] 59

A. 197.

St. Held, that the corporation was sufficiently made a party by the complaint. Hudson v. Bank of Pine Bluff \[Ark.\] 87 S. W. shareholders, should have the power, at any time, by a contract among themselves, for their advantage, to fix the status of the corporation for years to come. A provision in a contract by which the holders of the corporation infringes in a corporation agree to elect certain stockholders as officers, for a certain period at a specified salary, held contrary to public policy and vold. Bensinger v. Kantzler, 112 Ill. App. 293.

55. See 3 C. L. 912. See ante, $ 144, rights of minority.

01. Sweetser v. Chandler, 98 Me. 145, 56 A. 584.

01. First Nat. Bank v. Guardian Trust Co., 187 Mo. 494, 86 S. W. 109.

01. CyCommon v. International Silver Co. \[N. J. Eq. 159 A. 231. The business of a corporation is conducted primarily in the interest of the stockholders. West v. Topeka Sav. Bank, 66 Kan. 524, 72 P. 252.

01. Hubbard v. International Mercantile Agency \[N. J. Eq. 159 A. 24.

01. Kantzler v. Deninger, 211 Ill. 589, 73 N. E. 874. But the legislature may provide for cumulative voting, thereby securing minority representation on the board of directors of a private corporation, without interfering with any vested right of the majority to elect the members of the board.

Renn v. United States Cement Co. \[Ind. App.\] 73 N. E. 269, citing Maynard v. Looker, 111 Mich. 498, 56 L. R. A. 947; Mower v. Staples, 32 Minn. 284. It is the public policy of the state that a majority of the shareholders should, through their directors, from year to year, control the management and policy of the corporation; and not that such majority, or even all the 5 Cur. Law. **CORPORATIONS SS 15C.**

ment of his stock, it is a debt due the corporation, which, until paid, is an asset.67 It is not within the duty or power of a corporation to prevent a shareholder from selling his stock for any price he can obtain, and any rights of action aceruing to the.purchaser from representations made in so doing in no manner redound to the corporation.68

(SS 15) \_C. By-laws.69--By-laws are simply the rules of corporate government.70 They are not in the nature of legislative enactments, so far as third parties are concerned, and are not usually intended for strangers, who do not subject themselves to their influence; 71 but they become upon adoption, written into the charter, and all persons who deal with the corporation are bound to take notice of the powers and duties of its officers as set forth therein,72 and one who becomes a member of an association becomes chargeable with knowledge of the provisions of its charter and by-laws, and is bound by them.73 While by-laws aid in the orderly transaction of corporate business, they also serve sometimes to protect the corporation itself, or minority members against ill-advised or illegal acts of the majority.74

By-laws may be adopted without the use of the corporate seal and without any entry in writing, as their existence may be established by custom or acquiescence in a course of conduct by those authorized to enact them and those dealing with it; if informally adopted, they may be subsequently ratified; 75 and they may be modified, limited or abrogated by the corporation.76 They may be modified by unanimous consent of the stockholders to a regular course of action inconsistent therewith.77

Footnote 77: Where the act of incorporation was silent as to the number of directors, but a by-law provided for five, and the corporation was afterward managed for a series of years by a board of three directors, it was held that the by-law had been changed by unanimous consent. Butc v. Troy Aqueduct Mfg. Co. v. Downs, 126 Iowa, 80, 101 N. W. 78, Stein v. Marks, 44 Misc. 140, 89 N. Y. 821. The state and Federal constitutions are "laws," within the meaning of a statue giving mutual benefit associations power to make regulations for their government not contrary to the laws of the United States or the state. Subd. $ 1, c. 164, How. Ann. St. By-laws cannot be adopted impairing the obligation of contracts or depriving members of rights without due process of law. Kern v. Arbiter Unterstueungs Leuohheim v. Somerset Bldg. & Loan Assr, 26 Pa. Super. Ct. 325.

Footnote 78: A. Troy A. Troy A.

804.

CORPORATIONS SS 15D.

5 Cur. Law.

ship corporation must be reasonable and adapted to the purposes of the corporation.80

When the power to make by-laws is vested in the stockholders or members an l they have adopted them, they cannot be waived by the directors or other officers,81 nor can a by-law be overridden or abrogated by a simple resolution, in favor of some object which is forbidden by the by-law.82 But the stockholders may permit the directors or other officers to act in disregard of a by-law;83 or they may ratify action taken in disregard of a by-law, and in such case there is a waiver of the by-law by the stockholders.84

Courts will not interfere with the internal government of either voluntary associations or membership corporations, where the action complained of has been fairly taken, in conformity with the reasonable by-laws and regulations of the association.85 But no disciplinary action will be valid, unless taken as prescribed by their by-laws and the statutes governing their procedure.86

(SS 15) \_D. Corporate meetings and elections. Notice.87--\_Where due notice of a meeting was given the stockholders of a corporation, an individual stockholder is bound by the action of the majority, although he was not represented at the meeting.88 If no form of notice of special meeting is prescribed, any form or manner of written notice, sufficient to inform the directors of the call and the exact time and place of the meeting is sufficient;89 and, unless required by statute or by-law, such notice need not state the object or purpose of the meeting.89

Footnote 89: See SS 15.

Footnote 90: See SS 15.

Footnote 91: Lord v. Equitable Life Assur. Soc., 34 N. Y. S. 65.

Footnote 92: Stein v. Marks, 44 Misc. 140, 89 N. Y. S. 921.

## 5 Cur. Law.

CORPORATIONS SS 15F.

president of the corporation, are competent evidence, where it does not appear that they were ever transcribed in a record book." But minutes of a stockholders' meeting, on separate sheets of paper, pinned to the leaves of a record book, are not sufficient evidence of the proceedings."

_Elections._"--Where there is no requirement as to a quorum, the stockholders present at a meeting regularly called and held can transact business, and, although less than a majority, may hold a valid election of directors."

(SS 15) _E. The right to vote._"--In the election of directors, unless the charter otherwise provides, the share of stock is the voting unit." Primarily the voting power of corporate stock is the personal privilege of the stockholder, not separable from ownership of the stock, except as sanctioned by legislation." The charter of a business corporation may regulate the voting capacity of its stockholders; ${}^{\*}$ and the right to vote may be qualified by statute." Stockholders do not hold a fiduciary relation to each other," but each stockholder represents himself and his own interests only," and their right to vote is in no way affected by their having difference or adverse interests. But under a statute prohibiting a member of a corporate board from voting on a question in which he is personally interested otherwise than as a stockholder, the acts of three of the five members of such a board, in which one was personally interested, are void." In New Jersey, the stock of a corporation belonging to the corporation cannot be voted on," and a person owning stock can sue to prevent such illegal voting of stock." A minority stockholder, in case of doubt as to the right to vote the majority stock, is entitled to an injunction to restrain illegal voting of such stock or the holding of an election until the right to vote the majority stock is settled."

(SS 15) _F. Appointment, election and tenure of officers._"--Failure to elect officers does not terminate the terms of the existing officers of a corporation." A

93. Chott v. Tivoli Amusement Co., 114 \[\] than a certain number, that provision can- not be evaded by holding and voting stock through another person. Baslett v. Four-Mill. Co. \[Mont.\] 17 P. 194.

01. See 3 C. L. 913.

01. Gilchrist v. Collopy, 26 Ky. L. R. 1003, 82 S. W. 1018.

01. See 3 C. L. 913.

01. Lord v. Equitable Life Assur. Soc., 94 N. Y. S. 65.

01. Since 1841 the statutes of New Jersey have authorized voting by proxy, under certain conditions. Warren v. Pim, 66 N. J. Eq. 853, 59 A. 173. The right to vote corporate stock is prima facie in the person who has the legal title, as shown by the records of the corporation. Elbin v. Riggs, 110 Ill. App. 37. The right of a stockholder to participate in the election of the board of directors is an attribute to his shares of stock, which has been "defined as a right which his owner has in the management, profits and ultimate assets of the corporation." Lord v. Equitable Life Assur. Soc., 94 N. Y. S. 65, citing Lamkin v. Palmer, 24 App. Div. 255, 260, aff. 164 N. Y. 201. The right of a stockholder to vote upon his holdings of stock is a property right--one of the essential rights of ownership." Lord v. Equitable Life Assur. Soc., 94 N. Y. S. 65, citing Sullivan v. Parkes, 69 App. Div. 221, 229, 74 N. Y. S. 787.

**1.** Where such capacity is determined by the number of shares held, coupled with a provision that no individual shall hold more stockholder who was elected director for one year and until his successor was elected, but who never accepted the office and was not re-elected, although he was present at a meeting many years afterward, was never in fact a director.\[11\]

(SS 15) _G. Salary or other compensation of officers.\[12\]_--Officers of a corporation are not, as of right, entitled to salaries,\[13\] nor, however valuable their services may be, can they appropriate corporate funds for such services, unless authorized by the corporation;\[14\] but where the treasurer of a corporation, at the expiration of his term of office, informed the directors that he could not again serve for the same compensation, and he was re-elected without any determination as to his salary, he could recover what his services were worth.\[15\]

Neither the president nor vice-president are prima facie entitled to collect for expenses in attending stockholders meetings or in visiting the directors,\[16\] nor can the president of a corporation charge the company with the amount he paid on a note, endorsed by him in the name of the corporation without authority.\[17\] But where the officers of a corporation manufacturing spokes and hubs were, for a long time and with the knowledge of everyone interested, in the habit of using culls for fuel, it would be regarded as additional compensation to the salaries received by the officers.\[18\] Where there is an express contract of employment before the services are rendered, an officer is entitled to compensation,\[19\] as in case of an officer employed to solicit business, outside of his duties as officer,\[20\] or of an officer who is an attorney and who renders professional services at the request of the board of directors.\[21\]

10. Youree v. Home Town Mut. Ins. Co., !ses as an officer, when he is a stockholder !80 Mo. 153, 79 S. W. 175.

01. Bramblet v. Commonwealth Land & Lumber Co. !\[Ky.\] 88 S. W. 599. Agreement !s to election of directors of a bridge company, by two municipalities holding the entire stock. Gill-hrist v. Colloy, 26 Ky. L. R. !1003, 82 S. W. 1018.

01. See 3 C. L. 914.

01. McConnell v. Combination Min. & Milli Co. !\[Month.\] 76 P. 194; Id. !\[Month.\] 79 P. 248; Busell Trimmer Co. v. Coburn !\[Mass.\] !14 N. E. 834. When a corporation sells out its entire business, it is not liable for the president's salary as general manager, in the absence of any showing that it agreed to continue its business during his term or to retain him as manager for that time. Busell Trimmer Co. v. Coburn !\[Mass.\] 74 N. E. 834. But a corporation which displays its manager before the expiration of the time for which he was employed, without grounds of complaint, of the most serious character, will be liable to such manager for his full salary. Under Civ. Code, art. 2749. Berlin v. Cuschas !\[La.\] 38 S. E. 875.

So. 539. In Virginia, under Code 1887, & 1119, no president or director of a corporation can receive any compensation unless allowed by the stockholders. Triplet v. Fauver, 103 Va. 123, 48 S. E. 875. A contract to pay a director or officer of a corporation will not be implied as against the expiration; a manager held over after his term and, on notification that his position as manager had terminated, declined to be discharged. Held, that there was no implied contract to hire him for another year. Alston Mfg. Co. v. Suawaw, 105 III. App. 338. A president cannot use upon an implied contract to force a claim for servo, !ses as an officer, when he is a stockholder or director; he must show an express contract for compensation as a basis for such a claim. Mere interviews with individual directors on the subject of compensation, and calling attention to his claim of compensation at a directors' meeting, without any action being taken, do not lay a sufficent foundation for an action for such compensation. Lowe v. Ring, 123 Wis. 370, 101 N. W. 698. Where the largest stockholder in a corporation performed services for it and wrote many letters, disclaiming any intention of charging therefor, he could not afterward recover compensation for such services, though beneficial to the corpora. Sloy v. Missouri Land & Live Stock Co., 187 Mo. 649, 86 S. W. 150.

14. Von Armin v. American Tubeworks !\[Mass.\] 74 N. E. 850.

01. Stacy v. Chorkee Foundry & Mach. Works !\[S. C.\] 49 S. E. 223.

01. McConnell v. Combination Min. & Milli Co. !\[Month.\] 79 P. 248.

01. Triplet v. Fauver, 103 Va. 123, 48 S. E. 875.

01. Jorndt v. Reuter Hub & 'Spoke Co. !\[Mo. App.\] 87 S. W. 29.

01. Brophy v. American Brewing Co. !\[Pa.\] 61 A. 123.

01. A trustee, employed by the president, who had authority to employ assistance, was credited with commissions by the responsible officers of the corporation. Held, that the corporation was setoped from re-violating its liability to pay for the servocles. Hooke v. Flannier Co., 99 App. DIV. 186, 90 N. Y. S. 1012.

01. Taussey v 5 Cur. Law. CORPORATIONS SS 15.1. 80?

The board of directors has not the inherent power to vote a salary to any director. The power to do so must emanate from the stockholders, from statute or from by-laws legally adopted; \[22\] nor can the directors, even under a by-law, vote a salary to one of their number, when the vote of such director is necessary to make up a quorum.\[23\]

(SS 15) $H$. \_How directors must act; directors' meetings, records and stock books.\[24\]--The board of directors occupies a dual relation in reference to the stockholder.\[25\] In the management of corporate affairs the board of directors must act together as a board; they cannot act separately,\[26\] or by the assent of the majority given singly, when not assembled as a board.\[27\] The acts of the first board of directors named in the articles of incorporation are as valid as those of the directors subsequently elected from among the stockholders.\[28\]

_Evidence.\[29\]--The minutes of a meeting of a board of directors of a corporation are not conclusive evidence of the terms of the contract with its bookkeeper, as to employment, when he had no knowledge thereof.\[30\]_

_Penalties for refusal of inspection of stock book.\[31\]--Under the stock corporation law of New York the penalty imposed on the corporation and officer or agent for a refusal to allow the stock book to be inspected by a stockholder, is not cumulative, and a stockholder can recover only a single penalty in each case.\[32\]_

(SS 15) $I$. _Powers of the directors or trustees.\[33\]--The existence of directors is an essential part of the artificial creature known as a trading corporation.\[34\]_

22. A resolution passed by four directors

board, the same as if passed at a duly called giving three of their own number salaries

meeting of the board, held not to be authorized by the General Corporation Act (Laws only passed by five directors, including the

1898, p. 408, c. 172), SS 8, subd. 7. Audernied four first mentioned, held void under Civ.

V. East Coast Mill. Co. \[N. J. Eq.1 59 A. 577. Code, SS 2970-2976. McConnell V. Combina.

The acknowledgement of the justness of a tion Min. & Mill. Co. \[Mcont.\] 76 P. 194: Id.

claim against a corporation by three directors, in a suit by a receiver

for an accounting-by the directors, they are

paid, without any showing that they con-properly allowed credit for salaries due un-

stituted a majority, or that they acted

der an agreement with the corporation, and

the fact that the salaries voted to them

does not fix an obligation upon the corporation. Farrell v. Gold Flint Min. Co. \[Mont.\]

covering such compensation as their services

were reasonably worth. Miller v. Doyle, 211

27. Cann v. Reactor, etc., of Church of Re-

Pa. 59, 60 A. 496. A director of a corporation, who rendered services in winding up

met made by one or two of the trustees of

its affairs, after its charter had expired,

was properly allowed compensation equal

to the salary he had received as an officer,

while the corporation was a going concern.

Lindemann v. Rusk \[Wis.\] 104 N. W. 119.

29. McConnell v. Combination Min. &

01. Co. \[Mont.\] 79 P. 248.

01. See 3 C. L. 914.

01. It is both agent and adversary. It

represents and it antagonizes. It protects

and it assails. West v. Topeka Sav. Bank,

66 Kan. 524, 72 P. 522. In the conduct of the corporate enterprise, in choosing methods, in fixing policies and administering affairs, the board must be held to act on behalf of the stockholder and to represent him; but in a suit in the name of the corporation against a stockholder to compel

payment of his subscription, the corporation and the stockholder are antagonists, and the board represents the corporation, Id.

26. A provision in a certificate of incorporation that any resolution In writing,

signed by all the members of the board of directors, should constitute action by the affairs of a corporation are within the exclusive control of its directors,\[85\] who are chosen by and represent the stockholders, and derive their power wholly from them,\[36\] though they need not themselves be stockholders unless so required by by-law or charter.\[37\] They are not vested with the title to the property of the corporation, but are its agents, upon whom the duties of care and management devolve,\[38\] and a majority of the board of directors has power to bind the corporation in the transaction of its ordinary business.\[39\] But a statute declaring that the corporate powers shall be exercised by a board of trustees does not exclusively lodge the powers of the corporation in such a board, so as to prevent ratification by the stockholders of a contract made on behalf of the corporation.\[40\] It is the duty of the directors to obtain money to pay current expenses, either by borrowing or by levying assessments upon the stockholders.\[41\] Courts have no power to review the findings of the board of directors of a corporation if within its charter rights.\[42\]

( 15) \_J. Powers of other officers and agents than the directors or trustees.\[42\]--While a corporation is an entity which can hold property and be sued, yet it can act and speak only through its officers\[44\] who are trustees for the benefit of its stockholders, to whom has been committed the direction of the corporate affairs.\[45\] The act of the officers or agents of a corporation, unless shown to pertain 5 Cur. Law. **CORPORATIONS SS 15J.**

to their official duty or to be within the scope of their employment, is not binding upon the corporation, \[44\] but, while acting within the ordinary scope of their duties, in the absence of specific limitations brought to the knowledge of those who deal with them, or of which such persons are bound to take notice, they can bind the corporation to third parties. \[47\] Persons dealing with a corporation or with persons assuming to represent it, are chargeable with notice of the purpose of its creation and its powers \[48\] and of the powers and duties of its officers as defined in its by-laws. \[49\]

$\\cdot$ An agent is one who does business for the corporation upon its authority and for its account. \[50\] The appointment of an agent of a corporation is not required to be by resolution or formal vote of the directors or trustees, nor is it necessary that the power conferred upon him shall be so delegated. He may be appointed informally without vote or resolution, and clothed with authority in the same manner, \[51\] and the stockholders of a corporation, by permitting a person to act for the corporation in collecting debts, settling liabilities, and distr.buting proceeds, confer upon such, by acquiescence, the powers of a liquidating trustee. \[52\]

\_The president. \[53\]--\_The president, as such, has no power to contract for the corporation, \[54\] to execute a negotiable note which will bind the corporation, \[55\] to consent to the appointment of a receiver and to waive legal notices and delays, \[54\] to make a gift of the corporate property, \[57\] to sell machinery, which is a part of the manufacturing plant of the corporation; \[58\] and, unless his powers are enlarged by the charter or by-laws, his duties are confined to presiding and voting as a director. \[59\] His power is limited to that given by the by-laws, \[60\] or by express authority. \[61\] His authority may, in some cases, be presumed, \[62\] or implied from the course of dealing. \[63\]

defendant has a right to defend by showing that the persons named were not off-cerns, or were not authorised to conduct the transactions. Cherckee Mills v. Gate City Cotton Mills \[Ga.\] 50 S. E. 82. The pastor of a church is not an officer of the corporation and he cannot bind it by his acts. Al-len v. North Des Moines M. E. Church \[Iowa\] 102 N. W. 808. \[46\]. Third Nat. Bank v. Laboringman's Mercantile & Mfg. Co. \[W. Va.\] 49 S. E. 544. Where the president haT apparent, if not actual, authority to execute the note of the corporation, the latter is liable thereon to a bona fide Inderer without notice, notwithstanding the proceeds were appropriated by the president and the corporation received no benefit therefrom. Schreyer v. Saceracy. Harris v. Vienna Ice Cream Co.. 91 N. Y. S. 817. \[48\]. More especially is this case where the party dealing with the corporation is himself a member. Louchheim v. Somers Bltig. & Loan Ass'n, 25 Pa. Super. Ct. 325. \[50\]. Fahry v. Milwaukee & C. Brewerles, 113 Ill. App. 525, citing Equitable Produce & Stock Exch. v. Kayes, 67 Ill. App. 460; Fairbank v. B. R. Co. 54 Fed. 470; F. R. Co. 54 Fed. 471; F. R. Co. v. McDermid, 91 Ill. 270. A location of a railroad can be made only by act of the corporation through its board of directors, but acts done by agents, under the board's orders, are evidence of intent on the part of the board of directors to claim and hold such location. Chesapeake & O. R. Co. v. Deepwater R. Co. \[W. Va.\] 50 S. E. 890. \[51\]. Cann v. Reector, Wardens, etc., of lease to the corporation does not authorize The vice-president."--When the president cannot act, on account of absence, the vice-president can act in his stead, \[65\] and can bind the corporation in the transaction of business " and in the employment of counsel in pending, or prospective litigation."

The secretary.--The secretary of a mining company, who is not a member of the board of directors, has no implied authority to bind the company beyond his authority as secretary. \[65\] Sureties on the bond of the secretary of a corporation assume their obligation with reference to the articles of association and by-laws, and cannot question the nature of the duties of their principal. \[69\]

The treasurer. \[70\] The treasurer of a corporation, as such, has no powers of general management. \[71\] Ordinarily he is simply the custodian of the corporate funds and the disbursing officer. \[72\] Under a statute making every unqualified indorser a warrantor of the validity of a note and of the capacity of all prior parties to contract, the indorser of a note executed by the treasurer of a corporation cannot defend on the ground of the treasurer's lack of authority to execute the note. \[73\]

him to sign such petitions, with the knowl-one omitting the privilege of purchase. Lester Agricultural Chemical Works v. Selby N. J. Eq. 159 A. 247.

62. The public, in dealing with the president of a corporation, may, in the absence of notice to the contrary, presume that he has the same authority to do such acts as are customarily done by him, or by the presidents of similar corporations. But pastors of churches or presidents of church trustees have no implied power to control the building of church edifices or dictate their cost. Such duty must be performed by the governing body itself. Cann v. Rector, Wardens, etc. of Church of the Redemer (Mo. App.) 85 S. W. 904. The general rule is that a corporation acts through its president and an act pertaining to the business of the corporation, not clearly foreign to the general power of the president, done through him, will, in the absence of proof to the contrary, be presumed to have been authorized by the corporate body. Cozzens & B. Typesetting Co. v. Western Ranch & Irr. Co., 112 Ill. App. 309. The president being the principal executive officer of a corporation and charged with the management and operations of the company, his acts in purchasing supplies, empioying men, etc., are clearly within the scope and extent of his authority. Albro Min. & Mill. Co. v. Chinn \[Colo. App.\] 77 P. 1087.

01. Berlin v. Cusackas \[La\] 38 S0. 539. While the board of directors is the governing body of all private corporations, yet the president and other officers are those who are usually brought into contact with third parties in the conduct of business. Russell v. Washington Sav. Bank, 23 App. D. C. 398. In the absence of by-laws, it will not be assumed that the president has authority to surrender a lease of lands and accept another omitting the privilege of purchase at the close of the term. Lester Agricultural Chemical Works v. Selby \[N. J. Eq.\] 59 A. 247. The signature of the president of a corporation, in behalf of the corporation, to a petition for repaving, was held valid, where it had been customary for him to surrender the lease and accept a new edge of the board of directors. Eddy v.

5 Cur. Law.CORPORATIONS SS 15K.

_Business managers, salesmen, etc._\[144\]--The president and general manager of a corporation has certain implied powers generally recognized by the courts.\[19\] A manager of a corporation cannot engage employes for a long future period without express authority,\[78\] but where the officer making the contract is the general manager and makes it in the ordinary course of business, it will be presumed he is acting within the scope of his powers,\[77\] and a stranger dealing with him in good faith, on the faith of his apparent powers and without notice of facts showing that his act was unauthorized, may hold the corporation liable.\[78\]

_Evidence of authority.\[79\]--Agency for a corporation may be proved as for a natural person.\[80\]_ The presumption that a contract, bearing the signature of the president and secretary, as well as the corporate seal, is an obligation of the corporation may be overcome by the introduction of its charter and by-laws in evidence, to show want of authority on the part of its officers, and by parol evidence showing that the contract had never been acted on or ratified.\[81\]\_ The fact that a contract was made by an agent for the benefit of a corporation may be shown by parol, though the contract has no such suggestion on its face.\[82\]

(SS 15) _K. Apparent authority of officers and agents and estoppel of the corporation and of others. Implied permission to act.\[83\]--Authority conferred by a corporation may be implied as in other cases.\[84\]_ Where an officer or agent is entrusted with the general management of the business or a particular part of the business, he has apparent or implied authority to manage the same in the usual way and for such purpose to bind the corporation by his acts and contracts on its behalf.\[85\]\_ An officer has no implied authority to act for his personal benefit.\[86\]\_ & Farmers' Cotton Oil Co. \[Tex. Civ. App.\] 86 S. W. 1042. Evidence held insufficient to show that plaintiff was employed in behalf of defendant. Negotiations resulting in plaintiff's services as an architect were ha1 with the president and two directors, but were wholly unauthorized by the corporation defendant. Maynicke V. Central Really Bond & Trust Co., 93 N. Y. S. 702. The delivery of notes and the mortgage security, by a mortgage corporation, to the assignee thereof, held to tend to prove the authority of the treasurer to make the assignement, and to be a ratification of his action, if it was done without previous authority. Matthews v. Nefsy \[Wyo. 81 P. 305. The mere crediting of commissions on continuing business, by the bookkeeper of a corporation, after the employ had several his connection with the corpora, without the knowledge of the officers of the corporation that such credit was made, Imposed no liability upon the corporation. Hooke v. Financier Co., 99 App. 18, 90 N. Y. S. 1012.

_Evidence of authority.\[79\]_ A. question for the jury.\[87\]\_ The presumption that a contract, bearing the signature of the president and secretary, as well as the corporate seal, is an obligation of the corporation may be overcome by the introduction of its charter and by-laws in evidence, to show want of authority on the part of its officers, and by parol evidence showing that the contract had never been acted on or ratified.\[81\]\_ The fact that a contract was made by an agent for the benefit of a corporation may be shown by parol, though the contract has no such suggestion on its face.\[82\]\_ (SS 15) _K. Apparent authority of officers and agents and estoppel of the corporation and of others. Implied permission to act.\[83\]_ A. Authority conferred by a corporation may be implied as in other cases.\[84\]\_ Where an officer or agent is entrusted with the general management of the business or a particular part of the business, he has apparent or implied authority to manage the same in the usual way and for such purpose to bind the corporation by his acts and contracts on its behalf.\[85\]\_ An officer has no implied authority to act for his personal benefit.\[86\]\_ & Farmers' Cotton Oil Co. \[Tex. Civ. App.\] 86 S. W. 1042. Evidence held insufficient to show that plaintiff was employed in behalf of defendant. Negotiations resulting in plaintiff's services as an architect were ha1 with the president and two directors, but were wholly unauthorized by the corporation defendant. Maynicke V. Central Really Bond & Trust Co., 93 N. Y. S. 702. The delivery of notes and the mortgage security, by a mortgage corporation, to the assignee thereof, held to tend to prove the authority of the treasurer to make the assignement, and to be a ratification of his action, if it was done without previous authority. Matthews v. Nefsy \[Wyo. 81 P. 305. The mere crediting of commissions on continuing business, by the bookkeeper of a corporation, after the employ had several his connection with the corpora, without the knowledge of the officers of the corporation that such credit was made, Imposed no liability upon the corporation. Hooke v. Financier Co., 99 App. 18, 90 N. Y. S. 1012.

_S1._ Quackenboss v. Globe & R. F. Ins. Co., 94 N. Y. S. 728.

_S2._ So held where an oil lease was made by the treasurer of plaintiff in his own name. Escondido Oil & Development Co. v. Glaser, 144 Cal. 494, 77 P. 1040.

_S8._ See S 0. C. L. 917. For matters not affected by the corporate character of principal, see Agency, 5 C. L. 64.

_S4._ Brown v. British American Morris. & Sav. Bank Co. v. Miller, 24 Ohio Circ. H

## 812Corporations & 15L

5 Cur. Law.

_Acceptance of benefits. \[87\]--Having accepted the money on a contract for the sale of stock, a corporation cannot, while retain.ng the same, be heard to deny the authority of its officers to make the contract, \[88\] or to defend against an action thereon, on the ground that the provisions of its charter prescribing the form of the contract were not complied with, by the officer acting for the corporation in the execution of the contract. \[89\]_

_Acquisecence in similar acts. \[90\]--The authority of an officer of a corporation to do a particular act may be inferred from proof of his habitual doing of such acts, with the acquiescence of the directors. \[91\] Corporations may confer larger powers than usual upon their officers or agents, by habitually permitting them to exercise them and thus holding them out to the public as possessing them, \[92\] and the authority of the subordinate agents of a corporation often depends upon the course of dealing which the company or its directors have sanctioned. \[93\]_

(SS 15) \_L. Ratification of unauthorized acts. \[94\]--A corporation, like a natural person, may ratify, affirm, and validate any contract made or act done in its behalf, which it is capable of making or doing in the first instance, \[95\] and ratifica-

edge of his lack of authority, for the sup-

ply of water at rates below those usually

88. Wisconsin Lumber Co. v. Greene & charged. Held to be within the apparent

W. Tel. Co. \[IowaJ 101 N. W. 712.

authority of the superintendent and binding on the company, Milladeville Water

89. A note, signed by the secretary alone,

Co. v. Edwards, 121 Ga. 555, 49 S. E. 621.

The making of a contract, in behalf of a

corporation chartered for the purpose of

manufacturing lumber, for the hauling of

hould of disregarding thas charter provisions to be sawn into lumber, is within the

apparent scope of the authority of its

sugmentment or other managing official;

and so is his notice to the plaintiffs that

the company would no longer live up to the

agreement, and they had a right to treat

544. Peoria Star Co. v. Cutright, 115 Ill.

the declaration as a breach of the contract.

Minnesota Lumber Co. v. Hobbs \[Ga.\] 49 S. E. 783. The secretary and treasure of a

hotel corporation, who signed a lease of the

premises, was charged with putting the

lessee in possession, superintended repairs,

collected rent and negotiated for a surren-

v. Minneapolis, etc., R. Co. 123 Wis. 389, 101

der of the lease, had authority to effect such

N. W. 687. Where one who was virtually

surrender. Commercial Hotel Co. v. Brill,

the owner of an amusement corporation,

123 Wis. 638, 101 N. W. 1101. By confer-

ring upon an officer the title "General man-

as his own without interference, conduct-

ager," a railroad corporation holds him out

ing all its affairs, year after year, held that

to the world as authorized to make a contract to repair a sleeping car used on its

lease involved in this case. Clement v.

line. Khaleghi & G. R. Co. v. Pulman Co.

Young-Mechas Amusement Co. \[N. J. Eq.J

\[Ga.\] 50 S. E. 1088. The use of the funds of

60 A. 419.

a corporation by its treasuretor to pay the

notes of a third person is not beyond the

324.

apparent scope of his authority, so as to

warrant the recovery of the money, where

it was received in good faith and without

90.

01. Kurbin V. Vushington Match Co., 87

notice of want of authority. Manhattan

Web Co. v. Aquidneck Nat. Bank, 133 F. 76.

Shea Amusement Co. \[N. J. Eq.J 60 A. 419;

Evidence held insufficient to establish

ether the appointment of the treasuretor of

Nat. Bank v. Laboringman's Mercantile &

the company as its agent or his authority

to purchase goods on its credit. Albro

Mim. & Mill Co. v. Chinn \[Colo. App.\] 77 P.

1097.

0001. There is no presumption of authority

0001.

0001. Third Nat. Bank v. Laboringman's

the president of a corporation. Smith v.

Pacific Vinegar & Piekle Works, 145 Cal.

352, 78 P. 550. Transactions of the presl-

test of a bank in the purchase of railroad

stocks held not to have been ratified by the

bank. Dundon v. McDonald, 146 Cal. 585,

80 P. 1034.

## 5 Cur. Law.

CORPORATIONS SS 15M.

tion by the board of directors, express or implied, gives to the officers of a corporation all the authority, for an act in its behalf, that could have been given by previous express authorization." Acceptance of benefits by the corporation will operate as a ratification," but ratification of an unauthorized act on behalf of the corporation must be with full knowledge of the act and intention to adopt it."

Ratification may be presumed from the silence of the directors or their failure to act."

If the officers or trustees do any unauthorized act, or incur indebtedness, the stockholders may subsequently ratify the acts and validate the original unauthorized transaction." Even if the majority of the stockholders consent to ratify an illegal use of its funds, their assent will not bind a protesting minority, or prevent them from obtaining appropriate equitable relief."

(SS 15) _M. Notice to or knowledge of officers or agents as notice to or knowledge of corporation._"Notice to an officer or agent of a corporation in the course of his employment and with respect to a matter within his apparent authority is notice to the corporation; " but a corporation, taking an assignment of a mortgage,

96. Where the president and secretary -- vectors, did not effect a ratification of the purchased bank stock and certificates of deposit in part payment of a claim for a App. Div., 471, 92 N. Y. S. 843, Stockholm-deposit in an insolvent bank, and the alters cannot be held to have ratified, by treaty silence, official misappropriation of action treated the stock as assets and collected the certificates of deposit, the trans-Von Arnim v. American Tabeworks \[Mass.\] action was ratified. Fidelity Ins. Co. v. German Sav. Bank \[Iowa\] 103 N. W. 958.

01. More silence on the part of its directors after notification. Clement v. Young-McShea Amusement Co. (N. Y. Eg.)

transactions with the president, from which the bank received no benefit, being without consideration, cannot operate as a ratification. People v. Mercantile Co-op. Bank,

93 N. Y. S. 521.

97. Smith V. Pacific Vinegar & Pickle

01. This year, the world of directors, with the world ofis not bound by the knowledge of its director, who procured the assignment, of a fraudulent prior assignment, where such knowledge was not acquired while he was acting for the corporation in procuring the assignment.8 Where a corporation had but three stockholders, who were also its officers, knowledge by them affected the company with knowledge; 9 but where some of the directors conveyed land to a corporation, their knowledge, affecting the bona fides of the transaction, did not charge the corporation, the other directors being ignorant of such facts.10

Footnote 10: https://www.springer.com/00010000

(SS 15) _N. Admissions, declarations, and representations of officers and agents._--Admissions within the scope of authority and concerning matters entrusted to an officer or agent are binding on the corporation.6

Footnote 11: https://www.springer.com/0001000

False and fraudulent representations made by the president of a corporation as to its solvency, in the presence of the plaintiff who knew their falsity, were held to be a good defense to an action on a contract of suretyship entered into on the strength of such representations.10

(SS 15) \_O. Delegation of authority by directors.\_11

(SS 15) \_P. Personal liability of officers and agents.\_12--One concealing the fact that he is contracting for a corporation is bound personally.13 Where an officer of a corporation enters into a contract which he is authorized to make, and which purports to be the contract of the corporation, he assumes n liability,14 but he may by the language of the contract, pledge his own credit, while acting for the corporation, and mere words of description added to his signature will not alone relieve him from liability.15 Directors may be held liable for publishing false reports, though they purport to be the statements of the company;16 but officers of a corporation.

house is notice to the corporation. Baries v. Louisville Elec. Light Co. \[Ky.\] 85 B. W. 118. Notice to the promoter of a corporation who was its principal incorporator, manager, and resident, was such notice to the corporation as to prevent its claiming the protection of law to which an innocent pnrehser is entitled. California Consol. Min. Co. v. Manley \[Idaho\] 81 P. 50. A corporation creditor of another corporation is chargeable with knowledge of facts known to its president as a director of the debtor corporation. Easton Nat. Bank v. American Bruck & Tile Co. \[N. J. Eq.\] 60 A. 54. Evidence held admissible, of the knowledge of the president of a corporation, to show knowledge by the corporation plaintiff. California Elec. Light Co. v. California Safe Deposit & Trust Co., 145 Cal. 124, 78 P. 372. 5. Gilkeson v. Thompson, 210 Pa. 355, 59 A. 114. 6. City of Elberton v. Pearle Cotton Mills \[Ga.\] 50 S. E. 977. 7. Schneider v. Sellers \[Tex.\] 84 S. W. 417. 8. See 3 C. L. 920. See, also, Evidence, 3 C. L. 1334. 9. The statement of the manager of a telephone company that a broken wire, which was charged from the wires of an electric railway and which injured a boy who came in contact with it, was one of his company's wires, held admissible in evidence against the company, Lynchburg Tel. Co. v. Booker, 103 Va. 594, 50 S. E. 148. The presence or absence of the plaintiff or of her representative at the time of the admission is immaterial. Vincent v. Soper Lumber Co., 113 Ill. App. 463. 10. First Nat. Bank v. Terry, 135 F. 621. 11.2, See 3 C. L. 920. 118. Hamilton v. Davis, 90 N. Y. S. 370. An afflavit of defense that defendant was acting as an officer of a corporation in hir- ing planttiff as salesman, held defective in not alleging that defendant made known his agency or that plaintiff knew of it. Patne v. Berg, 23 Pa. Super. Ct. 577. A torque was executed upon a blank form of receipt bearing the name of a corporation, was signed by the president and secretary officially and bore the seal of the corporation, though no reference was made to it in the note. Held, under Laws 1859, p. 346, 140, 820, providing that the mere addition of an official title to one's signature without disclosing his principal does not permit him from personal liability, that the president and secretary were personally liable. Daniel v. Buttner \[Vhash.\] 80 P. 811. Evidence held to justify the submalsson to the jury of the question whether the sale of goods was made to the corporation, or to the manager individually, and a find-ing against the corporation. Cockrum Co. v. Klein \[Ind.\] 74 N. E. 529. 14. Reed v. Fleming, 209 Ill. 390, 70 N. E. 667. 15. Reed v. Fleming, 209 Ill. 390, 70 N. E. 687. A contract signed by a person who adds "general manager" after his signa- ture, is not the individual undertaking of the signer, if the contract shows on its face that it was made in behalf of another, or if that act appears by extrinsic evidence in a suit for its breach. Raleigh & G. R. Co., V. Pullman Co. \[Ga.\] 50 S. E. 1008. 16. Stickel v. Atwood, 25 E. L. 456, 65 A. 687. A stockholder, who has been induced

## 5 Cur. Law.

CORPORATIONS SS 15P.

poration cannot be held liable as for false representations for mere expression of opinion.\[17\] In some cases directors or officers of a corporation may make themselves liable in an attempt to fix upon the corporation a liability with which it cannot, under the law, be charged.\[18\] The true test as to the liability of a director is whether the transaction is such that the body of stockholders could not have sanctioned it.\[19\] In case of fraudulent transactions of directors, in misappropriating and diverting the corporate funds by the payment of unauthorized salaries, an officer who was in no way connected with the proceedings, although paid a salary thereunder, is not liable in a minority stockholders' action, but the officials who caused the money to be paid-to him must account therefor.\[20\] Where the good will of a defunct corporation was wrongfully appropriated by one of its directors, who was administering its affairs, the appropriaton may be treated as a sale voidable at the option of those interested in the assets of the corportion. And where such appropriation was for the benefit of a new corporation, the latter may be compelled to account for the profits realized from the appropriation.\[21\] A corporation is not organized for an unlawful business, so as to make its officers liable for money invested in its bonds, merely because the business is bottomed on a scheme that will not finance out.\[22\]

The president of a corporation who participates in the sale of bonds, which falsely represent that they are secured by all the property of the corporation is personally liable for deceit, though ignorant of the particular sale in question.\[23\]

Where the business of a corporation itself involves a violation of law, all who participate in it are liable.\[24\]

\_Statutory liabilities.--\_The fact that the directors honestly believed in the competency of the president and so committed the entire management of the bank to him, did not relieve them from their statutory liability for neglect of duty.\[25\]

to subscribe for stock, to his financial In-

jury, by the false and fraudulent representations of the directors may have relief

Transactions of claimant with the president them. The law will comel them

endt of the bank, from which the latter to make good whatever he may have lost

received no benefit, held to give claimant

by his investment; but if he asks to have

no claim against the bank, but that his

them compelled to take his place as a stockholder, to assume his holding and return,

v. Mercantile Co-op. Bank, 93 N. Y. S. 521.

not his actual damages, but his entire in-

But the implication of scient arising from

vestment, then he must show that he was

official connection with a company, and

not merely the incidental victim, but the

International victim of their fraud. Lyon v.

James, 97 Apr. Div. 385, 90 N. Y. S. 28.

17. In selling bonds, the coupons of

which were payable in numerical order, as

money accumulated, the statement of the

offices that the scheme would finance out,

held to be but a mere expression of opinion. Vokes v. Eaton \[Ky.J. 86 S. W. 174.

18. Metropolitan Stock Exch. v. Lyndon-

ville Nat. Bank, 76 Vt. 303, 67 A. 101.

19. Steckel v. Atwood, 25 R. I. 456, 56 A. 687.

01. McConnell v. Combination Min. &

Mill. Co. \[Mont.\] 76 P. 194.

21. Lindemann v. Rusk \[VWs.\] 104 N. W.

01.

01. As where coupons are made payable

as money accumulates, In numerical order

on a scheme, which, under ordinary circumstances, will not result in all the coupons

being paid. Vokes v. Eaton \[Ky.\] 85 S. W.

174.

001. Such a recital in a bond imports that

001.

The status requiring annual reports by corporations and making directors personally liable for corporate debts, in case of failure to file a report, is penal in its nature and must be construed favorably to the directors.\[26\] They are not liable for debts contracted after the filing thereof.\[27\] And a director who resigns before the expiration of the time limited for filing the annual report cannot be subjected to the statutory liability.\[28\] This act being an imposition of a penalty did not create a vested right in the party entitled to recover.\[29\] In Indiana the mere failure of a manufacturing corporation to make its annual report does not render its officers liable for damages, unless creditors were deceived and misled thereby.\[30\] And where directors of a corporation sold their stock in good faith several months before a creditor's debt was created, they were not liable to him in damages for the failure of the corporation to file an annual report of its assets and liabilities.\[31\]

In Vermont the liability of a director who asens to the creation of indebtedness beyond the statutory limit is not an asset of the corporation to be collected and marshaled among creditors, but the asenting creditors are personally liable jointly and severally directly to creditors whose debts are beyond the limit.\[32\]

(SS 15) _Q. Liability of officers for mismanagement.\[33\]--Unless the mismanagement is so gross as to amount to fraud, the president of a corporation is not personally liable for losses sustained through his mismanagement.\[34\] An officer of a corporation who unlawfully disposes of the moneys of the corporation is personally liable therefor.\[35\] An action against an officer of a corporation for a mis-appropriation of corporate funds, can be maintained only by the corporation, or by a stockholder in its behalf,\[36\] if the association refuses to bring the suit.\[37\]_

Where the directors of a corporation vote themselves increases in salaries, while using the profits to expand the business, to the entire exclusion of dividends, a court of equity can compel the restoration of excessive amounts and adjust the salaries on a reasonable basis.\[38\] In a common-law action against directors of an insolvent corporation for damages for payment of dividends with knowledge of the impairment of the corporation's capital, it is necessary to show fraud and bad faith;\[39\] for, in the absence of any showing to the contrary, the officers of a corporation are presumed not to have impaired its capital in declaring a dividend.\[40\]

26. Laws 1897, c. 384, p. 313, p. 30. Ho- bokeen Beef Co. v. Hand, 93 N. Y. S. 834.

01. Kirby's Dig. # 848, 859. Beekman Lumber Co. v. Ahern (Ark.) 86 S. W. 842.

01. Hoboken Beef Co. v. Hand, 93 N. Y. S. 834.

01. Laws 1897, p. 313, c. 384, $ 20, and Laws 1901, p. 966, c. 354, $ 30, limiting the right of action to 6 months did not interfere with vested rights. Davidson v. Wlthaus, 94 N. Y. S. 428.

01. 31. Burns' Ann. St. 1901, $ 5071, 5073.

Stafford v. St. John \[Ind.\] 73 N. E. 596.

32. Hilliard v. Lyman, 138 F. 469.

01. See 2 C. L. 921.

01. Evidence held insufficient to show gross negligence or fraud on the part of the president of a building and loan association in accepting as security real estate subject to a 11s pendens. David Reus Permanent Loan & Sav. Co. v. Conrad \[Md.\] 69 A. 731.

01. As where the treasurer distributes to himself and other stockholders corporation funds without authority from the directors and without a dividend having been 5 Cur. Law.

CORPORATIONS SS 14R.

\_Statutory actions against directors.--\_The right of action given by the New York Code, against directors or officers of a corporation to compel an accounting for money or property acquired or transferred, in violation of their duties, is not restricted to domestic corporations only,\[41\] and does not authorize an action against the corporation itself.\[44\] A claim against a director of a defunct corporation, in the administration of its affairs under the statutes of Wisconsin,\[43\] for wrongfully converting the good will of the corporation, is not for a tort, but for an injury to personal estate, or for an accounting, and survives the death of the director.\[44\] In Michigan only judgment creditors can invoke the aid of the circuit court to compel officers and directors of corporations to account for official misconduct, remove them from office, or to set aside or restrain unlawful alienations of property;\[45\] and the statute, authorizing a corporation creditor to charge its directors or superintending officers on account of any liability created by law, applies only to corporations having banking powers and not to corporations generally.\[46\]

(SS 15) \_R. Dealings between a corporation and the directors or other officers and personal interest in transactions.\[47\]--\_Directors are charged with the utmost good faith in their dealings with the corporation.\[48\] They stand in equity in u fiduciary capacity as to the corporation and stockholders,\[49\] being the trustees, while the stockholders are the cestuis que trustent.\[50\] Neither directors or officers can profit by virtue of their official position,\[51\] and they are forbidden to take part in

40. Redhead v. Iowa Nat. Bank \[Iowa\]

difton of corporate affairs, on account of his 103 N. W. 796. To charge sale of treasury

postion, before he can rightfully purchase stock and appropriation of proceeds by dil-

the stock of a stockholder is bound to in-

retors it must be directly alleged that

there was such stock and money so derivates

fairs of the corporation. Stewart v. Harrived. An allegation that a prospectous ad-

ris, 69 Kan. 498, 77 P. 277.

vertised treasury stock is not an allegation

50. Lord v. Equitable Life Assur, Soc., that the corporation had any such stock,

94 N. Y. S. 65; Mosher v. Sinnott \[Colo.

nor is an allegation that a corporation had

App.17 P. 742; McConnell v. Combination

no property except money received from

Min. & Mill. Co.Mont. 17 P. 248; Barry v.

the sale of its shares an allegation that it

doefel \[N. J. Eq. 19 A. 97. But a director

had money so received. Phillips v. Sonora

Copper Co., 90 App. Div. 140, 86 N. Y. S.

Individual stockholder as to prevent his

200.

001. Code Civ. Proc. **11** 1781, 1782. Miller

v. Quince, 119 N. Y. 294, 72 N. E. 116.

42. Jacobs v. Mexican Sugar Refining

01. Co., 93 N. Y. S. 776.

01. Rev. St. 1898, **8** 1764.

01. Lindemann v.

01. Under section 4253. Lindemann v.

Rusk \[Wis.\] 104 N. W. 119.

45. C. L. 1897, **8** 9757, 9759. McKee v.

Chity Garbage Co. \[Mich.\] 12 Dot. Leg. N. 227, 103 N. W. 906.

46. C. L. 1897, **8** 9769. McKee v. City

01. Gabbage Co. \[Mich.\] 12 Dot. Leg. N. 227, 103 N. W. 906.

01. **96**. 856.

01. See 3 C. L. 922.

01. Coomb v. Barker \[Mont.\] 79 P. 1;

01. Coomb v. Barker \[Mont.\] 79 P. 1. Civ. Code Cal. **5** 2228. Schnittger v. Old

Home Consol. Min. Co., 144 Cal. 603, 78 P.

9. Transactions disposing of certain stock,

in which the directors were personally interested, held fraudulent as to the stockholders. Burnes v. Burnes, 132 F. 485.

49. Coomb v. Barker \[Mont.\] 79 P. 1. If a director purchases the stock of a stockholder, concealing the fact that a sale of

the entire plant is contemplated which will

materially increase the value of the stock,

the stockholder may resceil the sale, for

the fraud. Oliver v. Oliver, 118 Ga. 362,

45 S. E. 232. A director or managing off-

cer, having a better knowledge of the con-

50 Cur. L.-- 59.

51. C.M. -- 59.

01. C.M. -- 59.

01. C.M. -- 59.

01. C.M. -- 59.

01. C.M. -- 59.

01.

any transaction concerning the trust, in which they have an interest adverse to that of their beneficiary.\[52\] If they receive any profits from the company's property or business, they hold the same as trustees for the benefit of the corporation and its stockholders,\[53\] and they will be compelled in equity to account for profits illegally made by them out of their dealings with the corporation.\[54\]

But officers and directors are not absolutely precluded from dealing directly with the corporation,\[55\] and when the contract is made with a director, he stands, as to the contract, in the relation of a stranger to the corporation.\[56\] Contracts whereby directors become creditors of their corporations will be subjected to the closest scrutiny and will be enforced only when fair and equitable,\[57\] and the burden

S2. Civ. Code Cal. $ 2330. Schnittinger v. galined an undue advantage over the corporation. Id.

Old Home Consol. Min. Co., 144 Cal. 603, 78

P. 9. Directors cannot have any personal

S3. Coombs v. Barker \[Mont.\] ?9 P. 1. or pecuinary interest in conflict with their

Property conveyed to the president and duties as such trustees. Hooker v. Midland

promoter of a street railway company, in

Steel Co., 215 Ill. 444, 74 N. E. 445. The pre-

consideration of the extension of the line

sumption that directors of a corporation

will do their duty is overcome by the pres-

absence of a valli agreement to the con-

ence of causes sufficient to influence them

trary between him and the company, pre-

to do otherwise. Montgomery Traction Co.

sumed to have been taken by him as trus-

v. Harmon, 140 Ala. 505, 37 So. 371. The

tere of the company. Scott v. Farmers' & directors of a corporation have no authority-

Merchants' Nat. Bank \[Tex.\] 75 S. W. 7.

ity to bind the company to any contract

Where the president of a company, who made with themselves personally. Smith

was paid a salary, while prospecting on

v. Pacific Vinegar & Pickle Works, 145 Cal.

lands at the expense of the company, pro-

352, 78 P. 550. An officer of a corporation

curing certain leases of mining lands, took

is not qualified to act for his company in

one of the leases in his own name, held

any transaction wherein the corporation is

that the rights secured thereby were held

dealing with the officer. The president

by him in trust for the company. De Bar-

cannot purchase notes payable to the corporation, and, as president, indorse them

Ala. 521, 37 So. 511. Stock procured by de-

to himself individually. Id. A president,

fendant, while acting as trustee and agent

cashler, or managing agent, having authority

of the bank of which he was the president,

ity to sign the name of a corporation to

held to belong to the bank. Dundon v. Mc-

negotiable instruments, cannot execute or

Donald, 146 Cal. 558, 80 T. 1034.

indorse a note to Himself, or certify a

54. Barry v. Moeller \[N. J. Eq.\] 59 A. 97.

check for his own benefit. A by-law

confering such authority and making the

bank, just before the termination of its

president general manager does not em-

power him to purchase notes payable to

of another bank, held to be a simple loan

the' corporation and indorse them to him-

and not an investment for the benefit of

self. Id. Where bonds of a corporation

intended to be secured by mortgage were

withel from sale by the secretary by

55. Schnittinger v. Old Home Consol. Min.

resolution of the board of directors, to

scure certain obligations of the company to

a corporation, who is engaged in a private

the directors, such a plodge was void with-

business similar to that of the corporation,

out the consent of all the stockholders. Scott v. Farmers' & Merchants' Nat. Bank

same terms, as to rebates on the purchase

\[Tex.\] 75 S. W. 7. A resolution passed at

price of goods, as other customers of the

a stockholders' meeting, for the benefit of

corporation, so long as he dealt openly and

a stockholder who as trustee, owner, and

fairly and did nothing inconsistent with

proxy voted a majority of the stock, is

his duties as president. Action for an ac-

suling to him certain treasury stock in

counting between the corporation and its

sideration of services rendered, could not

be sustained. United Gold & Platinum

Mines Co. v. Smith, 44 Misc. 567, 90 N. Y. S.

fit and for his transactions as president.

199. But where a proposition to borrow

Considated Fruit Jar Co. v. Wisner, 103

money from certain directors was carried

by votes enough without theirs, the fact

ing of money by a corporation, to repair its

that such directors were present and vot-

ing did not invalidate the transaction.

Schnitter v. Old Home Consol. Min. Co.

144 Cal. 603, 78 P. 9. Nor does the fact that

the directors loaning the money did not

disclose their interest in the loan to the

other directors and that the party in whose

name the loan was made was a mere figure-

head, unless it appears that they thereby

15.

is on the directors to show that transactions had by them with the corporation, from which they profit, are fair and bona fide.\[58\] Contracts awarded by the directors to themselves,\[59\] which are unfair and in which the directors secure any undue or unjust advantage,\[60\] or transactions had by a director with reference to the property of the company, while they may not be void per se,\[61\] are voidable at the option of the corporation, or its creditors or stockholders.

_Purchase of corporate property.\[62\]_--A director's purchase of property from a corporation is voidable at the option of the corporation, even though the director paid fully as much as, or more than, the property is worth,\[63\] and directors of a corporation who participate in sales of the company's property to themselves may be required, at the suit of the stockholders, to account to the corporation therefor.\[64\] In the absence of fraud, property of a corporation may be sold on execution to directors thereof, under a judgment obtained by them on claims against it, brought by them with own with their own funds.\[65\]

_Purchase of corporate obligations.\[66\]_--After a corporation has ceased to do business, a stockholder and trustee thereof may purchase its outstanding obligations and enforce them for his own benefit,\[67\] but the president of a corporation cannot buy in debts against it, at a heavy discount and then assert them at full value.\[68\]

SS 16. _Rights and remedies of creditors of corporations. A. The relation of creditors.\[69\]_--To a great extent the rights and remedies of creditors are not affected by the corporate charter of the debtor. For matters not so affected consult other titles, particularly those dealing with remedies\[70\] and insolvency proceedings.\[71\]

A note or other obligation given by a corporation to an officer is not necessarily void on that account; but a third person taking such a note knowing that the payee is an officer of the corporation maker is put upon his inquiry, and, if it is subject to any legal infirmty, he cannot avoid the effect of it, by claiming to be a bona fide holder without notice. Orr V. South Amtiony Terra Cotta Co., 94 N. Y. S. 524.

58. Coombs v. Barker \[Mont.\] 79 P. 1.

01. Two out of three directors submitted a contract to the stockholders and then they as a majority of the stockholders, voted in favor of it, and as a majority of the directors, approved it. Booth v. Land Filling & Imp. Co. \[N. J. Eq.\] 59 A. 767. A loan of money to the corporation by its directors, while voidable at the instance of the beneficiary for any violation of duty by the directors, is not ipso facto vold. Schnitterer v. Old Home Consol. Min. Co., 144 Cal. 603, 78 P. 9.

01. A transfer of stock, in which the majority of the directors who passed the resolution were personally interested, was avoided. Burnes v. Burnes \[C. C. A.\] 137 F. 781.

01. Coombs v. Barker \[Mont.\] 79 P. 1.

01. See 3 C. L. 923.

01. A sale of corporate treasury stock by part of the directors to other directors is constructively fraudulent and voidable. Mosher v. Sinnott \[Colo. App.\] 79 P. 742.

01. A stockholders' suit for an account- ing by directors who have sold company's property to themselves may be maintained after the appointment of a statutory receiver, if the latter is made a party. Barry v. Moeller \[N. J. Eq.\] 59 A. 97.

01. Such a sale is not prohibited by Civ. Code, 8 2230, providing that a trustee or his agent may not take part in any transaction concerning the trust, in which he has an interest adverse to that of his beneficiary. Snedker v. Ayers, 146 Cal. 407, 80 P. 511. But a redemption by directors of corporate property from sale on execution, made under a judgment rendered in favor of one of them only two days before the redemption, which was obtained by default based upon the acceptance of service of the summons by another of their num-ber, was held not to have been open, fair and equitable. Coombs v. Barker \[Mont.\]

79 P. 1.

66. See 3 C. L. 923.

01. Stanton v. Gilpin \[Wash.\] 80 P. 280.

01. Field that his illegal combination with another to traffic in the debts and share the profits, tainted the transaction with fraud so that the third party could derive no profit from it. Bramblett v. Com. Land & Lumber Co., 26 Ky. L. R. 1176, 83 S. W. 59. Where a director, at the Instance of the president, renders an agreement to share the profits, bought judgments against the corporation and cause!

its lands to be sold on execution, which land he purchased, on a redemption of the land permitted because of the relationship of the parties to the corporation, the stockholder should not be required to contribute any of the money to be used by the corporation in redeemem. Bramblett v. Com. Land & Lumber Co. \[Ky.\] 86 S. W. 1114.

69. See 3 C. L. 924.

01. As Attachment, 5 C. L. 302.

01. As Bankruptcy, 5 C. L. 367; Receivers, 4 C. L. 1238, and the Ilke.

The claims of domestic attaching creditors are preferred to those of foreign creditors, and will be upheld against indirect, as well as direct, attacks.\[72\] Creditors in a winding up suit may enforce liabilities, the legal title to which is in the receiver of the insolvent corporation.\[73\] The creditor of a church corporation is not the creditor of the members of the church, and has no right of action against them as such.\[74\]

The assets of an insolvent corporation are sometimes regarded as a trust fund for the benefit of creditors,\[75\] and no transfer or subterfuge will be countenanced, which prevents an equal distribution of such fund among creditors of the corporation.\[76\] In Michigan the doctrine that, when a corporation becomes insolvent and unable to carry on its business, each creditor is entitled to his pro rata share of its assets, that the creditors, under such circumstances, has an equitable lien on the assets \[77\] is not recognized, but has been deliberately repudiated; \[78\] and a creditor who has neither a judgment nor a lien upon the property of a corporation cannot complain of the distribution of that property, although the corporation is insolvent.\[79\]

(SS 16) _B. Rights and remedies of creditors against the corporation.\[80\]_--A general creditor cannot file a bill in equity to enforce a claim against a going corporation, unless he has first obtained a lien on the property, or it is otherwise provided by statute.\[91\]

_Voluntary preferences,\[82\]_ when illegal, may be impeached or repudiated by the receiver and, when so ordered by the court, he may sue to recover its diverted assets, even though the corporation itself might not have been allowed to do so.\[33\]

_Priorities between claims.\[84\]_--Courts of equity usually seek to put all the creditors of an insolvent corporation upon the same footing as to the payment of their claims, and in general allow no preferences;\[85\] yet justice often requires prefe 5 Cur. Law. CORPORATIONS SS 16B. 821

erences, the equality to be sought being generally equality among members of a class, rather than among different classes of individuals,80 In the distribution of the assets of an insolvent insurance company, whether it be joint stock, mutual or endowment, the claims of (1) ordinary creditors; (2) policy or certificate-holders, and (3) stockholders, should be preferred in the order enumerated.87 The rights of creditors of a corporation are fixed as of the time of the appointment of a receiver, and those who have priorities then must be first paid and the others must be paid equally.88 The state has no preference over other creditors of an insolvent corporation, in case of a simple contract claim, with no steps taken to enforce it before the appointment of a receiver.80

_Assets for creditors.90_--Every corporation impliedly agrees with every person becoming its creditor that it will observe the laws of its existence enacted to secure the certain payment of its debts, and will honestly apply its assets to that end.91

Creditors of an insolvent corporation, who became such pending a creditors' suit, are entitled to intervene in the proceedings in the Federal court and to participate in the assets remaining after payment of the claims of creditors existing at the time the creditors' bill was filed.92

\\begin{tabular}{l|l} case of insolvency, were not entitled to & ment Ass'n, 21 App. D. C. 844. Claims for \\ preference in payment ever those of the & labor performed for a corporation, just be- \\ firm. And a part of such consideration before its insolvency and the appointment of & a receiver, which labor was necessary to \\ asal partners secured by trust deed on the & continue its business and preserve its property, are entitled to preference over the \\ one of the partners, held, that the corporation was bound to release the individual &itors. L'Hote v. Boyet \[Miss.\] 28 So. I. \\ land from the burden of the debt. London & Though the employees of an insolvent corporation have a first lien for wages, the \\ v. Bynum, 136 N. C. 411, 48 B. E. 764. An & migration have a first lien for wages, the \\ agreement by the officers of a corporation, & assignee of an employee's claim, before the \\ in order to secure the extension of a loan, & insolvency is decreed, has no such lien. \\ that the bank should be preferred if any- & Ph. L. 1896, p. 803. Cogan v. Conover Mfg. \\ thing happened, gives the bank no preference on & Co. \[N. J. Eq.\] 60 A. 408. \\ & 87. A claim on a certificate which \\ creditors. In re Kittanning Elec. Light, &tured several years before insolvency proceedings and was reduced to judgment, \\ A. 266. Where a corporation made an equitable assignment of moneys, to be earned & red entitled to protrify over the claims of \\ in the future under a manufacturing contract, and the corporation became insolvent and a receiver was apoprinted before the \\ money s were earned, the assigee was not & \\ entitled to preference. Cogan v. Conover Mfg. Co. \[N. J. Eq.\] 60 A. 408. A mortgage & \\ who released her mortgage on the property & \\ of a corporation in consideration of certain bonds of the company to be issued & \\ her, but who took stock instead and held & \\ it two years without objection, on the & \\ solvency of the company was held estopped & \\ from claiming priority over those who had & \\ extended credit to the corporation on the & \\ strength of her not being a bondholder. & \\ Lembeck v. Jarvis Terminal Cold Storage & \\ Co. \[N. J. Eq.\] 60 A. 955. Where s temporary receiver, under the New Jersey corporation act, presented a petition, and nothfed creditors, for leave to issue receiver's & \\ certificates to obtain funds to complete certain & \\ \\end{tabular}

\\begin{tabular}{l|l} & 92. Atlas R. Supply Co. v. Lake & River \\ R. Co., 134 F. 503. Where s. receiver was \\ appointed on an express stipulation by certain creditors that, if the total amount realized by the receivership did not exceed a \\ certain sum, they would waive any claims \\ they held as stockholders or creditors, the \\ cum realized having fallen short, they were \\ held bound by their stipulation and their \\ claims were excluded. Gibson v. Standard \\ Automate Gas Engine Co. \[C. C. A.\] 134 F. \\ 798. In a proceeding to establish notes as \\ a claim against the assets of an insolvent \\ corporation, evidence held insufficient to \\ show that they were given for a loan to a \\ stockholder to purchase stock in another \\ corporation for his own benefit, instead of \\ for the corporation and that the claimment \\ bank had knowledge of the fact. Cook v. \\ Anderson Food Co. \[N. J. Eq.\] 61 A. 449. \\ \\end{tabular}

## 8 16.

_Winding up proceedings, assignments, receivership."_--Any creditor or stockholder of an insolvent corporation may institute proceedings in chancery to wind it up." A winding up action, commenced in simple form, may be broadened by amended and supplemental complaints, subject to the ordinary rules, so far as necessary to bring the entire subject-matter before the court for settlement." Creditors in a winding up suit may enforce liabilities, the legal title to which is in the receiver of the insolvent corporation."

A general assignee becomes the trustee for the benefit of the creditors of the corporation. His powers are superior to those of the stockholders or the corporation itself."

In the absence of a permissive statute, courts of equity have no power to dissolve a going business corporation, and, to that end, appoint a receiver for the sequestration of the corporate property." Proceedings for the appointment of a receiver in a court of equity are usually ancillary in nature, and the appointment is granted only as an incident to the relief sought in the petition." Where a court of equity can grant sufficient relief to a complaining minority stockholder for mismanagement of corporate affairs, a receiver will not be appointed." A receiver

A bond executed by one corporation to an-
upon a court of equity authority to decree other, upon the purchase of the property

the dissolution of a corporation at the suit and assets of the latter, covennting to pay

of an individual and authorizing the taking all debts and to perform all contracts of the

charge of its property by a receiver for the selling corporation, creates a direct and

purpose of closing up its affairs, mercly

primary liability of the purchaser in

gives a remedy in the nature of a credit-
equity, on a contract assigned as part of

ors' bill. Nor does section 163 of the Code

the assets. Daneel v. Goodyear Shoe Ma-

of Procedure confer the powers mentioned

chinery Co., 137 F. 157. Where defendant

in the text. People v. District Court of

sold his stock in the usual course of trade

Denver \[Co.\] 80 P. 988. Stattures providing

to the officer of a bank, not knowing that

the affairs of an insolvent corporation for

such officer was using the funds of the

the benefit of creditors are merely con-

bank in the transaction, the sale was valid.

the front of previously existing law. Har-

Corn v. Skillern \[Ark.\] 87 S. W. 142. But

whrature of previously existing law. Har-

where the stock was sold by them to the

rigan v. Gilchrist, 121 Wis. 127, 99 N. W.

officer of the bank, when it was insolvent

99. The Delaware statute for the appoint-

and in anticipation of its suspension, and

ment of a receiver, on the application of

the funds used belonged to the bank and

stockholders or creditors of an insolvent

were withdrawn to prevent their use for

corporation, creates a purely equitable

the payment of creditors, such money could

right and remedy, which may be enforced

be recovered from the stockholders by the

in a circuit court of the United States by

receiver. Under Kirby's Dig. $ 861. Id.

93. See 3 C. L. 926.

01. Under Kirby's Dig. $ 950. Corn v.

Shillern \[Ark.\] 87 S. W. 142. Where the

stockholders and directors of an insolvent

corporation sanctioned the sale of the ass

sets, negotiated by its president, who sub-

mited a list of its debts, including debts

to himself and others for which he was

surely, in excess of the selling price, and

the proceeds were used to discharge those

debts and some others, creditors not paid

could not maintain a creditors' bill on the

ground that the president was a trustee of

the proceeds for the benefit of all creditors. Shipman Co. v. Detroit, etc. R. Co.

\[Mich.\] 12 Det. Leg. N. 281, 104 N. W. 24.

A creditors' bill against a corporation cannot

not be based alone on uniliquided claims

for torts alleged to have been committed

by it. Slower v. Coal Creek Coal Co., 113

Tenn. 421, 82 S. W. 1131.

**95. 96.** Harrigan v. Gilchrist, 121 Wis.

127, 99 N. W. 909.

**97.** Mott v. Edwards, 98 App. Div. 611,

90 N. Y. S. 202.

98.\*\* Mills' Ann. St. $ 497, in conferring

99.\*\* may be appointed without notice, though generally such a thing should not be done.2 It is no objection to the appointment of a particular person as receiver of a corporation that he is a stockholder and has an interest opposed to that of creditors.3

Footnote 2: The author is grateful to the anonymous referee for his comments on the manuscript.

The law does not contemplate, on an application to appoint a receiver, two distinct judgments--the necessity for such appointment and the appointment--but the two orders must be read together as constituting one judgment.4

Footnote 2: The author is grateful to the anonymous referee for his comments on the manuscript.

A solvent corporation will not be placed in the hands of a receiver to enable a stockholder, who has deposited his stock as collateral for a debt, to have an account of its assets.5 A corporation, like an individual, is said to be insolvent when it is not able to pay its debts.6 The mere refusal by a corporaton to pay its debts is not ground for the appointment of a receiver therefor, even with its consent;7 but a receiver may well be appointed for a corporation, when the further conduct of its business would only make its condition more disastrous.8 In case of an insolvent

corporation, the courts of the state where it was organized are the proper tribunals to ascertain the deficiency of its assets, to determine the amounts due creditors and pass upon the rights and liabilities of its stockholders." In the absence of any proceedings in the Federal courts, under the bankruptcy law," proceedings may be had for the appointment of a receiver to take, hold and distribute the assets of an insolvent corporation under the insolvency statutes of a state."

The principle object of a receivership is to afford prompt and efficient relief, and creditors of creditors are not permitted to intervene, to the hindrance and delay of such relief." But where a creditor has assigned his interest in any dividends coming to him, or liens have been created upon his interest, those who succeed to his rights are generally allowed to appear as claimants and establish their claims to his share of the funds." The very purpose of the appointment of a receiver is to bring into play rights hostile to the continued existence of the corporation," although the mere fact that corporation has gone into the hands of a receiver does not affect its corporate existence." But the appointment of a receiver operates as a suspension of its corporate functions and of all authority over its property and effects." The title and right of possession of all its property, both real and personal, passes to the receiver, as the officer of the court appointing him, for the use and benefit of the creditors of the insolvent." The effect of appointing a receiver being to take the property of a corporation out of the control of its officers, the courts should proceed with extreme caution and the statute authorizing such action should be strictly construed."

The action of an inferior court in the appointment of a receiver for an insolvent corporation will not be interfered with, unless there is shown to be some overwhelming objection, point of propriety, or some fatal objection upon principle in the pereon named." Any irregularity in the filing of the bond of a receiver in supplementary proceedings cannot be taken advantage of collaterally."

Id. In the absence of statutory authority, unsecured creditors at law, who have not reduced their claims to judgment, cannot solely on the ground of (insolvency maintain a bill to deprive a corporation of the possession of its assets and secure their administration and distribution. Jones v. Mutual Fidelity Co., 128 F. 506. Under the statute authorizing the appointment of a receiver for an insolvent corporation, or one in imminent danger of insolvency, the applicant must show that he has an actual interest in the property, or a llem thereon, or that it constitutes a fund out of which he is entitled to the satisfaction of his claim. Evidence held insufficient to show insolvency or imminent danger of it. Brenton v. Peek (Tex. City. App.) 87 S. W. 89. 9. Abbott v. Goodall Trade, 160 A. 1030. 10. 10. 10. 10. 10. 11. 189. 11. 10. 11. 11.

5 Cur. Law. CORPORATIONS SS 16B.

Where a corporation administering funds derived from various sources is placed in the hands of a receiver, who administers the whole, it appearing that the receivers wish as necessary for the conservation of one fund as the other, the expense should be borne by the whole in proportion to the benefits received.${}^{21}$

A receiver is the officer of the court and it is his duty to yield prompt and unquestioned obedience to all its lawful decrees.${}^{22}$ He is a mere custodian, without title and without any power but that conferred upon him by the order appointing him.${}^{23}$ He represents the state as well as the creditors and stockholders.${}^{24}$

A receiver has the right to do what the corporation might have done in collecting unpaid subscriptions and debts due the corporation and in paying taxes.${}^{25}$ When a receiver is appointed and he finds contracts of the insolvent corporation, he has an election to carry out or not to carry out such contracts.${}^{26}$ Ordinarily the receiver is the proper party to bring suit against offending officials, but when the receiver is one of the officials charged with the wrongdoing, an equitable proceeding may be maintained by the stockholders, the receiver and the corporation both being made parties.${}^{27}$ A bill by a receiver against directors for negligence causing loss to the stockholders may be barred by laches.${}^{28}$

Corporate property in a receiver's hands sold by decree of a court passes free

receiver. Miller v. KItchen \[Neb.\] 103 N. W. \[its possession after forfeiture. The fact that the sale was made to the brother of the president of the corporation did not want the setting aside of the appointment was fraudulent, the receiver could not recover without tendering the price paid by the presidents brother. KIdder v. Wittler-order of appointment, relative to the place of filime bond allowed pending trial, under Code Civ. Proc. $ 723. Boynton v. Sprague, 100 App. Div. 44, 91 N. Y. R. 839.

21. In remanuel Presbyterman Church, 113 La. 911, 37 So. 873.

01. In an action by one of the principal stockholders against the receiver, to wind up the affairs of the concern, held, that the delay of the receiver to settle the affairs of the concern, after repeated orders of the court, was a flagrant neglect of duty. Lyle v. Sarvey \[Va.\] 51 S. R. 228.

01. A receiver, under the corporation act using that there were any allowable claims is the legislative agency to be named by the court, and has such powers as the legislatures has used in him. P. L. 1836, p. 217.

Cogan v. Conover Mfg. Co. \[N. J. Eq.\] 60 A. 408. Receivers can act only by direc-tion of the court, while liquidators hold no official position and act independently of judicial sanction. In re Eckhardt Mfg. Co. \[La.\] 38 So. 78.

24. Industrial Mut. Deposit Co.'s Receiver V. Taylor, 26 Ky. L. R. 802, 72 S. W. 574.

01. Cogan v. Conover Mfg. Co. \[N. J. Eq.\] 60 A. 408. Upon the appointment of a receiver in a proceeding to marshal the assets, pay the debts and dissolve the corporation, all rights of action in the corporation to save for and collect such assets pass to the receiver. Calef v. Wyandotte Reality Co. \[Kan.\] 78 P. 816. Where a corporation purchased property on a conditional sale, which was retaken by the vendor upon default in payment by the vendee, and sold to another party, the receiver of the corporation could not recover the property, as the corporation was no longer entitled to of the claims of all parties to the proceedings except such claims as may be declared in the decree not to be prejudiced."

A receiver collusively appointed to carry out the fraudulent designs of adversaries of the creditors may be regarded as the agent of such adversaries and made defendant in the main action or other action by the creditors.\[30\] The court may permit a receiver, charged with wasting or misappropriating a trust fund for creditors, to be made a defendant in a creditor's suit and his liability as a wrongful holder of trust funds determined and enforced.\[31\] A purchase of stock by a receiver at his own sale, through a third party, is irregular and voidable at the option of the original owners, and perhaps as to creditors, but it is not void or subject to collateral attack.\[32\]

(SS 16) \_C. Rights of corporate mortgages and bondholders.\[33\]--A creditor who seeks the aid of a corporation mortgage must establish the corporation's authority to make it.\[34\] In Texas, an action for the appointment of a receiver to take charge of property embraced in a mortgage, pending foreclosure and enforcement of payment of the debt secured thereby, may be brought in the county whence any part of the mortgaged property is situated.\[36\] A corporation mortgage will not be construed to cover after-acquired property, unless the intent to do so is expressed.\[36\] The holder of bonds of a corporation, taken as collateral security for a pre-existing debt, is a bona fide holder for value.\[37\] Holders of bonds secured by a pledge of stock are entitled to have such stock continued in existence for their security, unless they consent that some other security may be substituted.\[38\] Where the income from certain water works companies paid to its fiscal agents was sufficient to pay interest and coupons on prior mortgage debts, but the agents misapplied such income by paying a subsequent lien, they could not afterward hold such coupons or interest instalments as outstanding debts under the mortgage lien, to the prejudice of bondholders.\[39\] The failure of a corporation to pay a tax due the state on an increase of stock can be taken advantage of only by the state and does not affect the value of its bonds.\[40\] Although an instrument is so executed as to become the bond of the corporation, it is not necessarily a sealed instrument as to the stockholders who indorsed it before delivery, to give credit thereto.\[41\] Coupon bonds issued by a water 29. Scott v. Farmers' & Merchants' Nat. Bank \[Tex.\] 75 S. W. 7. 80, 31. Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909. 82. Groelts v. Cole \[Iowa\] 103 N. W. 977. 83. See 3 C. L. 92. 84. Camden Safe Deposit & Trust Co. v. Clitzens' Ice & Cold Storage Co. \[N. J. Eq.\] 61 - 529. 85. Under Rev. St. 1895, art. 1194, subd. 12, art. 1488, having no application to such cases. Commercial Tel. Co. v. Territorial Bank & Trust Co. \[Tex. Civ. App.\] 86 S. W. 66. In re Adamant Plaster Co., 137 F. 251. 87. Hoskins v. Seaside Ice Mfg. & Cold Storage Co. \[N. J. Eq.\] 59 A. 645. 88.

5 Cur. Law. CORPORATIONS SS 16E. 827

company under the general statutes are subject to prior equities in the hands of an assignee, though he took them in due course of business and without notice.\[44\] Interest coupons on corporate bonds, which are required to be presented for payment at the office of the corporation, bear interest from maturity, without presentation, unless it affirmatively appears that the corporation was prepared to make payment on presentation.\[43\] Immunity from taxation granted to a corporation does not pass to its successor, under sale of its property on the foreclosure of a mortgage or trust deed, as one of its franchise rights or privileges.\[44\]

(SS 16) _D. Officers and stockholders as creditors; preferences.\[45\]--A corporation 'in a failing condition may prefer, in payment or security, the valid debt of any of its creditors, although a director, if done in good faith.\[46\] In the division of the profits of a corporation shareholders can participate only in proportion to the amount of stock they hold; so far as the money loaned by them to the corporation is concerned, they stand in the attitude of creditors and not of shareholders.\[47\]_

(SS 16) \_E. Liability of stockholders on account of unpaid subscriptions, and remedics.\[48\]--The liability of shareholders to pay for the stock subscribed for by them is a common law, not a statutory, liability.\[49\] While a corporation is solvent, a stock subscription is due in accordance with its terms, and is payable when, and as called for, by the corporation; but when the corporation becomes insolvent, the contract between it and the subscriber is terminated, and his debt to it then is only for such part of his subscription as is required to pay the corporate debt, not to it in its own right, but in the right of its credtors.\[50\] It is not necessary for a stockholder to sign a subscription for stock, where the certificate is accepted, to render him liable to creditors for the full amount of unpaid subscriptions;\[51\] and his liability is not affected by the fact that the stock was to be paid for by the surrender of stock.\[52\]

The right to hold a stockholder for an unpaid subscription in the interest of creditors rests upon the doctrine that the capital stock is a trust fund for the pay-

true intent of the parties in executing the instrument. Somers v. Florida Pebble Phos-

A. 1036.

phate Co. \[Fla.\] 39 So. 6L.

48. Georgetown Water Co. v. Fidelity

Trust & Safety Vault Co.'s Trustee, 25 Ky.

L. R. 1739, 78 S. W. 113.

49. Abraham V. New Orleans Brewing

A."a, 110 Lta. 1012, 35 So. 268. In a suit by a trustee for bondholders to obtain a sale of securities pledged for their bene-

ft, a court of equity is not required, at the instance of an intervening bondholder, to adjust, by way of set-off, in distributing

the funds realized, unliqualated demands

arising out of the promotion of the corporation, which can better be disposed of in

independent units. Land Title & Trust Co.

v. Tatnal \[C. C. A.\] 132 F. 305.

44. Such an immunity is a personal privilege, not extending beyond the immense grantee, unless so declared in express

terms. Lake Drummond Canal & Water Co.

v. Commonwealth, 103 Va. 337, 49 S. E. 506.

45. See S. C. L. 933.

01. The burden is on the creditor, who

attacks a preference made by the corpora.

tion, to show that one of the directors was

not notified of the meeting at which the preference was authorized. Pitman v. Chicago-Joplin Lead & Zinc Co. (Mo. App.) 87

exgo-Joplin Lead & Zinc Co. (Mo. App.) 87

S. W. 109.

47. Donner v. Donner, 211 Pa. 409, 60

A. 1036.

48. See 3 C. L. 934.

01. Callet v. Wyandotte Reality Co.

\[Kan.\] 78 P. 816.

50. West v. Topeka Sav. Bank, 66 Kan.

524, 72 P. 258. When the receiver of an

insolvent corporation applies for permis-

sion to make an assessment on unpaid

stock subscriptions, to pay debts, the court

must judicially determine what proportion

of such subscriptions is needed, so as to

confine the assessment to that amount.

Klrkpatrick v. American Alkali Co., 115 F.

230. The liability of certificate holders in

an endowment company to pay assess-

ments terminates upon its insolvency, and, as creditors, they become entitled to an

accounting as to the present value of their creditors

contracts on the basis of the surrender

value of their certificates. Gilbert v. Wash-

ington Ben. Endowment Assp' 21 App. D.

C. 344.

51. Under Ky. St. 1903, 1 S47. Kentucky

Mut. Inv. Co.'s Assignee v. Schaefer \[ky.\]

85. W. 1098.

01. Under Ky. St. 1903, $ 547. But they

will be held liable for the difference between the amount they actually paid and

the amount of stock they received at par

value. Kentucky Mut. Ins. Co.'s Assignee

## 828Corporations & 16E.

5 Cur. Law.

ment of the obligations of the corporations; \[53\] and neither the corporation nor the subscriber, nor both together can defeat the creditor's rights; \[54\] nor can the corporation remit the stockholder's debt to the creditor's injury. \[55\] A creditor of a corporation cannot compel the members thereof to pay what may be due him by the corporation. He can demand payment of the corporation only, and he can seize no other effects than such as belong to the corporation. \[56\] Transactions between a corporation and a stockholder, in the sale of stock for property conveyed, cannot be attached by a judgment creditor unless the corporation is made a party. \[57\] If stockholders do not pay their subscriptions to stock, their obligation is to the corporation, and the corporation only can enforce it. \[58\] It is the duty of the governing authorities of a corporation to require payment of stock subscriptions, and, on failure so to do, they may be required by the courts, at the suit of interested parties, to perform their duty. \[59\] But a creditor, who knew that stock issued as fully paid was not in fact fully paid and yet extended credit to the corporation, cannot require payment of the unpaid subscription, in case of the corporation's insolvency. \[60\] When a bill in equity is filed by the creditors of an insolvent corporation to subject the unpaid subscriptions to the payment of the corporate debts, it is necessary that all the delinquent subscribers be made parties defendant, unless some good reason for the contrary appears in the bill, such as death, insolvency or inability to reach a party with the process of the court. \[61\] The real owner of stock, which stands in the name of a dummy and has never been entered on the books in the name of the owner is nevertheless liable to be charged both for unpaid assessments and with the statutory liability for debts. \[62\] In an action by stockholders against the corporation for a receiver and winding up, the court may order the receiver to determine the amount due from plaintiffs for unpaid subscriptions and render judgment against them therefore. \[63\] Where no effort has been made by a receiver to dispose of valuable assets of the insolvent corporation or to ascertain the real owners of stock held in the name of the **53**. Easton Nat. Bank v. American Brick \[38 So. 591\] Also when an attempt is made & Tile Co. N. J. Eq.1 60 A. 54; Allen v. to hold stockholders liable on account of Grant \[Ga.\] 50 B. E. 44; West v. Topeka v. \[Ong.\] 53 Sav. Bank, 66 Kan. 524, 72 P. 252; Calef v. \[Ong.\] 54 No. 163. In Louisiana stockholders are not direct personal debtors of the individual creditors. Civ. Code, art. 437.

Where a corporation, without a legitimate basis for it, declares a stock dividend, the ld. But in Oregon a suit in equity is main-implied promise of a stockholder to pay to the creditor, or one standing in for additional stock received arises only in his stead, to recover against a stockholder favor of subsequent creditors. Anglo-Amer- of an insolvent corporation an unpaid balican Land, Morte, & Ag. Co. V. Lombard \[Ong.\] 55 A. 132 F. 721. An act amending a chartor so as to provide that all stockholders in the debts of a corporation to the amount of pers paying fifty per cent. of the par value of their unpaid stock subscriptions. The ld-thier assessments thereon for debts or liable, did not affect or criminal contracts of the subscription, so far as the claims of exist- ing creditors were concerned. Act Jan. 9, 1892 (Acts 1891-92, p. 69, c. 38). Williams \[Ong.\] 78 P. 69S.

V. Matthews, 103 Va. 180, 48 S. 81. \[Ong.\] 55, 59 Jones Co. v. Hoffman \[Ga.\] 38 So. 54 A. subseption to stock, made pay- 763.

able In specifics worth not more than ten per cent. of the face of the shares, is a fraud on subsequent creditors, and the trustee in bankruptcy could sue for the unpaid subscription. Allen v. Grant \[Ga.\] 50 S. E. 494.

55. Easton Nat. Bank v. American Brick \[Ong.\] 74 Title Co. \[Ong.\] 60 A. 54.

01. Jones Co. v. Hoffman \[Ga.\] 38 So. 57.

01. Calcasieu Nat. Bank v. Godfrey \[Ga.\] 78 P. 816.

5 Cur. Law. CORPORATIONS SS 16F. 829

dummies, so as to include them in the assessment, his application for permission to make an assessment to pay debts is premature.\[44\] In actions to enforce payment of unpaid subscriptions,, the stockholders are entitled to a jury trial of the issues raised by their denial of the ownership of, or subscription to, stock.\[65\] The payment of a judgment obtained by a creditor on the personal liability of a stockholder under the statute cannot be considered as payment on unpaid corporate stock.\[66\]

Purchasers of stock, apparently full-paid, in open market, are not liable for unpaid instalments thereon, under the statutes imposing such liability;" nor are holders of stock issued by a mining company for the purchase of mines, and taken as full-paid, under the Colorado statutes, where the transaction was bona fide,\[68\] and a bona fide transferee of stock, the certificate of which recites that it is full-paid, is not liable to make good the contract of the original subscriber, if such transferee did not know, actually or constructively, that the stock had not been fully paid for.\[69\] Where full-paid stock is issued for property received, there must be actual fraud in the transaction to enable creditors of the corporation to call the stockholders to account.\[70\]

_Fictitionly paid up stock.\[71\]_--A transferee of shares of stock, with knowledge that they had been fraudulently issued as fully paid-up, becomes liable for the unpaid subscription.\[72\]

_Limitations.\[73\]_--The statute of limitations does not begin to run against an action to enforce a stockholder's liability on unpaid stock, until levy of an assessment;" but an order of a bankrupt court to the trustee to bring suit for unpaid subscriptions is sufficiently in the nature of a call or assessment to perfect the cause of the action.\[75\] In Kansas the statute of limitations begins to run from the time when a private corporation becomes insolvent and suspends active business, leaving debts unpaid.\[76\]

(SS 16) _F. Personal liability of stockholder for debts of corporation, and remedies.\[77\]_--The exemption of the individual corporate member from personal liability upon a claim against the corporation is a fundamental principle in the general law of corporations.\[78\] The nature and extent of the stockholders' liability

64. K!r!kpatrick v. American Alkali Co., 185 Y. 230.

01. McFarland v. Martin \[Tex. Civ. App.\]

86 S. W. 639.

66. Civ. Code, $ 332. Union Sav. Bank v. Letter, 145 Cal. 696, 79 P. 441.

01. Ky. St. 1903, $ 547. Hess v. Trumbo \[Ky.\] $ 48 S. W. 1153. The constitution of Missouri provides against liability of a stockholder, if the stock is fully paid up. Burnes v. Burnes, 132 F. 485.

01. 1 Mull's Ann. St. $ 486, 490, 497, 582.

Speer v. Bordeelsen \[Colo. App.\] 79 P. 332.

69. Eeston Nat. Bank v. American Brick & Title Co. \[N. J. EG.\] 60 A. 54.

01. Any device, by which the stock passes as fully paid, without such payment either in money or property, as an intentional overlawation of property with the understanding that a part of the stock shall be returned for distribution among the directors voting for the purchase of the property, constitutes actual fraud against creditors of the corporation. Easton Nat. Bank v. American Brick & Title Co. \[N. J. Eq.\] 60 A. 54. Under the corporation act of New Jersey, the issue of fully-paid stock, in exchange for property, constitutes a con is to be determined by the statute creating it," and in force at the time his debt was incurred." The liability is collateral to the principal obligation, which still rests upon the corporation." It forms no part of the assets of the corporation, but constitutes a fund for the exclusive benefit and protection of all creditors." Creditors are not required to await the collection of worthless or doubtful claims among the assets; shareholders must pay promptly and take upon themselves the onus and risk as to all such claims, looking to the assignee for whatever may be realized on assets." A general law making stockholders of safe deposit, guaranty, loan and fidelity companies liable to depositors and creditors for double the amount of his stock, is applicable to a company incorporated by special charter." Dissolution of a corporation does not extinguish the liability of the stockholders."

01. Abbott v. Goodall \[Me.\] 60 A. 1030. Where a corporation created by special act was sought to be consolidated with another, the special liability of a stockholder of the original corporation cannot be enforced in an action against the attempted consolidated corporation, when the attempted consolidation is void. Boor v. Tolman, 113 Ill. App. 322. In Kansas, the con-stitutional and statutory liability of stockholders (in other than railway, charitable and religious corporations, Const. art. 12, $ 2; Gen. St. 1868, c. 23, $ 40, 44, 32), though statutory in its origin, is contracted in an action against the attempted tax of the corporation, whether it includes liability for torts, either before or after judgment is undetermined. Anglo-Ameri- can Land, Mortr, & Ag. Co. v. Lombard \[C. C. A.\] 132 F. 721, citing Whitman v. Oxford Nat. Bank, 176 U. S. 559, 44 Law. Ed. 587; Howell v. Manglesdorf, 38 Kan. 194; Abey v. Dry Goods Co. 44 Kan. 415; Pierce v. Security Co., 60 Kan. 164; Woodworth v. Bowles, 61 Kan. 569. It also includes unmatured and contingent obligations of the corporation, as well as those which are matured and absolute. Cottrell v. Manlove, 58 Kan. 405, 408: Brigham v. Nathan, 62 Kan. 243, 249; McHale v. Moore, 66 Kan. 267; Crisser v. Morril \[C. C. A.\] 125 F. 878. And under the constitution of Kansas, a stockholder is liable for claims if they arise out of the exercise of powers "essen".

tial to the transaction of its ordinary affairs," ald within "the legitimate objects of its creation." Hel to include indebtedness arising out of an accommodation indorsecment by a corporation. First Nat. Bank of Pittsburg v. Darlington, 25 Pa. Super. Ct. 438. In Kansas, where for more than one year the usual and ordinary business which constitutes the active life of the corporation is suspended and the business done is only such as looks to a cessation of its affairs, dissolution is conclusively presumed for the purpose of enabling the creditor to enforce the stockholders' liability. Ango-American Land, Mortr, & Ag. Co. v. Lombard \[C. C. A.\] 132 F. 721. Under the statute of Maryland, making each stockholder liable for double the amount of his stock (Acts Md. 1892, p. 153, c. 109, $ 851), the liability is absolute and direct to creditors and may be enforced by a creditor against a particular stockholder, and the stockholder being, as between them, a 5. Cur. Law. COPROPROATIONS SS 16F. 831

The special liability of a stockholder accrues when the cause of action arises against the corporation, and not when the judgment is rendered against it.86

The right of action, which the constitution and laws of Kansas give to a creditor against a stockholder, where a corporation suspends business for more than a year, without paying its debts, arises in that state and not in the state of the stockholder's residence.87 A stockholder's liability in an Ohio corporation cannot be enforced outside of the jurisdiction of that state, on the theory, that the constitutional provisions of that state are self-executing, the courts of that state having regarded the liability as statutory.88

As between creditors and stockholders, each stockholder is severally liable to all the creditors; but, as between themselves, each stockholder is to pay in proportion to his stock.89

\_Persons liable as stockholders.90--\_The statutory individual liability attached to corporate stock, as security for the payment of corporate debts, is that of the person who holds legal title to the stock as owner. This may be said to be part of the common law of corporations.91 One who loans money to a corporation, but takes stock absolute upon its face, is liable as a stockholder; 92 but the beneficiary of the earnings of stock, where the bequest to him did not segregate such stock from the general estate of the deceased, is not liable as a stockholder; 98 nor is holding stock as collateral security.94 And a person who agrees with another to subscribe for shares in a company, but fails to do so, while he may be liable for breach of

SG. Boor v. Tolman, 113 III. App. 322. In Ohio, the liability of a stockholder attaches as security merely is not subject to the alt the time the liability is incurred by the person on the books as the absolute owner. April, 29, 1902, amending and repelaims Rev. St. & 3258, held unconsontutional. Swift

Was not the absolute owner and not in-& Co. v. Youngstown Banking Co., 6 Ohio

C. C. (N. S.) 89.

87. A. Anglo-American Land, Morris. & Ag. Co. v. Lombard (C. C. A.) 132 F. 721.

01. Const. Ohio (1851) art. 13, & 3; and Rev. St. 1880, & 3258, and 3280, as amended in 1894, passed in pursuance of the constitutional provisions. Middletown Nat. Bank v. Toledo, etc., R. Co., 197 U. S. 394, 49 Law. Ed. 803.

01. The Colorado statute imposing a double liability upon stockholders in behalf of creditors contemplates a pro rata contribution by all the stockholders to satisfy creditors. Sess. Laws Colo. 1885, p. 204.

$ 1. Abbott v. Goodall \[Mc.\] 60 A. L030; Clark v. Knowles, 187 Mass. 35, 72 N. E. 352.

90. See 3 C. L. 936.

01. In re Noyes Bros., 186 F. 977. Under the statute of Rhode Island, defining the liability of members of a manufacturing company for its debts, it is immaterial whether the stockholders sought to be reached are original stockholders or subsequent purchasers. Gen. Laws 1896, p. 556, c. 180, $ 1; $ 13, as amended by Pub. Laws of 1900-01, p. 215, c. 839. Lazard Freres et Civ. Phetteplace, 26 R. I. 568.

59 A. 831. A corporation that has held stock in a bank for a number of years, receiving dividends thereon, with knowledge of all its stockholders, even though not authorized to do so, will be estopped from denying its liability as a stockholder. Hunt v. Hauser Malting Co. \[Minn.\] 103 N. W. 1032. Under the statutes of Maine the contract, does not become a stockholder and liable as such.\*8 A transfer of stock not made in the ordinary course of business, nor at a time when the corporate business is being prosecuted and the corporate life maintained in the usual manner, will not relieve the stockholder from liability to creditors of the corporation;\*\*8 nor can a stockholder avoid his liability on account of stock sold prior to the creation of the debt, if the stock was not transferred on the books as required by the rules.\*\*97 A non-resident stockholder, who was not a party to, and did not appear in, any of the proceedings resulting in the appointment of a receiver and the levy of an assessment, cannot be held liable for such assessment, under the laws imposing and enforcing stockholders' liability.\*\*98

Before the books of a corporation can be put in evidence against a person charged with liability as one of its members his membership must be admitted or established by evidence altitude.\*\*99

_Ascertainment of corporate liability and exhaustion of remedy against it._**1--** In Rhode Island an action to enforce a stockholder's liability can be maintained only by a judgment creditor of the corporation.\*\*9 But in North Dakota, a creditor whose claim has not been reduced to judgment may maintain an action against an insolvent corporation on behalf of himself and other creditors to enforce stockholders' liabilities.\*\*93 And in Kansas the remedy against the stockholder is available to the creditor immediately upon the dissolution, without first recovering a judgment against the corporation.\*\*94 In an action by a creditor of an insolvent corporation against stockholders, it is not necessary to show a judgment against the corporation and an execution returned unsatisfied, where it was alleged that a judgment of dissolution had been rendered, restraining creditors from prosecuting actions against the corporation.\*\*94 A judgment against the corporation is binding upon the stockholders as an adjudication of the liability of the corporation.\*\*94

_Limitations._\*\*7--\*\*Where the law creating the liability of stockholders for the debts of the corporation does not fix the time when the cause of action accrues, it accrues immediately upon the insolvency or like default of the corporation;\*\*94 but the liability is conditional and statutes of limitaton do not begin to run on it until an assessment has been made,\*\*94 and must be enforced within six years.\*\*10 But in 2. Gen. Laws 1896, c. 180, SS 22. Legg & von va. Dewins \[R. I. G0 4. 1066. 3. Rev. Codes 1899, SS 5767-5770. Marshall-Wells Hardware Co. v. New Era Coa \[Co. N.\]. 100 N. W. 1084. 4. Anglo-American Land, Motrg. & Ag. Coa. V. Lombard \[C. C. A.\] 132 F. 721, citing Cottrell v. Manlove, SS Kan. 405; Sleeper v. Norris, SS Kan. 555, 559; Brigham v. Nathan, 62 Kan. 243, 249. 5. Lang v. Lutz, 180 N. Y. 254, 73 N. E. 24. Anglo-American Land, Motrg. & Ag. Co. v. Lombard \[C. C. A.\] 132 F. 721, citing Howell v. Manlgesdorf, 32 Kan. 194. 197: Haonock Nat. Bank v. Farmm, 176 U. S. 640, 44 Law. Ed. 619; Abbott v. Goodall \[Me.\] 60 A. 1030, ctling Hancock Nat. Bank v. Farmm, 176 U. S. 640, 44 Law. Ed. 619; Scodell v. Excelsor Oil Co., 6 Ohio C. C. (U. S.) 169. 7. See 3 C. L. 937. 8. Bennett v. Thorne, SS 253, 78 P. 936, citing numerous cases In the different states. 9. McClain v. Rankin, 197 U. S. 154, 49 5 Cur. Law. CORPORATIONS SS 16G. Kansas the period of limitation for commencing proceedings to enforce a stockholder's liability is three years.\[11\] The personal liability of shareholders in a national bank, for the contracts, debts and engagements of the bank,\[12\] cannot be regarded as a contract liability, for the purpose of making applicable a limitation of an action on a contract not in writing and not arising out of any written instrument.\[13\]_Parties.\[14\]_--In an action brought solely to enforce the liability of stockholders in an insolvent corporation, the receiver of the latter is not a necessary party.\[15\]_Defenses.\[16\]_--Under the laws of Kansas the fact that a debt of a corporation has not become due, when the corporation is dissolved, does not prevent a creditor from pursuing a stockholder.\[17\] In such a proceeding the stockholder cannot interpose as a set-off a claim against the corporation, which does not constitute a legal defense against the plaintiff and can be made available only in a court of equity.\[18\] Under the Kansas statute defining the liability of stockholders, a proceeding by motion for execution against a stockholder, after recovery of judgment against the corporation and return of execution nulla bona, is a civil action within the meaning of the statute of limitations.\[19\]_Procedure.\[20\]_--When a corporation ceases to do business, leaving debts unpaid, a suit in equity may be brought against it and the stockholders jointly;\[21\] and only a suit in equity by one or more creditors, in behalf of all, against the corporation and all the stockholders, is the proper procedure in Colorado,\[22\] North Dakota,\[23\] and Maryland.\[24\] The receiver of a corporation can maintain a bill of discovery against stockholders, who bought shares of stock for parties unknown to the receiver, to discover the real owners of such stock, preliminary to a suit against them for an assessment to pay debts.\[25\]_(SS 16) G. Rights and remedies of creditors against directors and other officers.\[26\]_--The statute of New Jersey, making directors jointly and severally liable to creditors to the full amount of stock withdrawn or in any way paid out to stockholders, is to a degree penal as respects the officer to whom it applies, and is governed by some of the principles applicable to strictly penal statutes.\[27\]_Law. Ed. 702, citing McDonald v. Thompson, 184 U. S. 71, 46 Law. Ed. 437._

**10. Bennett v. Thorne, 36 Wash. 253, 78 P. 936.**

**11. Anglo-American Land, Moritz & Ag. Co. v. Lombard (C. C. A.) 132 F. 721, citing Cottrell v. Manilove, 58 Kan. 405, 403: First Nat. Bank v. King, 60 Kan. 733; Fox v. Bank, 8 Kan. 18, 21.**

**12. Under U. S. Rev. St. $\\sharp$ 5151 (U. S. Comp. St. 1901, p. 3465). McClaine v. Ran-kin, 197 U. S. 154, 49 Law. Ed. 702.**

**13. Ball. Wash. Code, $\\sharp$ 4800, subd. 3.**

**14. See 3 C. L. 937.**

**15. Lang v. Lutz, 180 N. Y. 254, 73 N. E. 24.**

**16. See 3 C. L. 938.**

**17. The debt is due, by force of the statute permitting it to be sued, so far as the stockholders are concerned, as soon as the corporation is dissolved, although not due as respects the corporation. Crissey v. Morril (C. C. A.) 125 F. 878.**

**18. Dr. Crissey, v. Morril \[C. C. A.) 125 F. 878.**

**20. See 3 C. L. 938.**

**21. In section 25 of the corporation act, 5 Curr. L-- 53.**

**the words "after exhausting the assets of the corporation," are not a condition precedent to the liability of the stockholders. Parmelee v. Price, 105 Ill. App. 277.**

**22. A suit in equity by creditors of a Colorado corporation, on behalf of them.**

**selves and other creditors who may choose to come in, against a Massachusetts stockholder, cannot be maintained under Seas. Laws Colo. 1885, p. 264, $\\lx@sectionsign$ 1. The statute contemplates only a pro rata contribution by all the stockholders. Clark v. Knowles, 187 Mass. 35, 72 N. E. 352.**

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\*\*39.

RIGHT OF STOCKHOLDERS TO INSPECT BOOKS AND PAPERS.\*

**The Right in General (834).**

**Interest and Mottive (835).**

**Demand and Iefusst (836).**

**Express Parvisions in the Canter, General**

**Law, Articles of Association, or By-Laws**

**(837).**

\*\*The right in general.--It is a well-established general rule of the common law, sometimes expressly declared with some modification or change by statute or by the constitution, or by provisions in charters, articles of association, or by-laws, that every stockholder of a private corporation has a right, by reason of his interest therein, to inspect and examine its books and papers,\[48\] if he asserts the same at a proper and reasonable time.\[49\] "There can be no question that the ownership of stock confers the authority to see that the property is well managed. The exercise of this authority involves primarily the right to examine the books." \[50\] The right is the right of reasonable examination. It does not authorize such an appropriation of the records as will work serious detriment to the corporation, and on the other hand, mere inconvenience to the corporation is no ground for denying it.\[41\] A stockholder also has the right to make abstracts, memoranda, and copies.

**New Jersey: Huylar v. Cragin Cattle Co., 40 N. J. Eq. 392: Mitchell v. Rubber Res. c. 185, 6 N. Complinant held not to have made out a case thereunder. Audenfeld v. East Coast Mill Co. \[N. J. Eq.\] 59 A.**

**28. England: Reg, v. Mariqulta & New Granada Min. Co., 1 El. Ed. 281, 285; Rev. Merchan Tailors' Co., 2 Barn, & Add. 115; Foster v. Bank of England, & Q. B. 689; Rex v. Clear, 4 Barn. & C. 899; Nelson v. Anglo-American Land Morris. Ag. Co. (1887) 1 Ch. 130.**

**United States: Ranger v. Champion Cotton-Press Co., 51 Fed., 61: Chable v. N1-cararagua Canal Construction Co., 59 F. 846.**

**Alabama: Foster v. White, 86 Ala. 467; Winter v. Baldwin, 89 Ala. 483.**

**Delaware: Swift v. State, 7 Houst. 383, 10 Am. St. Rep. 127.**

**Florida: Alabama & Florida R. Co. v. Rowley, 9 Fla. 508.**

**Illinois: Stone v. Kellogg, 62 Ill. App. 444, 165 Ill. 192, 66 Am. St. Rep. 240; Meyersenburg v. People, 88 Ill. App. 328.**

**Iowa: Ellsworth v. Dorwart, 95 Iowa, 108, 58 Am. St. Rep. 427.**

**Lewismann: Hatch v. City Bank of New Orleans, 1 Rob. 470; Legendre v. New Orleans, 45 La. Ann. 669, 40 Am. St. Rep. 243: State v. Bienville Oil Works Co., 28 La. Ann. 204; Cockburn v. Union Bank of Louisiana, 13 La. Ann. 289; State v. New Orleans Gaspith Co., 49 La. Ann. 1556; State v. Citizens' Bank of Jennings, 51 La. Ann. 426.**

**Michigan: People v. Walker, 9 Michen.**

**Missouri: State v. St. Louis & San Francisco R. Co., 29 Mo. App. 301; State v. Sportsman's Park & Club Assm. 29 Mo. App. 326; State v. Laughlin, 63 Mo. App. 542.**

**A**Adapted from Clark and Marshall on Corporations: with all cases since the publication of that work except those con 5 Cur. Law. RIGHT to INSPECT Books \[SP. ART.\] 835 "The right to make copies, and to make abstracts and memoranda, of documents, books and papers, by a stockholder in an incorporated company, is as full and complete as the right of inspection thereof."""

_Interest and motive._--The right is confined to stockholders " of record " and their personal representatives," and to stockholders who are such at the time." Some of the courts have held that stockholders have a right to inspect the books and papers of the corporation without first showing any mismanagement, where they wish to make the examination in good faith for the purpose of seeing whether its affairs are properly managed. "Such a right," said the New Jersey court, "is necessary to their protection. To say that they have the right, but that it can be enforced only when they have ascertained, in some way without the books, that their affairs have been mismanaged, or that their interests are in danger, is practically to deny it in the majority of cases. Oftentimes frauds are discoverable only by examination of the books by an expert accountant.""" This, however, is not the doctrine at common law, as established by the decisions, and laid down in the text books. By the weight of authority, in the absence of a statute making the right of examination absolute, there must be something more than bare suspicion of mismanagement or fraud. There must be at least specific and reasonable grounds for suspicion. The right of a stockholder to examine the books and papers of the corporation is not unlimited, as is the right of a partner to examine the books and papers of the partnership. He can insist upon and enforce the right when he has a good and specific reason for making the examination, and where his purpose is a proper one, but not otherwise. He cannot do so from mere curiosity, or for merely speculative purposes, or for reasons not connected with his right as a stockholder, or veratiously, but, at common law at least, he can do so only when he asserts the right "in good faith, and for a specific, honest purpose, and where there is a particular matter in dispute involving and affecting seriously his rights as a stockholder."""

32. Swift v. State, 7 Houst. \[Del.\] 338, State v. VWhited & Wheless, 104 La. 125. 40 Am. St. Rep. 127. See, also, Cincinnati Where petitioner sells his stock pendente Volksblatt Co. v. Kofrmlenster, 62 Ohio St. 116, the proceeding will be dismissed. State 189, 78 Am. St. Rep. 707; Nelson v. Anglo- American Land Mortg. & Ag. Co. \[1897\] 1 Exch. 112 La. 868, 36 So. 760. Under the Ch. 130. And see, under statutes giving a New Jersey corporation act, one seeking right of inspection generally. Martin v. 111.

A stockholder cannot make use of his relation as such to inspect the books of the corporation, where his purpose is merely to obtain information for use as a debtor of the corporation,\[89\] or for mere curiosity,\[40\] or for the purpose of injuring the corporation,\[41\] especially if he is acting in the interest of a rival corporation in which he is also a stockholder or otherwise interested.\[42\] A stockholder, however, cannot be denied the right to inspect the books and papers of the corporation on the ground of hostility to the management or officers, where he has a good reason for making the examination,\[43\] and the burden is not on the stockholder to disclose a lawful purpose or negative an improper one.\[44\]

\_Demand and refusal.--\_That the stockholder demands inspection of more than he is entitled to see does not authorize a general refusal.\[45\] The right is a present one when applied for at a reasonable time and an indefinite delay is equivalent to refusal.\[45\] Statement that the books could be inspected at the office of the president a short distance away is not a refusal,\[47\] and even if an ozer to allow examination at the home of an officer is insufficient, if the stockholder agrees to call there and does not, he cannot claim that examination was refused.\[48\]

instituted; but it is necessary that there \[the exhibition of corporate books to the ex-should be some particular matter in dis-pute, between members, or between the corporation and individuals in It; there \[the evident purpose of injuring the work\] to the corporation business. In re Kennedy, 75 must be some controversy, some specific purpose in respect of which the examina-holders to examine corporate books ex-tension becomes necessary." Rex v. Merchant \[Tailors' Co., 2 Barn. & Adol. 115\]. On petition for a writ of mandamus by the holders of four shares of a large corporation, to allow them to inspect the \[the work\] to the stock ledger of the company, it was held by a stenographer for an inspection of the that, to show a right to the writ, they \[the work\] to the writ, they \[the work\] to the entire corporation stock, and that because of reports contents of the book were of consequence, whereas in surplus and an increase in losses, he had become alarmed peetation of benefit from knowing the contents. Lyon v. American Screw Co., 16 R. \[Tailors' Co., 17 S App. Div. \[N. Y.\] 178\]. I. 472. \[The work\]. I. 473. \[The work\]. I. 474. \[The work\]. I. 475. \[The work\]. I. 476. \[The work\]. I. 477. \[The work\]. I. 477. \[The work\]. I. 478. \[The work\]. I. 479. \[The work\]. I. 470. \[The work\]. I. 471. \[The work\]. I. 472. \[The work\]. I. 473. \[The work\]. I. 474. \[The work\]. I. 475. \[The work\]. I. 476. \[The work\]. I. 477. \[The work\]. I. 477. \[The work\]. I. 478. \[The work\]. I. 479. \[The work\]. I. 470. \[The work\]. I. 471. \[The work\]. I. 472. \[The work\]. I. 473. \[The work\]. I. 474. \[The work\]. I. 475. \[The work\]. I. 476. \[The work\]. I. 477. \[The work\]. I. 477. \[The work\]. I. 478. \[The work\]. I. 479. \[The work\]. I. 470. \[The work\]. I. 471. \[The work\]. I. 472. \[The work\]. I. 473. \[The work\]. I. 474. \[The work\]. I. 475. \[The work\]. I. 476. \[The work\]. I. 477. \[The work\]. I. 477. \[The work\]. I. 478. \[The work\]. I. 479. \[The work\]. I. 470. \[The work\]. I. 471. \[The work\]. I. 472. \[The work\].

5 Cur. Law. Right to INSPECT BOOKS \[SP. ART.\]

\_Express provisions in the charter, general law, articles of association, or by-laws.--In some jurisdictions, the right of stockholder.s to inspect and examine the books and papers of the corporation is not left to be determined by the common law, but is regulated by statute or by the constitution, and sometimes the right is given in express terms by the charter or articles of association of a corporation, or regulated by its by-laws. And when the right is so given or regulated, it is sometimes more absolute than it is at common law, according to the cases previously referred to, such statutes being ordinarily designed to enlarge the common-law right.49 An act conferring a limited right of inspection incident to corporate elections does not by its re-enactment in a general corporation act extend an unqualified right of inspection to stockholders.50 Under a general statute, as a statute providing that the stockholders of all private corporations shall "have the right of access to, inspection and examination of the books, records and papers of the corporation, at reasonable and proper times," it is to be implied that the inspection anl examina'ion shall not be from mere idle curiosity, or for speculative purposes, or for purposes hostile to the interests of the corporation, and by the express provisions of the statute the right must be asserted at "reasonable and proper times," but these are the only limitations upon the right. It is not necessary to show any particular reason or occasion for making the inspection and examination.51 In an Alabama case, involving a construction of a statute in the language above quoted, it was said: "The statute was enacted in view of the restrictions and limitations placed by the common law upon the exercise of the right; and the purpose is to protect small and minority stockholders against the power of the majority, and against the mismanagement and faithlessness of agents and officers, by furnishing mode and opportunity to ascertain, establish and maintain their rights, and to intelligently perform their corporate duties. * * * The only express limitation is that the right shall be exercised at reasonable and proper times; the implied limitation is that it shall not be exercised from idle curiosity, or for improper or unlawful purposes. In all other respects, the statutory right is a'so'ute. The shareholder is not required to show any reason or occasion rendering an examination opportune and proper, or a definite or legitimate purpose. The custolian of the books and papers cannot question or inquire into his motive and purposes. If he has reason to believe that they are improper or illegitimate, and refuses the inspection on this ground, he assumes the burden to prove them such. If it be said, this construction of the statute places it in the power of a single shareholder: to greatly injure and impede the business, the answer is, the legislature regarded his interests in the successful promotion of the objects of the corporation a sufficient protection against unnecessary or injurious interference. The statute is founded on the principle, that the shareholders have a right to be fully informed as to the condition of the corporation, the manner in which its affairs are conducted, and how the capital, to which they have contributed, is employed and managed." " " " The right being of common-law origin, additional remedies may be given as to existing corporations." A statute giving a stockholder the right to inspect and examine books and papers of the corporation gives him the right to make abstracts, memoranda, or copies thereof." " Where a statute or by-law gives stockholders a right to examine books and papers of a corporation to a specified extent or at specified times only, they can only claim under the statute or by-law, such rights as it expressly confers" A statute, however, giving stockholders an absolute right to inspect certain books or papers, or to inspect them at a particular time, but containing no negative words, does not deprive a stockholder of his common-law right to inspect other books or papers, or to inspect them at other reasonable times." " And, of course, by-laws of a corporation to which a stockholder does not consent cannot deprive him of his common-law right.

A general statute giving stockholders in "all private corporations" the right to inspect and examine the books and papers of the corporation applies to national banks to the same extent as other corporations, at least in the absence of conflicting legislation by congress." _Examination by attorney or agent._--When a stockholder has sufficient reason for making an examination of the books or papers of the corporation, he need not necessarily do so in person, but may do so through his attorney, o: an expert accountant, or other agent." _Remedies of stockholders on denial of right. Mandamus._--If the officers of a corporation wrongfully deny a stockholder the right to inspect its books or papers, he may enforce his right by writ of mandamus, unless this remedy is ex-

52. Foster v. White, 86 Aia. 467. And --poration act of New Jersey (P. L. 1896, p. see, to the same effect, Stone v. Kellogg, 292, & 44) to summarily order books of a 165 Ill. 192, 56 Am. St. Rep. 240.

On petition of a stockholder for a writ of mandamus to enforce his statutory right to inspect the books of a corporation, It was held that an answer setting forth that the redox after compliance with the order, the relator cherished annuosity towards the company's president, and had threatened to injure the business of the company by disclosing its business secrets to customers and business rivals, showed no ground for denying the writ. Meysenburg v. People, 88 Ill. App. 328.

53. Bay State Gas Co. V. State, 4 Pen.

\[De1.\] 238, 56 A. 114.

54. Cotheal V. Brouwer, 5 N. Y. Leg. Obs. 175, 10 Barb. 216, 5 N. Y. 562; Martin v. W. J. Johnston Co., 62 Hum. 557, 17 N. Y. S. 133; Nelson v. Anglo-American Land Morris. Ag. Co. 118971 1 Ch. 130.

Centre, Com. v. Emple Passenger R. Co., 134 Pa. 237.

55. See People v. Pacific Mail Steamship Co., 50 Barb. (N. Y.) 180; State v. Bergenthal, 72 WIs. 314; Lyon v. American Screw Co., 16 R. I. 472.

It has been held that a by-law of a corporation, providing that the treasurer shall keep full books of account of the business of the corporation, "which books shall at all times be open to the inspection of any of the stockholders." does not apply to the stock ledger. Lyon v. American Screw Co., 16 R. I. 472.

The power conferred by the general corporation, the manner in which its affairs are conducted, and how the capital, to which they have contributed, is employed and managed." " " " The right being of common-law origin, additional remedies may be given as to existing corporations." " A statute giving a stockholder the right to inspect and examine books and papers of the corporation gives him the right to make abstracts, memoranda, or copies thereof." " Where a statute or by-law gives stockholders a right to examine books and papers of a corporation to a specified extent or at specified times only, they can only claim under the statute or by-law, such rights as it expressly confers" " A statute, however, giving stockholders an absolute right to inspect certain books or papers, or to inspect them at a particular time, but containing no negative words, does not deprive a stockholder of his common-law right to inspect other books or papers, or to inspect them at other reasonable times." " And, of course, by-laws of a corporation to which a stockholder does not consent cannot deprive him of his common-law right.

A general statute giving stockholders in "all private corporations" the right to inspect and examine the books and papers of the corporation applies to national banks to the same extent as other corporations, at least in the absence of conflicting legislation by congress." _Examination by attorney or agent._--When a stockholder has sufficient reason for making an examination of the books or papers of the corporation, he need not necessarily do so in person, but may do so through his attorney, o: an expert accountant, or other agent." _Remedies of stockholders on denial of right. Mandamus._--If the officers of a corporation wrongfully deny a stockholder the right to inspect its books or papers, he may enforce his right by writ of mandamus, unless this remedy is ex-

52. Foster v. White, 86 Aia. 467. And --poration act of New Jersey (P. L. 1896, p. see, to the same effect, Stone v. Kellogg, 292, & 44) to summarily order books of cluded by statute.\[59\] The writ may issue against the corporation, or against both the corporation and the officer having the custody of the books or papers.\[60\] Or it may issue against the officer alone, without making the corporation a party.\[61\] If a statute gives a stockholder a particular remedy within the corporation, he must resort to that remedy before he can resort to mandamus.\[62\] A writ of mandamus may issue to enforce the right of a non-resident stockholder to inspect and take copies of documents of a foreign corporation, if they are in the custody of an agent within the state.\[63\] And the court may compel a domestic corporation to bring its books and papers into the state for an inspection, where they are kept in another state.\[64\]

In Ohio, and it may be in other states, the statutes are such that mandamus will not lie as at common law. In Ohio, where the statute declares that the writ of mandamus, "must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law," it has been held that mandamus will not lie to compel a corporation or its officers to allow an inspection of its books and papers, as there is an adequate remedy by injunction,\[65\] and since by examination of the officers under a subpoena the value of corporate stock may be determined for the purpose of estimating a transfer tax, mandamus will not lie to compel an exhibition of the corporate books to the executors.\[66\]

_In equity._-Stockholders may have generally enforced their right to inspect the books and papers of the corporation by mandamus, and there are very few reported cases in which it has been sought to enforce the right equity by injuncunc.

59, Rex v. Merchants Tailors' Co., 2 Union Bank, 13 La. Ann. 289; Lyon v. Amer-Barn & Adol. 115; People v. Through, 12 scan Serve Co., 16 R. J. 412; Huylar v. Wendt (N. Y.) 183; In: Te Stenhway, 21 ApJ. Cragin Cattle Co., 40 N. Y. Ed. 392. Under Div. (N. Y.) 70, 159 N. Y. 526; People v. the Delaware Statute, the president is a Eadle, 63 Hum, 320, 133 N. Y. 573; Swift v. (State, 7 Houseat. \[Del.\] 338, 40 Am. St. Rep. 1238, 56 A. 114. 127; Stone v. Kellogg, 62 Ill. App. 444, 165 Ill. 192, 56 Am. St. Rep. 240; Common-wealth v. Phoenix Iron Co., 105 Pa. St. 111, Am. St. Rep. 127; Stone v. Kellogg, 62 Ill. 51 Am. Rep. 184, 1 Smith's Cas. 248; Phoenix ix Iron Co., v. Com., 118 Pa. 563; State v. (State, 7 Houseat. \[Del.\] 338, 41); State v. Ber-Bienville Oil Works Co., 28 La. Ann. 204; South, 72 Wis. 814. (Cockburn v. Union Bank, 13 La. Ann. 289; Legendre v. New Orleans Brewing Ass'n, 45 La. Ann. 659, 40 Am. St. Rep. 243; State v. New Orleans Gaught Co., 49 La. Ann. 1556; State v. Bergenthal, 72 Wis. 314; Lyon v. American Serve Co., 16 R. I. 412; People v. Walker, 9 Mich. 283; Foster v. White, 86 Ala. 467; Winter v. Baldwin, 89 Ala. 483; Cobb v. Legarde (Ala.) 30 So. 326; Trimble v. American Can Sugar Refining Co., 61 N. Y. 26. 340, 48 A. 912; Huylar v. Cragin Cattle Co., 40 N. Y. Eq. 892; Fuller v. Alex. Hollander & Co., 61 N. Y. Eq. 648, 47 A. 648; Trimble v. American Sugar-Refining Co., 61 N. Y. Eq. 340, 48 A. 912; Meysenburg v. People, 88 Ill. App. 328; Nelson V. Anglo-American Land Morf., Ag. Co. (1897) 1 Ch. 130. To be entitled to the writ, the relator must be a stockholder at the time it is to be issued. It will not be issued if he has sold his stock (State v. Whitled & Wheless, 104 La. 125), and if he sells pendette lite the proceedings will be dismissed (State v. New Orleans, etc., Exch., 112 La. 868, 36 So. 760. 60. Reg. v. Mariquita & New Granada Mining Co., 1 El. & El. 289; Rex v. Merchant Tailors' Co., 2 Barn. & Adol. 115; Common-wealth v. Phoenix Iron Co., 105 Pa. 111, 51 AM. Rep. 184, 1 Smith's Cas. 248; Phoenix Iron Co., v. Com., 113 Pa. 563; Cockburn v. (N. Y.) 188.

tion. It has been held, however, in some jurisdictions, that a suit for an injunction will lie,\[67\] and that a bill of discovery will not.\[68\] Of course, a court of equity has jurisdiction to enforce the right of inspection, if the circumstances are such that mandamus will not afford an adequate remedy, or if there are other grounds of equitable jurisdiction.\[69\]

\_Recovery of damages.--\_If an officer of a corporat'on, having the custody of its books and papers, wrongfully refuses to allow a stockholder to inspect the same, he is guilty of a wrong against the stockholder, and is liable in an action for damages \[70\] proximately resulting.\[71\] The corporation itself will undoubtedly be liable in damages for denial of a stockholder's right to inspect books and papers, if it can be regarded as in default in the matter, as whe'e the inspection is refused by or by order of the board of directors or the majority stockholders as a body. It has been held, however, that a stockholder cannot hold his co-stockholders or the corporation liable in damages on account of the refusal by a subordinate officer of an informal request to be allowed to inspect books or papers of the corporation, although he would have ascertained that the affairs of the corporation were being improperly managed, and might have taken steps to avoid loss. Upon such a refusal, he should apply for a writ of mandamus, or else apply to the directors, so as to put the company in default. "If mandamus had issued immediately after the refusal," said the Louisiana court in such a case, "the action would have been maintained against the company only. It would have had the right to repudiate the refusal and permit the inspection. The act of the secretary is not absolutely binding upon the company in matter of inspection of the books. He cannot stand in judgment, nor can he as agent of the stockholders occasion damages by refusing the books, for which the company will be liable to one stockholder to the loss of the others, who are not parties and have not given the least sanction to the refusal. * * An error of an officer in a subordinate position in refusing to permit books to be examined is not per se such an error as will expose the company to the payment of damages." \[72\]

\_Statutory penalty.--\_When the right of a stockholder to inspect the books and papers of the corporation is regulated by statute, a specific penalty is sometimes in-

**67.** Cincinnati Volksablatt Co. v. Hoff-

spect the books of the corporation, must register, 62 Ohio St. 189, 78 Am. St. Rep.

show that there has been a denial of the 707; Ranger v. Champion Cotton-Press Co., 51 F. 61; Nelson v. Anglo-American Land

v. National Linesed Oil Co., 171 III. 480.

Mortig. Az. Co. (1897) 1 Ch. 130; Holland v.

v. Dickson, 37 Ch. Div. 669. But see Fuller

stockholder wishes a discovery of the financial condition of the company, his remedy

47 A. 646.

68. Trimble v. American Sugar Refining

but by mandamus to enforce the right to Co., 61 N. J. Eq. 340, 48 A. 912.

69. Huylar v. Cragin Cattle Co., 40 N. J. Eq. 392: Ranger v. Champion Cotton-Press Co., 51 F. 61.

While a court of equity may, in its discretion, order the officers of a corporation to allow a stockholder to inspect its books at any stage of the proceedings, it will not

do so upon the mere filling of the bill, or after service and before answer, "except

under the most pressing necessity," since the defendants may deny that the complainant is a sharcholder, or may set up that the charter or by-laws modify his right to such Inspection. Ranger v. Champion Cotton-Press Co., 51 F. 61. A bill in equity by a stockholder, asking the aid of the court to enforce the right to in-

spect the books of the corporation, must show that there has been a denial of the right, or it will be demurable. Coquard

V. National Linesed Oil Co., 171 III. 480.

In New Jersey it is held that, where a stockholder wishes a discovery of the financial condition of the company, his remedy

is not by a bill in equity for a discovery, but by mandamus to enforce the right to

inspect its books, aided, if necessary, by a

petition under the statute to compel the

corporation to bring the books into the

state for such purpose. Trimble v. Amer-

ican Sugar-Refining Co., 61 N. J. Eq. 340,

48 A. 912.

70. Legendre v. New Orleans Brewing

Assm, 45 La. Ann. 669, 40 Am. St. Rep. 243.

87. Remote and speculative damages

cannot be recovered for a refusal of the

president to permit an inspection of the

corporate books by a stockholder, if the

president has not acted in bad faith. Bour-

dette v. Sleward, 107 La. 258.

72. Legendre v. New Orleans Brewing

Assm's, 45 La. Ann. 669, 40 Am. St. Rep. 243.

See Fuller v. Alex. Hollander & Co., 61 N. J. Eq. 648, 47 A. 646.

## 5 Cur. Law. Corpses and BURIAL.

posed upon the corporation, or upon the officer denying him the right, to be recovered in an action by the stockholder or by the state. And the penalty may be recovered without showing any actual pecuniary damage. All that is necessary is to show a wrongful denial of the right.\[73\] When the corpo action or an officer has wrongfully denied to a stockholder the right to examine its books, his right to sue for the statutory penalty is fixed, and is not affected by the fact that he was allowed to make the examination upon a subsequent application.\[14\] The officer in charge of the records as well as the corporation is liable to penalty.\[15\] Where a statute imposes upon the custodian of the books and papers of a corporation the duty to allow stockholders to inspect the same, the duty is an incident of his office, and he cannot be relieved therefrom by a by-law of the corporation, or by any resolution or orders of the directors, so long as he continues in office, and has the legal custody of the books and papers.\[70\] But an officer is not liable to this penalty if the books and papers have been taken from his custody by the directors, so that it is not within his power to allow an inspection, provided, at least, he has not participated in putting them beyond his control for the very purpose of shirking his duty, and defeating a stockholder's right of inspection,\[71\] and provided he states the reason why he cannot allow an inspection,\[71\] If the books and papers come back into his custody after he has refused a request to be allowed to inspect them, it is his duty to notify the stockholder, and give him an opportunity to inspect them.\[70\] Reasonable or unavoidable delay in allowing an inspection, as because the books are locked up in a safe, and the only officer who knows the combination is absent, does not subject the corporation or its officers to a penalty,--but such an excuse cannot be made in bad faith, and for the purpose of defeating the stockholder's right.\[70\] A corporation does not incur three penalties for three refusals to permit inspection of the books, where the party seeking to recover desired to use the books for one occasion but repeated his request for two or three consecutive days, and made the demand three times, twice of the secretary and once of the president.\[81\]

## 6 Corpses and BURIAL?

There is a quasi-property right in a dead body, subject to the necessity for proper disposition to prevent its becoming a nuisance and injurious to public health, which the courts will protect.\[72\] Thus a relative of a deceased, in whom exists
the right to preserve and bury the body,\* may maintain an action for the unlawful mutilation of the body,\* and recover damages for the mental suffering and sense of outrage directly resulting therefrom.\* Negligence of a common carrier which receives a corpse for transportation, resulting in damage to the coffin and shroud, and mutilation of the body, is actionable.\* Where mutilation of a body is intimately connected with and incidental to the act causing death, such mutilation cannot be regarded as a separate cause of action for which damages may be recovered independently of the wrongful death.\* A consent to a post mortem examination is an implied permission to conduct such examination in the usual, approved manner, and to remove organs for microscopic examination when necessary to ascertain the cause of death, unless permission to do so is expressly withheld.\* A direction that parts should not be taken away does not prohibit removal of organs for examination, if they are afterwards replaced for burial with the body.\* The right of sculpture cannot now be denied on the ground that deceased was a murderer and suicide.\* The right to direct and control burial is ordinarily in persons related to deceased, when for any reason the surviving spouse does not exercise such right.\* A surviving husband is liable for the expenses of the last sickness and burial of his wife, and the cost of a tombstone erected by him.\*

CORPUS DELIGTI; COPROJECTIVE Evidence, see latest topical index.

COSTS.

**8 1.**: **Scope, Nature and Definition (842).**

**8 2.**: **Power to Award Costs (843).**

**8 3.**: **Prepayment or Security and Suits in Forma Pauperis (843). Security (844).**

**8 4.**: **Parties Entitled to or Liable for Cots in General (845).**

**8 5.**: **Right Dependent on Event of Action or Preceding (846).**

**8 5.**: **Proveiling Party in General (846).**

**8 8.**: **Amount and Items; After Trial B. Waiver of Right and Effect of Tender or Offer of Judgment (851).**

**8 6.**: **Right Dependent on Minimum Amount of Demand or Recovery (848).**

**8 7.**: **Right Affected by Nature of Action (850).**

**8 1.**: **Scope, nature and definition.* As here used the term "costs" includes not only costs proper but also disbursements and allowances made to litigants as*\*

**8 5.**: **E.**: **See, also, Koerber v. Patek \[Wis.\] 102 N. W. 40.**

**8 3.**: **Son may maintain action for mutilation of widowed mother's body. Koerber v. Patek \[Wis.\] 102 N. W. 40.**

**4 4.**: **Complaint held to state cause of action. Koerber v. Patek \[Wis.\] 102 N. W. 40.**

**8 5.**: **More than nominal damages are re-coverable. Koerber v. Patek \[Wis.\] 102 N. W. 40.**

**8 7.**: **40.**: **\[This being the first Wisconsin case on the subject, the opinion contains full discussion and cites many authorities.-Ed.\] 418.**

**8 6.**: **Declaration alleging receipt of corpse, and damage resulting from leaving coffin and contents in the rain at a junction, held to show gross negligence, and to 'state a cause of action. Louisville & N. R. Co. v. Wilson \[Gan.\] 51 S. E. 24.**

**8 7.**: **Where in action for wrongful death, it appeared that a brakeman shot a tres- 26 Pa. Super. Ct. 75.**

5 Cur. Law. COSTS SS 3. 843

part of or incident to the judgment by way of compensation to the successful party and against the other.14 Costs are purely of statutory creation,15 and being so, the statutes allowing them are to be strictly construed;14 but not strained by denying compensation which the laws evidently intended.17 Rules of court inconsistent with statute are void.18

SS 2. \_Power to award costs.19--\_The power to award compensation for judicial services to be paid from county funds excludes power to tax the same as costs.20 A discretionary power to allow costs on a motion includes motions for new trial,21 and though not customary, such an award will be upheld unless abusive of discretion.22 Costs being incident to the judgment, the power to award them resides in the court which has control of the judgment23 and while it is open.24 Compensation to a receiver as costs of appeal must be allowed in the court below,25 and so also costs cannot be founded on a void order or proceeding.26

SS 3. \_Prequyment or security and suits in forma pauperis.27--\_Prepayment28 of fees is a right pertaining to the officer, and the adverse party cannot complain of its waiver.29 In some jurisdictions a poor person may have a record for appeal 30 or other proceeding where one is required,31 either without prepayment or by supplying afflavit of its contents.

\_Security.32--\_In civil cases 33 the grounds for exacting security, though not

12. Such expenses will not be allowed allow costs. Hager v. Knapp, 45 Or. 512, 78 against her estate and credited to him on his administration account. Stonesifer v. 24. In equity cases costs cannot ordistribter \[Mzd.\] 59 A. 139. See Estates of De-

narily be retaxed after appeal. Berkey v. 25. McKenzie v. Coslett \[Nev.\] 80 P. 1070. See, also, post, 1 g. Patterson v. Ramsey,

136 N. C. 651, 48 B. E. 811.

14. State v. Board of Police Com'rs \[Mo. App.\] 88 S. W. 960; Veltri v. Missouri, K. &

01. M. R. Co. \[Mo. App.\] 82 S. W. 1122.

01. A provision that referees' fees be

taxed on the incoming of the report does

the judge is disqualified. A justice of the not prevent allowance to a referee who died

peace against whom afflavit of prejudice

and therefore made no report. They

should be taxed when his successors' re-

costs. Truedell v. Winne, 44 Misc. 451, 90

port comes in. Winnebag County V. Dodge

18. A rule requiring certain costs to be

01.

pald by the parties jointly is unauthorized

where the statutes provides that such costs

20. In a justice court in Georgia, on shall be paid by the prevailing party in the

first instance and taxed with the judgment.

Repporters' per dlem. Mecham v. Bear Val 844 COSTS 8.3. 5 Cur. Law. wholly derived from statute, are now generally so enumerated.\[34\] Some of the grounds are nonresidence,\[35\] the character of the action, or irresponsibility of the plaintiff.\[36\] Receivers are often absolved either absolutely or under certain circumstances,\[37\] unless they are nonresidents.\[38\] In New York security for costs cannot be required of an intervenor.\[39\] The ground must exist when the security is asked.\[40\] Where the costs are already secured by the terms of a bond necessary in the case, no additional bond is proper.\[41\] The defendant may by his conduct excuse the failure to give costs,\[42\] and he must move promptly to require it.\[43\] The authority of a court to exact security may be taken as conceded against one who uses in such a court a cause of action which without such authority it could not entertain.\[44\] In Michigan a certificate of deposit may be by order of court taken as "sufficient security" \[45\] and the clerk may not refuse such security.\[46\] $\\Delta$n application for security must state all that constitutes the ground relied on.\[47\] Dissimal will be ordered only in favor of such parties as have not answered,\[48\] and does not constitute a decision on the merits.\[49\] Under the general power over judgments during term, a dismissal for want of security may be set aside \[50\] and it should be done where plaintiff has seasonally attempted to comply.\[51\] _In forma pauperis.\[52\]_--Actual inability to pay costs is essential.\[53\] Whether a personal representative may so sue depends on the terms of the statute.\[54\] So, unless required, he need not show the poverty of those who will benefit if he is successful.\[55\] The right to appeal in forma pauperis depends wholly on statute.\[56\] The moving papers on application in New York to sue in forma pauperis must

34. See topic "Security for Costs," 10 costs made on the day set for trial is too Encl. Pl. & Pr. 337. late. Brazeil v. Cohn \[Mont.\] 81 P. 339. 35. One temporarily absent to procure 44. Suit in name of United States to use medical treatment held not a nonresident. \[57\] on building contractors' bond, which suit Taylor v. Norris, 93 X. Y. S. 356. A resident administrator using for the death of a non-security. Act Cong. Aug. 13, 1895. Sayre resident need not give security. Richards & Fisher Co. v. Grefen H. N. Lawf 60 A. v. Riverside Iron Works \[IV. Va.\] 49 S. E. 45, 46. A bond is not required. Smith v. 36. Chancellor may in suit for support 47. An afflawt of nonresidence of one Divroce Act, 81. Dibmmar V. Dibmmar \[N.\] using in the city court of New York must state that he has no office either in the borrowed. In New York, in the absence of bad 49. Suit of the Bronx or the borough of Manhattan or apparent lack of merits, a receiver 48. Pey K. Roth, 92 N. Y. S. 263. will not be compelled to give security because the estate is insolved. De La Fleur pist of Des Moines \[Iowa\] 103 N. V. 167. v. Barney, 45 Misc. 515, 92 N. Y. S. 926. 35. A nonresident receiver of a national 53. Appeal. Texas & X. O. H. Co. v. bank must give security in Federal courts 54. Walter (Tex. Civ.). 87 S. V. 194. 54. Under Acts 1903, c. 501, providing that when a nonresident becomes admilts. certificate. Schonfeld v. Palmer, 134 F. 753. 39. Riley v. Ryan, 45 Misc. 151, 91 N. Y. S. 952. 40. Where a motion for security for costs on the ground that plaintiff was Imprisoned for crime was not made until two years after suit and after plaintiff had been released, it is too late. Gibbons v. Bush Co., 98 App. Div. 83, 90 N. Y. S. 603. 41. The undertaking required in replenvin secures costs, and accordingly a cost bond should not be required of a nonresident phinttiff in replenvin. Vulcanite Portland Cement Co. v. Williams, 92 N. Y. S. 574. 42. A Justice's judgment will not be reversed for failure of a nonresident to give security where it was verbally proffered to defendant but not insisted on and was fur- hashed in the appeal from the Justice. Birsh v. Fisher \[Mich.\] 101 N. W. 48. 48. Application to require security for 49. Suit of the Bronx or the borough of Manhattan or apparent lack of merits.\[58\] In New York, in the absence of bad 49. Suit of the Bronx or the borough of Manhattan or apparent lack of merits, a receiver will not be compelled to give security because the estate is insolved. De La Fleur pist of Des Moines \[Iowa\] 103 N. V. 167. v. Barney, 45 Misc. 515, 92 N. Y. S. 926. 35. A nonresident receiver of a national 53. Appeal. Texas & X. O. H. Co. v. bank must give security in Federal courts 53. Appeal. Texas & X. O. H. Co. v. bank must give security in Federal courts 54. Appeal. Texas & X. O. H. Co. v. bank must give 5 Cur. Law. COSTS SS 4.

show that plaintiff has a good cause of action,57 and must show an agreement of his attorney to serve without compensation.58 The Federal statute allows application in forma pauperis either on beginning a suit or afterwards on motion for security.59 In addition to the court rule requirements, all statutory requirements must be met; 60 hence in the Federal courts such applicant must not omit to show that he is a citizen of the United States, that he is unable to give security for costs and that he believes himself entitled to the redress he seeks. A sheriff cannot administer the oath in forma pauperis unless a statute so provides.61 In Texas it must appear by an entry on the minutes that the application for leave to appeal without bond was to the court in session; 62 but not that it was made in open court,63 and there need not be minute entry that sufficient proof was adduced.64 A rule for security pending which defendant be not required to plead merely suspends a rule to plead, which becomes operative when the other rule is satisfied.68 It is usually provided that dismissal shall follow if the showing of poverty be false or the cause of action is frivolous or malicious.64 In a suit to expunge an order allowing appeal without cost bond, not actually made by the court, the ability of appellant to pay costs is not in issue.67

SS 4. \_Parties entitled to or liable for costs in general.68--Cots are not ordinarily assessed personally against one sued in an official capacity unless he has been in some respect delinquent.69 When a state prosecution is removed because brought against one for an act done under color of his Federal office, the United States marshal may if he obtain special authority from the department of justice pay defendant's witnesses, but the state ought save in rare instances to pay her own.70 The attorney is not liable for court fees.71 An intervener who has dismissed is beyond the jurisdiction of the court to award costs on final judgment.72 The state is not chargeable with costs in the absence of a statute consenting thereto.73 The prosecuting witness is so far a party that costs may be taxed against him if the prosecution is malicious;74 but there must be a hearing and a precedents are collected in a note In 62 L. R. A. 618.

57 Traver v. Jackman, 98 App. Div. 287,

90 N. Y. S. 739. A certificate of his attorney to that effect is insufficient. Id.

58. Traver v. Jackman, 98 App. Div. 287,

90 N. Y. S. 739.

59, 60. Donavan v. Salem & P. Nav Co.,

134 T. 316.

61. Heard v. State, 121 Ga. 138, 48 S. E.

01.

01. Smith v. Buffalo Oil Co. \[Tex. Civ. App.\] 85 S. W. 481.

63, 64. Smith v. Buffalo Oil Co. \[Tex.\] 87 S. W. 659.

65. American Mfg. Co. v. S. Morgan Smith Co., 25 Pa. Super. Ct. 176.

01. See Discontinuous, Dismissal and Nonstint, 3 C. L. 1097; also 6 C. L. -- An equh in forma pauperis is shown to be false by a subsequent afflawit of the party admitting recent receipt of a large sum of money. Texas Cent. R. Co. v. Pledger \[Tex. Civ. App.\] 85 S. W. 470.

01. Texas & N. O. R. Co. v. Walker \[Tex. Civ. App.\] 87 S. W. 194.

01. See 3 C. L. 944.

Note. A party carrying on litigation for his own benefit in the name of another may be liable for costs either by virtue of statute or in actions to use or of efjecment. In other classes of cases this is denied. The finding of want of probable cause.\[75\] Costs pertaining to the administration of a trust are not charged personally to the trustee, unless as a penalty for some maladministration or misdoing.\[76\] A notice of claim or demand before suing when prerequisite to costs suffices if it precede the suit in which judgment is had.\[77\] Allowance on such ground rests in discretion.\[77\] An action continued in the name of devisees, legatees and executor may be at the cost of the estate up to the original complaint's death.\[78\] An executor is entitled to his costs in endeavoring to sustain a will, though the same is found to have been revoked.\[79\] This question usually arises in connection with the administration of decendant's estates and is more fully treated in connection therewith.\[80\]

**SS 5.**_Right dependent on event of action or proceeding. A. Prevailing party in general.\[81\]_--Except as affected by the qualified interest of a party,\[82\] or rules applicable to particular courts or proceedings,\[83\] the prevailing party is ordinarily entitled of right to recover costs. Though there are some decisions of contrary tendency,\[84\] he is ordinarily deemed the prevailing party who recovers generally in the action,\[85\] though his recovery be but partial,\[86\] or though it is diminished by the establishment of a set off,\[87\] the remedy of defendant in such case, if he desires

L. R. A. 489 states that Georgia and North Co. \[V. Va.\] 48 S. E. 746. Plaintiff does Carolina have also sustained the validity of such a law. In that note are discussed all where the title is adjudged to him but a the cases on this point. Some of the lead-patrol trust which he denied was fastened on the property and a reference had to as-41 Law. Ed. 78; In re Ebenhack, 17 Kan. 618; State V. Smith, 65 VIs. 93; Green v. Knney, 136 State, 12 Ga. 52, 37 S. E. 93; State V. V. 93; In 89 N. C. 578; State v. Cannady, 78 N. C. 539.

\[75\] Bailey. v. Territory \[Ok1.\] 79 P. 775.

\[76\] Costs of audit made necessary by guardian's long delay in accounting and by the filling finally of an incorrect account. Miller's Estate, 24 Pa. Super. Ct. 32. Costs of audit charged for delay in collecting assets. Carry's Estate, 24 Pa. Super. Ct. 363.

\[77\] Applies though a suit had been commented before notice, it having been never entered but a new suit begun afterwards. Smallwood v. New York, etc., R. Co. \[R. I.\] 526, 100 N. W. 826.

\[59\] A. 314. Administrator charged for cost of liberating classification of claims bought in for helirs where the personally was alone interested in their classification. Felsen-thal v. Kline, 214 Ill. 121, 73 N. E. 428.

\[78\] Executor held for costs resulting from litigation of unfounded personal claims. Phillips v. Duckett, 112 Ill. App. 587.

\[79\] The allowance of costs against an administrator for unreasonable resistance or delay rests in the discretion of the reference. Domeyer v. Hoes, 99 App. Div. 294, 90 N. Y. S. 1074. Such discretion can only be reviewed by appeal from the judgment on the report, not by motion. Id.

\[80\] The elements v. Kaiser, 21 Ill. 460, 71 N. E. 1055.

\[90\] Floore v. Green, 26 Ky. L. R. 1078, 83 S. W. 133.

\[91\] See Estates of Decedents, 3 C. L. 1291, 1301.

\[92\] See 3 C. L. 942.

\[93\] See 4, ante.

\[94\] See 5 7, post.

\[95\] In a railway crossing suit in West Virginia the plaintiff should be taxed with costs if a substantially different crossing is allowed from what was demanded. Wells-burg & S. L. R. Co. v. Panhandle fraction 5348, 6527. Gordon v. Steinmetz \[Ohlo\] 73 5. Cur. Law. COSTS $ 5B. 847

to avoid costs, being to make a tender or offer of judgment.88 A suit on a contract and for a quantum merit for extra work is a suit on two claims within the Iowa Code as to apportioning costs in case of partial success.89 Where some of the objections to an executor's account were sustained, costs should not be taxed against the objector.90 Where plaintiff fails to recover, he is not entitled to costs because his failure was not due to lack of merits.91 On a voluntary dismissal costs go against plaintiff unless the record shows an admission of the justice of his claim.92 Where action and cross action both fail, each party should pay his own costs.93 Where both parties appeal and each succeeds in part, neither should be allowed costs.94 Where a judgment in eigcment is reversed with costs to abide the event, it is not the party prevailing on the retrial following the reversal but the party prevailing on a subsequent statutory new trial who is entitled to such costs.95 Where on trial of an appeal by defendant from justice court, plaintiff recovered a less amount, neither party is "successful" and the costs are in the discretion of the court.96 Where questions are reported to the full court, he prevails who recovers the general judgment and not whose contention on those questions is sustained.97 The party in whose favor the judgment is in money actions has costs, even though some issues were decided adversely.98 Disclaimer, if in full,99 entitles defendant to subsequent costs.1

($ 5) \_B. Waiver of right and effect of tender or offer of judgment.\_2--A statute providing that if a defendant does not use a claim as a set off he cannot recover costs in a subsequent suit thereon, applies only to claims which may be set off; hence not to an unliquidated claim.3 Denial of costs to the successful party for failure to perfect and enter judgment will not be made if some subsequent determination of the court is necessary before judgment,4 nor where he has once perfected judgment which was later amended on retaxation by adding other cost items.5 Payment as a condition to relief in the suit may be waived or the time extended.6 It is quite generally provided by statute that if defendant shall make a timely 7 and unconditional offer 8 of a certain sum or judgment therefor, with accrued costs,9, 10 he is entitled to costs unless plaintiff recover a more favorable judgment.11 The Missouri statute providing for the deposit of "the amount of the debt or damage" defendant admits to be due applies to suits for unliquidated damages,12 and no notice of the deposit of the sum admitted to be due is required.13

SS 6. _Right dependent on minimum amount of demand or recovery.14--In California where plaintiff recovers less than $300 in Superior court, he is not entitled to costs.15_

SS 7. \_Right affected by nature of action or proceeding or character of tribunal.16 A. In general.17--Proceedings under the lastard act are so closely related to the ordinary civil action that costs are taxable therein under the statute relating to actions.18 A proceeding by an occupying claimant to be reimbursed for his improvements is a "civil action" in which he is entitled to costs, though the judgment for such reimbursement is not absolute, but merely establishes a condition precedent to the recovery of possession.19 To relieve a husband from costs in a divorce suit, it must appear not only that the wife was in fault but that she had property ample to pay the costs.20 Costs in admiralty are wholly in discretion and are regulated as in equity.21 Under statutes putting witness fees in criminal cases on the county when conviction results, the supervisors have no discretion to disallow such claims.22 In cases of seizure of goods for violation of the customs laws, the proceeding is at common law, and the losing party is liable for court costs.23

4. Replevin where it was not yet ascertained whether judgment should be alternative or not. Dresser v. Lemma, 122 WIs. 387, 100 N. W. 844.

1. Hart v. Godkin, 122 WIs. 646, 100 N. W. 1057.

1. Crossman v. Griggs \[Mass.\] 74 N. E. 358.

1. An offer on appeal from Justice to county court is good, though defendant has not yet appeared and though the time after fling return at the expiration of which the case is deemed at issue in county court had not elapsed. Cutting v. Jessmer, 101 App. Div. 283, 91 N. Y. S. 658.

1. A tender is not conditional which excacts nothing from the other party, though it is accompanied by statements as to what it shall accomplish. Tender of taxes paid as "full payment," etc., and for "redemption." Glos v. Dyche, 211 Till. 417, 73 N. E. 757.

9, 10. An offer of judgment which does not cover accord interest and costs is insufficient. Dietz Co. v. Miller, Sears & Valling Co., 88 N. Y. S. 322. A tender to avoid costs must be of the full amount due and subsequently recovered. Hess v. Peck, 111 Till. App. 111: Donaldson v. Severn River Glass Sand Co., 128 F. 691. In admiralty must be kept good or renewed after suit brought. Donaldson v. Severn River Glass Sand Co., 138 F. 691, An offer of judgment may be subscribed by attorney not being governed by the statute relating to patents. Cutting v. Jessmer, 101 App. Div. 283, 91 N. Y. S. 658.

13. A judgment for a certain sum with mechanics' liein on property is more favorable than an offer of judgment for a greater sum without lien. McNally v. Rowan, 101 App. Div. 342, 92 N. Y. S. 250. Failure to recover more than a rejected tender sublects the party to costs. Adams v. Pittsburgh, etc., R. Co. \[Ind.\] 74 N. E. 991.

01. Atikins v. Ost \[Mo. App.\] 86 S. W. 903.

01. See 3 C. L. 946.

01. Boland v. Ashurst Oil, Land & De.

volpment Co., 145 Cal. 405, 78 P. 871.

16. See 3 C. L. 946.

01. See 3 C. L. 946.

Note: The law of costs in Feweral courts is exhaustively discussed in Gunckel on Federal Costs. See, also, Costs in C. C. A. (special article) 8 C. L. 954.

17. See 3 C. L. 946.

01. Pecole v. French \[Kan.\] 80 P. 997.

01. Tice v. Hamilton \[Mo.\] 87 S. W. 497.

01. Steele \[Xy.\] 84 S. W. 616.

01. The Oregon \[C. L.\] 133 F. 609.

Denied in salvage suit excessive in amount claimed and long delayed, because of which delay defendant's proofs became difficult to obtain. Merritt & C. Derrlck & Wreck-Ing Co. v. Morris & C. Dredging Co. \[C. C. A.\] 137 F. 780.

22. Climate v. Appomose County, 125

01. United States v. 150 Head of Cattle and 52 Calves, 3 Arriz. 134, 5 Cur. Law. COSTS $ 7C. 849

(SS 7) B. In equity and equitable code actions.24--In equity it rests in the sound discretion of the court,25 except as the power is affected by statute 26 to allow,27 deny,28 or apportion costs;20 but the legal rule of awarding them to the successful party is ordinarily followed.30 In Georgia the jury may recommend but cannot decide the taxation of costs in equity.31 The defeated claimant must pay costs of interpleader.32 Costs out of the fund may be awarded to the interpleading plaintiff and that defendant who is in the wrong should be taxed to reimburse the fund as well as for costs between them.33

(SS 7) C. In inferior courts.34--Garnishees entitled to costs in "courts of record" cannot have them in attachment proceedings by justices of the peace, aldermen or magistrates.35 A probate order is "contested" within a statute making costs discretionary where it was appealed from the probate court and again appealed, which appeal was then voluntarily dismissed.36 The discretion as to allowance of costs given to the county court on reversal of a justice for errors not going to the merits will not be disturbed except for abuse.37 The filing of a writ-

24. See 3 C. L. 946. 25. Symms v. City of Chicago, 115 ILL
    ten notice of appearance or a verified pleading is an absolute prerequisite to the right of a defendant to recover costs in municipal court.\[38\]

(SS 7) \_D. In interlocutory or special proceedings.\[39\]--\_The allowance of costs in special proceedings \[40\] on motions \[41\] or other interlocutory proceedings,\[42\] and the imposition of costs as a condition of relief therein, rests in discretion.\[43\] The discretion is not arbitrary but according to legal principles.\[44\]

(SS 7) \_E. On appeal or error.\[45\]--\_On affirmance or reversal costs are ordinarily allowed to the prevailing party; \[46\] but where appellant did not oppose the order below,\[47\] or apply below for correction of an error of inadvertence,\[48\] or failed to abstract the record,\[49\] or if he needlessly appealed,\[50\] or where the amount he was prejudiced is less than the amount necessary to give appellate jurisdiction,\[51\] or where he showed no interest,\[52\] he will not be allowed costs, though a reversal is ordered. In like manner, where a reargument was made necessary by failure to procure a substitution respondent was charged, even though there was affirmance in both hearings,\[53\] and waiver of appeal costs by respondent has been imposed as a condition of affirmance where appellant's recovery below was slightly inadequate.\[51\] On dismissal, respondent is ordinarily entitled to costs.\[55\] On 'substantial modifications'

**38. Laws 1902, p. 1585, c. 580, Rice v.**

Hogan, 45 Misc. 400, 90 N. Y. S. 395.

**39. See 3 C. L. 543.**

\*\*40. In eminent domain proceedings successfully illigated by a landowner, he should have costs, though no statute so provides, for to disallow them would diminish his "just compensation." Petersburg School Dist. of Nelson County v. Peterson \[N. D.\] 103 N. W. 756. Costs are not allowable in condemation proceedings. In re Rapid Transit Com'rs, 93 N. Y. S. 362.

A supplemental order after judgment giving directions to the receiver as to the collection of the judgment is not a "final order in a special proceeding" on which additional attorneys fees can be allowed the reserve. Adams v. Elwood, 93 N. Y. S. 327. Costs of tunacy proceeding against innate!s estate. Brooke's Lunacy, 24 Pa. Super. Ct. 430.

**41. Motion costs charged against party**

where he confessed the motion by remedying the defect complained of. Matthews v. Nefsv \[Wyv.\] 78 P. 664. On denying an un-opposed order, costs should not be imposed on the moving party. In re Collins Estate, 93 N. Y. S. 342.

\*\*42. Costs to the time of an amendment of the petition which does not change the issues should not be charged against a plaintiff who succeeds on the merits. Kears v. Gordy \[Tex. Civ. App.\] 78 S. W. 85. W. 85. Counsel fee allowable to opposite attorney on overruling demurrer (Practice Rule 86) is not allowable of course, but only when demurrer was clearly frivolous. Mangnet to v. Crankshaw \[R. I.\] 59 A. 309. On granting a new trial because of falsify of the testmony of a principal witness, the costs of the motion should abide the event. Chapman v. Delaware, L. & W. R. Co., 102 App. Div. 176, 92 N. Y. S. 304 On allowing an amendment setting upon a new defense after a mistrial, costs to date should be imposed Bruns v. Brooklyn Citizen, 98 App. Div. 316, 90 N. Y. S. 701.

\*\*43. New trial on the weight of evidence being matter of favor, imposition of costs as condition is proper. Larsen v. United

**44.** 5 Cur. Law. COSTS $ 8.

fication," the appellant is usually deemed the prevailing party, but the allowance or apportionment of costs rests in discretion." A party fails to bring an appeal to hearing within a statute depriving him of costs in such event where the appeal is dismissed for failure to file return unless he comply with a condition, and he fails to do so." Appellant is entitled to tax his costs on appeal before the new trial is had." Plaintiff should be taxed with the costs of an appeal by him where a reversal on such appeal resulted of course from a general reversal on defendant's appeal."

SS 8. _Amount and items; after trial._"Where the right to costs is in discretion," the items allowable are likewise discretionary." Where not discretionary, the items taxable is governed by statute," and some statutes make a judgment on the merits prerequisite to taxation of full costs." Among the items usually allowed are jury fees," fees and mileage of witnesses " actually called," fees of referees," expenses of reference," and costs of depositions." Allowance of an at-

Tracy v. Scott \[N. D.\] 101 N. W. 905. Apellant cannot withdraw an appeal from municipal court without costs, nor can the court permit him to do so. Mallery v. In-
torney's fee is permitted by some statutes,12 but such costs must be specially allowed.73 A statute making each party liable for his own costs to "officers and witnesses " and fixing the liability for costs on the final outcome of the proceeding, does not exclude all costs which are not to officers and witnesses.74 The Massa-ehusetts law is valid which empowers the court to reduce costs where two or more cases are tried together.75 Under it the aggregate of costs in all the cases is to be considered 76 but not reduced below the maximum recoverable in any one.77 For being sued in the wrong county only such costs will be allowed as will compensate for the increased expense of defending.78 Where defendant prevails on a plea of matter occurring after suit, he is only entitled to costs accruing after answer.79 Costs will not be limited to those posterior to a new count if it merely pleaded a different right of recovery on the same wrong.80 In condemnation proceedings if plaintiff succeeds on trial of issues raised by answer, he is entitled to trial costs, but not to costs of hearing before the commissioners unless he made an offer.81

Footnote 78: The author is grateful to the anonymous referee for the assistance of the author.

\_Interlocutory proceedings.--\_Costs of motion may be taxed on allowing an amendment and full costs allowed to the amending party on the outcome of the judgment in his favor.82 Where, after a reversal, a party is certain to lose on the record as it stands, all accrued costs should be imposed on allowing an amendment of pleadings.83 Not more than $10 can be allowed in municipal court on permitting amendment.84 On overruling demurrer, costs of the demurrer only, and not of the action, should be allowed.85

Footnote 83: The author is grateful to the anonymous referee for the assistance of the author.

\_Extra allowances.80--\_An extra allowance of costs in difficult cases,87 usually

Footnote 83: The author is grateful to the anonymous referee for the assistance of the author.

Cobb v. Rhea, 137 N. C. 295, 49 S. E. 161 Where the statute as in Wisconsin commits the allowance of referees' fees to the court, stating no criteria of their amount, 138 F. 609. Attorney's fees cannot be allowed as costs in the absence of agreement of statute. Dame v. Cochlit Reduction & Improvement Co. \[N.I. 79 F. 296.\] Allowed to referees for sititings away from home if such sititings promote the efficiency of the reference. Id. 70. Extending and transcribing testi-mony before a referee may be necessary to advise the referee as the reference proceeds; hence should be allowed although never needed for a report. Winnebago County v. Dodge County \[VWs.\] 103 N. W. 255. EnilliF's fees on a reference may be allowed when the magnitude or difficulty of the reference or the care of exhibits is such that the reference is thereby expedited or facilitated. Id. 71. It is equivalent to not reading the examination of a party at the trial if the party taking it prevents a trial by standing on the ruling on a demurrer. Taxed to plaintiff under Burns' Ann. St. 1901, $15, $19, he refusing to plead over. Citiens' Nat. Bank v. Alexander \[Ind. Appl. 73 N. E. 279.\] 72. Averment that defendant "has so acted" as to necessitate suit is not equalism tent to "stubbornly liftigious" or "has caused * unnecessary trouble and expense" warranting taxation of attorney's fee. Central of Georgia R. Co. v. Chicago Portrait Co. \[G.a.\] 49 S. E. 277. In a llq-vor injunction contempt case, an attorney's fee in addition to 10 per cent. of the fine may be taxed as costs. Brennan v. Roberts, 425 Iowa, 615, 101 N. W. 460. In admiralty only reasonable fees proportional to the service rendered are allowable. $20 proctor's fee in each case reduced to $10 based on the amount claimed or recovered,88 is authorized by some statutes to be made in the discretion of the trial court89 to the prevailing party.90 Where the cost judgment was left blank as to amount because costs as to some parties had not been taxed, an extra allowance to such parties may be made and inserted therein.91

Footnote 90: The author is grateful to the anonymous referee for his comments.

On appeal or error.92 The prevailing party is ordinarily entitled to tax cost of briefs,93 and in some states "costs of argument,"94 and of printing the record,95 but charges for unnecessary portions thereof will be disallowed.96 Costs of an additional abstract may be taxed against a successful appellant if his abstract was materially deficient in doing justice to appellee,97 but an unnecessary one will be at appellee's cost.98 Costs of a "case," "abstract," or bill of exceptions are generally regarded as trial costs,99 but are in Iowa regarded as appeal costs.1 Where appellant orders a partial transcript, appellee may have the remainder copied and on

sonal injury case. Wright v. Fleischmann, Carolina Code. Western Union TeL Co. v. 99 App. Div. 547, 91 N. X. S. 116; Harvey v. 94. Civ. Code 1902, % 3098 allows award Leonard v. Union R. Co., 98 App. Div. 204, % 3098. Cots of argument costs ($25) on appeal from 90 N. Y. S. 574. Extra allowance or re-

over of a justice of the supreme court as covary on foreign judgment defended

well as in ordinary appeals. Western

again on ground that they were void for

Union TeL Co. v. Winsnoyte \[S. C.\] $1 S. E.

vant of jurisdiction. Johnston v. Mutual

588. "Costs for argument" cannot be taxed

Reserve Life Ins. Co., 93 N. Y. S. 1048; Id.

93 N. Y. S. 1052. Extra allowance not ob-

other case without argument. Nichols v.

jected to an sustained by equitable con-

siderations will not be reversed, though the

case is not a proper one for extra allow-

casc. Schiff v. Tamor, 93 N. Y. S. 883. An

cost of both parties, the prevailing party is

allowance of $50 costs to an insurance com-

emtitled to tax the share paid by him. Bell

pany which deposits the amount of the policy in court is improper. Lane v. Equiti-

ing costs are a part of costs on appeal.

able Life Assur. Soc., 102 App. Div. 470, 92 N. Y. S. 877.

588. Extra allowance of $4,000 in will

contest reduced to $1,750. Rothschild v.

one appellee and reversed as to the other,

wise, 92 N. Y. S. 1078. An extra allowance

will not be reduced because of the act of

transcript as would have been necessary to

the opposite parties in stipulating away

the part of the case as to which there was

the difficulty in the case after preparation

reversal. Medearus v. Granberry \[Tex. Civ. had been made for trial. People v. Boot-

App.\] $6 S. W. 740. One who took no meas-

man \[N. Y.\] $72 N. E. 505. When there is

are to exclude landinside evidence can-

no "sum recovered or claimed" and no allegation as to the "value of the subject-

lor v. Marshall, 132 F. 407. Unnecessary

matter involved," an allowance cannot be

matter in the statement of facts cannot be made under the New York Code. Code Civ.

Proc. $ 3253. Kitching v. Brown \[N. Y.\] $72 N. E. 241. Suit for partnership accounting

held to present basis for computation of

extra allowance. Slater v. Slater, 99 App. Div. 460, % 31 N. Y. S. 249.

89. Johnston v. Mutual Reserve Life Ins. Co., 45 Misc., 316, 90 N. Y. S. 539.

01. That a party did not prevall as to

some of his claims does not deprive him of

his right to an extra allowance. Partnership accounting. Slater v. Slater, 99 App. Div. 460, % 31 N. Y. S. 269. Where the diff-

cntly was due principally to a counterclaim

and defendant recovered in part thereon,

plaintiff is not entitled to an extra allowance. Huber v. Clark, 93 N. Y. S. 1090.

91. Bowers v. Male, 1102 App. Div. 609,

92 N. Y. S. 183.

92. See 3 C. L. 951.

01. Appellant is not entitled on reversal

to tax cost of a reply brief filed by him out

of time. Stowve v. La Conner Trading &

Transp. Co. \[Wash.\] $1 P. 97. A paper

termed "argument" but brief and substan-

tally only the "points and authorities"

may be regarded as the latter and print-

ing disbursements allowed under the South affirmance tax the same." Under the rule of costs to the time of the first error, all trial costs will be awarded appellant on reversal for lack of evidence to support the judgment." After reversal with costs to abide the event, payment of such appeal costs may be imposed as a condition of allowing an amendment changing the cause of action." Where a reversal does not affect the cost judgment, only costs subsequent to the reversal should be taxed after judgment on the retrial." Costs or penalty for needless or frivolous appeals are generally authorized."

SS 9. _Procedure to tax costs; correction and review."_--Costs must be taxed in the suit in which they were recovered and cannot be liquidated and recovered by action." Costs are usually taxed by motion or application on notice " entitled in the case," and supported by affidavit as to facts not of record." Fees to a

exceptions is trial cost and abides the (ties filling those characters. 2 Barbour, event; hence a successful appellant cannot

Ch. Pr. 836; Adams, Eq. 391. In suits of a recover them as appeal costs. Pettis v.

Higious class, the taxation is always "as Green River Asphalt Co. \[Neb.\] 101 N. W.

between party and party," but in those of a protective or administrative kind, its adoption, though general, is subject to exceptions. The suits in which an exception

Is made are those for performance of trusts

3. Westfall v. Walt \[Ind.\] 73 N. E. 1089.

1. Dibchl v. Drager, 83 N. Y. S. 151.

1. Talcott v. Wabash R. Co., 99 App. Div.

23, 90 N. Y. S. 1037.

6. Ft. Worth & R. G. R. Co. v. Hadley

\[Tex. Civ. App.\] 86 S. W. 932; Natalaxvick v.

Oppenheimer \[Tex. Civ. App.\] 85 S. W. 855; St. Louis, etc., E. Co. v. Carroll \[Ark.\] 84 S. W. 475; Van Wormer v. Vaughan \[Tex. Civ. App.\] 84 S. W. 278; Kessler v. Hecht,

121 Ga. 274, 48 S. E. 922. Double attorney's

66s taxed as a penalty for appealing from

overviling of a frfvolous demurrer. Rev.

St. 1889, $ 2951. Sprague v. Maxey, 122

7Vks. 509, 100 N. W. 832. A penalty for

dilatory appeal will follow affirmance if

there was a question fairly open to doubt.

Times-Democrat Pub. Co. v. Moze \[C. C. A.\] 136 F. 761. Costs by way of damage

for an unjustible appeal will not be imposed on a school trustee. Chiles v. School

Dist. of Buckner, Jackson County \[Mo. App.\] 85 S. W. 880. Allowance of 10 per cent. of the amount superseded will not be granted where the fund is in court. Rail v. Dineen \[Ky.\] 87 S. W. 275. 10 per cent. damages where judgment was superseded

not allowed when fund in controversy was

in court. Id. Eight months delay after taking appeal before motion to remit to court of intermediate appeal coupled with

failure to assign error or prepare paper

book. McFadden v. McFadden \[Pa.\] 61 A.

75. No paper hook served and appeal non-proposed. Wilcox v. Merrill, 26 Pa. Super.

Ct. 59.

7. See S C. L. 952.

NOTE: How costs are avarded in

Equity: "Costs are to be awarded as a part of the decree, or they cannot be recovered,

although they may be, and generally are,

taxed after the decree." Coburn v. Schroeder, & F. 521. The amount of costs pay-

able in a suit, whether given out of a fund, or payable by a party, is ascertained by

taxation, which, if conducted by the strict rule of the court, is termed a taxation "as between party and party," which are the ordinary costs allowed by the court; but

there is in some cases a more liberal allow-

ance, called costs "as between solicitor and clint," which are the costs allowed to par

## 5 Cur. Law.

COSTS $ 9.

referee who died should be taxed on the incoming of his successor's report.\[12\] The fixing and apportionment of referee's fees is in North Carolina regarded as a final judgment;\[13\] but a motion to fix them is not an action distinct from the cause.\[14\] Approval by the corporation attorney of cost bill of one acquitted of misdemeanor is required only on acquittal in police court, not on acquittal on appeal therefrom.\[15\] A judgment entry with the words "Costs taxed at $----" satisfies a requirement that the amount recovered or to be paid shall be set out in figures; the amount of costs being fixed by law, the subsequent filling of the blank space is sufficient.\[16\] Where a judgment is affirmed as amended and appeal costs are directed to be taxed against the prevailing party, the taxation should not be made in the judgment as made.\[17\] Adjudging costs to one defendant does not determine as between plaintiff and other defendants.\[18\] The remedy to review a taxation by the clerk is by motion to retax.\[19\] One who moves to retax has the burden of showing error in the taxation.\[20\] Only the papers before the clerk on taxation can be used on a motion to retax.\[21\] On such motion the court may approve nunc pro tune a charge taxed without approval.\[22\] Retaxation may be had pending an appeal from the judgment,\[23\] and inadvertence of the court in omitting an item of costs can be corrected after remand on affirmance.\[24\] Fees allowed on garnishment may be challenged by plaintiff in the main action after verdict and judgment in his favor.\[26\] A taxation will not be modified to charge a dilatory party on the tardy application of the losing party.\[26\] Appeal or error ordinarily will not lie from a cost judgment alone.\[27\] The discretion of a chancellor will not be reviewed unless abused,\[28\] and it is presumed correct unless the evidence is certified in the record.\[29\] The record will not be searched on a general bill of exceptions to review a finding that unnecessary witnesses were called to the same fact.\[30\] Where the objection is that no costs should have been allowed, the question saves itself for review without a motion for retaxation.\[31\] Where the award follows judgment as an incident, an objection at trial is not essential to raise the right to costs when appealed.\[32\] A motion addressed to the taxation of two separate kinds of costs is separable\[33\] and as to the part respecting those costs which pertain to appeal and as to which there856 COSTS SS 10. 5 Cur. Law.

is a transcendence of jurisdiction, certiorari lies.\[34\] If an amendment of the record on which taxation is based is allowed after appeal from the taxation, the proper practice is to decide the appeal by reference back for a new taxation.\[85\]

SS 10. \_Enforcement and payment.\[36\]--\_Costs, being part of the judgment,\[37\] are enforceable by the regular process of execution, and the ordinary rules as to levy and sale\[38\] are applicable.\[39\] An execution should specifically command the making of appellate costs and not treat them as incident to the judgment.\[40\] Judgment for costs against plaintiff cannot be enforced by body execution unless a judgment for him could have been so enforced.\[41\] A statute authorizing the issuance of fee bills will not be extended to fees not enumerated in the statute.\[42\] An interlocutory judgment for costs is not collectible until final judgment.\[43\] If in partition no sale is necessary; the costs are a bare lien on the land to be enforced by bill; a sale for the satisfaction of costs only is invalid.\[44\] When final costs are taxed in partition, the case is closed and subsequent proceedings to charge one purpart do not affect interim purchasers.\[45\] The party may satisfy a cost judgment, as costs belong to him, not to his attorney.\[46\] Where a deed is set aside for incompetency of the grantor, costs before the decree should not be charged against the land.\[47\] Execution for costs should not go against an estate but be charged against it to be paid in due course.\[45\] Costs rightly taxed against an estate are an "expense of administration" and not a "claim,"\[49\] and they take priority accordingly.\[50\] A cost fi. fa. may be enjoined if defendant's liability rests on conflicting evidence and a hearing is necessary to determine it.\[51\] Limitations on costs runs as in a simple money demand or as on implied contract, not as on judgment.\[37\] Payment is often eoerced by making it a condition on the right to proceed further.\[63\] Rendering judgment against a party for failure to comply with a court rule requiring the payment of certain costs before the examination of the witnesses is unconsitional as depriving one of property without due process of law.\[54\]

33, 34. Berkey v. Thompson, 126 Iowa, 394, 703 N. W. 134.

35. Smith v. Wens \[Mass.\] 73 N. E. 651. 86. See 3 C. L. 954.

01. Referee's fees become a part of the judgment and when allowed against an estate partake of the rank and priority of the judgment. Cobb v. Rhea, 137 N. C. 295, 48 S. E. 161.

01. See Executions, 3 C. L. 1397.

01. A levy should include several tracts either of which will amplify suffice. Henderson v. Kibble, 211 N. E. 1091. A sale at an inadequate price for costs will be invalid if the requisite demand before selling was not made. Thirty days demand wanting and sale for one-tenth value. 1 Rarr & C. Ann. St. 1896, p. 1076, s. 3, & 8.

Jenderson v. Kibble, 211 N. E. 1091.

40. If the judgment has been paid, it should command making of costs only. Hopper v. Smith \[N. J. Law\] 60 A. 63.

01. Not where the action was for personal injury by negligence of defendants' servant. Davids v. Brooklyn Heights R. Co., 45 Misc. 298, 82 N. Y. S. 220.

01. Fee bill for referee's fees unauthorized. Manewal v. Proctor \[Mo. App.\] 87 S. W. 30.

01. Cassavoy v. Pattison, 101 App. Div. 128, 91 N. Y. S. 876.

44.5 Virginia Iron, Coal & Coke Co. v. Roberts, 103 N. 661, 49 S. E. 984.

46. Early v. Whitney, 94 N. Y. S. 728.

01. Combs v. Combs, 26 Ky. L. R. 617, 82 S. W. 198.

01. Clemens v. Kaiser, 211 N.L 460, 71 N. E. 1055.

01. 50. Ferguson v. Woods \[W!ts.\] 102 N. W. 1094.

01. McLeod v. Redd, 120 Ga. 785, 48 S. E. 315.

01. Fulton County v. Boyer, 116 Ill. App. 388.

01. The requirement that costs be paid before a nonsuited or discontinuing party may begin anew does not bar the state from extracting a recognizance whilst its action against the sureties is pending and costs unpaid. State v. Cornell \[S. C.\] 50 S. E. 22. Nonpayment of costs addwided in a former action for the same cause is ground for stay. Lederer v. Krausz, 90 N. Y. S. 402. Proceedings had pending a stay for nonpayment of costs are not void, but only irregular and payment of the costs cures the irregularity. Jacobs v. Mexican Sugar Refining Co., 45 Misc. 56, 90 N. Y. S. 824. Payment of costs on dismissal is prerequisite to another action for the same cause. Ingrossov v. Baltimore & O. R. Co., 5 Cur. Law. COUNTERFEITING. COUNTIES SS 1. 857 CONUTERFEITING.

On a prosecution for uttering, possession of moulds for coins of a different denomination than those uttered may be shown to prove criminal intent,${}^{\\tt 55}$ and the dismissal on the trial of a count based on possession of such moulds does not withdraw such evidence.${}^{\\tt 56}$

**SOUNTERS.**

**SS 1. Creation and Organization (S57).**

**SS 2. Officers; Personal Rights and Linkabilities (S59).**

**SS 3.- Public Powers, Dutles, and Labilli-**

tion the property and liabilities between the resulting divisions; but where an act changing boundary lines fails to apportion the indebtedness between the counties concerned, the legislature may provide for such apportionment by a subsequent act.\[68\] The division of property between two counties where a portion of one is annexed to the other depends chiefly upon the provisions of the statute making such change of boundaries.\[69\] The fixing of boundaries is a legislative function; but in case of a dispute as to the interpretation of a statute fixing boundary lines, the courts have jurisdiction of the controversy.\[70\] But where the legislature has prescribed a mode of proceeding for the fixing of uncertain lines, that mode must be followed and exhausted before recourse can be had to the courts.\[71\] The boundaries of two parishes being involved, the suit may be brought in either parish.\[72\] The incorporation of new boroughs is provided for by general statute in Pennsylvania, and while the court which is given jurisdiction of the proceeding has a large discretion therein,\[73\] jurisdictional facts must appear if such proceedings are to be upheld.\[74\] Where a borough in which the county seat is located is divided into two boroughs, the new borough in which the county buildings are situated may be given a new name.\[75\] The shifting of the channel of a river which is the dividing line between two counties does not change the boundary of the counties.\[76\]

The method of procuring the removal of a county seat is statutory, and the validity of such proceedings is dependent upon compliance with the terms of the statute.\[77\]

**68. Desha County v. State \[Ark.\] 84 S.**

**A**a\*\*efton for the incorporation of a new p. 174, provide for the ascertainment and adjustment of the indebtedness of Chicat and Desha counties and the manner in which a settlement may be enforced, and are within the power of the legislature, the Act of 1879 changing boundaries not having adjusted finances. Id. Before the Act of 1889, Chicot county had no right of action against Desha county, since before the act the latter county was not capable of being sued. Id.

**69. Sess. Laws 1903, p. 204, annezing a portion of Shoshone county to Nex PFC County, construed and proper division of property indicated. Shoshone County v. Thompson \[Idaho\] 81 P. 73.**

**70. Parish lines. Parish of Caddo v. Parish of Caddo v. Parish of Caddo v. Parish of Dc Soto \[La.\] 38 So. 273; Parish of Caddo v. Parish of Red River \[La.\] 38 So. 274.**

**80.**

**81.**

**82.**

**83.**

**84.**

**85.**

**86.**

**87.**

**88.**

\*\*89.

## 5 Cur. Law. COUNTIES SS 2.

SS 2. _Officers; personal rights and liabilities._"--The appointment of county officers is provided for by constitutions " or statutes." The legislature cannot abolish an office established by the constitution," nor appoint officers by special laws." It may prescribe the duties of county officers so far as such duties are not prescribed by the constitution," and may provide for other county officers unless prohibited by the constitution." Compensation of officers is entirely statutory." County supervisors are not entitled to compensation in excess of that provided by statute, notwithstanding the reasonable value of their services or the custom

showing is made. Robertson v. Grant 84. Creation of county board of assess County Com'rs \[Okl.\] 79 P. 97. Allega-

tions of petition held insufficient. Id. on reality in first instance held valid. Mis-

Signears of a petition for the calling of an

sonir River Power Co. v. Steele \[Mont.\] 80 election for the removal of the county seat,

P. 1093.

may withdraw their names from the petition at any time before the county court

county clerk to per diem compensation for

has taken final action on the petition. Un-

der Hurd's Rev. St. 1903. p. 553.

in court pursuant to provisions of $ 6988,

quiring names of two-fifths of voters of

$ 899. Hentsed County v. Goodlett \[Ark.\] county on petition to give court jurisdiction.

$ 8. W. 787. Klrby's Dig. $ 3493 does not

entile the county clerk to a fee of 10

Under Acts 1900-1901, P. 75, providing the

cents each for filing justice of the peace

method of procuring new county buildings

reports. Id. Ky. St. 1903, $ 1845 ffxos

upon removal of the county seat, the

compensation of members of fiscal court

tribution of the county must be made out

of the revenue of the county for one year

other compensation. Boyd County v. Arrownt increasing the tax rate for that

that, 26 Ry. K. L. R. 968, S. W. 613. In

year. Hand v. Stapleton, 140 Ala. 555, 37

Rev. St. $ 2813, providing for the per diem

So. 362.

$ 85. See 3 C. L. 961.

before the word "county" should read

79. A county commissioner is a county

"each" so as to make the law general, and

officer within the meaning of Const. art. II.,

hence constitutional. The word "such"

$ 6, authorizing the filling of vacancies in

couldise by the county commissioners:

Carlisle, 2 Ohio N. P. (N. S.) 627. Section

hence Ball. Ann. Codes & St. 3 237, provid-

$ 897 makes no provision for mileage for

ing for filling of vacancies in county board

county commissioners when traveling ei-

by other officers, is unconstitutional. State

ther within or without their own county.

V. Fulton \[Wash.\] 79 P. 779. Road super-

The provision for "necessary traveling ex-

visors appointed by county commissioners

penses when traveling outside of the

and removable at will are not county off-

cours on official business" is a provision

cers, but employees, and are not within the

terms of Const. art. 11, 8, 5, requiring gen-

expenses-for the cost of going and com-

eral and uniform election laws to be passed

ing, but not for board and personal

for election of county officers. State v.

Penses. Id. County treasurers commissions, in Mississippi, are to be estimated

80. Under Laws 1901, c. 2, $ 1, providing

on basis of political year, beginning and

ing for filling of vacancies in county offces

ending in January and not on basis of

caused by death, resignation "or other-

fiscal year. Adams v. Coker \[Miss.\] 87 So.

wise" by appointment by the governor,

74. Schools In special districts are not

cancies other than those caused by death or

under the official supervision of county

-

resignation are to be so filled. Territory

v. Gutierrez \[N. M.\] 78 P. 138.

account in computing their salary, under

St. Acts 1876, p. 322, consolidating

offces of county treasurer and clerk of the

Hicks \[N. D.\] 103 N. W. 423; Dickey County

superior court, making such clerk ex

offc troasurer and fixing his fees, is un-

containtional because it abolishes the office

of treasurer fixed by ventilation. Morris

v. Glover, 121 Ga. 751, 49 S. E. 178.

82. Under 24 Stat. 170, prohibiting ter-

ritorial legislatures from passing local and

special laws regulating township and

county affairs, is law appointing certain

persons as commissioners of a certain

county established by a previous law is

special and invalid. Territory v. Gudterre

\[N. M.\] 78 P. 139. An assessor appointed

by the commissioners by such special law,

according to its terms is not legally ent

titled to the office. Territory v. Albright

\[N. M.\] 78 P.

860 COUNTIES SS 2. 5 Cur. Law. of their predecessors.84 Equity has jurisdiction to compel restoration of moneys illegally drawn by supervisors in excess of their salaries as allowed by law.87 In such a suit by taxpayers defendant supervisors may plead limitations.88 Overpayments made and received in good faith and applied to discharge claims against the county cannot be recovered from the officer receiving them.89 In Tennessee the revenue agent may sue for the recovery of money illegally paid a county officer.90

For breaches of official duty 91 or for negligence resulting in loss to the county,92 officers are liable on their bonds; and willful neglect or breach of duty may render them liable to penalties prescribed by statute.93 A deputy county auditor duly appointed by the auditor at a previous term who continues to perform duties as such deputy during the subsequent term is a de facto officer.94 But whether he was a de facto officer or not, the auditor, with whose permission and under whose supervision he performed such duties, would be liable on his bond for illegal acts of the deputy resulting in loss to the county.95 Negligence of the treasurer in paying cash or checks on forged orders presented by the deputy auditor

to an old one; hence the salary. of the county treasury is also compensation for his duties as supervisor of assessments. 1068. Parker v. Richland County, 211 165, 73 N. E. 451. County auditor was justified in resisting payment of an excessive advertising bill and should be allowed his expenses in so doing. Kloeb v. Mercer County Com'rs, 4 Ohio C. C. (N. S) 565. 884. Va. Code 1904, $ 848, fixes compensation. Johnson v. Black, 108 Va. 471, 49 S. E. 638. 87. Bill by taxpayers held not multi-farious, though against supervisors and predecessors, the defense being the same in every case. Johnson v. Black, 103 Va. 477, 49 S. E. 633. Equity jurisdiction not custed by Va. Code 1904, $ 886, providing for appeal from decision of board by commonwealth attorney when required by six treholders. Id. 88. In suit against supervisors and their predecessors, only those could be held who had accepted money within 3 years before suit. Johnson v. Black, 103 Va. 477, 49 S. E. 633. 89. Where a county auditor in good faith but without legal authority paid a county superintendent of schools, besides the amount of his own salary, the salaries of his clerks, and the superintendent paid the clerks amounts in excess of those received from the county which they accepted in discharge of their claims, the county being thus relieved, the county could not recover from the superintendent the overpayment to him. Dickey County v. Hicks \[N. D.\] 103 N. V. 423. 90. Under Acts 1901, c. 174, a revenue agent may bring suit against a county judge to recover moneys illegally paid him. State v. Kelly, 111 Tenn. 584, S. E. 87. Bill. Under Burn's Ann. St. 1901, $ 6521, 6530, fees collected by a county auditor belong to the county and failure to pay them over is a breach of his official bond. Workman v. State \[Ind.\] 73 N. E. 917. Common law action may be brought against suretions on county treasurer's bond when he has turned his books over to his successor and a shortage appears, though county auditors have not fully adjusted his accounts. Lanster County v. Landis, 209 Pa. 514, 58 A. 1068. 92. County trustee and surety liable for loss of funds deposited in unsafe bank, when though not intentionally dishonest in the matter he could have known of the bank's condition by the exercise of ordinary prudence and caution. State v. Ridley \[Tenn.\] 85 N. V. 891. Where a county treasurer recognizes an order on the treasury issued from the county auditor's office on a blank in every way regular on its face and issues a check on a county depositary payable to the person designated as payee, and gives the check to the pre-tended representative of the payee, in good faith and without negligence, neither the treasure nor his suties are liable for the rogery of the order or the indorsement thereon. Board of Com'rs of Ramsey County V. Elimond \[Minn.\] 102 N. V. 719. 93. Failure of a commissioner to require an account to be itemized and verified under Code, $ 754 renders him liable to the penalty prescribed by Code, $ 711, for neglect of duty. Turner v. McKee, 137 N. C. 251, 49 S. E. 380. County treasurer not liable for penalty imposed by Rev. Code 1892, $ 902, for failure to report to supervisors, where such failure was not wilful but was due to request of supervisors. Adams v. Caker \[Miss.\] 87 So. 744. A county commissioner who through ignorance and not through willingness or with a corrupt motive disregards a statute requiring the exercise of his official duties, is not guilty of criminal misconduct in office, within meaning of Rev. St. 6918, prescribing a fine and forfuture of office as punishment for misconduct in office. State v. Bari, 71 Ohio St. 410, 73 N. E. 514. 94. Board of Com'rs of Ramsey County v. Sullivan \[Minn.\] 102 N. W. 723. 95. Deputy forged orders and indorsements thereon and obtained money by presenting them to the treasurer as the representative of the payee named therein. Isard

## 5 Cur. Law. COUNTIES SS 3.

would not relieve the auditor from liability for his concurrent negligence." Approval and adoption of a report of a county trustee on funds received by him is not a settlement with and a release from liability of his predecessor." Commissions earned by county trustee after failure of bank resulting in loss of county funds are properly applied in reduction of the trustee's liability."

SS 3. _Public powers, duties, and liabilities._"--Counties possess no powers and can incur no obligations not authorized by statute.1 They cannot hold property for profit or take title to it for the purpose of revenue,2 hence a judgment against a county is not a lion on land bought in by the county for taxes.3 Counties are not bound by acts of officers or agents not authorized by law,4 nor can they be estopped by such acts.5 Counties which issue bonds for railway stock and are represented on the directorate of the road do not hold the stock in their governmental capacity, but as ordinary stockholders.6 They are bound by acts of their representatives on the board of directors.7 Mandamus lies to compel performance of ministerial duties of county officers which are clearly fixed by law.8 The liability of a county for expenses incurred in caring for insane persons,9 persons suffering from contagious diseases,10 or others entitled to public aid,11 is regulated by

96. Board of Com'rs of Ramsey County **9.** Under Laws 1896, p. 471, c. 545, $ 65, and Code Cr. Proc. $ 662, when a person **97, 98.** State v. Ridley \[Tenn.\] $5 S. W. **99.** See 3 C. L. 963. **1.** Buchner v. Northumberland County, 209 Pa. 618, 59 A. 69. **2,** S. Buell v. Arnold \[Wis.\] 102 N. W. **338.**

01. A county auditor has only such power as is conferred by statute, and acts in excess of such power do not bind the county. Assignment of certificate to forfeited lands without authority of state auditor of no effect. Patton v. Cass County \[N. D.\] **103 N. W. 174.** County supervisors recommended a certain assessment of railroads by towns and agreed by resolution to bear expense of litigation resulting from such assessment. Held such resolution and agreement was ultra vires and not binding on county. People v. St. Lawrence County **101 N. W. 88.**

01. County board has no power to create an office by employing an attorney for a year with salary payable quarterly; where an attorney is so employed the board may discharge him before the end of the year. Vincent v. Nassau County, 45 Misc. 247, 92 N. Y. S. **32.**

01. County not estopped to assert invadidity of resolution of supervisors providing for payment of expenses incurred by towns in certain litigation, resolution being ultra vires. People v. St. Lawrence County Sup'rs, 101 App. Div. 327, 91 N. Y. S. **84.**

01. Hinds County v. Natchez, J. & C. R. Co. \[Mins.\] $8 So. 189. **7.** County board of action of directors at meetings at which its representative was present and could not question valid: try of stock in hands of one to whom it was sold by directors. Hinds County v. Natchez, J. & C. R. Co. \[Mins.\] $3 So. 189. **8.** Mandamus lies to compel a county treasurer to deposit in a bank its pro rata share of the money's of the county as provided by Cobey's Ann. St. 1905, $ 10,870. **8.**

01. County board of action of directors at meetings at which its representative was present and could not question valid: try of stock in hands of one to whom it was sold by directors. Hinds County v. Natchez, J. & C. R. Co. \[Mins.\] $3 So. 189. **8.**

8.\*\* Mandamus lies to compel a county treasurer to deposit in a bank its pro rata share of the money's of the county as provided by Cobey's Ann. St. 1905, $ 10,870. **8.**

84.\*\* State v. Cronin \[Neb.\] 101 N. W. 825. **9.** Under Laws 1896, p. 471, c. 545, $ 65, and Code Cr. Proc. $ 662, when a person pleads insainty to a charge of crime committed in another county and is committed to an insane asylum, there is no general liability on the county of his residence for the expense of Keeping him in the state asylum. Jefferson County v. Oswego County, 102 App. Div. 232, 92 N. Y. S. 709. **33.**

85.\*\* By-laws 1896, p. 508, c. 545, $ 101, as as as is conferred by statute, and acts in excess of such power do not bind the county. Assignment of certificate to forfeited lands without authority of state auditor of no effect. Patton v. Cass County \[N. D.\] $291, making states of persons cared for method a certain assessment of railroads by towns and agreed by resolution to bear expense of litigation resulting from such assignment. Held such resolution and agreement was ultra vires and not binding on county. People v. St. Lawrence County Sup'rs, 91 App. Div. 327, 91 N. Y. S. 948. **10.** Under Gen. St. 1894, $ 7059, a county county board has no power to create an office by employing an attorney for a year with salarystatute. Reasonable rules regarding the rendition of aid to persons with the care of whom the county is chargeable may be made; \[12\] but a county board cannot discriminate between classes of persons who come within the terms of the statute imposing the duty on the county.\[13\] Liability for witness's fees \[14\] and sheriff's costs \[15\] in criminal proceedings, and for the services of physicians at coroners' inquests \[16\] is also statutory.

The amount of indebtedness which may be incurred by a county is usually limited by the constitution, and this limit cannot of course be exceeded.\[17\] Obligations to be discharged by special assessments and not by general taxation are not usually considered in determining whether the constitutional limit has been exceeded.\[18\] A limitation upon a county's power to levy taxes is not necessarily a limitation upon its power to incur indebtedness.\[19\] Money collected and placed to the credit of a general county fund for a given year cannot be used to discharge debts of a previous year until those of the year for which the money was collected have been paid.\[20\] The laying of a special levy for bridge purposes by a county court does not limit its expenditures for such purposes to the amount raised by such special levy, if their are other available funds.\[21\]

The legislature has power to authorize an issue of bonds by a county to discharge an indebtedness incurred for necessary expenses,\[22\] and may even compel a county to make provision for the payment of such debts.\[23\]

**12.**: City of Spring Valley v. Bureau \[ tion of indebtedness by counties in Illinois. County, 115 Ill. App. 545.

**13.**: Rule that aid should be withheld \[ N. E. 610. Laws 1899, p. 174, providing for from persons who engage in riots or law-\] levy to pay indebtedness of detached porlessness, or go out on strikes, or refense or tion of county, held unconstitutional in so neglect to work when work is available, \[ far as constitutional limit is.authorized to held invalid. City of Spring Valley v. \[ E. 48 S. W. 625. Where a county is already \[ A. 14 S. See, also, Witnesses, 4 C. L. 1943. 11 a. Code, $ 4661 provides that if a defendant law providing for an annual special tax \[ In a criminal case be found not guilty, witness fees shall be paid by the county on \[\] posed court house is invalid, even though certificate of the clerk. Held, supervisors \[ it provides that the county as such shall have no power to disallow claims so pre-\] the special taxes so raised. \[ H. 5, Clausop 101 N. W. 98. Under Code, $ 5492, witnesses for the defense, subpocampal on or-\] providing for assessments to meet payments of interest on railroad bonds, limit-\] for the distance traveled outside as well as inside the state, being summoned from \[\] available state, and hence was not invalid as authorizing a rate above the constitutional limit. \[ L. 1948 S. W. 625.

**18.**: Drainage bonds which show on their face that they are to be paid by taxes on the lands in the drainage district do not constitute an obligation of the county. \[ S. W. 625. 10 A. County is not liable to its shelf for his costs, allowed by Pen. Code 1895, $ 1107, for conducting prisoners before a judge or court to or from jail, but these costs must be collected by the sheriff from \[ the prisoners after convention. H. 5, Clausop 101 N. W. 625. 10 A. County is not liable to the market, but these costs must be collected by the sheriff from \[ the prisoners after convention. H. 5, Clausop 101 N. W. 625.

5 Cur. Law. COUNTIES SS 3.

County boards of commissioners or supervisors, or county courts, are the general representatives of counties, and have only such jurisdiction as is expressly conferred by statute or necessarily implied to enable them to carry out powers expressly granted.24 Powers granted must be exercised in the manner prescribed by law.25 Such boards have the general management and control of the county property and business,26 and where in such matters they are vested with discretionary power, their decisions will not be reviewed by the court in the absence of any abuse of power.27 County boards have the right to compromise or settle claims,28 and

ing of indebtedness and refunding of cer-

of other work of the same kind, though tain bonds, held mandatory and within

there are at the time unpaid orders for power of legislature. Jones v. Madison

that class of work in existence. Id. County Com'r, 137 N. C. 573, 50 S. E. 291,

25. There are three statutory methods

rvg. 135 N. C. 218, 47 S. E. 753.

24. Kemp v. Adams \[Ind.\] Sup. 73 N. E. 590. Under Rev. St. 1887, 5 176, suods, 2,

county council cannot make an appropria-

establish, abolish, and change justices'

tion of money except by ordinance duly

cincts in incorporated citles. Johnston v.

passed as required by statute. Attempted

Savidge \[Idao\] 8 P. 616. The exercise of

supporting by mere motion and order

such power is not prohibited by sess. Laws

1891, p. 60. Id. County commissioners

Newston County Com'r's \[Ind.\] 74 N. E. 1091,

have no power to offer a reward for the ap-

prehension of offenders against the crimin-

hal in a changery clerk's office in a separa-

inal laws of the state. Feliker v. Elk

County Com'r's \[Kan.\] 78 P. 167. County

held void. Sexton v. Coahoma County

commissioners have power to repair a

spirg \[Miss.\] 80 S. 636.

bridge situated within municipal limits but

26. Kerby, Y. Clay County Com'r's \[Kan.\]

on ground which does not belong to the

15. Y. 503; Nelson v. Harrison County

clty. Sherman v. Carlisle, 2 Ohio N. P. (N. S.)

(Iowa) 102 N. W. 197.

S.) 627. The power of county commission-

ers with reference to the elimination of

pers.

102.

### 864 Countries $ 3.

5 Cur. Law.

to determine whether actions shall be brought in the name of the county.20 In West Virginia the county court is the legal representative of the various magisterial districts of the county, which can only sue and be sued in its name, as they have no legal existence for the purposes of suit.20 But in a suit by the county court, the declaration should show whether the suit is for an injury or loss suffered by the county or district and in what such loss or injury consists.21

Footnote 20: The name of the county court is the legal representative of the various magisterial districts of the county, which can only sue and be sued in its name, as they have no legal existence for the purposes of suit.20 But in a suit by the county court, the declaration should show whether the suit is for an injury or loss suffered by the county or district and in what such loss or injury consists.

and for the purposes \[28\] expressly provided by law. A contract obligating the county beyond the constitutional limit is invalid.\[39\] There must have been a valid appropriation before a contract calling for expenditures can be legally made in some states.\[40\] A county cannot be estopped from asserting the invalidity of a contract made without authority,\[41\] nor can such a contract be ratified \[42\] by county officers \[43\] or by taxpayers.\[44\] A contract cannot be validated by a subsequent statute authorizing similar contracts but not expressly applicable to the one in question.\[45\]

County supervisors are ordinarily prohibited from becoming parties directly or indirectly to contracts to furnish supplies, materials or labor to the county,\[46\] and contracts participated in by supervisors contrary to law are to that extent fraudulent and void.\[47\] Warrants issued pursuant to such contracts will not be enforced," and the officers concerned may be compelled to make proper restitution."

The validity of a contract and warrant cannot be determined in a suit between the county and the county treasurer to which the person with whom the contract was made and to whom the warrant was issued is not a party." Taxpayers may maintain a suit to enjoin a county board from accepting a public work which has not been constructed in accordance with the contract when it appears that the board is acting in collusion with the contractors," and a demand upon the board for an action against the contractors is not in such case a prerequisite."

_Bonds._"County bonds must be properly registered and certified." A proposition to vote bonds in aid of a railway, otherwise valid, is not void by reason of a provision authorizing the county to receive capital stock of the company." Where a proposition to vote railroad bonds provides for the future issue of such bonds, the assessed valuation of the county last preceding the actual issue of the bonds should be taken as the basis for determining whether the amount voted is allowed by law." A county may be estopped to repudiate bonds, which are not absolutely void."

_Presentation, allowance, enforcement and payment of claims._"--Claims must be presented in the manner and form " and within the time " prescribed by law. In Michigan one who has performed services for a local health board may himself present a claim to the county." Some statutes provide that a claim must be

formed by \<\< supervisor who used another person as a cover for the fraud. Id. Contract for bridge material far in excess of county's needs, put through by a supervisory just before retiring from office, the price being exorbitant and large profits being realized by bridge company, held fraudulent and collapse. Id.

48. Nelson v. Harrison County \[Iowa\] 102 N. W. 197.

01. Rules under which accounting will be compelled laid down. Lainhart v. Burr \[FIa\]. $8 So. 711.

01. Nelson v. Harrison County \[Iowa\] 102 N. W. 197.

01. Acceptance of free gravel road enjoined. Board of Com'rs of Laporte County v. Wolff \[Ind.\] 72 N. E. $60.

01. Board of Com'rs of Laporte County v. Wolff \[Ind.\] 72 N. E. $60.

01. See 3 C. L. 968; also Municipal Bonds, 4 C. L. 706.

01. County bonds in aid of railroads held nonenforceable because not registered with and certified by state officers as required by law. Frank v. Butler County \[C. A.\] 139 F. 119.

01. Colburn v. McDonald \[Neb.\] 100 N. W. 961.

01. Bonds voted in 1871 but dated and actually issued in 1873. Held, assessed valuation as returned in 1872 governed as to validity of bonds. Colburn v. McDonald \[Neb.\] 100 N. W. 961.

01. A county will not be allowed to repudiate its bonds after a compromise of a suit thereon whereby a reduction in interest was obtained and after 30 years' interest and a part of the principal was paid, unless the bonds are absolutely void. Colburn v. McDonald \[Neb.\] 100 N. W. 961.

01. See 3 C. L. 968.

01. Code, $754, that no account shall be presented before an action can be maintained thereon."22 In allowing claims for services rendered under statutes fixing the compensation therefor, county boards are in a.merely ministerial capacity."23 On failure or refusal to allow such claims, claimant may maintain an action at law against the county to recover the amount claimed."44 On the other hand if a board allows greater compensation than that fixed by law, its action is void and the county may maintain an action to recover the excess, notwithstanding such settlement."65 But in auditing and allowing claims not expressly provided for by statute, county boards are vested with a wide discretion, with the exercise of which courts will rarely interfere.66 Claimants are entitled to a hearing in such cases, the decision of the board being final."7 Where items of a claim have once been audited and rejected, mandamus will not lie to compel the board to audit such items when presented again.68

cient to support the claim.\[74\] A county is not liable for interest on claims against it in the absence of an express agreement therefor.\[75\] A taxpayer may compel restoration of money paid on illegal bills allowed by a board.\[76\]

\_Warrants; issuance and enforcement.\[77\]--\_County warrants must be properly countersigned,\[78\] must sufficiently designate the funds on which they are drawn,\[79\] and can be issued only by and to the officers vested by law with such authority.\[80\] They can only be drawn and issued against and in anticipation of the collection of taxes already levied and must so show upon their face.\[81\] The record of settlements made by a sheriff which does not disclose the dates of orders paid by him is not sufficient evidence to show that certain unpaid orders were issued at a time when there were no funds available for their payment.\[82\] Failure to register a warrant drawn by the ordinary of a county may subordinate payment of it to others duly registered, but does not render it void.\[83\] The law presumes that all officers connected with the drawing of a warrant have performed their duties, and a petition for mandamus to compel payment by the treasurer need not allege such performance.\[84\] An order drawn by the ordinary is evidence of an adjudication by the ordinary that the amount stated is due, and the treasurer cannot go behind the order except for fraud or mistake in the amount.\[85\] A resolution of the supervisors directing the treasurer not to pay a warrant does not legally restrain him from making such payment, though served upon him, the validity of the transaction and warrant not having been judicially determined.\[86\] In Missouri, county warrants presented and not paid because of lack of funds bear interest at six per cent. after such presentment,\[87\] by one who is legally entitled to present the warrant.\[88\] Where the statute provides a form of assignment of warrant, this form

jaintor's services in his office. Board of Com'rs of Harrison County v. Bline \[Ind. App.\] 72 N. E. 1034.

74. Board of Com'rs of Harrison Co. v. Bline \[Ind. App.\] 72 N. E. 1034.

01. Orders providing for interest being held void, and there being no other agreement for interest, claims represented by orders did not bear interest. Coles County v. Goehring, 209 Ill. 142, 70 N. E. 610.

01. A taxpayer may maintain an action against a county board and sheriff to compel restoration of money paid the sheriff on illegal bills audited by the board, although collusion by the board \[s not alleged. Laws 1882, c. 301, applied. Hicks v. Eggleston, 93 N. Y. S. 909.

01. See 8 C. L. 968.

NOTE, When county warrants are its-sealed After a claim against a county had been allowed, the auditor drew a warrant payable to the claimant in payment therefor and himself acquired the money from the treasury by a forged indorsement. Held, the warrant had not been issued to satisfy a statute requiring that the auditor should "issue" a warrant and not having been "Isued" his successor might be combined to do it by mandamus. American Bridge Co. v. Wheeler, 35 Wash. 40, 76 P. 524 (3 C. L. 969, n. 56). This case suggests the novel question as to when a warrant is issued. There is authority for the idea that a warrant is issued when it has actually been delivered or put into circulation, irrespective of whether the person to whom it comes be the one entitled to enforce it. State v. Pierce, 52 Kan. 521. The principal case is for the proposition that it must come into the hands of an authorized person before it is "Issued." Nevertheless the original county auditor bad been 'novicted' of embezzlement of the funds on the theory of agency for the person to whom it was drawn. State v. Kaby, 31 Wash. 111. Principle and justice seem to be subserved in holding the transaction no issuance until the warrant has come into authorized hands."-/ Columbia L. R. 603.

78. Warrants not countersigned by county treasurer as required by 1 Starr & C. Ann. St. (2d ed.) p. 1136, c. 35. Coles County v. Goehring, 209 Ill. 142, 70 N. E. 610.

01. Orders on county treasurer held to designate with sufficient particularity the fund on which they were drawn. Neal Lonn & Banking Co. v. Chastain, 121 Ga. 500, 43 S. E. 613.

01. Court has no authority to make an order on county commissioners to pay a sum of money to enable defendants accused of murder to prepare their defense. Commonwealth v. Dillon \[Pa.\] 60 A. 263.

01. Warrants or orders held void because not showing on their face that there was money in the treasury or in course of collection for their payment, under Rev. St. . 148a, 8 2. Coles County v. Goehring, 209 Ill. 142, 70 N. E. 610.

01. Taylor v. Braxton County Ct. \[W. Va.\] 50 S. E. 720.

01. S4, 85. Neal Loan & Banking Co. v. Chastain, 121 Ga. 500, 49 S. E. 618.

01. Nelson v. Harrison County \[Iowa\]

01. N. W. 197.

01. Applying Rev. St. 1899, $ 3705. Isen-hour v. Barton County \[Mo.\] 88 S. W. 759.

5 Cur. Law. COUNTIES SS 3. 869 must be followed. \[50\] The burden is upon an assignee to show that the statute has been complied with. \[50\] One suing on an order must show that he is a bona fide holder and that it has not been paid. \[91\] Suit on a warrant may be barred by limitations. \[92\] When orders for the payment of money issued by a county court are attacked on the ground of illegality, the burden of proof is on plaintiff. \[93\]

\_Appeals from orders of county boards.--\_Where a board acts within its jurisdiction, its action can only be reviewed by appeal. \[94\] When such an appeal will lie, \[95\] who may or should prosecute it, \[96\] the necessity and sufficiency of a bond, \[97\] and procedure in general \[98\] in the case of such review, are matters regulated entirely by statute.

to commence, since his title is Insufficient. Isenhour v. Barton County \[Xo.\] 88 S. W. \[Kev. St. 1887, $ 1777, as amended by Sess.\]

\_Appeals from orders of county boards.--\_Where a board acts within its jurisdiction, its action can only be reviewed by appeal. \[94\] When such an appeal will lie, \[98\] who may or should prosecute it, \[96\] the necessity and sufficiency of a bond, \[97\] and procedure in general \[98\] in the case of such review, are matters regulated entirely by statute.

,

870 COUTRS $ 1. 5 Cur. Law.

Counts and PABAORAPHS; COUNTY COMMISSIONERS on Supervisors; COUNTY SEAT; COUPLING CAS; COUPRONS; COUNT COMmissionERS, see latest topical index.

COUTRS.

**SS 1. Creation, Change, and Alteration** \*\*SS 3. Places, Terms, and Sessions of Courts (870). **SS 2. Offleers and Instrumentalities of (873).**

The jurisdiction of courts 1 and the effect of decisions as precedents 2 are elsewhere treated.

\*\*SS 1. Creation, change, and alteration.3--A court is a judicial tribunal 4 composed of one or more persons,5 whose duty is primarily to adjudicate controversies,6 though the duty to advise co-ordinate branches of the government has been imposed upon them in some states.7 Unless prohibited by the constitution, courts,8 especu-

Footnote 1: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961. The legislature may confer upon a single justice of the Supreme court the power to hear and determine proceedings in certiorari, and authorize the entry of his order therein as the judgment of the full court. Brown v. Street stituation, providing that all courts shall be depen, and that every man having an injury.

Footnote 2: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961. The legislature may confer upon a single justice of the Supreme court the power to hear and determine proceedings in certiorari, and authorize the entry of his order therein as the judgment of the full court. Brown v. Street stituation, providing that all courts shall be depen, and that every man having an injury.

Footnote 3: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961. The legislature may confer upon a single justice of the Supreme court the power to hear and determine proceedings in certiorari, and authorize the entry of his order therein as the judgment of the full court. Brown v. Street stituation, providing that all courts shall be depen, and that every man having an injury.

Footnote 4: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961. The legislature may confer upon a single justice of the Supreme court the power to hear and determine proceedings in certiorari, and authorize the entry of his order therein as the judgment of the full court. Brown v. Street stituation, providing that all courts shall be depen, and that every man having an injury.

Footnote 5: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961. The legislature may confer upon a single justice of the Supreme court the power to hear and determine proceedings in certiorari, and authorize the entry of his order therein as the judgment of the full court. Brown v. Street stituation, providing that all courts shall be depen, and that every man having an injury.

Footnote 6: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961. The legislature may confer upon a single justice of the Supreme court the power to hear and determine proceedings in certiorari, and authorize the entry of his order therein as the judgment of the full court. Brown v. Street stituation, providing that all courts shall be depen, and that every man having an injury.

Footnote 7: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961. The legislature may confer upon a single justice of the Supreme court the power to hear and determine proceedings in certiorari, and authorize the entry of his order therein as the judgment of the full court. Brown v. Street stituation, providing that all courts shall be depen, and that every man having an injury.

Footnote 8: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961. The legislature may confer upon a single justice of the Supreme court the power to hear and determine proceedings in certiorari, and authorize the entry of his order therein as the judgment of the full court. Brown v. Street stituation, providing that all courts shall be depen, and that every man having an injury.

Footnote 9: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v. Mathues, 210 Pa. 372, 59 A. 961. The legislature may confer upon a single justice of the Supreme court the power to hear and determine proceedings in certiorari, and authorize the entry of his order therein as the judgment of the full court. Brown v. Street stituation, providing that all courts shall be depen, and that every man having an injury.

Footnote 10: See Jurisdiction, 4 C. L. 324; Appeal judge or judges. Commonwealth v.

5 Cur. Law. COURTS SS 3. 8!1

cially those of inferior jurisdiction,9 may be created or abolished 10 by the legislature at will,11 and legislative power over the districts of constitutional courts is subject to constitutional restraint.12 Power to provide for the necessary incidents of a court is implied from the power to establish it.13 Where several counties comprise a judicial circuit, the circuit court of each county is a separate and distinct entity.14 The legal existence of a court cannot be questioned or tried out in a certiorari proceeding.15

Footnote 13: The author is grateful to the anonymous referee for the support of the work.

Footnote 14: The author is grateful to the anonymous referee for the support of the work.

Footnote 15: The author is grateful to the anonymous referee for the support of the work.

Footnote 16: The author is grateful to the anonymous referee for the support of the work.

Footnote 17: The author is grateful to the anonymous referee for the support of the work.

Footnote 18: The author is grateful to the anonymous referee for the support of the work.

Footnote 19: The author is grateful to the anonymous referee for the support of the work.

Footnote 20: The author is grateful to the anonymous referee for the support of the work.

Footnote 21: See SS C. L. 971.

Footnote 22: The purpose of a requirement that courts shall be held at the place provided by law.23

Footnote 23: The purpose of a requirement that courts shall be held at the place provided by law is to give due stability and dignity to the administration of justice, and to protect the interests of lifigants. State v. Richards \[Iowa\] 102 N. W. 439. Where a court was convened in the regular court room and an adjourment taken to another room on another floor of the same building to accommodate a defendant in a weak physical condition, the room being suffiently large to accommodate the court, its 5 Cur. Law.

The terms of court are usually fixed by statute, or under statutory direction,23 though this is sometimes provided for in the constitution of a state.24 Two terms of court cannot be held simultaneously,25 but where the legislature has made provision for calling in a judge from another circuit, there may be a session of the court in two or more counties of the same circuit at one and the same time.26 Courts of officers, the jury, attorneys, and a number of the general public, the holding of court in such room was not error. Id.

23. See 3 C. L. 971. n. 84. Under a provision in an act establishing a city court that one of its terms shall continue"until" the third Saturday in December excludes that day. Johnson v. State \[Ala.\] 37 So. 421. South Dakota Laws 1850, p. 174, fixing the regular terms of circuit courts, did not, by implication, repeal Comp. Laws 1887, $ 426, authorizing circuit judges to appoint and hold special terms of court. In re Nelson \[S. D.\] 102 N. W. 885. Under a statute of providing for special terms when the public good requires it, a special term may be consumed when there are undigposed of matters concerning the whole county, though there are at the same time local matters before the court. Wilmans v. Bordwell \[Ark.\] 84 S8; State v. Knight, 19 Iowa, 94; King v. R. V. 474. Conduction at a special term sans.

tained. White v. Commonwealth \[Ky.\] 85 S. W. 751; Jett v. Commonwealth \[Ky.\] 85 S. W. 752. Jett v. Commonwealth \[Ky.\] 85 S. W. 753. Jett v. Commonwealth \[Ky.\] 85 S. W. 754. L. 975. N. 1179.

24. Act No. 31, Michigan Pub. Acts 1903, providing for the drawing of a fresh panel the judge to elect in which place he would of jurors once in each calendar month, does not offend the constitutional provision in 356; Carland v. Custer Co. Com'rs, 5 Mont. that state relative to terms of court. For- 579, $ P. 24. But in Arkansas a similar strain via V. Frazer \[Mich.\] 12 Pt. Leg. N. 259, 1988. Z. P. 259. C. 104 N. W. 147.

01. October and May terms. Smith v. If the later one is held during a time when KIF s of Arizona Min. & Mill. Co. \[Ark.\] 80 the former one might have been but was not held, the business thereof having been completed earlier. Swails v. Coverdill, 21 NOTE. Simultaneous "eourts," "terms" and \[Va.\] 704, where the judge had time within The statutes and constitutions are usually the same day to go from one court to the construct as admitting of two or more other courts sitting at the same time in the same district in different countries thereof (Bar- 51 1088, 1089) authorities the calling of a vis. Gest, 4 Ohio St. 469; Batten v. State, 80 Ind. 394; State v. Knight, 19 Iowa, 94, overruns earlier Iowa decisions, infrax), provided there are several Judges (Carroll v. People, 30 Colo. 298, v. Com. 84 Pa. 107; Cahill v. People, 106 Pt. 417, that by so doing the power of III. 621, or there are competent judges who may legally be called in from other districts (Alspove v. State, 35 Nb. 368, 31 N. W. 208; Munzesheimer v. Fairbanks, 82 Tex. 351, and cases cited, 4 C. L. 282, n. 12).

It may even be allowable to hold in one county more than the usual number of "courts," i. e., terms or sessions. Carroll v.

21. V. People, 106 Ill.

621; V. Madhams v. Hotchkiss, 80 Ill. 437. Thus in Courtesy v. State, 5 Ind. 356, 32 N. E. 335, the regular judge having been displaced by a substitute for a particular case convened the regular term in a different room whilst the case in question was being tried, and his action was upheld.

22. Special terms concurrent with regular terms held elsewhere in the district are generally valid. Munzesheimer v. Fairbanks, 82 Tex. 351, 18 S. W. 657; IET v.

01. N. E. 335, the regular judge having been displaced by a substitute for a particular case convened the regular term in a different room whilst the case in question was being tried, and his action was upheld.

01. Special terms concurrent with regular terms held elsewhere in the district are generally valid. Munzesheimer v. Fairbanks, 82 Tex. 351, 18 S. W. 657; IET v.

01. The extension of a term on the other hand cannot be beyond the first son \[S. D.\] 102 N. W. 885. Under a statute of the ensuing term \[Blake v. Harlan, 75\], 32, 305; Check V. Merchants' Nat. Bank, 56 Tenn. \[9 Helsinki.\] 489. In this case con-

01. The main text was curative of the error): but may run into a term for another county (State v. Leahy, 1 Wis. 258; Tippy v record have inherent power to adjourn from time to time.27 The setting apart of certain terms for the trial of particular kinds of cases is discretionary unless the statute otherwise provides.28

Footnote 28: The term 's' is not a term 's'.

SS 4. \_Conduct and regulation of business.29--Subject to statutory restrictions,30 courts may make reasonable rules governing the procedure before them,31 and when made, they bind both courts and suitors,32 and have the force of statutes.33 The practice and procedure in the city 34 and county courts of Georgia are similar to those in the superior court of that state.35 Rules of a trial court will not be regarded an appeal unless they are before the court in the particular record involved.36 The transfer of a case from one department of a court to another is controlled by the rules adopted for the regulation of procedure in the several de-

Footnote 32: See 3 C. L. 972, n. 1. Green v. Prince Metallic Paint Co., 25 Pa. Super. Ct. 415.

Footnote 33: Clifton v. Frievash \[Ga.\] 50 S. E. 134.

Footnote 34: South Georgia R. Co. v. Ryals \[Ga.\]

Footnote 35: E. 428.

Footnote 36: Edwards v. Warner, 111 III. App. 32.

partments."75 Cases relating to effect of failure to comply with particular rules are cited in the note."8

Every court has inherent power over its own records,"99 and may amend them so as to make them conform to the truth." To justify an amendment nune pro tunc there must be something to amend by. Where there is no record or memor-andum of any kind to show that a former order existed, a court is without jurisdiction to enter a judgment or order nune pro tunc as of a prior term."1 The records of a court of record are not open to attack by oral testimony."2 But where the record impeaches itself, that is, where it shows on its face that the court had no jurisdiction to make it, or that there was no court in session when the record was made, and it could not be made by the judge in vacation, it should be treated as a nullity."45 Oral proceedings in a municipal court case are not scrutinized as keenly as proceedings in a court of record."46 Cases illustrative of matters of practice, both in the Federal "46 and state courts, are gathered in the notes."46

**37.** Finlen v. Heinze \[Mont.\] 80 P. 918. record or any order or proceeding had in In the absence of any rules, business having been distributed among various departments by an order of court concurred in by upon satisfactory evidence. Clark v. Bank binding until revoked or modified by the same authority. State v. Donian \[Mont.\] 80 P. 244. Where the district court of a given county is divided into three departments and by rule the criminal business is unmeted to one of such departments the numeric court will not issue its writ of supervisory control to compel the hearing of a grand jury indictment by the criminal department of the court. State v. Second Julical District Court \[Mont.\] 76 P. 1005. vere, as in Rhode Island, the discretion to set aside a judgment and reinstate a case has been exercised by the division in which the judgment was rendered, such discretion is not subject to review in the other division. Cascia v. Gilbank \[R. I.\] 60 A. 237. 88. Failure of paper book to contain statement of question involved. Roush's Estate, 28 Pa. Super. Ct. 652. Assignment of error which does not set out evidence or exceptions. Pizzi v. Nardello, 28 Pa. Super. Ct. 535: Commonwealth v. Powell, 23 Pa. Super. Ct. 307: Moore v. Bischoff, 25 Pa. Super. Ct. 1; Whash Ave., 26 Pa. Super. Ct. 305. * 39. In re Jones \[N. Y.\] 74 N. E. 226. The provision of the Iowa Code, $ 242, that the record of the proceedings of the district court "shall be signed by the judge," is directory only. Donnelly v. Smith \[Iowa\] 103 N. W. 776. * 40. The purpose of the minutes is to preserve the judgments and proceedings of the court, and if a judgment has been actually rendered, it is not only the right, but the duty of the judge, during the term and without notice to any one, to see that the minutes represent the proceedings of the court just as they transpired. After the term has adjourned he has authority, after notice to parties interested, to make such order as may be necessary to make the record conform to the truth. Merritt v. State \[Ga.\] 50 S. E. 925. Amendment by a pro-bate court. Smith v. Whaley \[R. I.\] 61 A. 173. District courts in Oklahoma have the power, while a case is pending and before final judgment, to correct and amend the 5 Cur. Law. COVENANTS FOR Tittle.

COVENANT, ACTION OF.

At common law an action of covenant could not be maintained unless there existed a privity of contract between the parties.${}^{47}$ Privity of estate alone would not sustain it.${}^{48}$ But this rule is changed by a statute which authorizes suit by a party beneficially interested.${}^{80}$ The action will not lie on the personal covenant of an ancestor.r in which the heirs are not named and there is no privity of estate between the parties,${}^{80}$ and equitable considerations are not available in a court of common law as a foundation for the action.${}^{61}$ The general issue is not a proper plea in the action.${}^{52}$

COVENANTS, see latest topical Index.

CONVENAINTS FOR Tittle.

8 L. Making of Cveenants; Persons and

When Made (877). The Covenant of Warranty (877). The Covenant for Quiet Enjoyment (877). The Covenants of Selzin

\*\*8 3. Entorement of Covenants (878). and Right to Convey are Broken, If at All,

\*\*Scope of title.\*\*This topic is designed to treat only the usual covenants contained in deeds of conveyance. Covenants in a lease,${}^{53}$ restrictive covenants and agreements relative to the use of land,${}^{54}$ and warranties in the sale of personal property,${}^{55}$ are elsewhere treated.

act applies only to matters of practice and

mg. Sampson v. Commissioners of High-procedure, and does not appertain to jurisdiction or the mode of obtaining juris-

lowed to counsel for argument of case. edition of the person in actions brought in

Jones V. State \[Ga.\] S S. E. 312. Under Federal courts (Vells v. Clark, 136 F. 462).

Services of monition in admiralty may be

made under the provisions of a state statute

and the regulations mode of service in actions

Wyler, Ackerland & Co. v. Blevins \[Tem.\] at law or suits in equity. Insurance Co. of

North America v. Frederick Leyland & Co.

after the expiration of his term of office,

139 F. 67. On the trial of a cause in a cir-

cut court without a jury as provided in

was had, to make and file conclusions of

Rev. St. $\\lx@sectionsign$ 649, 700, the procedure is

gcrned by such statutes; and the court may

at its option make either general or special

the court. Fidelity & Deposit Co. v. Buckl

findings. It cannot be required to rule on

geolite propositions of law presented by

the parties in accordance with a state

practice. Streeter v. Sanitary Dist. of Chicago

entered against an admiralty to strike

\[C. C. A.\] 133 F. 124. Act Cong. Marc 9,

1892, c. 14, 27 Stat. 7, providing that in

addition to the mode of taking depositions

in the Federal courts depositions may be

taken in the mode prescribed by the laws

of the state in which the courts are held

merely relates to the manner of taking depositions, and neither enlarges nor restricts

the grounds for taking them prescribed by

Rev. St. $\\lx@sectionsign$ 863, 866. Magneo v. Colorado

**49.** Ohio Code Civil Procedure. Broad-Smelling & Min. Co., 135 F. 844. Practice

as to transfer of cases in district court of

appeal in California sustained. People v. Davis \[Cal.\] S1 P. 718.

**46.** Motions are always addressed to the

discretion of the court, and it is therefore

entirly within the province of the court

to determine in what manner it will satisfy itself of the facts which appeal to Its

discretion. Imperfect? & Traders? Nat. Bank v. Lyons, 134 F. 510. It is within the

power of the court to listen to the representations and to hear the evidence of those

appearing in a cause as amalc curiae, claim-

ing that such cause is a collusive proceed-

to the author's own own own

**50.** Knowles v. Knowles \[R. L\] 59 A. 854.

**51.** That defendants held the bare legal

title in trust for plaintiff. Knowles v.

Knowles \[R. L\] 59 A. 854.

**52.** Lucente v. Davis \[Md.\] 61 A. 622.

**53.** See Landford and Tenant, 4 C. L. 389.

**54.** See Buildings and Building Restrictions, 5 C. L. 487.

## 1 Making of covenants; persons and estate benefited or bound

The first is no implied warranty of title in a sale of real estate \[57\]. In some states, by statute, the use in deeds of conveyance of certain forms of expression imports the usual covenants \[58\]. Covenants are to be reasonably construed \[59\]. A general warranty of title includes in itself covenants of right to sell and covers defects in the title, though known to the purchaser at the time of taking the deed \[60\]. A warranty does not include an incumbrance which has been assumed by the grantee in a preceding clause \[61\]. The statutory warranty attached to the words "grants, bargains and sells" imports a covenant only against incumbrances suffered by the grantor \[62\]. The covenant of peaceable possession runs with the land \[63\], and secures freedom from molestation by the covenant \[64\]. Covenants which run with the land are obligatory on the assigns of the covenant \[65\]. The covenant of warranty in a void deed does not estop the grantor from asserting title \[60\], and a remote grantee is not estopped to sue for breach of covenant because the deed to the covenantor who was a mere conduit of title was void \[67\]. The holder of the mere legal title who conveys to the beneficial owner is not liable on the covenant against incumbrances \[68\].

A covenant need not contain the words "assign or assigns" in order to make it obligatory of the heirs or administrator of the covenantor. Broadwell v. Banks, 134 Vest Coast Mfg. & L. Co., v. West Coast Imp. Co., 25 Wash. 627, 62 L. R. A. 763, and note. 57. Sale of standing timber. Van Doren v. Fenton \[VWs\], 103 N. W. 228, 58. Under Conveyance Act, $1 (1 Starr. & C. Ann. St. 1896, p. 924, c. 20), the use of "warrant" in a deed is to be construed as meaning all the usual covenants. King v. King, 215 Ill. 100, 74 N. E. 89. Under Code 1892, $2478, 2480, declaring that the word "warrant" shall constitute a covenant that the grantor will forever warrant and defend the title, it constitutes a warranty of possession as well. Allen v. Caffee \[Miss.\] 38 So. 186. Under Sayle's Ann. Civ. St. 1897, art. 633, in a conveyance of a fee, there is an implied covenant against incumbrances. Bullet v. Coryell \[Tex. Civ. App.\] 85 S. W. 482. Under Ball. Ann. Codes & St., $4520, a bar-gain and sale deed, reciting "bargains, sell and coven" is construed to contain a covenant that the grantor had the fee. Blood v. Sliert \[VWs\], $791. Under Kirby's Dig., $731, the words "grant, bargain and sell" in a deed amount to a covenant that the grantor is selesed of a fee, free from incumbrances suffered by him. Seldon v. Dudley E. Jones Co. \[Ark.\] 85 S. W. 778. 59. An exception of taxes in the covenant against incumbrances is not abrogated by a subsequent rectl "against lawful claims of all persons whatsoever, taxes." Newburn v. Lucas \[Iowa\] 101 N. W. 730. 60. Civ. Code 1895, $3 6214, 3615. Allen v. Tayor, 121 Ga. 841, 49 S. E. 799, and cases cited.

Gaw v. Allen \[Mo. App.\] 87 S. W. 590. 62. Hood v. Cark \[Aln.\] 87 So. 550. 63. Patterson v. Cappon \[VWs\] 102 N. W. 1083. 64. Under Real Property Law (Laws 1901, p. 594, c. 547), $218, a covenant for quiet enjoyment should be construed as fully written out and as constituting a prospective agreement against molestation by the grantor. Cassada v. Stabel, 98 App. Div. 600, 90 N. Y. S. 533.

A covenant need not contain the words "assign or assigns" in order to make it obligatory of the heirs or administrator of the covenantor. Broadwell v. Banks, 134 Vest Coast Mfg. & L. Co., v. West Coast Imp. Co., 25 Wash. 627, 62 L. R. A. 763, and note. 57. Sale of standing timber. Van Doren v. Fenton \[VWs\], 103 N. W. 228, 58. Under Conveyance Act, $1 (1 Starr. & C. Ann. St. 1896, p. 924, c. 20), the use of "warrant" in a deed is to be construed as meaning all the usual covenants. King v. King, 215 Ill. 100, 74 N. E. 89. Under Code 1892, $2478, 2480, declaring that the word "warrant" shall constitute a co 5. Cur. Law. COVENANTS FOR TITLE SS 2. 877

SS 2. _Performance or breach. \[80\] Against incumbrances. \[70\]_--An incumbrance is any interest which may subsist in a third person to the diminution of the value of the land but consistent with the passing of the fee, \[71\] e. g., an outstanding lease for a term of years, \[72\] an outstanding dower interest, \[73\] whether inchoate or consummate, \[74\] or taxes for which the covenantor is liable; \[75\] but not those for which he is not liable. \[76\] The covenant to keep down incumbrances or pay taxes is broken by non-performance, though the convenantee be not called on to pay. \[77\] Eviction is not essential to the maintenance of an action for breach of covenant against incumbrances if the land is wild. \[78\]

_The covenants of seizin and right to convey are broken, if at all, when made, \[79\]_, and eviction or interference with possession is not necessary; \[80\] but such breach is a technical one only and the covenantor cannot be compelled to respond in damages until positive injury is suffered by virtue of a paramount title. \[81\]

_The covenant of warranty_ is not broken unless there is an eviction by virtue of a paramount title, \[83\] and though the covenant is not one against incumbrances, an incumbrance which eventuates in an eviction works a breach of it. \[84\]

_The covenant for quiet enjoyment \[85\]_ is broken by an eviction, \[86\] but not by a trespass. \[87\] Literal and actual dispossession is not necessary to constitute an eviction, \[88\] but the mere assertion of a claim of dower in wild lands is insufficient. \[89\]

S9. See 3 C. L. 974. \[Towa\] 102 N. W. Note: See Tiffany, Real Property, p. 899

S9. See 3 C. L. 974. \[Towa\] 103 N. W. \[Towa\] 102 N. W. \[Towa\] 104. \[Towa\] 105 N. W. \[Towa\] 106. \[Towa\] 107 N. W. \[Towa\] 108. \[Towa\] 109. \[Towa\] 108. \[Towa\] 109. \[Towa\] 110. \[Towa\] 111. \[Towa\] 112. \[Towa\] 113. \[Towa\] 114. \[Towa\] 115. \[Towa\] 116. \[Towa\] 117. \[Towa\] 118. \[Towa\] 118. \[Towa\] 119. \[Towa\] 120. \[Towa\] 121. \[Towa\] 122. \[Towa\] 123. \[Towa\] 124. \[Towa\] 125. \[Towa\] 126. \[Towa\] 127. \[Towa\] 128. \[Towa\] 129. \[Towa\] 128. \[Towa\] 129. \[Towa\] 130. \[Towa\] 131. \[Towa\] 132. \[Towa\] 133. \[Towa\] 134. \[Towa\] 135. \[Towa\] 136. \[Towa\] 137. \[Towa\] 138. \[Towa\] 139. \[Towa\] 139. \[Towa\] 140. \[Towa\] 141. \[Towa\] 142. \[Towa\] 143. \[Towa\] 144. \[Towa\] 145. \[Towa\] 146. \[Towa\] 147. \[Towa\] 148. \[Towa\] 149. \[Towa\] 150. \[Towa\] 151. \[Towa\] 152. \[Towa\] 153. \[Towa\] 154. \[Towa\] 155. \[Towa\] 156. \[Towa\] 157. \[Towa\] 158. \[Towa\] 159. \[Towa\] 160. \[Towa\] 161. \[Towa\] 162. \[Towa\] 163. \[Towa\] 164. \[Towa\] 165. \[Towa\] 166. \[Towa\] 167. \[Towa\] 168. \[Towa\] 169. \[Towa\] 170. \[Towa\] 171. \[Towa\] 172. \[Towa\] 173. \[Towa\] 174. \[Towa\] 175. \[Towa\] 176. \[Towa\] 177. \[Towa\] 177. \[Towa\] 178. \[Towa\] 179. \[ for quiet enjoyment precludes entry by the grantor,"1 and a breach of it by him is a defense against an action to foreclose the purchase-money mortgage,"2 and entities the grantee to recover on his counterclaim the amount paid by him under the contract."3 Danger of eviction justifies suspension of payment of the purchase price only until the seller has furnished bond,"4 and payment cannot be suspended because of a danger of eviction of which he was informed at the time of purchase."5

SS 3. \_Enforcement of covenants."90--\_An action for breach of covenant of title accrues at the time of eviction."7 An action for breach of the covenant of seisin or right to convey is not one for the recovery of real property or an estate or interest therein or for injury thereto."8 The question of title may be involved where breach of covenant for quiet enjoyment consists of an eviction under a paramount title."9

The covenants in a purchase-money mortgage decd will not estop the mortgagor, where the decd and mortgage are parts of the same transaction, from suing on the covenants in the decd." And since the covenants of seisin in the two instruments are distinct, a breach of the one in the mortgage is not available by way of rebutter in an action for breach of the one in the decd." A claim for money paid to satisfy an incumbrance may be set off in an action for the purchase price."3 A covenantee who has not sustained loss because of breach of covenant against incumbrances can recover only nominal damages,"4 and his assignee acquires no greater rights," and even if the covenant runs with the land, a remote grantee from whose decd an incumbrance is excepted cannot recover from the covenant;" but an intermediate grantor who is held liable on his covenant of warranty by his vendee may recover reimbursement from his grantor on the similar covenant in his decd," providing he has satisfied the claim of his grantee."8

91. The taking of possession by the grantor because of failure to pay interest on deferred payments is a breach of the 18 located. Rams v. Armstrong, 136

covenant of quiet enjoyment. Cassada v. N. C. 593, 48 S. E. 769.

92. Cassada v. Stabel, 98 App. Div. 600, 90

01. Cassada v. Stabel, 98\* App. Div. 600, 90

01. Cassada v. Stabel, 98\* App. Div. 600, 90

95 N. Y. S. 583. A grantee in a warranty

1. Reinhalter v. Hutchins \[R. I.\] 60 A.

dead who retains a portion of the purchase price as security against a lien claimed in a pending suit and who purchases the land under execution of judgment rendered therein may in an action for the balance of the 187 Mass. 815, 72 N. E. 1012.

purchase price counterclaim for the damages for breach of covenant, though the judgment enforcing the lien is reversed. Talbott v. Donaldson \[Kan.\] 80 P. 981.

94. Where payment due is refused, the seller is entitled to judgment subject to stay of execution until danger of eviction has ceased or bond furnished. Jennings-Heywood Oil Syndicate v. Home Oil & Development Co., 113 La. 838, 87 So. 1. Where there is danger of eviction from part of the property only and the purchaser has disposed of a part and is gradually disposing of the remainder of the property, a bond should be required only as to that portion from which there is danger of eviction. It will be assumed that the purchaser has elected not to ask for a resession of the sale. Id.

01. Jennings-Heywood Oil Syndicate v. Home Oil & Development Co., 113 La. 838, 87 So. 1. Where there is danger of eviction from part of the property only and the purchaser has disposed of a part and is gradually disposing of the remainder of the property, a bond should be required only as to that portion from which there is danger of eviction. It will be assumed that the purchaser has elected not to ask for a resession of the sale. Id.

01. See 3 C. L. 974.

01. Tract did not contain as many acres as estimated, but the action was not brought for deficiency of acreage. Chenault v. Thomas, 26 Ky. L. R. 1029, 83 S. W. 109.

01. Within Code, # 190, requiring such actions to be tried in the county where the 18 located. Rams v. Armstrong, 136

N. C. 592, 48 S. E. 769.

99. Therefore a justice has no jurisdiction, Holmes v. Seaman \[Neb.\] 101 N. W. 1030, v. 100 N. W. 417. Cited 8 C. L. 975, 101

01. A. 41.

01. Reinhalter v. Hutchins \[R. I.\] 60 A.

01. A second mortgage may assail a first mortgage which he does not assume, though the prior one is exempted from the covenants of the latter. Livingstone v. Murphy, 187 Mass. 815, 72 N. E. 1012.

01. Reinhalter v. Hutchins \[R. I.\] 60 A.

01. Action on vendor's lien note. Bullitt v. Coryell \[Tex. Civ. App.\] 85 S. W. 482.

01. Where he does not pay the incumbrance until after he conveys the land. Man-digo v. Conway, 90 N 5 Cur. Law. COVENANTS FOR TITLE SS 3. 879

A complaint for breach of covenant of warranty need not allege eviction,9 and one for breach of covenant of seisin need not aver eviction or special damage.10 That an absolute deed outstanding is a mortgage,11 or that an outstanding interest had been cut off by discharge in bankruptcy,12 must be specially pleaded.

The amount of damage sustained must be proved,13 An assignee of a cause of action must prove the assignment if denied.14

A covenant cannot be contradicted by parol evidence,15 and notice in the covenantee at the time of execution of the deed of an outstanding paramount title,16 or incumbrance17 is not a defense. Failure of a grantee to prevent a sale by payment of taxes or redemption from delinquency neither bars his action on the covenant of warranty nor mitigates damages.18

\_Damages for breach.19--The measure of damages for breach of a covenant of warranty is the difference in value between the property as it was covenanted to be and its actual condition.20 If title fails as to a portion of the land, the value of such portion is the measure.21 A covenantor who has notice of the action in which his covenantee is evicted by virtue of a paramount title is liable for attorney's fees and costs therein 22 if properly pleaded;23 but not for the expense of defending an unsuccessful attack in an improper proceeding.24 In Texas, attorney's fees expended in defense of title cannot be recovered.25 If no consideration was paid for the land, there can be no recovery;26 but money paid out in defense of title may be

9. Coleman v. Illinois Life Ins. Co. \[Ky.\]

Iranty in the deed of one, the other has a 82 S. W. 616.

Ilen on the land be conveyed for the amount 10. Reinhalter v. Hutchins \[R. I.\] 60 A.

of the damage sustained. Newburn v. Lucas 234.

\[Iowa\] 101 N. W. 730.

11, 12. Cates v. Field \[Tex. Civ. App.\] 85 \[Z1. McBride v. Burns \[Tex. Civ. App.\] 88 S. W. 394.

13. In an action for breach of covenant,

For breach of covenant against incumbrance recovery can be had unless the amount 101 N. W. 730.

the covenantor is liable for is shown. Lamp- the measure is the rental value of the prem-kin v. Garwood \[Ga.\] 50 S. E. 171.

14. Title Ins. Co. v. Bach, 90 N. T. S. 350.

01. McCall v. Wilkes, 121 Ga. 722, 49 S. E.

01. That a particular incumbrance was ex- tition and is represented by attorney therein, cluded. Patterson v. Capon \[Vis.\] 102 N.

L. R. 1029, 83 S. W. 109. For breach of cove- tignet on the premises conveyed. McCall v. Wilkes, 121 Ga. 722, 49 S. E. 722.

Right of another to the growing crops. Newburn v. Lucas \[Iowa\] 101 N. W. 730.

17. No defense to an action for breach of covenant of warranty need not allege eviction,9 and the covenant of warranty against incumbrance.

De Lony v. Spring Lake Beach Imp. Co. \[N. J. Law\] 59 A. 1034. The deed governs and the covenant cannot be defeated by parol evidence of the grantee's notice of an incumbrance. Newburn v. Lucas \[Iowa\] 101 N. W. 730. Brown v. Taylor \[Trenn.\] 88 S. W. 731.

18. Country, see Demar's v. Koehler, 60 N. J. Law, 314, 38 A. 898.

01. Caniv. Fisher \[WY, Va.\] 50 S. E. 752.

01. See 3 C. L. 975.

01. Where growing crops belonged to another, their value at the time of convey- ance. Newburn v. Lucas \[Iowa\] 101 N. W. 730. Evidence of the value of the land is \[dmissible in an action for breach of cove- mant of warranty. McCrillis v. Thomas \[Mo.\] 85 A. 1034.

01. Callor, see Demar's v. Koehler, 60 N. J. Law, 314, 38 A. 898.

01. Caniv. Fisher \[WY, Va.\] 50 S. E. 752.

01. See 3 C. L. 975.

01. Where growing crops belonged to another, their value at the time of convey- ance. Newburn v. Lucas \[Iowa\] 101 N. W. 730. Evidence of the value of the land is \[dmissible in an action for breach of cove- mant of warranty. McCrillis v. Thomas \[Mo.\] 85 A. 1034.
    880

CREDITORS' SUIT SS 1.5 Cur. Law.

recovered, though the covenanteg is entitled to nominal damages only for breach of covenant.27 The covenant is one of indemnity and no more can be recovered than was expended in defense of the title.28 Penalties and costs accruing on unpaid taxes is an element of damages for breach of covenant against inequhrances;29 but coven-sel fees in a misdirected proceeding to evict a tenant in possession under a lease which constituted a breach of a covenant against incumbrances is not.30 Special damages must be shown in order to warrant a recovery.21

Coverestimate; CREDIT INSURANCE, see latest topical index.

**CREDITORS' SUIT.**

**SS 1. Nature and Grounds of Remedy (SS0).** **SS 2. Property Which May be Reached General Creditor's Suits (SS1). Intervention (SS2). (SS2). Limitations (SS2). The Decree (SS2).** **SS 3. Pleading and Procedure (SS3).**

**SS 1.**\_Nature and grounds of remedy.32--The purpose of a creditors' suit is to reach legal or equitable assets of a debtor not reachable by ordinary legal remedies.33 A creditors' bill cannot ordinarily be maintained until a judgment at law has been obtained and execution thereon has issued and been returned unsatisfied.34 But where the circumstances are such that it is impossible for the creditor to take these preliminary steps, equity will grant relief without them.35 If it appears that exe * 5 Cur. Law. CREDITORS' SUIT SS 1.

cution has been returned unsatisfied, the complaint need not allege that the judgment debtor is insolvent.\* A general creditor cannot maintain a bill in equity to enforce a claim against a going concern unless he has first obtained a lien upon the property, except where otherwise provided by statute.\[37\] But a creditor who has filed a transcript of his judgment in the county where reality is situated, thus acquiring a lien, need not exhaust legal remedies before proceeding in equity.\[38\] Under modern uniform procedure statutes, creditors may in one suit proceed for judgment on their debts and to set aside fraudulent conveyances made by their common debtor.\[39\] But the existence of an adequate remedy at law will bar equitable relief.\[40\] After a trustee in bankruptcy has been appointed, only such trustee can sue to set aside a fraudulent transfer by the bankrupt,\[41\] and a creditor's bill by a creditor after the debtor has been adjuplicated a bankrupt does not give such creditor a lien on the property sought to be reached.\[42\]

_General creditors' suits.\[43\]_--Whether suit be instituted by a plaintiff in his own name only or for himself and other creditors, the suit becomes, after a reference is made to convene creditors, a general creditors' suit; \[44\] and in Georgia, by virtue of statute, a creditors' suit is one for all the creditors ab initio, regardless of the number of plaintiffs.\[46\] After issuance of summons, which begins the $\\mbox{\\sc su}^{1,46}$ a single 5 Curr. Law.\[56\] Works, 76 Ga. 169; Earle v. Grove, 92 Mich.

- 285.
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### 883 CREDITORS' SUIT SS 2.

Plaintiff cannot dismiss except as to himself.47If he dismisses at rules, other creditors may have the case reinstated at the next term, though the summons has not been issued or the bill filed.48Failure of a judgment creditor to present and prove his lien in a creditors' suit against certain lands of the debtor does not bar him from partieipating in a second suit in which other lands are subjected to the satisfaction of debts.40

Footnote 48: The author is grateful to the anonymous referee for his comments.

\_Intervention.--\_Owing to the peculiar nature of a creditors' suit, a petition to intervene may be filed without a previous order of the court, and when filed becomes a part of the pleadings and the record.50Where the allegations of the bill do not entitle plaintiffs to the extraordinary relief sought, other creditors cannot intervene and obtain judgment against the common debtor.51 One who has parted with all his interest in the litigation cannot intervene.52A creditors' suit in a Federal court for the administration of assets of an insolventorporation is constructive notice of his pendens as to all property of the corporation in the district and division,53 and one who becomes a creditor, taking a mortgage on corporation property, pending such suit, though he may intervene in the suit, his legal remedy in the state court having been enjoined, may share only in such assets as remain after claims existing at the time of filing the bill have been paid.54 Where a receiver of a corporation has been appointed in a creditors' suit, one creditor cannot maintain a bill in intervention to subject the claim of another creditor to the satisfaction of a contract debt owing by such creditor to the intervener.55

\_Limitations.--\_In Virginia a suit may be brought in equity to enforce a judgment lion so long as the right to issue execution or bring scire facias or action thereon exists.56 The limitation statute governing actions for the recovery of land does not apply to suits to enforce judgment liens.57A suit based on a fraudulent assignment must, in Nebraska, be brought within four years of the discovery of the fraud, or such facts and circumstances as would indicate fraud if investigated.58

\_The decree.--\_The court may award a personal judgment in lieu of setting aside a transfer where the faets establish such personal liability.59 In a suit to set aside transfers of personality, it is not necessary to set aside all transfers found to be fraudulent, where only one creditor is seeking relief; the setting aside of one transaction to satisfy his claim is proper.60Where, in a suit to set aside a transfer. no accounting is necessary, a money judgment is proper.61

Footnote 48: The author is grateful to the anonymous referee for his comments.

**SS 2.**_Property which may be reached.49_--A judgment creditor, with the aid of equity, may reach any property or interest of his debtor,63 not exempt from exeeution, which with such aid the debtor himself may reach.\[94\] Thus property to which the debtor has the equitable and beneficial title may be reached.\[95\] A wife's in-choate right of dower cannot be reached.\[96\] Since, under a policy of indeminity insuring an employer against loss or damage by reason of liability for injuries to servants, the amount of the insurance does not become available until the employer has given proper notice of an injury and paid the loss, the injured employe who has obtained a judgment against his employer cannot, before such notice and payment by the employer, subject such amount to payment of his judgment in a suit against the insurer.\[97\] Statutes providing for suits in equity to reach property of a debtor do not apply to property which can be attached at law.\[98\]

SS 3. _Pleading and procedure.\[99\]_--An assignment of a chose in action is not presumed fraudulent as to a subsequent creditor, and a pleading must set out circumstances from which fraud may be reasonably inferred.\[10\] Where a creditors' bill brought by a surety of a debtor who had paid the debt alleges faets entitling plaintiff to be abrogated, under the prayer for general relief, to the rights of the judgment creditor, the bill is not demurrable because not asking for this relief specifically.\[71\] In a suit between heirs for partition, a cross-bill seeking sale of another parcel of land to satisfy debts of the owner raises issues not germane to the original bill and cannot be maintained.\[92\] An answer setting up the fact that supplementary proceedings had been instituted, and setting out the report, order and decree in such proceedings, but which fails to show a sale or satisfaction of the debt with the proceeds, may be stricken.\[13\] In a suit by a judgment creditor against a debtor and a lien creditor of the debtor to subject inembered property to the payment of a judgment held by the plaintiff, the debtor is a necessary party.\[94\] A prayer for relief against the lien creditor, he being a nonresident, incidental to the main purpose of the suit, does not make a separable controversy between plaintiff and such lien creditor, so as to make the proceeding removable from the state to the Federal court.\[75\]

CHIMINAL CONVERSION, see latest topical index.

**CRIMINAL LAW.**

\*\*SS 1. Elements of Crime (SS4). Sources of the Criminal Law (SS4). Criminal Intent (SS85). Attempts (SS6). Felonles and Misdemensors (SS6). **SS 2. Defenses (SS86).**

\*\*SS 3. Capacity to Commit Crime (SS7). Corporations (SS87). Corporations (SS87).

**SS 4. Parties in Crimes (SS88).**

This topic includes only the general rules of the substantive law of crimes; that defendant had property, legal or equitable, in hand or due from others, or that he had title to property which he withheld from the record. Wilson v. Henry \[Mich.\] 100 N. W. 890. Evidence held to show that defendants were not indebted to judgment debtors, but had fully performed their contracts for the delivery of merchandles. Chicago Daily News Co. v. Siegel, 212 III. 617, 72 N. E. 810.

**64. Weckerly v. Taylor \[Neb.\] 103 N. W. 1065.**

**65. Weckerly v. Taylor \[Neb.\] 103 N. W. 1065.**

**76. Weckerly v. Taylor \[Neb.\] 103 N. W. 1065.**

**77.**

The assets of an insolvent corporation are sold by its president, with the sanction of stockholders, and it is known that the price is insufficient to satisfy all claims, creditors not paid cannot maintain a bill for the distribution of such proceeds criminal procedure 76 and matters peculiar to particular crimes 77 being elsewhere treated.

**SS 1.**\_Elements of crime.\_78--A crime is any violation of law which the state assumes to punish in its sovereign capacity through judicial proceedings; 79 a public, as distinguished from a mere private wrong.80 Uniformity is not necessary to the criminal laws enforceable in the various courts established by the authority of the United States.81

\_Sources of the criminal law.\_82--The common law of crimes has been pretty generally abolished in this country.83 That a penal statute in force for over 40 years has not been applied in a particular manner does not preclude its proper enforcement.84 Municipalities may be authorized to punish petty offenses.85 The statute forbidding peonage in any state or territory of the United States was authorized by the 13th amendment.86 Estoppels are to a limited extent applied in criminal cases.87

**76.** See Arrest and Binding Over, 5 C. L. 264; Indictment and Prosecution, 4 C. L. 1. 77. See title dealing with the crime in question as Homicide, 3 C. L. 1843. 78. See 3 C. L. 979. See Clark & McCrimes, 5 I. The word "erim" as used in the Federal and Kentucky constitutions includes all of the penal laws. Stone and enforce its collection by labor upon the public streets (Williams v. Sewell, 121 Ga. 579, 49 S. E. 732). It is necessary that the act be one which falls within the definition of either a colony or a misdemeanor. Code, 58 5093, 5094. State v. Dalley \[Iowa\] 103 N. W. 1008. 80. Clark & McCrimes, 5 Z. A state cannot under the guise of a statute creating a criminal offense imprison one who has failed to pay a debt. (Lamar v. Prosger, 121 Ga. 153, 48 S. E. 977), but if a fraud is perpetuated, the state may dennounced such fraud as crime and imprison the offender (Id.). No criminal action can be predicated upon a violation of a stock law which provides a civil remedy against all violators. Acts 1903, p. 1342, c. 499. Murphy v. State \[Trenn.\] 85 S. W. 711. 81. Whether within or without the restrictions of the constitution. Tyner v. United States, 23 App. D. C. 24. 82. See 3 C. L. 979. 83. There are no common-law offenses against the United States (Tyner v. United States, 23 App. D. C. 324), but all crimes and criminal procedure known to the common law are still in force in the District of Columbia except as otherwise provided by statute (Hill v. United States, 22 App. D, C. 395). 84. State v. Nease \[Or.\] 80 P. 897. 85. Whatever the legislature may punish as a misdemeanor, it may authorize a misdemeanor. Denninger v. Recorder's Court of Pomona, 145 Cal. 829, 79 P. 360. Where an act is an offense both against the state and against the municipal government, the latter may be constitutionally authorized to punish it, although it be also an offense against the state (Bowles v. District of Columbia, 22 App. D, C. 321), and the state constitution declares that the legislature shall pass laws for the suppression of the vice \[Act No. 136, p. 224 of 1898\] (Town of 5 Cur. Law."

CHIMINAL LAW SS 1.

_Criminal intent._${}^{88}$--The necessity of criminal intent is ordinarily maintained in statutory as well as common-law offenses; ${}^{89}$ but the legislature may dispense with it, ${}^{90}$ and inasmuch as every sane person is presumed to intend the natural consequences of his acts,${}^{91}$ when an act forbidden by law is intentionally done, the intent to do the act is the criminal intent which imparts to it the character of an offense.${}^{92}$

deny the agency he assumed and under color (one who receives a draft and cashes it is of which he received the property. Ex entsopped to deny that it was a valid draft); parte Hedley, 31 Cal. 109. The second, were one is stopped to deny the validity of a signature which he did not at once re-polate, when the signer of his name is on trial for the forgery. Reg. v. Smith, 3 Post, & F. 504. The admissions, however, forming the ground for estopped in pais, are only available to the party to whom they were made and who must be a party to the action. It is the fact of an otherwise possible prejudice to the other party which makes the admissions conclusive as to their truth. In both the classes of cases above the state was a party to the action, but in neither had the representations been made to it. An attempt has been made to justify the first class on the broad ground that one should not be allowed to take advantage of his own wrong (2 Bishop Crim. Law $ 364), but the difficulty seems to be insuperable that, save for this technicality, the crime charged had not been committed; and the justification attempted is contrary to the principle, that, in criminal actions, the right of the state is to be strictly confined; and, to the tendency of the law to enlarge, in criminal actions, the rights of the defend-ant. In the principal case, however, there would seem to have existed no objection to an application of the doctrine. The representations of the defendant had been made directly to the state, and the state had acted on them to its disadvantage, to allow the defendant to deny the truth of his representations would have prejudiced the interest of a party to the action, and as against him therefore their truth should have been conclusive.--5 Columbia L. R. 318. There are several other cases holding that one who collects money for another on an assumption of being an officer, agent or employee of that other, cannot, on being prosecuted for its enbezzlement, deny his agency. These cases do not all use the expression "estopped to deny his agency," but they are all clearly referable to the principle. See State v. Spaulding, 24 Kan. 1 (lealing case); People v. Treadwell, 69 Cal. 235 (same); Ex parte Record. 11 Nev. 287; People v. Carter, 122 Mich. 668 (embeziemen from Corporation de facto); People v. Sanders \[Mich.\] 102 N. W. 959 (deputy county treasurer de facto cannot on prosecution for embezzlement rasie question of treasurer's authority to appoint a deputy); Bartlev v. State, 53 Neb. 310 (conflicts with); Moore v. State, 53 Neb. 831; People v. Hawkins, 106 Mich. 477 (agent of foreign corporation not authorized to do business in state); State v. Pohlmeyer, 59 Ohio 491, citing cases; State v. Pohlmeyer, 101 Mo. 23 (offl-cer de facto cannot object that he was not an officer de jure); Forteberry v. State, 56 Miss. 286 (same); People v. Cobler, 108 Cal. 538 (same); People v. Royce, 106 Cal. 187 (one who receives a draft and cashes it is stopped to deny that it was a valid draft); People v. Galszner, 100 Cal. 471 (if an agent obtains the money of his principal in the ca-paicture of agent in a manner not authorized, it is received "In the course of his employ-ment.") There are English cases supporting the theory of estopped. Reg. v. Orman, 36 Eng. Law & Eq. 611; Rez v. Barrett, 6 Car. & F. 124; Tex v. Rees, 6 Car. & P. 466; Tex v. Beacall, 1 Car. & P. 454, 457. 66; Closely allied is the case of the larecny or embezzlement of property kept and used in violation of law. Com. v. Cooper, 138 Mass. 285; Com. v. Smith, 129 Mass. 104, and the cases holding that perjury may be committed before a de facto judge. I Bishop. $ 464 (6). State v. Williams, 61 Kan. 739; Izer v. State, 77 Md. 110; Greene v. People, 132 Ill. 278. There is a case that holds that where a baileile esthe property to a stranger, it is not larecny for him to steal it from the purchaser for the purpose of restoring it to the owner. Gooch v. State, 60 Ark. 5. In State v. Knowles \[Mo. Sup.\] 83 S. W. 1038, a prosecution for embezzlement, it was said that an officer of a ben-volent society is estopped to question regulations under which he has received the money of the society. On principle it would seem that where an act depends for its criminality on the existence of a property right, that right may be established or proved in any manner recognized by the law applicable to civil cases, by
_Attempts.${}^{93}$--To constitute an attempt there must be something more than mere intention or preparation,${}^{94}$ but where the proofs conclusively showed the completion of a statutory offense, an instruction that the defendant could be found guilty of an attempt is not prejudicial.${}^{95}$ It was an offense at common law to incite or solicit another to commit a misdemeanor;${}^{96}$ but the solicitation of a bribe is not an attempt to accept or receive a bribe within the Kansas statutes.${}^{97}$._

_Felonies and misdemeanors.${}^{98}$--The measure of punishment and consequences growing out of the conviction and sentence must be looked to in determining the grade of a crime.${}^{98}$ A felony is an offense for the conviction of which one is liable to be punished with death or imprisonment in the penitentiary,${}^{1}$ while misdemeanors include only those crimes punishable by a fine or imprisonment in the county jail or both.${}^{2}$ To solicit the commission of a felony was a misdemeanor at common law.${}^{8}$ At common law one attainted of felony was liable to civil suits.${}^{4}$_

_SS 2. Defenses.${}^{5}$--An overpowering necessity may be a defense to a prosecution for a crime,${}^{6}$ and acts apparently necessary for the defense of one's self, property, or another are justifiable.${}^{7}$ A mistake of law, though based on an unconstitutional statute, is no defense.${}^{8}$ Consent of the person injured is immaterial,${}^{9}$ except as to_

_ered in judging the intent. Code Cr. Proc. - New York Reformatory for Women at 1895, art. 177. Brownlee V. State \[Tex. Cr. - Bedford, 176 N. Y. 465, 68 N. E. 884. A vio-App.\] 18 Tex. Ct. Rep. 621, 87 S. W. 1153._

_Iation of the Tennessee stock law is not a Evidence held to show an intent to appropriate money to one's own use. Tones V., remedy against all violators. Acts 1903, p. State \[Tex. Cr. App.\] 18 Tex. Ct. Rep. 722, 1842, c. 498. Murphy v. State \[Tenn.\] 86 S. 88 S. W. 217. In a prosecution under a statute providing that all homicide committed in the perpetration of or attempt to perpetuate robbery shall be considered murder, the question of malice is immaterial. Andrews V. People \[Colo.\] 79 P. 1031._

_93. See 3 C. L. 980._

_94. State v. Doran, 99 Me. 329, 59 A. 440._

_There must be some act moving directly toward the commission of the offense after the preparations are made (Id.), which falls short of the thing intended. Attempted lareeny. Commonwealth v. Fiaherty, 25 Pa. Super. Ct. 490._

_95. McLoud v. State \[Ga.\] 50 S. E. 145._

_96. State v. Sullivan \[Mo. App.\] 84 S. W. 105._

_97. Gen. St. 1901, $ 2284. State v. Bowles \[Kan.\] 79 P. 726._

_98. See 3 C. L. 981._

_99. State v. Hicks, 113 La. 845, 37 So. 776; State v. Foster \[Mo.\] 86 S. W. 245._

_1. Rev. St. 1899. $ 233. State v. Foster \[Mo.\] 86 S. W. 245._

_100._ 86 S. W. 245.\_

_110._ 86 S. W. 245.\_

_111._ _86 S. W. 245._

_112._ _13._ _14._ _15._ _16._ _17._ _18._ \_19.

## 5 Cur. Law.

CHIMINAL LAW SS 3.

those crimes which involve a want of consent,\[10\] and neither condonation by the person injured,\[11\] nor repentance by the accused,\[12\] is of defensive effect; nor is it a defense that the person defrauded might by diligence have prevented the commission of the offense.\[13\] It is no defense to a crime involving acts in official capacity that defendant's authority in respect to such acts was improperly delegated to him by the officer charged by law with their performance.\[14\]

## 6 Capacity to commit crime.\[15\]

The weight of authority makes knowledge of right and wrong as to the particular act the test of responsibility,\[16\] and rejects the theory of "irresistible impulse,"\[17\] but statutes may prescribe the circumstances under which mental weakness will excuse.\[18\] The presumptions favor sanity.\[19\]

Drunkenness is no defense except where a specific intent must be proved, and the drunkenness is sufficient to overcome the accused's capacity to form an intent.\[20\]

_Corporations_\[21\] are indicitable for misdemeanors not involving personal violence or the element of malice or actual criminal intent.\[22\]

## 7 The 20th

The 20th

## 4 Parties in crimes

One who actually commits a crime is a principal in the first degree,\[34\] while one who is present, either actually or constructively, aiding and abetting in its commission, is a principal in the second degree.\[25\] To be an accomplice there must be some complicity or guilty acting together with the principal,\[26\] for mere knowledge or belief that an offense was to be or had been committed and the concealment of such fact does not render one an accomplice.\[27\] An accessory before the fact may, under modern statutes, be properly tried and convicted, though the principal is neither in custody nor on bail.\[28\] Each conspirator is liable for the acts of all,\[29\] and a man may be liable for the acts of his partner \[80\] or agent.\[81\]

Pittsburgh, etc., R. Co. v. Com., 101 Pa. 192: 663: 'Telegram Newspaper Co. v. Com., 172 Nashville, etc., Turnpike Co. v. State, 96 Mass. 274: 1 Whart. Cr. Law, 8 87: Common-Tenn. 249. Likewise mingfeasance or malfeasance. Cincinnati R. Co. v. Com., 80 Ky. 187: State v. Baltimore & O. R. Co., 15 187: Northern Cent. R. Co. v. Com., 90 Pa. 300: Reg. v. Great North of England R. Co., 91 192: 663: 164: 165: 166: 167: 168: 169: 170: 171: 172: 173: 174: 175: 176: 177: 178: 179: 180: 181: 182: 183: 184: 185: 186: 187: 188: 189: 190: 191: 200: 211: 212: 223: 224: 225: 226: 227: 228: 230: 231: 232: 233: 234: 235: 236: 237: 238: 239: 240: 241: 242: 243: 244: 245: 246: 247: 248: 249: 250: 251: 252: 253: 254: 255: 256: 257: 258: 259: 260: 259: 261: 262: 263: 264: 265: 266: 267: 268: 269: 270: 269: 271: 272: 273: 274: 275: 276: 277: 278: 279: 280: 281: 282: 283: 284: 285: 286: 287: 288: 289: 290: 291: 292: 293: 294: 295: 296: 297: 298: 299: 300: 310: 320: 332: 333: 341: 342: 343: 344: 345: 346: 347: 348: 349: 350: 351: 352: 353: 354: 355: 356: 357: 358: 359: 360: 359: 370: 361: 362: 363: 364: 365: 366: 367: 368: 369: 371: 372: 373: 374: 375: 376: 377: 377: 378: 379: 380: 381: 382: 383: 384: 385: 386: 387: 388: 388: 389: 390: 391: 392: 393: 394: 395: 396: 397: 398: 399: 400: 411:5. _Former adjudication and second jeopardy._"--American constitutions provide that no person shall be twice placed in jeopardy of life or liberty for the same offense."33 Where one has been placed on trial on a valid indictment or information 34 before a court of competent jurisdiction,"35 has been arraigned, and has

place, it is a good defense that in the absence of defendant, his manager, in spite of instructions to the contrary, allowed such minor to play. State v. Meadows, 106 Mo. App. 604, 81 S. V. 463.

NOTE. Criminal liability of principal for agent's nets: As a general rule the principal is liable for the acts of his agent only where he has expressly or implipledly authorized them or has in some manner participated in or assented to them. Sorenset v. Hart, 12 Q. B. Div. 360; Rex. v. Huggins, 2 Ld. Faym. 1574; Reg. v. Holbrook, 2 Q. B. Div. 60; Hardcastle v. Helgly, 1 Q. B.

709; S. V. Birch, I Cranch, C. C. 571, Fed. Cas. No. 14,595; U. S. v Beaty, Hempst. 487, Fed. Cas. No. 14,555; Patterson v. State, 21 Ala. 571; Seibert v. State, 40 Ala. 60; Nall v.

State, 34 Ala. 262; Kinnebrew v. State, 80 Ga.

232; Hipp v. State, 5 Blaick. \[Ind.\] 149, 33 Am. Dec. 463; Com. v. Nichols, 10 Metc.

Mass. 1, 259, 43 Am. Dec. 432; People v. Parks,

49 Mich. 333; Anderson v. State, 22 Ohio St.

305; Com. v. Johnston, 2 Pa. Super. Ct. 317; Mitchell v. Mims, 8 Tex. 6; State v. Bacon,

40 Vt. 456; Com. v. Lewis, 4 Lehigh \[Va.\]

664; Com. v. Morgan, 107 Mass. 195; Tex. v.

41 Simon, 5 Burrow, 2865; Com. v. Stevens, 155 Mass. 291; Hately v. State, 15 Ga. 346; Stevens v. People, 67 Ill. 587; Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684; Webster v.

State, 110 Tenn. 491, 75 S. V. 1020; Atkins v. State, 95 Tenn. 474, 32 S. V. 391; Com.

v. State, 95 Tenn. 474, 32 S. V. 391; Com.

v. Gillespie, 7 Ser. & R. \[Pa.\] 466, 10 Am.

Dec. 475; State v. Mueller, 38 Minn. 497, 38 N. W. 691; Britain v. State, 3 Humph.

(Tenn.) 203; State v. Wriggin, 20 N. H. 449.

For unauthorized and expressly prohibited acts there is no liability. Somerset v. Hart,

12 Q. B. Div. 360; Barnes v. State, 19 Conn.

389; Hipp v. State, & Blackf. \[Ind.\] 149, 33 Am. Dec. 463; Com. v. Stevens, 153 Mass.

421, 25 Am. St. Rep. 647, 11 L. R. A. 587; Com. v. Wachendorf, 141 Mass. 270; People v. Parks, 49 Mich. 333; Com. v. Junkin, 170 Pa. 195; State v. Smith, 10 R. I. 255; Rex. v.

Huggins, 2 Ld. Raym. 1574; Hardcastle v.

Hughes, 1 Q. B. 709; U. S. v. Beaty, Hempst.

487, Fed. Cas. No. 14,555; State v. Bacon, 40

Vt. 456; Com. v. Nichols, 10 Metc. \[Mass.\]

29, 43 Am. Dec. 432; Com. v. Brant, 142

463; Com. v. Stevens, 155 Mass. 291; Stars. 291; Stars. 293; Stars. 294; Stars. 295; Stars. 296; Stars. 350; Stars. 153 Mass. 291; Stars. 351; Stars. 352; Stars. 353; Stars. 354; Stars. 355; Stars. 356; Stars. 357; Stars. 358; Stars. 359; Stars. 359; Stars. 359; Stars. 359; Stars. 359; Stars. 359; Stars. 359; Stars. 360; Stars. 361 pleaded, and the jury has been impaneled and sworn, he is in jeopardy.\[40\] If the prosecution has proceeded so far as to place the accused in peril of conviction or punishment, there is jeopardy.\[37\] Jeopardy does not arise where a prosecution is dismissed without trial on defendant's own motion,\[38\] or the previous conviction is set aside on motion for new trial or in arrest of judgment on motion of the accused,\[39\] or a mistrial results from moral or physical necessity,\[40\] or a collusive conviction is procured at defendant's instance;\[41\] or one guilty of a felony is convicted of a misdeneanor;\[42\] but the discharge of a jury for an erroneously declared mistrial,\[43\] or for inability to agree, not in accordance with the statute, is a good basis for the plea.\[44\] One again convicted before the expiration of his "good time" earned in prison is not placed in double jeopardy by being required to serve the balance of his first sentence in addition to the second.\[45\] Identity of offenses is necessary to sustain the plea,\[46\] and it is not enough that both arose out of the same occurrence and state of facts.\[47\] An action for violating an ordinance on fire limits is quasi

Stoll, 143 Cal. 689, 77 P. 818. Wherein acquitated was directed immediately after openingst changed in the second, he is twice in ing statement of the state. The case is likeened to People v. Connor, 142 N. Y. 130, which denied the validity of an acquitated by a court having no jurisdiction.--4 Columbia L. 590. 36. See 3 C. L. 984, n. 62. 37. State v. Monroe \[Tr. I. J 57 A. 1057. 38. Teese v. State \[Ark.\] 83 S. W. 918. 39. State v. Foley \[La.\] 38 So. 402. 40. Oliveros v. State, 120 Ga. 237, 47 S. E. 627. 41. State v. Moore, 136 N. C. 581, 48 S. E. 573. 42. A misdemeanor fine in a justice court will not bar a subsequent prosecution for a felony arising from the same transaction. Gibson v. State \[Tex. Cr. App.\] 83 N. W. 1119. And a conviction under a municipal ordinance is no bar to a prosecution for a common-law offense. Const., 5 168, relates only to statutory crimes. Lucas v. Commonwealth, 26 Ky. L. R. 740, 82 S. W. 440. 43. Oliveros v. State, 120 Ga. 237, 47 S. E. 627. 44. State v. Klauer \[Kan.\] 78 P. 803. 45. Ex parte Russell, 92 N. Y. S. 68. 46. Huffman v. State, 84 Mis. 47, 36 So. 395; People v. Devlin, 143 Cal. 128, 76 P. 900. When one offense is a necessary element in and constitutes an essential part of another offense and both are in fact but one transaction, a conviction or acquitated of one is a bar to a prosecution for the other. State v. Fink, 186 Mo. 50, 84 S. W. 921. The true test is whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. Charge of keeping a liquor nuisance on block 11 is distinct from that of keeping a liquor nuisance on block 12. State v. Virgo \[N. D.\] 103 N. W. 610. The test is whether both the indictments and the investigation that may be had thereunder re-late to the same offense. Lock v. State \[Ga.\] 50 S. E. 932. Acquitated by a court of competent jurisdiction is a bar to a prosecution on a second indictment charging an offense which was or could have been made the subject of investigation under the first indictment. Acquitated of assault with intent to murder barred conviction for riot. Lock v. State \[Ga.\] 50 S. E. 932. If one may be con 5 Cur. Law. CRIMINAL LAW SS 6.

criminal and a plea of former acquittal is to be determined by the rule applicable to criminal cases and not by the doctrine of res judicata of civil cases.\[48\] An acquittal in a criminal prosecution is no bar to a subsequent civil action to recover a penalty for the alleged violation of the ordinance.\[49\] The immunity from second jeopardy is personal and may be waived.\[50\] Ordinarily former jeopardy must be pleaded before plea to the merits,\[51\] whereupon accused has the burden of proof,\[52\] but if on the second trial the record discloses all the facts, they need not be pleaded anew or proved aljunde.\[53\]

SS 6. \_Punishment of crime.\[54\]--\_The provisions of the statute prescribing the penalty are exclusive,\[55\] but if a specific punishment is not provided for a misdemeanor, it is uniformly understood to be that annexed to common-law misdemeanor, viz: fine and imprisonment.\[56\] Upon the reversal of judgment the accused may by statute be subjected to a resentence.\[57\] Where one has been sentenced to hard labor for the county, an unreasonable detention thereafter in the county jail or elsewhere by the sheriff entitles the prisoner to his discharge on habeas corpus.\[58\] The constitutionality of several statutes authorizing punishment is considered in the note.\[59\]

\_Extent of punishment.\[50\]--\_The accused has a right to be sentenced under the law in existence at the time of his criminal act.\[61\] Excessive punishments cannot be

on the same facts. Rev. St. 1899, SS 1898, \[Ga.\] 51 S. E. 598. If the statute provides 1927. State v. Anderson, 186 Mo. 25, SS 4 S. W. 946. A conviction for larceny committed 90 N. Y. S. 762.

during the same transaction and immediateity after entering a building is not a bar to a prosecution for burglary in entering the buliding with intent to commit larceny. People v. Devlin, 143 Cal. 128, 76 P. 900. An ac-quittal of the crime of bribery is no bar to a subsequent prosecution for perjury, based on false swearing by defendant as a witness 946. A conviction for larceny committed 90 N. Y. S. 762.

to a prosecution for larceny committed 90 N. Y. S. 762.

atley after entering a building is not a bar to a prosecution for burglary in entering the buliding with intent to commit larceny. People v. Devlin, 143 Cal. 128, 76 P. 900. An ac-quittal of the crime of bribery is no bar to a subsequent prosecution for perjury, based on false swearing by defendant as a witness 946. A conviction for larceny committed 90 N. Y. S. 762.

to a prosecution for larceny committed 90 N. Y. S. 762.

to a prosecution for assault on the same facts. Thompson v. State \[Tex. Cr. App.\] 85 S. W. 1059. Inset and rape being offenses of the same nature and species, an acquittal of one is a bar to trial for the other. State v. Price \[Iowa.\] 103 N. W. 195. (See an instructive dissenting opinion by Mr. Justice McClain in this case.)

48. Noland v. People \[Colo.\] 80 P. 887.

01. Town of Canton v. McDaniel \[Mo.\]

86 S. W. 1092.

50. State v. White \[Kan.\] 80 P. 589. And such waiver may be express or implied. Id. Failure to interpose an objection to entering upon a second trial constitutes a waiver, Id. The setting aside of a conviction, on motion for new trial or in arrest of judgment, at the instance of the accused, constitutes a waiver by him of any objection the might otherwise make to being tried again. State v. Foley \[La.\] 38 So. 402.

01. State v. White \[Kan.\] 80 P. 589; Clement v. State \[Tex. Cr. App.\] 86 S. W. 1017.

01. Clement v. State \[Tex. Cr. App.\] 86 S. W. 1017.

01. State v. White \[Kan.\] 80 P. 589.

01. See 3 C. L. 985.

01. And the courts have no right to impose any penalty save as provided by the legislature. Esquibel v. Chaves \[N. M.\] 78 P. 505. The sentence to be imposed is a matter of discretion for the trial judge, subject to the statutory limitations. Godwin v. State v. State v.

inflicted,\*a but no sentence is legally excessive which is not greater than the maximum fixed by law,\*a though the reviewing court considers it unnecessarily severe.\*a That a sentence is excessive is not a proper ground of a motion for new trial.\*e In some states the court is empowered to modify excessive sentences.\*e Cases involving indeterminate sentences,\*f and the right to commutation for good behavior,\*g are collected in the note. Attainder and corruption of blood are abolished by state and Federal constitutions.\*g

\_Place of imprisonment.\*o--A change in the place of confinement, except in the case of persons sentenced to death,\*i may render a statute ex post facto. A sentence to a prison other than that designated by the statute is void.\*g

550, 90 N. Y. S. 134), and an indeterminate sentence law containing no provision for the allowance of "good time" is ex post facto as to one sentenced thereunder for a crime committed while the statutes allowed for "good time" (State v. Tyree \[Kaan.\] 78 P. 525). A statute allowing commutation for good behavior of those confined on definite sentence does not apply to a convict sentenced to serve not less than one year nor more than one year and nine months for an offense committed prior to the passage of the statute. Laws 1903, p. 315, p. 317. People v. Johnson, 44 Misc. 550, 90 N. Y. S. 134. A sentence to imprisonment for a minimum and maximum of five years, imposed after the taking effect of an indeterminate sentence law, for a crime committed before that time, is valid and does not deprive the prisoner of his rights to parole or good time allowances. Comp. Laws, $ 11,556; Laws 1903, p. 168. In re Marion \[Mich.\] 12 Det. Leg. N. 55, 103 N. W. 512. 62. A fine of $300 for a first offense in violation of the Ohio liquor laws, being greater than the statute provides, is excessive. Dalrympie v. State of Ohio, 26 Q. C. C. 562, 5 Ohio C. C. (N. S.) 185. 63. Godwin v. State \[Ga.\] 61, S. E. 598; Pitts v. Atlanta, 121 Ga. 567, 49 S. E. 793. A fine of $100 for first violation of an ordinance prohibiting the storage or transportation of nitroglycerine within municipal limits is not excessive. Walter v. Bowling Green, 5 Ohio C. C. (N. S.) 516. Imprisonment not exceeding ten years and not less than one year is not excessive or unusual punishment for placing obstructions on a railroad track. Rev. St. 1898, $ 4386. State v. Bisping \[VWs.\] 101 N. W. 359. A sentence of four months' imprisonment in the county jail is not excessive for violently resisting an officer in the service of a search warrant. State v. Moore, 125 Iowa, 749, 101 N. W. 732. In Georgia a sentence of twelve months in the chain gang for carrying concealed weapons is not excessive. Godwin v. State \[Ga.\] 51 S. E. 598. A sentence of two years in the penitentiary, being the statutory minimum, is not a cruel and unusual punishment for an assault with intent to kill with malice afterthought. State v. Lorts, 186 Mo. 122, $ 8. W. 906. That the sentence imposed upon defendant, though within the limits of the statute, was heavier than that imposed on others convicted at the same term of court, is not a ground for new trial. Seats v. State \[Ga.\] 50 S. E. 65. A sentence of four years in the penitentiary for receiv-

550, 90 N. Y. S. 134), and an indeterminate sentence law containing no provision for the excessive where the apellate court is fully admissible of defendant's guilt and his penit-

5 Cur. Law. CURTESY. 893

_Second offenses._"--An increase of punishment," or a forfeiture of previous commutation for good behavior," on a second or subsequent conviction, is valid. In order that the sentence may be that provided for a second offense, the prior conviction must be alleged."

SS 7. _Bights in property the subject of crime._"--Status may require that on conviction for lareeny the property stolen shall be returned to the owner."

Criminal Procedure; Crogs; Cross Bills and Complaints; Crossings; Cruel and Unusual Punisiments; Crucelly; Cumulative Evidence; Cumulative Punisiments; Cumulative Votes; Creative Acts, see latest topical index.

CURTESTY.

Curtesy attaches to any estate of inheritance of which the wife is seised during coverture." Curtesy becomes initiate on birth of issue capable of inheriting." At common law seisin must have been actual; " but the common law attributes have

awaiting execution in the penentietary, in \[tional punishment upon conviction for a seclieu of confinement in the county jail, is not edfense is not a violation of the state or ex post facto as applied to a person con- Federal constitutions. Pan. Code, S 666, vited before the passage of the statute on such substitution. N. D. Act March 9, 1908.

In Michigan where defendant had been Rooney v. State of North Dakota, 196 U. S.

twice convicted and was sentenced a third 319, 49 Law. E.4. 49. However material the place of confinement may be in case of some crimes not involving life, the place of ex- section, when the punishment is death, with the limits of the state, is immaterial. Id.

72. In Pennsylvania, where the penalty is simple imprisonment for whatever period, the place of confinement is the county jail (Commonwealth v. Fetterman, 26 Pa.

a former sentence, that commutation will Super. Ct. 569); but when the penalty is immaterial is valid. Ex parte Russell, 92 N. Y.

prisonment at labor by separate or solitary confinement, and the sentence is for one year or more, the place is either the penentietary or a suitable county prison. (Id.).

When the sentence is for less than a year, the place is a suitable county prison, or in the absence of such prison, simple imprisonment in the county jail is to be substituted. Id. Imprisonment in the penentiary for eleven months is more than equivalent in severity to confinement in the county jail for ten years. Id. A prisoner will be re- leased on haeas corpus where the record does not show that we was convicted of an offense enumerated in the statute under which she was convicted and sentenced to a particular institution. Certain persons guilty of certain offenses could be committed to a particular institution. The record did not show whether the prisoner was convicted for being a profutite or for disorderly conduct. People v. Keeper of New York State Reformatory, 176 N. Y. 465, 68 N. E. 884. By statute in Rhode Island, one convicted or illegally selling liquor in one county may be imprisoned in the jail of another county. Gen. Laws 1896, $ 39, e. 285. Dawley v. Wilcox, 25 R. I. 297, 55 A. 753. One convicted of lasclvious cohatilation in Michigan may be sentenced to the branch prison but not to the state prison at Jackson. Ex parte Al- len \[Mich.\] 103 N. W. 209.

73. See S 3 C. L. 987.

01. The California statute providing addi been abrogated by statute in most states, and birth of issue and actual seisin is rendered unnecessary.\[32\] Where married women are given absolute right to manage their separate property, the prospective right to curtesy does not entitle the husband to possession during coverture,\[88\] and where the right, though vested, cannot be asserted during the life of the wife, a purchase with her funds and title taken in the name of a third person for the purpose of defeating curtesy is not fraudulent as to him.\[84\] Curtesy may be released by accepting the provisions of a wife's will,\[85\] or by deed from husband to wife to her sole and separate use,\[86\] or by a deed of trust of her -seperate property joined in by both for her sole and separate use;\[87\] but not by contract between husband and wife,\[88\] and the fact that such a contract is entered into does not estop the husband from asserting his right.\[88\] "Heirs" and "descendents" used in the creation of a separate estate will not bar curtesy except as to children.\[89\] The estate is merged where the tenant acquires the fee\[91\] The possession of a tenant by curtesy of property of which his wife was tenant in common is not adverse to her co-tenant.\[92\]

CUSTOMAS AND USAGES.

Definition and Elements (S94).

Definition and Elements (S97).

Definition and Elements (S98).

Definition and Elements (S99).

5 Cur. Law. CUSTOMS AND USAGES SS 2. 895

to explain what is ambiguous or uncertain in the contract,98 to annex such incidents, not excluded by the words used, as the parties may be presumed to have tacitly adopted,99 or to supply terms as to which the contract is silent.1 By where the terms of a contract are full, clear and unambiguous, they cannot be varied or contradicted by proof of custom.2 Evidence of general usage or custom has little, if any,

terms expired at noon on a certain day. \[\[V1a.\] 101 N. W. 1050. Evidence of custom Rochester German Ins. Co. v. Peaslee Gaul-

in tobacco trade to accept checks in payment Co. \[Xy.\] 87 S. W. 1115. Insurance

ment for large lots admissible, not to vary, companies are bound to inform themselves

but to interpret, contract. Hughes v. Knott of the usages of the particular business in-

\[N. C.\] 50 S. E. 586. Evidence of custom or saved, and are presumed to know such usages of trade in delivering lumber held adages. Thus, insurance policy construed in

\[N. C.\] 50 S. E. 586. Evidence of custom or

\[N. C.\] 50 S. E. 587. Proof evidence

\[N. C.\] 50 S. E. 590. Proof of custom

\[N. C.\] 50 S. E. 591. Proof of custom

\[N. C.\] 50 S. E. 592. Proof evidence

\[N. C.\] 500.

bearing in establishing a different contract which, if made, through mistake was never reduced to writing.'

A custom, to be controlling, so as to affect the rights and liabilities of persons arising from their dealings with each other, must be certain and uniform,' reasonable, as applied to the facts in issue,5 and either known to the party sought to be charged thereby,' or so general and notorious that knowledge and adoption of it may be presumed.'

The custom proved or sought to be proved must be applicable to the particular transaction involved.'

policy called for specific written statement on goods shipped them for sale is not bind-under oath. Borussweski v. Middlesex Mut. Assur. Co., 186 Mass. 587, 72 N. E, 350. Proof of custom of insurance company of attach-Bacon Fruit Co. v. Blessing \[Ga.\] 50 S. E. ing copy of application and by-laws to policy cannot be made to prove that this was done in a particular instance. Custer v. F1-delity Mut. Aid Ass'n \[Pa.\] 60 A. 776. Where letters gave plain instructions to return empty beer keys, and purchaser agreed to do so, evidence of a custom to return keys was Inadmissible. Jos. Schlitz Brewing Co. v. Grimmon \[Nev.\] 81 P. 43. Custom in San Francisco requiring consignees to designate berths for the discharge of cargoes cannot prevail over terms of contract for shipment to Honolulu, requiring discharge "on the wharf" and "on the wharf as customary," the custom at Honolulu being to discharge cargoes on the bursures. Moore v. U. S., 25 S. Ct. 202. Proof of custom held not to contradict terms of contract. Lillard v. Kentucky Distilleries & Warehouse Co. \[C. C. A.\] 184 F. 168. Where a regulation on a telegraph blank, made a part of the contract, did not expressly provide for pre payment of charges for delivering outside free delivery limits, the parties could contract with reference to a custom whereby messages were delivered outside such limits without pre-payment without thereby contravening the terms of their contract. Western Union Tel. Co. v. Bowman \[Ala.\] 37 So. 498.

- 3. Finding that nothing was left out of contract by mistake held sustained by evidence. John O'Brien Lumber Co. v. Wilson \[Vis.\] 101 N. W. 1050.
- 4. Evidence insufficient to show custom of this character regarding liability of counsel for fees of court. Russell's Ex'x v. Ferguson \[Vt.\] 60 A. 802. A custom on the part of a street railway company of permitting persons to ride on the bumper of cars cannot be proven by occasional Instances. Columbus R. Co. v. Muns, 6 Ohio C. C. (N. S.) 286.
- 5. Custom of allowing brokers 5 per cent. on sales held unreasonable in a case where the broker performed practically no services. Penland v. Ingle \[N. C.\] 50 S. E. 850. A custom allowing brokers 5 per cent. commission irrespective of the amount, value, or character of services rendered, is unreasonable and void. Id.
- 6. Russel's Ex'x v. Ferguson \[Vt.\] 60 A. 802. A custom of a bank to pay proceeds of drafts drawn to the cashber to persons depositing them is not binding on a drawer of a draft who did not know of such custom. Kuder v. Greene \[Ark.\] 82 S. W. 536. Local custom of brokers of designing $10 per cent.

VOL V, NO. 4. CURRENT LAW, DECEMBER, 1905.

, 897

(Copyrighted, 1905, by Keefe-Davidson Company.)

**CUSTOMAS AND USAGES - Con't.**

Proof of local customs is frequently admitted in actions based on negligence, as on the issue of contributory negligence in personal injury actions.\* Proof of an individual custom is incompetent.\[10\] No custom, general or special, will excuse the want of reasonable diligence in protecting business customers from loss.\[11\]

A custom cannot vary the terms of, or operate to abrogate or repeal, a general statute;\[12\] nor will evidence of a local custom, contrary to established principles of law, be received.\[13\]

- Local custom of railroad company re- quiring shippers to repair cars before they would be accepted for shipment is admissible.\[10\] No custom, general or special, will excuse the way was not a trespasser or license.\[11\] Chicago de A. R. Co. v. Petittit. 111 III. App. 117. Where fact that railroad crossing gates were frequently left down unnecessarily became material on issue of contributory negligence in personal injury action, proof of such custom was competent, but only as to such instances as to which plaintiff had knowledge. Chicago de Basti- cern III. R. Co. v. Keegan, 112 Ill. App. 338.
- In personal injury action, house movement could not testify to his own method of taking care of electric wires. Nagle v. Hake \[Wis.\] 101 N. W. 409.
- was claimed to be a usage, but held not to be reasonable diligence. Bank of Commerece v. Miller, 105 Ill. App. 224.
- \*\*NOTE. Proof of custom on Issue of negligence: A negligent act will not be executed on the ground that it is customary. Proof of custom, however, is evidence, but not conclusive, as to whether the act is negligent. Anderson v. Pielding, 92 Minn. 42, 99 N. W. 358; Cramer v. Christian, 36 Minn. 413, 31 N. W. 457, 1 Am. St. Rep. 675; O'Malley v. Fallyway C., 43 Minn. 28, 45 N. W. 440; Lamason v. Truestadle, 60 Minn. 410, 62 N. W. 546. What persons customarily do under certain circumstances is usually a test of ordinary care, but to this rule there is the familiar exception that where the doing of an act is so obviously dangerous as to constitute negligence as a matter of law, then it must be deemed inconsistent with ordinary care, regardless of custom. Douglas V. Chicago, etc., R. Co., 100 Wis. 405, 69 Am. St. Rep. 930.
- Proof of what is usually done under the same circumstances is admissible. Stewart v. Galveston, etc., R. Co. \[Tex. Civ. App.\] 78 S. W. 879. Custom of running train at high rate of speed at certain place admissible to show negligence. Gulf, etc., R. Co. v. Anson \[Tex. Civ. App.\] 82 S. W. 785. General custom of well regulated and prudently managed railroads as to time and manner of inspecting bolters held admissible. Illinois Cent. R. Co. v. Pricket, 210 Ill 140, 71 N. E. 435. Proof of common and general use of a particular appliance is admissible on the issue of its reasonable safety, in an action by a servant against a master. Anderson v. Fielding, 92 Minn. 42, 99 N. W. 357. See, also, as to admissibility of proof of custom, Comstock v. Georgstrom Tp. \[Michel.\] 100 N. V. Pagen, 72 Tex. 127, 13 Am. St. Rep. 776, 2

**SS 3.**\_Pleading and proof.\_14--Proof of a custom must be clear, cogent and convincing as to the antiquity, duration and universality of the usage in the locality where it is claimed to exist.\[15\] If the evidence is uncertain and contradictory, the custom is not established, and the court should so instruct the jury.\[16\] Knowledge of a witness as to a general custom must be shown before he may testify in regard to such custom.\[17\] As to the necessity of pleading a custom, where relied on, there is a conflict.\[18\]

**CUSTOMMS LAWS.**

**SS 1.**_Interpretation and Operation of Customs Laws in General (S97)._

**SS 2.**_Dutiable Articles and Classification of the Same (S98)._

**SS 4.**_Violations of Customs Laws and Consequences (900)._

**SS 3.**_Administration of Customs Laws (900)._

**SS 4.**_Antimatteration of Customs Laws (900)._

**SS 4.**\_Interpretation and operation of Customs Laws in general.\_19--The treaty providing for a reduction of twenty per cent. of the duties on Cuban products became effective ten days after the exchange of ratifications.\[20\] The existence of the insurrection in the Philippines after the treaty with Spain was ratified did not justify the exactation of duties on imports from the United States into Manila after such ratification.\[21\] The president's order during the war, directing payment of duties as a military contribution on occupation of the country by the forces of the United States, had no application after the conclusion of the war.\[22\] The tariff act of 1897 applies to goods imported on the day it became effective,\[23\] and to merchandise previously imported for which no entry for consumption has been made.\[24\] Merchandise is being admitted for tariff purposes until the duties are finally liquidated.\[25\]

**SS 2.**\_Duliable articles and classification of the same.\_26--Wherever, in the history of customs laws, it is found that a certain expression has received, in effect, a statutory construction, or a long and uniform use by congress or the departments, that construction is controlling, unless some other is necessary.\[27\] This rule of construction is superior to all others.\[28\] Every provision of a customs act classifying merchandise is presumed to have relation to some existing course of business.\[29\] The statutory provision, commonly known as the similitude clause, requiring unenumer-

L. R. A. 75. Usage will not control the legal interpretation of a statutory. Dwight v. Boson, 12 Allen (Mass.) 316, 90 Am. Dec. 149. A custom contrary to morality. religion or the law of the land is void. Holmes v. Johnson, 42 Pa. 159. Nor can custom deprive a person of a legal right. See Attorney General v. Tarr, 148 Mass. 309, 2 L. R. A. 87; East Birmingham Land Co. v. Dennis, 85 Alan. 567, 1 Am. St. Rep. 73, 2 L. R. A. 836. A usage must not be in restraint of trade, nor in conflict with public policy or the law of the land. Susquabanna Fertilizer Co. W. White, 6 Cent. Rep. 434, 66 Md. 444, 59 Am. Rep. 186.

**14.** See 3 C. L. 989.

**15, 16.** Penland v. Ingle \[N. C.\] 50 S. E. 850.

\*\*17.\*\*Nagle v. Hake \[Wis.\] 101 N. W. 409.

\*\*18.\*\*Courts take judicial notice of a general usage or custom, and it need not be pleaded. John O'Brien Lunmber Co. v. Wilkinson \[Wis.\] 101 N. W. 1056. If a custom or usage is relied on, it must be pleaded. Orlental Lunmber Co. v. Blades Lunmber Co. \[Va.\] 50 S. E. 270.

\*\*19.\*\*See 3 C. L. 990.

\*\*20.\*\*Act of Congress of Dec. 17, 1903, providing that treaty should apply ten days after such exchange, which was on March 31, 1903, had a retroactive effect. American Sugar Refining Co. v. U. S., 136 F. 508.

\*\*21.\*\*Lincoln v. U. S., 25 S. Ct. 456.

\*\*22.\*\*The ratification of such order and action taken in accordance therewith by congress in 1902 could not therefore have the effect of ratification of an erroneous exacerbation of duties under the order. Lincoln v. U. S., 25 S. Ct. 456.

\*\*23.\*\*July 24th, 1897, at 4:06 p. m. John B. Ellison & Sons v. U. S., 136 F. 969.

\*\*24.\*\*John B. Ellison & Sons v. U. S., 136 F. 969.

\*\*25.\*\*Decision of appraisers as to Cuban products being after act of congress and proclamation of president regarding treaty with Cuba, goods were entitled to 20 per cent. reduction. American Sugar Refining Co. v. U. S., 136 F. 508.

\*\*26.\*\*See 3 C. L. 991.

\*\*27.\*\*Brennan v. U. S. \[C. C. A.\] 136 F. 743.

\*\*28.\*\*Brennan v. U. S. \[C. C. A.

ated articles to be classified with the enumerated article which they most resemble, does not require identity, but only substantial similitude in any one of the particulars mentioned--material, quality, texture or use.\[30\] Articles are not dutiable under general terms when a duty is imposed in specific language.\[41\] But though an article may be literally included by name in a certain paragraph, it may sometimes be more properly referred to another paragraph designating a class, on account of its relations to such class.\[32\] The titles of paragraphs of the customs laws are not intended to be perfectly accurate, but only to furnish general information of the articles enumerated.\[38\] The customs act provision that where two or more rates of duty are applicable to an article, the article shall pay the highest of such rates, does not apply where one paragraph lays an ad valorem duty and the other a specific duty.\[34\] Where merchandise in cases is dutiable under two different paragraphs, the value of the cases should be distributed between the two kinds of merchandise in determining ad valorem duties.\[35\] Where an article has been advanced through one or more processes into a completed commercial article, known and recognized in trade by a specific and distinctive name other than the name of the material, and is put into a completed shape for a particular use, it is deemed a manufacture.\[36\] In assessing duties on goods as to which counter-vailing duties are authorized, the collector should adopt such a basis of assessment as will compel the importer to pay as additional duty the net amount of the bounty paid by the exporting country.\[37\] In case of a commodity like sugar, which decreases while being imported, the additional duty should be based on the invoice weight, subject to deduction due to any cause warranting an allowance.\[38\] Countervailing duties on crude articles or their products should be based on the duty imposed by the country where the crude article is produced.\[30\] Rules as to the measurement of rugs,\[40\] and the ascertainment of the component material of chief value in woven fabrics,\[41\] are given in the notes. Other cases in which the classification of particular imports is decided or discussed are grouped in the footnotes.\[42\]

**30. United States v. Roesseler & Hasselacher Chemical Co. \[C. C. A.\] 137 F. 770.**

**31. Brennan v. U. S. \[C. C. A.\] 136 F. 743.**

Paraffin more specific than products of crude petroleum. Scheehlkopf, Hartford & Hanna Co. v. U. S., 139 F. 58.\*\*

**32. Limes in jude net duttiable as limes.**

Brennan v. U. S. \[C. C. A.\] 136 F. 743.\*\*

**Figs**

**preserved whole not dutiable as figs. United States v. Roesseler & Hasselacher Chemical Co. \[C. C. A.\] 136 F. 741.**

**Figs**

## 3 Administration of customs laws

In general.\[43\]--Duties are not exacted on goods which do not actually reach the port, and goods separable from the whole quantity, which by decay have lost all value, are considered a shortage, and duties are imposed only on those arriving in good condition.\[44\] The penalty of the "six months" bond" given by importers for the delivery of unexamined packages, not retained by the collector, is not to be considered as liquidated damages.\[45\] The object of the bond being to protect the government in assessment, valuation and collection of duties, and to facilitate the same, only actual damages suffered by nondelivery of packages called

F. 841. Evidence held to justify finding that importations were skins and not hides. I shall stones and not to sharpen edged instruments are duitable as unenumerated manu-pictures. Fuld & Co. v. U. S., 135 F. 917. Barken scripts. United States v. Perry, 133 F. 841. "Cistern" in several pieces with fig-ures sculptured thereon in almost full relief to silk yarn. Von Bernuth v. U. S., 133 F. is statuary. United States v. American Exp. Co., 139 F. 89. Metal heads, temporarily strung, United States v. Buettner \[C. C. A.\] and 137 F. 882. Painted glass 133 F. 163. Wall mottos dutables as pa-eyes for dolls. R. Hoehn Co. v. U. S., 139 F. pliqued or embreddered articles. United States v. Miller, Sloan & Wright \[C. C. A.\] and 135 F. 849. "Reoks and paper: Printed paper bags not dutable as "printed matter." Kraut v. U. S., 139 F. 85. 134 F. 701. Paper out for envelopes not dutable as envelopes. Hunter v. U. S., 135 F. 918. Raw silk on caps or tubes. United States v. Klotz, 133 F. 808. "Reviews" "Sake" is dutable as unenumerated manufacture, not as beer or wine under simillitude clause. United States v. Stewart, 133 F. 811. "Silk goods woven on Nashlmiya \[C. C. A.\] and 137 F. 396. "Chemelais and medicines: Lentiscum or lentiscus used in tanning or dyeing is a crude article. Leber & Meyer v. U. S., 135 United States v. B. Ulimann & Co. IC. C. A.\] and 139 F. 823. Articles used in tanning or dyeing are not drugs. Leber & Meyer v. U. S., 135 F. 243. "Gadbul" dutable as chemical compound. United States v. Merck & Co. \[C. C. A.\] and 136 F. 817. "Minerals, metals and unenumerates thereof: Ferro-chrome, ferro-molybdenum, ferro-tungsten, and ferro-vandium classified, by simillitude, as ferromagnets and not as unprorought metals. United States v. Roseser-ler v. Hasslacher Chemical Co. \[C. C. A.\] and 137 F. 770. Alloy of metal-iron, tin, mananganese-used to harden manganese bronze, duable as unworth metal. William Cramp & Sons Ship & Engine Eldg. Co. v. U. S., 139 F. 303. Slides or buckles, made of metal, ornamented or colored, duable as manufacturers of metals. E. H. Bailey & Co. v. U. S., 135 F. 917. Broken storeup plates duable as type metal. Saper v. U. S., 133 F. 86. "Hillet packs" y. U. S., 135 F. 332. Sheet steel in strips, crucible Steel Co. v. U. S., 132 F. 269. Flittens dutable as manufactures of metal. United States v. George Meier & Co. v. U. S., 135 F. 261. "Hillet" y. U. S., 136 F. 764. Cold rolled steel strips. United States v. Crucible Steel Co. of America \[C. C. A.\] and 137 F. 884. "Miscellaneous manufacturingures: Ping pong balls not dutable as toys but as articles of cellodon. United States v. Strauss Brox. & Co., \[C. C. A.\] 136 F. 185. United States v. Vanmanaker, 136 F. 266. Surgical needles. A. J. Wodroft & Co. v. U. S., 138 F. 946. "Time detectors dutable as watch movements. Hensed, Bruckmann & Lorbachev & Shallis, 137 F. 255. "Pramental rhinetstones made of metal and paste duable as manu-pictures." \[C. C. A.\] and 137 F. 884. "Miscellaneous manufacturingures: Ping pong balls not dutable as toys but as articles of cellodon. United States v. Strauss Brox. & Co., \[C. C. A.\] 136 F. 185. United States v. Vanmanaker, 136 F. 266. Surgical needles. A. J. Wodroft & Co. v. U. S., 138 F. 946. "Time detectors dutable as watch movements. Hensed, Bruckmann & Lorbachev & Shallis 5. Cur. Law. 5 Customs Laws $ 3. 901

for can be recovered,\[40\] and the district court has jurisdiction of an action for that purpose.\[47\] The phrase "entitled to debenture" in the statute refers to merchandise, the importer or owner of which is entitled to a certificate in due form, showing the amount of duties paid and that it has been duly entered for export back to a foreign country.\[48\] Until the duties have been paid and the merchandise entered for exportation, it is not entitled to debenture,\[49\] and the owner is not entitled to change the packages in which it is contained, on application to the"collector.\[50\] A complaint against a surveyor of customs for damages for refusal to permit a change of packages, which alleges that merchandise is "entitled to debenture" without facts showing them to be so entitled, pleads a mere conclusion of law.\[51\] The government and not the importer should bear the expense of storing merchandise pending inspection and analysis by the department of agriculture, under the pure food law.\[52\] What vessels are required to report to customs officers must be determined by reference to the statute.\[53\]

_Entry.\[54\]_--An entry for consumption cannot be made in a given port until the goods are within the limits of that port when the duty is tendered to the collector.\[55\] A special act of congress is necessary to permit such an entry at any other port than the port of ultimate destination.\[56\] A custom house broker cannot deny his sworn declaration that he is the consignee of goods,\[57\] and under the statute declaring that for the purposes of the customs laws imported merchandise is deemed the property of the consignee,\[58\] he is liable as though he were the real owner, after making such a declaration.\[58\]

_Liquidation.\[50\]_--The secretary of the treasury has power to reliquidate an entry at the exchange value of the coins of the exporting country, where that value differs by more than ten per cent. from the metal value, as last proclaimed by him.\[61\] For the purpose of estimating the value of foreign merchandise exported to the United States, according to the currency of the country of exportation, as proclaimed each quarter by the secretary of the treasury, the consular certification of the invoice is conclusive proof of the date of exportation in determining which quarterly proclamation applies.\[62\] Local taxes of the country of exportation, remitted on exportation, not shown to be uniformly imposed throughout the country, nor uniform in amount where levied, cannot be considered by appraisers in determining market value.\[63\] Where a protest is sustained by the board of appraisers, it is the collector's duty to reliquidate the entry in accordance with the board's decision.\[64\]

49. Such as additional expense of learn-ing contents without having goods; without proof of actual damage, there can be not recovery on such bond. Dieckerhoff v. 146

, 146

5. 5. 5.

5 Cur. Law. CUSTOMS LAWS SS 4. 903

A decision of a collector based on no other evidence than the articles themselves may be reversed by the board of appraisers or the courts without further evidence." On such review, the appraisers or courts may avail themselves of facts of which judicial notice may properly be taken."2 Findings of fact by the board of appraisers are not as a rule reviewable by the court."2 But the rule is otherwise where it appears that the appraisers signing the opinion did not in fact hear the testimony,"4 since a reappraisement by general appraisers, made without inspection of the merchandise or samples by themselves or any witnesses heard by them, is void."5 The board of appraisers has jurisdiction to review the action of a collector of customs in assessing duty on the cost of repairs to vessels."6

\_A collector_87 who has followed directions of the department in making up a package of money for transmission to the treasurer, and has taken a receipt from the express company, is not liable for a loss occurring before the package reaches the treasurer."88

Footnote 8: The author is grateful to the referees for their comments.

SS 4. \_Violations of customs laws and consequences thereof.\_88--A proceeding in rem lies under the statute for forfeiture of fraudulently imported goods,"9 but not under the statute providing for forfeiture of money arising from the sale of goods fraudulently imported."1 Failure to enter imported goods renders the goods liable to forfeiture, whether or not they would be dutiable if entered, and whether or not the government is defrauded of any sum,"2 and whether or not there was any intent to defraud."98 Proof of a knowing violation or evasion of a customs law is sufficient."1 Rules and regulations of the treasurer department may be continued in force under a new tariff law by simply adopting and continuing to enforce them."98 Hence, in a proceeding to forfeit goods, it is no defense that regulations have not been promulgated."10 An acquittal on a charge of importing goods with intent to defraud the United States of duty is a bar to a proceeding in rem,"11 but the fact that an indictment had been brought and a noble entered does not bar a proceeding in rem."11 A false declaration of ownership on entry of an importation is not ground for forfeiture unless the statement of ownership was willfully and knowingly false."11

Footnote 8: The author is grateful to the referees for their comments.

Footnote 9: The author is grateful to the referees for their comments.

Footnote 90: The author is grateful to the referees for their comments.

Footnote 91: The author is grateful to the referees for their comments.

Footnote 92: The author is grateful to the referees for their comments.

Footnote 93: The author is grateful to the referees for their comments.

Footnote 94: United States v. Fifty Waltham Watch Movements, 139 F. 291. 95.

**DAMAGES.**

**SS 1. Kinds of Damages and Their Charnetics** (904). Special Damages (904) Nominal Damages (905). Liquided Damages (905). Exemplary Damages (906). Statutory, Double and Treble Damages (908). $ 2. General Principles for Asscernling (908). Rule of Strictness as Between Contracts and Torts (908). Limitation to Natural and Proximate Consequences (908). Speculative and Prospective Damages (910). Loss of Profits (910). Difficulty of Proof of Amount as Bar (911). Avoidable Consequences (911). Mitigation and Aggravation of Damages (913). $ 3. Recovery as Affected by Status of Plantiff or Limited Interest in Property Affected (913). $ 4. Measure of Damages for Breach of Contract (914). $ 4. Miscellaneous Contracts (914). $ 5. Contracts for Sale or Purchase of Land (916). $ 6. Breach of Covenant as to Title (917). $ 7. Contracts to Give Lease and Labilitties as Between Lessor and Lessee (917). $ 8. Contracts for Sale or Purchase of Chattels (917). $ 9. LIability of Bailees, Carriers, and Telegraph Companies (919). $ 1. \_Kinds of damages and their characteristics._1_Damnum absolue injuria._--Damages are recoverable only where there has been an infraction of a legal right.\_2_Special damages_3 are such as result naturally but not necessarily from the wrong complained of,$4$ and as to which there can be no recovery without special averment._5_Special circumstances will justify their recovery when specifically sued for if they approximately flow from the breach and are such as might reasonably be within the contemplation of the parties._6_Nominal damages_7 _are allowed for a wrong not shown to have resulted in_ _p_-_._

Footnote 1: See 3 C. L. 997.

**1. See 3 C. L. 997.**

**2. Damages are only recoverable where it appears that defendant owed plaintiff damages.**

**3.** _Damages are only recoverable where_

**4.** _Damages that defendant owed plaintiff damages._ $ 6. Scramton, 25 Pa. Super.\_ $ 7. Gage v. Springer, 112 Ill. App. 103. $ 8. New names are\_

**4.** _Where_ $ _$ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_ _$_$_ _$_ _$_ _$_$\_ _$_ _$_$\_ _$_ _$_$\_ _$_ _$_$\_ _$_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$\_ _$_$_$_ _$_$\_ _$_$\_ _$_$_$_ _$_$\_ _$_$_$_ _$_$\_ _$_$_$_ _$_$\_ _$_$_$_ _$_$\_ _$_$_$_ _$_$\_ _$_$_$_ _$_$_$_ _$_$\_5 Cur. Law. DAMAGES SS 1.905

cuninary injury to plaintiff,8 or where, since the action was instituted, the damages claimed have been duly released.9 Recovery is sometimes limited to nominal damages where the special damages are insufficiently pleaded.10

_Liquidated damages11_ are those the amount of which has been determined by anticipatory agreement between the parties.12 When reasonable in amount and not disproportionate to the injury provided against the injured party will not be allowed to recover more than the sum fixed,18 and will be regarded as having been injured to the extent of the sum stipulated,14 especially where the damages are incapable of computation.15 These principles have been applied to the amount stipulations.

- 10. See 3 C. L. 998, n. 41. Coppola v. Krau-v. Kentueky Distilleries & Warehouse Co. Shaar, 102 App. Div. 306, 92 N. Y. S. 436. (C. C. A.) 134 F. 168. 169. 17. See 3 C. L. 998. 18. See 3 C. L. 998. 11. See 3 C. L. 998. 12. Phoenix Iron Co.'s Case, 39 Ct. Cl. 526; Div. 344, 89 N. Y. K. 325; Marquardt V. Hud. Lytle v. Scottish American Motrg Co. \[Ga.\] son County Gas Co. \[N. Y. Law\] 159 A. 1054; 50 S. E. 402. 13. Davis v. Alpha Portland Cement Co., Co., 137 N. C. 431, 49 S. E. 946. Incorrect 134 F. 274. Amount per case for failure to transmission of telegram. Richmond Hosiery Dickson & Penny. Fidalgo Island Canning Co., 37 K. 290. Death of person not shown to have left kin who are damaged by his loss. Chil-cago Bridge & Iron Co. Va L. Mantia, 112 11. App. 43. Where goods belonging to a wife are without manual seizure wrongfully sold on execution against her husband, and the purchaser pays the price, taking a bill of sale from the constable, and no agreement is made between the purchaser and her or her husband for their disposition, the fact that her possession is not disturbed does not disenttitle here to substantial damages. Mansfield v. Bell, 24 Pa. Super. Ct. 447. It is error to nonsuit merely for insufficient proof of substantion damages. Phillips V. Crosby, 70 N. J. Law, 785; 59 A. 142. Nominal damages only are allowed for a mere unlawful entry on land. Eldridge v. Gorman, 77 Conn. 699. 60 A. 643. Damages from exposure of hack used to transport small-box patients held nominal in view of plaintiff's assent to the exposure. Nichols v. New Britain, 77 Conn. 695, 60 A. 655. Direction of verdict for nominal damages in false imprisonment case held error. Tidey v. Erie R. Co. IN. J. Err. & App. J. 60 A. 954. Where plaintiff invites a verdict for defendant in case they think him entitled only to nominal damages, he cannot complain of a verdict for defendant if the evidence would support a verdict of nominal damages. Langdon v. Clarke \[Neb.\] 103 N. W. 62. An instruction awarding substantial damages for insignificant injury is error. Rosenberg v. New York City R. Co., 94 N. Y. S. 1115. Judgment will not be reversed for error in directing judgment for defendant instead of for plaintiff for nominal damages. Commercial Inv. Co. v. National Bank of Commerce, 36 Wash. 287, 78 P. 910; Fulghum v. Beck Duplicator Co., 121 Ga. 275, 48 S. E. 901. May be allowed when contract has been violated in bad faith. Green v. Farmers' Consol. Dairy Co., 113 La. 869, 37 So. 858. 9. Mattoon Gas Light & Coke Co. v. Dolan, 113 Ill. App. 333. 10. See 3 C. L. 998, n. 41. Coppola v. Krau-shaar, 102 App. Div. 306, 92 N. Y. S. 436. Breach of contract not to sell bank stock. Cothran v. Withan \[Ga.\] 51 S. E. 285. 11. See 3 C. L. 998. 12. Phoenix Iron Co.'s Case, 39 Ct. Cl. 526; Div. 344, 89 N. Y. K. 325; Marquardt V. Hud. Lytle v. Scottish American Motrg Co. \[Ga.\] son County Gas Co. \[N. Y. Law\] 159 A. 1054; 50 S. E. 402. 13. Davis v. Alpha Portland Cement Co., 137 N. C. 431, 49 S. E. 946. Incorrect 134 F. 274. Amount per case for failure to transmission of telegram. Richmond Hosiery Dickson & Penny. Fidalgo Island Canning Co., 37 K. 290. Death of person not shown to have left kin who are damaged by his loss. Chil-cago Bridge & Iron Co. Va L. Mantia, 112 11. App. 43. Where goods belonging to a verdict and claim dam-sold on execution ulated for delay in completing a building,16 for failure to furnish certain goods17 and machinery,16 for failure to complete exchange of property,19 for delay in delivering chattels contracted for,20 for failure to operate a street railroad as agreed,21 a bond to secure the creation of buildings on demised premises,22 a bond,23 and a certified check deposited at the time of securing a franchise.24 The stipulated amount must bear some reasonable relation to the injury,25 especially where the amount of damage can be computed,26 and if the sum stipulated increases as the contract draws near completion and the damages decrease, it will not be allowed.27 Damages stipulated for delay in performance do not measure the recovery in case of a complete abandonment.28 Courts incline to construe bonds as penal in character.29 The fact that the sum to be paid is called liquidated damages in the contract will not always control, but the courts will look to the nature and purposes of the agreement.20 The question whether the stipulated sum is for liquidated damages or a penalty is for the court.21 Statutory penalties are recoverable in amount, irrespective of the actual damages sustained.32

Footnote 28: http://www.statutory.com/

\_Exemplary damages.\_83--Certain sums in addition to the actual damages recoverable for a wrong, termed "exemplary," "punitive," "vindictive" damages, or "smart money" are allowed in cases of private tort or injury willfully or maliciously committed,24 such as assault and battery,25 libel or slander,26 willful breach 5 Cur. Law. DAMAGES SS 1.

of duty to deliver telegrams without delay,\[37\] wrongful ejection of passenger,\[38\] willful trespass,\[39\] willful obstruction of highway,\[40\] malicious prosecution\[41\] and abuse of process,\[42\] and where a negligent act is committed under such circumstances as show that entire want of care which raises the presumption of a conscious indifference to consequences. Such damages are not allowed for breach of contract,\[43\] nor for private tort,\[44\] in the absence of willful misconduct, malice, fraud, wantonness, or oppression,\[45\] nor for mere negligence in the absence of that entire want of care characterized as gross negligence,\[46\] and they are never recoverable except where

Shockey v. McCauley \[MG.\] 61 A. 583; Post Pub. Co. v. Butler \[C. C. A.\] 137 F. 723. A telegraph company cannot be subjected to punitive damages for transmitting a Ilbelous telegram where no malice or wrongful intent is shown other than appears from the acts themselves. Western Union Tel. Co. v. Cashman \[C. C. A.\] 132 F. 805.

37. Hellam's V. Western Union Tel. Co., 70 S. C. 83, 48 S. E. 12.

01. Richardson v. Atlantic Coast Line R. Co. \[S. C.\] 51 S. E. 261; Southern Light & Traction Co. v. Compton \[Alas.\] 38 S. E. 232. Punitive Using unnecessary force. Ickenroth v. St. Louis Transit Co., 102 Mo. App. 597, 77 S. W. 162. Instruction based on actual malice held too favorable to defendant; plaintiff being entitled to punitive damages if act of conductor was reckless or wanton. Lexington R. Co. v. O'Brien \[Ky.\] 84 S. W. 1170.

01. A trespasser may be honest in his belief of right and yet so negligent in ascertaining facts as to subject him to punitive damages. Heaudrot v. Southern R. Co., 69 S. C. 160, 48 S. E. 106. Advice of counsel is immaterial where not shown to be based on facts. Louisville & N. R. Co. v. Smith \[Ala.\] 37 So. 490. Willful violation of right of view and drip. Bornes v. Canepa \[La.\] 38 So. 488. Evidence held to justify the recovery of exemplary damages where horses were driven from land included in defend-ant's pasture. Waggenor v. Snody \[Tex. Civ. App.\] 82 S. W. 355.

01. Tutwiler Coal, Coke & Iron Co. v. Natl \[Ala.\] 37 So. 634.

01. Voronoi attachment. Pittsburg, etc. R. Co. v. Wakefield Hardware Co., 138 N. C. 174, 50 S. E. 571. Act of agent ratified, Vandiver & Co. v. Waller \[Ala.\] 39 So. 136. Exemplary damages are allowed if a sequence transition is malicously sued out. Bledose v. Palmer \[Tex. Civ. App.\] 81 S. W. 97.

01. Plaintiff suing on a statute providing g penalty for wrongful key of an execution can recover only the penalty and not a further sum as punitive damages. Johnson v. Larede, 110 III. App. 611. Where the taking and detection in relepivism is attended with circumstances of aggravation and defendant succeeds, he is entitled to exemplary damages. Cox v. Burdett, 23 Pa. Super. Ct. 346.

01. Are recoverable for fraudulent breach of contract to furnish coffin and burial robe, resulting in burial of relative in plain box without robe. Dunn & Co. v. Smith \[Tex. Civ. App.\] 74 S. W. 376. The court has been carried out by the following authors.

01. The author' 908 DAMAGES SS 2. 5 Cur. Law. actual damages are recoverable.47 Whether exemplary damages are recoverable is for the court,48 but their amount is for the jury.

_Statutory, double and treble damages,49_ are provided for certain injuries of a nature resembling those in which punitive damages are awarded.50

SS 2. _General principles for ascertaining.51_--The cardinal rule of damages is fair compensation.52 general rules, however, cannot be formulated to govern all cases,53 and whenever the rule ordinarily applied to similar cases fails to accomplish the cardinal result, it must yield to exception or modification.54 Where damages may be estimated in a variety of ways, that method will be adopted which is most definite and certain.58

_Rule of strictness as between contracts and torts.59--In actions for breach of contract the primary and immediate results are alone looked to,57 but the damages recoverable for torts take wider range and all damages naturally and proximately though not necessarily resulting from the injury are recoverable.58_

\_Limitation to natural and proximate consequences.59--In all cases only such damages as naturally and proximately result from the injury complained of are recoverable,60 and those which result chiefly from some other or intervening cause,61 or

47. Cole v. Gray \[Kan.\] 79 P. 654. Levy Co. v. H. Channon Co., 113 Ill. App. 491. For on land. Adolome v. Wettermark \[Tex. Civ.\] 75.0 breach of a contract of title insurance collateral. Appl. 82 S. W. 797.

01. Lexington R. Co. v. Fain, 25 Ky., L. R.

01. See 3 C. L. 1001.

01.

01. A conversion after the appointment of a special administrator is not within a state creating a'liability for double dam- ages for the conversion of property of a decedent before the granting of letters tees-entry, the United States to succeed must tamnatureary of or administration. Rev. St.1898,

51 3824. Dixon v. Sheridan \[Wis.\] 103 N. W.

5239. A plaint in trespassing is not entitled to treble damages for digging up gravel in the

0001. CL. 275. The damages for failure to which the trespasser had no interest or right unless the petition alleges the lack

extend to recovery of all his other expenses of such right. Rev. St. 1899, 4573. O'Bannen v. St. Louis & G. R. Co. \[Mo. App.\] 85 S. W. 603. Railroad company held liable for

61.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.
01.

which are not such as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract, \[52\] are not recoverable. Negli-

ered in an action on the bond. Chicago \[ In November is not too remote. Rapid Trans-

Title & Trust Co. v. Chicago, 110 III. App. 14. R. Co. v. Smith \[Tex. Civ. App.\] 82 S. W.

395. Instruction limiting measure of damages to "outcome of the fire" is proper.

Spink v. New York, etc., R. Co., 26 R. I. 115,

58 A. 499. The damages recoverable for an assault on a pregnant woman include only

building dump which sets water back on

such mental suffering as is the direct result of the assault on her, apart from any alleged

prediction in its value, but not for fright

Injury to the child. Haupt v. Swenson, 125

Iowa, 694, 101 N. W. 520. The obstruction of

a navigable body of water is the natural

cause of plaintiff's loss of the use of his

togging engine, time of men and necessity

of discharging employees and rehiring at ad-

injured, the tort feasor responsible for the

vanced wages. Creech v. Humphtips Boom & River Imp. Co., 37 Wash. 172, 79 P. 683.

In an action against a carrier for converting a shipment of goods, plaintiff cannot

cover his expenses while waiting for them.

Central of Georgia. R. Co. v. Chicago Por

trait Co. \[Gal.\] 49 S. E. 727. Loss of perishable goods due to wrongful attachment may

be recovered. Vandiver & Co. v. Waller

\[Ala.\] 39 So. 136. A minister cannot recover

Foundry Works v. Columbia Iron & Steel

damages for hindrance in ministeral duties

Co., 112 Ill. App. 183; Coppola v. Kraushmar,

and loss of time from study and preparation

for work caused by injury to his wife.

Dallas, etc., Co. v. Ison \[Tex, Civ. App.\]

S. E. 703. Injuries to plaintiff from defective

washing cannot be recovered for breach of

resulting from failure to receive cattle for

transportation and keeping them in muddy

pens after receipt. Red River, etc., R. Co.

v. Eastin \[Tex. Civ. App.\] 13 Tex. Ct. Rep.

660, 88 S. W. 530. Under the Civil Damage

Act of Illinois, a saloon keeper is only responsible for the natural and probable

squils of the sale of intoxicating liquor.

Schulute v. Menke, 111 Ill. App. 212. Breach

of contract to sell a fisherman's catch, the

loss of profits. Emerson v. Pacific Coast &

N. Packing Co., 92 Minn. 523, 100 N. W. 365.

61. A child frightened by defendant's

railroad train so she ran in front of the

train of another company cannot recover.

Illinois Central R. Co. v. Haeek, 110 Ill.

App. 102. One injured by a defective side-

walk cannot recover for a subsequent

injury caused by the shipping of the crutch

the first injury compelled him to use. Van

der Velde v. Leroy \[Mich.\] 12 Det. Leg. N.

183, 103 N. W. 812. A passenger injured in

a railroad collision and subject to attacks

of dizziness thereafter cannot recover for a

broken wrist resulting from a fall coactioned

by such an attack while she was standing

in a sink to examine a leak in a water pipe.

Snow v. New York, etc., R. Co., 185 Mass.

321, 70 N. E. 205. For breach of contract

to store trucks in a stable, value of goods

stolen therefrom while unguarded cannot

be recovered. Peyser v. Lund, 89 App. Div.

195, 85 N. Y. S. 881. In a suit for injuries

to cattle by flowing land, plaintiff cannot

recover for loss occasioned by being obliged

to sell his cattle because he had no hay to

feed them after the flowing, and no money

to buy it with. Berg v. Humphtips Boom

& River Imp. Co. \[Wash.\] 80 P. 528. Where

an accident in June causes a miscarriage

the following day, a subsequent miscarriage

2.

909 gence may be the proximate cause of an injury not reasonably to be anticipated," and one guilty of deceit is liable for damages resulting, though causes operated which he did not foresee."44 In an action for personal injuries plaintiff may re-cover in most states for an aggravation of a disease already existing."65

_Speculative and prospective damages."66--Remote or speculative damages based solely on conjecture are not recoverable,"7 but future damages which are imminent and reasonably certain to occur may be taken into account."68_

\_Loss of profits.\_69 not too uncertain and speculative, may be recovered for,"69

ver \[Tex. Civ. App.\] $6 S. W. 628. One who, being employed to repair the cylinder of an engine, delays returning it unduly, but has success. Sweet V. Western Union Tel. Co. no notice that it.belongs to a sawmill, is not liable for idleanes of the mill. Pine Blufl Iron Works v. Bolins \[Ark.\] $8 S. W. 306. Failure to complete wedding gowns as agreed cannot authorize recovery of all other expenses of wedding feast. Coppola v. Kraushaar, 102 App. Div. 306, 92 N. X. S. 436. Chicago, etc., R. Co. v. Willard, 111 III. App. 225; Denison, etc., R. Co. v. Barry \[Tex.\] $8 S. W. 5.

64. One fraudulently induced to hold stocks may recover for depreclation caused by emplacement. Fotter v. Moseley, 185 Mass. 563, 70 N. E. 1040.

01. Delaplain v. Kansas City \[Mo. App.\] $3 W. 71. Whether employer had Knowl-edge of plaintiff's physical condition is immaterial. Basham v. Hammond Packing Co., 107 Mo. App., 542, 81 S. W. 1227. Instruction held erroneous as confining recovery to the effect of the accident as to permanent injuries and precluding recovery for surferring and impairment between date of injury and trial. Williams v. Houston Elle. Co. \[Tex. Civ. App.\] $5 S. W. 489. That injuries were aggravated by an organic tendency to disease existing in the person injured, which was developed by the injury, or by the treatment applied to the injury by the physicians, does not preclude a recovery for the injuries. Chicago City R. Co. v. Saxby, 213 III. 274, 72 N. E. 755. That injuries mere. They instected death from a previously extensive disease does not preclude recovery. Stroe v. St. Louis Transit Co. \[Mo.\] $7 S. W. 976.

01. See 3 C. L. 1003.

01. Chicago v. Lamb, 105 Ill. App. 204.

01. Fleming v. Lobel N. J. Lawl S'99. A. 28.

01. Kellogg v. Malick \[VWs.\] $103 N. W. 1116.

01. K. Co. v. Shadows \[Kn.\] $7 W. 1116.

01. Keaboard Air Line R. Co. v. Harris, 121 Ga.

5 Cur. Law. DAMAGES SS 2. 911

but those merely possible,\[71\] or probable from accretion of the business,\[72\] and incapable of proof with any degree of certainty,\[73\] are not recoverable. Profits which would have resulted from the operation of a ship destroyed are not an element of damages for its destruction.\[74\] Where profits are recoverable the profits for a reasonable period preceding the injury may be taken as a basis of estimate,\[75\] and plaintiff is not obliged to prove with absolute certainty what they would have been, but only with such reasonable certainty as will satisfy a jury of the reasonableness of his demand and estimate.\[76\]

_Difficulty of proof of amount as bar.\[77\]_--\_Mere difficulty of proof of amount is never a bar to recovery either in contract\[78\] or tort,\[79\] it being sufficient to approximate the amount of damages by the best evidence obtainable.\[80\] The failure of the government to return plans submitted to it and rejected does not entitle the person submitting them to damages unless damages are proved.\[81\] Where the evidence to establish damages is general and unsatisfactory, there can be no recovery.\[82\]

_Avoidable consequences.\[83\]_--\_Ordinary care and diligence to lighten the consec

## 8. Summary

The purpose of this paper is to provide a brief overview of the results of the present paper.

### 8.1. The 11th century

The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 11th century. The 11th century is the 1th century. The 11th century is the 1th century. The 11th century is the 1th century. The 11th century is the 1th century. The 11th century is the 1th century. The 11th century is the 1th century. The 11th century is the 1th century. The 11th century is the 1th century. The 11th century is the 1th century. The 11th century is the 1th century. The 1th century is the 1th century.

5 Cur. Law. DAMAGES SS 3.

_Mitigation and aggravation of damages._"22--All circumstances for which the defendant is responsible or of which he had knowledge effective to increase plaintiff's injuries, from the wrong complained of, and in case exemplary or punitive damages are recoverable, that illustrate defendant's susceptibility to punishment and the necessity therefor,"3 may be considered, in aggravation or enhancement of the damages, and on the other hand, circumstances that tend to palliate or excuse the wrong,"4 as well as subsequent acts and events tending to lessen the effect of the injury,"5 and that show that the damages were in fact less than would flow from a similar injury under other circumstances,"6 may be shown to mitigate or lessen the verdict. In Tennessee remote contributory negligence is effective to mitigate the damages recoverable for a negligent injury."5 Evidence that defendant carries employers' liability insurance is inadmissible."8 A trespasser cannot relieve himself from damages by showing that some advantage may have accrued to plaintiff therefrom."8 In an action on a contract, where punitive damages are not recoverable, evidence that after suit brought defendant had plaintiff arrested on a baseless charge is improper."8 3. \_Recovery as affected by status of plaintiff or limited interest in property affected.\_2--Recovery is allowed only to the extent of plaintiff's proprietorship of the cause of action." Applications of this rule to actions by minors,"4 married women,"9 97. Memphis St. R. Co. v. Haynes \["Cen.\] right to recover for the mortification of a public exposition. Neen V. St. Louis Transit 98. Iverson v. McDonnell, 36 Wash. 73, 78 Co., 108 May. App. 443, 83 S W. 98.

P. 202. Elevator insurance. Edwards v. Burke, 36 Wash. 107, 78 P. 610.

P. 610.

P. 62. Defendants' wealth may be shown in libel case. Dowse v. Priddle, 116 Ill. App. 184. Defendants' wealth is not material unless the case is one for exemplary damages.

the appearance of the rest of the structure Western Union Tel. Co. v. Cashman \[C. C. A.\] 132 F. 805.

P. 63. Birmingham R., Light & Power Co. v. Mullen, 138 Ala. 614, 35 So. 701. Ex-citement or provocation not produced by plaintiff cannot avail to mitigate damages for slander. Shockey v. McCauley \[Md.\] 61 A. 658. In an action for libel, facts not known to the defendant when the publica- tion was made cannot be shown in mitigation. Butler v. Barret, 130 F. 944; Post Pub. Co. v. Butler \[C. C. A.\] 137 F. 123. Provo-cation cannot mitigate damages for assault and battery in states where no punitive damages are allowed. Langdon v. Clarke \["Neb.\] 103 N. W. 62. Defendant cannot show provocation for an assault deliberately planned. Shoeman v. Jackson \["Iowa1 104 N. W. 503. Remote language recently repeated is not effective. Le Laurin v. Murray \["Ark.\] 87 S. W. 746. V. 131. In an action for assault and battery, opproprohens words used by plaintiff are admissible in mitigation of punitive but not of actual damages. Mitchell v. Gamulli, 140 Ala. 316, 37 So. 290; Le Laurin v. Murray \["Ark.\] 87 S. W. 131.

S8. That plaintiff after breach of defendant's contract to take all the milk produced on his farm sold his dairy and thereby incapacitated himself for performance, is immaterial on the question of damages. Brazell v. Cohn \["Mont.\] 81 P. 339.

96. Defendant participating in arrest of woman on a charge imputing a want of chasticity may show that she in fact kept a house of prostitution, and had been arrested on similar charges before. Texas Mild and R. Co. v. Dean \["Tex.\] 85 S. W. 1135. 5 Curr. L.--58.

01. Memphis St. R. Co. v. Haynes \["Cen.\] 81 S. W. 374.

01. Iverson v. McDonnell, 36 Wash. 73, 78

P. 202. Elevator insurance. Edwards v. Burke, 36 Wash. 107, 78 P. 610.

99. In an action against a town for tear-libel case. Dowse v. Priddle, 116 Ill. App. 184. Defendant's wealth is not material unless the case is one for exemplary damages.

the appearance of the rest of the structure Western Union Tel. Co. v. Cashman \["C. C. A.\] 132 F. 805.

Hitchins, 99 Md. 617, 59 A. 49.

94. Birmingham R., Light & Power Co. v. Mullen, 138 Ala. 614, 35 So. 701. Ex-citement or provocation not produced by plaintiff cannot avail to mitigate damages for slander. Shockey v. McCauley \["Md.\] 61 A. 658. In an action for libel, facts not known to the defendant when the publica- tion was made cannot be shown in mitigation. Butler v. Barret, 130 F. 944; Post Pub. Co. v. Butler \["C. C. A.\] 137 F. 123. Pro parents,6 and husbands,7 are discussed in the notes. In Michigan, where a person injured by a wrongful act survives for an appreciable time, his cause of action for the injury passes to his personal representative, who can recover such damages as the injured person could have recovered had he survived to prosecute the action.8

of a contract does not go to the extent of measuring the loss,11 but in the absence of proof it is regarded as nominal, and if a further sum is demanded, proof must be given showing that the party claiming it has suffered loss.12 An express contract should itself furnish the basis of estimating damages for its breach.13 Recovery may be had for mental anguish caused by breach of contract.14 Where a party to a contract is sustained by reason of a defective wagon --Actress sung for nondelivery of trunk cannot be recouved in an action for the price of the wagon. Rode v. Arnney, 115 --ill. App. 629. Where the prosecution or defense of suits is rendered necessary, natu-rally and proximately, by a breach of contract or any wrongful act, the costs of that litigation, reasonably and judiciously conducted, incurred or paid, including reasonable counsel fees, are recoverable as part of the damages. Houser's Case, 39 Ct. Cl. 508. Where there is a breach of warranty of soundness of cattle, the loss sustained by the buyers of other cattle because of disease communicated to them by those bought may be recovered. Mitchell V. Pinckney \[Iowa\] 104 N. W. 286. Loss occasioned by the delivery of potatoes which soon rotated and ruined other potatoes is an element within this rule. Northern Supply Co. v. Vangard \[Wis.\] 100 N. W. 1066. Where bridges are built of less weight than the contract calls for, it is not error for the court to add 15% for contractor's profits to the value of material necessary to bring them up to weight. Modern Steel Structural Co. --v. Van Buren County \[Iowa\] 102 N. W. 538. For the breach of a contract that involved the changing of the nature of the machinery in plaintiffs' mill, he may recover the expenses reasonably incurred in making the change. Alderton v. Williams \[Mich.\] 103 N. W. 753. Special circumstances coming to the knowledge of the party after execution of the contract will not create an exception to the rule. Kellogg v. Malick \[Wis.\] 103 N. W. 1116. Notice of the object of the contract will not change the rule unless it breach of warranty of a refrigerator, in conforms the basis of the agreement. Coppolia v. Kraushaar, 102 App. Div. 36, 92 N. X. --g. 436. Counest fees incurred in restating an application for a preliminary injunction --are not recoverable in an action on the bond. Quinn v. Silika \[Colo. App.\] 76 P. 556. In an action on an injunction bond a suit where the injunction is only ancillary or in aid of another proceeding, the damages are only such as how from the injunction itself and do not include attorney's fees in procuring its dissolution. Chicago, etc., R. Co. v. Sullivan, 25 Ky. L. R. 46, 80 S. W. 791. Where an injunction restrained the owner from leasing, transferring or bringing action to recover premises, his expenses in repairing waste done or permitted during the life of the injunction, the rental value of the property, and reasonable attorney's fees are recoverable in an action on the bond. McLennon v. Fenner \[S. D.\] 104 N. W. 218. Undisclosed principal in liquor bond held liable to surety only for expenses of trial at nisl prints, and not for expenses and costs of appeal. City Trust. Safe Deposit & Surely Co. v. American Brewing Co., 88 App. Div. 383, 84 N. X. S. 771.

tract obstructs or forbids its performance by the opposite party to a degree that is equivalent to a refusal of performance, the party interfered with may recover as if for full performance on his part.\[18\]

_Interest as an element:_\[14\]--Interest is recoverable on unliquidated damages if they are ascertainable for computation.\[17\] In actions against carriers, the interest allowed is allowed as damages and not as interest.\[18\]

_Newspaper and advertising contracts.\[19\]--For breach by a hotel keeper of a contract to display plaintiff's advertising scheme, the damages are the amounts plaintiff would have received from advertisers for such advertising.\[20\]_

_Insurance contracts.\[21\]--For breach of a contract of insurance of title collateral to a mortgage, the mortgage can recover only the actual value of the land and not the amount of the mortgage.\[22\] The measure of damages for failure to use a patented construction,\[28\] to give plaintiff the exclusive use of a machine,\[24\] and to renew an agreement for the sale of patented articles,\[25\] is discussed in the notes._

\_(SS 4) B. Contracts for sale or purchase of land.\[26\]--The damages for breach of a land contract are ordinarily the difference between the contract and market price,\[27\] interest, rental value and payments being considered in special cases.\[28\] For

15. Refusal to assign ground for conceas-

01. See 3 C. L. 1006.

01. Degnon-McLean Const. Co. v. City Trust, Safe Deposti & Surety Co., 99 App. Dlv. 195, 90 N. Y. S. 1029. Interest is allowable in an action to recover unliquidated damages for breach of an executor contract of sale where the property has a market value. Reynolds v. Burr, 93 N. Y. S. 319. The measure of damages of a member of a co-operative association, entitled under its by-laws to withdraw stock to be paid by the directors, the par value of the stock is such par value with interest from time payment should be made, where the directors refuse to pay him. Lindsay v. Arlington Co-op. Asset m, 186 Mass., 371, 71 N. E. 197.

01. Damages to shipment of cattle. St. Louis S. W. R. Co. v. Dolan \[Tex. Civ. App.\] 84 S. W. 393. In actions for nondilivery of telegrams, interest is allowed on plaintiff's demand not as interest eo nomine, but with a view to full compensation; the courts having adopted the rate of interest as fixed by law as the measure of damages suffered from the date of the original damage by reason of the loss of the use of the sum to which plaintiff was entitled. Western Union Tel Co. v. Garner \[Tex. Civ. App.\] 83 S. W. 433.

01. See 3 C. L. 1007.

01. Mudge v. Adams \[Tex. Civ. App.\] 83 S. W. 722.

01. See 1 C. L. 840, n. 86, 87.

01. Wusteman v. Merion Title & Trust Co., 25 Pa. Super. Ct. 320.

01. For breach of a contract to use a patented construction, defendant agreeing to use no other, the damages are the royalties plaintiff would have received had his construction been used. Standard Fireproofing Co. v. St. Louis Expanded Metal Fireproofing Co., 177 Mo. 55, 76 S. W. 1008.

01. For breach of a contract for the exclusive use of a patented machine, the meas-

01. For breach of a contract for the exchange of a contract for the exchange of property provides for equalization of the rents, interest, taxes, etc., there is no ground for a judgment for damages for failure to perform. Ragetite v. Zimmer, 98 App. Div. 619, 90 N. Y. S. 221. On rescision by the vendor for default by the purchaser, the purchaser is chargeable with the fair rental value of the land during the period of his posses default of purchaser at sheriff's sale, it is the difference between the bid and the price realized at a resale on equal terms.\[29\]

(SS 4) _C. Breach of covenant as to title.\[80\]_--For breach of covenant of title, recovery may extend to the value of the property lost,\[31\] or the amount paid to discharge the lien,\[32\] and interest,\[33\] costs and expenses in defending it.\[24\]

(SS 4) _D. Contracts to give lease and liabilities as between lessor and lessee.\[35\]_--For failure of a lessor to give possession of demised premises, the damages are the market value of the leasehold interest,\[36\] or the difference between the agreed rental and the rental value;\[37\] and the damages for breach of a covenant respecting the condition of the leased premises is the difference between the value of the use of the premises in the condition as contracted to be, and the rental value in their actual condition.\[38\] For an unauthorized eviction, the tenant can recover the value of the unexpired term less the rent reserved.\[39\] The damages for a breach by the lessee of a covenant to repair are ordinarily the cost of making the repairs,\[40\] though the lessee may recover for a similar breach the rental value of the premises for the purpose for which rented.\[41\]

(SS 4) _E. Contracts for sale or purchase of chatlels.\[42\]_--For breach of a contract of sale of chatlels, the damages ordinarily are the difference between the contract price and the market value,\[43\] and for breach of a warrant of quality, recovery

sion and damages for the breach, and is to be credited with all his payments and improvements. Lyle v. Scottish-American form. Birch v. Wood, 111 71L App. 336. Mortog. Co. \[Ga.\] 50 S. E. 402. Where the damages claimed are continuing and cannot be ascertained at commencement 30. See 3 C. L. 1008.

31. Where warranty of title in a deed was broken as to part of the land, the measure of damages in the absence of fraud was such a proportion of the price as the part to which title failed bore to the entire tract, with interest. Dubay v. Kelly \[Mich.\] 100 N. W. 677. In an action on a covenant against incumbranes, the breach being a recovery of power by the widow of a former owner, a verdict for the amount of the judgment received by the widow, including costs, 18 not excessive. McCrillis v. Thomas \[Mo. App.\] 85 S. W. 673. For breach of the covenant against incumbranes, the vendor may recover not only the tax but the penalty he was obliged to pay. Carswell & Co. v. Habbernetle \[Tex. City. App.\] 87 S. W. 811.

01. The measure of damages for a breach of covenant is the amount necessarily paid in discharging the lien with interest from the date of payment. Lambkin v. Garwood \[Ga.\] 50 S. E. 171.

01. Attorney's fees in defense of the title are not recoverable for breach of warranty. Cates v. Field \[Tex. Civ. App.\] 85 S. W. 52. Where the grantee in a warranty deed is compelled to defend his title, he is entitled to recover the sum of money paid out in such defense, though the circumstances are such that in an action for breach of covenant he is entitled only to nominal damages. Rook v. Rook, 111 71L App. 398. Where plaintiff purchased a building at a public sale by the government under warranty, he may recover attorneys' fees necessarily incurred in defending his title. Honser's Case, 39 C. L. 508.

01. See 3 C. L. 1008.

01. Not how much a person might improvements. Lyle v. Scottish-American form. Birch v. Wood, 111 71L App. 336. Where the damages claimed are continuing and cannot be ascertained at commencement of the action, only such as have accrued can be recovered. Refusal of lessor to allow Jesse to take possession. Alley v. Weingart \[N. J. Law\] 58 A. 87. For breach by the lesser of a contract to lease land, the recovery may include the value of crops that would probably have been raised. Kling v. Griffin \[Tex. Civ. App.\] 87 S. W. 844.

01. Andrews v. Minter \[Ark.\] 88 S. W. 823.

01. Kellogg v. Malick \[Vis.\] 103 N. W. 1116. If the contract be made for a particular use by the lessee, the rental value for that use will be the standard by which the damages will be awarded. Kellogg v. Malick \[Vis.\] 103 N. W. 1116. The fact that special circumstances came to the knowledge of the lesser after the execution of the lease will not take the case out of the general rule. Id. For breach of a covenant to furnish on the leased farm pasture for 100 head of cows, depreciation of cows, expense of feeding them, loss of profits on butter and milk are too remote. Id.

01. Campbell v. Krowerton \[Tex. Civ. App.\] 87 S. W. 370; Goldstein v. Asen, 91 N. Y. S. 783. Humilation and wounded feelings cannot be recovered for. Harris v. Cleghorn, 121 Ga. 314, 48 S. E. 959.

01. Lehmailer v. Jones, 100 App. Div, 495,

31 N
918 DAMAGES SS 4E. 5 Cur. Law. may be had for the difference in market value between the article as it is and as it would have been had it been as represented,\[44\] notwithstanding the market value is greater than the purchase price.\[45\] Where a purchaser has to expend money to make

Super. Ct. 199: Nebraska Bridge Supply & \[ damages where the property has been dellv-Lumber Co. V. Owen Conway & Sons (lowa)\]

ered to the vendee. N. D. Rev. Codes 1899, 108 N. W. 122: Alabama Chemical Co. V. Geiss 4 8988. In such case the vendor may waive \[Ala.1 39 So. 255: Caldwell Furnace Foundry Co. v. Peck-Williams Hearing, etc., Co., the purchase price. Downage Mfg. Co. v. 6 Ohio C. C. (N. D. 629: Lillard V. Kentucky)

Mahan \[N. D.\] 101 N. W. 903. Distinctries & Warehouse Co. \[C. C. A.\] 134

F. 168. For failure to deliver coal under a contract, stipulating that each month's dealings shall be regarded as a separate contract, the measure of the buyer's damage is the excess over the contract price which he was compelled to pay on the last day of each month in the open market for coal to complete the contract. Haft v. Pilling, 134 F. 294. A suriety on the contract of a material-man is liable, in case of default, for the difference between the contract price and the price paid for the maternal in the open market. Bateman Bros. v. Mapel, 145 Cal. 241, 75 P. 734. For failure of a materialman to furnish material to build a house, the owner can recover only the difference between the contract price and the market value, not the loss of rentals from the delay in completing the building. Woolf v. Schaefer, 93 N. Y. S. 184.

Refusal to receive goods: Blair v. Ford China Co., 26 Pa. Super. Ct. 374: Brareal V. Cohn \[Mon1.\] 81 P. 359: Levy v. Royal Packing & Drying Co. \[CaL. App.\] 81 P. 1086: Mayberry V. Lilly Mill Co., 112 Tenno. 564, 8 S. W. 401. For breach of a contract to take nil the timber from certain land at a certain price, the damages are the excess of the contract price over the market value of the timber left on the land. Stillwell V. Paekce-Leicht Lumber Co. \[Ark.\] 84 S. W. 483. Where a contract of sale, executed or execu-tory is broken by the buyer, the general damages, if uniliquidated, are the excess of the contract price over the market value (Hardwick v. American Can Co. \[Tenn.\] 88 S. W. 797\]; but if liquidated by a fair residue on proper notice, the excess of the contract price over the amount realized by the reale, plus interest and expenses, is the measure and is conclusive on both parties (Id.). Seller cannot use for general damages and by reale, after commencement of suit recover damages on basis of resale. Id. Where the property has been inspected and accepted, or deliver-ed on cars as per contract, the damages are the contract price. Field v. Schuster, 26 Pa. Super. Ct. 82. For refusal to purchase stock as per agreement, the defendant is liable, not for the excess of contract price over market value, but for the contract price. Osgod v. Skinner, 111 Ill. App. 606. On reselasion of a contract for the purchase of a stalition on the ground of breach of warranty, plaintiff cannot recover as damages expenses incident to keeping and returning him any greater sum than that claimed in his petition. Berkeley v. Lefebure, 125 Iowa, 76, 93 N. W. 710. A statute prescribing a rule of damages on failure to accept and pay for person-al property, the title to which is not vested in the vendee, is not applicable as a rule of the machine purchased conform to the contract of purchase, he may recover that sum and damages for its failure to work properly.\[46\] Where a purchaser refuses without legal justification to accept an article manufactured on his order, the vendor may retain it for his use and collect the contract price,\[47\] or if the breach occurs before the article is manufactured, he may recover the profit he would have made on it.\[48\]

(SS 4) \_F. Liability of balees, carriers, and telegraph companies.\[49\]--For the loss of goods by a carrier, the shipper may recover their value,\[50\] and for injury\[51\] and delay,\[52\] the depreciation in value at destination,\[53\] less unpaid freight.\[54\] In case no de-

man \[Mo. App.\] 88 S. W. 122; Young v. Van Natta \[Mo. App.\] 88 S. W. 123.

**46.** Masterson v. Heitmann & Co. \[Tex. Civ. App.\] 87 S. W. 227.

**47.** Finkead v. Lynch, 182 F. 692.

**48.** Worrell v. Kinnear Mfg. Co. \[Va.\] 49 S. E. 988. For breach of a contract to purchase dimension granite, the measure of damages is the difference between the contract price and the cost of performance of the contract. United Engineering & Contracting Co. v. Broadnax \[C. C. A.\] 136 F. 351.

**49.** See 3 C. L. 1010.

**50.** American Exp. Co. v. Jennings \[Mis.\] 88 S. W. 361. Evidence of damage and the damages are their value at destination and interest on that value from the time they should have arrived, less the unpaid costs of transportation. Chesapeake & O. R. Co. v. Stock \[Va.\] 51 S. E. 161. Where live stock dies during transportation from the negligence of the carrier, the damages are the market value of the stock had it arrived at destination alive and uninjured. Texas & P. R. Co. v. Snyder \[Tex. Civ. App.\] 86 S. W. 1041.

**51.** For damage to stock the shipper may recover the difference between the market value of the stock as it actually arrived and what its value would have been had it arrived in an undamaged condition. Missouri, etc., R. Co. v. Allen \[Tex. Civ. App.\] 87 S. W. 168; San Antonio & A. P. R. Co. v. Dolan \[Tex. Civ. App.\] 85 S. W. 302. It is immaterial that the stock were intended not for market but for feeding. Missouri, etc., R. Co. v. Kyser & Sutherland \[Tex. Civ. App.\] 87 S. W. 389. The measure of damages for injury to fruit due to improper handling is the difference between its market value in the condition in which it arrived and what it would have been had it arrived in proper condition. When it arrived during the night, the market value on the next day should be used to fix damages. St. Louis, etc., R. Co. v. Henry \[Tex. Civ. App.\] 81 S. W. 334. For injury to an automobile in shipping, the damages are the depreciation in its value by the injury. Paterson v. Chicago. etc., R. Co. \[Minn.\] 103 N. W. 621. Where horses are shipped under a declared value, the liability for injury to them is that pro-portion of the damage that the declared value bears to their actual value. That the horses on sale brought the full declared value and more does not entirely relieve the carrier of liability for injuries to them. United States Exp. Co. v. Joyce \[Ind.\] 72 N. E. 865. Where the shipper receives the whole contract price less a certain sum produced for injuries in transit, that amount the market price at point of shipper in precision is shown, recovery for delay extends only to interest on the value of the shipment during the delay.\[55\] For misdelivery of cattle by carrier, expenses of feeding paid to the person to whom they were delivered may be recovered,\[56\] but not expenses of a trip by consignee to have the mistake rectified.\[57\] Limitation of damages in bill of lading held to contemplate only damage for injury and not damage resulting from misdelivery.\[58\]

For wrongful ejection of a passenger, recovery may include actual reasonable expenses, and other actual compensatory damages,\[59\] as well as punitive damages,\[60\] and mornification and humiliation from public expulsion.\[61\] A warranted ejection gives rise to damages if wrongfully accomplished.\[62\] For being carried against his will to a place not called for by his ticket, a passenger may recover any damages suffered.\[63\] For nondelivery and erroneous delivery of business telegrams, recovery may extend to the natural and proximate consequences.\[64\] Mental anguish may be recovered for failure to deliver social telegrams in some states,\[65\] and if the breach of stead of point of delivery as the measure rudeness are. Boling y. St. Louis, etc., R. Co. v. \[Mo.\] 88 S. W. 35.

Marshall. \[Ark.\] 86 S. W. 802. Where goods are carried to a place other than their destination, the value at such place is not the test. Texas & P. R. Co. v. Tracy \[Tex. Clv. App.\] 85 S. W. 853. For misdelivery of cattle by carrier, decreased weight and decreased market value by the day may be recovered. Southern R. Co. v. Webb \[Ala.\] 39 S. 262.

54. Where suit is brought for delay and injuries to goods by a carrier, and the damages claimed are the difference in value as they should have arrived and did arrive, the amount of freight paid on the shipment is admissible. Missouri, etc., R. Co. v. Jarrell \[Tex. Clv. App.\] 86 S. W. 632.

01. Lee v. St. Louis, etc., R. Co., 136 N. C.

533, 48 S. E. 809.

56, 57, 58. Southern R. Co. v. Webb \[Ala.\] 39 S. 262.

59. A passenger is not entitled to actual damages for delay of a train unless he shows some peculiarary or personal injury. Miller v. Southern R. Co., 68 Ala. 116, 48 S. E. 89.

When a passenger's ticket was taken from him but he suffered no loss on account of delay thereby caused, he was entitled to recover only the price of the ticket. Stewart v. Baltimore & O. R. Co., 88 N. Y. S. 377.

60. Though no unnecessary force is used. Richardson v. Atlantic Coast Line R. Co. \[S. C.\] 51 S. E. 261; Southern Light & Traction Co. v. Compton \[Miss.\] 88 S. E. 89. So if assault accompanies ejection. Electron v. St. Louis Transit Co., 102 Mo. App. 597, 77 S. W. 162.

01. Notwithstanding plaintiff might have avoided it by paying fare. Breen v. St. Louis Transit Co., 108 Mo. App. 443, 85 S. W. 998. One voluntarily leaving a train on finding that it did not stop at his station cannot recover damages for humiliation. St. Louis Southwestern R. Co. v. Knight \[Ark.\] 88 S. W. 1035. Insulting language by a conductor warrants recovery for injured feelings. When he refuses to return change and calls a passenger a dead beat and swallowler and attracts attention of other passengers to her, her recovery is not limited to the change retained. Gillespie v. Brooklyn Heights R. Co., 178 N. Y. 347, 70 N. E. 837.

01. Insulting language and unnecessary 4.5 Cur. Law. DAMAGES SS 4F. 921

duty was willful, punitive damages may be awarded;"6 but recovery cannot extend beyond the natural and proximate results of the breach, either in business or personal matters.67

v. Western Union Tel. Co. \[Ky.\] $5 S. W. 760. 68 S. C. 429, 41 S. E. 521, 57 L. R. A. 607, **NOTE. Dannages for mental angush:** which has subsequently been uniformly followed.

"The following is the present status of the doctrine in the different states, as far as we have been able to ascertain: Its history in the state of Texas, where it was first specifically announced, may be briefly stated as follows: The first case in that court is the celebrated one of So Relve v. Telegraph Co., 45 Tex. 308, 40 Am. Rep. 805. There it was held that there could be a recovery in such cases. The next cases were Railway Co. v. Levy, 59 Tex. 54, 46 Am. Rep. 269, and Id., 59 Tex. 563, 45 Am. Rep. 278. These cases were construed by the profession as in some respects modifying the doctrine in the first case. The question again arose in Stuart v. Western Union Telegraph Co., 66 Tex. 580, 18 S. W. 551, 59 Am. Rep. 628, and the rule announced in So Relve's Case was followed. That case was very thoroughly considered, and the decision then made has settled the law in that state upon the main question. Its reports show some 50 cases since in which the doctrine has been followed without question.

In Tennessee the doctrine was first announced in Wadsworth v. Telegraph Co., 86 Temm. 695, 8 S. W. 574, 6 Am. St. Rep. 864, and has been reaffirmed in Telegraph Co. v. Mellon, 96 Temm. 72, 38 S. W. 726, and Gray v. Telegraph Co., 108 Temm. 89, 64 S. W. 1063, 91 Am. St. Rep. 706, 56 L. R. A. 301.

In Alabama the doctrine was expressly recognized in Telegraph Co. v. Henderson, 89 Ala. 510, 7 So. 419, 18 Am. St. Rep. 148. but seems to have been somewhat modified in the more recent case of Telegraph Co. v. Crumpton, 138 Ala. 632, 36 So. 517, which appears to be the latest decision upon the subject.

In Kentucky the leading case in which such damages are allowed as Chapman v. Telegraph Co., 90 Ky. 265, 13 S. W. 880. The doctrine is affirmed in the later cases of Telegraph Co., v. Van Cleave, 107 Ky. 464, 54 S. W. 827, 92 Am. St. Rep. 366, and Telegraph Co. v. Fisher, 107 Ky. 513, 54 S. W. 830.

In Iowa damages for mental angush unaccompanied by physical pain are allowed. The leading case is Menter v. Telegraph Co., 93 Iowa, 752, 62 N. W. 1, 57 Am. St. Rep. 294, 28 L. R. A. 72, a carefully considered case, which has been widely cited. This case stood as the only expression of that court upon the subject until the recent case of Cowan v. Telegraph Co., 98 N. W. 281, 64 L. R. A. 545.

In Louisiana such damages are allowed. The leading and most recent case is Graham v. Telegraph Co., 34 So. 91.

In South Carolina they are also allowed. At first the doctrine was denied in Lewis v. Telegraph Co., 57 S. C. 325, 35 S. E. 56. This case was followed by an act of the legislature (23 St. at Large, 748; Ci. Code 1902, vol. 1, 8223) permitting damages in such cases. This statute was held to be (SS 4) _G. Contracts for services._\[69\]--For failure to perform services, the measure is generally the expense over the contract price made necessary by the breach; \[69\] and for incomplete performance, \[70\] the measure is generally the expense over the contract price made necessary by the default, while for delay in performance, recovery may extend to damages reasonably within contemplation of the parties. \[71\] Non-performance of certain special services may involve damages not within the general rules. \[72\] Where the contractor fails of entire performance, he can recover only the reasonable value of that which he has performed less the hirer's damages for nonperformance. \[73\] For failure to accept services as agreed, the damages are the difference between the contract price and what it would cost plaintiff to perform, \[74\] or in case

\[S. C.\] 50 S. E. 279; Jones v. Western Union source. Whitehouse, v. Staten Island Water Tel. Co. 70 S. C. 539, 50 S. E. 198; Capers Supply Co., 101 App. Div. 112, 91 N. Y. S. V. Western Union Tel. Co. \[S C.\] 50 S. E. 544. For breach of a contract to supply funds to construct a pipe line, plaintiffs 86 S. V. 342. Expense of railroad trip may recover all expenses incurred subsecuement to see about health of family made \[\] to the execution of the contract and necessary by failure to forward telegrams \[\] before breach, but not those incurred after. \[\] is not recoverable. Hillev v. Western Union T. C. \[Miss.\] 37 So. 556. Where a contractor through his own negales 88. See S. C. L, 1012. \[\] to perform into such a condition that he 1029; Degnon-McLean Const. Co. v. City Trust, Safe Depposit & Surety Co., 99 App. Div. 195, 90 N. Y. S. 1029. For failure to put up cornice the hirer cannot recover the cost of putting it up, but only what it would cost him over the contract price. New York Metal Ceiling Co. v. City Homes Imp. Co., 88 N. Y. S. 233. The difference between the price to be paid by the owner to a contractor and that to be paid by him to a subcontractor, upon a contract wholly ex-eutory, is not an available measure of damages in an action on such executory contract. Levenson v. Bollowa, 85 N. Y. S. 386. Where 70. Where plaintiff has substantially performed and the contract provided for payment before beginning work, defend-ant's damages for defects in performance are the detriment suffered by him. Carpenter v. Ibbetson \[Cal. App.\] 81 P. 1114. \[\]. For delay in the completion of bridges to be used on extensions of plaintiff's railway system, which extensions could have been but were not completed at the appointed time because of the noncompletion of the bridges. plaintiff can recover interest on the amount expended in building the extensions from the time stipulated or the time thereafter when expenditures were made until the time of completion. American Bridge Co. V. Camden Interstate R. Co. \[C. C.\] 135 F. 323. For delay in obtaining right of way over which plaintiff agreed to construct a canal, plaintiff can recover the market rental value of equipment during the time it was necessarily idle. Sanitary Dist. of Chicago v. McMahon & Montgomery Co., 110 Ill. App. 510. \[\].

\[S. C.\] 50 S. E. 279; Jones v. Western Union source. Whitehouse, v. Staten Island Water Tel. Co. 70 S. C. 539, 50 S. E. 198; Capers Supply Co., 101 App. Div. 112, 91 N. Y. S. V. Western Union Tel. Co. \[S C.\] 50 S. E. 544. For breach of a contract to supply funds to construct a pipe line, plaintiffs 86 S. V. 342. Expense of railroad trip may recover all expenses incurred subsecuement to see about health of family made \[\] to the execution of the contract and necessary by failure to forward telegrams \[\] before breach, but not those incurred after. \[\] is not recoverable. Hillev v. Western Union T. C. \[Miss.\] 37 So. 556. Where a contractor through his own negales 88. See S. C. L, 1012. \[\] to perform into such a condition that he is unable to complete it, and thereupon aban-dons it, he is liable for the loss resulting to the contracting party, including the amount reasonably expended in minimizing the loss. Hammond Oil & Development Co. v. Feitel \[La.\] 38 So. 941. For failure of an agent to purchase chattels at a fore-closure sale unless more than a certain sum is blid, the measure of damages is the difference between the fair cash market value and the amount for which they sold. Dasey v. Roleau, 111 Ill. App. 367. Where a dry does his work so badly that the material is rendered valueless to the owner, he cannot recover the full value unless he also shows that it is absolutely valueless. Emmerich v. Chegnay, 92 N. Y. S. 336. \[\].

73 Wcodford v. Kelley \[S. D.\] 101 N. wt. 1069. \[\].

74 Withers v. New York, 92 App. Div. 147, 86 N. Y. S. 1105: Wood v. Wack, 31 Ind. App. 262, 67 N. L. 562. That from plaintiff's situation the cost-to him would be unusually small of personal services the excess of the contract price over what plaintiff was able to earn elsewhere during the period.\[75\] For breach of a contract to employ plaintiff to collect certain claims, plaintiff can recover the agreed compensation without proof of services performed or of their reasonable value.\[76\]

(SS 4) H. Promise of marriage.\[77\]

SS 5. Measure and elements of damages for torts. A. Miscellaneous torts.\[78\]--Under allegation and proof of a willful tort, actual as well as punitive damages are recoverable, and actual damages may be recovered on proper proof, though there is no proof of willfulness.\[79\] Interest is recoverable in a proper case.\[80\] No recovery can be had for mere mental suffering unaccompanied by any physical injury,\[81\] or other actual damage;\[82\] but right may be considered an element of damage when accompanied by a severe physical shock.\[83\]

_Injuries to animals.\[84\]--For injury to horses, the damages are their reasonable hire during incapacity to work, permanent depreciation in value, and cost of treatment, not exceeding in all their reasonable value before injury.\[85\]_

_Alienation of affections.\[80\]_

''' tract. Id. The fact that by means of such improvements the contractor also does work for others is immaterial. Id. Where defendant agreed to pay a contractor a certain amount for painting his house and also to retain from the contract price the price of materials furnished by plaintiff and the contractor defailted, plaintiff was entitled to complete the job, and on defendants' refusal was entitled to recover the amount due for materials not exceeding the balance cost due the contractor, less the reasonable cost of completion. Bates v. Birmingham Paint & Glass Co. \[Ala.\] 38 So. 845. '''

**75**. Jones v. Oppenheim, 91 N. Y. S. 343; Busell Trimmer Co. v. Coburn \[Mass.\] 74 N. E. 334. '''

**76**. Carlisle v. Barnes, 102 App. Div. 573, 92 N. Y. S. 917. '''

**77**. See 3 C. L. 1013. Damages for death by wrongful act, see Death by Wrongful Act, post, p. 945. '''

**79**. Duke v. Postal Tel. Cable Co. \[S. C.\] 50 S. E. 675. '''

**80**. Interest is not recoverable on damages in actions ex delicto where no pecuniary benefit can accure by reason of the injury. Gerst v. St. Louis, 185 Mo. 191, 84 S. W. 94. In estimating the damages for injury to an oil well by negligent shooting, the jury may properly take into consideration the facts that the well was run as one of a system of small wells and also that the ordinary and usual result of shooting was to improve them. Donnan V. Pennsylvania Tordedo Co., 26 Pa. Super. Ct. 324. In an action of tort for unliquidated damages, the question of awarding interest is in the discretion of the jury (Nichols v. Coleman, 96 App. Div. 353, 89 N. Y. S. 234; Feller v. McKillip \[Mo. App.\] 81 S. W. 841), unless by stipulation it is left to the court (Nichols v. Coleman, 96 App. Div. 353, 89 N. Y. S. 824). Under Rev. St. 189, 8286, providing that on a trial for damages the jury may award interest, such an allowance '''

**81**. Cole v. Gray \[Kan.\] 79 P. 664; Newston v. New York, etc., R. Co., 94 N. Y. S. 825; Pullman Co., v. Kelly \[Alts.\] 88 So. 317. No recovery can be had for fright alone unaccompanied by any physical injury. Night to complete the job, and on defendants' refurors to child caused by burning of sister in his sight. Fleming v. Lobel \[N. J. Law\] 59 A. 28. May be included in assault and battery. Happy v. Prichard \[Mo. App.\] 85 S. W. 655. '''

**82**. The sense of outrage and mental suffering resulting directly from the willful ventilation by defendant of the body of plaintiff's deceased parent are proper independent elements of compensatory damages. Koerber v. Patek \[Vis.\] 102 N. W. 40, reviewing many cases involving injury to feelings. Mental anstush may be recovered for in some states when caused by nondelivery of a telegram. Willis v. Western Union Tel. Co. \[S. C.\] 48 S. E. 538; Western Union Tel. Co. v. Porterfield \[Tex. Civ. App.\] 84 S. W. 856; Thomas v. Western Union Tel. Co. \[Ky.\] 85 S. W. 760; Hancock v. Western Union Tel. Co., 137 N. C. 497, 49 A. E. 952. Plaintiff driven from train at point of pistol by intoxicated passengers and compelled to walk home held not precluded from recovery on ground that his damages consisted of mental angusish only. International & G. N. R. Co. v. Henderson \[Tex. Civ. App.\] 82 S. W. 1065. '''

**83**. Donbank v. Interborough Rapid Transit Co., 102 App. Div. 375, 92 N. Y. S. 386. 84. See 3 C. L. 1013. '''

**85**. Instruction held erroneous for failure to limit recovery to value before injury. Georgia R.

False imprisonment."57--Substantial damages are recoverable for false imprisonment."58

Malicious prosecution."59--For wrongful attachment, both actual and exemplary damages are recoverable,"90 and where property was seized under a writ of replenw wrongfully and maliciously sued out for the purpose of extorting money, damages for injuries to the feelings of the owner are recoverable,"91 but plaintiff cannot recover for the expense of storing the goods after they were returned to him by virtue of the judgment in the replevin suit."52 Attorney's fees and the expense of attending court in the suit maliciously brought are recoverable."53

Infringements of patents and trade-marks and unfair competition."54

Interference with water rights."58

Expulsion from association."59

Fraud and deceit.--The true measure of damages suffered by one who has been fraudulently induced to purchase or exchange property in some jurisdictions is the difference in actual value between what he gives and what he receives;"97 in others it is the difference in value between the property received and what it would have been had it been as represented."58 The measure of damages for fraud and deceit is unaffected by the relation of principal and agent between the parties."59

(SS 5) B. Loss of, or injuries to, property.'--For permanent injury to land, the measure of damages is the difference between the fair cash market value immediately before and immediately after the injury,"5 or the expense of remedying the injury,"5

58. Direction of verdict for nominal damage."59

sets where plaintiff was arrested by railroad conductor held error. Tidey v. Erie R. Co. \[N. J. Err. & App.\] 80 A. 954.

89. See 3 C. L. 1014.

01. Pittsburg, etc., R. Co. v. Wakefield Hardware Co., 138 N. C. 174, 50 S. E. 571.

91, 92. Harris v. Thomas \[Mich.\] 12 Det. Leg. 1329, 103 N. W. 863.

93. Karr v. Ward \[Ark.\] 84 S. W. 496.

94, 95, 96. See 3 C. L. 1014.

97. Where a corporation exchanges its stock for defendants' property, a mine, and it has no assets except the mine, there is no damage to the corporation if the mine is not as represented. Straton's Independence v. Dines \[C. C. A.\] 135 F. 449.

01. Beare v. Wright \[N. D.\] 103 N. W. 6321. Pritchard v. McCrary \[Ga.\] 50 S. E. 366.

01. Miller v. John, 111 III. App. 56.

01. See 3 C. L. 1014.

01. Railroad embankment, and operation of road. Davenport, etc., R. Co. v. Sinnet, 111 III. App. 75. Where land is overflowed.

111 III. App. 75. Where land is overflowed.

Sanitary District of Chicago V. Pearce, 110

111. App. 592; Osborn v. Milississippi & Rum

River Boom Co. \[Minn.\] 103 N. W. 879. Polishing waters of stream. Watson v. Colusa-Parrot Mining & Smeiting Co. \[Month.\] 179

P. 14. Change of grade. Whitehead v. Manor Borough, 23 Pa. Super, Ct. 314. Operation of foundry and Iron works. Farver v. American Car & Foundry Co., 24 Pa. Super. Ct. 579. Neggilent fire burning over meadow and timber lot. Toledo, etc., R. Co. v. Fenstermaker, 163 Ind. 534, 72 N. E. 561. Pollution of stream, killing fish, etc., West Muncte Strawboard Co., Slabex \[Int.\] 72 N. E. 879. Deposit of barren earth on land causing permanent injury. Baltimore, 5 Cur. Law. DAMAGES $ 5C. 925

and for nonpermanent injuries resulting in the loss of crops or use of land, the damages are the value of the crops,4 or of the use5 respectively.6 Where the building of a railroad embankment changes the course of a stream and overflows plaintiff's land and compels him to build new roads and bridges, the cost of such improvements may be recovered.7 For negligent destruction of a vessel, the damages are the value of the vessel at the time it was destroyed, with interest to the time of the trial. Prospective profits on its earnings cannot be considered.8 For injuries to personal property, the measure of damages is the difference in value before or at the time of injury and after.9

(SS 5) \_C. Maintaining nuisance.\_10--For a continuing nuisance as distinguish- ed from a permanent injury, the measure of damages is the depreciation in rental value:11 but if the injury be permanent the damages are the depreciation in the value of the property.12 Where a nuisance is temporary in character, recovery cannot be an adjoining owner so close as to injure it.1 5. Atchison, etc., R. Co. v. Jones, 110 Gerst v. St. Louis, 185 Mo. 191, SS4 S. W. 34. 111. App. 626; Sanitary Dist. of Chicago v. S. Davelaar v. Milwaukee \[WiS.\] 101 N. Alderman, 113 Ill. App. 23. The diminution W. 361. If defendant desires an instruc- In rental value. Baltimore & O. B. W. R. 60. V. Quillen, 24 Ind. App. 330, 72 N. E. 661. For injury to property by the over- Boom Co. \[Minn.\] 103 N. W. 879. Damages may be limited to the cost of remedying depreciation in rental value. Ahrens v. the injury unless that would be more than the value of the land, in which case the value of the land becomes the measure of damages. "Welliver v. Pennsylvania. Canal Co., 23 Pa. Super. Ct. 79; Herron v. Jones & Laughlin Co., 23 Pa. Super. Ct. 226. Depreciation of flow of water to mill. cost of restoring land to its former condition is the measure of damages when such cost is less than the diminution in value, if such cost would exceed the diminution, then the latter is the correct measure. Enid & A. R. Co. v. Wiley, 14 Old. 210, 78 P. 96; City of Covington v. Berry \[Ky.\] 87 S. W. 317. For injuring a gas well by negligent shooting. the damages are either the cost of repair, the value of the well, or the expense of drilling a new one, whenever would be the least expensive. Donnan v. Pennsylvania Torepedo Co., 26 Pa. Super. Ct. 324. Where defendant claims that a body of water it has obstructed is not navigable or a public highway, plaintiff's damages are not limited to the cost of removing the obstruction and the increased expense of his business made necessary by the delay for such time as was necessary for the removal, but he may recover for all the cost made necessary by the delay during the whole period of actual obstruction. Creech V. Humphulips, etc., Co., 37 Wash. 172. 79 F. 63. 4 Rule for estimating value of crop, annual and perennial. Candier v. Vyshoke Lake Reservoir & G. C. Ditch Co. \[Nev.\] 86 P. 751. The measure of damages in the case of destruction of growing crops is their value at the time of such destruction; the value being estimated upon what was reason-ably probable as to their maturity and their value at that time. City of Chicago v. Dick aze the minimum of rental value. The diminution of rental value is low land with salt water, the crop being per- ennal, defendant is liable only for the crop destroyed, not for four successive crops. 88 App. 122. Deisen, etc., R. Co. v. Barry \[Tex.\] had for injuries sustained after suit begun,\[18\] and where a life tenant sues for injury resulting from the maintenance of a continuing nuisance, the damages, notwithstanding defendant's election to have the tort treated as a permanent one, cannot include the permanent injury to the property, but can only be assessed to the time of the trial.\[14\]

(SS 5) \_D. Trespass on lands.\[15\]--\_For cutting timber, in the absence of special injury to the land, the measure of damages is the value of the trees for timber or fuel.\[16\] For wrongfully and without consent using plaintiff's roof to string telephone wires on, he can recover the reasonable rental value of the roof for that purpose.\[17\]

(SS 5) \_E. Conversion.\[18\]--\_The measure of damages in an action of trover is the market value of the property at the time and place of the conversion, with interest to the day of trial.\[19\] For conversion of household goods the damages are not restricted to the price which could be obtained by a sale in market, but the owner

83 S. W. 5. Instructions erroneous. Balti- of a buyer makes an unauthorized sale of more, etc., R. Co. v. Quillen \[Ind. App.\] 72 them, he is liable for the excess, if any. N. E. $61. Instructions approved. West over the price realized of the lowest sum Muncie Strawboard Co. v. Slack \[Ind.\] 72 for which the client could have purchased N. E. $79. Where count asking for damages for permanent injuries was dismissed, held given an order to that effect with reason-error to give instruction authorizing recovery for such injuries. Measure of damages. Long v. Kansas City, 107 Mo. App. 533, 81 S. W. 909. The deposit of barren earth on plaintiff's land by flooding it with water from defendant's ditches is permanent. Id.

13. Fairbank Co. v. Bahne, 213 Ill. $36. $73 N. E. 322; Nembmeister v. Goddard \[Wis.\] 103 N. W. 241. Recovery should be for all damages up to time of bringing suit. Ahrens v. Rochester, 97 App. Div. 480, 90 N. Y. $744.

01. Hartman v. Pittsburg Inclined Plane Co., 23 Pa. Super. Ct. 360.

01. See 3 C. L. 1016.

01. If of value as a summer home, injury as to shade trees is recoverable. Eldridge v. Gorman, 77 Conn. 690, 60 A. 643: Ferguson v. Buckell, 101 Ap. Div. 213, 91 N. Y. S. 724.

01. Bunke v. New York Tel Co., 84 City. Proc. R. 170, 91 N. Y. S. 350.

01. See 3 C. L. 1017.

01. Morley v. Roach, 116 Ill. App. 534; Meloon v. Read \[N. H.\] 59 A. 946; American Soda Fountain Co. v. Futrail \[Ark.\] 84 S. W. 505; Lorain Steel Co. v. Norfolk & B. St. R. Co. \[Mass.\] 73 N. E. 646. Stock. Hagar v. Norton \[Mass.\] 73 N. E. 647. Where a chatted in possession of a mortgage is wrongfully taken in attachment by a creditor of the mortgage may recover the value of the chatted at the time of the taking. Aldrich v. Higgins. 77 Conn. $70, 59 A. 498. For an invalid attempt at foreclosure of a chatted mortgage on 'live stock amounting to a conversion, defendant is liable for its value at the time of seizure unreduced by expenses of keeping between seizure and sale, or the value of stock dying in the interim. Kellogg v. Malick \[Wis.\] 103 N. W. 116. A defendant selling securities belonging to his wire is liable for the currency price in the state where sold at the time of sale. Gittings v. Winter \[Md.\] 60 A. 630. Where a broker who has purchased and is holding stocks at the option should recover their actual value to him not including sentimental or fanciful value.20 For the conversion of railroad bonds which have no market value, the measure is their proportionate part of the intrinsic value of the property on which they were a first alien.21 The measure of a mortgagee's damages for the conversion of the mortgaged property by a stranger is the amount of his debt if that is less than the value of the property.22

(SS 5) \_F. Wrongful taking or detention of property.23--\_For wrongful seizure of property on execution,24 or wrongful attachment, defendant may recover all accruing damages,25 including the value of property unreturned.26 For detention of property, interest on its value and damages for depreciation are ordinarily the measure, but where the use of the property is valuable, the value of the use with deterioration may be the measure.27

(SS 5) \_G. Libel or slander.28--\_Punitive as well as compensatory damages,29 including mental suffering,30 are recoverable for malicious libel or slander.

(SS 5) \_H. Personal Injuries.31--\_For an assault one may recover for injuries to his person, his medical bill, his loss of time, and mental suffering, and, if the as-

20. Barker v. Lewis Storage & Transfer of detention should be deducted. Ocala Co. \[Conn.\] 61 A. 383. Recovery is not confined to what clothing and household goods 38 Sc. 51; Muller v. Ocala Foundry & Mach. would sell for as second-hand goods, but plaintiff may recover their actual value to him. Head v. Becklenberg, 116 Ill. App. 576.

01. Industrial & General Trust v. Tod, 180 N. Y. 215, 73 N. E. 7.

01. Scaling v. First Nat. Bank \[Tex. Civ. App.\] 87 S. W. 715.

01. See 3 C. L. 1018. Compensation in eminent domain proceedings, see Eminent Domain, 3 C. L. 1189.

01. One unlawfully conducting a saloon without a license cannot recover for the wrongful very of an execution thereon the wages paid his bartender and porter, but may recover the value of beer spoiled during the time the place was whinheld from him and also the use of his house in which the business was conducted. Young v. Stevenson \[Ark.\] 86 S. W. 1000.

01. Perishable goods lost. W. F. Van diver & Co. v. Waller \[Ala.\] 39 S. 136. Where an attachment is wrongfully sued out, time spent by defendant in employing and advising with counsel for the defense of the suit, time and money spent in proving a delivery bond, and the value of the necessary use of defendant's team in making trips to consult counsel are proper elements of damage. Tullis v. McClary \[Iowa\] 104 N. W. 505.

01. For wrongful seizure of property on execution, a mortgagee may recover the value of the property up to the amount of his debt with interest. Gallick v. Bordeaux \[Mont.\] 78 P. 583. For wrongful attachment of a stock of goods, the damages are their actual value at the time and place of seizure. Rule where stock includes old and shelf worn goods (State v. Parsons \[Mo. App.\] 84 S. W. 1019), and the expense of dissolving the attachment, but not the expense of trying the main case thereafter (Id.).

01. If use would wear it out, as a machine, and it was not used, the deterioration naturally arising from use during the period sault was malicious, exemplary damages.\[32\] The damages for negligent personal injury must be compensatory,\[33\] excluding exemplary or punitive damages,\[34\] and including remuneration for necessary expenditures,\[35\] loss of time,\[36\] mental and physical pain and suffering,\[37\] and the effects of permanent disability, such as loss of earning.

01. Happy v. Prichard \[Mo. App.\] 85 S. \[wages, that she gave up that occupation V. 655. Damages can never be mitigated below adequate compensation. Le Laurin v. \[kr.\] 87 S. W. 181.

01. Peterson v. Roessler & H. Chemical Co., 181 F. 156; Porter v. Delaware, etc., R. \[dr.\] 24 Pa. Super, Ct. 7. Damages for an Injury Co., 134 F. 156; Jones v. New York, etc., R. \[dr.\] 99 App. Div. 1, 90 N. Y. S. 42; Waeechter v. St. Louis & M. R. Co. \[Mo. App.\] 88 S. W. 147. Instruction detailing elements of dam's approved. Northern Commercial Co. v. Nestor \[C. C. A.\] 138 F. 383; Clark v. Durham Traction Co. \[N. C\] 50 S. E. 518; Western & A. R. Co. V. Burnham \[Ga.\] 50 S. E. 884. A woman may recover for necessary postpement of her marriage. Remey v. Detroit United R. Co. \[Mich.\] 12 Det. Leg. N. 368, 104 N. W. 420. A disease caused by an accident may be recovered for, though not noticed until some time after the injury. Wood v. New York, etc., R. Co. 83 App. Div. 604, 82 N. Y. S. 160.

01. Denver & R. G. R. Co. v. Scott \[Colo.\] 81 P. 768.

01. Northern Commercial Co. v. Nestor \[C. C. A.\] 138 F. 385; Jones v. New York, etc., R. Co., 99 App. Div. 1, 90 N. Y. S. 422. That expenses have not been paid does not preclude recovery. Nelson v. Metropolitan St. R. Co. \[Mo. App.\] 88 S. W. 781; Indian-apolis St. R. Co. v. Haversick \[Int. App.\] 74 N. E. 34; Vibhuv V. Southwest Missouri Elec. R. Co., 110 Mo. App. 889, 85 S. W. 671. Physician's charges should not be included in damages for personal injuries, defendant having paid the same. Bowe v. Bowe, 5 Ohio C. C. (N. S.) 233, 26 Ohio C. C. 408. Where an injury _webbed plaintiffs_ finger, the cost of a surgical operation to separate them may be considered. Busch v. Robin-son \[Or.\] 81 P. 237. Recovery for expenses made necessary by a personal injury cannot be had unless they are shown to be reasonable. Dallas Consol. Elec. St. R. Co. v. Ison \[Tex. Civ. App.\] 83 S. W. 408. Evidence of the value of treatment furnished by a physician is not sufficient to authorize recovery of the value of medicine. Knight v. Kansas City \[Mo. App.\] 87 S. W. 1192. The recovery extends to reasonable value of physician's services unless the charge made is less than the reasonable value, in which case it cannot exceed the charge made. Nelson v. Metropolitan St. R. Co. \[Mo. App.\] 88 S. W. 781. An injured person may recover the reasonable value of nursing given him by a widowed daughter who lived with him, though there was no ex-press contract between them that she should be compensated. Kaiser v. St. Louis Transit Co., 108 Mo. App. 708, 84 S. W. 199. Recovery by minor, see ante, & S.

01. Northern Commercial Co. v. Nestor \[C. C. A.\] 138 F. 388. Loss of earning power may be considered where plaintiff shows she has been employed as a nurse at certain 5 Cur. Law. DAMAGES $ 6. 929

ing power, \[38\] permanent impairment of mental and physical powers, \[39\] and future pain and suffering, \[40\] which the evidence shows are reasonably certain to result from the injury \[41\]; but possible or even probable future effects are too remote and speculative to form any basis of legal injury. \[42\]

SS 6. _Inadequate and excessive damages._\[43\]--Verdicts showing willful disregard of the testimony will not be permitted to stand, whether excessive \[44\] or inadequate.

**38. Northern Commercial Co. v. Nestor**

\[C. C. A.\] 138 F. 383; Jones v. New York,

\[C.\] 138 N. Y. S. 422; 138 N. Y. S. 423; 138 N. Y. S. 424; 138 N. Y. S. 425; 138 N. Y. S. 426; 138 N. Y. S. 427; 138 N. Y. S. 428; 138 N.

930 DAMAGES SS 6. 5 Cur. Law.

quate;\*\* but the court will not interfere unless the amount is so out of proportion to the injury as to indicate passion or prejudice on the part of the jury, and cannot be accounted for in any other manner.**\[46\] Unless grossly excessive, an excessive verdict may be cured by a remititur.**\[47\] Where plaintiff submits to the verdict, defend-

Finlay Brewing Co. v. People, 111 Ill. App. 200; Shaw v. Seattle \[Wash.\] 81 P. 1057.

Sonal injuries based on conflicting expert TFififim's excess will not cause reversal.

Reesch V. Young, 111 Ill. App. 34. Whether a verdict should be set aside because of excessiveness of damages is a question of fact.

Meloon v. Read \[N. H.\] 59 A. 946. In the Fedcral appellate courts, where no error of law appears, the verdict is conclusive on the amount of damages. Southern Pac. Co. v. Maloney \[C. C. A.\] 136 F. 171. An assessment in a personal injury case approved by the trial court and affirmed by the appellate court is conclusive on the appreme court in Illinois. Hansell-Elcock Foundry Co. v. Clark, 211 Ill. 399, 73 N. E. 187. No reversal for excessiveness in South Carolina. Duke v. Postal Tel. Cable Co. (8. C.) 50 B. E. 675.

45. See S. C. L. 1020, In. 75. Fischer v. St. Louis \[Mo.\] 88 S, W. 82; Lovenhart v. Lindell R. Co. \[Mo.\] 88 S, W. 757. That the court would have awarded a larger sum is not sufficient to set the verdict aside. Hell-

yer v. Trenton City Bridge Co., 133 F. 843.

Under a 'statute providing against awarding new trials for inadequacy of damages in personal injury cases, a verdict for nominal damages should not be set aside, though the court thinks it inadequate. Neb. Ann. Code

1901, SS 315. Langdon v. Clarke \[Neb.\] 103 N. W. 62. Where there is a verdict for 11.00 in an action by a rather for the death of a son of 17, a new trial is rightly granted on the ground of the inadequacy of the damages. Rawitzer v. St. Paul City R. Co.

\[Minn.\] 103 N. W. 499.

46. Jones v. New York, etc., R. Co., 99 App. Div. 1, 90 N. Y. S. 492; Norfolk R. & Light Co. v. Sprarley, 103 Va. 379, 49 S. E. 502; Normile v. Wheeling Tract Co. \[V. Va.\]

49 S. B. 1030: Deland v. Cameron \[Mo. App.\]

87 N. W. 597; Wacchter v. St. Louis & M. R. Co. \[Mo. App.\] 88 S. W. 147; United States

Brewing co v. Stoltenberg, 113 Ill. App. 435; Kozlowski v. Chicago, 113 Ill. App. 513; Houston & T. C. R. Co. v. Batchler

\[Tex. Civ. Appl. 83 S. W. 902, Musi shock the sense of right or justice. Village of Wilmette v. Brachelle, 110 Ill. App. 356; Quigley v. Pennsylvania R. Co., 210 Pa. 162, 59

A. 958. That the amount is larger than the appellate court would have awarded is not suffClient to set it aside. N. K. Fairbank

Co. v. Bahro, 112 Ill. App. 290. A verdict is not excessive merely because its amount invested at five per cent would produce a larger annual income than plaintiff was able to earn prior to his injury. Indiana, etc., R. Co. v. Otstot, 113 Ill. App. 37.

Merely that the verdict is for the highest amount assessable under the evidence does not make it excessive. Jennings v. Ingram, 111 Ill. App. 261. That remittum from $5,000 to $3,000 was ordered below is not conclusive of passion and prejudice. American Contract-

ing Co. v. Bannon, 6 Ohio C. C. (N. S.) 121, 27 Ohio C. C. 337. Neither is $5,000 reduced to $2,500. Wright v. Fleischmann, 99 App.

ant cannot be heard to insist that it should be set aside for inadequacy.48 Under a conflict of evidence as to the extent of personal injuries, an allowance of damages fairly within the limits of plaintiff's evidence is conclusive on appeal,40 and under the constitution of Utah the amount of damages recoverable is a question of fact.50 Holdings on the excessiveness and inadequacy of recovery are collected and classified in the footnote.51

Footnote
DAMAGES SS 7A. 5 Cur. Law.

**SS 7.**\_Pleading, evidence and procedure. A. Pleading.${}^{\\text{\\text{\\textregistered}}}$\_All damages that necessarily flow from the injury complained of may be recovered without special

Personal injuries: SS2,000 for injury to engineer for permanent injuries, incapatta-head, wound in thigh, aneurysm of hip, and ting for occupation, including fracture of ear torn off. Pittsburg, etc., R. Co. v. Smith, leg, loss of teeth, one arm disabled, and 110 III. App. 154. SS8,500 for injury resulting permanent loss of speech. Southern R. Co. in paralysis of left side of housewise. Vil- v. Sittasen \[Ind. App.\] 174 N. E. 898.

lage of Wilmette v. Breache, 110 II. App. 171. App. 385. SS3,000 to woman for injuries causing vated railroad for injury to head resulting confinement to bed for nine months and re-ulting in bad herniaand incapacity to work.

loss of power to work or study. South Side City of Chicago v. Harris, 113. III. App. 633.

El. R. Co. de Cosmopolitan Elec. Co. v. Nes-

#1,756 to coal miner entering #2.00 per day for rjort. 111. App. 355. 3800 for rjort through permanent and serious injury incapat

5 Cur. Law. ${}\_{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{ \\text{\\text{\\text{\\text{\\ result, must be specially averred.54 General averments of personal injury are suf-

spinal cord resulting in nervous disorders. $7,500. Struble v. Burlington, etc., R. Co. Missouri, etc., R. Co. v. Hay \[Tex. Civ. App.\] \[Iowa\] 108 N. W. 142. $5,000 for mere bro-

$6 $ S. W. 954. $2,000 to able-bodied man of

$2 earning $1,000 to $1,500 yearly for brushed

side, back and leg, impairing earning power

one-half. R. Louis S. W. R. Co., v. Harkey

1Tex. Civ. App.\] $8 S, W. 506. $8,000 for serious brushes and injuries necessitating

appulation of toes. Rapp v. St. Louis Trans-

it Co. \[Mo.\] $8 S. W. 856.

\*\*Recoveries held excessive. Breach of con-

**tract** $249.50 for carrying passenger by

station, merely causing delay of few hours

and loss of dinner. Central of Georgia.

R. Co. v. Wood, 118 Ga. 172, 44 S. E. 1001.

$400 - for wrongful ejection of passenger

reduced to $200, no force or special expense

above $2 being shown. Gulf, etc., R. Co. v. Russell \[Tex. Civ. App.\] $5 S. W. 299.

**Torus in general** $1,000 for conversion

reduced to $58.00 on vague evidence of value

of property. Lawrence v. Wilson, 95 N. Y. S. 147. $3,000 for excessive levy. Mills

v. Larrance, 111 All. App. 140. $100 against

carrier for assault by conductor. Chicago

& E. I. R. Co. v. Stratton, 111 Ill. App. 142.

$8,000 against foreign corporation for doing business in state without obtaining permit.

\*\*Finaly Brewing Co. v. People, 111 Ill. App. 200. $1,916 for injury to feelings by un-

founded charge of insanity. Wait v. Robertson Mortg. Co. \[Wash.\] $7 P. 926.

**Personal injuries** $3,500 to girl nearly

recovered within a year and not entitled

to exemplary damages, nurses" or physicians' charges, nor damages for loss of time. Reduced to $1,750. Porter v. Dela-

ware, etc. R. Co., 134 F. 155. $9,000 for

shrinking up of the flesh of one leg and

insomnia. Watson v. Brightwell \[Ky.\] $2 S. W. 454. $2,400 to man of 42 for injury re-

sulting in diabetes and paralysis of both

legs. Reynolds v. St. Louis Transit Co.

\[Mo.\] $8 S. W. 50.

**Figures to head**: $10,000 to child of 3%

for scalping reduced to $7,000. City of South

Omaha v. Sullifree \[Neb.\] 101 N. W. $17.

$49,850 to locomotive fireman for injuries to

head and supine. Denver & R. G. R. Co. v. Scott \[Colo.\] $1 P. 783.

**Sight and heritage**: $9,500.00 reduced to

$8,000.00 (loss of sight of laborer earning

$1.50 per day. $6,000.00 for pecunary loss

and $2,000.00 for suffering). Peterson v.

\*\*Rossler & Hasselbacher Chemical Co., 131 F.

156, $10,000 for injury to head by blast

slightly impairing hearing and vision, but

not materially diminishing earning power,

reduced to $3,000. Smith v. Day, 136 F. 964.

**Fructures. dislocations, and injuries to and**

**less of limbs**: $3,000 for fracture of fluids

and lameness not permanent. West Chicago

St. R. Co. v. Dean, 112 Ill. App. 10. $20,000

to locomotive fireman of 38 earning $85 per

mo. for loss of leg and other injuries scaled

to $10,000. Ricker v. Central R. Co. of New

Jersey \[N. J. Law\] 61 A. 89. $9,500 to man

of 45 doing office work for fracture of leg,

leaving slight permanent defect. Reduced to

$5,000 maximum, $2,500 minimum. Rueping

v. Chicago & N. W. R. Co. \[This\] 101 N. W. 710.

$12,000 to brackeman of 27 earning $60 to $75

per mo. for loss of left arm. Reduced to

**S** 7,500. Struble v. Burlington, etc., R. Co.

\[Iowa\] 108 N. W. 142. $5,000 for mere bro-

ken leg without more. Ross v. Metropolitan-

tan St. R ficient in the absence of exception,55 and under an averment of a particular injury, all natural effects of that injury may be shown.56 Thus if an injury from its de-

\[Mo. App.\] 86 S. W. 574. $1.00 for broken \[Mo. App.\] 86 S. W. 465. Mental suff-

\[Mo.\] 88 S. W. 82. Refing and time lost from injuries not of

$1 for being struck on head by street ear

such character that such damages necessarily flow. Lodwick Lumber Co. v. Taylor

setting aside. Lovenhardt v. Lindell R. Co. (Tex. Civ. App.) 87 S. W. 358. In action of

\[Mo.\] 88 S. W. 757. $2. See $ C. L. 1022.

$3. City of South Omaha v. Sutilffe \[Neb.\]

101 N. W. 997. In an action on the case

against a bank for wrongful refusal to pay

breach. Graham v. Macon, D. & S. R. Co.

a check, it is competent for plaintt to show

\[Ga.\] 49 S. E. 75.

conversations by him with representatives

$5. Averments as to injury and its perma-

of business houses with which he had been

none and impairment of earning power held

doing business and from which he sought to

obmovious to special exception as being too

obtain credit after disshonor of the check,

general. Dallas Consol. Elec. St. R. Co.

though the declaration did not aver special

V. Hardy \[Tex. Civ. App.\] 86 S. W. 1053. An

damages. Metropolitan Supply Co. v. Garden

allegation that plaintiff "was seriously and

City Banking & Trust Co., 114 III, App. 318.

Evidence under the true rule as to the messe-

enough to admit proof of any bodily injury

ure of damages for breach of contract is

admissible, though not set up in the petition.

shift. Graham v. Joseph H. Bauland Co.,

Ford v. Fargason, 120 Ga. 606, 48 S. E, 180.

54. Wells, Fargo & Co. Express v. Boyle

ment that plaintiff suffered serious bodily

\[Tex. Civ. App.\] 87 S. W. 164. Cudahy Pack-

injury and pain and will continue to suffer

ing Co. v. Broadbent \[Kan.\] 79 P. 126, holding

quin and permanent bodily injury is suff-

otherwise, is of doubtful authority. Dam-

agent as against a general demurrer. Casey

ages not the natural and usual consequences

v. American Bridge Co. \[Minn.\] 103 N. W.

$23. An allegation of "injuries to the head"

of a detention of personal property must be

is broad enough to admit evidence that the

logging camp. Ocala Foundry & Mach.

injury received caused pressure on and in-

Works v. Lester \[Fla.\] 88 So. 51. Plealing

held suffleient. Muller v. Ocala Foundry &

App. Div. 222, 90 N. Y. 8. 661. Proof of

Mach. Works \[Fla.\] 38 So. 64. Damages to

land as a building spot caused by cutting

ment that plaintiff becomes "slok, sore and

thmber thereon valuable as shade trees, held

not recoverable because not specially plead-

cific allegations. Lofnik v. Interborough Rap-

ed. Eldridge v. Gorman, 77 Conn. 699, 60 A.

id Transit Co., 94 N. Y. 8. 150. Coutma. Farm

643. Averments of cross petition as to

ham v. Interurban St. R. Co., 94 N. Y. S. 364.

guaranties good for the purpose of letting

Hearart trouble and neuralgia may be shown

in proof as to special damages sustained.

Lovenland, etc., Co. v. Consumers' Carbon

and injury." Rice v. Wallowa County \[Or.\] 81

Co., 6 Ohio C. C. (N. S.) 258, 25 Ohio C. C.

P. 358. Averment of internal injury

307. In an action for delay in furnishing

jected to admit proof of in-

ears in which to ship cattle, there can be no

jury to kidneys. Fuchs v. St. Louis Transit

recovery for horse hire made necessary in

Lo. \[Mo. App.\] 86 S. W. 458. A general averment of bodily injury is sufficient to admit

such item was not pleaded. Texas & P. R.

of particular injuries, the objection

Co. v. Arnett \[Tex. Civ. App.\] 13 Tex. Ct. Rep.

being first made at the trial. Wilbur v.

$47, 88 S. W. 448. Where a distinct disease

Southwest Mo. Elec. R. Co. \[Mo. App.\] 85 S. W. 671. An allegation of "Modily injuries"

but does not always, result from like in-

is sustained by proof of injury to hands and

juries, it must be pleaded. Allegation of

wists. City of Bureka v. Neville \[Kan.\]

shock to nervous system will not, admit

### 936 DAMAGES $ 7A.

5 Cur. Law.

scription appears to be necessarily permanent, permanency need not be specifically alleged,\[97\] though it is otherwise if permanency is not the inevitable result.\[58\] Where particular injuries are described, there can be no recovery for others not described.\[59\] Evidence of injuries not pleaded is admissible for purposes other than to enhance damages.\[60\] Recovery cannot be had for a mere aggravation of a previously received injury without an allegation of such aggravation.\[61\] Punitive damages need not be claimed eo nomine.\[62\] The damages can never exceed the sum claimed in the pleadings,\[63\] and special averments will not authorize recovery of damages not the natural and proximate result of the injury sued for.\[64\] Personal injury\[65\] and other cases,\[66\] involving the sufficiency of allegations to support recovery of special damages, are colf- and under averment of injury to the head and find face. inability to use the mouth and affection of speech and ability to set may be shown. Comstock v. Georgertown Tp. Co. v. Hammerlund \[Kan.\] 79 P. 152.

\[IMich.\] 100 N. W. 788. Under a declaration alleging physical injuries, recovery may be halaf for rheumat ascrib to the accident, but not for mere aggravation of the complaint.

\[FOOTNOTE:\]\[ENDFOOTNOTE\]

S. W. 107.

Id. Averment of injury to head and back

\[FOOTNOTE:\]\[ENDFOOTNOTE\]

Lujury to an eye is not provable under allegation of speech and ability to set may

\[FOOTNOTE:\]\[ENDFOOTNOTE\]

Se shown. Comstock v. Georgertown Tp. Co. v. Hammerlund \[Kan.\] 79 P. 152.

\[IMich.\] 100 N. W. 788. Under a declaration alleging physical injuries, recovery may be halaf for rheumat ascrib to the accident, but not for mere aggravation of the complaint.

\[FOOTNOTE:\]\[ENDFOOTNOTE\]

S. W. 458.

\[FOOTNOTE:\]\[ENDFOOTNOTE\]
5 Cur. Law. DAMAGES SS 7B.

lected in the note. Payment or obligation to pay for medical services should be averred according to the fact.\[67\] Defendant cannot complain of allegations of facts in aggravation of damages.\[68\] Where no evidence is introduced as to an alleged item of damage, recovery thereon is waived.\[69\] In an action by a husband for injuries to the wife, it is not necessary to allege or prove the value of her services.\[70\] Plaintiff in an action for injuries is not obliged to prove all the elements of damage alleged, to entitle him to recover, nor do the other items necessarily fall with failure to prove the largest alleged item.\[71\] Matters of defense involving the measure of damages need not be specially pleaded.\[72\] Averment that goods could not be bought in vicinity to replace those agreed to be delivered is insufficient to change measure of damages.\[73\] (SS 7) B. Evidence as to damages. In general.\[74\] Plaintiff must show that the injuries complained of are the result of the wrongful act complained of.\[75\] Damages cannot be assessed where there is no proof of their amount,\[76\] the burden of establishing which is on plaintiff,\[71\] and evidence of expenses or the cost to plaintiff

516. Complaint for injunction against dis-closure of plaintiff's patentable ideas held insufficient to found recovery of damages.\[Text. Civ. App.\] SS 8. W. 52. A contract closure of plaintiff's patentable ideas held insufficient to found recovery of damages.\[ Issue and need not be specially pleaded.\] Plaintiff for obstruction of navigable stream

Baltimore & O. S. W. R. Co. v. Ross, 105

In an action for overflowing time of logging engine, time of men and land, the damages alleged being diminution

the necessity of discharging employees and

fehiring at advanced wages. Creech v.

Humptulips Boom & River Imp, Co. \[Wash.\]

for a plea of the general issue. San Antonio toilet, etc., R. Co. v. Gurley \[Tex. Civ. App.\]

price for which goods had been sold rather than for their market value, no description

of them is necessary. It being alleged that the carrier had full notice of their price,

that is the measure of plaintiff's damages.

Pacific EXP. Co. v. Needham \[Tex. Civ. App.\]

83 S. W. 22. Where plaintiff claims damages

as to injuries to horse not shown to have

against a carrier for delay in transporting

him by reason of failure to consummate a

contract he lost by not arriving in time,

he should name the parties with whom

who about contracting. Townsend v. Texas

& N. O. R. Co. \[Tex. Civ. App.\] 13 Tex. Ct.

Rep. 88. W. 802.

67. An allegation of expenditure of money

for medical attention will not support recovery on proof of incurred expenses not paid.

Stanley v. Chicago, etc., R. Co. \[Mo. App.\]

87 S. W. 112; Nelson v. Metropolitan St. R.

Co. \[Mo. App.\] 88 S. W. 781. Evidence that plaintiff has obligated himself for medical

attendance, unobjected to, will authorize re-covery under an averment that he has paid

it, since if objection had been made the

pleading might have been amended. Speng-ler v. St. Louis Transit Co., 108 Mo. App. 329,

83 S. W. 312.

68. Gadsden v. Catawba Water Power Co.

\[S. C.\] 51 S. E. 121.

69. Watson v. Colusa-Parrot Min. & Smetit-

ing Co. \[Mon.\] 79 P. 14.

70. San Antonio & A. P. R. Co. v. Jack-

son \[Tex. Civ. App.\] 85 S. W. 44; St. Louis

S. W. R. Co. v. Johnson \[Tex. Civ. App.\] 85 S. W. 476.

71. Williams v Houston Elec. Co. \[Tex. Civ. App.\] 85 S. W. 1160.

01. Where plaintiff's physical condition

before the injury becomes material, evidence

that he was drawing a Federal tension for

disability is admissible without being

pleaded. Hawkins v. Missouri, etc., R. Co.

DAMAGES SS 7B.

lected in the note. Payment or obligation to pay for medical services should be

averred according to the fact.\[67\] Defendant cannot complain of allegations of facts in aggravation of damages.\[68\] Where no evidence is introduced as to an alleged item of damage, recovery thereon is waived.\[69\] In an action by a husband for injuries to the

wife, it is not necessary to allege or prove the value of her services.\[70\] Plaintiff in an action for injuries is not obliged to prove all the elements of damage alleged, to entitle him to recover, nor do the other items necessarily fall with failure to prove the largest alleged item.\[71\] Matters of defense involving the measure of damages need not be specially pleaded.\[72\]

Averment that goods could not be bought in vicinity to replace those agreed to be delivered is insufficient to change measure of damages.\[73\]

(SS 7) B. Evidence as to damages. In general.\[74\] Plaintiff must show that the injuries complained of are the result of the wrongful act complained of.\[75\] Damages cannot be assessed where there is no proof of their amount,

the burden of es-tablishing which is on plaintiff,\[71\] and evidence of expenses or the cost to plaintiff

516. Complaint for injunction against dis-closure of plaintiff's patentable ideas held

\[ is not sufficient in the absence of evidence of reasonableness.78 The burden of proving that the damages sustained might have been prevented rests upon the party causing them.79 Testimony as to value is peculiarly within the province of experts.80 Generally, testimony as to the amount of damages sustained by plaintiff in a lump sum is inadmissible,81 but all facts material to show the extent of plaintiff's damage,82 or the value of the matter in dispute, may be shown.83 Defendant's wealth may be shown in libel as basis for exemplary damages.84

78 Plaintiff suing for injury to his vale can be proved in no other way, the wagon cannot testify to the amount of re- paires agreed upon by the parties is evidence pairs without showing their necessity and of the value. Goodman v. Baumann, 43 Misc. Reasonable value. Reid v. New York City 83, 86 N. Y. S. 827. Amount that a witness R. Co., 93 N. Y. S. 833. What plaintiff was paid for shelving is some evidence of its offered for his dog two years before is not evidence of its value. Southern R. Co. v. Parnell (Ala.) 37 So. 925. The price paid for when it has no market value is by defendant for land is admissible on the relevant question of value if not too remote in point of time. Guyandotte Valley R. Co. v. Buszik (V.) 50 S. E. 531. Proof of Waai was paid for goods is not always proof of their value. Pegser v. Lund, 89 App. Div. 195, 85 N. Y. S. 881. Evidence of the amount expended in seeking to be cured of the effect of the personal injury is not competent unless accompanied by proof of what services were actually rendered and that such account is reasonable, customary and usual. Chicago City R. Co. v. Miller, 111 N. App. 446; Polaced v. Interurban St. R. Co., 90 N. Y. S. 841; Cudahy Packing Co. v. Broadnet \[Kan.) 17 P. 126; Goodson New York City R. Co., 94 N. Y. S. 86; Klingman v. Fish & Hunter Co. \[S. D.\] 102 N. W. 601; Polaced v. Interurban St. R. Co., 90 N. Y. S. 341. More cost is insufficient without more to found recovery for lost baggage. Brooke v. Cunard 8. S. Co., 93 N. Y. S. 869; Walsh v. New York City R. Co., 93 N. Y. S. 552. In the absence of better evidence, proof of the cost of articles of furniture and the amount they have been used is sufficient in an action for their destruction. Behm v. Damm, 91 N. Y. S. 875. Evidence that plaintiff was com-pelled to employ another man to take his place at certain waves is evidence as to claimtiff's loss of time and its value. Gal-veston City R. Co. v. Chapman (Tex. Civ. App.) 80 S. W. 856. Evidence that plaintiff employed a man at a certain wage to attend to his business while incapacitated by a personal injury is incompetent, it not being shown that such help was necessary or what its reasonable value was. Costello v. New York City R. Co., 91 N. Y. S. 23. In an action of trover, a wrongdoer cannot lessen his liability by invoking an agreed valuation made for the purpose of obtaining reduced freight rates. Georgia, So. & F. R. Co., 121 G. 231, 48 S. E. 807. The amount paid for property by defendant does not control unless it is shown to be the fair reasonable value. Error to instruct jury that plaintiff is entitled to re-cover reasonable value of ice if it exceeds amount paid by defendant. Doll V. Hennes-sy Mercantile Co. \[Mont.) 81 P. 625. When no market value exists, opinion of witnesses as to value of property is properly admitted. Market value at time of conversion. Vromov, v. Sage, 100 App. Div. 285, 91 N. Y. S. 456. Where identity of goods has been lost and 5 Cur. Law. DAMAGES $ 7B.

Evidence in action for personal injuries. \[85\]--In an action in Texas for injuries sustained in Kansas, a Kansas statute limiting recovery in case of wrongful death is inadmissible. \[86\] The testimony of physicians as to the extent and character of plaintiff's injuries, \[87\] and facts having a like tendency, are material. \[88\] Where damages for medical bills are recoverable, plaintiff's request that witness telephone for a doctor is admissible. \[89\] Exelamations indicating present pain may be shown. \[90\] but statements made by plaintiff subsequent to his injury descriptive thereof as distinguished from mere exclamations indicating present pain cannot be shown. \[91\] Recent \[93\] but not remote \[93\] earnings of plaintiff, and the value of such labor as he can

Iowa, 707, 100 N. W. 867. In an action for \[him. Klingaman v. Fish & Hunter Co. \[S. converting logs, plaintiff may show how \[D.\] 102 N. W. 601. Evidence of a physician many he put into the water, how many were \[w\] who attended injured plaintiff that when he \[saw plaintiff blood poisoning had set in, for sunken logs, and the loss in towing and \[w\] without showing any connection between otherwise, in order to show approximately \[the injury and such blood poisoning, was ir- the number converted. Seymour v. Bruskke \[Mich.\] 12 Det. Leg. N. 145, 103 N. W. 613. 91 N. Y. S. 23. Where a surgical operation is \[m\] an action for damages for failure to re- necessary as a result of personal injuries. \[m\] plaintiff may show that it is a difficult and \[dangerous operation which few surgeons \[d\]\] this failure to receive it. While \[m\] 149 S. E. 1030. Expert opinion \[m\] 155. E. 538.

**83.** Where the property in question has \[d\] a possible to permanent of injury hy \[d\] facts as tend to show value or which \[d\] 160 N. W. 857. See, also, Evidence, 3 C. L. \[m\] 134, for a full treatment of the subject of \[m\] 1354.

son v. Gilbert, 114 Ill. App. 17. The amount of insurance carried on buildings and con- \[dangerous operation which few surgeons \[d\]\] it is immaterial on their value in an action for \[him\] 160 N. W. 857. See, also, Evidence, 3 C. L. \[m\] 134, for a full treatment of the subject of \[m\] expert evidence.

son v. Gilbert, 114 Ill. App. 17. The amount of insurance carried on buildings and con- \[dangerous operation with \[d\]\] it is immaterial on their value in an action \[m\] and nervous troubles, evidence that plaintiff \[m\] 160 N. W. 857. See, also, Evidence, 3 C. L. \[m\] 134, for a full treatment of the subject of \[m\] expert evidence.

perform,"4 are admissible on the question of his earning power. The family of a plaintiff suing for a personal injury,"5 and his pecuniary condition"8 and habits, are immaterial."97

\_Expectancy life tables_98 are properly admitted in actions for death,"99 and in actions for personal injury, where the injuries are permanent,1 as persuasive, though not conclusive,2 evidence of the continuance of life.' They are not necessary as a basis for recovery based on expectancy.4 Mortality tables are not admissible to show how long plaintiff will be inconvenienced by a change in street grade.5

\_Physical examination.\_9--The court has no power to compel a party to submit to a physical examination by physicians. Failure to submit on request is simply a matter for the consideration of the jury,;7 but where plaintiff exhibits his injured member and his experts point out the injury thereto, defendant is entitled to have it also exhibited so that its experts may show there is no injury.8 A dramatic exhibition of plaintiff's injuries may be ground for reversal.9

\_Sufficiency of evidence_10 is discussed in cases cited below,"11

"would average five dollars per day." City of Dallas v. Muncton \[Tex. Civ. App.\] 83 & 71. Co. v. Bailey \[Va.\] 84 & 71. Co. v. Bailey \[Va.\] 85. Co. v. Bailey \[Va.\] 86. Co. v. Bailey \[Va.\] 879. Co. v. Bailey \[Va.\] 88. Co. v. Bailey \[Va.\] 89. Co. v. Bailey \[Va.

(SS 7) \_C. Instructions.\_12--Instructions should clearly define the measure of plaintiff's damages,13 limit them to the amount pleaded14 and proved,15 respect the

10. See 3 C. L. 1030.

Y. S. 1010; Wilbur v. Southwest Mo. Elec. 11. In an action of debt on a repelvin

Co., 110 Mo. App. 689, 85 S. W. 671. Evi-bond, the statement contained in the afflawati

Gence held sufficient to raise issue of perfor repelvin as to the value of the property

manery of injury by broken collar bone.

sought to be repelved is prima facie evil-

Balillard v. Kansas City \[Mo. App.\] 86 S. W.

dence of such value. Parson v. Gilbert, 114

479.

III. App. 17. Evidence that prior to an accident

Causal connection between injury and accident a wagon was worth $200, that it

idemeit Evidence held sufficient to go to woudu cost $200 to repair it, is sufficient

Jury on whether plaintiff's injuries resulted

basis for a verdict of $125. Heisenberg v.

from the accident complained of or were

New York City R. Co., 91 N. Y. S. 4. Evi-

dence held not sufficient to base special re-

scur! Pac. R. Co. \[Mo. App.\] 88 S. W. 767.

covery for cutting timber useful for shade

Evidence held to show that injuries to a wo-

trees. Ferguson v. Buckell, 101 App. Div.

man (miscarriage) resulted from a jolting of

213, 91 N. Y. S. 724. Evidence of market

value of certain peas held sufficient. Kiley

y. Kneg Canning Co., 95 N. Y. S. 986.

112 L. 764, 86 S. 676. Evidence held in-

Personal injuries: Mental anguish held

sufficient that impairment of hearing of man

sufficiently shown to authorize allowance of

damages therefor. Baler v. Selke, 112 Lill.

App. 568. Evidence that a mangled hand

well cause future pain and suffering is not

see veins resulted from injury caused for.

necessary to justify recovery errorfor. Kirk-

ham v. Wheeler-Osgood Co. \[Twash.\] 81 P.

787. Evidence held sufficient to support find-

001. Evidence in action for personal

iny to woman 40 years old belief sufficient to

Farey v. Fargo, 99 App. Div. 599, 91 N. Y.

go to jury on likelihood of her climacterie

occurring before her recovery so as to be an

element of damages. Keecr v. Norfolk Sub-

urban St. R. Co., 185 Mass. 247, 10 N. E. 46.

held sufficient to support recovery on theory

Held insulfient to show that injuries were

imaginary or hystrical, Patterson v. New

Orleans & C. R. Light & Power Co., 110 La.

Y. S. 434.

797, 84 So. 782. Where one injured in a

lision testified that her head was affected

and her brain confused, evidence was sun

eient to justify the jury in considering

whether her brain was affected. Interna-

litional & Q. N. R. Co. v. Shuford \[Tex. Civ. App.\] 81 S. W. 1189. Evidence that a boy

of 14 suffers severe pain in head, that before

injury the was a "bright boy," that he is

now "dull," is sufficient to justify instruction on future injury to mind. El Paso Elec.

R. Co. v. Kendall \[Tex. Civ. App.\] 85 S. W.

61. Evidence held sufficient to justify instruction on injury to nervous system. How-

ard v. Terminal R. Ass' \[Mo. App.\] 85 S. W.

W. 608. Evidence of injury to arm and leg

held sufficient to go to jury. Christy v. El-

liott, 216 Ill. 81, 74 N. E. 1085.

Loss of earnings: Loss of earnings power

of woman housekeeping held sufficiently

shown to warrant recovery. Olin v. Brad-

ford, 24 Pa. Super. Ct. T. Testimony as to

plaintiff's earnings per day prior to his

jury held insufficient to found recovery. Impkamp v. St. Louis Transit Co., 108 Mo.

App. 655, 84 S. W. 119. Evidence held sufficient to found recovery for lost earnings.

Zongker v. People's Union Mercantile Co.,

110 Mo. App. 882, 86 S. W. 486. Plaintiff

alleging injury to eye held not entitled to

recover for alleged diminished earning

paicity. St. Louis S. W. R. Co. v. Smith

\[Tex. Civ. App.\] 88 S. W. 943.

Permanency: Proof of the existence of an

injury not necessarily permanent does not

authorize submission of the question of

permanent injuries. McNell v. Interurban

St. R. Co., 92 N. Y. S. 767. Evidence held

sufficient to show any permanent injury. Robinson v. Metropolitan St. R. Co., 92 N.

R.

province of the jury,10 and avoid authorizing speculative,17 sympathetic,18 capri-cious,19 and double20 damages. Correct general instructions are sufficient in the ab-

them. Northern Texas Traction Co. v. Jam-

eral instruction on the measure of damages

ison \[Tex. Civ. App.\] 85 S. W. 305. Failure

any reference to the social standing of the

to limit recovery for medical expenses to

mother of an infant owing for personal

amount alleged in petition is not error where

Jury. City of South Omaha v. Suliffe

there is no evidence of any other amount.

South Covington, etc., R. Co. v. Smith \[KYJ\]

\[Neb.\] 301 N. W. 897.

"destruction" of nervous system held not

"86 S. W. 970.

Fishburn v. Burlington & N. W. R. Co.

are to give such damages as in their "judg-

ment" would fairly compensate. Their judges

juries are such that permanence may be

ment must be limited by the evidence. Con-

soidated Coal Co. of St. Louis v. Shepherd,

112 Ill. App. 455; Chicago & M. Elec. Co. v.

Frempel. II, III, App. 253; Chicago, etc., R.

Co. v. Thrasher \[Ind. App.\] 73 N. E. 829.

Instruction that plaintiff "can recover all

damages suffered by him by reason of the

default of the other party" held misleading

in rod limiting recovery to actual damages.

L4 Favorite Rubber Mfg Co. v. H. Channon

Co., 113 Ill. App. 491. Instruction authorizing consideration of "all the facts and cir-

cumstances in evidence" approved. Chicago

City R. Co. v. Gemmill, 209 Ill. 638, 71 N. E.

43. An Instruction to assess damages in

such amount as the jury may believe, from

the preponderance of evidence, was sustain-

ed, is proper. Illinois Terminal R. Co. v. Thompson, 210 Ill. 226, 71 N. E. 828.

Instruction to jury to take plaintiff's present

physical condition into account held error

where the evidence left it in doubt whether

his condition was the result of the injury.

Chicago Union Traction Co. v. Miller, 212 Ill. 49, 72 N. E. 25. An instruction on the

effect of provocative words to mitigate damages for assault and battery is error where

there is no evidence of provocation. Langdon v. Clarke (Neb.) 108 N. W. 62. An

struction authorizing putative damages in a

tort case where the evidence does not justify it is prejudicial. Macon R. & Light Co. v. Mason \[Ga.\] 51 S. E. 569. Where the only

evidence was that medical expenses were

"five or six hundred dollars" and were reasonable, the instructions should confine the

recovery to such as were reasonable. Gal-

veston, etc., R. Co. v. Perry \[Tex. Civ. App.\].

82 S. W. 343. Instruction authorizing

recovery for medical attendance in absence of

evidence that plaintiff had paid or obligated

himself for any is erroneous. Kimble v. St. Louis & S. R. Co., 108 Mo. App. 78, 82 S. W.

1096. Instruction allowing future medical

expenses held not improper under the evidence. Parker v. St. Louis Transit Co., 108 Mo. App. 465, 83 S. W. 1016. Hypothesis of

severe abrasions should not be submitted in

the absence of evidence of them, though

charged in the petition. St. Louis v. Kansas

City \[Mo. App.\] 85 S. W. 630. Instruction

following language of petition which alleged

injuries not proven held not bad as authorizing

recovery for injuries pleaded but not

proved. Missouri, etc., R. Co. v. Hay \[Tex. Civ. App.\]. 86 S. W. 954.

16. Where the evidence is conclusive that

plaintiff has not recovered from his injuries,

an instruction on future pain and suffering

figure 17: A charge that the measure is such an

amount as is dictated by the enlightened

calciences of impartial jurors is erroneous.

Macon R. & Light Co. v. Vining, 120 Ga. 511,

48 S. E. 232. Instruction held not bad as

allowing speculative and uncertain damages

for personal injury. City of South Omaha

v. Suffiffe \[Neb.\] 101 N. W. 897. Permission

sion to assess what they think just and

right after full consideration of all the

evidence is error. Toledo, St. L. & W. R. Co. v.

Champson, 210 Ill. 226, 71 N. E. 828. Instruction as to

future pain and suffering held not bad as

lowing speculative recovery. Chicago & M.

Elec. R. Co. v. Ullrich, 213 Ill. 170, 72 N. E.

815. An instruction merely giving the jury

a form of verdict cannot be objected to as

giving them unlimited power in respect to

assessment of damages. Central R. Co. v.

Ankiewicz, 213 Ill. 631, 73 N. E. 382. In-

struction held not bad as allowing specu-

lation on value of injury to feelings sence of special requests.\[21\] Instructions should be considered as a whole.\[22\] Erroneous instructions are frequently cured by verdict.\[23\] A party cannot complain of an instruction on the subject of nominal damages when he himself requested a similar charge.\[24\] Holdings on various instructions complained of are collected below.\[25\]

(SS 7) \_D. Trial.\[20\]--\_Where it has been previously determined that defendant is liable, the question cannot be again raised at the hearing before an assessor appointed to assess damages, or by a request for a ruling by the court on a motion for a new trial.\[27\] In an action for breach of contract of sale where the evidence as to the market value of the goods was oral and conflicting, it is error to withdraw from the jury the question of the amount of damages.\[28\] In Iowa the apportionment of the damages among the owners of sheep-killing dogs is for the jury.\[29\] The time of admitting testimony on the question of damages is within the discretion of the court.\[30\] An extra allowance cannot be made in a negligence case of a very common type.\[31\]

the general measure. Damages to cattle in shipment. International & G. N. R. Co. v. Startz {Tex. Civ. App.} 83 S. W. 1071; International & G. N. R. Co. v. Butcher \[Tex.\]

So. 1062. Instruction to consider impairment of health, physical injuries, physical and mental suffering, expenses of medical treatment and impairment of ability to earn, erroneously allowed double damages. Galveston, etc., R. Co. v. Perry {Tex. Civ. App.} 82 S. W. 348. Instruction in personal injury case held good as against objection that it allowed double damages. San Antonio Traction Co. v. Sanchez {Tex. Civ. App.} 84 S. W. 849; Reynolds v. St. Louis Transit Co. \[Mo.\] 88 S. W. 50; Red River, etc., R. Co. v. Reynolds {Tex. Civ. App.} 88 S. W. 1169; International & G. N. R. Co. v. Tisdale {Tex. Civ. App.} 87 S. W. 1063; North-ern Tex. Traction Co. v. Yates {Tex. Civ. App.} 88 S. W. 288.

21. Red River, etc., R. Co. v. Reynolds {Tex. Civ. App.} 88 S. W. 1169; Crown Cotton Mills v. McNally {Ga.} 51 S. E. 13. Failure to exclude effect of prior injuries in charging on expenses and lost time held not error in absence of special request on that subject. Missouri, etc., R. Co. v. Hay {Tex. Civ. App.} 88 S. W. 954. In the absence of a request, it is not error to fail to instruct that the present worth rather than the aggregate of future damage for a personal injury may be recovered. Hutchies v. Cedar Rapids & M. C. R. Co. \[Iowa\] 103 N. W. 779.

01. Defendant's instructions given held curative of others not confining recovery to proximate results. Chicago Union Traction Co. v. Miller. 211 Ill. 49, 72 N. E. 25. Misleading instruction held not reversible. Personal Injury. City of Chicago v. Bush, 111 Ill. App. 638.

01. An instruction in a personal injury case authorizing recovery for "direct expenses incurred" held not prejudical in view of the verdict, though there was no proof of the value of the physician's services. Smith v. Jackson Tp., 26 Pa. Super. Ct. 234. Where the jury found for defendant the plaintiff could not have been prejudiced by any error in instructions as to the measure of damages. Conant v. Jones, 120 Ga. 568, 48 S. E. 234. A recovery which is only fair in view of plaintiff's injuries and is not assaulted as * \[944\] DEAF MUTES. DEATH AND SURVIVORSHIP. 5 Cur. Law. (SS 7) _E. Verdicts.\[32\]_--A single verdiet or finding may include damages for elements of damage recoverable.\[33\]\_

DAMNUM ABSQUE INJUPAIA; Dams; DATE; Days; DEAD BODIES, see latest topical index.

**DEAF MUTES.**

Deaf mutes may by reason of their weaknesses be more susceptible to fraudulent arts than other persons.\[1\]

**DEATH AND SURVIVORSHIP.**

The presumption of death arises on a person's absence from home continuously for seven years unheard of;\[2\] but it may be rebutted.\[3\] It is proper to charge that all the circumstances of the absence shall be considered.\[4\] The necessity of inquiry and search is sufficiently presented by a charge that impliedly draws in from the declaration such elements.\[5\] The refusal to charge that the absentee must have intended to return, if error,\[6\] was harmless where the only evidence was that he did.\[7\] The

**30. Spink v. New York, etc., R. Co., 26**

**Tear's as Foundation for Declarations Against R. L 115, 58 A. 499.**

**31. Starting of street car while plaintiff**

**was alighting. Leonard v. Union R. Co., 98**

**App. Div. 204, 90 N. Y. S. 674.**

**Collision on**

**problem to be dead when he has not been public highway between bicycle and wagon. Wright v. Fleischmann, 99 App. Div. 547, 91 N. Y. S. 816. Where only question is extent and character of injuries. Harvey v. Fargo, 99 App. Div. 599, 91 N. Y. S. 84.**

**32. See 3 C. L. 1033.**

**33. A finding enumerating several elements of damage and collecting them in a single amount is not objectionable as alighting double recovery. Halesad v. Sigler \[Ind. App.\] 74 N. E. 257. A single verdiet for assault and battery may include damages for the personal injury, the medical bill, and loss of time. Happy v. Prichard \[Mo. App.\] 86 S. W. 655.**

**1. Culley v. Jones \[Ind.\] 73 N. E. 94.**

**2, 3. Polleemen's Benev. Ass'n v. Ryce, 115 Ill. App. 95. Evidence considered. Id. Instruction held not to tell jury that presumption was conclusive. Polleemen's Benev. Ass'n v. Ryce, 213 Ill. 9, 72 N. E. 764.**

**Lapse of more time makes it stronger. In re Truman \[R. L \] 81 A. 598.**

**Presented from 26 to 27 years' absence without being heard of. In re Morris, 91 N. Y. S. 706. From disappearance and absence for over 15 years with no explanation save indicial of a suicidal purpose. In re Losee's Estate, 94 N. Y. S. 1082. From unexplained absence for 43 years. McNulty v. Mitchell, 84 N. Y. S. 89.**

**Note:**
**Appended to the report of Polleemen's Benev, Ass'n v. Ryce in 104 Am. St. Rep. 190, 198 Is an exhaustive monograph on the "Presumption of Death."**

**4. Polleemen's Benev. Ass'n v. Ryce, 213 Ill. 9, 72 N. E. 764.**

**10.**

**year's absence where he left to go to another place and was subsequently known to have been living in adultery. Donovan v. Twist, 98 N. Y. S. 99.**

**NOTE. Fresumption of Death After Seven**

**11.**

**22.**

**33.**

**4.**

**5.**

**6.**

**7.**

**8.**

\*\*8.

presumption is against suicide as a cause of death,8 but the accompanying circumstances may overcome it.9 A statutory presumption of the death of residents who do not return to the state has no application to the case of one who was never a resident.10 Death may be inferred from one's disappearance at the time and place of a disaster whither he was bound,11 or where he must have been.12 It is said that a grant of administration is very weak evidence of decedent's death.13 To be proba-tive of one's death a death certificate and burial record should be referred to him by such clear evidence of identity as to overcome the contrary presumptions.14 Such a certificate is inadmissible if unsigned and undated.15 If there is no specific finding when the death occurred, it will be regarded as having been on the date of the decree.16

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: See Carriers, 6 C. L. 507; Master and

## 1 Nature and elements of liability and release or bar thereof

A cause of action for wrongful death does not exist at common law \[20\]. It is of statutory creation and arises only within the strict terms of the statute \[21\]. Statutes relative to the cause of action are to be construed in connection with each other \[22\]. In Massachusetts sets if death was caused by a defendant's servant the negligence must have been gross \[23\]. The injuries negligently inflicted need not be the sole cause of death \[24\]. The cause of action does not accrue until death \[25\]. In North Carolina a cause of action for injuries abates at the death of the injured party and merges in the cause of action for death \[26\]. Under Lord Campbell's Act the right of action survives to the administrator of the party in whose favor it accrues \[27\].

A release by an injured party does not deprive those dependent on him of their right of action if death results \[28\].

## 2 Who may bring action

The action must be brought by the person designated by the statute, and cannot be brought by another, though he be sole beneficiary \[30\]. Thus if the right of action is given to the administrator, he alone may sue \[31\], and the beneficiaries have no right to be parties or to compromise or control the action \[32\]; but where the action is given to the personal representative for the benefit of the widow and next of kin and he conspires with the one responsible for the death to prevent suit, the widow and next of kin may maintain the action, making the administrator a party \[33\]. If the right of action be given to several in the alternative, the parties named should not be joined \[34\]. If the personal representative is given the right of action, a foreign personal representative may sue under the statute of the state where the death occurred, in the state of his appointment if he has such right in that state, and the legal machinery of that state is adequate to the enforcement of the rights given.\[35\] A personal representative may maintain an action for the wrongful death of a servant caused by the master's negligence.\[36\] In Illinois the action may be maintained by a foreign administrator.\[37\]

SS 3. \_Beneficiaries of the right of action.\[38\]--The action can be maintained only for the benefit of the persons named in the statute,\[39\] and there can be no recovery for the benefit of persons not dependent on deceased and who have no expectancy of benefit in his continuance of life;\[40\] but it is not necessary that the beneficiary have a legal claim on the services of the deceased,\[41\] and that a beneficiary is married,\[42\] or is supported after the death by other members of the family, does not preclude a recovery.\[43\] Under Lord Campbell's Act a mother cannot recover for the death of her illegitimate child.\[44\] "Next of kin" includes a husband,\[45\] but "heirs" does not.\[46\] Under a statute giving an action for the benefit of the widow, if any, or the next of kin, if the deceased leaves a widow, no cause of action exists for the benefit of the next of kin.\[47\] Nonresident alien next of kin may recover under a statute giving a right of action to the next of kin,\[48\] and an alien widow residing in another state is entitled to the benefits of the statute for the death of her husband, a resident alien.\[49\] Under the Indiana statute recovery may be had for the benefit of a nonresident alien if he would be entitled to a similar recovery under the laws of his own country.\[30\] When the recovery is for the benefit of the estate of the decedent, a local administrator may recover for the death of an alien, though decedent's sole relative is a nonresident alien.\[51\]

Contributory negligence of the beneficiary of the right of action will defeat a recovery for the death of a child non sui juris.\[52\]

der P. L. 309. Haughey v. Pittsburg R. Co. 210 Pa. 367, 59 A. 1112. Where the action should be brought by the widow alone and a nonsuit is entered in an action by the McDonald's V. Royle Min. Co., 110 Mo. App. widow and children, the children cannot appear separately in their own names. Id. 38. Williams v. Camden Interstate R. Co., 118. 571. 36. Under Code 1896, $\\lx@sectionsign$ 27, permitting personal representatives to maintain actions for wrongful death. Mobile, etc., R. Co. v. Bromberg \[Ala.\] 37. No. 395. 37. Chicago Transit Co. v. Campbell, 110 Ill. App. 386. 38. See 3 C. L. 1037. 39. Swift & Co. v. Johnson \[C. C. A.\] 138. F. 867. 40. Diller v. Cleveland, etc., R. Co. \[Ind. App.\] 72 N. E. 271. 41. United States Elec. Lighting Co. v. Sullivan, 22 App. D. C. 115. Two brothers and a nephew with whom decedent lived and did housework are entitled to recover for her death, though there was no legal obligation resting on her to render such services. Smith v. Michigan Cent. R. Co. \[Ind. App.\] 73 N. E. 928. 42. In this case a daughter for whose benefit the action was brought was married but received nothing from her husband except his name. International & G. N. R. Co. v. Boykin \[Tex. Civ. App.\] 85 S. W. 1163. 43. Under a statute giving a right of action to one dependent on decedent for sup

## 4 Damages

The damages recoverable are strictly compensatory and limited to the pecuniary loss sustained,\[64\] or the relief contemplated by the statute.\[65\] Punitive elements, loss of society, wounded feelings and sufferings of the deceased cannot be considered.\[54\] Some courts lay down a mathematical rule by which to ascertain the measure of damages;\[67\] but others hold that this is a question of fact and is not to be ascertained by means of any particular mathematical calculation.\[58\]

A minor can recover for the death of a parent the reasonable value of such nurture, care, and education as he would have received,\[69\] unless the action is given for the benefit of the estate of the decedent.\[69\] For the death of a child the parent may recover the value of the child's services during minority,\[61\] less the cost of his support.\[62\] In Illinois, however, it is held that the measure in such case is the pecuniary benefit which would have been derived at any period of his life.\[63\] The fact that a child is absent from home without his parent's consent does not necessarily preclude a recovery.\[64\]

The remarriage of a widow pending the action is not to be considered in fixing the damages;\[65\] and damages recoverable by a husband for the death of his wife are not mitigated by the fact that he remarkers;\[69\] and that a parent receives aid from

### 53. See 3 C. L. 1038

act, the measure of recovery is the amount

### 54. Fair and just compensation for the pecuniary loss sustained. Toledo, St. L. &

about lifetime without any deduction for per-

W. R. Co. V. Smart, 116 Ill. A.D. 523: Galves-

ton, etc., R. Co. v. Perry (Tex. Civ. App.).

85 S. W. 62: Elgin, J. & E. R. Co. V. Thomas,

115 Ill. A.D. 508: United States Elec. Lightening Co., 22 App. D. C. 115: Smith

v. Cissell, 22 App. D. C. 138: McCabe v. Narragansett Elec. Lightening Co., 26 R. I. 427:

58. Consolidated Stone Co. v. Stages \[Ind.\]

73 N. E. 695.

Denver & R. G. R. Co. v. Gunning \[Co.\]

80 P. 727. Pecuniary loss must be shown

in order to sustain a judgment for more

than nominal damages. Chicago Ridge &

Iron Co. v. La Manta, 113 Ill. App. 43. Ex-

penses incurred in the treatment of decedent

13896, a. 233, 814. McCabe v. Narragansett

prior to death is a proper element of damages. Hardin v. St. Louis S. W. R. Co. \[Tex. Civ. App.\] 88 S. W. 440.

85. Swift & Co. v. Johnson \[C. C. A.\] 138 F. 867. Where the action is for the benefit of minors, the measure is what they would

have received until their majority. Eichhorn

v. New Orleans & C. R. Light & Power Co.

\[La.\] 38 So. 526. Under Pub. St. 1901, c. 191,

8 12, providing for the recovery of damages

for mental and physical pain, a recovery may

be had for bright or mental suffering caused

by the negligence of the defendant, but not

if caused by the decedent's own act whether

carales or prudent. Yeaton v. Boston & M.

R. Co. \[N. H.\] 61 A. 522.

### 56. But see 3 C. L. 1038, n. 84, stating that

there is a conflict of authority. Swift & Co. v. Johnson \[C. C. A.\] 138 F. 867. Sorrow or

loss of society. International & G. N. R. Co. v. McVey \[Tex.\] 87 S. W. 328.

57. TO be ascertained by finding the gross

amount of the prospective income, deducting

therfrom what deceased would have had to

lay out for personal expenses, and as a producer, and reducing the result to its present

value. McCabe v. Narragansett Elec. Lightening Co., 26 R. I. 427, 59 A. 112; Reynolds v. Narragansett Elec. Lighting Co., 26 R. I. 457, 59 A. 393. Under the Michigan survival
5 Cur. Law. DEATH BY WRONGFUL ACT SS 4.

another source does not mitigate damages recoverable for the death of a child."1 Under the Michigan survival act the damages recoverable are those sustained by the deceased, and the fact that he left no family is not to be considered."

The probable continuance of contributions during life may be considered."6 Earning capacity of the deceased70 and expectancy of life as shown by mortality tables may be considered71 if relevant."12

_Exemplary damages73_ cannot be recovered where the action is purely compensatory.73a

_The amount of recovery74_ is a question of fact,78 but the jury may not fix the amount arbitrarily.

knowledge to the circumstances of the case.76Interest on the amount recovered may be allowed from date of death to date of recovery.60

SS 5. \_Remedies and procedure.\_81--The action is transitory.82 Where the death occurs on the high seas within the jurisdiction of a state, the laws of that state governing such actions apply.88 The cause of action is property,84 and is a sufficient basis for appointing an administrator for a decedent nonresident killed while temporarily in the state.85

Where an action is given to a widow for instantaneous death and one to the legal representative for lingering death, a person cannot maintain one action as widow and another as administrrix.86 If a plaintiff dies pending an action for injuries, the action cannot be revived in the name of the administrator.87 Where the action is given to several in the alternative, and one dies pending his action, it abates and the cause is extinguished,88 though a contrary rule seems to prevail in South Carolina.89

Adults: $13,190 for a tradesman earning

to the support of his family, wife, and four

over $2,000 per year. St. Louis, etc., R. Co.

children ranging from four and one-half

v. Cleere \[Ark.\] 88 S. W. 995. $5,000 for a

was to three and one-half months of age.

mason $1 years of age, temperate and of

M. Y. S. 1078. $10,000 reduced to $5,000. Dur-

children whose ages range from 12 to 16

years. McCarthy, California, 99 Me. 290. 59

Y. S. 204. $5,000 for a young man with no

trade and earning only nine dollars per week.

ily. Hall v. North Pac. Coast R. Co., 134

Chicago Elee, Transit Co. v. Kinnare, 115

F. 309. $2,700 for man 26 years of age

ling a mother dependent on him. Swanson v.

Oakes, 93 Minn. 404, 101 N. W. 949. $2,000

for a man 21 years of age, unmarried, earning $10 per week, leaving a father who was

in comfortable circumstances. Predmore v.

Consumers' Light & Power Co., $9 App. Div.

551, 91 N. Y. S. 118. $4,000 for wife 23 years

of age earning since marriage $400 per year.

Denver de R. G. R. Co. v. Gunning \[Co1.0\]

80 P. 727. $5,000 for man 35 years of age

earning $40 per month. Young v. Waters-

Pierce Oil Co., 185 Mo. 634, 84 S. W. 929. $15,000 for man 54 years old earning $100 per month. Galveston, etc., R. Co. v. Perry \[Tex.

Civ. App.\] 85 S. W. 62. $17,500 for man 45

years old earning $200 per month, apportion-

ed $10,000 to the wife, $5,500 to the daughter, and $2,000 to the mother, held not excessive

as to amount or apportionment. Gulf, etc.,

R. Co. v. Boyce \[Tex. Civ. App.\] 87 S. W. 395. $16,000 for a man 33 years old earning $100 per month. Missouri, K. & T. R.

Co. v. Nelson \[Tex. Civ. App.\] 87 S. W. 706. $10,000 not excessive, Less by $1,054 than the

present value of his income. St. Louis, etc.,

R. Co. v. Hitt \[Ark.\] 88 S. W. 908.

\*\*Held excesslev. Children: $2,000 held excessive by $1,000 for a girl five years and

eight months old, it not appearing that the

father had any reasonable expectation of receiving benefit, had she lived. Fleming v.

Lobel \[N. J. Lawl 59 A. 27. $7,487 for a boy

14 years of age earning $75c. per day. Reduced to $2,500. McDonald v. Champion

Iron & Steel Co. \[Mich.\] 12 Det. Leg. N. 208,

103 N. W. 829.

**Adults: $13,500 for a tradesman $1 years**

of age. Reynolds v. Narragansent Elec.

Lighting Co., 26 R. L. 1457, S. # 393.

$3,600 for a common laborer earning $1.50 per day. Reduced to $2,500. Hirschkovitz v.

Pennsylvania R. Co., 138 F. 438, $2,500 for a man who contributed $20 to $25 per week

, 5 Cur. Law. DEATH BY WRONGFUL ACT SS 5. 951

The action must be brought within the time limited by the statute. 90 The venue of the action is the place contemplated by the statute. 91

Irregularity in granting letters of administration may be attacked in an action by the administrator for the death of his intestine. 92 An administrator is a merely nominal party to a suit for wrongful death, and a general denial does not traverse his representative capacity, 93 but a misomer of the deceased is a defect which may be raised by general demurrer. 94 A misomer of the decedent in an action by an administrator is fatal to the right to maintain the action. 96

An action may be maintained against county commissioners in their official capacity for wrongful death due to failure to keep a county bridge in repair. 96

Rights under a statute of one state may be enforced in another 97 unless the statute is penal98 or contrary to the public policy of the state in which enforcement is sought. 99 The character of the statute will be determined by the court in which the action is brought. 1 The courts of one state will not refuse to entertain an action under the statute of another because of the dissimilarity of the provision relative to damages in the statutes of the respective states. 2 The extent of the remedy in an action in one state under the statute of another is governed by the limitations of the foreign statute. 3

The pleadings are governed by the law of the forum. 4 Where the action is given for the benefit of certain persons, an action by one as representative will be construed as one for the benefit of the persons named. 99. Right of action given to the personal is 25, for the death of a minor child, is not representative by Code Ala. 1886, & 27, is not barred until two years. Louisville & N. 1886, & 17, is not R. Co. v. Robinson \[Ala.\] 37 So. 431.

Withlow v. Nashville, etc., R. Co. \[Ten.\] 84 S. W. 618. The Illinois statute provides action shall be prosecuted by the personal that there must be pecumary injury; the representative and that the action may be Missouri state does not so require. Heid brought in the county where the plainmitter these can be no recovery in Illinois under resides, the venue is the county of the residence of the personal representative, not age. Raisor v. Chicago & A. R. Co., 215 the decedent. Illinois Cent. R. Co. v. 311.

All. 47, 74 N. E. 68.

1, 2. Whitlow v. Nashville, etc., R. Co. \[Ten.\] 84 S. W. 618.

2. Demis v. Atlantic Coast Line R. Co. \[S. C.\] 49 S. E. 863. The provisions of Code P. (N. S.) 81. Objection to an administrator by writing one year applies to an action under intestine must be taken by demurrer as for want of legal capacity to sue or by special denial. Id.

1. In a suit in a Federal court in Vermont for a death in Connecticut based on the statute of that state which requires the com- plant to allege notice to defendant of the claim, but the statute of Vermont does not require such allegation, no such allegation is necessary. Brown v. New York, etc., R. Co., 136 F. 70. A complaint setting forth in the caption, plaintiff's name, followed by "administrative of" decedent, and in some of the counts allegating that plaintiff "as administration" sees, and in others "the plaintiff as aforescal claims," shows that plaintiff sued as administrator. Kansas City, etc., R. Co. v. Matthews \[Ala.\] 39 So. 207. An additional count, when read in connection with the others, held to show that plaintiff sued in her capacity as administratrix. Id.

1. Under a statute which provides that the recovery shall be for the benefit of the widow and children, where a widow sues as administration for the benefit of the children, it will be construed as an action for the benefit of the widow and children. Balti to a personal representative in different capacities cannot be joined\* nor can a count at common law and one under a statute.7 It must be alleged that the deceased left next of kin.8 The complaint need not show that the plaintiff had a pecuniary interest in the life of the deceased.9 A complaint by a parent for the death of a child need not allege that the child lived at home.10 If death was caused through the negligence of a servant of the defendant, it must be alleged that the act causing death was in the line of his duty.11 An allegation at the close of a complaint for the benefit of the widow that decedent's estate was damaged in a certain sum does not change the action from one under the statute to one for the benefit of his estate.12 The usual rules as to amendments apply.13

Footnote 12: The author is grateful to the anonymous referee for the support of his family out of his project.

Footnote 13: An instruction which expressly excludes one improper element of damages is misleading if it does not also exclude other improper elements. International & G. N. R.

5 Cur. Law. DEBT, ACTION OF. DECEIT SS 1' 953

**SS 6.**\_Distributive rights in the amount recovered.\_24--The damages are to be disposed of according to the statute of the state where the wrongful act was committed,25 and where recovered for the benefit of the estate are to be distributed according to the law of the domicile of the decedent26 to the persons entitled.27 Where the recovery is for the benefit of minors during minority, the recovery should be apportioned according to the length of their respective minorities.28

DEBT, ACTION OF.20

In debt on a penal bond the debt and damages should be found separately and judgment should be for the debt to be discharged on payment of the damages.29

DEBTS OF DECEDENTS, see latest topical index.

DECEIT.

**SS 1. Nature and Elements (053). | SS 2. Actions and Procedure (057).**\_Scope of topic.--\_This topic embraces fraud as a ground of action for damages, whether the action be in common-law form for deceit or an equivalent action under the Code. Fraud as a ground for relief other than damages is elsewhere treated.21

**SS 1.**\_Nature and elements.\_32--The essential elements of an action for deceit are representation, falsity, scienter, deception, and damage.33

Co. v. McVey \[Tex.\] 87 S. W. 328; Interna-

tional & G. N. R. Co. v. Glover \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 263, 88 S. W. 515.

22. No evidence was introduced as to decedent's prospects for the future or as to his

supon judgments, as well as upon contracts

expectancy of life. Alabama & V. R. Co. v. Overstreet \[Mins.\] 37 S. R. 819.

23. Southern I. R. Co. v. Moore, 34 Ind. McDonald v. Butler, 3 Mich. 558, and for

01. See 3 C. L. 1045.

01. Wrongful act in Iowa resulting in

death of a resident of Kansas. Damages are to be disposed of according to the Iowa. statute. Hartley v. Hartley \[Kan.\] 81 F. 505.

26. Damages recovered by a citizen of one

state under the statute of another. Hartley v. Hartley \[Kan.\] 81 F. 505.

27. VWhere the recovery is for the benefit of the estate of the deceased, a widow who

is sole legate is entitled to the damages re-

covered to the exclusion of the children. 1n

re Cook's Estate, 126 Iowa, 158, 101 N. W. 747.

28. Elchhorn v. New Orleans & C. R. Light & Power Co. \[L.\] 38 So. 526.

01. NOTE. When debt is proper remedy:

Debt in the debt, which is the only form of

the action of debt now in use, and which is

the one ordinarily understood when the ac-

tion of debt is mentioned, is not in any case

sustainable, unless the demand be for a sum

certain or for a pecuniary demand which can

readily be reduced to a certainty; that is, a

liquidated demand. 1 Chit. Pl. 127; 1 Abbott

Michigan Prac., SS 166. In Michigan the

importance of this action is somewhat diminished in the present condition of the practice

on account of the statute (2 How. St. SS 778;

Comp. Laws 1897, SS 10417), which authorizes

the bringing of an action of assumpist in all

22. No evidence was introduced as to dec

cases arising upon contracts under seal or

open judgments, as well as upon contracts

expectancy of life. Alabama & V. R. Co. v. Overstreet \[Mins.\] 37 So. 819.

as at common law (Goodrich v. Leland, 18

23. Southern I. R. Co. v. Moore, 34 Ind. McDonald v. Butler, 3 Mich. 558, and for

01. See 3 C. L. 1045.

14.3 V wrongful act in Iowa resulting in

in preference to the action of assumpist \[2

are to be disposed of according to the Iowa. statute. Hartley v. Hartley \[Kan.\] 81 F. 505.

26. Damages recovered by a citizen of one

state under the statute of another. Hartley v. Hartley \[Kan.\] 81 F. 505.

27. VWhere the recovery is for the benefit of the estate of the deceased, a widow who

is sole legate is entitled to the damages re-

covered to the exclusion of the children. 1n

re Cook's Estate, 126 Iowa, 158, 101 N. W. 747.

28. Elchhorn v. New Orleans & C. R. Light & Power Co. \[L.\] 38 So. 526.

01. NOTE. When debt is proper remedy:

Debt in the debt, which is the only form of

the action of debt now in use, and which is

the one ordinarily understood when the ac-

tion of debt is mentioned, is not in any case

sustainable, unless the demand be for a sum

certain or for a pecuniary demand which can

readily be reduced to a certainty; that is, a

liquidated demand. 1 Chit. Pl. 127;
_There must be some representation,\[34\] but it may be read from recitals in the written evidence of the transaction.\[35\]_

_The representation must be of a fact,\[36\]_ material and existing,\[37\] and not mere matter of opinion\[38\] or of law.\[39\] Ordinarily a statement as to value is a mere expression of opinion,\[40\] but may amount to a representation of fact under certain circumstances.\[41\] A representation of a matter of intention may amount to one of fact.\[42\] A false representation may be read from a promise.\[43\]\_

_The representation must be false.\[44\]_

_The maker must know it to be false\[45\]_ or\_

_34. See 3 C. L. 1046. Where a conveyance of corporate stock amounts to a conveyance of land, misrepresentations as to quantity_

_Journals and other estimates. Donnelly of land are as actionable as if conveyance_

_V. Baltimore Trust & Guarantee Co. \[Md.\]_

_was by ded. Boddy, V. Henry, 126 Iowa, 31, 101 N. W. 447. Evidence suffient to show good and would be paid, principal and in- that false representations relative to the_

_were mere matters of opinion. Kimber v. made. Boddy v. Henry, 126 Iowa, 31, 101 N. W. 447. Evidence insuffient to show that false representations were made in a safe of bonds. O'Day v. Bennett, 26 Ky. 28. S. W. 442._

_35. A recital in a contract for the sale of goods that the cost marks on them should_

_piantiff was bound to know. Dube v. Dixon_

_the cost marks truly noted the prices the vendor paid for the goods. Mason v. Thornston & Co. \[Ark.\]_

_84 S. W. 1048. Where a principal and customer changed the terms of the contract so as to defeat a broker's right to commission. Corder v. O'Neill, 176 No. 401, 75 S. W. 764. Under Rev. Laws, c. 74, $ 4, certain representations must be in writing. Walker v. Russell, 186 Mass. 69, 71 N. E. 86._

_36. See 3 C. L. 1046._

_Representations of fact. That a trust_

_deed is a first mortgage. Kehl v. Abram, 112 Ill. App. 77. Where two persons agree to purchase property jointly, false representations by-one as to the lowest price it can be obtained for. Padlock v. Bray \[Tex. Civ. App.\]_

_13 Tex. Ct. Rep. 383, 88 S. W. 419. As to fertility of soil. Onsel v. Weisman \[Tex. Civ. App.\]_

_13 Tex. Ct. Rep. 503, 88 S. W. 290._

_Representation by a vendor as to the quantity of land in a tract. Stearns v. Kennedy \[Minn.\]_

_103 N. W. 212. That a worthless medicine is a sure sure sure for how cholera. McDonald v. Smith \[Mich.\]_

_102 N. W. 668. False representation in sale of land that it was unincumbered. Hahl v. Brooks, 114 N. App. 644. A statement by a seller of corporate stock that he had investigated it enough to know that he wanted some of it is more than a mere expression of opin-ion. McDonald v. Smith \[Mich.\]_

_102 N. W. 668._

_37. Representations to a married woman that her husband would receive part of the purchase price of land, made to induce her to release her dower right is a statement as to existing conditions. Garry v. Garry, 187 Mass. 62, 72 N. E. 335. Misrepresentations of what will occur in the future are insuffient. Boulten v. Stilwell \[Md.\]_

_60 A. 69._

_38. Statement of one procured to find vacant land for an entryman that evidence of mining claims on the land were those of claims long since abandoned. David v. Moore \[Or.\]_

_79 F. 415. Representation as to popu-_

_13 Tex. Ct. Rep. 503, 88 S. W. 290._

_41. Coulter v. Minion \[Mich.\]_

_13 Tex. Ct. Rep. 503, 88 S. W. 290._

_42. A statement to the mortgagor, that the mortgage would foreclose, made for the purpose of inducing the mortgagor to sell the property for-less than its value, is actionable though relied on without investigation or verification. Fox v. Duffy, 95 App. Div. 202, 88 N. Y. S. 401._

_43. Sprigg v. Commonwealth Title Ins. & Trust Co. \[IC. C. A.\]_

_64. One obtained money on a promise to deliver certain goods he then sold to another. Held fraud. Bernstein v. Lester, 84 N. Y. S. 496._

_44. See 3 C. L. 1046._

_45. Evekhman v. Webb, 116 Ill. App. 467. Representation of Christian Science healer that he would curze platinum. Speed v. Tomlinson \[N. H.\]_

\_A statement of the milage of a road is not false because each mile of double track is counted as two miles, according to custom. Donnelly v. Baltimore Trust & make it with such reckless indifference as is equivalent to knowledge;4 therefore, proof of a breach of warranty does not establish fraud.47 A representation believed to be true though induced by ignorance or negligence will not sustain the action,48 but it is held that representing as a fact that which the maker does not know to be true is actionable though made through an honest mistake.49 Knowledge of facts may be proved by circumstantial evidence.50

Footnote 49: The author is grateful to the anonymous referee for his comments on the manuscript.

\_The falsity must be willful_51 and have been made with intent to deceive,52 but where known to be false, an intent to deceive will be presumed.53

Footnote 50: The author is grateful to the anonymous referee for his comments on the manuscript.

\_The representation must be material_54 such as that without it the transaction

ing his assertion. Later, the ceiling fell and injured plaintiff's wife. Held, there could be no recovery in an action of deceit, a sciemer not having been alleged. Kushes personal knowledge. Spead v. Tomlinson \[N. v. Ginsburg, 32 N. Y. L. J. 1183, cited 5 H. J. 59 A. 376. Columbia L. R. 256. Belief in the truth of a statement is not a defense when it is made as of the defendants' knowledge. Hadsack mencils a by. Osmer, 153 N. Y. 604; Cabot v. Christie, 42 V. 131, 1 Am. Rep. 313; Litchfield v. Hutchinson, 117 Mass. 195. The court in the principal case seems to have been misled by wrong the case of Kountze v. Kennedy, 147 N. Y. 124, 49 Am. St. Rep. 651, 29 L. R. A. 360, in which the expression was one of belief in not of knowledge. In such cases belief in the truth of the assertion is usually a defense. Hawley v. Smith, 46 N. J. Law, 380, 50 Am. Rep. 482, 5 Column. L. R. 251. In England it is settled that deceit will not lie for a false representation if made in the honest belief that it is true even though belief may not have been founded on such grounds as would produce belief in the mind of a prudent and competent man (Pollock, Torts \[Webb's Ed.J.362, 363; Derry v. Peek, 14 Apr. Cas. 387; Taylor v. Ashton, 11 Mes. & W. 401; Le Clever v. Gould \[1894\] \[N. H.\] 59 A. 376. Statements in a prospective Q. B. 491), and some of the courts of this country have adopted the same doctrine of plants, etc., made on the opinion of experts sent to examine the property, held not ground for an action of deceit. Donnelly v. Baltimore Trust & Guarantee Co. 49 Am. St. Rep. 651, 29 L. R. A. 360; Griswolf \[Md.\] 61 A. 801. v. Gebble, 126 Pa. 353, 12 Am. St. Rep. 878; Boddy v. Henry, 113 Iowa, 462; Allison v. Yakov, 76 Iowa, 205: Pierrat v. Young, 20 Ky. Kim, L. R. 1815, 49 S. W. 864. Others, however, consider the moral wrong sufficient to support the action, and belief in the truth of the statement is not considered a defense. Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 9 Am. St. Rep. 727; Munroe v. Pritchett, 16 A1s. 785, 50 Am. Dec. 203; Foster v. Kennel, 56 A. 361 A. Dec. 203; Foster v. Kennel, 56 A. 361 A. Dec. 203; Foster v. Henry, 126 Iowa, 31, 101 N. nedy's Adm'r, 38 A1a. 350, 81 Am. Dec. 56: Cabot v. Christie, 42 V. 121, 1 Am. Rep. 313; Braley v. Powers, 92 Me. 802, 31 Bird v. Kleimer, 41 Wis. 134; Davis v. Nuzum, 72 WIs. 439, 1 L. R. A. 774; West v. Wright. 98 Ind. 335, 18 Am. St. Rep. 485; Bhillit v. Farrer, 42 Minn, 8, 6 L. R. A. 149; Florcomb v. Noble, 69 Mich. 396. See monograph on Deceit, 1 C. L. 890. 46. Bouden v. Stillwell \[Md.\] 60 A. 609. The maker must have known the representations to be false or intend to convey the impression that he knew they were true when he had no such knowledge. Booth v. Englert, 94 N. Y. S. 700. An agent who makes a statement as of his own knowledge when he has no such knowledge is liable to his principal if injury thereby results. Mill
DECEIT SS 1.

5 Cur. Law. would not have been entered into\[58\] or contributing as an inducement to the transaction.\[56\]

_The representations must be relied\[37\]_ and acted upon,\[58\] and must actually deceive the person who seeks to recover therefor.\[59\] That one makes an affladavit does not preclude him from maintaining an action against the person whose false representations he relied upon in making it.\[60\]

_They must be such as he is entitled to rely upon,\[61\]_ and such as to mislead a reasonably prudent man,\[62\] unless the parties occupy fiduiery relations toward each other.\[63\] Therefore, plaintiff must have been ignorant of their falsity.\[64\] One may. rely on representations as to quantity of land after view\[65\] but not those as to quality,\[66\] and a refusal by a vendor to warrant the quantity is not inconsistent with his liability for false representations as to it.\[67\] The rule of caveat emptor does not apply where the buyer has no knowledge nor means at hand of obtaining it,\[68\] and state-

land contains "about 17,000 acres" is mate-

rally false when it contains only 15,000 acres. Boddy v. Henry, 126 Iowa, 31, 101 N. Y. S. 909.

**Not material:** Representations that certain bonds were legal obligations held not to be material. Kimber v. Young \[C. C. A.\] 137 F. 744. Fraudulent representations as to ownership of adjacent land by a lesser are not actionable if the losses is not disturbed in the possession of the parcel he leased. Robinson v. Syracuse Rapid Transit R. C., 100 App. Div. 21, 91 N. Y. S. 909.

**55.** Boulden v. Stilwell \[M. d\] 60 A. 609. Evidence held insufficient to show that the defendant made the representations which induced the transactions. Warner v. Thompson, 83 N. Y. S. 800 \[Advance sheets only\]. A representation inducing one to invest in more stock of a certain corporation is actionable though the party had previously invested in some of the stock. McDonald V. Smith \[Mich.\] 102 N. W. 688.

**56.** The representation must be as to a fact forming the basis of or contributing an inducement. Sinclair v. Higgins, 46 Mixs. 186, 93 N. Y. S. 195.

**57.** See S C. L. 1047. Connelly v. Brown \[N. H.\] 60 A. 750; Boulden v. Stilwell \[M. d\] 60 A. 609; Kushes v. Ginsberg, 99 App. Div. 417, 91 N. Y. S. 216; Eckman v. Webb, 116 Ill. App. 467. Evidence of falserepresentations should be excluded where it is admitted that they were not relied on. Onel v. Weisman \[Tex. Civ. App.\] 13 Tex. C. Rep. 503, 88 S. W. 290. A subscriber to stock may notsue the sollicting agent for false representations unless he believed and relied upon them to his damage. Eames v. Brunswick Const. Co., 94 N. Y. S. 24. Where a vendor falsely read a decade to a purchaser, evidence held to show that the purchaser relied on his representation and was deceive ed by it. Hahl v. Brooks, 213 Ill. 134, 72 N. E, 727.

**58.** Sinclair v. Higgins, 46 Mixs. 186, 93 N. Y. S. 195.

**59.** That misrepresentations were made to a broker who sold goods for the maker will not entitle a purchaser from the broker to recover unless the representations were repeated to him. Chemical Bank v. Lyons, 137 F. 976.

**60.** An entryman who makes a non-min-

eral affladavit. David v. Moore \[Or.\] 79 P. 415.

**61.** See 3 C. L. 1047. Moore v. Giddings, 77 Conn. 291, 59 A. 38. Evidence of false representations should not be admitted where

the party was not justified in relying upon

them. Oneal v. Weisman \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 503, 88 S. W. 290. In the absence of special circumstances, a false statement as to what the vendor or others paid for an article is not actionable. Beare v. Wright \[N. D.\] 103 N. W. 682.

**62.** A representation that if money was invested in a certain project large prof-

its could be realized is insufficient if the parties are dealing with each other at arm's length. Sinclair v. Higgins, 46 Mixs. 186,

93 N. Y. S. 195. One of ordinary business

produce. Boulden v. Stilwell \[Md.\] 60 A.

**63.** One partner is entitled to presume

that another will not conceal any material fact concerning transactions relative to the partnership property. Burgess v. Deierling

\[Mo. App.\] 88 S. W. 770. Where two persons agree to purchase property jointly, one is entitled to rely on representations by the other as to the lowest price the property can be obtained. Raddock v. Bray \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 883, 88 S. W. 419.

**64.** Connelly v. Brown \[N. H.

5 Cur. Law. DECEIT SS 2.

ments of fact peculiarly within the knowledge of the maker may be relied on without investigation when means are not easily ascertainable.\[99\]

The representations need not be made personally by the maker to the person relying on them,\[70\] and if made for the purpose of, and do induce a transaction it is immaterial that the maker was not a party to the transaction.\[71\] It would seem to be deceit when one connives at the sale of impure food and then causes the arrest of the purchaser when he resells it.\[72\]

_It is essential that damage result_\[73\] as a direct consequence of the deceit,\[74\] but the pecuniary loss need not be sustained immediately.\[75\]

SS 2. _Actions and procedure.\[70\]_--A principal is liable for the misrepresentations of his agent.\[77\] Officers of a corporation who obtain a loan by means of false representations as to the financial condition of the corporation are personally liable though the evidence of the transaction is made in the name of the corporation.\[78\] The action sounds in tort and cannot be predicated on a matter ex contract.\[79\] The action must be brought within the time limited by statute.\[80\]

That a person might have accomplished what he did without deceiving any one is no defense.\[81\] That a purchaser of land does not elect to rescind the sale does not preclude his recovery for deceit inducing it,\[82\] but he can maintain the action only when his evidence makes a clear case.\[83\] The action may be maintained by an interested though silent party to the transaction.\[84\]

60. Representations of officers of a corporation as to its financial condition made for the purpose of procuring a loan. Daniel V. Buttner \[VWash.\] 80 P. 811. Where one makes false representations peculiarly within his own knowledge, he is liable though their falsity could have been ascertained by the exercise of reasonable diligence.\[Mason v. Thornton & Co. \[Ark.\] 84 S. W. 1048.

01. It is sufficient where they are made to a commercial agency and by it given out. Mills v. Brill, 94 N. Y. S. 163.

01. First Nat. Bank v. Steel \[Mich.\] 99 N. W. 786.

01. The court does not expressly hold that this is deceit. McKenzie v. Royal Dairy, 35 Wash. 390, 77 P. 680.

01. See 3 C. L. 1048. Mason v. Thornton & Co. \[Ark.\] 84 S. W. 1048. A technically false statement as to the ownership of stock by trustees who offered it for sale does not damage purchasers who get all they marginal for. Donnelly v. Baltimore Trust & Guran-tee Co. \[Mid.\] 61 A. 301. A complaint which shows no damage because of the act of the defendant is demurrable. Mauger v. Shedaker \[N. J. Law\] 58 A. 1091. Damage must be proven. Bellettier v. Lawlor, 93 N. Y. S. 471. Where a seller of mines receives in exchange all the stock of a corporation organized to purchase it, he suffers no damage. Straton's Independence v. Dines \[C. C. A.\] 135 F. 449.

01. Representation as to future contingent profits is immaterial. Boulden v. Still-well \[Mid.\] 60 A. 609. Misrepresentation as to value of stock in September is not proved by the value of the stock the following April. Id.

01. Deeeit in inducing a married woman to release her dover right damages her. Garry v. Garry, 187 Mass. 62, 72 N. E. 335. Where one is deceived relative to an in-cumbrace on land, he may recover though _Pleading._\[85\]--An action for deceit and breach of warranty\* and a count charging fraud and one charging conspiracy to commit fraud may be joined,\[87\] and under a statute providing that assumpsit will lie where case for deceit might be brought, a count for deceit may be joined with the common counts.\[88\]

All of the essential elements of the tort must be alleged\* and the facts relied upon set forth specifically\[90\]; with definiteness and certainty.\[91\] The scienter must be alleged,\[92\] but excuse for failure to investigate need not be.\[93\] If the complaint is not specific, a bill of particulars may be demanded,\[94\] if the fraud as alleged has been denied.\[95\]

Matters of defense must be specially pleaded,\[96\] and objections going to the right to maintain the action must be raised by special demurrer.\[97\]

_Evidence._\[98\]--The burden is on the party alleging deceit to prove it clearly and satisfactorily\[99\] as alleged,\[1\] but every allegation of false representation need not be proved,\[2\] and where a complaint alleges a conspiracy to defraud, it is immaterial that the proof does not show conspiracy.\[3\] One asserting deceit through an agent has the burden of proving the agency.\[4\] If set up as a defense in an action for the price of 'goods, the vendor has the burden to prove a ratification and waiver of it.\[9\]

Evidence as to questions not in issue is inadmissible,\[4\] but specific acts relevant to the issue are admissible though not pleaded.\[10\]

_Instructions._\[8\]--An instruction in which the element of belief is implied is not objectionable because not making special reference to it,\[9\] and a charge that a representation must be intended and calculated to deceive sufficiently charges that it must be material.\[10\]

_The measure of damages_ for deceit in a contract of sale is the difference between 5 Cur. Law. DEDICATION SS 4. 959 the value of what the buyer parts with and the value of what he receives \[11\]. For deceit relative to an incumbrance on land, the measure is the amount of the incumbrance \[12\], and if title to a portion of land purchased is misrepresented, it is the value of such portion \[13\]. One induced to purchase bonds cannot recover the difference between what he paid for them and what he sold them for long before they were due \[14\].

DECLARATIONS; DECOY LETTERS, see latest topical index.

DEDICATION.

Lots with Reference to a Plat (962). Evidence of Dedication and Questions of Law and Fact (963).

**SS 1.** What is Dedication (959).

Lots with Reference to a Plat (962). Evidence of Dedication and Questions of Law and Fact (963).

**SS 2.** The Purpose of Dedication (959).

**SS 3.** Effect of Dedication (963).

tention (961). Acceptance (961). A Sale of **SS 4.** Remedies (964).

**SS 1.** What is dedication \[15\].-Dedication is an appropriation of land to some public use, made by the owner and accepted for such use by or on behalf of the public \[16\].

**SS 2.** The right to dedicate \[17\].-The dedicator must have some estate in the premises dedicated \[18\]. A railroad has power to dedicate \[19\].

**SS 3.** The purposes of dedication \[20\].-Lands are dedicated for the purpose of establishing public use in and control over the premises dedicated \[21\] for the purposes only for which they are dedicated \[22\].

**SS 4.** Mode of dedication \[23\].\*\* In general \[24\].-Dedication is either statutory \[25\] or common law \[26\]. To constitute a common-law dedication, an intention to dedicate and

**11.** Not the difference between the price \[\] premises of another. Pitearin v. Chester, and the market value of the property if it \[135 F. 587.

had been as represented. Strations' Inde. \[22\]. The laying of telephone conduits in pendence v. Dines \[C. C. A.\] 135 F. 449.

Where one is induced to exchange land for the original dedication and imposes an additional servotude. Burns v. Telephone Co., after the decel is discovered, he may re-cover the difference in valued between what was received or parted with, as the case may be made subject to reservations or restrictions upon the use of the land by or parted with had the representations been the public. Thus a highway may be dedicate-

true. Beare v. Wright \[N. D.\] 103 N. W. 632.

**12.** Hahl v. Brooks, 213 Ill. 134, 72 N. DE.

**13.** Walker & Co. v. Walbridge \[C. C. A.\]

\*\*136 F. 19.

**14.** O'Dary v. Bennett, 26 Ky. L. R. 702,

\*\*82 S. V. 442.

**15.** See 3 C. L. 1050.

**16.** See Cyc. Law Diet. "Dedication."

**17.** See 3 C. L. 1050.

**18.** A verbal agreement by a person to dedicate as a street, land of which he is not the owner is void. Schneider v. Suiser, 211 III. 87, 72 N. E. 19. Dedicators of a city did not own tide hands beyond the meander line. Sheridan v. Empire City, 45 Or. 296, 77 F. 393.

**19.** An intention to dedicate, however, will not be inferred from the use of land by the public, necessary to or consistent with the public use for which the company holds the property claimed to have been dedicate-

ed. Loomis v. Connecticut R. & Lighting Co. \[Conn.\] 61 A. 539.

**20.** See 3 C. L. 1050.

**21.** Dedication is necessary to establish in the public a right of control over the
960

DEDICATION SS 4.

5 Cur. Law.

an acceptance by the public must be clearly established.\[27\] No specific length of possession by the public or particular form of ceremony, however, is necessary.\[28\] A dedication may be implied from acts of the fee owner,\[29\] or may result from a ratification of acts done by one who had no authority to dedicate,\[30\] or from long continued user by the public,\[31\] especially if acquiesced in by the owner,\[32\] although where user is adverse and has continued for a period necessary to give title by adverse possession, prescription would seem the more accurate term.\[33\] A dedication will not be implied where a municipality lays out streets over the land of a private owner.\[34\] A reservation in a deed of a strip "appropriated for a public highway" amounts to an offer to dedicate,\[35\] and such act may result in dedication, though it is

proving and using the premises as a street, constitutes a common law dedication. McGarty. Nevada \[M0. 38 8, W. 236.

82. Town of Bethel v. Pruett,\[215 Ill. 162, 74 N. E. 111; McKenzie v. Haines, 123 Wis. 557, 102 N. W. 33. There must be an intention to dedicate and an acceptance. Wilson v. Lakeview Land Co. \[Ala.\] 39 So. 303. It being a voluntary donation, there are no presumptions in its favor. Id. The grading of a strip reserved by owners who made a plat, and the putting up of street sign posts at the corners, held insufficient to show a common-law dedication. Mitchell v. Denver \[Coo.\] 78 P. 836.

2S. It is only necessary that the owner should definitely give the land by written declaration or by acts. Town of Bethel v. Pruett,\[215 Ill. 162, 74 N. E. 111. Evidence held to show dedication. Calhoun v. Farlado \[La.\] 38 So. 551.

2S. Where a division superintendent of a railroad constructed a street crossing and the town was built up with reference there-to and was used by the public for four years, there was held to be a dedication, though tbc superintendent had no power to dedicate. His conduct having been acquiesced in by the managing agents. Larson v. Chicago, etc., R. Co. \[S. D.\] 103 N. W. 35. An intent to dedicate and an acceptance may be implied where a way has been used for a considerable period with the consent of the owner, and it is beneficial to and has been treated by the public as a highway, and material injury would ensue if it was closed. McClaskey v. McDaniel \[Ind. App.\] 74 N. E. 1023. Where an owner opens a strip of land as an approach to his place of business and tells the street commissioner that the space is open to the public and always would be and that the city ought to masculamine it, this constitutes a dedication. Loomis v. Connecticut R. & Lighting Co. \[Conn.\] 61 A. 589. Opening of a passageway by an owner as a convenient means of access to his store for himself and customers does not amount to a dedication, though the passway may be used by the public general-ly. Id.

30. A ratification of a dedication made by a vendee by one holding a vendor's lion on the premises is as effective as if originally made by such lienor. City of F. Worth v. Cetti \[Tex, Civ. App.\] 85 S. W. 826. The payment of taxes assessed according to a plat does not constitute a ratification of it with reference to streets noted thereon as 5 Cur. Law. 961

not expressly stated that the reservation is for the benefit of the public."4 A mere offer to dedicate may be withdrawn at any time prior to acceptance."7

\_An intention_23 to dedicate is essential,"9 but it may be inferred from acts of the owners.40 Hence a dedication may result, though there is a secret intent not to dedicate.41 Long continued user by the public may indicate an intent to dedicate, but it is by no means conclusive.42 An alleged dedicator may testify that he never intended to dedicate,43 and that he never gave any express consent to the public use of the premises,44 but he may be contradicted by his conduct, acts and declarations.45

\_Acceptance_44 within a reasonable time after the dedication47 by or on behalf of the public is essential,44 but may result from user by the public,40 or be made in any

36. Dougan v. Greenwich, 77 Conn. 444, 79 P. 233. An exception of a 59 A. 505. Where a deed excepted from its \[landing place and way from the terms of a terms of grant a landing place and way and grant indicates an intention to dedicate. the land had been used by the public for Dougan v. Greenwich, 77 Conn. 444, 59 A. 505. the entire period within the memory of el- 41. Raymond v. Wichita \[Kan.\] 79 P. 232.

derly men, evidence held to show a dedica- \[An intent not to dedicate will not prevail tion. Id.

37. McKenzie v. Haines, 123 VWs. 557, 102 N. W. 33. The decoding of the strip \[son v. Chicago, etc., R. Co. \[S. D.\] 103 N.

away amounts to a withdrawal of the offer. W. 35.

Id. Acts of the owner who had dedicated \[42. Coward v. Llewellyn, 209 Pa. 582, 58 streets and alleys, in selling the land and \[A.\] 1068.

permitting the same to be used and cultivated \[43, 44, 45. Town of Bethel v. Pruett, 215 without reference to such streets for 20 \] \[11, 162, 74 N. E. 111.

years before the dedication was accepted \[46. See 3 C. L. 1052. An agreement by constitute a revocation. City of Venice v. Madison County Ferry Co. \[H.\] 75 N. E. 105.

38. See 3 C. L. 1051.

01. Raymond v. Wichita \[Kan.\] 79 P. 232.

Evidence insufficient to show an intention \[12, 74 N. E. 111.

to dedicate a park. Wilson v. Llewlewellyn, Land Co. \[A.\] 39 S. 302. Unless an in- \[the to dedicate appears, the public can acquire no right by user unless it extends for the period necessary to acquire title by ad- \[15.

verse possession. Coward v. Llewellyn, 209 Pa. 582, 58 A. 1066. The laying out of a highway on a section line by residents along \[S.\]. No rights are acquired by a municipal- \[the user of each road by the public and its improvement township officers \[A.\].

manuer provided by statute,\[50\] and need not be made until the convenience of the public demands it,\[51\] providing it is prior to revocation of the offer to dedicate.\[52\] Land dedicated for a street is presumed to have been accepted in its entirety.\[53\] Acceptance may be made by the municipality for whose benefit the land is dedicated.\[54\] An acceptance by the public authorities is not necessary to entitle one who has purchased a lot with reference to a dedicated street to have it kept open.\[56\]

_A sale of lots with reference to a plat\[58\]_ ordinarily constitutes a dedication of the streets and alleys therein described,\[57\] unless otherwise provided by statute. By statute in Minnesota it is necessary that such plat be approved by the village council.\[58\] This rule applies to parks and other public places designated,\[59\] and especially as to lots sold which abut on the plot designated.\[60\] A formal written dedication need not accompany the map.\[61\] Where a plat is ambiguous as to the amount of land dedicated, it will be construed as a whole and most strongly against the dedicator,\[62\] and the fact that a park noted on the plat is not mentioned in the dedicatory state.\_

building up other streets is not an acceptance of such streets where such sand was paid for by the village or taken with the consent of the propriter of the platted territory. City of Venice v. Madison County \[Iowa\] 104 N. W. 347.

**55.** _Heard v. Connor \[Tex. Civ. App.\] $4_

**8.** \_W. 605. A sale of lots with reference to a plat entitles the purchasers to the use of the streets and alleys designated thereon, although the dedication has not been accepted by the public authorities. Edwards v. Moundsville Land Co. \[W. Va.\] 48 S. E. 754. Though a plat is not accepted by the authorities purchasers of lots with reference to designated dedications have a right to have such tracts kept open for the uses specified. Parks. Florida East Coast R. Co., Worley \[Fla.\] $8 So. 618. Complanti by a purchaser of a lot alleging that a dedicated street had been closed up, inconveniencing access to and egress from his premises and causing them to depreciate in value, states a cause of action. Heard v. Connor \[Tex. Civ. App.\] $4 $ W. 605. A reservation for a private way of a strip parallel to a dedicated street on a plat so that the dedicators could recover compensation in case the street was widened by condemnation reserves to the dedicators the fee with an easement in the lot owners. Lever v. Grant \[Mich.\] 102 N. W. 848.

**56.** \_See 3 C. L. 1053.

**57.** \_Conveyance of urban property in accordance with an unrecorded plat. Nagel V. Dean \[Minn.\] 101 N. W. 954. The recording of the plat of a city addition and the sale of lots therein by the propriters constitutes a dedication. Schooling v. Harrisburg, 42 Or. 494, 71 P. 605.

**58.** \_Laws 1899, c. 168, p. 174. Nagel v. Dean \[Minn.\] 101 N. W. 954.

**59.** \_The noting of a "park" on a plat constitutes a dedication of the tract so specified as a public park. Florida East Coast R. Co. v. Vorley \[Fla.\] 28 So. 618.

**60.** \_Plarola East Coast R. Co. v. Vorley \[Fla.\] 38 So. 618.

**62.** \_Where there is nothing to indicate that a park was reserved as, a private one, it will not be so construed. Florida East Coast R. Co. v. Vorley \[Fla.\] 38 So. 618. A reservation of riparian rights to a lot 5 Cur. Law. DEDICATION SS 5. 963

ment will not operate to withdraw it from the lands dedicated. \[43\] Where lots are sold under a written contract, parol evidence is not admissible to show an oral agreement to dedicate certain adjacent land. \[44\]

\_Plats and maps. \[45\]--\_Recording a plat as provided by statute constitutes a dedication of plots designated as reserved for public use. \[46\]

\_Evidence of dedication and questions of law and fact. \[47\]--_Dedication, if denied, is a question of fact, \[48\] and one asserting it has the burden of proving it. \[49\] Prima facie evidence that the land is subject to taxation is prima facie evidence that it has not been dedicated. \[40\]_

SS 5. \_Effect of dedication. \[41\]--\_Dedication divests the original owner of any private ownership rights in the premises. \[42\] After acceptance the property becomes subject to the exclusive control of the public, \[43\] and its improper use cannot be enjoined by a citizen and taxpayer, as such, \[44\] and the owner cannot by any act of his deprive the public of the use of it. \[45\] A dedication becomes irrevocable after third persons have acquired rights which would be impaired by revocation. \[46\] Dedicated premises may be abandoned, \[47\] and where abandonment works a forfeiture, a subsequent user without the consent of the owner does not work a revival of the rights granted. \[48\] As a general rule the power to change \[49\] or vacate dedicated premises rests in the municipality \[40\] or legislature; \[41\] but in Illinois, by statute, a plat in which

dcsignated on a plat as a park, construed. Id. \[49\]

**73.** Where land Is conveyed for a park subject to the restriction that a way through it shall forever remain open as a public way unless closed with the consent of certain persons, the way on acceptance becomes a public way subject to use and occupation by street railways. Bancroft v. Bancroft \[49\]

**74.** Bancroft \[49\] A. 689. \[49\]

**75.** Where, after dedicating a way, the owner granted the use of it as a private way. Gayley R. Higgs \[49\]

**76.** City of F. Worth v. Cettl \[49\]

**77.** Field abandoned: The allowing of statute, in which case no acceptance is necessary. McKenstlo v. Haines, 123 Wis. 552, 102 N. W. 33. \[49\]

**78.** See 3 C. L. 1054. \[50\]

**79.** Gerhard v. Johnson, 105 Ill. App. 65. \[51\]

**70.** Whether the conduct of an owner is such as to induce a belief of his intent to dedicate. Raymond v. V. Vichitin \[49\]

**79.** In an action by an owner to recover a strip claimed by the city to have been dedicated, the city has the burden of proving dedication and acceptance. City of Houston v. Flinnigan \[49\]

**70.** Under a statute providing that a tax ded is prima facie evidence that the land is subject to taxation. Mitchell v. Denver \[49\]

**71.** See 3 C. L. 1054. \[52\]

**72.** After dedication of a strip of land, a subsequent owner cannot recover damages for the use of such strip where the city establishes a building line so as to include it. Forsyth v. Philadelphia, 211 Pa. 147, 60 A. 578. A feed of dedication and release of damages caused by grading the street, by the owner of the legal title, precludes conditional purchasers at the date of dedication from recovering damages because of such grading. Tabor Street, 26 Pa. Super. Ct. 167; Id., 26 Pa. Super. Ct. 175. \[53\]

**73.** Where land Is conveyed for a park subject to the restriction that a way through it shall forever remain open as a public way unless closed with the consent of certain persons, the way on acceptance becomes a public way subject to use and occupation by street railways. Bancroft v. Bancroft \[49\]

**74.** Bancroft \[49\] A. 689. \[49\]

**75.** Where, after dedicating a way, the owner granted the use of it as a private way. Gayley R. Higgs \[49\]

**76.** City of F. Worth v. Cettl \[49\]

**77.** Field abandoned: The allowing of dedicated streets to be enclosed and used as private property for a long period of years constitutes an abandonment and stops the public from asserting its rights. Schooling v. Harrisburg, 42 Or. 494, 71 T. 605. \[50\]

**78.** As to a grant of a right of way for access to a dock on condition of reverter on failure to maintain or abandonment of the dock, evidence that boys occasionally fished from the dock does notshow a user within the contemplation of the parties. Ellis v. Pelham, 94 N. Y. S. 103. Query: Whether after a dedication and acceptance the permission of mere encroachments will constitute an abandonment. City of Houston v. Finnigan \[49\]

**71.** See 3 C. L. 1054. \[51\]

**72.** After dedication of a strip of land, a subsequent owner cannot recover damages for the use of such strip where the city establishes a building line so as to include it. Forsyth v. Philadelphia, 211 Pa. 147, 60 A. 578. A feed of dedication and release of damages caused by grading the street, by the owner of the legal title, precludes * 964 DEEDS OF CONVYANCE SS 1. 5 Cur. Law.

no lots have been sold may be vacated by the owner, \[82\] and where lots have been sold the power to vacate rests in all the owners of the platted premises. \[83\] Streets may not be vacated to the special injury of one who has purchased with reference thereto. \[84\]

- 86 6. _Remediess._\[85\] The maker of a plat is not an indispensable party to an action to determine the rights of persons who purchased lots relative to it, in places designated thereon as dedicated. \[86\]

- 8 1. _Nature, Form and Requisites. Deceds_ \[873\] Rules (974). Covenants (974). Alterations and Interlineations (974). Design of (964). Requisites (966). Delivery (968). Aerogenance (971). A Consideration (971). Veyed (976). Quantum of Ekate Convey-Validity of Assent (972). ed (977). A Reservation (979). Conditions and Restrictions (980). Extinguishment of (981). Rights (981).

- 8 1. _Nature, form and requisites._ Deceds distinguished from other instruments.\_\[87\]--A deed cannot be executed as a testamentary disposition to take effect after the grantor's death. \[88\] Whether an instrument is a deed or a testamentary disposition is to be determined from the intention of the maker; \[89\] if such intention

- 82. Laws 1847, pp. 166, 167. Saunders v.

- 83. Saunders v. Chicago, 212 Ill. 206, 72 N. E. 13.

- 84. See Highways and Streets, 3 C. L. 1593.

- 85. Highbarger v. Milford \[Kan.\] 80 P. 633. The vacation of a street will not divest one who 602, where the words were: "This deed is has purchased a lot with reference to a plat to take effect at my death." So in Abney v. of his right to have the space left open as a street. Wickham v. Tvaddell, 25 Pa. Super.

- 86. One who purchases with reference to dedicated streets becomes vested for all time with the right to use such streets as are reasonably necessary to the enjoy-ment of the premises purchased. Ordinarily such streets as bound the block in which his lot is situated. Highbarger v. Milford \[Kan.\] 80 P. 633. The \[Kan.\] 80 P. 633.

- 85. See 3 C. L. 1056.

- 86. Florida East Coast R. Co. v. Worley

- 87. See 3 C. L. 1056.

- 88. Hayden v. Collins \[Cal. App.\] 81 P.

- 89. Note whether an Instrument specifically providing that it is not to take effect until the grantor's death is a deed or a testamentary disposition is a question upon which there is an irreconcable conflict of authority. Thus in Lanck v. Logan, 45 W. Va. 251, 21 S. E. 986, the deed contained these words: "This deed shall take and be in full force and effect immediately after the said William Logan shall depart this life, and not sooner." It was held a good deed, reserving a life estate in the grantor. So in Wilson v. Carrico, 140 Ind. 533, 40 N. E.

- 50, 49 Am. St. Rep. 213, the words of the 55 Reeb, 729, 76 N. W. 411, the deed contained these words: "This deed is to take effect death of grantor, and then to be in full force." The instrument was held valid as a deed. The same ruling was made in Shackest passed by the grant. The same ruling eiton v. Sobree, 86 Ill. 616, where the words were: "This deed is not to take effect until 5 Cur. Law. DEEDS OF CONVEYANCE SS 1. 965

was to convey a present interest, though possession be postponed until after his death, it is a deed.90

A conveyance may be read into a contract to convey,91 or a decree of court,92 or an agreement as to their interests, between heirs;93 but a release by, the beneficiary in a trust deed is not a deed.\*\* By statute in Iowa the acknowledgment and recording of a plat is equivalent to a deed in fee of a street indicated thereon.94

A deed absolute on its face may be a mortgage96 if it is intended as such at the time of its inception,97 and there is a subsisting debt after execution,98 but a mortgage will not be read into a conditional sale,99 or absolute sale,1 and contract to reconvey.2 That an absolute deed was intended as a mortgage may be established by parol evidence.3 The burden is on one asserting it to prove it4 by evidence

in no way to take effect until after the certain individual interests operates as a decease of the grantor." So In Armstrong (Cornay, 97 App. Div. 460, 90 N. Y. S. 1.

v. Armstrong, 4 Baxt. \[Tenn.\] 357, where the words were: "This conveyance to have effect from and after my death." So in (Leaver v. Gauss, 62 Iowa, 314, 17 N. W. 523, of the trust deed appended a release thereto, where the words were: "To commence aft Stevens Lumber Co., Hughes \[Misa.\] 38 So.

ter the death of both the said grantors." \[76\].

Also the following: "It is hereby under-stood and agreed between the grantors and roasted to the rights of the beneficiary. Id.

the grantee that the grantee shall have no interest in the said premises as long as the said grantors, or either of them, shall

96. Schender v. Reed, 123 Wis. 483, 101

live, and that after the death of both the said grantors, the grantee shall have and hold the premises by fee simple title." So in (Murphy v. Gabbert, 166 Mo. 596, 66 S. W.

513, 89 Am. St. Rep. 733, where the words were: "The intention of this instrument of writing is such that if Mrs. Ann Ellisonison Hequishes her entire right at her death, then this deed is to immediately come into effect,

but not until then." To same effect, see 52.

Conter v. Shelmadine, 204 Pa. 120, 63 A.

638: Horn v. Broyles \[Tenn. Ch. App.\] 62

S. V. 297: Griffin v. McIntosh, 176 Mo. 392, of satisfactory as to credibility, unequivocal as to terms and meaning, clear and convincing.5 As to whether the fact must be established beyond a reasonable doubt there is a conflict of authority.6

capable of being made certain,\[12\] be signed\[13\] by one competent to execute a deed,\[14\] or with authority to convey,\[15\] and must run to a grantee capable of taking.\[16\] In order to cut off a wife's dover right, a deed by a married man must be joined in by his wife.\[17\] Statutory requirements must be complied with.\[18\] Unless otherwise provided by statute, the deed must have been executed at a time when the grantor was seised of the premises,\[19\] and in some states attested, if a grant of a freehold

544. Description of a deed of a right of way 38 "land lying within fifty feet of the main track of the railroad." Abercrombie v. \[line \[Tex. Civ. App.\] 88 S. W. 293. Simmons \[Kam.\] 81 P. 208. Description of land conveyed for a public road held not void for indefiniteness. Mitchell v. Einstein, 94 S. N. Y. S. 210. "One-fourth interest" in a definitely described lot is not so vague and indefinite as to be void. but is an accurate description of a fractional interest in the land. Phillips v. Collinsville Granting Co. \[Ga.\] 51 S. E. 666. Deed of water right held not void for uncertainty as to the amount of water to be diverted. Everett Water Co. v. Powers, 37 Wash. 143, 79 P. 617. Grant of right of way for a pipe line not specifying the exact boundaries held not void for uncertainty as to location. Id.

**Description held void for indefiniteness.** Kennedy v. Maness, 138 N. C. 35, 50 S. E. 450. If the description in a tax ded is insufficient to identify the property, no title passes. Levy v. Gause, 112 La. 789, 36 So. 684.

\*\*12. A description is certain which can be made certain. Welborn v. Dixon \[S. C.\] 49 S. E. 232. A description is not insufficient when one of the corners called can be established by a simple mathematical calculation. Wall v. Club Land & Cattle Co. \[Tex. Civ. App.\] 88 S. W. 534. It is not essential, however, that it be such as without the aid of extrinsic evidence the property may be ascertained. Description held sufficient. Halley's Ex'r v. Curry \[W. Va.\] 51 S. E. 135. The description must be such that the property can be located by the aid of extrinsic evidence which does not add to or enlarge the description. Archer v. Beihl \[C. C. A.\] 136 F. 113. A deed of all of one's interest in certain land as heir of a certain person may be explained by showing what his interest was. Phillips v. Collinsville Granting Co. \[Ga.\] 51 S. E. 666.

\*\*13. A reetil in a deed that it is executed as a duplicate of a former one is an admission of the execution of the former one. City of Hickory v. Southern R. Co., 137 N. C. 189, 4 S. E. 202. Evidence held to show that a deed executed by mark was executed by the grantee, though the name accompanying the mark was spelled differently from hers. Timber v. Desparois \[S. D.\] 101 N. W. 879. The acknowledgment of a signature is a sufficient signing. Godsey v. Virginia Iron, Coal & Coke Co., 26 Ky. L. R. 657, 8 S. W. 886; Loyd v. Oates \[Ala.\] 38 So. 1022. Evidence held to show that a deed was executed. Brooks v. Hunt, 26 Ky. L. R. 608, 82 S. W. 296. Deed held not invalid because not joined in by certain trustees. Koch v. Robinson, 26 Ky. L. R. 969, 83 S. W. 111. Where a deed is lost, execution may be provo-sd by a series of concomitant acts which estate and not acknowledged.\[20\] If its genuineness is questioned, it must be established.\[21\] A deed to become operative in the future is valid.\[22\]

_Delivery\[23\]_ by authority of the grantor\[24\] with the intention of passing title\[25\] and

20. A grant of a right to lay pipes over land so long as the grantee occupies certain lands is a grant of a freehold interest. Clark v. Strong, SS N. Y. S. S. Glatz.

**21.** Other signatures made by the grantor in the dead cannot be compared with the grantee (Newman v. Newman \[Tex. Civ. App.\] SS6 S. W. 635), and signature to the deed for the purpose of a disproving its genuineness. Campbell v. Bates \[Ala.\] 39 So. 144. Where execution is denied, it must be proven by a preponderance of evidence. Parker v. Stafford \[Pla.\] 37 So. 567. The transferring of instruments not entitled to record on the records does not make such records sufficient evidence of the execution of the instruments. Schultz v. Tonry Lumber Co. \[Tex. Civ. App.\] SS2 S. W. 353. An instrument appearing on the records in the handwriting of a clerk who was granted therein is evidence of execution, though the instrument was not entitled to record. White: after V. Thayer \[Tex. Civ. App.\] SS6 S. W. 364.

22. At grantor's death. Lewis v. Tisdale \[Ark.\] SS8 S. W. 579.

01. See SS C. L. 1058, n. 76 et seq. Schnur- er. Bibreek Sav. & Loan Co., B1 N. Y. S.

742; Parken v. Stafford \[Fla.\] 37 So. 667; Erler v. Erler, 124 Iowa, 726, 100 N. W. 856; Powers v. Rude, 11 Old. 831, 79 P. 89. Delivery is complete when the grantor parts with control over the instrument with intention that title shall pass. Biggins v. Lambert, 115 Ill. App. 576.

**Evidence held to show delivery. Lewis v. Tisdale \[Ark.\] 8 S. W. 579; Doan v. Hos- tether, 215 Ill. 635, 74 N. E. 767. Instruction as to what constitutes delivery, approved. Lancaster v. Lee \[S. C\] 61 S. E. 139.**

\*\*Heid a sufficient delivery. A manual delivery of a deed of gift to the grantee who takes it and hands it to her brother to be kept for her and he puts it away without leaving her worlding it constitutes a valid delivery. Fischer v. Union Trust Co. \[Mich.\] 101 N. W. 852. Where a husband fn delivering a deed of trust to his wife acted on the ad- view of counsel as to delivery and handed her the deed, but it was agreed that he should keep possession of it until his death, delivery was shown. Cribbs v. Walker \[Ark.\] 85 S. W. 244. Where one shortly before death executed a deed and placed it in an envelope with her will with _afterstous to de-_.

\*\*Hiver it to the grantee at her death if not recalled. Prior to her death, she recalled the envelope but without opening it directed that it be delivered after he death. Held, a good delivery. Wilcox v. First M. E. Church and Soc. of Henderson, 93 N. Y. S. 423. A delivery to a third person to be de-\_.

**42.** A delivery to a third person to be de-\_.

\*\*ivered to the grantee after the grantor's death is a good delivery, though the grantor retains control of the premises (Kirkwood v. Smith, 212 Ill. 895, 72 N. E. 427), and the grantor cannot change his purpose and revoke the convergence (Tompkins v. Thompson, 93 N. Y. S. 1070). No title passes until final delivery. Id. But the title is then deemed to relate back to the time of de-\_.

**42.** A delivery to a third person to be de-\_.

\*\*440, 64 N. E. 1112. (See, also, Burtick v. T.) Tiliton 141 Mass. 99, 6 N. E. 653; Hathaway v. Cass, 84 Min. 192, 87 N. W. 610; McGee v. Allison, 94 Iowa, 527, 631, 83 N. W. 322.) And in the absence of proof of an understanding that a dead is to be delivered at a particular time or some other evidence as to the intention of the parties as to the time of de-\_.

**44.** A dead executed by several grantors was delivered to a common agent on the understanding that it was not to be delivered to the grantee until executed by another grantor. Held, a delivery by the agent to the grantee without such signature was no delivery. Wisconsin & M. R. Co. v. McKenna \[Mich.\] 102 N. W. 281. Where an agent for both parties receives the deed to be delivered on payment of the purchase price, and places the deed on record after being notified that the sale has been residended, there is no de-\_.

**45.**

**NOTE. Presnnnnnnn as to Delivery of**

\*\*Does: It goes without saying that the intent is the vital thing in connection with the matter of delivery. But the presence in the mind of the grantor of an intent to de-\_.

\*\*Iver is ineffectual unless he has evidenced that intent by some act or acts that the in such manner as to terminate the grantor's control over the instrument is essential.28 Actual manual delivery is not essential.27 Such a delivery, however, raises

So If a deed is recorded by a grantor, a presumption of delivery is raised. Luckhart v. Luckhart, 120 Iowa, 248, 94 N. W. 461; see,

trol over the Instrument by the grantor and also, Hilderhrand v. Williffe, 64 N. Y. 24, 249, 255. But this is a presumption of fact simply that may be overcome by other evidence and that the passing of title should be con-showing as a matter of fact that there was

summated therapy.--3 Mich. L. R. 24. no delivery. Thus, where the evidence tend-ed strongly to show that no consideration was paid, that the grantor placed the deed on record himself, the grantee having no

or level. Berkemeier v. Peters \[Mo. knowledge of its execution or recording at

Appl. 86 S. W. 598. Evidence insufficient to the time, and never having had possession of

show a wavier of a provision that the deed the deed, it was held that the presumption

of delivery arising from the recording was

death. Griffin v. Miller \[Mo.\] $7 S. W. 455.

presumption of delivery arises from the ac-

to a third person to be delivered to the

Knowledgrment of a deed. Tarlton v. Griggs

grantee after the grantor's death does not

131 N. C. 216, 223, 224.

revolve the authority of such third person to

deliver. Thompson v. Calhoun \[Ill.\] $1 N. E.

through the instrumentality of a third person. The courts very generally hold that

if a grantor has placed his deed in the hands

of a third person with directions to him to

liver to relate to the date of his death.

deliver to the grantee named therein upon

Schilcher v. Keeler \[N. Y. Err. & App.\] $1 his (the grantor's death, intending thereby

to release all legal control over the instrument and to make the act and directions a

performance of a condition, did not under-delivery, he has thus made a valid and effect-

and that it was delivered to him beyond

ive delivery. The following are some of the

the grantor's power of control, but he sur-

most recent cases that so hold: Bogan v.

rendered the deed to the grantee, there was

Swearingen, 198 Ill. 451, 65 N. E. 426; Oliver

no delivery. Hayden v. Collins \[Cal. App.\]

v. Wilhite, 201 Ill. 552, 66 N. E. 837; Marshall

81 P. 1120. A manual delivery without in-

v. Hartleft, 98 Mo. App.\] $17, 71 S. W. 1061;

tention to surrender control over the instrument

Diefendorf v. Diefendorf, 132 N. Y. 100, 30 N.

ment is insulfment. Gatt v. Shive \[TEx. Civ.

E. 375; Brown v. Westerfeld, 47 Neb. 399,

App.\] $2 S. W. 303. There must be some-

66 N. W. 439, 53 Am. St. Rep. 532, and note:

thing more than a physical change of pos-

Ruiz v. Dow, 113 Am. 49, 45 P. 867; Stout v.

session; there must be an intent to part

Rayl, 146 Ind. 379, 45 N. E. 515; Dettmer v.

with title. Commins v. Perry, 44 Misc. 458,

Behrens, 106 Iowa 585, 76 N. W. 853, 68 Am.

81 R. Rep. 326; Meech v. Viller, 130 Mich. 29,

82 W. W. 565; Martin v. Pisharty, 13 Mont.

Johnson v. Cameron, 136 N. C. 243, 48 S. E.

96, 32 P. 287, 40 Am. St. Rep. 415, 19 L. R.

44. H. 242. But if the right to recall the deed

livers was not intended to pass title, there

is retained by the grantor who has placed it

in the hands of a third person with direc-

tons to deliver it to the grantee, the deliv-

ery is not good. See Johnson v. Johnson, 24

sumption that it is for the benefit of the

R. L 571; Tarlton v. Griggs, 131 N. C. 216.

And in a very recent case the supreme court

of Michigan, following the supreme court

of Luckhart

lowa and of Ohio, while recognising the doc-

trinethat if a deed is delivered by the grantee

or to the grantee the presumption arises that

it is for the grantee's use, holds that if the

ded is given to an intermediary for the

grantee, no such presumption will arise.

Thomas v. Sullivan \[Mich.\] $101 N. W. 528.

"The rule is well settled." says the court,

"that if a deed is delivered by the grantor

to the grantee, the presumption arises that a presumption of legal delivery.\[28\] A delivery may result from an estoppel\[29\] or from the ratification of a wrongful taking.\[30\] A presumption of delivery arises from possession of the instrument by the grantee,\[31\] and one of nondelivery arises from the grantor's retention of possession of the premises\[32\] or from the finding of the instrument among the grantor's effects after his death,\[33\] unless he has reserved an interest in the premises.\[34\] A presumption of delivery also arises from the fact of recordation;\[35\] but whether the deposit for record of a deed delivered to a father in which his son is grantee amounts to delivery is a question of intention.\[36\] A deed is presumed to have been delivered the day of its date.\[37\] Parol evidence is admissible to show delivery\[38\] or to show that a physical delivery was not made 5 Cur. Law. DEEDS OF CONVEYANCE SS 1. 971

with intent to pass title; \[39\] but not to show a secret intention that a delivery should be ineffectual, \[40\] or to show that a deed delivered to the grantee was subject to conditions. \[41\] Evidence of the circumstances surrounding the transaction is admissible when the question of delivery is doubtful. \[42\] Much more is presumed in favor of the delivery of a deed creating a settlement than in ordinary cases of deeds of bargain and sale, \[43\] because of the presumed confidential relation of the parties. \[44\] The delivery in escrow is elsewhere treated. \[45\]

_Acceptance_\[46\] by a competent grantee is essential, \[47\] but where a deed is unconditional and beneficial to the grantee, acceptance is presumed. \[48\] Parol evidence is admissible to show that a deed was never accepted. \[49\]

_A consideration_\[50\] is imported by the seal. \[51\] A valuable consideration \[52\] is not essential to the validity of the instrument, \[53\] and inadequacy of consideration will

\\begin{tabular}{l|l} dence of it on its face. Whitney v. Deney \[Hanho\] 80 P. 1117. & 44. Henry v. Henry, 215 Ill. 205, 74 N. E. \[Hanho\] 80 P. 1117. & 126. Where the delivery of such a deed is questioned, the burden of proof is on the understood the nature of the delivery. Holbrook V. Truesdell, 100 App. Div. 9, 80 N. Y. 851. \\ S. 911. & 40. Where a deed is manually delivered in such manner as to raise an inference of legal delivery, a secret intention that the deed should be ineffectual cannot be shown to vary its effect. Wilbur v. Grover \[Mich.\] 12 Det. Leg. N. 99, 103 N. W. 583. An unconditional delivery of a deed of a married woman purporting to convey land to her husband cannot be contradicted by testimony of the husband that he intended to assert title only in the event that he survived his wife. Id. & 41. Whitney v. Deney \[Hanho\] 80 P. 1117. & 45. See S3 C. L. 1060. Holbrook v.Truesdell, 100 App. Div. 9, 90 N. Y. 85. 911. Commins should be ineffectual cannot be shown to vary its effect. Wilbur v. Grover \[Mich.\] 12 Det. Leg. N. 99, 103 N. W. 583. An unconditional delivery of a deed of a married woman purporting to convey land to her husband cannot be contradicted by testimony of the husband that he intended to assert title only in the event that he survived his wife. Id. & 41. Whitney v. Deney \[Hanho\] 80 P. 1117. & 46. See S3 C. L. 1060. Holbrook v.Truesdell, 100 App. Div. 9, 90 N. Y. 85. 911. Commins \\
42\. Merki v. Merki, 113 Ill. App. 518. & 43. Baker v. Hall, 214 Ill. 364, 73 N. E. 263, 71 N. E. 986. Delivery and acceptance \\
351, and cases cited therein; Thompson v. Calhoun, 216 Ill. 161, 74 N. E. 715. A delivery by a father of a deed running to his son, to a third person, to have recorded after the father's death is in the nature of a voluntary settlement. Id. Where parents executed a dced for a nominal consideration to their child and it was recorded, held that, though the child was not fully capable of accepting the dead and it was provided that the partents should have the right to possession for life, there was a valid delivery. Baker v. Hall, 214 Ill. 364, 73 N. E. 351. Presumption of delivery of a voluntary deed where soon after its execution the grantee took possession is not rebutted by the fact that the dead was found in the grantor's private box after her death. Henry v. Henry, 215 Ill. 205, 74 N. E. 126. A deed to an infant grantee is presumptively delivered, when delivered to his father and by him recorded. Coleman v. Coleman v.

973 DEEDS OF CONVEYANCE SS 1. 5 Cur. Law.

not invalidate it in the absence of fraud.54 A consideration of love and affection is good as between the parties,55 but fraudulent per se as to creditors of the grant- or.56 A deed based on an illegal consideration will not sustain ejecment,67 and will not be set aside in equity.58 A grantor in a voluntary deed cannot be compelled to assume obligations relative to the premises conveyed.59 The enforcement of a contract which is the consideration of a deed cannot be had in ejecment.60 A re-cited consideration is prima facie the consideration passed,61 and an assumption of liens against the premises is presumed to be part of the consideration.62 Parol evidence is admissible to show the real consideration,63 but not to contradict the acknowledgment of a consideration paid in order to affect the validity of a deed.64

_Validity of assent.65--A_ deed may be invalid because of fraud or undue influence of one party upon the other,64 or of mutual mistake or accident,67 or incapacity of the parties,66 which prevents any real assent.

the grantor had sought to recover title con-
153, 70 N. E. 467; Deaver v. Deaver, 137 N. veged by a deed, based on love and affection,

C. 240, 49 S. E. 113. To show the true con-because of breach of conditions, is based

sideration when the presumption that the on a valuable consideration. Burgson v.

Jaseobson \[VWs.\] 102 N. W. 563.

53. A deed in nature an executed gift

will not be set aside unless fraudulently

A recital of the average does not exclude

obtained. Fowler v. Fowler, 135 F. 405.

That a deed from mother to son was un-

of ascertaining the consideration if it is

wise and improbivalent on her part is no

to control metes and bounds. See v. Mal-

(Or.) 80 P. 1658. A voluntary deed from son

to father is valid as between them. Ellies v. Hiles, 26 Ky. L. R. 824, 82 S. W. 580.

54. Indeaguacy of consideration is not

of itself ground for avoiding a deed. Powers v. Powers \[Or.\] 80 P. 1058. A considerable

disparity between the consideration and the

value of land conveyed will not avoid the

ded in the absence of fraud. Rixey v. Rix-

to which the covenant was broken was in-

ey, 103 Va. 41, 49 S. E. 586.

Inadequacy of consideration is no ground for avoiding

consideration was paid for it. Id. The re-

a voluntary deed. Newman v. Newman

(Tex. Cyr.) 86 S. W. 635.

(S. McEvo v. West \[Ala.\] 37 So. 740.

(Love and affection and faithful service

shown to have been the consideration for a

fendor may show that there was no con-

ded. Doan v. Hostelet, 215 III. 635, 74 N. E. 767.

(S. McKee v. West \[Ala.\] 37 So. 740.

(S. Thompson a feiony: Medearis v.

(Granberry \[Tex. Cyr. App.\] 84 S. W. 1070.

(S. S. Consideration of an agreement between a husband and wife five apart

Aaderson v. Anderson, 123 Vis. 480, 100 N. W. 829.

(S. Cannot be obliged to pay off facum-

brances on the property, though provided

in the deed that he would do so. Fischer v.

Union Trust Co. \[Mich.\] 101 N. W. 852.

(O0. Adams v. Barrell, 26 Pa. Super. Ct.

(G1. Gray v. Freeman \[Tex. Civ. App.\] 84 S. W. 1106. When assalized for fraud.

(S. Thompson v. Williams \[M.\] 40 S. A. 26. A.

recited consideration which does not include the amount of a mortgage the grante

holds on the premises accurately sets forth

the consideration. Id.

(G2. Gage v. Cameron, 212 III. 146, 72 N. E. 204.

(G3. Where the expressed consideration is

one dollar and the payment of certain debts

due from the grantor. Medical College Laboratory v. New York University, 178 N. Y.

oratory v. New York University, 178 N. Y.

(G2. Gage v. Cameron, 212 III. 146, 72 N. E. 204.

(G3. Where the expressed consideration is

one dollar and the payment of certain debts

due from the grantor. Medical College Laboratory v. New York University, 178 N. Y.

(G4.

5 Cur. Law. DEEDS OF CONVEYANCE SS 3. 973

SS 2. _Recordation_'' is not essential as between the parties.

granted at the earliest possible moment."11 All doubts are to be resolved in favor of the grantee."12 The maxim "ejusdem generis" does not apply unless the word "other" is used."13 General words are not restrained by restrictive ones if they do not clearly indicate the intention and designate the grant."14 Terms will not be given effect to create an estate the grantor did not show it was his intention to create."15 The habendum may be used to explain the intention of the granting clause expressed in general terms,"16 or qualify the estate apparently granted,"17 but cannot be used to contradict or cut down the estate granted,"18 and if in conflict must yield."19 A conveyance to one legally incapable of holding really naming a person to act as agent for the grantee in and about said land creates the person, named as agent, a trustee for the grantee."20 A quitclaim deed conveys title free from any equitable right of which the grantee has no notice."21

\_Covenants_19 of special warranty are limited to the estate conveyed."11 A covenant will not be read into a mere representation."14 A grantee cannot be held liable on an exception to a covenant for a mere personal liability of the grantor."15 The covenants cannot be contradicted by parol."16

\_Alternations and interlineations_19 are presumed to have been made prior to execution.15 Immaterial interlineations will' not be considered.21

\_Designation of parties.\_16-Mere descriptive words after the name of the grantee."17 The granting clause prevails over the habendum in case of conflict. Hall v. initial beneficiary. Thom v. Thom \[Xd.\] 61 A. 193. 194. 195. 196. 197. 198. 199. 199.

5 Cur. Law. QEDEDS OF CONVEYANCE SS 3. 973

tee will not operate to diminish the estate conveyed to him,4 nor affect the conveyance to the person named as one to him as an individual.6 As a general rule, children designated by name or otherwise definitely described as individuals take as individuals and not as a class,6 and the fact that real estate can 'be conveyed in trust so as to let in after-born children does not alter the general rule of construction where there is no such provision,7 but if it appears that though named the persons were in the mind of the grantor as a class, the intention will prevail.8 In order that "heirs" may be construed "children," it must clearly and positively appear that it was so used,9 but if the intention to so use it is apparent it will be given that construction.10 Extrinsic evidence is not admissible to show that the term was used in that sense.11 Persons manifestly not intended to be grantees acquire no interest.12 "Heirs at law" construed to mean those in being at the death of the ancestor and not those surviving at the date of the distribution of a trust estate, postponed because of certain beneficiaries.13 A deed to "the estate of E., deceased, his heire and assigns," is a deed to E's estate,14 and is not void for want of a grantee.15 A deed to a husband and wife conveys the property to them as a community.16 A deed intended as a joint gift to husband and wife invests each with an undivided half.17 A deed from husband to wife makes the land her separate property whether or not the deed so specifically declares.18 A deed from husband to wife for life, remainder to her children, inures to the benefit of children by a subsequent marriage.19 Conveyances under an assumed name are valid,29 and the mere fact that a purchaser uses the name of another person as grantee does not work a forfeiture of his title

98 Newburn v. Lucas, 126 Iowa, 85, 101 N. W. 730. 99 See 3 C. L. 1063. See Alteration of Instruments, 5 C. L. 110.

1. In order that evidence of an alteration be admissible it must appear to have been made prior to execution. Gunkel v. Seiberth \[Ky.\] 85 S. W. 733. There is no presumption that after delivery the grantor has access to a deed, so as to make indorsements thereon. McBrayer v. Walker \[Ga.\] 50 S. E. 95.

2 The word "fourth" over the word "quarter." Campbell v. Bates \[Ala.\] 39 So. 144.

3 See 3 C. L. 1064.

4 To "A, trustee," gives him a fee. Tittle Guarantee & Trust Co. v. Fallon, 101 App. Div. 187, 91 N. Y. S. 497.

5 To "E, R. P., vice-president of the National Bank of the Republic." Greenfield v. Stout \[Ga.\] 50 S. E. 111.

6 Stiles v. Cummings \[Ga.\] 50 S. E. 484, and cases cited. A deed in trust for a wife and children conveys nothing to after-born children. Plant v. Plant \[Ga.\] 50 S. E. 961.

7. Plant v. Plant \[Ga.\] 50 S. E. 961. Deed of trust construed and held not to operate to let in after-born children. Id. Unborn children not parties to a deed may take under it. Hall v. Wright \[Ky.\] 87 S. W. 1129.

8 More designation by name is not conclusive that they were dealt with as individuals. Stiles v. Cummings \[Ga.\] 50 S. E. 484. Deed to a wife and children construed to include after-born children. Id.

9 Lamb v. Medsker \[Ind. App.\] 74 N. E. 1012. "Children" does not mean "heirs" within the rule in Shelley's Case unless such nor create an estate in the person named,\[21\] and the fact that he uses such name in conveying the property does not constitute forgery.\[22\] Where father and son have the same name, a deed not designating which is intended is presumed to run to the father.\[23\] The construction of an ambiguous name is for the court.\[24\]

\_Description of property conveyed.\[25\]--\_Lines of a survey named in a deed stand as the boundaries despite irregularities and inequalities produced.\[26\] The construction placed on the description by the parties is the one to be given effect.\[27\] In construring a doubtful description the position of the contracting parties and the circumstances under which they acted will be considered,\[28\] but acts of the parties cannot be received in aid of construction of an ambiguous or indefinite deed.\[29\] Where there are two inconsistent descriptions, the grantee may select the one most favorable to him.\[30\] A description of a definite quantity of land in the corner of a tract will ordinarily be held to mean a parcel containing that quantity according to square measure,\[31\] but not where other parts of the description show that a particular tract or lot rather than a certain quantity or acreage was intended.\[32\] Where land is conveyed with reference to a plat, the plat, its notes and lines, are controlling as to description.\[33\] But such reference does not preclude evidence of where the lines actually fell on the ground.\[34\] The boundaries of lots conveyed by reference to a plat are as a general rule limited to those designated by the plat;\[35\] but the general rule will yield to the clearly shown intention of the parties at variance therewith,\[36\] and the intent which is most certain will prevail over one which is indefinite or left to speculation or conjecture.\[37\] Parol evidence is admissible to fit the description to the premises\[38\] or to explain a latent ambiguity in the description,\[39\]

**21.** Where a father took title in the name Sandford v. Hempstead, 97 App. Div. 163, of his son. Chapman v. Tyson \[Vwash.\] 81 90 N. Y. S. T6.

**22.** 23.\*\* Chapman v. Tyson \[Vwash.\] 81 P.

**24.** Where it is possible to read the name of a grantee as either "Mack" or "Mock" it is for the court to say which was intended. Fenderson v. Missouri Tie & Timber Co., 104 Mo. App. 290, 78 S. W. 819. Evidence insuffinent to show that the name of a corporate grantee was a misnomer only and that another corporation was intended. Cobb v. Bryan \[Tex. Civ. App.\] 88 S. W. 887.

**25.** See 3 C. L. 1064.

**26.** Adams v. Clapp, 99 Me. 169, 58 A.

**1043.** A description referring to a strip of land 26 feet wide to be used for a right of way controls the entire length of the way. Rafterty v. Anderson, 94 N. Y. S. 897.

**27.** Wehb v. Walters \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 376, 87 S. W. 1051. Where a deed contains no description by which to determine the real location of the land conveyed except that it includes a certain house, resort must be had to the acts and conduct of the parties at the time - of and following the transaction to determine whether a certain tract adjoining was included. Carney v. Hennessey, 77 Conn. 577, 60 A. 128.

**28.** Aberormble v, Simmons \[Kan.\] 81 P. 208.

**29.** Kruse v. Koelzer \[Twis.\] 102 N. W. 1072. "A beach lying on the south side of the island at a place called Rockaway" indicates a description of a small tract and not the whole of Hempstead Bay on Long Island.

5 Cur. Law. DEEDS OF CONVEDANCE SS 3. 977

but not to vary or explain the terms.40 Uncertainty in the description of an exception does not affect the validity of the deed.41

_Quantum of estate conveyed.42_--A deed is presumed to pass the greatest estate consistent with the terms employed,43 and, unless a contrary intention appears,44 all of the estate of the grantor is presumed to pass,45 and a recital that the grantor has a certain interest does not limit the conveyance to such interest if he has a greater one;46 but a subsequently acquired interest does not pass47 if the deed purports to convey only the interest the grantor then has.48 A repugnant clause will not limit the estate granted.49 At common law the word "heirs" is necessary to the creation of an estate in fee.50 A confirmatory deed passes no estate not included in the original.51 If a vested remainder be limited on a particular estate

41. Loyd v. Oates \[Ala.\] 38 So. 1022. "Eighty acres heretofore sold to W" is a "Eighty" accepts for "W" is a "Sutrop303, $ 2342, providing that a deed with-sutrop303, $ 2342, providing that a deed with-sutrop303 can be made certain by pard. Id.

01. See 3 C. L. 1065. 43. A deed containing apt words of cen-vearance and full covenants and purporting \[Ky.\] $ 8. W. 1189. A lease to convey all the interest of the grantor with renewable forever, containing a covenant to directions to convey the land in fee and ap-pay rent, is not converted into an conveyance by the proceeds to the payment of certain debts, the balance to be returned to theBroadwell v. Banks, 184 F. 470. Descript-grantor, converses the fee. Thompson v. , tion in a deed of one's interest in an estate Friee, 37 Wash. 394, 79 P. 951. Deed en-held not to include the family allowance structed and held to convey a fee. Kirkman pending Administration. De Leonis v. Walsh, v. Wadsworth, 117 N. C. 453, 49 S. E. 962. 145 CaI. 19, 78 P. 637. 15. Deed held to convey an estate in fee free from trusts or conditions. Langford v. Searv: 1/2 communicative consideration though cry College \[Ard.\] $ 8. W. 944. A deed of grinning the land for certain purposes and minerals passes an estate in fee. McConnell no other shows that the grantor was not v. Pierce, 210 HL. 627, 11 N. E. 622. A deed the donor of a charity and in the absence of reserving a life estate and power in the garantor to recall and destroy it delivered to v. Metz \[Ky.\] $ 85 S. W. 1097. A life tenant a third person to be delivered to the grance who pays off a mortgage and then executes at the grantor's death passes a present interest subject to be defeated. Nuckols v. , life estate and Iien acquired by virtue of Stone \[Ky.\] $ 87 S. W. 789. A description as "Sutrop303, $ 101 N. W. 1056. The grance of land of a certain lot" conveys one-half of the lot \[A\] $ 100 acres. Phillips V. Collinsville Granite Co. \[Ga.\] $ 11 S. E. 666. A description "The property known as the v. J. Martin plantation embarz-" etc., con-vays a portion of such plantation not specief-ically described. Martin v. Urquhart \[Ark.\] $ 82 S. W. 835. 44. A conveyance of a contingent re-mainder to revert to the grantor in case the contingency does not happen \[Marshall v. Sate Deposit & Trust does not divest the grantor of the fee of such remainder. Pinkney v. Weaver, 216 Ill. 185, 74 N. E. 714. Conversance of use of income of land and right to use principal for comfort or pleasure, but not to devise it, so that land should descend at her death as under will of testator who was \[Ark.\] $ 88 S. W. 1020. grantor's source of title, gave life estate and power, not fee to grantee. Hinn v. , Gervaten, 122 Wis. 222, 93 N. W. 388. Deed construed and held to pass only such land as the grantor was in possession of at the time it was executed. Person v. Chamblisa' Adm'r \[Miss.\] $ 88 So. 286. A deed to a city for street purposes does not preclude the grantor from maintaining an action for damages to his abutting property which he had no reason to apprehend from the im-provement of the street. City of Houston v. $ 73, 72 N. E. 346.

5 Curr. L--62.

with a condition that if the remainderman dies without heirs his estate to rest in a third person, such remainderman takes a defeasible fee conditioned on his dying without heirs during the continuance of the particular estate.\[52\] A grantor in an executory conveyance retains the legal title.\[53\] A conveyance for a certain purpose does not carry the right to use the premises for any other purpose,\[54\] but does pass a right of use consistent with the use granted,\[55\] and a conveyance of a certain interest does not pass any other estate\[56\] but is presumed to carry everything essential to the enjoyment of the thing granted.\[57\] A grant of standing timber to be removed within a specified time creates a license.\[58\] The grant of a right of way ordinarily passes only an easement.\[59\] A quitclaim deed passes such interest as the grantor has,\[60\] together. with a subsequently acquired interest included in the estate he purported to convey.\[61\] A conveyance bounded by a road takes the fee to the center thereof,\[92\] but if by one line of the road, the grantor retains the fee.\[53\] The grantee, however, acquires a right to have the street remain open\[54\] but not an easement in an unopened portion of the street upon which adjoining land of the ! 52. Gibson v. Thompson, 26 Ky. L. R. 1085, 81 P. 208. Where a grantor "relinquishes" 83 S. W. 138. An estate to one for life, remainder to another if alive at the death of the life tenant, otherwise over, gives the latter a defeasible fee in remainder conditional on his outliving the life tenant. Colburn v. Givlien \[Ky.\] 85 S. W. 168. 85. Austin v. Lauderdale \[Tex. Civ. App.\] 83 S. W. 413. 84. Provision in a deed for a home for the life tenant's children construed to mean an abode merely and not support. Stiles v. Cummings \[Ga.\] 85 S. E. 484; Reclamation Dist. No. 551 v. Van Loben Sels, 145 Cal. 181, 78 P. 638. 55. A grant of timber to be used in constructing a railroad authorizes the use of timber to construct a tramway and chute where a railway is impracticable. Duncan v. American Standard Asphalt Co., 26 Ky. L. R. 1067, 83 S. W. 124. 56. A deed of "bridge and masonry" does not pass title to land on which the abutments rest. Nicolai v. Baltimore \[Md.\] 60 A. 627. Where a grant of a right of way excepts a certain kind of timber from what might be used in the construction of the railroad stub timber out on the right of way cannot be used. Duncan v. American Standard Asphalt Co., 26 Ky. L. R. 1067, 83 S. W. 124. 57. A grant of a right of way. Atchison, Topeka & Santa Fe R. Co. v. Jones, 110 Ill. App. 626. A conveyance of mineral rights with authority to use timber authorizes the cutting of timber to build a platform for a crusher and a millhouse. Duncan v. American Standard Asphalt Co., 26 Ky. L. R. 1067, 83 S. W. 124. 58. An instrument conveying all the timber and logs suitable to be manufactured into cross ties, the right to remove such timber to expire in 12 months, conveys only a license. Johnson v. Tratt \[Ga.\] 50 S. E. 135. Where an instrument conveying standing timber and a license to remove it also provided for a reverter of such timber as was not removed within the period prescribed, "timber" does not mean that cut. Id. 59. Only the interest for which the land is to be used with a reverter to the abutting owner. Aberrombie v. Simmons \[Kan.\] grantor abuts.\[95\] A deed will pass all the estate which the granting clause purports to convey and not merely what the grantor meant to convey,\[96\] also including all appartenant rights,\[97\] fixtures,\[98\] and unnatured crops,\[99\] but not a mere chose in action due the grantor.\[10\] Under the rule in Shelley's case, a deed to one for life, remainder to his heirs, creates a fee in the first taker,\[71\] otherwise, however, where the rule has been abolished.\[72\] In order to warrant the application of this rule, the word "heirs" must be used.\[73\] It is generally provided by statute that deeds creating estates tail pass a fee to the first taker.\[74\] An assumption of liens creates a charge on the land.\[75\] Parol evidence is admissible to identify the subject-matter of an assumption clause.\[99\] Parol evidence is admissible to show a holding in trust under a deed in fee simple.\[99\]

_A reservation\[98\]_ is limited to some part of the estate which would otherwise pass,\[99\] and an exception is a part excepted from the general terms of that which is granted.\[99\] The terms are often used interchangeably,\[91\] and the mere fact that what is excepted is mentioned as reserved will not defeat its operation as an exception.\[99\] A reservation contained in the habendum is as enforceable as if set out in the granting clause.\[99\] Both are construed strictly\[99\] and most strongly against the authorities. Wickham v. Twarddell, 25 Pa. \[the rule in Shelley's Case. Wilson v. Rusk Super. Ct. 188. It is an appartenant distinct from the public right of passage. Id. \[Iowa\] 103 N. W. 204. A deed to one and her 65. A deed of land abutting on a street opened fifty feet wide but plotted sixty gives the grante a fee to the ten feet but no \[Ala.\] 38 S0. 638. State easement in the corresponding ten feet of adjoining land of the grantor. Fitzell v. \[In Shelley's Case. Marsh v. Griffin, 186 N. C. 66. A deed of land with all the privileges and appartenances "meaning to convey only a right of way to take lime from the premises" conveys a fee with a reserved right to take lime. Shepherd Co. v. Shibles \[Me.\] 61 A. 700. 67. Dramin leading across adjoining land owned by the grantor. Hess v. Kenney \[N. J. Eq. 61 A. 464. A reservation of a heirable interest is an appartenant to the land and passes by a conveyance of it. Restrictive covomant for the benefit of heirs. Hensley v. Marlborough House Co. \[N. J. Err. & App.\] 61 A. 458. An easement apparten to a water power plant passes with a grant of the dominant estate without special mention. Swetland v. Grants Pass New Water, Light & Power Co. \[Or.\] 79 P. 387.

\*\*68. Building material for a partially constructed building, lying on the lot conveyed and an adjoining one, passes with a conveyance of the lot on which the building is being erected. Byr v. Werner \[Mich.\] 101 X. W. 555. Moore, J. dissenting. 69. Newburn v. Lucas, 126 Iowa, 85, 101 N. W. 78. Crops raised on the land by the grantor after executing a voluntary deed belong to the grantee. Chancellor v. Teel \[Ala.\] 37 S6. 655. 70. Demand against a traction company for the proportionate cost of paving a street which by franchise it was required to pay abutting property owners. Dramville St. R. & Light Co. v. Mater, 116 Ill. App. 519.

**71.** Doyle v. Andis \[Iowa\] 102 N. W. 177. The rule in Shelley's Case is part of the common law of Iowa. Id. Sherwin and Weaver dissenting. A deed to A for life then to her heirs creates a fee in A under 980.

DEEDS OF CONVEVANCE SS 3.

5 Cur. Law.

grantor," but if valid include, as an incident, whatever is necessary to enable the grantor to enjoy it." In construing a reservation, the surrounding circumstances will be considered." Parol evidence is admissible to identify the thing excepted or reserved." In order to render exceptions a dedication to public use, it is not necessary that they should be expressly excepted for such purpose."

_Conditions and restrictions._"Conditions subsequent" are not favored and must be created by express terms," and if it is doubtful whether terms used im 5 Cur. Law. DEEDS OF CONVEDANCE SS 3. 981

port a covenant or condition they will be construed as creating a covenant.98 Where a clause of reverter is found, undertakings of the grantee will be construed as conditions," otherwise as covenants.98 A condition against alienation without the grantor's consent and for the payment to the grantor of a monthly stipend during his life\*\* or against the sale of intoxicants on the premises97 is valid. The obligation in a deed on condition may be assignable.98 Conditions are deemed broken only when the terms are substantially violated.99 An entry by the grantor on breach of a condition subsequent is necessary in order to defeat the estate of the grantee.1 Only the grantor or those in privity of blood with him can enter for breach of condition subsequent,2 unless the estate limited is an easement.3 A right to enforce forfeiture may be waived,4 but after a reverter because of a breach, title cannot be revived by subsequent compliance with the conditions.3

\_Restrictions_8 are strictly construed7 and all presumptions resolved in favor of a free use of the property.8

\_Extinguishment of rights.9--\_Title is not divested by the return10 or loss or failure to record a deed,11 nor will the surrender or destruction of it operate to re-invest title in the grantor.12

93. So as to avoid forfeiture. Minard v. Failure to perform a condition subsequent entilties the grantor to re-enter for the purpose of reversing himself with title. Id. Co., 139 F. 60. 94. 95. 97. 98. 99. 99.

DEFAULTSULTS 1. 5 Cur. Law.

DEFAULTS.${}^{13}$

$ 1. Elements and India of Defaults (83. Opening Defaults (84). Procedure (982). Appeal (987). $ 2. Procedure on Default; Taking Jang- 8 4. Operation and Effect of Default and ment (983). Proof of Damages (987).

SS 1. _Elements and indicia of defaults.${}^{14}$_--Strictly speaking, a default only lies where the defendant has failed to enter an appearance in the case,${}^{15}$ but the phrase is now often used, generally as a result of statutory enactments, as including failure to plead${}^{16}$ or failure to appear at the trial.${}^{17}$ There must be valid process, served${}^{18}$ and returned${}^{19}$ in a legal manner; but the return being irregular or incorrect, it may, in certain cases, be amended${}^{20}$ or contradicted.${}^{21}$ The process must designate the defendant in such manner that he may have notice that the action is against him;${}^{22}$ but the service being personal, the weight of American authority is to the effect that a defendant sued in the wrong name is bound by a default judgment;${}^{23}$ but a defect in this regard may be waived.${}^{24}$ It is essential that plain-tiff's pleadings be filed in time${}^{25}$ and authorize a right of recovery.${}^{26}$ No answer

13. See Confession of Judgment, 5 C. L. 608, and Judgments. 4 C. L. 287. Taking bins ina Causality Co. v. Thompson (Ga.) 51 S. E. as confessed in equity, see Fletcher Eq. Pl. & 314. Under Code 1887, $ 5, cl. 8, a notice of judgment served on the 21st and returned in the 26th of the month is not returned within five days as required by $ 3211, and judgment by default based thereon is invalid. Swift & Co. v. Wood, 103 Va. 494, 49

$ 2. E. 643. Sunday is to be included in such five days. Id. 20. King v. Davis, 137 F. 198, 20. King v. Davis, 137 F. 198. But see

21. In Illinois, while an officer's return cannot be contradicted so as to defeat jurisdiction, yet it may be done to excuse a default. Cooke v. Hannings, 113 Ill. App. 501. 22. Naming plaintiff by a name other than his own, and which was not a customary designation of him, a default judgment re-defined thereon is a nullity. Durst v. Ernst, default 6 Enc. Pl. & Pr. 59. As said by one court: "There is a plain difference in meaning between default and absence, default signifying that there has not been an appearance at any stage of the action by the party in default, while absence means that the party was not present at a particular time, naming it." Covant v. Haskins, 39 Kan. 574. "There is, however, no material distinction between a judgment byhill dict and a judgment by default in their effect, operation and the principles applicable there. to. * * While the rendition of a judgment by default is technically error after the appearance of the defendant, it will not suffice to authorize a reversal of the judgment."

6 Enc. Pl. & Pr. 60. See post, this section.

17. A case being retired from the docket, judgment cannot be entered in the absence of notice and an opportunity to be heard. King v. Davis, 137 F. 222. 18. Cooke v. Haungs, 113 Ill. App. 501. 22. New York: Must be personal. Code Civ. Proc. $ 426, subd. 4. O'Connell v. Gallagher, 93 N. Y. S. 843. Afflavits held to show no personal service. Id. The discovery of a summons and its delivery to defendant by his employee is not such personal service. Id. does not include a default where plain 5 Cur. Law. DEFAULTS SS 2.

being filed, a default may be entered,27 but the full time to plead,28 including extensions,29 must have expired. When necessary,80 failure to file a pleading after appearance may authorize what is sometimes termed a default,21 but a defect in this regard may be waived by going to trial.22 In Illinois so long as defendant's answer is on file, he cannot be deemed in default.28

SS 2. \_Procedure on default; taking judgment.34--Before a case can be considered in default the appearance docket must be called, and the entry "in default" made.25 Where on the day such entry was made the judge defaced it by passing his pen through the entry, it, in the absence of proof to the contrary, will be treated as the correction of an inadvertence, and not as an "in default" judgment.36 Under the statutes of some states it is unnecessary for plaintiff to make out his case by proof;37 but in equity he is not entitled to judgment for default of answer, unless he establish his right to the relief sought to the satisfaction of the chancellor.38 Under the present Virginia statutes no rule to plead is required in ejectment before a default judgment can be entered.39 The relief granted by the judgment must not exceed that demanded in the complaint,40 and in some states must not include relief not specified in or clearly contemplated by the notice contained in the summons.41 The judgment is not rendered void by failure to file a paper not a part of the judg-

tiff's statement of claim is insufficent on its

ment cannot be entered against plaintiff face. United States v. Bell \[C. C. A.\] 135

on refusal to plead further. Madden v. Anderson \[Ind. T.\] 82 S. W. 904. \[This is

27. Under Code, SS 385, 386, in an action

not strictly a "default"; see note, ante, this

under Laws 1893, p. 37, _w. 6_, to determine

conflicting claims to real estate, failure of

28. Held to waive failure to file an an-

defendant to answer at the return term en-

tiles plaintiff to a final judgment by default

102 N. W. 817.

in accordance with the facts stated in the

33. Keeptor v. Corcoran, 112 Ill. App. 320.

01. See 3 C. L. 1070.

01. Albany Pine Products Co. v. Hercules

01. Co. \[Ga.\] 51 S. E. 297. No entry of de

fault being made, the court may in Its direction, at a subsequent term, permit a plea

be entered before such date. Averback v. Belyvey \[Ga.\] 49 S. E. 748.

29. Where answer was served before or

der vacating extension was signed and enter-

ed. held, no default should he taken. De

Palland v. Flynn, 98 N. Y. 8. 678.

30. Where, after the overturning of a de-

murrer to the complaint, there is no reason

for entering a default other than that de-

fendant did not fle an answer as provided by the statute of 1872, such an order is unnecessary and improper. Hourigan v. Norwich, 77 Conn. 358, 59 A. 487.

31. Under court rule 8 (71 N. H. 676), held

that, where defendant failed to file a plea

up to the day of trial, more than 90 days

after the entry of the action, its failure to

plead specially did not amount to a plea cf

the general issue, at least until the trial had

actually begun, and hence defendant's

at the same time, but a

tourney having withdrawn on the court's de-

nial of a continuance, a, default was properly

entered. Hutchinson v. Manchester St. R. Co. \[N. H.\] 60 A. 1011. An interpleader vol

untarily appearing and accepting service of

a copy of the supplemental complaint, but

failing to plead thereo within six days, and

failing to obtain an extension of time to

plead, a default may be entered again him. Greenblatt v. Mendelsohn, 92 N. Y. S. 963.

Under Mansl. Dig. & 5043, the answer failing to set up a set-off or counterclaim, judg-

102 N. W. 817.

117. Atteminent of claim is insufficent on its

ment cannot be entered against plaintiff

face. United States v. Bell \[C. C. A.\] 135

on refusal to plead further. Madden v. Anderson \[Ind. T.\] 82 S. W. 904. \[This is

27. Under Code, SS 385, 386, in an action

not strictly a "default"; see note, ante, this

under Laws 1893, p. 37, _w. 6_, to determine

conditioning claims to real estate, failure of

32. Held to waive failure to file an an

defendant to answer at the return term en-

tiles plaintiff to a final judgment by default

102 N. W. 817.

33. Knopf v. Corcoran, 112 Ill. App. 320.

01. See 3 C. L. 1070.

01. Albany Pine Products Co. v. Hercules

01. Co. \[Ga.\] 51 S. E. 297. No entry of de-

d-
d- ment roll."In most states the contents of the judgment roll is declared by statute." The amount of damages being certain, the plaintiff is entitled to a final judgment," and in such case a judgment by default and inquiry being entered, the mistake may be corrected by the court at the next term."

In Virginia an office judgment on default does not become final until there is either a judgment of the court at the following term confirming it, or until the term, or possibly the 15th day thereof, has passed without an order setting it aside;" but an office judgment in ejtement cannot become final without intervention of the court or jury." There being no statement of damages in ejtement, the court may at any term following the entry of the office judgment render final judgment without setting the cause for inquiry." In West Virginia an office judgment in an action on contract, where there is no order for inquiry of damages, becomes final on the last day of the next term of a circuit court after the entry of such office judgment."

SS 3. Opening defaults. Grounds."The court has the inherent power," in the exercise of a judicial discretion," to set aside a default and allow a defense, and this power exists though a transcript be filed in a higher court for the purpose of creating a lien," and though an appellate court has remanded the case with permission to plaintiff to move for judgment." Statutes conferring the power must

42. Arfomen: A default judgment is not void on default may be of persuasive force in appbecause of failure to comply with Rev. St. 1901, SS 1436, providing that a statement of the evidence shall be filed as part of the record, SS 1443, not enumerating such paper as among those constituting the judgment roll. Steinfeld v. Montijo \[Arls.\] $0 P. 205. 43. California: Under Code Civ. Proc. 5 670, a certificate of the secretary of stale as to service on him for a corporation does not constitute part of the judgment roll. Villiev V. Benedict Co., 145 Cal., 601, P 270. 44. In an action to recover premiums paid on a policy wrongfully canceled, the complaint being verified and the 'amount plaintiff is entitled to recover fixed, he may, under Code, SS 385, subd. 1, have a final judgment by default. Scott v. Mutual Reserve Fund Life Ass'n, 137 N. C. 515, 60 S. E. 221. 45. Scott v. Mutual Reserve Fund Life Ass'n, 137 N. C. 615, 60 S. E. 221. 46. King v. Davis, 137 F. 198. 47. Virginia practice. King v. Davis, 137 F. 198. 198. Where, in ejtement, there was no necessity of an inquiry, and the court entered an order after the case was triple for final judgment, reciting that defendant's time to plead having explored, the cause was set down for inquiry, such rectil was equivalent to an order making the office judgment final. Id. 48. Va. Code 1904, p. 1412, considered. King v. Davis, 137 F. 198. In such a case the entry. of an order setting the case for inquiry held a mere irregularity. Id. 49. Code 1899, e. 126, SS 46. Bradley v. Long \[V. Va.\] $0 S. E. 746. The fact that defendant at such term appears and suggests the nonresidence of the plaintiff and takes a rule against him for security for costs, but does not demur, plead or otherwise make defense to the action, does not prevent such judgment from becoming final. Id. 50. See SS 3 C. L. 1071. NOTE. Seope of section: The opening of judgments for fraud, accident, mistake, etc., should be consulted. See judgments, 4 C. L. 287. The fact that a judgment was taken by the court, but does not return to the court. 49. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 40. 41. 42. 44. 46. 47. 48. 49. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 42. 44. 47. 49. 42. 45. 46. 48. 49. 40. 41. 42. 44. 47. 48. 49. 42. 45. 47. 49. 43. 44. 48. 49. 44. 45. 46. 47. 48. 49. 49. 40. 41. 42. 44. 49. 41. 42. 44. 45. 46. 47. 48. 49. 41. 42. 44. 49. 42. 45. 46. 47. 48. 49. 49. 40. 41. 42. 44. 49. 43. 44. 45. 46. 47. 48. 49. 49. 41. 42. 44. 49. 45. 47. 49. 48. 49. 49. 41. 42. 44. 49. 42. 45. 46. 47. 49. 48. 49. 49. 49. 41. 42. 44. 49. 43. 44. 45. 46 5 Cur. Law. DEFAULTS SS 3. 985

be liberally construed,"5 and the exercise of the discretion of the court ought to tend in a reasonable degree to secure determination of rights of parties upon a trial.56 Defendant must show a clear case of diligence,87 and, unless the complaint be defective,"5 a meritorious defense90 unknown or unavailable at the time of the trial,90 and that he was prevented from making such defense by fraud, accident," surprise," mistake of fact, as distinguished from one of law,"5 or the acts of the opposite party,"94 wholly unmixed with any unexcusable68 fault or negligence,"6 or laches67 on his

the defect being merely in the mode of state-ment. Kyler v. Christman, 25 Pa. Super. Ct. 74. 55. Mende County Bank v. Decker \[S. D.\] 102 N. W. 587. 56. 56. 57. 58. 59. 58. 59. 58. 59.

own part. A motion for leave to open a default, so far as grounded on accident, mistake or misfortune, presents a question of fact for the decision of the trial court."

Negligence of an attorney is the negligence of his client," and defendant is not entitled to rely on the clerk of court or any one else to inform him when the case was coming on for determination."

_Procedure._"--A motion to open a default is interlocutory in its nature" and can never result in a decision of the issues involved in the controversy."

Statutory requirements must be complied with."

In New York the affladavit on which an order to show cause why a default should not be opened is granted need not state the time appointed for holding the next trial term."

Cases dealing with the sufficiency of afflavits are shown in the notes."

An answer filed after default has been entered will be stricken from the files,"

the proper practice being to move to set aside the default, tendering the answer with the motion;"

but one is not in default for failing to file an answer while the motion is under consideration by the judge."

It is sufficient if filed immediately upon the grant of the order of vacation."

An order opening a default ordering that an answer filed with the motion papers on a previous date stand as duly served on said date, operates, in the absence of a showing of prejudice or exception to the order, to make the service of the answer effective, as of the date on which it was made."

As a condition of opening a default and vacating a fault judgment was entered, held, judgment

a bar to an action to have the judgment set would not be opened. McClure v. Clark

aside for fraud. Id.

\[Minn.\] 101 N. W. 951. Where, after post-

74. Indian Territory: Under Mansf. Dig.

ponement on account of illness of counsel,

83 4957, 3909, 3911, 2914, a default judgment

defendant abandoned his case, held a de-

being rendered against an infant, personal-

fault would not be set aside in the absence of

served, without the appointment of a

of any excuse. Brown v. Huber, 92 N. Y.

guardian ad litem, the record being silent

S. 940. Where both defendant and his attorney knew date of trial, but intentionally

to restrain the levy of an execution without abandoned defense, held, default would not

taking steps to vacate and modify the judge-

be opened. Peterson v. Crosier \[Utah\] 81

P. 880. Plaintiff is not entitled as a matter

82 N. Y. 918.

of right to have a default opened, where,

75. Rule 37 of the general rules of prac-

after, the case has been twice passed on

tice considered. Sweeney v. O'Dwyer, 45

the plea that counsel who was to try the

Misc. 43, 90 N. Y. S. 806.

case had other engagements, further ad-

76. An amfavivi on motion to set aside a

journment was asked on the ground that the

default that defendant employed an attorney,

guardlan ad litem was to try the case and

had a conflicting engagement, which request

ver v. Weber, 110 III. App. 5. Where the

was refused. Cohen v. Meryash, 93 N. Y. S. 825.

only witnesses to an accident other than

plaintiff are nonresidents and absent from

\*\*@7. The mere fact that a defendant not

personally served with summons knows of

the action and takes no steps to prevent

(fault judgment, may, by its agent, make affl-

proceedings therein does not constitute

laches, barring his right to have a default

absent witnesses. El Paso & S. W. R. Co.

judgment set aside. O'Connell v. Gallagher,

v. Kelley \[Tex.\] 87 S. W. 660, rpg. 83 N. Y. S. 643. In New York personal serv-

ve, 855. Where an afflavit to have the de-

ice is essential, see ante, & 1.

**@8. Hutchinson v. Manchester St. R. Co.**

St. S 488, 8091, failed to allege that defendant had no actual knowledge of the

**@9. Carr v. First Nat. Bank \[Ind. App.\]**

78 N. E. 947; Peterson v. Crosier \[Utah\] 81

P. 860; Burrell v. Anchor Fire Ins. Co., 3

Ohio N. P. (N. S.) 321. The negligent fall-

ure of an attorney to interpose a defense is

imputed to his client. Foster v. Weber, 110

III. App. 5.

\*\*70. Burrell v. Anchor Fire Ins. Co., 3

Ohio N. P. (N. S.) 321.\*\*

**71. See 3 C. L. 1072.**

**72. Everett v. Everett, 180 N. Y. 452, 73 N. E. 231.**

**73. Everett v. Everett. 180 N. Y. 452, 73 N. N. E. 231.**

Denial of motion to open held not

**@1.**

**@2.**

**@3.**

**@4.**

**@5.**

**@6.**

**@7.**

**@8.**

**@8.** judgment, defendant should be required to pay all costs of the action up to the date of granting the order, including a trial fee,\[82\] and an order opening a default without condition will be considered as made on the theory that the party was entitled to it as a matter of right.\[83\]

_Appeal.\[84\]_--A default judgment is ordinarily not appealable,\[85\] unless it has been attacked in such manner as to relieve defendant from the imputation of consent.\[86\] Appeal lies from an order refusing to vacate such judgment,\[87\] but not from a refusal to vacate a mere order of default.\[88\] Appellate court will not interfere with ruling of trial court unless an abuse of discretion be clearly shown.\[89\] In the absence of proof all things will be presumed in favor of the trial court's action.\[90\] Where an answer in support of a motion to set aside a default is in fact filed before the action of the court upon the motion, it will be presumed that the court in granting the motion examined the answer and found it sufficient.\[91\]

## 4 Operation and effect of default and proof of damages.\[82\]

A default only admits the facts stated in the declaration to be true; it does not admit that the facts, in law, entitle the plaintiff to recover.\[83\] The right to an inquest for damages\[84\] and the procedure thereon\[95\] are governed by the statutes of the various states. The object of a writ of inquiry is primarily to aid the court in the assessment of damages.\[96\] The writ is issued by the court, and it appoints the sheriff as its representability.\[97\]

## 5 Microclaim and effect of default and proof of damages.\[82\]

A default only admits the facts stated in the declaration to be true; it does not admit that the facts, in law, entitle the plaintiff to recover.\[83\] The right to an inquest for damages\[84\] and the procedure thereon\[95\] are governed by the statutes of the various states. The object of a writ of inquiry is primarily to aid the court in the assessment of damages.\[96\] The writ is issued by the court, and it appoints the sheriff as its representability.\[97\]

## 6 Microclaim and effect of default and proof of damages.\[82\]

A default is entitled on asking it, to have his damages assessed by a jury. The statute is imperative and not open to construction. Blizzard v. EBkens, 105 Ill. App. 117.

New York: Defendant making default in an action for injury to property, the damages must be ascertained by writ of inquiry. Code Civ. Proc. & 1215. Fullerton v. Young, 94 N. Y. S. 511. A conversion to defendant's own use of money collected by him as agent is an injury to property. Id.

Connection: Under Gen. St. 1902, & 742, In an action against a city for wrong-full death, defendant cannot invoke the left-low-seventual rule as a defense, it not having given the notice required by the statute. Hourigan v. Norwich, 77 Conn. 358, 59 A. 497.

Rhode Island: Defendant having default-ed after answer made, he is not entitled to have the damages assessed by the judge of the common-pleas division in chambers under Gen. Laws 1896, c. 238, & 8, but it is with-in-the discretion of the trial judge to then assess the damages with or without a jury, or continue the case, or cause the case to be placed on the motion calendar to be there disposed of as authorized by chapter 224.

## 7 Microclaim and effect of default.\[83\]

A default is entitled on asking it, to have his damages assessed by a jury. The statute is imperative and not open to construction. Blizzard v. EBkens, 105 Ill. App. 117.

New York: Defendant making default in an action for injury to property, the damages must be ascertained by writ of inquiry. Code Civ. Proc. & 1215. Fullerton v. Young, 94 N. Y. S. 511. A conversion to defendant's own use of money collected by him as agent is an injury to property. Id.

Connection: Under Gen. St. 1902, & 742, In an action against a city for wrong-full death, defendant cannot invoke the left-low-seventual rule as a defense, it not having given the notice required by the statute. Hourigan v. Norwich, 77 Conn. 358, 59 A. 497.

Rhode Island: Defendant having default-ed after answer made, he is not entitled to have the damages assessed by the judge of the common-pleas division in chambers under Gen. Laws 1896, c. 238, & 8, but it is with-in-the discretion of the trial judge to then assess the damages with or without a jury, or continue the case, or cause the case to be placed on the motion calendar to be there disposed of as authorized by chapter 224.

## 8 King v. Rhode Island Co. \[R. I.\] 60 A. 837.

Virginia: Under Virginia Code 1904, p. 1412, it is proper for the clerk in entering confirmation of the common order on default to award a writ of inquiry, though no statement of damages has been filed. King v. Davis, 137 F. 198.

West Virginia: A clerk entering an office judgment has no authority to add thereto an order for inquiry of damages. Such order is void, and knowledge of its invalidity is imputed to the defendant. Bradley v. Long \[W. Va.\] 50 S. E. 746.

ative or alter ego to execute its mandate and to preside if the judge does not act himself; the execution of the writ may, however, be had in court before a jury drawn from the regular panel, and with the judge presiding instead of the sheriff." Defendant having entered an appearance, he is entitled to notice of an application for assessment of damages." Upon an inquest for damages the jury should be instructed solely with respect to the assessment of plaintiff's damages." In Rhode Island the excessiveness of damages in a default case cannot be reviewed by the appellate division."

DEFINITE PLEADING; DEL CREEDE AGENCT; DEMAND; DEMURAGE; DEMURERS; DEMURERS; DEMURERS

TO EVIDENCE; DEPANTUE, see latest topical Index.

DEPOSITIONS.'

SS 1. Occasion or Necessity; Right to TREE (991). (985). $ 5. Suppression and Objections Before Trial (992). $ 3. Taking the Testimony or Evidence $ 6. Use as Evidence (993).

Adduced (990).

SS 1. Occasion or necessity; right to take.' The right to take testimony by deposition is purely of statutory origin,3 and the Federal conformity act4 merely adopts the state procedure and does not enlarge the grounds for taking depositions provided by the Federal statutes.6 It is ordinarily allowed where a document6 or the testimony of a witness beyond the jurisdiction, or who is about to leave the jurisdiction,7 or under some statutes, a witness who resides at a great distance from the place of trial or is aged and infirm,8 is necessary.9 While examination of the adverse party before suit by way of discovery is allowed in some states,10 depositions proper can be

6. Elsey v. International R. Co., 93 App. Div. 115, 87 N. Y. S. 28. 97. Action for personal injuries. Elsey v. International R. Co., 93 App. Div. 115, 87, N. Y. S. 28. 98. Chicago & M. Elec. R. Co. v. Krerem-pel, 116 Ill. App. 253. 99. Chicago & M. Elec. R. Co. v. Krerem-pel, 116 Ill. App. 253. It is improper to instruct them to return a verdict of guilty, and a verdict of guilty may be disregarded as surplusage. Id. 100. King v. Rhode Island Co. \[R. J\] 60 A. 837. 1. This topic includes the various proceedings by which evidence of witnesses is taken before trial to be used in the determination of issues threat. It excludes the equitable remedy of discovery and the various statutory proceedings designed to force disclosure from an opponent or unwilling person of facts in his knowledge or to procure an inspection of his books, papers or person. See Discovery and Inspection, 3 C. L. 1106, and post, 5 C. L. 2, 3. See 3 C. L. 1074. 4. An act of Maron 9th, 1892, providing that depositions in the Federal courts may be taken in the mode prescribed by the laws of the state in which the courts convene. Comp. St. of 1901, p. 664. Texas & P. R. Co. v. Coutourie \[C. C. A.\] 135 F. 468; Carrara Paint Agency Co. v. Carrara Paint Co., 137 F. 319. A rule of the circuit court for the eastern district of Pennsylvania provides taken only after suit.11 Contrary to the general rule, they are allowed in some states before issue12 and after the trial is begun.13

usually involve a statement of the witness' evidence,\[28\] and averment of facts showing that the deposition is necessary,\[29\] that the proposed evidence is relevant and material,\[30\] and within the knowledge of the proposed witness,\[31\] and that applicant intends to use the testimony so obtained on the trial.\[22\] In some states, where a deposition is taken on interrogatories, the proposed interrogatories, which must be properly addressed to the witness,\[33\] are served with the application for commission,\[34\] and at the hearing on such application the interrogatories are settled. In other jurisdictions the practice is to serve interrogatories with the notice of hearing.\[35\] On a showing of distinct necessity, oral examination by a commissioner\[38\] or the privilege of oral cross-examination\[37\] may be allowed.

The party applying for the deposition may be required to deposit a sufficient sum to cover the expenses and allowance to the opposing attorney in attending the examination by open commission.\[38\] Unless the number of depositions appears unreasonable and unnecessary, it will not be limited in advance.\[39\]

**SS 3.**_Taking the testimony or evidence adduced. Officers authorized to take.\[40\]_--Under most statutes a notary public is authorized to take depositions,\[41\] but at common law he had no such authority.\[42\] When a commission is issued to two commissioners to take the depositions severally, either one may act without the other.\[43\]_Notice of hearing and attendance of witness.\[44\]_--Notice of hearing as prescribed by statute\[45\] with a copy of the interrogatories, if any,\[46\] must be given, and the notice

satisfy the statute. Fox v. Peacock, 97 App. Corrara Paint Agency Co. v. Carrara Paint Div. 500, 90 N. Y. S. 137. Corrara Paint Agency Co., 137 F. 319. Interrogatories were presumed to have been filed before the date statute requires its sufficient. Doll v. Smith, 43 Misc. 417, 89 N. Y. S. 831. 28, Chan, Pr. Rule 60, Ala. Code 1896, p. 1213. Edwards v. Edwards \[Ala.\] 39 So. 82. 29. Statement of conclusion insufficient. Porgoli v. Lyman, 92 N. Y. S. 788. 30, Bell v. Clarke, 45 Misc. 272, 92 N. Y. S. 163. When it appears from counter affda-vtics that the officers of the corporation whose depositions are sought are ignorant of the facts attempted to be proved, an application for their deposition will be denied. Mercantile Trust Co. v. Calvet-Rognial, 46 Misc. 16, 93 N. Y. S. 238. If it appears under Code Civ. Proc. 878, subd. 7, that the officer had no personal knowledge of what was done and had no connection with the corporation, he cannot be examined. In re-Thompson, 95 App. Div. 542, 89 N. Y. S. 41. Calvet-Rognial v. Mercantile Trust Co., 46 Misc. 20, 93 N. Y. S. 241. 28. In order to obtain an order for the examination of a witness before trial, the moving papers must show that it is intended to use the evidence upon the trial. Whitney v. Rudd, 100 App. Div. 492, 91 N. Y. S. 429. The application need not expressly state that deposition will be read on the trial. Jacobs v. Mexican Sugar Refining Co., 45 Misc. 56, 90 N. Y. S. 824. The statement that the examination "is desired for the purpose of using the testimony upon the said trial" was held to satisfy the statute. McCormick v. Coddington, 98 App. Div. 13, 90 N. Y. S. 218. 33. Edwards v. Edwards \[Ala.\] 39 So. 82. 34. Under Hurd's Rev. St. Ill. 1903, 938. 35. 36. 37. 38. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 48. 49. 41. 43. 45. 47. 48. 49. 42. 43. 48. 49. 44. 45. 46. 47. 48. 49. 48. 49. 40. 41. 42. 44. 41. 45. 46. 47. 48. 49. 41. 42. 45. 48. 49. 42. 43. 44. 46. 47. 48. 49. 45. 48. 49. 46. 47. 49. 48. 49. 49. 40. 41. 43. 41. 44. 48. 49. 41. 42. 45. 46. 47. 48. 49. 48. 49. 49. 40. 41. 44. 42. 45. 49. 41. 42. 46. 47. 48. 49. 42. 43. 44. 45. 46. 47. 48. 49. 48. 49. 49. 40. 41. 44. 49. 42 5 Cur. Law. DEPOSITIONS SS 4. is bad if it misstate the time*7 or place*8 of hearing, but there is no necessity of giving notice of the nature of the evidence that is to be taken.\*9 Failure to give notice cannot be availed of by one who voluntarily appears,*6 or by a co-party not affected.*51 Subpoena*52 and subpoena duces tecum*8 are usually allowed to compel attendance and production of documents.

_Proceedings at hearing._\*54--The applicant is under no obligation to examine the witness, and without examination by him the opposing counsel has no right to proceed to cross-examination.\*55 If the deposition is taken on interrogatories, oral examination cannot be had.\*6 If it is oral, the parties propound such questions as they choose and it is generally provided that questions and answers be taken down by a disinterested person.\*7 Witnesses must answer all questions which are material and do not come in conflict with their constitutional privileges,\*8 but not impertinent and illegal questions,\*8 or those calling for disclosure of trade secrets.\*60 A notary public has the authority to require a witness to answer all legal questions properly asked.\*61

**SS 4.**_Returning and filing._\*62--It is usually required that the officer taking the deposition return it properly sealed and indorsed,\*8 by mail or other authorized conveyance,\*64 within a specified time,\*85 and the deposition must be received, opened, and filed by the clerk without passing into the hands of private persons.\*66

ing the deposition in twenty-four hours.

Sec. 10,136, Comp. Laws of Mich. 1897. McCall Co. v. Jacobson \[Mich.\] 102 N. W. 869. Under a statute requiring the service of a copy of the order not more than twenty

non less than six days before examination

unless the afflawit shows circumstances

making a different time necessary, four days

are not sufficient. Sec. 873 of Code of Civil

Procedure. Osborn v. Barber, 93 N. Y. S. 833.

46. Ala. Code 1896, **3181**, 732, 733. Edwards v. Edwards \[Ala.\] 39 So. 82. In Texts as the clerk of the district court who takes the deposition need not certify the copy of the notice and interrogatories served on the

adverse party. Texas Rev. St. 1895, Art. 2274. El Paso & S. W. R. Co. v. Vizard

\[Tex. Clv. App.\] 13 Tex. Ct. Rep. 413, 88

8. W. 457. Bauer v. State, 144 Cal. 740, 78 P. 280.

1. Indiana Baptist Pub. Co. v. Ayer, 34

Ind. App. 284, 72 N. E. 151.

49. Conn. Statutes, $ 679, provides for reasonable notice to adverse party. McChelemy v. McPhelemy \[Conn.\] 61 A. 477.

01. Knickerbocker Ice Co. v. Gray \[Ind.\] 50 R. 869. See 28, art. 36, of the Code of

Public Gen. Laws of 1888 dispenses with

notice under such circumstances. Real Es-

tate Trust Co. v. Union Trust Co. \[M.d.\] 61 A. 228.

51. When testimony affects only the party

who is served with notice, failure to serve

other parties to the action is not error.

Standard Oil Co. v. Doyle, 26 Ky. L. R.

544, 82 S. W. 271. When one defend is

subpoenaed to give his deposition in an action pending in another state, be cannot have

the subpoena set aside because the other

defendants were not notified. In Fe Shaw-

mut Min. Co., 94 App. Div. 156, 87 N. Y. S. 805.

1059. See 3 C. L. 1076.

0001. See 3 C. L. 1076.

0001. A decelst of the U. S. circuit court when

by private conveyance, the person by whom

## 5 Suppression and objections before trial

An objection or motion to suppress before trial as ordinarily allowed by statute is the remedy for defects of procedure in taking the deposition, and is usually required to be made within a limited time after the filing of the deposition," objections not going to the admissibility of the testimony itself being deemed waived unless so made;" the purpose of the statutes being to allow whenever possible a recommitment" or retaking of the deposition." In a few states a deposition will be suppressed for inadmissibility of contents," objection to its admission at the trial" being the usual remedy in such case. A deposition will be suppressed if taken at a time?4 or place?5 other than that stated in the notice, or without notice to a party;" and defects in the address of the interrogatories," failure to sign and certify the deposition," failure to properly seal and address it," and improper interference with a deposition by a party,"s attorney while it is in course

sent must make oath that they were not opened by him or anyone else during translent." Key. Code, $ 583. Depositions were transmitted by Adams Exp. Co. Affladavits were made by officer taking deposition that it was delivered to a certain agent of the express company, and by this agent and all others through whom it passed that envelope had not been opened and also by the clerk that he received the sealed package. Field to satisfy the above section. Standard Oil Co. v. Doyle, 36 Ky. L. R. 544, $2 S. W. $71.

65. The Iowa Code provides that a deposition must be returned to the clerk of the proper court within thirty days. Section 4705. Iowa Code. But when itappeared that a deposition had not been filed at time of trial, court ordered it filed, the opposing counsel having examined it a year previous and was not prejudosed by failure to return the same. Court can do this under $ 478. Ferguson v. Lederar, Strauss & Co. (IowaI) 103 N. W. 734.

01. Where plaintiff's attorney asked clerk of court to send to the former the depositions and where the attorney, upon their receipt, discovered that they were not properly signed and sealed and consent them to the postmaster for orrection, it was held that depo-eittions must be suppressed. White v. Southern R. Co., (Ga.) 51 S. E. 411.

01. See 3 C. L. 1078.

01. Section 10189 of Mich. Compiled Laws of 1897 provides that objections to notice, manner of taking deposition, or its certification or return, shall be waived unless they are made "in writing within three days after knowledge or return thereof." McCall Co. v. Jacobson (Micl.) 102 N. W. 899. Ga, Civil Code 1896, $ 5314, provides that "all exceptions to the execution and return of commission must be made in writing and notice thereof given to opposite party." White v. Southern R. Co. (Ga.) 51 S. E. 411. Under a statute which provides that objections to depositions shall be determined at the first term of court after their filing, a motion made to suppress them cannot be entertained atter the making of an announcement of ready for trial. Sayles' Rev. Civ. St. 1897, art. 2289, St. Louis S. W. R. Co. v. Harvey (Tex. Civ. App.) 13 Tex. Ct. Rep. 51, $8 S. W. 506.

01. When statute provides for the filing of objections, those otherwise made are properly excluded. Iowa Code, $ 4712. Os-tension v. Severson, 126 Iowa, 197, 101 N. W. 789. When the only variance from the strict terms of a stipulation is the taking of a deposition by a justice of the peace instead of a notary public and the deposition is on file for six days, an objection after the beginning of the trial is too late. Seamster v. State \[Ark.\] $6 S. W. 434.

01. When a commissioner fails to make a sufficient return as to facts which he is sent to ascertain, the recommitment of the cause to a commissioner is within the court's discretion and a party who does not object to such order or to the return when made cannot do so later, Commissioner was sent abroad to take testimony as to decedent's next of kin and failed to make a return concerning relatives of the mother of the decedent. A recommitment for this purpose held proper under the circumstances. In re Flanagan's Estate, 207 Pa. 490, 56 A. 1068.

01. But objection to deposition taken should be made before trial if possible, in order to allow sufficient time to take the deposition properly. Abbott v. Marion Min. Co. \[Mo. App.\] 87 S. W. 110.

01. When portions of a deposition are admissible it is not error to refuse to suppress it. Griggs v. Carson \[Kan.\] 81 P. 471. It is not reversible error to suppress a deposition whose contents have no bearing on the issues of the case. Gilman V. Ferguson, 116 Ill. App. 347.

01. See 9 6, post.

01. Bauer v. State, 144 Cal. 740, 78 P. 280.

01. Indiana Baptist Pub. Co. v. Ayer, 34 Ind. App. 284, 72 N. E. 151.

01. Th en Snawnwn Min. Co., 94 App. Div. 156, 87 N. Y. S. 1059.

01. If interrogatories are not addressed to the party who signs the deposition there is error in refusing to suppress the testimony thus taken. Edwards v. Edwards \[Ala.\] $9 So. 82.

78 5 Cur. Law. **DEPOSITIONS SS 6.**

of transmission,\[80\] have been held ground for suppression. Trivial defects, working no prejudice\[81\] or affecting only a co-party,\[82\] or those which have been waived,\[83\] are not ground for suppression.

SS 6. \_Use as evidence.\[84\]--\_The deposition being a substitute for the production of the witness, it cannot be used if his attendance can be procured,\[85\] though such exclusion has been held discretionary\[86\] and is waived by failure to make timely objection.\[87\] In some states it must be made to appear that the grounds for taking the deposition exist at the time of trial,\[88\] while in others their continuance is presumed.\[89\] In Michigan the court may, in its discretion, to prevent abuses, order the re-taking of testimony or the production of the witness.\[90\] The competency of the witness is determined as of the time of offering the deposition.\[91\]

A deposition is not evidence until read in evidence.\[92\] Either party to the action may, in South Carolina, call for the reading of the deposition,\[83\] but isolated portions of a deposition cannot be introduced,\[84\] nor will answers to cross-examination be admitted if direct examination is excluded,\[85\] and one may object to the reading of his own cross-examination on the ground that the questions are incompetent and irrele-

80. White v. Southern R. Co. \[Ga.\] 51 S. **I**entified, plaintiff rested and a motion for nonsuit made by defendant, the court will not under $5 % of the act of March 23, 1900, by failure to apply for an order or give a longer notice than twenty-four hours, the order granting deposition should not be vacated if the testimony is material to the party applying. In re Tweede Trading Co., 94 N. Y. S. 167. A failure to state in the certificate that witnesses swornis not a sufficient error to exclude the deposition when that fact is stated in the caption.

Manders' Committee v. Eastern State Hospital \[Ky.\] $4 S. W. 761. That a dedimus was issued at a later date than that mentioned in the notice is not a sufficient ground for the suppression of a deposition. Hishsh v. Dreyfus, 111 III. App. 44. In some states, statutes provide "that unimportant deviations shall not be sufficient to exclude the deposition when no prejudice to opposite party results."

Iowa Code, $4708. Ferguson v. Lederer, Strauss & Co. \[Iowa\] 103 N. W. 794. The irregularity of permitting an order for examination of a witness when proceedings are stayed because of a failure to pay costs on a previous motion is cured by the payment of costs before return day. Jacobs v. Mexican Sugar Refining Co., 45 Misc. 56, $0 N. Y. S. 824.

82. Failure to give notice to co-party. Standard Oil Co. v. Doyle \[Ky.\] $2 B. W. 271; In re ShawnurMin. Co., 94 App. DIV. 156, $7 N. Y. S. 1059.

01. By the appearance of the attorney and the cross-examination of the witness at the hearing, a party does not waive the right to suppress the deposition on the ground that it was not written by a dismistered person. Real Estate Trust Co. v. Union Trust Co. \[Md.\] $1 A. 228; Kniekerbocker Ice Co. v. Gray \[Ind.\] $2 N. E. 869.

01. See $ C. L. 1078.

01. If the witness is in court ready and willing to take the witness stand, the deposition is properly excluded. Handy & Co. v. Smith, 77 Conn. 165, $A. 694.

01. Fire Ass'n of Philadelphia V. Masterson \[Tex. Civ. App.\] $3 B. W. 49.

01. Not made until other witnesses had $ Cmr. L.-$3.

01. Write v. Southern R. Co. \[Ga.\] $1 S. **I**entified, plaintiff rested and a motion for nonsuit made by defendant, the court will not under $5 % of the act of March 23, 1900, by failure to apply for an order or give a longer notice than twenty-four hours, the order granting deposition should not be vacated if the testimony is material to the party applying. In re Tweede Trading Co., 94 N. Y. S. 167. A failure to state in the certificate that witnesses swornis not a sufficient error to exclude the deposition when that fact is stated in the caption.

### 994 DEPOSITIONS SS 6

5 Cur. Law.

vanat.\*In Michigan, a plaintiff may by a rule of the circuit court of that state read his cross-examination of defendant's witnesses whose testimony was taken by depositions.*Deppositions may be again used at a retrial of the case*if the cause for the original taking thereof continues,\*and the parties remain the same;; but a deposition whose admissibility at the first trial depended on a stipulation cannot be used again without a renewal of the stipulation.*The fact that a case is consolidated with another after a deposition has been taken for use in the original case will not render its admission improper.*

_Objections_\*going to the procedure are usually required to be made before trial, and those objections which might have been made on the taking of the deposition are usually deemed waived if not so made.\*Objections not included in either of these classes are properly made on the trial,\*and must be then made to save them for review.\*Depositions as evidence are the equivalent of the testimony of the witness in open court,*and are subject to the same considerations respecting credibility.*

N. Y. Code Civ. Proc. 1 911, provides that either party may read a deposition taken and returned. Cudlip V. New York Evening

game parties cannot be used at the trial. Journal Pub. Co., 180 N. Y. 85, 72 N. E. 925.

Rogers v. Tompkins \[Tex. Civ. App.\] 87

97. Circuit Court Rule 41a. The depositions taken ten years pre-sitions should not be read on the theory that the answers and questions were those of cross-examination but the fact that they were so read is not sufficient reason for reversal unless results prejudicial to objecting party are shown to have occurred. McDonald v. Smith \[Mich.\] 102 N. W. 668.

01. At common law, depositions taken in a former trial de been eese can be used in a case between the same parties if the witness is proved to be dead, unable to attend court by reason of sickness, out of the court's jurisdiction or otherwise not amenable to its process. U. S. Rev. St. p. 666, $ 861, does not change above rule of evidence. Toledo

Traction Co. v. Cameron \[C. C. A.\] 137 F. 48.

A deposition was offered against six of the heirs only, one of whom was a party to the action in which deposition was taken. Held that this testimony was properly excluded. Roberts v. Powell \[Pa.\] 60 A. 258. The adverse party may introduce at the second trial a deposition de bene esse used at a former trial. This can be done although the witness is present at the trial. Providence Mach. Co. v. Browning \[S. C.\] 49 S. E. 325.

99. When a witness lives within the distance of the court house in which depositions are not allowed except for other reasons than length of distance from place of trial, a deposition used in a former case cannot be read unless some reason is shown making it admissible at the subsequent trial. Smith v. Park's Adm't \[Ky.\] 84 S. W. 1167. The testimony of a witness at a former trial cannot be introduced without proof of attempts to procure attendance of witness or of the Im-practeability of taking depositions de bene sense or otherwise as provided by Rev. St. 81 868-867. Diamond Coal & Coke Co. v. Allen \[C. C. A.\] 137 F. 705.

01. Depositions taken in a former case are not admissible in evidence in a subsequent trial if the parties to the action are not the same. Such a deposition is but hearsay. Parlin & Orendorf Co. v. Vawter \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 47, 88 S. W. 407. Although plaintiff adopt the allegations of a 5 Cur. Law. DESCENT AND DISTRIBUTION SS 2. 995 DEPOSITS; DEPUTY, see latest topical index. DESCENT AND DISTRIBUTION. $ 1. Law Governing Descent (905). $ 2. Persons Entitled to Share or Inherit (909). $ 3. Unheritable and Distributable Property (908). $ 4. Course of Descent and Distribution (909). $ 5. Quantity of Estate or Share Acquier- (909). $ 6. Husband or Wife as Heir (1001).

Scope of topic.--This topic deals only with the rules governing the disposition of the property of those dying intestine. The construction and effect of wills,\[10\] and the administration and management of estates of decedents, are treated elsewhere.\[11\]

$ 1. \_Law governing descent.\[12\]--Where the owner of property dies without making any disposition of it, it descends as provided by the statute of descent.\[18\] The law in force at decedent's death controls the distribution of his personality.\[14\]

The descent of reality is governed by the law of its sitns,\[18\] and the succession to movables by the law of the actual domicile of the owner at the time of his death.\[14\]

$ 2. _Persons entitled to share or inherit.\[17\]--The legal presumption is that every decedent has heirs, but this presumption may be rebutted either by lapse of time accompanied by the nonappearance of heirs, or by proof of the fact.\[18\] One becomes an heir only on the death of the ancestor,\[19\] and his capacity to take by descent must be determined as of that time.\[20\]_

cont, be excluded. Norman Printer's Supply Co. v. Ford, 77 Conn. 461, 59 A. 499. $ 7. Objections that depositions were not signed, when not made in the lower court and none of them filed but made for the first time on appeal, will be of no avail to the appleint. Dearlove v. Hayward, 113 Ill. App. 326. An objection may be made on appeal when section 250 of art. $ 93 of the Maryland Code, which provides that depositions shall be taken in writing and recorded when used in primary proceedings, has not been follow- ed. When no evidence appears on record on an appeal from such a case, the decision of lower court cannot be sustained. Stonselfer v. Shriver \[Md.\] $ 4. 139. $ 8. Under a provision of Hurd's Rev. St. 1905, court may so instruct. Olecese v. Mobile Fruit & Trading Co., 211 Ill. 538, 71 N. E. 1084. $ 9. If the statements of a witness in different depositions conflict, the statement against his interest is not conclusive against him. It is for the jury to determine which one they believe to be true. One statement is that plaintiff was thrown off the car by a sudden jerk and the other that the train was moving at a certain rate at the time. Bond v. Chicago, B. & Q. R. Co., 110 Mo. App. 131, 84 S. W. 124. Statements in a deposition made against the interest of the party taking it is not conclusive against him. When the adverse party introduces it, the deposition is made his own. Von Tobe! v. Stetson & Post Mill Co., 42 Wash. 683, 78 P. 788. 10. See Willis, 4 C. L. 1863. 11. See Estates of Decedents, 3 C. L. 1328. 12. See 3 C. L. 1081. See, also, Conflict of Laws, 5 C. L. 610. 13. Butman v. Butman, 213 Ill. 104, 72 N. E. 821. 14. In re New York Security & Trust Co., 94 N. X. F. 83. 94. 15. Whether bastard whose parents have subsequently intermarried can inherit far-her's reality. Hall v. Gabbert, 218 Ill. 208, 72 N. E. 806. The right of ailens to take by descent, in the absence of treaty provisions to the contrary. Ehrlich v. Weber \[Tenn.\] $ 8. S. W. 188. Descent of Permanent leas-holds, perpetually renewable. Broadwell v. Banks, 134 F. 470. As to advancements. Mort v. Jones \[Va.\] $ 1. S. E. 220. 16. As to validity of contract whereby wife releases all her interest in her husband's property. Caruth v. Caruth \[Iowa\] $ 108 N. W. 103. Disposition, distribution of, and succession to personality, wherever situated, is governed by the laws of the state where the owner had his domicile at the time of his death. Appeal of Hopkins, 77 Conn. 544, 60 A. 657. 17. See 3 C. L. 1082. See, also, Tiffany on Real Property, p. 981. 18. More allegation of petition that left no heirs or kind of any kind or degree and that property descended to her husband heihsufficient to require purchaser under mortgage foreclosure safe to take title where there was no proof thereof, defend-and having defaulted, and no proceedings against unknown heirs. Monta v. Schwva-bacher, 26 Ky. L. R. 1214, 83 S. W. 569. Such allegation is not a conclusion of law, nor is it necessary to state specifically that left neither paternal nor maternal kindred. Id. 18. The mere fact that a child will inherit the
Heirship, except that based upon consanguinity, can be created only by a constitutional law.\[21\]

The common law did not authorize the adoption of heirs,\[22\] but this rule has been generally changed by statute.\[23\] Adopted parents do not inherit from the adopted child.\[24\]

In many states an illegitimate child whose parents have subsequently intermarried inherits in the same manner as though legitimate.\[25\] In Indiana if the father, during his lifetime, acknowledges such child as his own, he inherits as though legitimate, provided there are no legitimate children or descendants of legitimate children.\[26\]

The heirs of an Indian, who has selected lands for allotment and whose right to their allotment to him has attached, succeed to his interests.\[27\]

At common law an alien cannot transmit land by hereditary descent, and no west the child with an interest therein which can be made the subject of sale or conveyance by him during the life of the father. Where husband and wife owned land joints, deed by children after husband's death purporting to convey their "expectancy" in the half of the land to which the wife held title held vol. Furnish's Adm'r v. Lilly \[Ky.J 84 S. W. 734. Since there can be no heir of the living, one who adopts a minor as his child and heir has the same unlimited power of disposition of his property that a natural father has. Burnes v. Burnes \[C. C. A.\] 137 F. 781.

20. Conditions then existing determine who ls entitled to take. Only those who at that time come within the description of those entitled by law to inherit. Theobald v. Smith, 92 N. Y. S. 1019. One adopted under law expressly providing that adopted children shall not inherit (Laws 1873, c. 830, p. 1243) may inherit where. parent died after adoption of amendment allowing such children to inherit (Laws 1887, c. 703, p. 909). Id.

01. Mere agreement to adopt and to take necessary steps to that end, which was never executed, held not to take place of adoption so as to entitle complainant to inherit. Bowins v. English \[Mich.\] 101 N. W. 204. An agreement to treat a child as a person would treat his own child confers upon the child no rights whatever to the property of the person making it. Hanly v. Hanly, 93 N. Y. S. 864.

01. Evidence Insufficient to show adoption of natural child under the Spanish law or under a special act of the legislature authoring it. Conrad v. Herring \[Tex. Civ. App.\] 83 S. W. 427.

01. In Missouri an adopted child has the rights of a natural child, and no greater or less rights. Burnes v. Burnes, 132 F. 485. The father, natural or adopting, may disinherit the child, allow him to take a full share, or give him his entire estate, subject to the rights of the wife, to the exclusion of his natural children. May limit amount which he shall take by adoption paper. Id. An adopted child cannot inherit from one person's estate in the dual capacity of adopted child and blood relation. Id. He can inherit from both his natural and his adopting father. Id.

New York: See Theobald v. Smith, 92 N. Y. S. 1019.

Texms: Sayles' Ann. St. 1897, arts. 1, 2, providing for the adoption of legal heirs, places them in the same position as and gives them only the rights of natural children. Logan v. Lennix \[Tex. Civ. App.\] 88 S. W. 364. Hence such an adopted child may be disinherited by his adopting father, in the absence of a valid agreement to the contrary.

Id. Instrument of adoption reciting that it was executed in consideration of love and affection for the child and of the relinquishment of his possession and control by the parents, and that the child should be entitled to all the privileges of a legal heir, does not give him any greater rights than those fixed by statute, and hence does not prevent execution of will disinheriting him. Id.

Washington: Ballinger's Ann. Codes & chiforen shall not inherit (Laws 1873, c. 830, p. 1243) may inherit where. parent died after adoption of amendment allowing such children to inherit (Laws 1887, c. 703, p. 909). Id.

24. Fact that one makes a gift to another under mistaken belief that latter is her adopted daughter makes no difference in devolution of property to childs' next of kin. White v. Dotter \[Ark.\] 83 S. W. 1052. See, also, Adoption of Children, 5 C. L. 41.

01. Under Hurd's Rev. St. 1903, c. 39, $ 3, providing that an illegitimate child whose parents have intermarried and whose father has acknowledged him or her as his child, shall be considered legitimate, held, that such child inherits the same as though born in lawful wedlock, the statue being a rule of descent. Hall v. Gabbert, 213 TI. 208, 72 N. E. 806.

01. Under Burns' Ann. St. 1901. $ 2630a. Testinony of the mother cannot be received to establish such acknowledgment. Townsend v. Meneley \[Ind. App.\] 74 N. E. 274. It is immaterial that the acknowledgment was made prior to the date when the statue took effect. Id. Evidence held to show recognition. Id. See, also, Bastards, 5 C. L. 412.

01. Under Act Cong. March 3, 1885, 23 St. 341, providing for allotment of lands of Unatilla Indian Reservation. Act of commissioners in wrongfully allotting them to another or 5 Cur. Law. DESCENT AND DISTRIBUTION SS 2.997

one can take by inheritance when he must deduce his title through an alien.28 This rule has been changed or abrogated by various treaties with foreign nations,29 and by statute in many of the states.30 Treaty provisions control state statutes in this regard.31

Footnote 28: The author is grateful to the anonymous referee for his help in the analysis of the manuscript.

By statute in some states no person may inherit from one whose life he felonious-ly takes or causes to be taken.32

Footnote 30: The author is grateful to the anonymous referee for his help in the analysis of the manuscript.

In some states afterborn89 or pretermitted children are entitled to the shares they would have taken had the parent died intestate.34

Footnote 31: The author is grateful to the anonymous referee for his help in the analysis of the manuscript.

Footnote 32: The author is grateful to the anonymous referee for his help in the analysis of the manuscript.

As a general rule one may make a voluntary conveyance of all or any of his

25 McCormack v. Coddington, 95 N. Y. S. ident, escheats to the state, there being no

46 If he takes at all it must be by virtue

starting authorizing the transmission of title

of the statutes of the state where the property is situated or the provisions of treaties.

quired It by descent and not by purchase.

Ehrich v. Weber \[Tenn.\] 88 S. W. 188.

McCormack v. Coddington, 95 N. Y. S. 46.

29 Under art. 2 of the treaty of May 4,

A female alien is not required to declare her

1845, ratified Aug. 12, 1846, with Saxony

(9 St. $30, $31), aligns protected thereby are

not. Id. Grantee of citizen who acquires title

given the same right to inherit really as citi-

through nonresident alien takes good title

zens, with the qualification that they must

sell the land within two years, which term

Tennessee' Shannon's Code, # 3659, $660,

may be reasonably prolonged according to

places ail respects, as to the success-

circumances. Ehrlich v. Weber \[Tenn.\] 88 S. W. 188. Under art. 3 of the same treaty,

such aliens inherit personality in the same

manner as reality. Id. Such provisions are

not changed by the subsequent treaty with

defnancy. 17 St. $21, 923. Id. State may

give aliens greater rights than treaty does.

Thus Shannon's Code, # 3659, $660, gives them

equal rights with citizens. Id.

30 Kansas Gen. St. 1899, p. 268, $ 1194,

providing that heirs of aliens may take their

lands by devise or descent, and may hold the

distributive share in husband's estate given

same for period of three years and no longer.

was repealed in 1901, without any savings

clause in the repealing act. Held, in action

heritance. Id. Rule since changed so as to

to recover reality of deceased brought by

sisters and nephews of deceased less than

three years after his death, in which the

state intervened, claiming title by escheat

on the ground that deedents' parents died

aliens before the time of his death, that

the rights of the parties were to be

determined as of the date when the action was

commed, and that as the state had at

that time no interest in the lands under facts

alleged in the answer, a denurrer there

was properly sustained. State v. Ellis \[Kan.\]

79 P. 1066.

In New York a citizen of a foreign nation, which, by its laws, confers similar

privileges on citizens of that state, may

transmit by inheritance and descent his

interest in lands to his heirs. Laws 1886,

c. 547, p. 561, as amended by Laws 1897, c. 593,

d.martee \[Ky.\] 87 S. W. 1110. Where will

take, acquire, hold, and convey" includes

right to transmit by inheritance. Citizen of

Great Britain may. Haley & Sheridan, 94 N. Y. S. 864, overwriting $ 1 N. Y. S. 42. Under

Laws 1845, p. 95, c. 115, $ 4, as amended by

Laws 1875, c. 38, p. 32, requiring aliens to

declare their intention of becoming citizens

in order to hold as against the state property

acquired by inheritance from alien residents

or from citizens who have purchased lands

within the state, title to reality acquired by a

nonresident alien, who had not declared his

property without regard to his children, they being neither purchasers nor creditors.\[32\] In some states, however, children are entitled absolutely to a certain share in their parent's estate.\[28\]

SS 3. _Inheritable and distributable property._"--Upon the death of the ancestor intestine, the descent is cast by operation of law on his heirs," and his personality passes in accordance with the statute of distribution." The legal rights of the heirs or distributes to the property cannot be defeated except by a. valid devise thereof to some other person," and they take whatever is undisposed of by will, whether the ancestor so intended or not.\[41\]

The title to lands or any interest therein vests in the heirs immediately on the death of the ancestor," subject to all liens and charges existing against it," and subject to the payment of the ancestor's debts.\[44\] Vested remainders, though the land adherent comes into the remainderman's possession," the legal title remaining in the

35. Jones v. Jones, 213 III. 228, 72 N. E. 695. 36. Transfer of shares of stock in build-ing association, together with his contingent right thereunder to certain reality, made by father to his son, held not a donation, but an onerons contract, of character such as would not entitle plaintiffs to a share in the profinite therefrom, or to a joint ownership in land under a contract of sale, the price the property. Nereaux v. Nereaux (LA.) 38 So. 11. A donation to one's mother will not be presumed fictitious in order to let children of a subsequent marriage into their legitimine simply from the fact that the done mortrigated the property for the donor's debt. Griffin v. Alecoce, 113 La. 614, 37 So. 47. 38. See S. C. L. 1088. 38. 39. Mort v. Jones \[Va.\] 51 S. E. 220. 40. Pomroy v. Hincks, 180 N. Y. 73, 72 N. E. 628. 41. See Wills, $ 5 D, 4 C. L. 1936. Land owned by testator and not described in the will passes to the heirs at law as in the state, though it is alleged that there was a mere misdescription of the land intended to be devised. Godfrey v. Wingert, 110 III. App. 663. It is not sufficient to deprive him of what comes to him by operation of law, as property not effectually disposed by will, that the testator should have signified his intention in the will that he should not inherit any part of the estate. Pomroy v. Hincks, 180 N. Y. 73, 72 N. E. 628. 42. For a full discussion of what mixtures go to the heir and what to the personal representative, see Bronson, Fixtures, #1 T. 78. Animals ferate nature belong to the heir rather than to the personal representatives. Bronson, Fixtures, # 79. 50. 51. 52. Smith v. Contrary's Ex's \[Ky.\] 85 S. W. 1101. Code 1895, # 385. Doris v. Story \[Ga.\] 50 S. E. 848. Where A contracted with B for purchase of land and paid first installment, and C, at A's request, paid balance of purchase money, and B, by A's direction, made C the absolute fee-simple dced, C's title desended to his heirs. Id. May maintain an action for its recovery, if there is no administrator, or with his consent, it there is one. Id. Adimlnafter cannot appeal from bill to set aside cloud on title. Strong v. Peters, 212 III. 282, 72 N. E. 69. In proceedings under Indiana drainage laws to charge really belonging to defendants with cost of constructing ditch, where one of the 5 Cur. Law. DESCENT AND DISTRIBUTION SS 4. 999

vendor of realty, when a lien to secure the purchase money is reserved in his deed,44

and the interest of the grantor under a trust deed, descend to the heir.47 By statute

in Indiana where a conveyance is made solely in consideration of love and affection

and the grantee dies intestate without leaving a widow or children, the land reverts

to the grantor.48 In the absence of a statutory or testamentary provision to the contrary, rents of realty accruing after the death of the owner go to the heirs,49 and

those which acorued during his lifetime go to his personal representatives as as-

sets of the estate.59 All contingent and executory interests, where the person to take

is certain, descend to his heirs or pass to his personal representatives, according to

whether the property is real or personal.51

Personal property,52 including choses in action, goes to the executor or administ-

trator and not to the heirs or beneficiaries under the will.53 At common law an estate for years in lands is personal property and on the death of the tenant goes to his representatives;54 but this rule has been changed by statute in some states.55

SS 4. \_Course of descent and distribution.56--\_The realty of one dying unmarried

and without issue goes in equal shares to his brothers and sisters.57 That of a widow

goes to her children in equal shares.58 In Texas, realty descends in equal shares to

on which he was entitled to possession, his

personality, including the right to recover

interest passed through his estate to his

his interest in a partnership of which he

heirs, and they took subject to the lien of a

was a member, vest in him and must be sued

judgment against his estate. Melton v. Camp,

for by him. Stehn v. Hayassen \[Wis.\] 102

121 Ga. 693, 49 S. E. 690.

N. W. 1074.

46. Have same rights to enforce lien as

SS. Rents accruing before lessor's decease.

ancestor had. McCrovel v. Hames \[Tex. Civ.

Broadwell v. Banks, 134 F. 470. If no time

App.1 85 S. W. 504.

for redemption is fixed by a contract of

47. Where one gave a trust deed in favor

pledge and the pledgore does not redeem

of his wife to his father, on the latter's

ing his lifetime, the right of redemption

death without other heirs his estate descond-

seconds to his personal representatives. White

ed to the grantor in the deed, together with

River Sav. Bank v. Capital Sav. Bank &

all the powers, duties and trusts declared in

Trust Co. \[Vt.\] 59 A. 197. Right of surety

the deed. Kirkman v. Wadsworth \[N. C.\] 49. to recover from principal the amount paid

S. E. 692.

34. Burns' Ann. St 1901, # 2628. Held er-

'Coffhrery v. McClellan \[Ind.\] 73 N. E. 97.

ror, under the evidence, to direct verdict on

Legal title to a note bequeated to a particu-

ground that consideration for deed from

lar individual. Jacques v. Ballard, 111 III.

father to son was solely "love and affection."

App. 567.

Wagner v. Weyhe \[Ind.\] 73 N. E. 89.

54. Applies to terms for a longer period

01. Hollahan v. Sowers, 111 III. App. 263.

Are not assets in the hands of the personal

F. 470.

representatives. Broadwell v. Banks, 134

55. Under Swan's St. Ohio 1841, p. 289, # 1,

F. 470. Where purchaser of realty at sale

permanent leasehold estates, renewable

for purpose of paying mortgage and other

ever. are subject to same law of descents and

debits of deceased took possession before

distribution as estates in fee. Broadwell v.

expiration of time for redemption, he was

Banks, 134 F. 470.

liable for rents to deceased's husband and

56. See 3 C. L. 1088. See, also, # 6, post;

heirs at law and not to estate, since they

Trustany, Real Prop., 981. For the construc

were not assets. Cosstian v. Tuesdell, 26

tion and effect of agreements between the

Ky. L. R. 971, 83 S. W. 98.

helms and distributes affecting the distribu-

50. Are personal property. Broadwell v.

Banks, 134 F. 470. Do not inure to the bene-

if 17, 5 C. L. 1323.

fit of his heirs by descent east. Cobely v.

57. Of the whole and half blood, born

Cobelly \[Mo.\] 87 S. W. 957.

for or after his death. Shannon's Code, #

51. Where happening of contingency is,

4163, subsec. 2. Ehrlich v. Weber \[Tenn.\]

not necessary to the determination of who

is to take. Personality. Hall v. Brown the children, subject to the widow's one-third life estate therein." In New York in case the intestine leaves no descendants his reality goes to his mother for life, with remainder to his brothers and sisters in equal shares." In Texas the homesetad of one who leaves no wife goes to his children, free from liability for his debts."

In many states ancestral reality can go only to those of the blood of the ancestor from whom the intestine acquired it, provided there are any such." On death, without issue, of a daughter, who has inherited land from her father, leaving a husband and brothers and sisters, the husband inherits half the property and the brothers and sisters the other half." An ancestral estate derived from decedent's mother does not ascend to the father." If the estate is a new acquisition, derived from a stranger to the blood, and decedent leaves no issue, his father takes a life estate, with remainder to the next of kin."

Undisposed-of personality passes to the surviving husband or wife and the surviving children in equal shares." If intestine leaves neither a husband or wife nor any children, it goes to his father, or to his mother if his father is dead." If he leaves no father or mother, it goes in equal shares to his brothers and sisters."

In New York, in the distribution of personality, representation is admitted among collaterals in the same manner as is allowed in reference to reality." Thus, where the intestine leaves only nephews and grandnephrews, they take his personality by right of representation." So too, where he leaves only first cousins and repre 5 Cur. Law. DESCENT AND DISTRIBUTION SS 6. 1001,

sentatives of deceased cousins, the second cousins take a distributive share by representation. \[11\] In such case the question of the scources from which the property came to the decedent is immaterial. \[72\] In New Jersey in the distribution of personality among collaterals, representation is limited to the descendants of the stock represented by the surviving next of kin. \[73\] The stock entitled to representation are the descendants of the first ancestor in the ascending line common to the intestine and all the surviving next of kin; the next of kin of equal degree taking per capita, and the descendants of deceased members of the class as representing their stock. \[74\] If some first cousins are living, being the only next of kin, they constitute the stock entitled to representation, and, there being no great-uncles or great-aunts living, first cousins and the representatives of deceased persons of that class take to the exclusion of the descendants of the deceased great-uncles or great-aunts. \[76\]

SS 5. _Quantity of estate or share acquired. \[76\]_--The shares of the heirs or next of kin may be increased or decreased by transfers of property made between them and the ancestor during the latter's lifetime, depending upon whether such transactions are gifts \[77\] or advancements. \[78\]

SS 6. _Husband or wife as heir. \[79\]_--Property held by the entireties goes to the survivor. \[80\]

Community property descends one-half to the surviving spouse and the other half to the children. \[81\] In Kentucky the half interest of the husband in property owned by his wife and himself jointly goes to his children, subject to his wife's right of dower therein. \[82\]

In New Jersey the widow takes a third of the personality. \[83\]

In some states the widow of an intestine who leaves no child or children or descendants thereof takes half his reality and all his personality. \[84\] In other states this applies only in case the property is not ancestral. \[85\] In still others, under such circumstances, she is his sole heir, and may, upon payment of his debts, take possession

71. In re New York Security & Trust Co., ministration or qualification as survivor, has 94 N. Y. S. 93. \[72\] In the distribution of personality among first and second cousins on both the father's analogy to a partnership estate, or as tenant and mother's side. In re New York Security & Trust Co., 94 N. Y. S. 93. \[73\]

01. Smith v. McDonald \[N. J. Err. & App.\] 61 A. 453. \[75\]

01. P. L. 1898, p. 778, and P. L. 1899, p. 203, construed. Smith v. McDonald \[N. J. Err. & App.\] 61 A. 453. \[76\]

01. See 3 C. L. 1031. \[77\]

01. See Gifts, 3 C. L. 1560. \[78\]

01. See Estates of Decedents, & 17 B, & C. L. 1324. \[79\]

01. See 3 C. L. 1091. See, also, & 4, ante. See Husband and wife, 3 C. L. 1669; Dower, & C. L. 17iffany, Real Prop. & 427. \[80\]

01. Real Estate. Chaplin v. Leapley \[Ind. App.\] 74 N. E. 546. Deposit in a bank made in the joint names of a husband and wife. Same is true though it is in the names of the husband "or" the wife. In re Klenke's Estimate \[Pa.\] 60 A. 166. \[81\]

01. Doed of widow to land conveyed to herself and her husband held not to have conveyed undivided half interest of the children. Summerville v. King \[Tex.\] 83 A. W. \[68\]

01. On death of wife, husband and children hold it as tenants in common. Rev. St. 1895, art. 169%. Wires v. Goodhouse \[Tex.\] 83 S. W. \[178\]

01. The husband, in such case, without ad of his estate without administration."" In New York the widow is entitled to the whole of the personal estate of a decedent who leaves no descendant, parent, brother, sister, nephew, or niece." In Kentucky the husband is the sole heir of his wife only in case she does not leave surviving her any kindred in either the paternal or maternal line, however remote."

The widow is generally given the homesetead for life for the benefit of herself and her minor children, if there are any." Where a husband makes a homesetead entry during his wife's life, but she dies prior to the making of final proof and the issuance of a patent, the children take the title which their mother would have had as a member of the community on the subsequent acquisition of the legal title by the father." The right of the survivor of a community to occupy the community homestead is a personal one, and not an estate in the land which can be assigned or conveyed so as to vest the right to such use and occupancy in the assignee." A provision that the homesetead shall descend free from all judgments and claims against the deceased owners abrogates the right to a vendor's lien thereon."

In some states the widow is entitled to occupy the dwelling house of her husband for a specified time after his death, or until dower is assigned to her."

In some states the widow may, under specified circumstances, elect to take a child's part of the estate in fee in lieu of dower." In Missouri, if the husband leaves no descendants, she may, at her election, take one-half of the land of which her

86. Civ. Code 1895, $ 3355 (1). Moore v. Such provisions, Id. There being no minor Smith, 121 Ga. 478, 49 S. E. 601. Where widow takes possession under this statute without notice of existing debt, creditor may sue her directly. Civ. Code 1895, $ 3421. Id. 87. Code Civ. Proc. $ 3782, subd. 3. In re Hardin's Estate, 97 App. Div. 493, $9 N. Y. S. 978, sfg. 44 Misc. 441, 90 N. Y. S. 95. Such provision is not affected by Laws 1883, c. $19, p. 941, providing that representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate. Id.

01. Montz v. Schwabacher, 26 Ky. L. R. 1214, $ 85 W. 669. Provided husband was resident of state at time of his death. Const. 1874, art. 9, SSS 3-6. Answer in ejecent claiming such right held to state a good defense. Gates v. Solomon \[Ark.\] 83 S. W. 34S. Answer alleging that one of the defendants was holding land as a homesetad, but failing to show that she had a right to do so, held demurrable. Id. In case there is a widow and a child or children, the homesetead invures to the widow as widow and to the heirs, unless the wife consents to its alienation during the husband's lifetime. Const. 1885, art. 16, $ 4. Palmer v. Palmer \[Fla.\] 35 Se. 988. In case no such alienation takes place the homesetad cannot be disposed of by will. It cannot, in such case, be dealt with or affected in any way by will, either directly or indirectly, and Intestacy is compelled in so far as it is concerned. Id. In cases where the will's void in so far as it attempts to dispose of the homesetad, the widow is not deprived of her right of dower fn such homesetad by her failure to dissent from the will, nor by accepting the valid provisions of the will in her favor, where the will is not so framed as to render it inequalible for her to claim her right in the homesetad and at the same time insist upon husband died seised."5 The right of election is a personal one and not a property right which will survive to her representatives or heirs."90 The surviving spouse may also generally elect to take his or her statutory share of the estate in lieu of taking under the will."7 A husband electing to take under the statute instead of under his wife's will, there being no children or lawful issue of any deceased child, takes only an equal undivided one-third of all lands other than the homestead of which she died seised, though, had there been no will, he would have taken the whole estate."8

The distributive share of the widow in her husband's estate goes to her as a matter of right and of contract and not by inheritance."9

The husband surviving to the wife's choses in action takes no title until he reduces them to possession by suit."100

A plural wife cannot inherit any interest in lands acquired by her husband either before or after marriage.101

In Iowa the widow cannot, by contract with him, release her interest in her husband's property.102

In construing a statute providing for the descent of property received by the surviving spouse from his or her husband or wife who died intestine, the rights of the parties are to be determined by the legal title and their legal status.103

DETECTIVES; DETERMINATION OF Conflicting Claims to Reality, see latest topical index. DETINUE. To sustain an action of detinue, plaintiff must allege and prove title to the property,' but having possession at the time of the alleged wrongful taking, title is presumptively in him,2 and defendant has the burden of disproving plaintiff's title.8 If defendant denies plaintiff's title, he may set up title in a third person.4

DEFVIATION; DILATORY Pleas, see latest topical index.

10L HAS no dower interest. Raleigh v. Section applies only to dower proper. McFadin v. Board \[Mo.\] 87 S. W. 948. 98. Rev. St. 1899, 1 2939. Vash v. Wash \[Mo.\] 87 S. W. 993. Is only entitled to com-mon-law dower In land which he has previously disposed of by gift. Coberly v. Coberly \[Mo.\] 87 S. W. 957. Recognition by heft of widow's right to make such election held an admission that decedent owned the land at the time of his death. Id. 98. Election cannot be made by anyone in her name or otherwise after her death. Wash v. Wash \[Mo.\] 87 S. W. 993. See, also, Election and Waiver, S. C. L. 1177. 97. See Election and Waiver, S. C. L. 1177. 98. Gen. St. 1894, \*\* 4469-4471, construed. Kelly v. Slack, 93 Minn. 489, 101 N. W. 787. 99. Share given her by Code, \*\* 3366. Hence \*\* 3386\*\* providing that no one shall inherit from one whose life he definously takes or procures another to take does not apply to prevent widow murdering her husband from taking such share. In re Kuhn's estate, 125 Iowa, 449, 101 N. W. 151. 100. Until then are not garnishable by his creditor. Providence County Sav. Bank v. Vadnais \[R. LI\] \*\* 58 A. 454. Entitled to administer and to surplus after paying her debts. Gen. Laws 1896, e. 212, \*\* 9\*\*, Id.

## 1004 DIRECTING VERDICT, ETC. SS 1.

### 1. Directions Verdict (1004)

The Mo- \[ 2. Demurrers to Evidence (1010). Eftention; Its Effect (1008). Effect of Ruling; \[ 1011\]. Waiver (1011). Effect of Ruling; Appeal; Waiver (1009).

Insufficiency of evidence, while the most frequent ground for directed verdict or demurrer to evidence, is frequently raised in other ways. Accordingly reference must be had to topics dealing with the specific subject-matter for a full treatment of sufficiency of evidence on particular questions.\[5\]

### 1. Directing verdict

_Grounds and occasions._'--It is the duty of the court to direct a verdict where there is no evidence to support the cause of action;'s or where the evidence on material points\[9\] is undisputed,\[10\] so that the only issue is one of law,\[11\] or is such that all reasonable men\[12\] or ordinary minds could draw but one conclusion therefrom,\[13\] or of such a conclusive character as would compel the court in the exercise of sound legal discretion to set aside a verdict returned in opposition thereto,\[14\] or where as a matter of law there can be no recovery had upon any view that can properly be taken of the facts which the evidence tends to establish;\[15\] but if there is any substantial evidence bearing upon the issue to which the jury might in the proper exercise of its function give credit, the court cannot

### 2. S.

Yinson v. Knight, 137 N. C. 408, 49

\[ 111 \]. App. 48; Jennings V. Ingle \[Ind. App.\] 8, E. 891.

\[ 4 \]. Vinson v. Knight, 137 N. C. 408, 49 S. E.

\[ 12 \]. Annswer denying plaintiff's title and his right to recover the chatted is sufficient \[ 13 \]. Why. 88.

\[ 13 \]. Glubreath v. State \[Tex. Civ. App.\] 82 on the trial would be one of title, and not the trepass in taking possession. Id.

\[ 5 \]. See such topics as Master and Servant, 4 C. L. 533. See, also, Appeal and Review, 5 C. L. 224, for extent of appellate review of verdicts.

\[ 6 \]. The 3 C. L. 1093.

\[ 7 \]. Jennings v. Ingle \[Ind. App.\] 73 N. E.

\[ 945 \]; Armstrong v. Aragon \[N. M.\] 79 P. 291.

\[ 100 \]. An issue cannot be submitted to the jury where there is no evidence to support it. Frank v. Berry \[Iowa\] 103 N. W. 858. Plaintiff fails to sustain the cause of action plead- ed. Peckinpaugh v. Lamb \[Kan.\] 79 P. 673.

\[ 11 \]. If after all the evidence is received, plaintiff has established no cause of action, a direct- ed verdict for defendant, and not a dismissal, is proper. Harris v. Buehann, 100 App. Div. 403, 91 N. Y. S. 484; Niagara Fire Ins. Co. v. Campbell Stores, 101 App. Div. 400, 92 N. Y. S. 208.

\[ 9 \]. Green v. Stewart, 29 App. D. C, 570; Pa- eicic Nat. Bank v. Aetna Indemity Co., 38 Wash. 428, 74 P. 590.

\[ 10 \]. Patillo v. Allen-West Commission Co., 38 \[ 11 \]. 868; Central of Georgia R.

\[ 12 \]. Co. v. Gorturovsky \[Gal.\] 8 S. E. 469; Tyrus v. Kansas City, etc., R. Co. \[Tenn.\] 88 S. W.

\[ 10174 \]. York v. Hutcheson \[Tex. Civ.\]. 85 \[ 11 \]. 89; International Text-Book Co. v.

\[ 13 \]. Heartt \[C. C. A.\] 136 F. 129; Chicago Great Westeron R. Co. v. Roddy \[C. C. A.\] 131 F.

\[ 14 \]. Fielding v. Chicago, etc., R. Co. \[Neb.\]

\[ 15 \]. 11 \]. Babb v. Oxford Paper Co., 98 Me. 298.

\[ 16 \]. 11 \].

5 Cur. Law. DIRECTING VERDICT, ETC. SS 1.1005

rightfully direct the jury to find in opposition to such evidence,\[16\] on some of plaintiff's material and essential allegations,\[17\] nor determine whether the plaintiff has a preponderance of the evidence.\[18\] Where the evidence on a material issue\[19\] only enables the jury to guess at which one of several causes produced a certain result in issue,\[20\] or is conflicting,\[21\] so that reasonable men may fairly differ upon the question,\[22\] or different minds might reasonably draw different conclusions or inferences therefrom,\[23\] and authorize a finding either for or against the defendant,\[24\] or there is any evidence which alone justifies an inference of a disputed fact,\[25\] or where the weight of evidence,\[26\] or the credibility of the witnesses is involved, the case should be submitted to the jury,\[27\] though the weight of evidence be sufficient to justify the judge in setting aside the verdict.\[28\] A mere preponderance of connexum \[ flicting evidence will not justify a directed verdict,"" but where the evidence for one party is a mere scintilla and that for the other is so overwhelming that no real controversy is raised,\[30\] or the evidence in support of a given fact is overwhelmingly persuasive, it is not to be maintained that any evidence to the contrary, however inconsequential and improbable, should carry the case to the jury.\[81\] But in some jurisdictions it has been held that a verdict can be directed only where there is no evidence to sustain the cause of action or defense,\[32\] or there is no evidence which if believed by the jury might have supported a different verdict,\[38\] or where as a matter of law the testimony is undisputed, even by indirection,\[34\] or where, after a consideration of all the evidence most favorable to a party, together with all the reasonable and legitimate inferences which a jury might have drawn therefrom, it can be said that the evidence is clearly insufficient to establish one or more facts essential to that party's cause.\[35\] A party introducing sufficient evidence to support a verdict is entitled to go to the jury;\[38\] this applies to a plaintiff who makes out a prima facie case, though defendant's evidence apparently overcomes such prima facie case;\[37\] but there may be exceptional cases where the evidence introduced by the defendant is of such conclusive and unimpeachable nature as to justify binding instructions in his favor, though plaintiff's evidence standing alone would justify the inferences necessary to support his claim.\[38\]

Plaintiff is entitled to a directed verdict where he makes out a prima facie case,\[39\] or proves his case as laid,\[40\] or where the evidence tending to establish his cause of action is undisputed and ample,\[41\] making a case that has no matter of fact left open,\[42\] defendant introducing no evidence,\[43\] or where defendant's evidence and all reasonable inferences therefrom show no defense.\[44\] Where a prima facie case is made out by plaintiff,\[45\] or the evidence,\[46\] is substantially the same as on the first trial. McKenzie v. Banks \[Minn.\] 103 N. W. 47. Bond v. Chicago, etc., R. Co., 110 Mo. App. 131, 84 S. W. 124. 30. Cromley v. Pennsylvania R. Co., 211 Pa. 429, 60 A. L007. The old scintilla doc- or thea has been severely criticised. Kelton v. Fifer, 26 Pa. Super. Ct. 603. Though there be slight evidence, yet if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the facts sought to be established, it is the duty of the court to instruct a verdict. Willis v. Central Ice & Cold Storage Co. \[Tex. Clv. App.\] 18 Tex. Ct. Rep. 512, 88 S. W. 265. 31. Waters-Pierce Oil Co., V. Van Elderon IC, C. A.\] 137 F. 557. 32. Doherty v. Arkansas & O. R. Co. \[Ind. T.\] 82 S. W. 89; Chicago & E. I. R. Co. v. Stratton, 111 Ill. App. 142; County of DeWitt v. Spaulding, 111 Ill. App. 364; Smith v. Parks AAmr \[Key.\] 84 S. W. 1167; Randall v. Detroit & N. W. R. Co. \[Mlch.\] 102 N. W. 988; Birmingham R., Light & Power Co. v. Hinton \[Ala.\] 37 S.o. G35. 38. Wheeler v. Seemanns, 123 Wins. 573, 102 N. W. 28. 34. Wilson v. Royal Neighbors of America \[Mich.\] 102 N. W. 957. 35. Davis v. Mercer Lumber Co. \[Ind.\] 73 N. E. 899; McCaughn v. Young \[Miss.\] 37 So. 839; Farmer v. Cumberland Tel. & T. Co. \[Miss.\], 88 S.o. 775. 38. Zastlman v. Hunter \[Tex.\] 86 S. W. 323; Henrietta Coal Co. v. Campbell, 211 Ill. 216, 71 N. E. 863; Farrell v. Interurban St. R. Co., 90 N. X. S. 845. Where the evidence tends to prove the cause of action laid in the declaration, the case should go to the jury. Chicago Junction R. Co. v. McGrath, 203 Ill. 511, 68 N. E. 69. 37. K. Kohner v. Capital Traction Co., 23 App. D. C. 181. 38. Kelton v. Fifer, 26 Pa. Super. Ct. 603. There may possibly be an exception to this rule where there is not a selmtila of evidence and nothing substantial on the part of the plaintiff, and a verdict if rendered in his favor would not be permitted to stand. Kohner v. Capital Traction Co., 22 App. D. C. 181. 39. Mitterwallner v. Supreme Lodge of Knights & Ladies of Golden Star, 90 N. Y. S. 1076. 40. United States Fidelity & Guaranty Co. V. Donnelly \[N. J. Err. & App.\] 61 A. 445; Murphy v. Davis \[Ga.\] 50 S. E. 99. Where defendant offers no evidence and that of plaintiff sustains his claim, a verdict may be directed. Uzzell v. Horn \[S. C\] 8 S 5 Cur. Law. DIRECTING VERDICT, ETC. SS 1. 1007

dence fairly\[46\] tends to show plaintiff's right to recover,\[47\] or to support his cause of action,\[48\] or is such that with the inferences that the jury may justifiably draw therefrom, is sufficient to support a verdict for plaintiff, it is proper to refuse to direct a verdict for defendant.\[49\] Verdict should not be directed in favor of a plaintiff who fails to make out a prima facie case,\[50\] or when the evidence is such as to afford reasonable inference of the existence of any facts unfavorable to a right of recovery by the party asking it,\[51\] and a directed verdict for plaintiff on one count is improper where a complete defense thereon was shown by the evidence on another count reciting the same cause of action.\[52\] Where there is evidence to support a counterclaim,\[53\] or one of defendant's pleas, it is improper to direct a verdict adverse thereto.\[54\] When issue is joined on an immaterial plea and its averments are proved, the defendant is entitled to the general charge.\[55\] Though plaintiff's evidence offered no basis for recovery of any certain amount, a verdict should be directed for the indebtedness admitted in defendant's answer.\[56\] A defendant setting up a cross action in his answer is not entitled to have the facts confessed in the supplemental petition, denying such cross action, treated as evidence in his favor as a basis for directed verdict.\[57\] Oral evidence in support of an affirmative defense, even if not contradicted, will not authorize a trial court to direct peremptorily a verdict for defendant.\[58\] It is only when the facts are such that all reasonable men must draw the same conclusions that the question of negligence is ever considered as one of law for the court.\[50\] A motion for a directed verdict based upon a part only of the issues involved should be refused.\[50\] A verdict may be directed upon certain of the counts of a declaration,\[61\] but the court is not required to direct upon a count against which a demurrer has been sustained.\[52\] The rule that where there is nothing for a jury to determine except the amount of principal and interest due on a note, the verdict may be directed, does not obtain in Missouri,\[63\] and it is an invasion of the province of the jury for the court to direct them that they must accept as true and act upon the evidence of witnesses, though such evidence be all one way.\[64\] In Illinois, a verdict may be directed for defendant, after he has pleaded to the declaration, where each count is so defective that it could not after verdict support a judgment.\[58\] Where a question is res adjudicatea, the court should direct a verdict and not refuse to proceed with the trial.\[50\] Where

45. Humboldt Bldg. Ass'n v. Duck- Verl 26 No. App. 299, 70 S. Ver's Exr, 26 Ky. L. R. 931, 82 S. W. 963. Where there is evidence tending to prove all that is required to warrant a recovery, the case should be submitted to the jury. Illinois Cent. R. Co. v. Andrews, 116 Ill. App. 8.

01. Shickle, Harrison & H. Iron Co. v. Beck, 112 Ill. App. 441; News Pub. Co. v. Associated Press, 114 Ill. App. 241; Nicholls v. Colwerl, 118 Ill. App. 119.

01. Illinois Cent. R. Co. v. Burke, 112 Ill. App. 415; Belt R. Co. v. Confrey, 111 Ill. App. 473; Central Union Bldg. Co. v. Kolander, 512 Ill. 71, 72 N. E. 50.

01. Hahl v. Brooks, 114 Ill. App. 644; Luttrell v. East Tennessee Tel. Co. \[Ky.\] 86 S. W. 114.

01. Chicago City R. Co. v. Bennett, 211 Ill. 26, 73 N. E. 243.

01. Moultrite Lumber Co. v. Driver Lumber Co. \[Gal.\] 49 S. E. 729.

01. Mobille, etc., R. Co. v. Bromberg \[Ala.\] 37 So. 395.

01. Evidence properly received for any reason during a trial must be considered.

1008 DIRECTING VERDICT, ETC. SS 1. 5 Cur. Law.

the court of last resort has held that plaintiff's petition states a cause of action and his evidence makes a case for the jury, it is not error on a second trial on the same pleadings and evidence to refuse to direct a verdict for defendant.\[87\] Judgment should not be rendered for defendant on the merits at the close of the opening statement for plaintiff, when such statement, though deficient as to facts necessary to warrant a recovery for plaintiff, does not disclose a complete defense or affirmatively show there was no cause of action.\[88\] Verdict should not be directed because of defects in an affladvir where such defects have been waived.\[89\] A directed verdict is of course improper where jurisdiction is lacking; the proceeding should be dismissed.\[90\] After answer filed joining issue on the facts, a verdict cannot be directed for defendant because of insufficiency of the petition unless so defective that no judgment could properly be entered on a verdict for plaintiff.\[71\] To direct a verdict for defendant because of plaintiff's failure to produce papers not shown to be relevant to the issue is error.\[72\]

_The motion; its effect.\[73\]_--A motion to direct a verdict admits for the purpose of the motion the truth of the testimony which supports the opponent's case,\[74\] together with all inferences which may be drawn therefrom,\[75\] and the untruth of his own allegations which have been denied by the opposing party;\[76\] the court is bound to assume the facts as testified to by the adverse party,\[77\] giving his evidence a most favorable construction.\[78\] A motion for verdict being overruled, the court cannot instruct for the adverse party upon the ground that the motion admitted the truth of the evidence adduced.\[79\] Where both parties move for a directed verdict, and neither requests a submission to the jury, those facts become undisputed\[89\] which could operate to deflect or control the question of law,\[81\] and the trial court may draw all the inferences therefrom that a jury might have drawn.\[82\] Such a motion constitutes an election that the trial judge decide any questions of fact in the case;\[88\] and the verdict directed is in effect that of the jury;\[84\] this rule does not obtain where the party whose request is denied asks to go to the jury upon questions of facts which he specifies.\[88\] After the court has announced its decision, a party cannot demand submission to the jury;\[89\] but a request to go to the jury,\[90\]

67 TA 5 Cur. Law. DIRECTING VERDICT, ETC, SS 1. 1009

before a verdict is directed or recorded, is seasonally made.\* Direction of verdict must be applied for by the party seeking it.\* In Illinois a request for a directed verdict must be in writing,\* and it is essential that a motion to instruct be made at the close of all the evidence, in order to preserve for review the question of the sufficiency of the evidence, as a matter of law, to sustain the verdict.\*

_Effect of ruling; appeal; waiver._\*--Upon the direction of a verdict for plaintiff, the defendant is entitled to have his counterclaim deducted as pleaded or to be allowed to prove his claim, and if established to have it deducted from any amount found due.\*2 A motion for a directed verdict presents a question of law only,*3 and is therefore reviewable*4 if an exception be taken,\*5 a motion for a new trial not being necessary;*6 but under the Georgia statutes it is not error in any case for the trial judge to refuse to direct a verdict.*7 While the usual and better practice is that a formal verdict in writing be returned by the jury, the absence thereof is not fatal to the validity of the proceedings.*8 The sufficiency of the declaration cannot be raised by request for preemptory charge by a defendant who failed to demur and met the issue in respect to which the pleading failed.*9 The propriety of directing a verdict must be determined in view of the entire evidence,1 and the facts will be regarded as having been so decided as to sustain the disposition made by the trial judge;* he should only determine whether or not there is evidence legally tending to prove the fact affirmed,* and is not authorized nor required to weigh the evidence or to determine where the preponderance of evidence lies.* On appeal from verdict directed for defendant at close of plaintiff's evidence, the question is whether the court would set aside a verdict for plaintiff on the evidence.* When both parties move for a directed verdict, the only questions on review are whether there was any proper evidence to sustain the court's findings and whether the law was correctly applied thereto.\*6 In reviewing the propriety of a directed verdict, the ap
pellant is entitled to the benefit of all disputed questions of fact.7 Where evidence has been actually received and then erroneously stricken out, the court should consider such evidence as should have been allowed to go to the jury in passing upon the correctness of a directed verdict.8 One may so waive a jury that he cannot complain whether the judge directs a verdict or makes findings and a decision,9 and it is a general rule that the introduction of evidence by a party after the overruling of his motion for a directed verdict waives any error in such refusal,10 if the motion is not renewed,11 but where the strict application of this rule would work injustice, it may be disregarded by an appellate court;12 waiver does not result from one's subsequently requested instructions which in effect conceded that there was evidence tending to establish the opposite side of the case on the issues presented,13 and a party may assist the court in the proper submission of the cause without estopping himself from afterward objecting to a verdict against him as unsupported by the evidence.14 An exception to a refusal of a motion for directed verdict is not waived by the subsequent reopening of the ease and the receiving of testimony not material to the determination of the motion for verdict.15 One cannot complain of a refusal to direct a verdict where by his subsequent instructions the jury was given the determination as issues of fact of all the issues made by the pleadings.18 An affirmative charge for one party on certain counts of his complaint eliminates from consideration on his appeal all questions arising on the pleadings and on the trial on those counts.17 Where the appellate court believes that defendant failed to introduce proof of his cross action because of erroneously directed verdict in his favor, the cause will be simply reversed and remanded.18

of defendant should be overruled where it would sustain even a partial defense to the cause of action.\[23\]

\_Effect.\[24\]--\_The object of a demurrer to the evidence is to refer to the court the law arising from an admitted fact,\[25\] and not to bring before the court an investigation of the facts in dispute,\[26\] for joining issue on a demurrer to the evidence withdraws a case from the jury.\[27\] A demurrer to the evidence allows full credit to the evidence of the demurree,\[28\] and admits all the facts directly proved by or that a jury might fairly infer from the evidence,\[29\] and also that if there be evidence to support it, the finding of the jury would be against him.\[30\] Inferences most favorable to the demurree will be made in cases in which there is a grave doubt which of two or more inferences shall be deduced.\[31\]

\_Waiver.\[32\]--\_After an adverse ruling upon a demurrer to an item of evidence, one does not waive his rights by asking instructions which conformed with the view of the court,\[33\] but a demurrer to a complaint having been waived, the sufficiency of the complaint cannot again be called in question by the objection to the introduction of any testimony.\[34\]

\_Effect of ruling.\[35\]--\_Sustaining a demurrer to the evidence at law or in equity means that there is some evidence to be weighed, but that as a matter of law, when weighed by the trier of fact, it is not satisfactory.\[36\]

DISCONTINUANCE, DISMISSAL AND NONSULT.

SS 1. Voluntary Nonsuit or Discontinuance (1014). Defect in Pleadings; (1011). When Right to Voluntary Nonsuit (1014). Failure of Prosecution is Lost (1012). Discontinuance by Operation (1015). Nonsuit for Failure of Proof (1015). of Law (1013). Effect of Discontinuance (1013) . Imissmal or Nonsuit (1017). Practice on (1017). . Prox. (1013). Grounds in General (1013). Want

SS 1. \_Voluntary nonsuit or discontinuance.\[37\]--\_Plaintiffs are generally allowed to discontinue on payment of costs,\[38\] at any time before decision of the case\[39\] if no

23. Marlon Mfg. Co.'v. Bowers \[Kan.\] S0\[\] lev. Atlantic Coast Line R. Co., 136 N. C. P. 565. 517, 48 S. E. 816. 517, 48 S. E. 816. 30. Mannon v. Camden Interstate R. Co. 25, 26. Mugge v. Jackson \[Fla.\] 39 So. 157. \[W. Va.\] 49 S. E. 450. 27. Nashville, etc., R. Co, v. Sansom, 113 C. A.\] 134 F. 348; Mugge v. Jackson \[Fla.\] 39 So. 157. 30. 31. 32. See 3 C. L. 1097. 33. Warwick v. North American Inv. Co. of United States \[Mo. App.\] 87 S. W. 78. 34. Healy v. King County, 37 Wash. 184, 17 P. 624. 35. See 3 C. L. 1097. 36. Anthony v. Kennard Bldg. Co. \[Mo.\] 87 S. W. 921. 37. See 3 C. L. 1097. 38. One who voluntarily intervenes, without being substituted as defendant or not-defined to defend the action may voluntarily dismiss his petition of intervention, and withdrawing it is equivalent to a dismissal. 39 So. 157. Upon demurrer to the evidence the court must take as true not 101 N. W. 94. Where suit is brought against only every fact which there is evidence defendants who are only jointly liable, the tending to establish, but must consider all plaintiffs as to one and proceed against the other except as provided by as the jury might properly have drawn. Dan-statute (Charles Lippincott & Co. v. Behre affirmative relief has been demanded by defendant or an intervener.\[40\] Allowance, however, is discretionary,\[41\] and is generally regulated by statute.\[42\] A suit by relators, in the name of the state and the attorney general, may be dismissed on the petition of the attorney general without the consent of the relators.\[43\] A "dismissal without prejudice" is a practice not proper at law.\[44\]

_If affirmative relief is demanded\[45\] against plaintiff, he may not dismiss the entire cause,\[46\] and the taking of nonsuit by plaintiff does not prevent a defendant from obtaining judgment upon his cross complaint.\[47\]_

"_When right to voluntary nonsuit is lost.\[48\]_--After the case has been finally submitted,\[49\] or the court announces its decision, the plaintiff cannot dismiss his action to prevent a judgment;\[50\] but a case is so in the control of the trial judge pending the term that a motion of discontinuance as to one defendant, made at the hearing of a motion for new trial, is timely, though verdict and judgment have been entered,\[51\] and in Illinois one may on appeal from justice to circuit court abandon his proceeding

\[Ga.\] 50 S. E. 487), but where the defendants are sued jointly but the proofs or pleadings show there is no joint liability, the plaintiff may dismiss as to those who are not proper butdrawful juror for surprise on excluolarties to the action. (Id.). Proper to allow voluntary nonsuit where co-plaintiff was improvery joined. Pritchard v. Mitchell \[N. C.\]

\[S. E. 783\], A plaintiff has the right to dismiss his action at any time (Code Civ. Proc. 8 811) (Alpers v. Bliss, 146 Cal. 565, 79 P. 171), before trial \[Code. Civ. Proc. 8 1044\] (State v. District Court of Elighth Judicial Dist. \[Mon.\] 79 P. 546), or if the case he tried by the judge, at any time before his decision is announced (Smith v. King of Arizona Min. & Mill. Co. \[Arri.\] 80 P. 357), or filed (Palitz.) 80 P. 357. In a case there without a jury, displaces to writing (Halstead v. Stigler \[Ind. App.\] 74 N. E. 257). Dissimal may be at any time before the jury retire, Shannon's Code, 81 4689-4691. Nashville, etc., R. Co. v. Sanson, 113 Temi. 683, 84 S. W. 615; Halstead v. Stigler \[Ind. App.\] 74 N. E. 257; Lay v. Collins \[Arl.\] 86 S. W. 281; Smith v. King of Arizona Min. & Mill. Co. \[Arl.\] 80 P. 357. In a case there without a jury, displaces may be at any time before final submission to the court. Shannon's Code, 81 4689. 4691. Nashville, etc., R. Co. v. Sanson, 113 Temi. 683, 84 S. W. 615. 40. Smith v. King of Arizona Min. & Mill. Co. \[Arl.\] 80 P. 357; Alpers v. Bliss, 145 Cal. 565, 79 P. 171. If counterclaim is not made. Code Civ. Proc. 8 581. Alpers v. Bliss, 145 Cal. 565, 79 P. 171. An action may be dismissed notwithstanding the filling of a cross complaint, where at the time of dismissal the cross complaint had been stricken from the files, within the authority of the court. Id. It is a general rule of equity practice that where no cross bill has been filed, complainant has the right at any time before final degree to dismiss his bill upon payment of costs (Wilecoxon, 111 Ill. App. 90), but in Florida, after a cause has been set for final hearing, the complaint has no absolute right to a dismissal without prejudice, that resting in the direction of the court (Lykes v. Beauchamp \[Fla.\] 88 S. 603).

\[Ga.\] 50 S. E. 487), but where the defendants are sued jointly but the proofs or pleadings show there is no joint liability, the plaintiff may dismiss as to those who are not proper butdrawful juror for surprise on excluolarties to the action (Id.). Proper to allow voluntary nonsuit where co-plaintiff was improvery foreign law held abuse of discretion.

5 Cur. Law. DISCONTINUANCE, DISMISSAL, ETC. SS 3. 1013

for an account and prove any indebtedness of defendant to him.\[52\] In Montana a plaintiff cannot dismiss after a motion for judgment on the pleadings on plaintiff's failure to reply to an answer alleging new matter has been signed and submitted.\[53\]

_Discontinuance by operation of law.\[54\]--If a plaintiff-demurs or replies over to a proper plea answering a part only of the plaintiff's cause of action, without "signing judgment," an hiatus and consequent discontinuance take place.\[65\]_

\_Effect of discontinuance.\[56\]--Voluntary dismissal by an attorney acting beyond his authority does not necessarily bind his client, who may, within a reasonable time, have the cause reinstated according to the sound discretion of the court,\[57\] and a discontinuance obtained by fraud may be set aside on motion and proper showing.\[58\]

Dismissal as to one of two joint tort fessors as an improper or unnecessary party does not discharge plaintiff's claim against the other defendant, if he is otherwise liable,\[59\] but under the Alabama statute the striking out of a party defendant who has been served with process can only be done after a misjoinder is shown,\[60\] and a discontinuance as to one defendant in such a case without a showing of misjoinder amounts to a discontinuance of the action unless waived by the defendant.\[61\] An agreement by the parties to an action, waiving a jury and consenting to an assessment of damages on one count, constitutes an abandonment as to the other count.\[62\] Every dismissal of a bill in equity upon final hearing is not necessarily an adjudication upon the merits,\[63\] but if the cause is at issue and on final hearing, a dismissal even on complainant's motion is deemed to be upon the merits,\[64\] unless the order shows it to have been upon other grounds, or without prejudice.\[65\] The withdrawal of one who voluntarily intervened and afterward dismissed his petition of intervention terminates the jurisdiction of the court, and no costs can be taxed against him,\[66\] but one discontinuing his action of garnishment before the filing of the answer may in Texas be taxed with the costs of preparing such answer if the discontinuance is made with actual knowledge that the answer is ready for filing.\[67\]

_Retraxit.\[68\]_

SS 2. _Involuntary dismissal or nonsuit.\[69\]--Nonsuit is a name given to a judgment against a plaintiff when he is unable to prove his case or refuses or neglects to proceed to trial after the case has been put at issue.\[70\] In Georgia, a justice of the peace having on the trial before him rendered a judgment for the plaintiff, has not the power, on the trial before a jury, to grant a nonsuit.\[71\]_

\_Grounds in general.\[72\]--A motion for nonsuit is in the nature of a demurrer to the evidence,\[73\] and cannot be based on the ground that the complaint' fails to state a cause of action.\[74\]

Dismissal may be granted in a proper case for failure to comply with an order for security for costs,\[75\] or where plaintiff's opening statement shows

- 52. Dickinson v. Morgenstern. 111 III. \[ 62, Consolidated Coal Co. v. Peers, 205 III. App. 543. 53. 54. 55. 53. 56. 572; Laws 1899, p. 142. 54. 55. 56. 57. 58. 59. 59.

no ground for relief.\[16\] By statute in Montana an action may be dismissed by the court when after verdict or final submission the party entitled to judgment neglects to demand and have the same entered for six months.\[17\]

\_Want of jurisdiction.\[78\]--\_Proceedings will be dismissed where there is an entire want of jurisdiction over the subject-matter,\[79\] but a suit improperly brought in equity should not, on that account, be dismissed, but should be transferred to the law court.\[80\] When a preliminary injunction is dissolved before final hearing, a motion to dismiss the bill should be allowed where there is no cross bill on file and the answer asks no affirmative relief.\[81\]

\_Defect in pleadings; parties.\[82\]--\_A motion to dismiss is the equivalent of a general denurrer and may be made at the trial term if the petition is fatally defective,\[38\] but it cannot reach mere defects in pleadings, such as may be cured by appropriate amendment.\[84\] A petition which sets forth in substance a good cause of action is not subject to such a motion,\[85\] but dismissal is proper where the cause of action relied on at the close of the evidence is not set forth in the complaint,\[86\] though in Washington a complaint which shows a cause of action in any form will not be dismissed, even if failing to state facts to warrant the equitable relief prayed.\[87\] A motion to dismiss, in the nature of a special demurrer, must be filed at the appearance term.\[88\] A court of general jurisdiction has power on its own motion to dismiss an action as frivolous where the pleadings present no cause of action recognized by the law;\[89\] but is not authorized to dismiss a case because the complaint is lengthy and cannot be understood without an adjournment to read it.\[90\] The court may refuse to dismiss for failure to serve defendant with a copy of an amended petition when the court's order in regard thereto was fully complied with.\[91\] Where there is no denial of substantial rights, an order granting leave to discontinue an action prematurely brought will be affirmed.\[92\] A motion to dismiss for want of a demand before suit brought was properly overruled where not made until after the filing of a general demurrer to the petition.\[93\] In actions where a substitution of plaintiffs is not allow ed, a nonsuit is proper if there is no proof of damage to the original plaintiffs." Want of necessary parties must be pleaded in abatement to be a good ground for dismissal."8 A defendant whose interests are not injuriously affected thereby cannot complain of the dismissal as to a co-defendant who has died since' the institution of the suit."6

\_Failure of prosecution."--\_Abandonment," \_laches," \_failure to prosecute,\_1 \_and to comply with conditional orders,\_2 _are recognized grounds for dismissal._

\_Nonsuit for failure of proof._3_--A nonsuit is proper where the evidence is wholly insufficient to sustain the cause of action,\_4 \_or the plaintiff has discontinued as to the only one of several defendants against whom he in fact had a cause of action,\_5 \_or when a plaintiff suing for a money recovery fails to show the value of the property involved,\_6 \_or the damages sustained.\_7 \_When plaintiff makes out a prima facie case,\_8 \_or the evidence of the evidence dence is conflicting," it is for the jury," though the court might deem it its duty to set aside a verdict for plaintiff as against the weight of evidence." Judgment of nonsuit cannot be based on extrinsic facts, such as judgment in another case not in the record." Incompetent evidence admitted without objection cannot be disregarded on a motion for nonsuit, but must be left to the jury." In a joint action against several defendants, some of whom successfully pleaded the statue of limitations, a judgment dismissing the action as to all will not be disturbed."

_Motion for nonsuit; effect."--Under a statute requiring a judge, on the trial of a question of fact before the court, to state in writing his conclusions of law and of fact separately, a motion for nonsuit at the conclusion of plaintiff's testimony and a judgment dismissing the complaint is not proper practice."_ A motion to dismiss on the ground that there was no evidence to establish damages under the rule of law applicable to the facts is not sufficient to raise the question that there was no sufficient proof on which prospective profits could be estimated."\_ The motion should be timely made," and by failing to move for a nonsuit one concedes that there is a question for the court or jury to decide as between the parties."\_ As to whether a motion for

51 S. E. 315), or difere is some competent \[cient case for the jury. Mills' Ann. Code, evidence (In re Morgan's Estate \[Or.\] 78 P. P. 1029), or material points (Morrow v. Gaff-ney Mfg. Co., 70 S. C. 242, 49 S. E. 573), so his own noncompilatne with certain conditions, a nonsuit is improper, for he might having presented evidence as to all essen- tial facts but one (Tiger v. Interurban St. R. Co., 94 N. Y. S. 385). In proceedings to determine a disputed boundary, held, that plaintiff having testified that he was in possession of "land on plat blue, 1-2-3-4 to 1," it would be presumed, in the absence of any map, that he referred to the land described in the complaint, and hence that it was error to grant a nonsuit on the ground that plaintiff had not shown ownership. Smith v. Johnson, 137 N. C. 43, 49 S. E. 62,

9. Lewis v. Eric R. Co., 94 N. Y. S. 765. That the testimony of plaintiff's witness is conflicting does not justify a nonsuit, there being some evidence to support the cause of action such upon. Hopper v. Smith, 70 N. J. 403, 57 A. 389.

1. In Kentucky a scintilla of evidence supporting plaintiff's claims requires a submission to the jury. McFarland's Adm'r v. Harbison & Waiker Co., 26 Ky, L. R. 746, 82 S. W. 430. It has been held that an order of nonsuit is proper only when plaintiff's evidence, giving it the most favorable inference reasonably possible in his favor, does not tend to establish his cause of action (Hupfer v. National Distilling Co., 119 Wis, 417, 96 N. W. 808; Daniel v. Atlantic Coast Line R. Co., 136 N. C. 517, 48 S. E. 816), and whether trial he with or without a jury, the court cannot dismiss an action without verdict or findings of fact, because of failure to establish a cause of action, unless the evidence is such as to require a verdict or finding as a matter of law, against the plaintiff (Minneapolis Threshing Mach. Co., v. Jones \[Minn.\] 103 N. W. 1017; Ness v. March \[Minn.\] 104 N. W. 242). A motion for nonsuit should be denied unless the evidence wholly fails to establish a right of recovery.

Small v. Harrington \[Idaho\] 79 P. 461. By statute in Colorado an action may be dismissed on motion of defendant for a nonsuit when the plaintiff fails to prove a suffl- tial.

51 S. E. 315), or difere is some competent \[cient case for the jury. Mills' Ann. Code, evidence (In re Morgan's Estate \[Or.\] 78 P. P. 1029), or material points (Morrow v. Gaff-ney Mfg. Co., 70 S. C. 242, 49 S. E. 573), so his own noncompilatne with certain conditions, a nonsuit is improper, for he might having presented evidence as to all essen- tial facts but one (Tiger v. Interurban St. R. Co., 94 N. Y. S. 385). In proceedings to determine a disputed boundary, held, that plaintiff having testified that he was in possession of "land on plat blue, 1-2-3-4 to 1," it would be presumed, in the absence of any map, that he referred to the land described in the complaint, and hence that it was error to grant a nonsuit on the ground that plaintiff had not shown ownership. Smith v. Johnson, 137 N. C. 43, 49 S. E. 62,

9. Lewis v. Eric R. Co., 94 N. Y. S. 765. That the testimony of plaintiff's witness is conflicting does not justify a nonsuit, there being some evidence to support the cause of action such upon. Hopper v. Smith, 70 N. J. 403, 57 A. 389.

1. In Kentucky a scintilla of evidence supporting plaintiff's claims requires a submission to the jury. McFarland's Adm'r v. Harbison & Waiker Co., 26 Ky, L. R. 746, 82 S. W. 4 nonsuit is waived by the moving party putting in evidence after the overruling of such motion, the courts are divided in opinion.\[20\] An exception to an order overruling a.motion to dismiss on the ground of failure of proof, taken at the close of plaintiff's evidence, is waived by failure to renew the motion at the close of the case, or to request the court to direct a verdict, or to except to the charge.\[21\] A motion for non-suit admits the truth of plaintiff's evidence,\[22\] and every legitimate inference of fact which may be drawn from it;\[23\] but raises a question of law as to its sufficiency,\[24\] and a motion for nonsuit upon the opening statement and admission of plaintiff concedes the truth of all plaintiff's averments.\[25\]

\_Effect of dismissal or nonsuit.\[26\]--The dismissal of an action at law does not bar another suit for the same cause of action,\[27\] unless rendered on the merits;\[28\] but an order that an action be dismissed is an order for final judgment,\[29\] and is reviewable.\[50\] A defendant cannot complain that plaintiff did not formally dismiss as to a co-defendant where there is an abandonment of the suit as to such co-defendant by leave of the court.\[51\] One in whose behalf an action was not commenced has no standing in court to object to an order of dismissal.\[22\] Motions for reinstatement are addressed

**20.** Cain v. Gold Mountain Min. Co., 27 \[tiff's right to maintain an action. Randolph Mont. 529, 71 P. 1064. Defendant assumes the risk of supplying the deficiency in plain-103 N. W. 157. Dismissal for failure to tilt's testimony, thereby curing any error in overruling the motion for nonsuit. Id. nonsuit under the Missouri statute permit-Pragers to take a case from the jury at the close of plaintiff's evidence are not reviewable on appeal where the defendant proceed with his testimony after an adverse ruling. Keyser v. Warfield \[Md.\] 59 A. 189. An exception for refusal to nonsuit at the close of plaintiff's evidence is waived by the introduction of evidence by defendant without renewing the motion at the close of all the evidence. Earhardt v. Clement, 137 N. C. 91, 49 S. E. 49; Bialock v. Clark, 137 N. C. 140, 49 S. E. 88; McDowell v. Syracuse Land de Steamboat Co., 44 Misc. 627, 90 N. Y. S. 148.

**21.** Faulkner v. Cornell. 80 App. Div. 161, 80 N. Y. S. 526.

**22.** Prophy v. Idaho Produce & Provision Co. \[Mon.\] 78 P. 493; Levin v. Habicht, 45 Misc. 381, 90 N. Y. S. 349.

**23.** In re Morgan's Elasticate \[Or.\] 78 P. 1029. The evidence of the plaintiff must be taken as true and construed in the light most favorable to him (Craft v. Norfolk & B. R. Co., 136 N. C, 49, 48 S. E. 519; Cox v. Hawke, 93 N. Y. S. 1117), and when so considered. if there is a scintilla of evidence tending to prove his contentions, the case should go to the jury (Craft v. Norfolk & B. R. Co., 136 N. C. 49, 48 S. E. 519).

**24.** Brophy v. Idaho Produce & Provision Co. \[Mon.\] 78 P. 493. While the rule of law is the same, the practical restrictions upon the court are even greater in the face of a motion for nonsuit than they are upon a motion to direct a verdict. Hupfer v. National Distilling Co., 119 Wis. 417, 96 N. W. 805.

**25.** Green v. Duvergey, 146 Cal. 379, 80 P. 234.

**26.** See 3 C. L. 1105.

**27.** Durham v. Stubbings, 111 Ill. App. 10. Dismissal for failure to file security for costs and rendition of judgment against such party for costs Is not a judgment on the merits nor a final adjudication on plaintiff.\[28\] to the sound discretion of the trial judge;\[33\] on a motion for dismissal, a direction to return a "verdict of nonsuit" is erroneous in form only.\[34\]

\_Practice on appeal.\[35\]--Refusal to dismiss,\[36\] or nonsuit,\[37\] or to set aside a dismissal,\[38\] being discretionary, is not ordinarily reviewable;\[39\] but orders granting such motions, since they have effect to determine the action, are generally reviewable either separately, or on appeal from final judgment,\[40\] proper exceptions having been saved, and the question properly presented in the reviewing court.\[41\] In Montana an order sustaining a motion to dismiss an appeal from a justice is not appealable to the supreme court.\[42\] On review of an order of dismissal or nonsuit, plaintiff is entitled to the view most favorable to his statement and evidence.\[43\] On review of a dismissal for the nonappearance of plaintiff, the only questions to be considered are the Burlington & M. R. Co. v. Campbell \[Colo. Civ. App.\] 85 B. W. 821. It is not error to refuse to reinstate where the plaintiff's absence was due to his own carelessness. Kline v. Higday \[Okl.\] 79 P. 714. A wise discretion should be exercised in allowing the reinstatement of a case dismissed for want of prosecution, where it appears that plaintiff's absence was due to an unavoidable casualty. Lateness of train. Autlaman-Taylor Machinery Co. v. Caldwell, 14 Okl. 472, 78 P. 319. A cause dismissed on the nonappearance of the parties at the call of the calendar on a day before that fixed by stipulation may be restored to the calendar. Johnson v. Monahan, 94 N. Y. S. 251. After both parties have appeared and submitted themselves to the jurisdiction of the court, either party's excisable default may be opened. Elfenbein v. Rosenthal, 94 N. Y. S. 40. Where both parties appeared but a dismissal was had because plaintiff was not prepared to go on, he may move to be relieved of his default. Rothenberg v. Herman, 94 N. Y. S. 6. In Georgia where a petition has been dismissed on demurrer, the plaintiff may during the same term move to reinstate the case. Van Dyke v. Van Dyke. 120 Ga. 894, 48 S. E. 380. A case dismissed upon a general call which reserves to the court jurisdiction to reinstate within a specified period cannot after the lapse of such period be reinstated, notwithstanding the order of dismissal was erroneous. State Bank of Chicago v. Thweatt, 111 Ill. App. 599.

34. Stumpf v. Hallahan, 101 App. Div. 383, 91 N. Y. S. 1062.

01. See S 3. L. L. 1106.

01. Steward v. Parsons, 112 Ill. App. 611.

Mere written requests for dismissal filed with the clerk. Alpers v. Bliss, 145 Cal. 565, 79 P. 171.

37. Storms & Co. v. Horton \[Conn.\] 59 A. 421; Roby v. South Park Com'rs, 215 Ill. 200.

74 N. E. 125. A refusal to grant a compulsory nonsuit is not revivable on appeal. Cox v. Wilson, 25 Pa. Super, Ct. 635. Re-fusal of the presiding Justice at the close of the evidence to order a nonsuit for any cause is not exceptionable, the exercise of such power being discretionary. Snowman v. Mason, 99 Me. 490, 59 A. 1019.

38. Alpers v. Bliss, 145 Cal. 565, 79 P. 171.

01. An exception permits a review of an order denying a nonsuit, notwithstanding the absence of an exception to the judgment. Burlington & M. R. Co. v. Campbell \[Colo. Civ. App.\] 78 P. 1072.

01. The granting of a nonsuit upon the opening statement of counsel is reviewable on appeal from an order denying a motion for new trial. Green v. Duvergey, 146 Cal. 379, 80 P. 234.

01. A judgment dismissing a complaint on the merits, which is supported by credible evidence on one ground, cannot be attacked as erroneous on some other ground. Laws 1902, p. 161, 580. Mashowitz v. O'Connelj, 91 N. Y. S. 115. Under some circumstances the proprity of a dismissal may be retrieved, though the printed case contains no certificate that it embraces all the evidence and no exception to the dismissal or request to go to the jury. Plaintiff immediately moved for a new trial on the minutes, and exceeded to a denial thereof and entered a formal order of denial from which he appeals as well as from the judge-prepared to go on, he may move to be relieved of his default. Rothenberg v. Hirst, 86 N. Y. S. 676.

Where a motion for nonsuit was decided after conclusion of the trial, and was evidenced by a formal entry at a time when there was no opportunity to take an exception, the apellate court will review the judgment as though there had been formal exception. Sutherland v. St. Lawrence County, 93 N. Y. S. 958. There can be no appeal by one on whose motion a cause is dismissed. Roby v. South Park Com'rs, 215 Ill. 200, 74 N. E. 125.

42. Code Civ. Proc. **8** 1772; Sess. Laws 1899, p. 146. Fransman v. Davies.\[Mont.\] 8 regularity of the appeal and whether plaintiff was in default."44 Where a motion to dismiss a complaint was based on several grounds, and the order of dismissal does not disclose the ground on which it was made, it will be sustained if any ground of the motion was good."45

**DISCOVERY AND INSPECTION.**

**SS 1. Discovery in Equity (1019).**

**SS 2. Production and Inspection of Books Before Trials (1020).**

**and Papers or Survey of Property (1019).**

**SS 4. Physical Examination to Prepare For Nature of Remedy and Right Thereto (1020).**

**Tril (1022).**

This article does not deal with the taking of depositions for use as evidence at the trial,1 nor with examinations of parties during the trial,2 nor during proceedings supplementary to execution,3 nor with the power of a court to compel a contumacious witness to answer.4

**SS 1.**\_Discovery in equity.\_5--Equity permits a suit for discovery and relief,6 and this practice exists in the Federal courts.7 A bill cannot be maintained for the sole purpose of a discovery,8 nor to fish for information,9 except to ascertain the proper persons to make defendants in a proposed suit at law.10 A bill by simple contract creditors for the discovery of assets need not allege that the alleged concealed assets are not exempt.11

**SS 2.**_Production and inspection of books and papers or survey of property._

78 P. 1072). A judgment of dismissal at the close of plaintiff's case requires the court on appeal to find the most favorable inference in favor of the plaintiff. Edwards v., fendant, and the compulsory production of Phoenix's Ins. Co., 43 Misc. 384, 87 N. Y. S. 507. On appeal from a dismissal on the complaint and plaintiff's opening the facts alleged in the complaint and opening to- gether with every inference that can be fairly drawn from them must be assumed to practice. Id.

**SS 3.**_See 2 C. L. 1106, n. 81._

\*\*SS 39.

1020 DISCOVERY AND INSPECTION SS 3. 5 Cur. Law.

\_Nature of remedy and right thereto.${}^{12}$--\_The Federal courts have authority in actions at law to require the production of the books and writings of the adverse party, so that the cause may be prepared for trial.${}^{13}$ The production of books and papers will not be ordered unless their production is indispensably necessary,${}^{14}$ or is provided for by contract between the parties;${}^{16}$ hence, in the absence of any fiduciary relations between the parties, such production will not be ordered where the books and papers can be obtained by subpoena duces teecum.${}^{16}$ A corporation ought not to be required to produce its books upon the examination of one of its officers before trial, to enable him to refresh his memory therefrom while on the stand, unless he requires their assistance in order to testify concerning the matters in regard to which he is to be examined.${}^{17}$ Where the rights of plaintiff will be preserved by authorizing an inspection of the books and papers at the place of business of defendant in ordinary course during business hours, the order should so provide.${}^{18}$

\_Proceedings.${}^{19}$--\_The notice to defendant must specifically designate the books and papers desired to be examined,${}^{20}$ and the order must authorize such examination.${}^{21}$ In New York an order to produce documents for inspection must be made on petition,${}^{21}$ and a justice in one district has no authority to grant ex parte an application for the exhibition of books and papers in an action in another district.${}^{28}$ Statutory requirements must be complied with.${}^{24}$ Laches may defeat an application for the modification of the order.${}^{25}$ An order granting or refusing an order for inspection is not appealable.${}^{26}$

SS 3. \_Examination or interrogation of party before trial.${}^{27}$--\_The examination of a party before trial is discretionary, to be determined upon the necessities of each

so do. Code 1896, SS 819, construed. Kinney

scribed the papers with sufficient certainty. v. Reeves & Co. \[A1a.\] 39 So. 29.

Home Ins. Co. of New York v. Overturf \[Ind. App.\] 74 N. E. 47.

procedure, including forms, relative to the

**21.** An inspection of accounts rendered

by defendant's firm to plaintiff is not authorized by an order for the examination before

13. Rev. St. 724 contrasted. Cameron

Lumber Co. v. Droney, 132 F. 304.

14. Ashley v. Calhoun Circuit Judge

\[Mich.\] 100 N. V. 1005.

**Examination awarded** where it was necessary in order that plaintiff might find out

amount due on contract, secret payments

being alleged. In re Sands, 98 App. Div. 148,

90 N. Y. S. 749. In an action for injuries

examination of lease under which defendant

acquired right to use premises, and reports

made to it of cause of the accident, allowed. Boyle v. Consolidated Gas Co., 94 N. Y. S. 27.

15. Ballenberg v. Wahn, 92 N. Y. S. 830,

01. Ashley v. Calhoun Circuit Judge

\[Mich.\] 100 N. V. 1008. In a suit to recover

money paid a limited partnership on the ground that its president and secretary

had no authority to make the contract, inspection of the firm's articles, by-laws and

records, in order to ascertain the authority of such officers, denied. Id.

17. Bruen v. Whitman Co., 94 N. Y. S. 304.

01. Ballenberg v. Wahn, 92 N. Y. S. 830.

01. See 3 C. L. 1107.

01. In an action on an insurance policy, a

notice to defendant to produce the proofs of loss, all letters written by defendant's

agent to defendant concerning the loss, and all letters written to the agent by plaintiff

concerning his application and his loss, de-

so do. Code 1896, SS 819, construed. Kinney

scribed the papers with sufficient certainty. v. Reeves & Co. \[A1a.\] 39 So. 29.

Home Ins. Co. of New York v. Overturf \[Ind. App.\] 74 N. E. 47.

procedure, including forms, relative to the

**21.** An inspection of accounts rendered

by defendant's firm to plaintiff is not authorized by an order for the examination before

13. Rev. St. 724 contrasted. Cameron

01. N. Y. S. 429.

01. Ashley v. Calhoun Circuit Judge

\[Mich.\] 100 N. V. 1005.

**Examination** awarded where it was necessary in order that plaintiff might find out

amount due on contract, secret payments

being alleged. In re Sands, 98 App. Div. 148,

90 N. Y. S. 749.

91 N. Y. S. 749.

24. In New York one cannot procure

examination of lease under which defendant

acquired right to use premises, and reports

made to it of cause of the accident, allowed. Boyle v. Consol case,28 the test being the pertinency of the particular interrogatory to the issue in hand.29 A party may be examined not only in regard to the facts necessary to establish an affirmative cause of action, but as to all matters material to the issues.30 One cannot be examined for the purpose of enabling a plaintiff to frame a complaint in an action not yet commenced,31 nor to enable him to examine into the defense it is proposed to make.32 An examination will not lie to ascertain what is a matter of public record.33 Interrogatories directed to corporations will be allowed to stand where to treat them otherwise would be to encourage technical pitfalls.34 In a suit for an accounting, the fact that a trial of the issues prior to the interlocutory judgment will result in disclosing to the court all the facts necessary for a final judgment is no ground for refusing to allow an examination of defendant before trial.35 Where interrogatories are submitted to a corporation, it is the latter's duty to select an agent familiar with the facts to answer the questions.36 Interrogatories must be answered without evasion,37 and an answer not being explicit, the remedy is by motion for a more explicit answer.38 The giving of evasive answers to ex parte interrogatories is not ground for taking the interrogatories as confessed, there being no deliberate refusal to answer.39 In most states statutes prescribe matters that cannot be inquired into.40 In Massachusetts defendant refusing to answer, plaintiff is entitled to the oath of the party interrogated that the matters inquired

28. Nonresident heirs held entitled to ex-

acounting and settlement between him and amine opposite party as ownership of real

plaintiff's assgnor. Id.

estate by intestine. McCormack v. Codding-

31. Code Civ. Proc. $ 870 et seq., construed.

ton, 98 App. Div. 13, 90 N. Y. S. 218. In an

In re Schlotterer, 93 N. Y. S. 895.

action for breach of a contract of employment,

32. McCormack v. Coddington, 98 App.

examination of plaintiff allowed in order to

Div. 13, 90 N. Y. S. 218.

show what efforts he had made to obtain employment after his discharge, and if he did

33. In an action against a railroad for

programful death, an examination of an officer

obtain employment, what was the compensa-

of the company is not permissible to ascertain. Edelstein v. Goldfield, 92 N. Y. S. 243.

44. In an action for breach of a contract, where-

by defendant corporation agreed to give

35. N. Y. S. 243.

plaintiff a preference in executing its printing in

36. Graham v. Ohto Tel. & T. Co., 2 Ohio

order for examination of an officer of de-

37. (N. S.) 612.

fendant held to properly require him to dis-

close the names of persons to whom the

38. Y. S. 481.

corporation wrongfully gave work, the

39. Currently of work given each, but not the

01. Not by a motion to dismiss. Knapp v.

01. In an action against a railroad company for wrongful death, an examination of

01. So held where notary insisted upon

an officer of the company lies to ascertain

whether the train that killed deceased was

owned and operated by defendant, or by

another company which, under contract with

defendant, had the right to use the tracks,

and in the latter case what company, and

under what contracts it used the tracks.

Muldoon v. New York. etc., 6. Co., 98 App.

Div. 169, 91 N. Y. S. 65.

A complaint stating a cause of action in equity for an

acounting, plaintiff is not entitled to examine

defendant before trial to ascertain the condition of the account. Louda v. Revillon, 99

39. Apply. Div. 431, 91 N. Y. S. 194.

01. The fact that the information may expose defendant's case is not ground for de-

01. Oriffen v. Davis, 99 App. Div. 65, 90 N. Y. S. 491. In an action for an accounting

01. Oriffen v. Davis, 99 App. Div. 65, 90 N. Y. S. 491. In an action against a railroad for

01. Oriffen v. Davis, 99 App. Div. 65, 90 N. Y. S. 491. In an action for an accounting

01. Oriffen v. Davis, 99 App. Div. 65, 90 N. Y. S. 491. In an action against a railroad

01. Oriffen v. Davis, 99 App. Div. 65, 90 N. Y. S. 491. In an action for an accounting

01. Or of are within the protection of the statute, and this must be fully stated in the answers.\[41\] Defendant refusing to answer, it is within the power of the court to direct him to appear again for examination,\[42\] and if such order is erroneous, it is not prejudicial to plaintiff.\[43\] Orders allowing the party interrogated leave to file further answers or further time in which to answer are within the discretion of the court.\[44\] The liability for the costs of the proceeding is largely determined by \*statute.\[45\] In New York a judicial order for the examination of certain persons may be vacated on application to the special term.\[46\]

The examination of a defendant, taken before trial, is not to be taken as part of his answer for the purpose of passing on a demurrer.\[47\]

8 4. _Physical examination to prepare for trial.\[48\]_--There is a conflict as to whether a trial court can compel a plaintiff to submit to a physical examination by physicians appointed by the court.\[49\] In New York the subject is regulated by \*statute.\[50\]

DISCRETION; DISRARCHINEEMENT; DISMIESAL AND NONSULT, see latest topical index.

against a street railway company, the latter need not disclose the conductor's report containing the names of witnesses and the manner in which the accident happened. Spinney v, Boston Elevated R. Co. \[Mass.\]

73 N. E. 1021.

41. Spinney v, Boston El. R. Co. \[Mass.\]

73 N. E. 1021.

42, 43. Citizens' Nat. Bank v, Alexander, 34 Ind. App. 596, 73 N. E. 279.

44. Spinney v, Boston El. R. Co. \[Mass.\]

73 N. E. 1021.

45. Under Burns' Ann. St. 1901, $ 519.

providing that if an examination of a party is not read on trial the party causing the same to be taken shall pay the costs thereof, where plaintiff refuses to plead after the court has sustained a demurrer to the complaint, the costs of the examination of defendant are properly taxed against plaintiff. Citizens' Nat. Bank v, Alexander, 34 Ind. App. 596, 73 N. E. 279.

46. Code Civ. Proc. $ 77. In re Schlotter, $3 N. Y. S. 895.

01. Examination taken under Code, $ 581.

VWhitaker v, Jenkins \[N. C.\] 51 S. E. 104.

48. See 3 C. L. 1111. Physical examinations during trial when for the purpose of informing the jury as to the extent of the injury or for use as evidence are treated in Damages, 5 C. L. 904, and Evidence, 3 C. L. 1334; but when used for the purpose of enabling experts to testify, the same rules apply as to an examination before trial and the cases are here treated.

01. Trial court has no such authority May v, Northern Pac, R. Co. \[Mont.\] 81 P.

01.

**NOTE.** \*\*Compulsory physical examination in personal injury cases (Supplementing the note on the same subject in I C. L. p. 936): The first reported case in which the power of the court to compel such examination is asserted is Walsh v, Sayre, 52 How. Prac. \[N. Y.\] 384, decided by the New York superior court in 1868. This was an action for damages for malpractice, and upon the analogy to cases of mayhem, divorce on the grounds of impotency and cases of controversies between a widow, claiming to be pregnant by the decedent, and other helrs of the estate, wherein such examinations had been ordered, it was held that a court of law could compel the plaintiff to submit to a physical examination. A leading case on the subject is Schroeder v, R. Co., 47 Iowa, 375, decided in 1877. Mention is not made of the New York case cited above. the opinion stating that there were no precedents at the time of rendition. The court held that the trial court had the power to compel the plaintiff to submit to such an examination. These cases were followed in the cases of Turnville Co. v, Daily, 37 Ohio St. 104: Railroad Co. v, Thul, 29 Kan, 466.

44 Am. Rep. 659; White v, Railroad Co., 61 Wis. 536, 21 N. W. 524, 50 Am. Rep. 154; Railroad Co., V. Childrens, 82 G. 719, 9 S. E. 602.

41 Am. St. Rep. 189, 3 J. R. A. 808 (In this case Georgia Code, $ 206 is referred to, but the power is asserted upon the authority of the cases herein considered above): Sibley v, Smith, 46 Ark. 275, 55 Am. Rep. 584; Graves v, Battle Creek, 93 Mich. 266, 54 N. W. 157, 35 Am. St. Rep. 561, 19 L. R. A. 641: Belt E. L. Co. v, Allen, 102 Ky. 551, 44 S. W. 89, 80 Am. St. Rep. 374; Lane v. Railroad Co., 21 Wash. 119, 57 N. 267, 76 Am. St. Rep. 821, 46 L. R. A. 153; Brown v. Railroad Co., 12 N. D. 61, 95 N. W. 153, 102 Am

## 5 Cur. Law. Discovery and Inspection SS 4.

divided court--seven to two--that the power--low Is followed in Railway Co. v. Rice, 144 does not reside in the Federal trial courts. All. 227, 33 N. E. 951, and in Railway Co. v. As shown in a former note, 1 C. L. 396, this decision was influenced by a Federal's status. These cases have been followed in City of Kingfisher. Altizer, 13 Okl. 121, 74 P. 107; Austin & N. W. Railway Co. v. Cluck 172. Civ. App. 273. W. Felt 569; Stucke V. Railroad Co., 177 Mass. 155, 58 N. E. 686, 83 Am. St. Rep. 269, 52 L. R.'A. 328; and May v. Northern Pace. R. Co. (IOM1. 81 P. 238.)

The foregoing review shows the decisions of courts upon the first presentation of this question to them. The case of Walsh v. Sharve was followed in Shaw v. Van Hensel sleaer, 60 How. Prac. \[N. Y.\] 143; but in 1891 the question came before the court of appeals of New York in McQuigan, 8 Railway Co., 129 N. Y. 50, 29 N. E. 235, 26 Am. St. Rep. 507, 14 L. R. A. 466, and Walsh v. Bayre, 52 How. Prac. \[N. Y.\] 34, and Shaw v. Van Hensel sleaer, 60 How. Prac. \[N. Y.\] 143 was were overruled. The McQuigan Case was followed in Cole v. Fall Brook Coal. 159 N. Y. 59, 53 N. E. 670, decided in 1899. The legislature of New York, however, circumvented the effect of these last decisions by enacting a statute directly conferring upon trial courts the power to make and enforce such an order. In Shepard v. Railway Co., 85 Mo. 629, 55 Am. Rep. 390, decided in 1885, a view contrary to that expressed in Lloyd's Case is intimated by the supreme court of Missouri, and in Slokelum v. Railway Co., 93 Mo. 400, 4 S. W. 701, 3 Am. St. Rep. 549, a decision was rendered which had the effect of directly reversing the Lloyd Case; and the Slokelum Case was followed in Owens v. Ry. Co., 95 Mo. 169, 8 S. W. 350, 6 Am. St. Rep. 39. The Schroeder Case was followed by the supreme court of Iowa in Hall v. Manson, 99 Iowa, 698, 68 N. W. 922, 34 L. R. A. 207; and Railway Co. v. Thul was approved and followed in Ottawa, GIIlland, 63 Kan. 165, 65 P. 255, 88 Am. St. Rep. 232, and again in Railway Co. v. Palmore, 68 Kan. 545, 75 P. 509, 64 L. R. A. 90. White v. Milvaukee R. Co. was followed by the Supreme Court of Wisconsin in O'Brien v. La Crosse, 99 WIs, 421, 75 N. W. 81, 40 L. R. A. 831. Sibley v. Smith, above, was followed in Railway Co. v. Dobbins, 60 Ark. 481, 30 S. W. 887, 31 S. W. 147. The supreme court of Indiana has been most uncertain in its treatment of the question. Kerr v. Brid-well, above, was decided in May 1889; but in November of the same year, in Hess v. Low-rey, 122 Ind. 253, 23 N. E. 156, 17 Am. St. Rep. 355, 7 L. R. A. 90, a contrary doctrine is announced. In 1891, in Railroad Co. v. Newmeyer, 129 Ind. 401, 28 N. E. 860, the announcement in Hess v. Lowrey is pronounced dictum, and the authority is again distinctly denied. But the Newmeyer Case is distinctly reversed in South Bend of v. Turner, 156 Ind. 418, 60 N. E. 271, 83 Am. St. Rep. 200, 54 L. R. A. 396, and, so far as we are aware, the last decision from that court asserts the power. Belt E. L. Co. v. Allen is affirmed in Distilling Co. v. Riggs, 104 Ky. 1, 45 S. W. 89, and In Railroad Co. v. Ship-son, 111 Ky. 754, 64 S. W. 783, 71 N. Wanev v. Winona, 78 Minn. 98, 80 N. W. 851, 79 Am. St. Rep. 354, 46 L. R. A. 448, decided in 1893, the dictum in the Hatfield Case is declared to be the law in Minnesota. Parker v. Ens-

In Rainroad Co. v. Childress, SS 23 Ga. 175, 9 S. E. 602, 14 Am. St. Rep. 189, 3 L. R. A. 808, 1024 DISORDERLY CONDUCT. 5 Cur. Law.

Disorderly conduct as defined by the statutes of various states includes not only the common-law offense of breach of the peace,\[52\] but a number of specifically prohibited disorderly acts, such as drunkenness in public places,\[53\] shooting on a public street,\[54\] or use of language calculated to provoke a breach of the peace.\[85\] It is sometimes required that some person be in fact disturbed.\[86\]

it is said, "It is true that the rule is one

demand the order as a matter of right, but of modern growth." Most of the courts contain

that in granting it the court may exercise

tent themselves with the bare assertion of

its discretion. We are unable to understand the pow.tr, without any discussion of its ori-

this contradiction of terms, and observe that

gin.

in most of the cases it is held that the ap-

billion to a physical examination, is the

cretion of the trial court, subject to review

authority to order it an absolute or only a

for manifest abuse only.

qualified one? May the plaintiff be compelled

(4) In the Schroeder Case, and in Sibley

to submit to the administration to him of

v. Smith it is said that refusal of the plain-

anasthetics or drugs by which the looses

lift to comply with the order would constul

scouness altogether, or, if the injury is an

true contempt of court, and subject the plain-

internal one, may he be compelled to submit

tent to the punishment of a recuant witness;

to the use of such surgical instruments as

while in Turnpike v. Baily, Lane v. Railroad

the physicians appointed to make the examl-

Co., Wanck v. Winosa, Brown v. Railroad

nation may see fit to use? May he comp-

Co., and in the dissenting opinion in the

pelled to exhibit his injury to the jury in

topen court, and, if the plaintiff be a woman,

tion of content; that the court cannot

is there any protection whatever against

pel the plaintiff to comply with the order

violence to her feelings? By some of these

which it has made, but, if he refuses, the

courts it has been held that anaesthetics and

court may dismiss his action or refuse to

drugs should not be used (Schroeder, Rail-

permit him to testify.

way Co., 47 Iowa, 375; Rufferson v. Sand

From the assertion of the power arising

Besch, 107 Mich. 496, 65 N. W. 616), and

that plaintiff should not be compelled to sub-

nary cases, as disclosed by the decision in

mit to the use of surgical instruments

(O'Brien v. La Crosse, 99 Wis. 421, 75 N. W. 81, 40 L. R. A. 831; but in Railway Co.,

been carried; and, not content with applying

Palmore, 83 Kan. 645, 75 P. 609, 64 L. R. A. 90, it was held that the plaintiff could

be compelled to submit to the examination,

and to an injection of a drug into his injured

Slate, 100 Ala. 86, 14 So. 878), and for the

eye to dilate the pupil; and in Hall v. Man-

same reasons advanced for the exercise of

son, 99 Iowa, 698, 68 N. W. 922, 4 L. R. A. 207, it was held that the plaintiff, a woman,

setting its existence, the doctrine has been

could be compelled to remove her shoe and

sticoking, that an examination might be

model to bare the view of the jury part

had and measurements taken of her injured

and make in the presence of the jury. In Rail-

which were certain tatto marks, in order to

way Co., VIII, 8 So. 90, 24 Am. St. Rep. 764,

enable the state to complete the case against

9 L. R. A. 442, above, the Supreme Court of

him, with the result that the defendant was

Alabama said: "When it becomes a question

convicted of a capital offense. State v. Ah

of possible violence to the refined and delic-

cste feelings of the plaintiff on the one

oplinton of Holloway, J., in May v. Northern

hand, and possible injustice on the other, the

law cannot hesitate. Justice must be done."

50 Under Code Civ. Proc. 873, an order

This is quoted with approval in Lane v.

for the physical examination of plaintiff

Railway Co., 21 Wash. 119, 57 P. 387, 15 Am.

before trial must contain provision for his

St. Rep. 821, 46 L. R. A. 53. However, in

orax examination, although the scope of such

Graves V. Battle Creek, 85 Mich. 265, 64 N.

examination may be confined by the court

W. T. 57, 58 Am. St. Rep. 851, 19 L. R. A. 641,

it is said: "The decisions are not uniform

upon this question, but the very great weight

S. 111.

of authority is in favor of the exercise of

such power by the court under proper

strictions, the rule recognising, however, that

a wide discretion is vested in the trial court,

which justifies a refusal to require the ex-

amination * * * * * * * 5 Cur. Law. Disturbance of Public assemblages.

Indictment in the language of the statute is sufficient," and slight variances from the statute may be disregarded." An indictment is not double because it alleges several disorderly acts." An averment of drunkenness at a certain building near a public road. does not allege drunkenness in a public place," nor can evidence of drunkenness at a place other than the building specified be received." The New Jersey statute excludes disorderly conduct by a drunken person, and the complaint must show that defendant was not at the time of the offense under the influence of liquor." Where defendant testified that he never used profanity, he may be contradicted as to occasions other than that on trial."

DISCORDERLY HOUSS.

Includes only the criminal offense of keeping or frequenting a bawdy house," the keeping of gaming houses" and the remedies against bawdy houses as nuisances" being elsewhere treated.

Any house kept for resort" for purposes injurious to the public morals or safeguards is a disorderly house," and keepers" and frequenters" of such houses as well as persons leasing property for such purpose" or allowing it to be so used" are liable. A count for frequenting a bawdy house may be joined with one for keeping such a house."

DISCOLUTION: DISTRESS; DISTEIC ATTORNEYS; DISTEIC OF Columbia, see latest topical index.

DISTRUBANCE OF PUBLIC ASSEMBLAGES.

Disturbance of public assemblies was a misdeameanor at common law," but is generally prohibited by statute; such statutes being given a liberal construction to prevent all unwarrantable disturbances." The assemblage need not at the time of

scription is sufficient. Commonwealth v. 68. Commonwealth v. Schoen, 25 Pa. Super. Ct. 211. And see Clark & M. Crimes \[2d Ed. 713, 715.

1 s unnecessary if the language used naturally would produce that effect, but otherwise such intent is essential. State v. Shelby \[Minn.\] 103 N. W. 725.

56. The fact that a peace officer was disturbed is insufficient. Village of Salem v. Coffey \[Mop.\] 88 S. W. 772.

01. Stancliff v. United States \[Ind. T.\] 82 S. W. 82.

01. Ahouse "In a manner calculated" instead of "under circumstances calculated" to produce breach of peace, held sufficient. Trezevant v. State \[Tex. Cr. App.\] 84 S. W. 82.

01. Stancliff v. U. S. \[Ind. T.\] 82 S. W. 82.

01. 61. Murrey v. State \[Tex. Cr. App.\] 87 S. W. 849.

01. State v. Stms \[N. J. Law\] 63 A. 32.

01. Lambda v. State \[Tex. Cr. App.\] 85 S. W. 803.

01. See Indecency, Lewdness and Obsectify. 3 C. L. 1697, as to prostitution.

01. See Betting and Gaming, 6 C. L. 417.

01. See Nuisance, 4 C. L. 839. See, also, injunction, 4 C. L. 96.

01. Evidence held not to require a charge that * single Instance of illicit intercourse was not sufficient. Stone v. State \[Tex. Cr. App.\] 85 S. W. 608.

6 Curr. L.--65.

68. Commonwealth v. Schoen, 25 Pa. Super. Ct. 211. And see Clark & M. Crimes \[2d Ed.\] 718, 715.

01. Proof of actual possession and control will sustain an indictment for keeping a disorderly house. Stone v. State \[Tex. Cr. App.\] 85 S. W. 807.

01. A woman notoriously frequenting a bawdy house and publicly solitting persons to go there with her is guilty of a misde-meanor at common law. Commonwealth v. Schoen, 25 Pa. Super, Ct. 211.

01. A Contract for sale may be shown to be a sham not precluding the existence of a tenancy. State v. Emblem \[W. Va.\] 49 S. E. 554. And such showing may be made by circumstantial evidence. Id.

01. A statute forbidding property owners to allow their buildings to be "kept" as a place of resort for unlawful sexual intercourse prohibits allowing them to be used for such purpose. Sess, Laws 1903, c. 12.

01. Lambda v. State \[Tex. Cr. App.\] 85 S. W. 603.

01. See Indecency, Lewdness and Obsectify. 3 C. L. 1697, as to prostitution.

01. See Betting and Gaming, 6 C. L. 417.

01. See Nuisance, 4 C. L. 839. See, also, injunction, 4 C. L. 96.

01. Evidence held not to require a charge that * single Instance of illicit intercourse was not sufficient. Stone v. State \[Tex. Cr. App.\] 85 S. W. 608.

6 Curr. L.--65.

the disturbance be actually engaged in religious services.74 A slight variance as to the name of the organization whose services were disturbed is not fatal.77

DIVORCE.

SS 1. Jarisdiction and Domileile of Parties (1033). Reference (1033). Interlocutory and (1026). Service of Process on Nonresident Defendant (1027).

SS 2. Causes for Divroce (1028).

- SS 3. Defenses and Execuses; Facts Controlling a Bur. Callusion (1039). Condonation (1030). Recrimination (1031).

SS 4. Prentice and Procedure. In General (1031).

SS 5. Catbody and Support of Children (1035).

SS 6. Argument of Property Rights (1036).

(1037). Pleading (1032). Framing and Trial of Issues (1032). Evidence and Proof (1037).

SS 8. Foreign Divroces (1057).

\_Scope of article.--\_Suits for annulment78 and for support or separate maintenance,79 are elsewhere treated, as is the subject of alimony.80

SS 1. \_Jurisdiction and domicile of parties.81--\_Jurisdiction of the subject-matter82 and parties83 in divorce proceedings is statutory. Jurisdiction of the parties may be obtained by appearance by attorney,84 but a decree granted upon a forged entry of appearance is a nullity and binds no one.85 Where defendant appears and moves to set such judgment aside, but subsequently consents to dismiss the motion, such dismissal does not validate the decree of divorce nor affect the marriage relation.86 The principle of estoppel cannot be invoked to confer jurisdiction on a foreign tribunal.87 Where one court has acquired jurisdiction of a divorce action by the filing of a bill in good faith, and the issuance of process thereon, another court of co-ordinate jurisdiction in the same state has no power to take jurisdiction of an action by the defendant in the suit already commenced.88 In such case prohibition is the proper remedy to settle the conflict in jurisdiction.89

\_Domicile of complainant.89--\_Bona fide residence of complainant in the state for the period required by law91 is a jurisdictional prerequisite,92 and must be established by the complainant by the quantum of proof prescribed by the statute.93 If

70. Disturbance while dinner was being served on the church grounds after morning 438.

85, 86, Brown v. Dann \[Kan.\] 81 P. 471.

V. State \[Ga.\] 51 S. E. 305.

77. Averment of New Hope Methodist Church (Covered) not variant from proof of New Hope African Methodist Episposal Church. Edwards v. State, 121 Ga. 890, 49 S. E. 674.

01. See Marriage, 4 C. L. 628.

01. See Husband and Wife, 3 C. L. 169.

01. See 5 C. L. 101.

01. See 5 C. L. 1127.

01. Under Pub. Laws 1899, c. 649, $ 3, a single justice of the supreme court assigned to the apellate division is a quorum to try the petitions for divorce; hence such single justice has final jurisdiction as to incidental questions arising on a trial, as the competency of the system. Banjan v. Banigan, 26 R. I. 454, 69 A. 813.

01. Record and evidence held to show that court had jurisdiction of subject-matter and parties. Given v. Given, 25 Pa. Super, Ct. 467.

01. Court acquires jurisdiction of a defendant by the appearance of an attorney under written authority signed by defendant.

5 Cur. Law. DIVORCE $ 1. 1027

there is a serious doubt as to the good faith of petitioner's residence in the state, jurisdiction should not be exercised." In some states, if the offense relied on was committed in the state, the complainant need not show residence for a certain period." Every person is presumed to retain the domicile of his nativity until another is acquired." To constitute a change of domicile there must be a concurrence of actual change of residence with an intention to abandon the old and acquire a new domicile." An intention to return to the domicile of nativity, after a change of residence, is ineffective when it is conditional upon inclination or the happening of future events." In the absence of contrary proof, the law presumes that a husband and wife are living together and that the wife's domicile is that of the husband." To overcome this presumption proof of willful desertion by the husband is necessary.1 Where there is a valid decree of separation from bed and board, the presumption that the wife's domicile follows that of the husband does not obtain.2

Footnote 1: The name of the return of the sample is not available.

\_Service of process on nonresident defendant.3--\_Personal service outside the state is authorized by some statutes." Whether service is personal5 or constructive,6

statutory requirements must be strictly complied with. Divorce and separation from bed and board being distinct and separate, a statute authorizing substituted service in actions for separation cannot be extended to suits for divorce.7 The court of the domicile of marriage may, at the suit of the wife, render a decree of divorce

resident freeholders and householders. Two witnesses held properly qualified under statute. Roshniakorski \[Ind. \[Mass.\] 75 N. E. 151. Evidence held insuffin-App.\] 72 N. E. 485.

Footnote 1028 DIVORCE $ 2. 5 Cur. Law. against the nonresident husband on statutory constructive service, but is without jurisdiction to render a decree for alimony or costs against the husband.8

by a withdrawal of the consent and a demand for marital duty.19 Such a demand on the husband, and a refusal by him, do not make him a desertcr unless he is able to support the wife.20 To establish a constructive desertion, petitioner's separation must have been necessary, and defendant must have had the intention to cause such separation.21 It is only such misconduct by the husband as will entitle the wife to a divorce that justifies desertion by the wife.22 The fact that one spouse does not object to the other's procuring a divorce is not alone evidence of willful desertion.22 The fact that a wife lived alone after a separation is evidence of the continuance of the separation but not that the original separation was desertion.24 The domicile of the husband is that of the wife only when the husband provides a domicile where the wife has a right to stay.25 Hence, where the husband fails to provide a domicile and leaves the wife for an indefinite period, she is entitled to a decree of separation from bed and board on the ground of abandonment.22 A husband cannot secure a divorce in New Jersey for a desertion occurring in New York unless the desertion is shown to have continued two years after the husband's residence in New Jersey began.27

_Cruel and inhuman treatment28_ is usually a ground of divorce, but the mere fact that the parties can no longer live together is not.29 Personal violence is not required to constitute cruel and inhuman treatment.20

_Adultery_, where sufficiently shown by the evidence,21 is a cause for divorce in most states. Commission of the act need not be proved by eyewitnesses, if the disposition and opportunity to commit it are sufficiently shown.22

remain the same. Thompson v. Thompson (Ky.) 85 S, W. 730.

\[Ky.\] 85 S, W. 840. Evidence insufficient to corroborate husband as to desertion by wife, where they were actors playing in different parts of the country and separate living began with mutual consent. Currier v. Currier \[N. J. Eq.\] 59 A. 4.

\[N. J. Eq.\] 59 A. 4.

\[N. J. Eq.\] 59 A. 40. Where parties married without means or expectation of establishing a home, went to a hotel for a few days and then separated to their former homes, and only met at the hotel a few times thereafter, the husband's subsequent refusal to support the wife was not evidence of willful desertion, in the absence of a showing as to his ability to support her. Carson v. Carson \[N. J. Eq.\] 61 A. 157.

\[N. J. Eq.\] 61 A. 157.

\[N. J. Eq.\] 62 A. 157. No divorce on ground of constructive desertion by husband where wife left him on account of his habitual drunkenness and beause he could not support her properly, evidence not showing intention by defendant to cause such separation. Foote v. Foote \[N. J. Eq.\] 61 A. 90.

\[N. J. Eq.\] 63 A. 90. Whaton v. Walton, 114 III. App. 116. Husband entitled to divorce where wife left him and refused to return on his request, her reasons not being such as would entitle her to a divorce. Id.

\[N. J. Eq.\] 64 A. 4.

\[N. J. Eq.\] 65 A. 309.

\[N. J. Eq.\] 66 A. 309.

\[N. J. Eq.\] 67 A. 31. Evidence insufficient to prove adultery by wife. Farrow v. Parrow \[N. J. Eq.\] 68 A. 118. In suit by wife for separation, evidence held insufficient to sustain reprimain-tory charge of adultery by the wife. Costell \[N. J. Eq.\] 69 A. 49. Evidence held to show adultery by wife. Fienberg v. Fienberg \[N. J. Eq.\] 69 A. 880. Evidence sufficient to prove adultery by wife. Shoemaker v. Shoemaker, 25 Pa. Super. Ct. 183.

\[N. J. Eq.\] 69 A. 880.

Drumkenness,\[38\] when shown to be habitual,\[34\] is a sufficient cause in some states,\[38\] but not in others.\[36\]

_Imprisonment.\[37\]--A sentence of imprisonment is a ground of divorce in some jurisdictions.\[38\]_

_'_ _Innsinity\[39\]_ subsequent to the marriage is not a ground of divorce. Thus, under the Kentucky statute, making separate living without any cohabitation for five years a cause of divorce, a divorce will not be granted if the living apart was caused by the permanent lunacy of one of the spouses.\[40\] But if the parties lived apart for five years before the afflicted spouse became insane, the other will be granted a divorce.\[41\]\_

_Fraud_ is a ground of divorce in some states,\[42\] but usually this is a ground for annulment.\[43\]\_

_SS 3. Defenses and excuses; facts constituting a bar.\[44\]_

_Collusion.\[45\]--If it appears that a defense has been suppressed by collusion,\[46\] or that the acts charged were committed by procurement or with connivance of the other spouse,\[47\] a divorce will be denied._

_Connotation\[48\] is the conditional forgiveness of a matrimonial offense constituting a cause of divorce.\[49\]_

There must be reconciliation and remission of the offense

**33. See 3 C. L. 1130.**

**34. Evidence suffClient to show only occasional instances of drunkenness and not habitual drunkenness.** _Acker v. Acker, 22_

**35. Habitual drunkenness must have existed during three years immediately preceding bill for divorce, or for separation, followed within a reasonable time by suit for divorce.** _Acker v. Acker, 22_

**36. Drunkenness and consequent inability to support the wife is not a cause for d1-vore.** _Wheeler \[Md. 61 A. 216\]_

**37. Habitual drunkenness is not a cause for absolute divorce in New Jersey, even when the effect is to justify the wife in separating herself from her husband, and to render the husband incapable of supporting the wife.** _Foote v. Foote \[X. J. Eq.\]_ 61 A. 90.\_

**37. See 3 C. L. 1130.**

**38. Under V. S. 2674, making a sentence of three years or more to prison ground of divorce, the length of the sentence by the court controls regardless of the shortening of the actual term of confinement by good behavior of the prisoner.** _Sargood v. Sarkgood \[Vt.\]_ 61 A. 472. The Pennsylvania statute making conviction of a felony and sentence of imprisonment for a term exceeding two years a ground of divorce refers only to conviction of a single felony followed by a single term, and not to conviction for several offenses the sentences for which combined exceed two years. Under Act May 8, 1854 (P. L. 644), amended by Act June 1, 1859 (P. L. 142), conviction of large and receiving stolen goods and sentence of one year and six months for each is not ground for divorce by wife. Kauffman, V. Kauffman, 24 Pa. Super. Ct. 437.\*\*

\*\*39. Insinity is not a ground of divorce under City. Code, c. 37. The court did not de- elde whether insanity at the time of the marriage was ground for annulment in equity, since the evidence was found in-sufficient to establish the existence of in-sufficient 5 Cur. Law. DIVORCE SS 4. 1031 by the injured party. \[50\] Voluntary resumption of marital relations constitutes a condonation, \[51\] provided the forgiving party had full knowledge of the other's misconduct. \[52\] Subsequent misconduct of the forgiven spouse makes the condonation ineffective as a defense. \[53\] To cure a desertion under the California statute the party deserting must not only return and offer in good faith to fulfill the marital obligation, but must also solicit condonation, \[54\] and such action must be taken by the deserting party before the expiration of the statutory period of desertion. \[55\] Condonation should be pleaded, \[56\] but even if not pleaded, where evidence of it is admitted without objection, and the defense established, a divorce will be denied, \[57\] since the defendant would in such case have the right to amend so as to raise the issue. \[58\]

\_Recrimination. \[59\]--A plaintiff who has himself broken the marriage contract cannot be relieved from its obligations because the other spouse may also have broken it, \[50\] since divorce is a remedy for the innocent and injured. \[51\] Hence an action for divorce on any one of the statutory grounds may be defeated by proof of existence of another statutory ground, \[52\] without regard to the nature or gravity of the several causes. \[53\] Sufficient recriminatory charges being alleged in the answer, the plaintiff will be denied relief, though defendant does not pray for a divorce. \[54\]

_. $ 4. Practice and procedure. In general. \[58\]--If the statute denominates the annulment of a void marriage a "divorce" proceeding, the incidents of a divorce proceeding attach thereto. \[59\] Where a petition alleges that defendant has conveyed property to a third person for the purpose of defeating the collection of any alimony_

50. Civ. Code, $ 116. Kusel v. Kusel \[Ca1\] to show solitcitation of condonement. Kusel v. Kusel \[Ca1\] $ P. 297. \[51\]. Creuely condoned by voluntary resumption of matrimmonial relations. \[Fulhurst v. Fulhurst \[Mo. App.\] $ 8. W. 541. Re-sumption of marital intercourse after a known cause for divorce is a condonation thereof. Womack v. Womack \[Ark.\] $ 8. W. 987. \[62\]. Husband held not to have had such knowledge of wife's improper conduct as to have condoned it. Apgar v. Apgar \[N. J. Eq.\] $ 230. Evidence insufficient to prove that wife condoned husband's act, she not having adequate knowledge of the cause of his condition. Andros v. Andros \[Ca1\]. App.\] $ 82 P. 90. Husband held to have had knowledge of wife's infidelity and to have condoned it by exhibiting with her thereafter. Day v. Day \[Kan.\] $ 7. 974. \[53\]. Condonation or forgivens to be effective requires the subsequent good conduct of the one forgiven. Apgar v. Apgar \[N. J. Eq.\] $ 230. Civ. Code, $ 117. Ku-sel v. Kusel \[Ca1\] $ 17. P. 297. Condonation of adultery no. defense where husband's relations to paramount were improper thereafter. Totten v. Totten \[N. J. Eq.\] $ 0. 1095. Condonation of drurkenness and acts of cruel and inhmann treatment held abrogated by subsequent misconduct. Edleman v. Edleman v. Edleman v. Wojes 104 N. W. 56. If husband condoned wife's impropletly by combining with her, her subsequent misconduct caused the forgivens to be fortified. Apgar v. Apgar \[N. J. Eq.\] $ 230. Evidence held to show illicit relations resumed after having been condoned, the opportunity and inclination for such resumption being shown, but no specific act proven. Totten v. Totten \[N. J. Eq.\] $ 0. A. 1095. \[54\]. City, Code, $ 102. Finding held not by the author of the author 1038 DIVORCE SS 4. 5 Cur. Law. that may be allowed, and the grantee is served with summons, such grantee cannot be heard on the question of divorce, but his defense is limited to the question of ali-mony and the validity of his conveyance.\[67\]

\_Pleading.\[68\]--\_The petition must show jurisdictional facts, such as residence of petitioner in the state for the required period.\[69\] A petition for divorce on the ground of constructive desertion must set out facts showing the necessity of petitioner's separation from defendant.\[70\] A petition alleging abusive language by defendant, reflecting on plaintiff's character, need not allege that the language was used in the presence of a third party.\[11\] Where a cross complaint is stricken and defendant, instead of answering, brings an independent action for divorce, the plea of another action pending is not available in the latter suit.\[72\] The general rules regarding the filing of a supplemental complaint\[73\] or cross bill,\[74\] and the raising of objections to pleadings,\[75\] control. The New York statute authorizing a defense by way of counterclaim in actions for divorce or separation does not authorize a counterclaim on facts warranting annulment of the marriage.\[76\] But if the facts alleged are sufficient to constitute a counterclaim, the allegations will not be stricken, though the pleading is not denominated a counterclaim.\[77\]

_Framing and trial of issues._--Even though a defendant has failed to move to have a complaint made more definite or certain regarding charges made, he is entitled to have the issues framed with such a degree of definiteness as will avoid surprise on trial and enable him to prepare his defense.\[78\] Whether adultery charged was committed with the consent, connivance, or procurement of the plaintiff, are is 5 Cur. Law. DIVORCE $ 4. 1033

sues to be tried by the court, if necessary, after the rendition of a verdict on the issue of adultery.\[79\]

_Evidence and proof.\[80\]_--Full proof of a sufficient cause for divorce is required,\[81\] and a careful examination of all the evidence not only by trial but also by appellate courts.\[82\] A divorce will not be granted on the uncorroborated evidence of the party seeking it.\[83\] A divorce should not be granted upon a confession of misconduct unless all suspicion of collusion has been removed.\[84\] A husband in a suit by him for divorce may testify to admissions by the wife as to her condition at the time of the marriage and her concealment of it,\[85\] but such testimony should be cautiously received and carefully weighed.\[86\] While the testimony of a co-respondent is to be regarded with caution it cannot be entirely disregarded merely because he is an accomplice.\[87\] Misconduct not alleged cannot be proved.\[88\] A default must be proved by competent evidence.\[89\]

_Reference.\[90\]_--The opinion of a master in a divorce proceeding is merely advis-ory.\[91\]

_Interlocutory and final decrees._--The right to a divorce is subject to the legislative will and exists only by legislative grant.\[92\] Hence, the legislature may prescribe the terms and conditions on which a divorce may be granted and has power to regulate procedure within reasonable limits.\[93\] Thus, in California, a final decree can be entered only upon expiration of a year from entry of an interlocutory decree, and after an appeal therefrom, if taken, has been finally disposed of.\[94\] Under this statute, a decree purporting to grant an immediate divorce when no interlocutory decree has been entered is void.\[95\] But, though void in so far as it grants an immediate divorce, such a decree may constitute a valid interlocutory judgment declaring a party entitled to a divorce,\[96\] and an order vacating such judgment as an entirety is ineffective to destroy it as such preliminary decree.\[97\] The year which must elapse

79 Bush v. Bush, $3 N. Y. S. 189,

256 See 3 C. L. 1133.

81. Rlabel v. Rlabel, 24 Pa. Super. Ct. 303.

01. Part of evidence taken by master was lost, but court decreed divorce on what evidence was left in the report made. Held

83 N. Y. S. 131.

84 Rishel, 24 Pa. Super. Ct. 303.

85. C. L. 1134.

01. Corder v. Corder \[N. J. Eq.\] 59 A. 309.

01. A divorce will not be granted upon the uncorroborated testimony of either of the parties. By express provisions of Civ. Code, $ 180. Berry v. Berry, 145 Cal. 784, 79 P.

01. Evidence insufficient to support charge of failure to support wife to best of husband's ability. Id. No divorce where commision!s evidence was uncorroborated either as to his residence in the state sufficient to give jurisdiction, or as to the will-ful desertion charged. Sabin v. Sabin \[N. J. Eq.\] 59 A. 627. Where complainant was not corroborated as to desertion charged except as to fact that parties were living apart, no divorce was warranted. Hunt v. Hunt

01. \[N. J. Eq.\] 59 A. 642. Petitioner's testimony as to husband's habitual drutkenness as a cause for her separation held not sufficiently corroborated. Foote v. Foote \[N. J. Eq.\] 61 A. 90.

before a final decree can be entered is a year from actual entry of the interlocutory judgment, not from a theoretical nunc pro tune order." If an interlocutory decree has been in fact entered," and the required year has elapsed, mandamus lies to compel entry of final judgment.1

In New York, final judgment can be had only upon expiration of three months after the filing of the interlocutory decree that a party is entitled to a divorce. The entry of the interlocutory decree does not dissolve the marriage.2 When the interlocutory decree so directs,3 the clerk may enter final judgment as of course, upon expiration of the three months, unless the judge meantime directs otherwise.4 Where application is made for entry of final judgment, either by special direction of the judge, or by the clerk under directions contained in the interlocutory judgment, proof of necessary facts must be made to the judge.5

Under the Louisiana statute authorizing application for a divorce at the expiration of one year from the time a judgment of separation from bed and board has become final, the year begins to run from the finality of the judgment of the appellate court, in case there is an appeal.5

_Decree, vacation, and modification._"--The decree must be supported by sufficient findings of facts." A final decree dismissing a bill for divorce may include an allowance of attorney's fees to the successful defendant." A prayer for general relief does not warrant a default decree giving relief inconsistent with the theory and allegations of the complaint.10 Under a statute authorizing a divorce from bed and board in cases where absolute divorce is prayed for, if the facts authorize such decree, the court will not grant such decree of its own motion.11 A refusal to revoke a final decree of divorce being discretionary, will be reversed by the appellate court only for an abuse of discretion.12 A default judgment for divorce is protected against collateral attack by the same conclusive presumptions of validity and the same favorable intendments which surround any other judgments.18 A mere informality does not render a decree subject to collateral attack.14 A judgment obtained by fraud18 will

Where court ordered entry of interlocutory decree but it was not in fact enter-ed, mandamus would not issue to compel entry of final judgment. Civ, Code, & 131.

Smith v. Superior Court of San Francisco \[Cal.\] 82 P. 79.

I. Claudulus v. Melvin, 146 Cal. 257, 79 P.

I. Codec Civ. Proc. & 1774. Petit v. Petit, 45 Misc. 155, 91 N. Y. S. 979. Hence a marriage of a party to the divorce suit in a foreign state after the entry of the interlocutory judgment and before entry of final decree is void. Petit v. Petit, 93 N. Y. S. 1001.

I. Claudulus v. Melvin, 146 Cal. 257, 79 P.

be set aside provided a good defense to the action existed,16 and the suit to set the decree aside is not barred by laches.17 A divorce decree will not be set aside when the party in whose favor it was granted is dead, the rights of minors have intervened, and the complainant seeking review has been guilty of laches.18

\_New trial.19--\_A somewhat liberal rule prevails in regard to granting new trials in divorce actions, since public policy demands that there should be a full hearing in such cases.20

\_Review.21--\_Condonation of the offense on which the decree of divorce was based will not justify granting of leave to file a bill of review.22 The disposition of a divorce case being a matter of public concern, an appellate court will examine considerations supporting a judgment of dismissal even though no argument is submitted for defendant.23 Acceptance of money under a decree for maintenance does not prevent a defendant in a subsequent suit for divorce from attacking the decree on motion for a new trial.24 In Kentucky no appeal lies to the court of appeals from a judgment granting a divorce.25

\_Costs and attorney's fees.26--\_In Kentucky, the husband is liable for costs and a reasonable attorney's fee though he secures a divorce for fault of his wife, when it is not shown that she is able to pay.27

**SS 5.**\_Custody and support of children.28--\_In awarding custody of the children, their welfare is the prime and almost the only consideration,29 and custody will be awarded to the party best suited by character and situation to properly care for and maintain them.30 The judgment in a habeas corpus proceeding to determine the 16. Wife held to have had a good defense 5 C. L. 101, for allowances for support of to suit by husband wherein he obtained judgment by fraud. Wormack v. Wormack \[Ark.\] 83 S. W. 377.

\*\*17.\*\*Husband knew of institution of suit and of decree but waited 2% years until wife was dead and rights of others had intervened before assilling decree. Held suit barred by laehes. Evans v. Woodsworth, 213 Ill. 404, 72 N. E. 1082.

\*\*18.\*\*Evans v. Woodsworth, 115 Ill. App. 202.

\*\*Note:\*\*For an exhaustive treatment of the right to contest the validity of a dil-vore decree after the death of one or both of the parties, see note appended to Lawrence v. Nelson \[113 Iowa 277\] in 57 L. R. A. 583.

\*\*10.\*\*See 3 C. L. 1134.

\*\*20.\*\*Sickness of one party held ground for new trial, sufficient diligence in trying to get a postponement being shown. Smith v. Smith, 145 Cal. 615, 79 P. 275.

\*\*21.\*\*See 3 C. L. 1136.

\*\*22.\*\*Condonation of adultery should have been pleaded and proved in original suit. Watkinson v. Watkinson \[N. J. Err. & App.\] 60 A. 931.

\*\*23.\*\*Gould v. Gould \[Conn.\] 61 A. 604.

\*\*24.\*\*Smith v. Smith, 145 Cal. 615, 79 P. 275.

\*\*25.\*\*Steele v. Steele \[Ky.\] 84 S. W. 516.

\*\*Action of circuit judge in granting divorce not revisable by court of appeals. Thompson v. Thompson \[Ky.\] 85 S. W. 730.

\*\*26.\*\*See 3 C. L. 1136.

\*\*27.\*\*Key. St. $ 900. Steele v. Steele \[Ky.\] 84 S. W. 516. Husband liable for wife's attorney's fees if she is unable to pay, even though she is at fault. Ky. St. 1903, $ 900.

McMaklin v. McMakin \[Ky.\] 87 S. W. 1140.

\*\*28.\*\*See 3 C. L. 1137. See also, Alimony, 1035.

\*\*29.\*\*Brown v. Brown \[Kan.\] 81 P. 199.

\*\*30.\*\*Dawson v. Dawson \[W. Va.\] 50 S. E.

\*\*61.\*\*Imormal life of mother being shown, custody of children was properly awarded to father. Brown v. Brown \[Kan.\] 81 P.

\*\*19.\*\*Upon application for an order changing the custody of children, evidence of the mother's reputation for charity is admis-sible. Id. Older children awarded to father and younger to mother, where latter was guilty of adultery and former of abuse and neglect responsible for wife's fault, no other disposition of children being possible. Richardson v. Richardson, 36 Wash. 272, 78 P.

\*\*31.\*\*Order awarding custody of infant child.

\*\*32.\*\*Order awarding custody of infant child.

\*\*33.\*\*Onder program to mother proper where father had and was maintaining a paramount. Crabtree v. Crabtree \[Ky.\] 85 S. W. 211. Custody of 3 minor children was awarded to mother who obtained divorce on ground of drunkenness and cruelty. On application for modification of degree It appeared that father had reformed, and wished custody of children to place them in a convennt. Mother was able to care for and educate them, at home of her parents. Held, custody unchanged, but father given right to visit, and custody of older boy one week a month. De Reitmater v. De ReItmater \[Ark.\] 87 S. W.

1036 DIVORCE $ 6. $ 6 Cur. Law.

eustody of a child is res judicata in a subsequent action for divorce and custody of children, as to all facts known and existing at the time of the hearing.\[31\]

Custody being awarded to one, the right of visitation is usually given the other, or the decree may be subsequently modified to make such provision,\[32\] but residence at a particular place to facilitate such visitation will not be required.\[33\] Complaint that a decree does not make such provision cannot be raised on application for modification of the decree as to the allowance of alimony.\[34\]

Custody of the children being awarded the wife, provision for their support is usually made by setting aside a portion of the father's property for the purpose,\[35\] or by requiring him to make periodical payments for that purpose.\[36\] In some states if the decree does not contain a provision for the maintenance of the children, such a provision will not be added subsequently.\[37\] Failure of a decree to provide for maintenance of children, custody of whom was awarded the wife, does not relieve the husband from his liability therefor, and such liability may be enforced against his estate after his death.\[38\] But a decree will not be modified so as to provide for reimbursement by the father where the mother voluntarily took and maintained the children for a number of years.\[39\] In a suit for divorce, alimony, and custody of minor children, custody of the children and alimony for their support may be awarded, even though a divorce has been denied.\[40\]

$ 6. \_Adjustment of property rights.\[41\]--A court which has jurisdiction of a proceeding for divorce has power to settle the property rights of the parties.\[42\] The

**21.** No new facts appearing, habeas corpus decree giving child to wife held res judicata in action by husband for divorce. Dawson v. Dawson \[W. Va.\] $ 50 S. E. 613.

s2. Decree awarding custody of children to mother not reversible because hot providing for visitation by the father, since it was subject to modification in that regard on application. Baker v. Baker \[Ky.\] $ 50 S. W. 729.

s3. Where judgment gave wife custody of child but provided for visitation by the defend husband, and the parties later removed to a distant state, leave to the husband to apply for a modification of the judge.

of children awarded wife held properly dependent so as to provide that the child should reside at a place where he could visit and care for her, was properly denied, under Code Civ. Proc. $ 1771. Newman v. Newman, $ 38 N. Y. 847.

s4. Griswold v. Griswold, 111 Ill. App.

s5. Custody of two children aged 11 and $ 8 properly awarded the mother, in suit for divorce by father, and $ 6,500 a proper sum to be awarded for their support, the father's property being worth $ 7,600; such appropriation made a line on his property. Taylor v. Taylor \[Or.\] $ 1 P. 367.

Contra: While a divorce does not cancel a husband's obligations as a parent, there is no legal right in the child or divorced wife to compel him to set aside a portion of his entire needs. Footnote v.

s6. Code, $ 3180 authorizes a court which has granted a wife a divorce and custody of children to require the father to pay a further weekly sum in aid of the support of the children, though alimony has already been allowed. Ostheimer, V. Ostheimer, 126 Iowa, $ 23, 101 N. W. 275. Where a divorce and custody of children was granted a wife, disposition and division of the property rests largely in the discretion of the trial judge,\[43\] guided by the respective merits of the parties and the condition in which they will be left by the divorce,\[44\] and the facts relating to the acquisition of the property.\[46\] An allowance of one-third to the wife is ordinarily considered liberal, in the absence of special circumstances.\[46\] It is proper for a divorce decree to make such provision with reference to the use of the homesetad as will protect the rights of the mother and minor children.\[47\] Where a community homesetad has been set aside to a divorced wife, who has been given custody of minor children, it is not subject to sale on execution against the divorced husband.\[48\]

A division of community property out of court will be set aside and a redivision made if the division was obtained by fraud and duress.\[49\]

SS 7. _Effect of divorce.\[50\]_--A divorce severs an estate held by the entirety and makes the former husband and wife tenants in common.\[51\] In Massachusetts the person against whom a divorce is granted may not marry again within two years after entry of the final decree, and a marriage by such person within that time is invalid.\[52\] The New York statute forbidding the guilty party in a divorce action from marrying another during the life of the innocent party cannot affect the validity of a marriage in another state.\[63\] An Indian whose wife has obtained a divorce from him cannot thereafter recover from her in equity land originally allotted to him by virtue of his status as a married man, such land having been subsequently allotted to her as a single woman.\[54\]

SS 8. _Foreign divorces.\[55\]_--A foreign judgment for divorce may be collaterally

- \[56\] **54. Plaintiff claimed land on ground of fraud of wife in claiming she was single, though In fact his wife. Morrisett v. United States, 132 F. 891.** 55. See 3 C. L. 1139.\*\* 307.\*\* 315.

1038 DIVORCE SS 8. 5 Cur. Law.

impeached for want of jurisdiction appearing upon the face of the record.56 But such a judgment imports absolute verity, and want of jurisdiction must be made to appear affirmatively to justify a court in declaring it invalid.57 Fraud having been practiced on the foreign court, its decree will be set aside,58 if the suit for that purpose is not barred by laches.59 It is the rule in New York that if one spouse abandons the matrimonial domicile in that state and becomes domiciled in another and obtains a decree of divorce in an action in which defendant was not served with process in that state and did not personally appear, such decree has no extraterritorial force.60 One who seeks to take advantage of this rule in an attack on a foreign decree must show that he was a bona fide resident of New York at the time the foreign court took jurisdiction.61 But where the spouse against whom the suit is brought had previously abandoned the matrimonial domicile, and the abandoned spouse acquires a bona fide residence and legal domicile in another state, a decree obtained in the latter state is entitled to recognition in New York,62 since courts of the state of the matrimonial domicile have jurisdiction of the status, and may acquire jurisdiction of the defendant by constructive service.63

voree, though brought by a resident of the state in which it is pending, and declare under for service by publication, a judgment that a judgment rendered therein, unless pursuant to such service cannot be colulter-based upon a voluntary appearance of the defendant is void as against him (People v. Baker, 16 N. Y. 182 Am. Rep. 274: Jones v. Jones, 108 N. Y. 415, 2 Am. St. Rep. 447: Williams v. Williams, 130 N. Y. 193, 27 Am. St. Rep. 447: St. Rep. 517, 14 L. R. A 220: Harris v. Harris, 118 N. C. 687, 44 Am. St. Rep. 471: Green v. Green, L. R. Prob. Div. 89:); especially if the cause of divorce is not recognized by the laws of the state in which he lives or in which the marriage was contracted (McCreery v. Davis, 44 S. C. 195, 51 Am. St. Rep. 794, 28 L. R. A. 655:). For a full discussion of the position of the New York courts on the question, see Rigney v. Rigney, 127 N. Y. 408, 24 Am. St. Rep. 462; Hunt v. Hunt, 172 N. Y. 217, 28 Am. Rep. 129: People v. Baker, 76 N. Y. 78, 23 Am. Rep. 274: But the question has been settled by a decision of the Federal supreme court (Atherton v. Atherton, 181 U. S. 156, 45 Law. Ed. 796. See also 83 Am. St. Rep. 616) in which it was in effect held that where jurisdiction rests solely on the domicile of the complainant, and the defendant, being a non-resident, is brought into court by publication and the service of notice outside the jurisdiction, the decree rendered is conclusive against such nonresident in the courts of other states, including that of which he or she was a resident when the suit was instulted and the publication made and notice served. See, also, Feit v. Feit, 59 N. Y. 8, 506, 45 A. 105, 49 A. 1071, 83 Am. St. Rep. 612: For further discussion see notes in 94 Am. St. Rep. 553, and 103 Am. St. Rep. 238, and the recent cases of Andrews v. Andrews, 188 U. S. 14, 74 Law. Ed. 366: Winston v. Winston, 189 U. S. 507, 47 Law. Ed. 922, and German Sav. & Loan Soc. v. Dormitzer, 192 U. S. 125, 48 Law. Ed. 373. 56, McHenry v. Bracken, 93 Minn, 510, 101 N. W. 960. 57. Under Wisconsin statutes, where a proper showing is made that a defendant * \[5\] **Cur. Law.** DOCKETS, CALENDARS AND TRIAL LISTS.**\[64\] **Right to go on Calendar.**\[65\]**.**Passing or Advancing Cause (1039) **Note of Issue and Notice of Trial (1039).**\[66\] **Plening Cause on Calendar (1639).**\[67\] **Posting of Trial List (1039).**\[68\] **Right to go on calendar.**\[69\]**.**A cause cannot be placed on the calendar until issue is joined,**\[70\] **and this rule cannot be evaded by stipulation between the parties.**\[71\] **An unauthorized demurrer does not prevent the placing of the cause on the trial calendar.**\[72\] **The right may be lost by laches.**\[73\] **Note of issue and notice of trial.**\[74\]**.**Plaintiff appealing from an order overruling demurrers to an answer without a stay of proceedings, the defendant can file a note of issue and serve notice of trial pending the appeal;**\[75\] **but the issue and date being changed by the due service of replies pursuant to leave of court, the right of the defendant to retain the case on the calendar, or to move for trial pursuant to his original notice, is terminated,**\[76\] **and the issues can only be brought to trial upon the service of a new notice and the filing of a new note of issue.**\[77\] **Placing cause on calendar.**\[78\]**.**A reasonable time should be allowed to prepare for trial, and the cause placed upon the calendar for the following term of court.**\[79\] **Distance of the subject-matter of the trial from the place of trial, when urged as a reason for granting time to prepare for trial, is an element to be considered but is never alone conclusive.**\[70\] **Posting of trial list.**The trial court may suspend a rule requiring the posting of the trial list within a designated time if such suspension results in no material injury to the party complaining.**\[72\] **Passing or advancing cause.**\[78\]**.**The advancement of causes is discretionary with the court.**\[79\] **A statute providing that when a cause is advanced the court must des-**\[60\] **61.**\[61\] **Caldars and dockets of appellate** **62.**\[62\] **Caldars and dockets of appellate** **63.**\[63\] **Caldars and dockets of appellate** **64.**\[64\] **Caldars and dockets of appellate** **65.**\[65\] **Caldars and dockets of appellate** **66.**\[66\] **Caldars and dockets of appellate** **67.**\[67\] **Caldars and dockets of appellate** **66.**\[68\] **Caldars and dockets of appellate** \*\*66.

ignate a day during that term, on which day the cause shall be heard, is unconstitutional.\[80\] In New York suits against a corporation being founded on a note or other evidence of debt for the absolute payment of money,\[81\] and suits against administrators,\[82\] are entitled to a preference. In said state, in the absence of special facts calling for the exercise of the court's judicial discretion, a preference should only be allowed over nonpreferred cases noticed for the same term.\[83\]

\_Transfer, correction or striking off.\[84\]--The transfer of a case from one department to another of a district court is controlled by the rules adopted by such departments,\[85\] and in the absence of a showing of prejudice, one cannot complain of irregularity in such transfer.\[86\] A suit being improperly brought in equity, it should not be dismissed but should be transferred to the law docket.\[87\] and vice versa.\[88\] Either party may make application to have the case transferred,\[89\] but neither making application, the court may try the case,\[90\] or, on its own motion, have it transferred.\[91\] Where the grounds of a motion to transfer are not established on the face of the pleadings, proof must be taken and presented to the court upon the question.\[82\] The right to have the transfer made is lost by laches,\[93\] or failure to make the motion.\[94\] One failing to except to the transfer but acquiescing therein cannot complain thereof for first time on appeal.\[95\] The remedy for refusal of a court to transfer a cause from the law to the equity docket is by appeal, and not by mandamus.\[96\] One seeking the transfer of a cause from the law to the equity docket cannot complain of the exercise of jurisdiction by the chancellor.\[97\] Defects in the form of a paper furnished for the guidance of the clerk furnish no ground for striking from the calender a cause correctly entered thereon.\[98\] A cause being retired from the docket, judgment cannot be entered upon it.\[98\]

**80. Laws 1904, p. 311, v. 173, held uncon-**

87. Cribb's v. Walker \[Ark.\] 88 S. W. 244.\*\*

situtional. Riglander v. Star Co., 98 App. Div. 101, 84 Civ. Proc. R. 92, 90 N. Y. S. 172.\*\*

88. Cade Civ. Proc. 8 711, suud., 8, giving a preference to an action "against a corporation founded on a note or other evidence of debt for the absolute payment of money,"

01. Harmon v. Thompson \[Ky.\] 84 S. W. applies to both domestic and foreign corporations. Martin's Bank v. Amazonas Co., 98 App. Div. 146, 90 N. Y. S. 743.\*\*

01. Where defendant's attorney had a copy of the pleadings, which copy was handed up to the court on the motion, held, there was unquestionable proof before the court that an administrator was the sole party defendant, and plaintiff was entitled the preference given by Code Civ. Proc. 8 721, suud., 85.\*\*

01. Jackson v. Jackson, 44 Misc. 44, 89 N. Y. S. 715. The statutory reference given in an action against an administrator by Code Civ. Proc. 8 791, suud. 8 will not be denied because the action is for an amount within the jurisdiction of the municipal court. Id. The rule of the trial term that such preference shall not be granted without some additional reason does not apply to the special term calendar. Id.

01. Martin's Bank v. Amazonas Co., 98 App. Div. 146, 90 N. Y. S. 734. This is under Code Civ. Proc. 8 739, the amendment thereof, Laws 1904, p. 312, c. 173, being unconstitutional. Id: The preference of an action for libel should prevail only as to other causes noticed for the same term and not as to all causes then on the court calendar. Woerner v. Star Co., 94 N. Y. S. 1117.\*\*

01. See 3 C. L. 1142.\*\*

85, 86. Finlen v. Heinze \[Mont.\] 80 P. 918.\*\*

87. Cribb's v. Walker \[Ark.\] 88 S. W. 244.\*\*

01. Cribb's v. Walker \[Ark.\] 88 S. W. 244.

5 Cur. Law. DOMICILE. 1041

Short-cause calendars.1--A motion to place a cause upon the short-cause calendar being denied by one justice, it cannot be renewed before another without leave of court.2 An objection to the affidavit or notice should be called to the attention of the court before the cause is reached for trial.3 The affidavit and notice pursuant to which a case has been placed on the short-cause calendar are not parts of the common-law record, and to be subject to appellate review must be preserved by bill of exceptions.4 In the absence of proof to the contrary, a court is presumed to have complied with its own rules respecting the calling of the short-cause calendar.5

Reinstatement and restoration.6--The rerocketing of the case is largely discretionary with the court.7 Before a case can be reinstated upon the docket by either party, notice should have been served upon the opposite party of the intention to have an order made to that effect.8 A cause being dismissed for failure of plaintiff to appear, it cannot be rerocketed in the absence of the express consent of defendant or of his voluntary appearance,9 hence it may be rerocketed where the attorneys of the parties have stipulated for an adjournment of the cause to a day subsequent to the date of dismissal.10 Where the issue between the plaintiff in an attachment suit and the garnishee therein has been determined, an appeal taken from such determination and a reversal had thereof, the same should, upon a rerocketing, be entitled according to the names of the respective parties to the attachment proceeding.11

DOMICILE.

Definition and elements.12--A man's residence is his home or habitation fixed at any place without a present intention of removing therefrom.18 In law every person has a domicile.14 It may be different from his place of abode;15 thus temporary absence does not work a change of domicile if the intention to return is fixed, absolute and unconditional.16 It is not disturbed by absence on naval service.17 A

domicile having once been acquired, it continues until a new one is acquired animo et facto.\[18\] To bring about a change of domicile, it is necessary that a bona fide\[19\] intention to so do exists,\[20\] coupled with an actual abandonment of the old, and location in the new, place of residence,\[21\] and it is essential that these two acts concur.\[22\] The motive or purpose of a change of domicile or residence is not material.\[23\] A man's domicile is determined by his actual residence coupled with his intention to remain, irrespective of the residence of his family;\[24\] that his residence is in a hotel does not affect the question.\[25\] So long as the marital relations exist,\[26\] the domicile of the husband is presumed to be the domicile of the wife;\[27\] but the wife may for certain

son v. Watkinson \[N. J. Err. & App.\] 60 A. 931. 17. Radford v. Radford, 26 Ky. L. R. 652, 82 S. W. 391. 18. Watkinson v. Watkinson \[N. J. Err. & App.\] 60 A. 931; Erwin v. Benton \[Ky.\] 87 S. W. 291; Sparks v. Sparks \[Ten.\] 88 S. W. 173. 19. Stevens v. Larwill, 110 Mo. App.\] 140, 84 S. W. 113. 20. Stevens v. Larwill, 110 Mo. App.\] 140, 84 S. W. 112; Barron v. Boston, 187 Mass. 168, 72 N. E. 951. 18.

## 5 Cur. Law.

Dower SS 1.

purposes acquire a separate domicile.24 As a general rule the domicile of a child follows that of the father,25 but this rule does not hold when the parents are judicialily separated, and the custody of the child has been awarded to the mother; but in such case the child's domicile is determined by the mother's so long as he remains with her and in her care.30 Upon the death of the father the domicile of the child follows that of the mother,31 unless she is dead, in which case the domicile of the father continues to be the child's domicile until legally changed,32 and it has been held that the first part of the above rule is not altered by the appointment of a guardian.33 The general rule is that an infant is incapable of changing its own domicile,34 but in some states this rule has been changed by statute.35

Footnote 24: The name of the mother is not changed, but in the case of the mother is not changed.

\_Evidence and establishment.36--\_One may become estopped to deny that his domicile is in a certain place.37

DOWER.33

## 6 Nature of Right; Persons Entitled;

**8** \*\*4.\*\*Lens and Charges on Dover (1040).

\*\*Election (1043).

**8** \*\*5.\*\*In Whnt Dover May Be Had (1044).

**8** \*\*6.\*\*Remedies and Procedure (1043).

\*\*Revival of Dover (1045).

Nature of right; persons entitled; election.39--\_The right to dover is only an inchoate one during the life of the husband,40 but on his death it becomes con-summate, and a vested right without any act on the part of the downress.41 The inchoate right is not an interest or title subject to conveyance,42 nor a chose in action or estate in lands which can be reached by creditor's bill.43 Nor is dover consum-mate but unassigned an estate in lands.44 The right to take a statutory share in lieu of dover depends on an election,45 as does the right, in Massachusetts, to take dover in lieu of the provision made for her by the will of her husband.46 The right

## 8 So held where she acquired a domicile for the purpose of securing a divorce.

Adams v. Adams \[Md.\] 61 A. 628; Stevens v.

**42**. McCrill's V. Thomas, 110 Mo. App. 699,

Larwill, 110 Mo. App. 140, 84 S. W. 113. Wife

**85** \*\*S. W. 673.

**may acquire separate domicile after divorce.**

**43**.\*\*Sherman v. Hayward, 98 App. Div.

**75**.\*\*Troedo Traction Co. v. Cameron \[C. A.\] 254, 90 N. T. 481.

**137** \*\*F. 48.\*\*Compare Divorce, ante, 5 C. L.

**1026.**

**29**.\*\*No. See Toledo Traction Co. v. Cameron

**10**.\*\*C. C. A.\] 137 F. 48.

**31**.\*\*Garth v. City Sav. Bank \[Ky.\] 86 S. W. 520.

**32**.\*\*Hayslip v. Gillis \[Ga.\] 51 S. E. 325.

**33**.\*\*This is so though the custody of the wvard's person as well as his estate is awarded to his guardian. Garth v. City Sav. Bank \[Ky.\] 86 S. W. 520.

**34**.\*\*Hayslip v. Gillis \[Ga.\] 51 S. E. 325.

**35**.\*\*Civ. Code 1895, $ 1827 so changes the rule. Evidence held insufficient to show that infant had exercised the privilege. Hayashi v. Gillis \[Ga.\] 51 S. E. 325.

**36**.\*\*See S C. L. 1143.

**37**.\*\*Alleged bankrupt denying under oath that his residence was in the state where the petition was filed and alleging his domicile to be in another state, his administrator is estopped to deny in a subsequent proceeding in the latter state that decededent was not domiciled there. Long v. Lockman, 135 F. 197.

**38**. See general law discussed. Tiffany Real Property, p. 420.

**39**. See 3 C. L. 1144.

**40**.\*\*See Cyc. Law. Dict. "Dower" defining the three stages; inchoate, consummate, and assigned.

assigned.

**41**.\*\*La Grange Mills v. Kener, 121 Ga.

**42**.**49**.**48**.\*\*E. 500.

**43**.\*\*Mcrill's V. Thomas, 110 Mo. App. 699,

**85**.\*\*W. 673.

**44**.\*\*Sherman v. Hayward, 98 App. Div.

**137**.\*\*F. 48.\*\*Compare Divorce, ante, 5 C. L.

**44**.\*\*Sherman v. Hayward, 98 App. Div.

**138**.\*\*F.

to dower may be accelerated by contract between husband and wife47 or by a judicial sale of his lands.48 A plural wife acquires no dower rights.49 The right of dover in Indians in allotted lands is governed by the Federal statutes.50 Under the National Bankruptcy Law the right of a widow of a deceased bankrupt to dover is dependent entirely upon local law.51

Footnote 49: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 50: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 51: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 52: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 53: The author is grateful to the anonymous referee for his comments on the manuscript.

5 Cur. Law. DOWER SS 3.

no retroactive operation. \[42\] Where entitled to dower in lands sold, she is entitled to dower in the proceeds of the sale. \[68\]

SS 3. \_Extinguishment, release, or bar, and revival of dover. \[64\]--Dower may be relinquished by deed \[69\] or by an antenuptial \[70\] or postnuptial agreement, \[71\] providing it is fair and reasonable, \[68\] legal, \[69\] and in writing, \[70\] but it need not be acknowledged as is required of her deeds of release. \[71\] Dower cannot be barred by laches in attempting to assert an inchoate right, \[72\] nor by marital misconduct alone though it constitutes ground for divorce, \[73\] nor by the concealment of their marriage by her husband, \[74\] nor is she estopped by having unsuccessfully asserted title as equitable owner. \[75\] Her acts during coverture to operate as a bar must in effect amount to one of the modes pointed out by common law or statute. \[76\] There may be an extinguishment by a merger in a greater estate. \[77\]

A voluntary conveyance by a prospective bridgeroom on the eve of his marriage is not fraudulent as to his prospective bridge's inchoate right if he retains sufficient property so that her right will not be prejudiced. \[78\]

prior to marriage is not entitled to dower \[6\] defense to an action for divorce. In re where a mortgage is given after marriage \[6\] is state \[6\] to take up a void one given prior thereto, the mortgage having been subrogated to rights under the prior mortgage. Hall V. Marshull \[Mich.\] 102 N. W. 658.

62. Under Code Pub. Gen. Laws art. 45.

8 &, wives of cestuis que trustent have no dower In the trust estate where the marriage had taken place and the property sought to be affected had been acquired prior to the date the act took effect. Slingling-luf V. Hubner \[Mid.\] 61 A. 326.

63. In re Cadamus \[N. J. Eq. 59 A. 245\].

01. See is entitled to dower in the proceeds of a sale of a life estate under Gen. St. p. 1195.

01. Under Gen. St. 1901, $ 7972, dower may be relinquished by giving written consent to a conveyance by the husband executed in the presence of two witnesses \[6\].

Jack v. Hooker \[Kan.\] 81 P. 203. The form of the writing is immaterial if it shows that the wife agrees to accept the provision otherwise made for her. Id.

66. An ante-nuptial contract or marriage \[6\] agreement in order to bar a widow from dower must be shown to have been fair, reasonable and just to the wife under all the circumstances existing at the time the agreement was entered into. Binkley v. Blinkley 5 Ohio N. P. (N. B.) 33.

01. Dower may be barred by an agreement between husband and wife that he should put a certain sum in trust for her in lieu of all interest in his estate. Merki v. Merki 212 Ill. 121, 72 N. E. 9. Statutes removing the common-law disabilities of married women enable a wife to contract with her husband for a release of dower.

01. A relinquishment of dower for a given dower is made of dower, grossly inadequate consideration, the wife \[73\].

01. The absolute right cannot be barred by an oral contract between husband and wife. Sherwell V. Carper's AdAmr \[Ky.\] 87 S. W. 771.

01. The c.'Ling v. Peebles, 215 Ill. 96, 74 N. E.

01. Released for a certain sum on the understanding that the wife would make no \[N. W. 602\], and it is held that it is not 1046 DOWER SS 4. 5 Cur. Law.

A release operates as an estoppel and not. as an extinguishment except in favor of the person to whom it is given and those who claim under him.'\*

- 4. _Liens and charges on dower._\[80\]
- 5. _Assignment of dower and money awards._\[81\]--An agreement between heirs giving the widow a certain proportion of the rents and profits for life and that the property should not be sold without her consent constitutes an assignment of dower.\[82\] A downress is entitled only to an allotment of a life estate,\[83\] but may be allotted a share of the rents and profits where the property is indivisible in specie.\[84\] A downress subject to mortgage may require moneys payable to her husband's estate to be applied in exoneration of her dower.\[85\] The allotment must include property specially designated by statute,\[86\] and be made in the method prescribed by law.\[87\] No formal order of court is necessary where it is admeasured by commissioners appointed for that purpose and the downress has been in possession with the acquiescence of all persons concerned.\[88\] The description of land assigned must be sufficiently certain to locate the premises.\[89\] A dower claim superior to the claim of general creditors is subrogated to the rights of a lien creditor who refuses to file his claim against an in-solvent estate, and sells the property under foreclosure of his lien.\[90\] A statute providing that if a homesetead exceeds a one-third interest in the estate no dower shall be assigned does not apply where a widow elects to take a child's share in lieu of dower.\[81\]
- 6. _Remedies and procedure._\[92\]--In Nebraska the district court has jurisdiction of proceedings to assign dower,\[82\] and the county court may assign it if there be no contest.\[94\] A claimant for dower in lands conveyed by the husband during his life must make out a clear case,\[90\] and if it appears that she is in possession of lands worth more than her claim, it will be dismissed to avoid circuity.\[96\] Limitations do not run against the right until the husband's death,\[97\] and not then if the downress is under legal disability.\[98\] In New York there is a special statute of limitations relative to actions to recover dower.\[99\]

Drains; DRUGS, DRUGS; DR 5 Cur. Law. DURESS. 1047

DUELING.1

Due Process; Duplicit, see latest topical index.

DURESS.

To be duress the act must be physical violence, threats of violence or harm, or imprisonment or threats of imprisonment,2 made to a person or a member of his family,3 and the constraint which 'destroys the power of withholding assent must be one which is imminent and without immediate means of prevention and be such as to influence a person of ordinary firmness.4 Dures of imprisonment must be actual or threatened, unlawful imprisonment,5 but an imprisonment may be originally lawful and become unlawful.5 Dures of property which will avoid a contract is its restraint under circumstances of peculiar hardship.7 There seems to be a tendency on the part of the courts to extend this doctrine.8 There is also a modified form of duress recognized by the courts which renders void a contract illegally exacted.9 A

dover is not barred until seven years after removal of the disability. La Grange Mills v. Kener, 121 Ga. 429, 49 S. E. 300.

Note: A contract made to prevent a threatened destruction of property where no ready and adequate remedy lies open may be avoided for duress. United States v. Huckabee, 16 Wall, \[U. S.\] 414, 432, 21 Law. Ed. 457; Foshay v. Ferguson, 6 Hill \[N. Y.\] 154; Waller v. Parker, 5 Cold \[Ten.\] 476; Spaids v. Barret, 57 Hill, 285, 11 Am. Rep. 10. Some courts go further and hold that dures of goods may exist whenever their owner is compelled to submit to an illegal exaction in order to obtain them from one who has them in his possession. Adams v. Schiffer, 11 Colo. 15, 7 Am. St. Rep. 202; Fuller v. Roberts, 35 Fla. 110; Crawford v. Cato, 22 Ga. 594; Bennett v. Ford, 47 Ind. 264; Lightfoot v. Walls 12 Bush \[Ky.\] 498; Hackley v. Headley, 45 Rich, 869; Wilker-son v. Hood, 65 Mo. App. 491; McPherson v. Cox, 86 N. Y. 472; Miller v. Miller, 68 Pa, 486; Oliphant v. Markham, 79 Tex, 542, 23 Am. St. Rep. 363. It will generally be found, how-ever, that there was some peculiar and pressing necessity for the coerced party to have the particular property. Dustin v. Farrelly, 81 Mo. App. 380; Collins v. Westbury, 2 Bay \[S. C.\] 211, 1 Am. Dec. 643; Williams v. Phelps, 16 Wins. 86. See Hammon, Contracts, 13 136.

S. The payment by a newspaper publisher to the Associated Press of a sum in excess of that ordinarily imposed as a condition of obtaining their service which was indispensable to his business is deemed to have been made under duress. News Pub. Co. v. Associated Press, 114 Ill. App. 241.

B. Where a divorced wife instituted proceedings against her former husband, claiming he was wasting his estate, and procured the appointment of a guardian and the proceeding was dismissed on hisconveying property for the benefit of a child of which the wife had custody. Another circumstance was that the husband was old and enefebed and was very anxious to procure the dismissal of the guardian. Foote v. De Poy, 126 Iowa, 366, 102 N. W. 112. A threat by officers of a musician's union that unless a member paid an illegal one, he would be expelled and deprived of means of earning a living 1048 EASEMENTS SS 1. 5 Cur. Law.

mere threat of litigation does not constitute duress,\[10\] and money paid a creditor for forbearance of a lawful act is not paid under duress.\[11\] The doctrine of legal duress applies only to contracts which the law does not require.\[12\] .Dures which will avoid a contract must have been instrumental in procuring its execution.\[13\] That one in executing a contract was guilty of compounding a felony will not preclude him from seeking to set it aside for duress.\[14\] The right of a mortgagor to cancellation of a mortgage for duress passes to a purchaser of the land.\[10\] One may be estopped from asserting duress as a defense.\[16\] A contract set aside for duress absolves both parties from liability under it, and one who has partly performed its conditions before notice that steps would be taken to rescind is entitled to be placed in statu quo.\[17\] In pleading duress, the facts constituting it must be alleged.\[18\]

Diving Declabations, see latest topical index.

EASEMENTS.

8 L. Nature and Creation (1048). A Grant (1049). A Way of Necessity (1056). Creston by Prescription (1056). Creation by Essembemb (1051). The Condemination of Private Laws for Private Laws (1052). Natural Ensements (1052). Negative Ensements (1052).

8 Z. Location, Maintenance and Extent of (1049). A Way of Necessity (1056). Creston by Essemb (1052). Transfer and Assignment (1053).

9 A. Extinguishment and Revival (1054).

9 S. Interference with Essements and (1052). Natural Ensements (1052). Negative Ensements (1054).

8 1. Nature and creation.\[19\] An easement is a right in the owner of one parcel of land to the use of the land of another for a special purpose not inconsistent with the general property of the owner.\[10\] An easement is distinguished from a license in that it is an interest in land.\[21\] An easement is a species of incorproreal heredita-ment\[22\] lying in grant,\[24\] and can be acquired only by grant\[24\] or condemnation,\[28\]

is duress. Fuerst v. Musical Mut. Protective |quired by adverse use is a vested right and |to a mere license. Power v. Dean \[Mo. 10\]. A threat of litigation to induce a family settlement is not such duress as will |21\]. An oral agreement between adjoin-avoid the settlement. Burnes v. Burnes, 132\]. A new |to be used in common in consideration of a |11\]. To postpone a sale under a decree of |11\]. Foster v. Central Nat. Bank, 93 N. Y. St. 608.

12 A bond executed by an executor as a condition precedent to exercising the func- |11\]. However, in this case, the function of his office is not void because in experiment and not a mere license. Everett Wax- |11\]. However, 103 Va. 117, 48 B. E. 862.

13 That a redelivery of a deed of which the grantor had recovered possession was |11\]. However, does not invalidate it. McCrum v. McCrum \[Iowa\] 103 N. W. 771.

14 A, 15\]. Gray v. Freeman \[Tex. Civ. App.\] 84 S V. 1105.

16 Where, in |11\]. In this case, a mortgagor did not contradict plaintiff's evidence that the took an assignment of the mortgage at the mortgagor's solitention, the mortgagor could not assert that the mortgage was |11\]. One may be estopped from |11\]. The v. Ice v. Ice, 26\]. K. L. R. 1065, 83 S. W. 155.

18 A general charge of duress in a bill in equity is insufficient. McCPeck's Helrs v. Graham's Helrs \[V. Va.\] 49 S. E. 125.

19 See 3 C. L. 1148.

20 See 3 C. L. 1148. Tiffany, Real Prop- |11\]. See 3 C. L. 1148.

5 Cur. Law. EASEMENTS SS 1. 1049 by prescription which presupposes a grant. \[29\] A parol contract for an easement is within the statute of frauds, \[97\] yet part performance may in equity take a parol grant from the operation of the statute. \[28\] Such contracts are presumed to have been made with knowledge of the statute of frauds and have been intended to create a license only. \[29\] Easements resting in local custom are not generally recognized in this country. \[30\] It is only over public highways that an abutter's easement of view, light and air are recognized. \[31\] Easements may be either apprutenant \[32\] or in gross. An easement may be apprutenant, though the servient and dominant tenement be separated by other lands. \[33\]

_A grant_\[34\] of an easement will be construed in the light of surrounding circumstances, \[35\] and no presumption that it is in gross will be entertained if it can be fairly inferred that it was intended as an apprutenant. \[38\] No particular form of words is necessary to constitute a grant. \[37\] The owner of real estate can establish in that portion which he sells and in that portion which he retains such servitudes as he deems proper; \[38\] but one who has no estate cannot grant an easement, \[39\] nor enlarge an existing one. \[40\]

right of way over the part first conveyed. Held, the grantee acquired no way. Morin v. Lefebvre \[N. E.I\] 61 A, 675.

55. Under P. L. 226, incorporating the Union Canal Company, land acquired by condensation under section 13 of the act is not acquired in fee, but only as an estate determinable upon the abandonment of the land for use as a canal. Sholl v. Stump, 24

01. See post. Creation by prescription. In legal contemplation an easement lies only in \[79\] P. 617.

01. Under P. L. 226, incorporating the Union Canal Company, land acquired by condensation under section 13 of the act is not acquired in fee, but only as an estate determinable upon the abandonment of the land for use as a canal. Sholl v. Stump, 24

A way of necessity\[41\] is implied from the grant of a parcel surrounded by other lands of the grantor,\[42\] or where bounded on three sides by lands of other owners:\[48\] but an easement will not be implied merely because it is a matter of convenience.\[44\]

Creation by prescription\[45\]--Adverse user under a claim of right with the knowledge of the fee owner gives an easement by prescription\[48\]. The user\[47\] must have been hostile,\[48\] continuous\[49\] and under a claim of right\[50\] over a uniform route\[51\], and \[52\]

A mortstage given on the lot and building an easement for light and air over the other so long as mortgages of the latter are not prejudiced. Wood v. Grayson, 22 App. D. C. 433. 39. 39.

- 5 Cur. Law. EASEMENTS SS 1.
- 62 but in Georgia a private way may originate in permission and yet ripen by prescription,63 and users of it may acquire an inchoate right before they acquire a prescriptive one.64 A prescriptive right cannot be obtained unless during the period an action could have been maintained by the servient party.65 At common law, to acquire an easement by adverse user, the use must have continued from a time when the memory of man runneth not to the contrary;66 but it is now the prevailing rule that the prescriptive period corresponds with the local period for quieting title to lands.67 A light and air easement cannot be acquired by prescription in this country,68 nor can police regulations be prescribed against.69 After the public has acquired a prescriptive easement, a private way over such land can not be acquired by adverse user.60
- \_Creation by estoppel.61--\_An easement may be created by estoppel,62 as where lots are sold which abut on a road of which the grantor owns the fee,63 or with reference to a plat.64 An easement so created is not one of necessity,65 and extends, 65. Hutchins v. Munn, 22 App. D. C. SS.
- 66 Where market men and hucksters claim an easement to use the street and sidewalks. Taylor v. District of Columbia, \[Ky.\] 84 S. W. 1148.
- 67 Providence, F. R. & N. Steambou Co. P. 777. Those who use a private way must repair it, and they cannot take advantage of their default in turning out to avoid obstructions. Kirkland v. Pitman \[Ga.\] 50 S. E. 117. The existence of wide places in a way will not defeat rights acquired by pre-script. Id. A prescriptive right cannot be acquired to pass over land generally, but only on a definite, certain and precise line. Town of Beth v. Pruett, 215 III. 162, 74 N. E. 111.
- 68 Washund v. Harm, 36 Wash, 170, 78 P. 777. Permissive use will not ripen into an easement by prescription. Slatter v. Mecanw, 44 Misc, 426, 90 N. Y. S. 52. No prescriptive way is acquired where users used gates at each erected and maintained by the fee-owner of the land crossed. Warth v. Baldwin \[Ky.\] 84 S. W. 1148. A permits- sive license will not ripen into an easement. Belser v. Moore \[Ark.\] 84 S. W. 219. Use under a parol gift is not permissive. Franz v. Mendonca \[Ga.\] 80 P. 1078. Evidence as to the acquisition of a easement in a gas-sagory by prescription, held for the jury. Seitz v. People's Say. Bank \[Mich.\] 12 Det. Leg. N. 95, 103 N. W. 545.
- 69 Kirkland v. Pitman \[Ga.\] 50 S. B. 117.
- 60 In Georgia after a private way has been used for 12 months, the fee owner can-not obstruct it without giving 20 days no-tice of his intention. Kirkland v. Pitman \[Ga.\] 50 S. E. 117; Neal v. Neal \[Ga.\] 50 S. E. 929.
- 61 Chessman v. Hale \[Mont.\] 79 P. 254.
- 62 Washmund v. Harm, 36 Wash. 170, 78 P. 777.
- 63 Adverse use from the middle of the year of 1887 to the end of 1902 is sufficient. Washmund v. Harm, 36 Wash. 170, 78 P. 777. That one alleges an easement by prescription by 20 years adverse use does not estoppel,62 as where him from claiming that adverse use for any lesser period would establish the right. Id. An easement by prescription is established by proof of adverse user for a period necessary to give title to land. Anthony v. Ken- nard Bldg. Co. \[Mo.\] 87 S. W. 921.
- 64 Wash. 170, 78 P. 777.
- 65 Washund v. Harm, 36 Wash. 170, 78 P. 777.
- 66 Wash. 170, 78 P. 777.
- 67 Wash. 170, 78 P. 777.
- 68 Wash. 171, 78 P. 777.
- 69 Wash. 172, 78 P. 777.
- 79 Wash. 173, 78 P. 777.
- 79 Wash. 174, 78 P. 777.
- 80 Wash. 175, 78 P. 777.
- 90 Wash. 176, 78 P. 777.
- 91 Wash. 177, 78 P. 777.
- 92 Wash. 178, 78 P. 777.
- 93 Wash. 179, 78 P. 777.
- 94 Wash. 170, 78 P. 777.
- 95 Wash. 170, 78 P. 777.
- 96 Wash. 170, 78 P. 777.
- 97 Wash. 171, 78 P. 77 * 1052 .
- 5 Cur. Law. not only to the part of the street on which the lot abuts, but so far as the grantor had power to create such right.\[64\] Representations by one without authority to make them will not create an easement by estoppel.\[67\]
- _The condemation of private lands for private ways\[68\]_ is unconstitutional,\[69\] and a private way of necessity can be established only by the legal proceeding prescribed.\[70\] In Georgia a private way of necessity may be acquired by compulsory sale and purchase in a manner prescribed by law.\[71\]
- _Natural easements\[72\]_ of drainage,\[73\] of lateral\[74\] and subjacent support,\[75\] exist in favor of adjacent and surface owners.
- _Negative easements\[70\]_ may be created by restrictive covenants as to the use of land.\[77\]
- 8. _Location, maintenance and extent of right.\[78\]_--The width\[79\] or acreage of land subject to the easement is to be determined from the terms of the grant,\[70\] and circumstances under which it was made.\[81\] The owner of a prescriptive easement not definitely defined is entitled to a way bounded by the line of reasonable enjoyment,\[82\] limited by the character and extent of use during the prescriptive the plat as a private way a strip parallel
- Super. Ct. 146. Where the surface subsides with a street, it is a reservation of the fee
- because of removal of the underlying minus an easement in lot purchasers to cross
- the strip to the street. Lever v. Grant
- \[Mich.\] 102 N. W. 848. And if purehasers
- with reference to the plat acquired an ease-
- the surface. Western Indiana Coal Co. v.
- \[Thorn.\] 74 N. E. 1027. Where
- the surface is owned by one and the under-
- such strip to another have no easement in
- minerals cannot remove them without leav-
- 85. It is created by estoppel, and exists,
- though there are other ways leading to the
- 76. See 3 C. L. 1153. See Buildings and
- Building Restrictions, 5 C. L. 487.
- 66. New England Structural Co. v. Everett
- 77. An agreement between adjacent own-
- 67. An easement cannot be established by
- representations of one who has no interest
- \[Thorn.\] 78 P. 702.
- 68. See 3 C. L. 1152.
- 69. Code Pub. Gen. Laws, art. 25, $100.
- 70.
- 71. providing that any land owner shall
- have a right to a road from his lands to
- places of worship, mills, market, towns and public ferries, is void. Arnsper v.
- 72. A new set of a right to construct a
- 73. But see 1 C. L. 1006. In 37, to the effect that "private" roads
- for a public use may be taken.
- 74. Willis v. Reid (Miss.) 88 So. 793.
- 75. Neal v. Neal (Gal.) 50 S. E. 929.
- 76. See 3 C. L. 1152; also Adjoining Own-
- 77. The owner of the dominant heritage

5 Cur. Law. EASEMENTS SS 3. 1053

period. \[88\] The grant of an easement to string and maintain telephone wires is in its nature continuous and includes the right to string as many wires as is necessary. \[88\] In Louisiana the servitudes of view and drip when established merely by the destination du pere de famille do not include the prohibition of building on the adjoining property. \[88\]

_Exent of use._\[86\]--A way apprutenant to land attaches to every part of it, though it may go into the possession of different persons. \[87\] but an easement for the benefit of a particular tenement cannot be used for the benefit of others owned by the owner of the easement, \[88\] unless. an enlarged right is acquired, \[89\] nor can the owner of the dominant tenement use an easement in such manner as to render it a nuisance or unnecessarily damage the servient tenement. \[90\] A right of ingress and egress does not entitle the owner to the use of facilities constructed by the owner of the servient estate for his own convenience, \[91\] even though they could be used without inconvenience to him. \[92\] An easement for the operation of a wooden tramway does not authorize use for a steam railway. \[98\] A right to maintain a two story building does not give a right to construct a third story. \[94\] A right to maintain a ditch does not justify an entry for the purpose of enlarging the capacity of the ditch. \[95\] The use by the public of a private way is presumed to be permissive. \[98\] An agreement between the dominant and servient owners relative to the use of the easement is binding on them. \[97\]

SS 3. _Transfer and assignment._\[88\]--Easements apprutenant pass with the conveyance of the dominant tenement \[99\] without special mention, \[1\] and a purchaser of the servient estate with notice of the servitude takes subject to it. \[2\] An easement in gross where the grant is to the grantee, his successors and assigns, is capable of assignment and is therefore in perpetuity, though not technically in fee. \[88\]

SS3. Chessman v. Hale \[Mont.\] 79 P. 254. \[95\] City of Owensboro v. Brocking \[Ky.\] 84. Barber v. Hudson River Telephone \[87 S. W. 1086. \[96\], Weldon v. Prescott \[Mass.\] 73 N. E. \[97\], Sess. Bernos v. Cancpa \[L.\] 88 So. 438. \[98\], Sess. Sc. A. L. 1153. \[99\], Sess. Sc. A. L. 1154. \[99\], Sess. Sc. A. L. 1153. \[99\], Sess. Sc. A. L. 1154. \[99\], Sess. Sc. A. L. 1155. \[99\], Sess. Sc. A. L. 1156. \[99\], Sess. Sc. A. L. 1157. \[99\], Sess. Sc. A. L. 1158. \[99\], Sess. Sc. A. L. 1159. \[99\], Sess. Sc. A. L. 1154. \[99\], Sess. Sc. A. L. 1159. \[99\], Sess. Sc. A. L. 1154. \[99\], Sess. Sc. A. L. 1164. \[99\], Sess. Sc. A. L. 1165. \[99\], Sess. Sc. A. L. 1166. \[99\], Sess. Sc. A. L. 117. \[99\], Sess. Sc. A. L. 117. \[99\], Sess. Sc. A. L. 118. \[99\], Sess. Sc. A. L. 118. \[99\], Sess.

## 4. _Extinguishment and revival._

An easement may be lost by adverse possession,5 but cannot be discharged by legislative action,6 nor destroyed without compensation.7 An easement acquired by deed is not extinguished by nonuser,8 and one in a private way is not lost by mere neglect to repair.9 An easement of way is not lost by a temporary change in it with the consent of the user; he having used it as changed during such period.10 Where the owner of a way consents to the closing of it in consideration of a grant of a substitute way, the right to the use of the new way at once attaches,11 and the new way cannot be closed without restoring the old one, though the grant of the new was oral.12 An unlawful or excessive use of an easement does not work a forfeiture of it,13 but where the authorized and unauthorized use are so intermingled that they cannot be designated, all use may be enjoined until circumstances have so changed as to permit the valid use without affording opportunity for the unlawful one.14

Footnote 10: The author is grateful to the anonymous referee for the support of the anonymous referee5 Cur. Law. EASEMENTS SS 5. 1055

necessity does not affect the jurisdiction of the district court to enjoin the obstruction of an existing way.\[24\]

\_Form of remedy.\[25\]--One asserting a right to an easement must seek his remedy at law.\[28\] The appropriate remedy for the disturbance of an easement is an action on the case,\[29\] or an equitable proceeding to enjoin interference.\[30\]--Lands cannot be adjudged subject to an easement in an action to which the fee owner is not a party,\[40\] but a tenant for years may enjoin a trespass on an easement apputenant,\[31\] and the owner of an easement may enjoin a trespass relative to it, though his rights are not materially impaired.\[28\] By stating in California, the owner or occupant of a dominant tenement may maintain an action to enforce an easement apprurenant.\[35\]

\_Pleading and evidence.\[34\]--A complaint for obstructing an easement need not describe the premises as definitely as would be required in a proceeding to establish a new way.\[40\] A complaint for the obstruction of a highway which has been in existence for 30 years need not allege how it came into existence as such,\[41\] nor how user began.\[42\]

Where an easement is claimed by adverse use, the question of necessity is immaterial.\[43\]

_A decree_ must definitely locate an easement adjuded to exist.\[44\]

\_Damages.\[45\]--The obstruction of an easement apprurenant entitles the owner to damages on the theory of permanent depreciation in the value of his land.\[46\] The measure of damages for obstructing an easement of way is the diminution in the value of the premises during the time of the obstruction,\[43\] and where the violation of rights is flagrant, exemplary damages may be recovered.\[47\]

EECEISISATICAL LAW; EIGHT HOUR LAWS, see latest topical index.

24. Damron v. Damron \[Ky.\] 84 S. W. 7417.

01. See 3 C. L. 1157.

01. One asserting an easement by ad-

were used must seek his remedy at law.\[46\] with a malicious purpose. See Harfabon v.

equity has no jurisdiction. Godhu v. Kane,\[47\]

26 Pa. Super. Ct. 596.

27. Not an action of trespass. Bale v. N. E. 590, 12 Am. St. Rep. 590, 12 Am.

**EJECTMENT (AND WRIT OF ENTRY).**

**SS 1. Cause of Action and Nature of Reme-edy. Dissetsin is the Basis of the Action (1056). Title in Plaintiff (1057). Prior Possession (1057). Nature of the Remedy (1057).**

**SS 2. Defenses (1058).**

**SS 3. Parties (1059).**

**SS 4. Process and Fleading (1059).**

**SS 1.** _Cause of action and nature of Reme-edy._\*\*\*\*

**SS 5.** _Evidence (1060)._

**SS 6.** _Tril and Judgment (1063)._

**SS 7.** _New Trial (1064)._

**SS (1067). Nature of the Remedy (1057).**

**SS 8.** _Mesene Profits and Damages (1064)._

**SS 2.** _Defenses (1068)._

**SS 3.** _Parties (1059)._

**SS 4.** _Process and Fleading (1059)._

**SS 1.** _Cause of action and nature of remedy._\*\*\*\*

\_Dissesin is the basis of the action which is possessory and lies only when the defendant is in possession,\_45 \_and where corporeal rights are involved,\_46 \_but persons unlawfully using an easemem may be ousted where such relief is incidental.\_47 \_It will lie to recover a mineral interest in lands,\_48 _but not to enforce the performance of a contract which is the consider-_

of property, the passway to which is obstructed, is admissible on the question of\_

_Fritsche, 17 Wis. 270: Northern Transp. Co. damages. Id._

**43.** _Bernos v. Canepa \[La.\] 88 So. 448._

**44.** _See 3 C. L. 1157._

**45.** _As a general rule it cannot be maintained for land of which the plaintiff is_

\*\*D. R. & M. R. Co., 32 La. 66: Kellogg v. in possession.\_

**P. L. 256 and 612 require that a defendant not residing in the county in which the land is situate be ruled to appear and plead and that such rule be published. Such state must be compiled with in order to raise a presumption that he is in possession. Kreamer v. Voneida, 24 Pa. Super. Ct. 347. The plaintiff in one element suit must be in possession before the defendant can be required to bring a second action for the same premises. Bloomer v. Meade, 26 Pa. Super. Ct. 392.**

**46.** _The creation of a bridge abutment under a license does not convert such license into a corporeal right which can be made the basis of ejectrum under a statute author, being this action "to recover land." Nicolai v. Baltimore \[Md.\] 60 A. 627._

**NOTE. Action by railroad company for right of way: Plaintiff brought ejectrum against defendant to recover possession of land condemned for right of way, depot and terminal facilities. Defendant claimed the band by right of possession under a tax deed regular on its face, the creation of listing improvements, and nonsuer of the lots by plaintiff for railway purposes. There had never in fact been any delinquency in the payment of taxes by the plaintiff.**

**P. L. 434.** _Defendant could be maintained._

**S. 44.** _Defendant could be maintained._

\*\*C. P. R. Co. v. Burns \[Kan.\] 79 P. 288.\_

**The decision seems to be based on defendant's unavailing defense rather than upon the strength of plaintiff's own title, and a minority dissent is placed on this ground, as it is fundamental that the plaintiff in ejectment must recover, if at all, on the strength of his own title. Had the plaintiff such a title? In the absence of explicit statutory provisions, the decisions are not harmonious. The railway company's interest is frequently pediatures (1064).**

**S. 44.** \_Defendant is the basis of the action which is possessed and lies only when the defendant is in possession,\_45 \_and where corporeal rights are involved,\_46 \_but persons unlawfully using an easemem may be ousted where such relief is incidental.

5 Cur. Law. **EJECTMENT (AND WRIT OF ENTRY) SS 1**. 1057

ation of a dead of conveyance,49 nor to enforce the payment of a lien existing on land at the time it is conveyed,50 nor against a public corporation occupying a street within the limits of the public right.51 Federal statutes require notice by the plaintiff to the defendant to vacate where the action is brought against an intruder on Indian lands.52

\_Title in plaintiff.53--\_The plaintiff must recover on the strength of his own title,54 and not on the weakness of the title of his adversary,55 except where he can show that the title under which defendant claims has an intermediate common source with his own,56 or that while in quiet and undisturbed possession, the defendant, a mere trespasser, entered and ousted him.57 An equitable title will not sustain the action,58 except as against a trespasser.59 The purchaser of an equity of redemption may maintain it against the mortgagor,60 but not against the mortgagee.61

The possessory action known in Louisiana may be maintained by a lessee against his lessor.62

_Prior possession63_ is sufficient as against a trespasser or one claiming only under a later possession;64 but where one seeks to recover on the prior possession of his predecessor in title, he must show the prior possession of his predecessor and a dead from him or from one claiming under him executed while the grantor was in actual possession.65

\_Nature of the remedy.--\_The proceeding is legal64 and is not converted into

49, 50. Adams v. Barrell, 26 Pa. Super., 641.

51. Budd v. Camden Horse R. Co., 70 N. J., 51 S. E. 219.

01. The notice to leave the premises required by 30 Stat. 496, is sufficient where given by any person bringing the action, though an Indian nation is subsequently joined as party plaintiff. Price v. Cherokee Nation \[Ind. T.\] 82 S. W. 893.

01. See 3 C. L. 1158.

01. Richereck v. Russell, 34 Ind. App. 217, 72 N. E. 617; Terhume V. Porter, 212 III. 595, 72 N. E. 829; Smith v. Curter \[Neb\]. 103 N.

01. The holder of an equitable title can recover as against a mere trespasser. Hinton v. Moore \[N. C.\] 51 S. E. 787.

300; Crist v. Bout, 26 Pa. Super. Ct. 543; Carpenter v. Jones \[Ark.\] 88 S. W. 871.

56, 72. Chesapeake Beach R. Co. v. Wash-

57. See 3 C. L. 1158.

01. Ables v. Webb, 186 Mo. 233, 85 S. W.

01. The holder of an equitable title can recover as against a mere trespasser. Hinton v. Moore \[N. C.\] 51 S. E. 787.

01. The mortgagor will not be allowed to

01. set off the outstanding title of the mortgagee. Carter v. Smith \[Ala.\] 38 So. 184.

01. Defendant may show that he is in as mortgagee notwithstanding an assignment of the mortgage subsequent to the institution of the suit. Carter v. Smith \[Ala.\] 38 So. 184.

01. A lessee in possession has the same right to maintain his possession against his lessor as he has against any other person, State v. De Baillon, 113 La. 572, 37 So. 481.

01. See 3 C. L. 1160.

01. Penrose v. Cooper \[Kan.\] 81 P. 489.

Proof of peaceable possession under a claim of title prior to the time defendant took possession under a voidable taxed will sustain a recovery, though a good paper title is not established. If Where possession has once been taken and acts of ownership exercised thereunder, a continua-

65. Preface v. Meldton \[Ga.\] 51 S. E. 330.

### 1058 Ejectment (and Writ of Entry) $ 2.

5 Cur. Law.

one in equity by setting up an equitable defense where no affirmative relief is asked,\[97\] but by the filing of amendments praying equitable relief, it may become so.\[68\] It is analogous to an action to quiet title in that the plaintiff must recover on the strength of his own title, but differs from it in that it is legal,\[69\] and from forcible entry and unlawful detainer in that title is involved.\[70\] In an action to recover land purchased at foreclosure sale, an irregularity occurring at such sale cannot be inquired into.\[71\] The Georgia statutory action for the recovery of real property is a mixed action; partly ex delicto but mainly possessory.\[72\] It is in no sense an action ex contractu and cannot be joined with such an action.\[73\]

SS 3. \_Defenses.\[74\]--\_Title in the defendant\[75\] or that he is in possession under a contract to purchase,\[76\] or by virtue of homestead rights,\[77\] is a good defense. A ground of defense repudiated by the plea and evidence cannot be asserted.\[78\] There is a conflict of authority as to whether an equitable title is a good defense.\[79\]

A judgment in ejecment is not a bar to another action between the same parties for the same land,\[89\] unless such judgment is more than a mere ejecment judgment and accords the defendant full equitable relief.\[81\] It is not barred by bringing an inappropriate remedy for use and occupation under a license,\[82\] nor by the dismissal of a bill to set aside a judgment recovered against a tenant where such bill did not ask the determination of the landlords title.\[83\] A judgment against a tenant is not, so far as title to the land is concerned, conclusive against the landlord who is not made a party,\[84\] and especially where the judgment is by default and neither tenant nor landlord appeared.\[85\] The action may be barred by limitations.\[84\]

### 66, 67.

Kessner v. Phillips \[Mo.\] 88 S. W.

ing an abandonment of the contract. Brixen v. Jorgensen, 12 Utah, 290, 78 P. 674.

### 68.

So that when the same is referred to an auditor, exceptions of fact to his report need not be submitted to the jury. Phillips v. Collinsville Grante Co. \[Ga.\] 51 S. E. 666.

### 69.

See Quietting Title, 4 C. L. 1167.

70. See Foreible Entry and Unlawful Detainer, 3 C. L. 1435. The pendency of an action in ejecment will not bar forcible entry and unlawful detainer. Merkiv v. Merkiv, 113 III, App. 518.

01. The terre tenant against whom the judgment in scire facias was rendered cannot complain that no service thereof was made on the mortgagon. Taylor v. Beckley, \[Pa.\] 61 A. 79. See, also, Foreclosure of Mortgages on Land, 3 C. L. 1438; Judicial Sales, 4 C. L. 321.

01. Ramey v. O'Byrne, 11 Ga. 516, 49 S. E. 595.

01. A grantee in a security deed cannot join an action against the widow of the deceased grantor to recover the land, and a suit against the grantor's estate on the debt secured by the deed. Ramey v. O'Byrne, 121 Ga. 516, 49 S. E. 595.

01. See 3 C. L. 1160.

01. An owner may defend ejecment on any title which he has acquired for the purpose of fortifying his possession. Richardson v. Morris, 26 Pa. Super. Ct. 192.

01. Unless it is shown to have been broken or abandoned. Norris v. Billingsley \[Fla.\] 37 So. 644. A vendor in a contract of which time is not the essence and which does not stipulate for foreficture in case of failure to pay the purchase price, cannot maintain ejecment on failure of the purchaser to pay a balance due without show- orde without show- orde.\[85\] The action may be barred by 5 Cur. Law. --EJECTION (AND WRIT OF ENTRY) $ 4. 1059

SS 3. _Parties._"--One co-tenant may maintain the action alone as against one who is not a co-tenant."8 It may be maintained by an administrator alone,"8 or by the heirs of an owner,"9 but not by a temporary administrator,"9 and if joined as a party plaintiff, his name may be stricken."92 A tenant who disclaims and snrrenders possession is properly retained as a party to determine his liability for rent while in possession."93 The wife of the holder of the record title properly made a party and charged with a personal liability for withholding the premises is required to answer."

SS 4. \_Process and pleading.\_95 _Process._--In New Jersey, in ejecitement against a corporation, the declaration may be annexed to the summons and served therewith." This rule applies where it is necessary to obtain the judge's order directing the manner of service."97

_The complaint_" must contain a description of the property sufficient to identify it,"94 allege title and a right to possession," and clearly state that defendant is in possession," an allegation of possession being one of fact." By statute in Arkansas, muniments of title may be attached to the complaint as exhibits."

**NOTE. Impairment of contract oblliga--**

change in the law subsequent to the execution of the mortgage, does not work an qutitclaim deed from P. B., defendant below.

Impairment of the contract. Hooker v. Burr, showed title through a sheriff's certificate issued upon foreclosure sale to her as mortgage and purchaser. B. had been in possession by the Federal Constitution.--\*\*

From 3 Mieh. L. R. 157.

mortgage to pay taxes. The statute exist-\*\*

from 3000. Dornian v. Westervitch, 140 Ala. 253.

not limit the period within which the sher-\*\*

if's deed was to be made. Subsequently a statute limiting such time to five years after the period of redemption had expired was passed. B. neglected to comply with the provision, and secured no deed within the prescribed time. Held, ejecitement would not lie. Bradley v. Lightcap, 195 U. S. 1, 49 Law. Ed. 65.

The decision is based upon the impairment of the contract obligation wrought by the latter enactment, which the court (per Chief) Justice Fuller refuses to read into the terms of the mortgage previously made.

This cause was twice before the Illinois supreme court (188 Ill. 510, 201 III. 511): Judge--\*\*

ment for defendant B. being first reversed, and the case remanded, and on a second appeal, Judgment for plaintiff L. affirmed. The United States circuit court for the Northern District of Illinois refused to take jurisdicch-\*\*

from 3000. Dornis v. Story \[Ga.\] 50 S. E. 348.

that no Federal question was involved, the state in question neither forfeiting B.'s title to the mortgagor, nor interfering with her title acquired by possession. This defence was affirmed on appeal. The question of impairment of contract obligations has arisen, in this connection, in numerous ways.

Without impairing such obligations, it is held, the remedy afforded by law may be changed. Sturges v. Crommshield, 4 When-\*\*

from 122. But a law creating or extending a the period of redemption in favor of the mortgagor and his judgment creditors pass-\*\*

mortgagor and his judgment creditors pass-\*\*

ed subsequently to the execution of the "mortgage" to work in progress.

mortgage is void. Barnitz v. Beverly, 163 U. S. 118; Cargill v. Powers, 1 Mieh. 369.

And a law extending the period of redemption.

tion from tax sale passed after the sale, a cause of action. Price v. Cherokee Nation but before the redemption period is expired, is void. Robinson v. Howe, 13 VWs. 380. But as to a stranger purchasing at foreclosure sale, a man of the action plaintiff was the owner 1060 EJECTMENT (AND WRIT OF ENTRY) SS 5. 5 Cur. Law.

\_An answer_s must be definite in its traverse of plaintiff's title,s and set forth particularly the nature of the title claimed by the defendant.7 One alleging title by adverse possession must allege that the statutory period expired prior to the commencement of the action,' and where title is claimed under a short-period statute, it must show that the terms of that statute have been complied with.s Pleading in avoidance of the title alleged is an admission of it.10 An answer setting up a special right to possession must allege in what manner such right exists.11 A general denial to a complaint specifically setting forth the title claimed raises no issue.12 Under the plea of a general issue to a writ of entry, only the question of title is in issue.13

_Amendments_ are allowable in ejectment as well as in other actions.14

SS 5. _Evidence.15_--The burden is on the plaintiff to establish his title16 or right

and in possession of the entire premises that the premises in question constituted the amendment farm. Id.

_Medemant_ "had been and now is" in"nluxfully in possession of a described portion, is de-

946. An allegation in an answer that "de-

145 Cal. 606, 79 P. 281.

$A$. An allegation that plaintiff's predecessor in title died sensed and possessed of the

143. Plea of nul disselin amounts to a

001. A complaint, the description in which

001. A plat, not being a deed or written

evidence of title, is not a proper exhibit to

146. A complaint, the description in which

001. A plat, not being a deed or written

001. A plat, not being a deed or written

001. A plat, not being a proper exhibit

001. A plat, not being a deed or written

001. A plat, not being a proper exhibit

001. A plat, not being a deed or written

001. A plat, not being a proper exhibit

001. A plat, not being a deed or written

001. A plat, not being a proper exhibit

001. A plat, not being a deed or written

001. A plat, not being a proper exhibit

001.

5 Cur. Law. **EJECTMENT (AND WRIT OF ENTRY) $ 5.** 1061

to possession,${}^{17}$ as alleged in his complaint,${}^{18}$ and proof of legal title in him precludes the granting of a nonsuit.${}^{19}$ He must prove title as against the world or from a common source,${}^{20}$ at the commencement of the action and at the time of trial.${}^{21}$ If he claims title by adverse possession, he must prove every element necessary to constitute title under the statute of limitations.${}^{22}$ But after he has established a prima facie title,${}^{28}$ the burden is on the defendant to prove facts negativing the case so made.${}^{24}$ Where title is claimed from a common source, neither party is required to prove another title or pursue the chain further than to the common grantor;${}^{25}$ but plaintiff must show a better title than that of dc-fendant or an actual prior possession in order to put the defendant to the necessity

purchaser must show a valid judgment, an execution or order of sale and ded. Rich- one who had prior possession or title. Leech

cerek v. Russell, 34 Ind. App. 211, 72 N. E. \*\*V. Karthaus \[Ala.\] 37 So. 696.\**Proof of 617. A claim of title through a taxed common source is not established by show-can be sustained only by proof that the law has been compiled with. Id. To authorize a reovery on a sheriff* deed there must be a valid judgment, execution, levy, sale and ded; and it must also appear that the de-fendant in judgment had an estate subject to levy and sale. Carter v. Smith \[Ala.\] 38 So. 134.

**Evidence held for the jury where the premises in controversy were near the boundary. Richardson v. Morris, 26 Pa. Super. Ct. 192; Daley v. Wingert, 210 Pa.**

Super. Ct. 193; Daley v. Wingert, 210 Pa. 169, 59 A. 982. Conflicting evidence as to the identity and acreage of the tract used for raises a question for the jury. Error to direct a verdict for plaintiff. Brand v. Learned \[Miss.\] 38 So. 43.

**17. A mortgage entitled to possession may maintain a real action whether there has been a breach of the condition of the mortgage or not. Davis v. Poland, 99 Me. 345, 59 A. 520.**

**18. Burns' Ann. 8t. 1901, $ 1066. On an allegation of legal title, proof of an equitable one does not entitle him to recover. Coppock v. Austin, 34 Ind. App. 319, 72 N. E. 657.**

**Evidence insufficient to establish the title alleged. George v. Columbia & P. S. R. Co. \[Vwash.\] 80 P. 767: Coppock v. Austin, 34 Ind. App. 319, 72 N. E. 657. A deced offered in evidence which describes the land mentioned in the complaint except that it is not clear whether the number of feet stated by figures is the same as that stated in the complaint is not subject to the objection "that it describes a different piece of land than that described in the complaint." Marsh v. Bennett \[Fla.\] 38 So. 237. Where the complaint described the land according to an unauthorized plat, the proof must show that such description was Identical with the true description by metes and bounds as alleged. Pace v. Crandall \[Ark.\] 86 S. W. 812.**

**19. Where defendants admit legal title in plaintiff but aver that they are in possession under a contract to purchase with the greater portion of the purchase money paid and pray specific performance. Du Bignon v. Finch \[Ga.\] 51 S. E. 574.**

**20. Love v. Turner \[S. C.\] 51 S. E. 101.**

**If the land is wild and unrecognized he must establish a superior paper title. Skid-more v. Smith \[Ky.\] 84 S. W. 1168.**

\*\*defendants do not claim from the same source as plaintiff, and make no admissions concerning title, plaintiff must show prior of supporting his possession by a title superior to one of naked possession,26 and neither can assail the title of the common source.27 A conveyance by one in possession is prima facie evidence of title,28 but a conveyance by one not in possession nor connected with the legal title is not.29 The evidence admissible80 is confined to the title pleaded.81 Evidence of any defense legal or equitable may be given under a general denial.82. Possession cannot be established by family repute,53 and an administrator's application for leave to sell land is not evidence of title or possession in his intestine.34 A deed, the description in which is so uncertain as to afford no means of identification of the premises, is no evidence of title55 unless explained by parol,26 and will not sustain a recovery.37 An intermediate deed between the conveyance from the commonwealth and plaintiff's title is not admissible without evidence of a line of paper title from the grantee of the commonwealth to the grantor in the deed offered in evidence.88 Such a deed is admissible, however, on a claim of title by adverse possession, or where it is connected with the grant of the commonwealth by reciats.89 Where plaintiff relies on a deed coming from his own possession, defendant may rely on an indorsement thereon showing it to be void without proof of execution.40

Footnote 26: Harrison v. Gallegos \[N. M.\] 79 P. 300.

action by a guardian, evidence of his motives, belief or desires is immaterial. Hayndian and neither the United States nor the nation of which the common source was a citizen, was a party. Willhite v. Coombs \[Ind. T.\] 82 E. W. 772.

28: Terhune v. Porter, 212 Ill. 595, 72 N. E. 820.

29: Conveyance of wild land by one not connected with the legal title does not draw to the grantee constructive possession available in electment. Terhune v. Porter, 212 Ill. 595, 72 N. E. 820.

30: Where It is sought to recover a portion of lands partitioned by commissioners selected by co-tenants, title being traced through partition deeds, a commissioner may testify as to partition and who the commisators were. Senterfeit v. Sheardis \[S. C.\] 51 S. E. 142. And a witness who testifies that he knows the land in question may be asked if he knows the land described in the decided in evidence, the description being read as part of the question. Senterfeit v. Sheardis \[S. C.\] 51 S. E. 142. Statements by a grantee that he had delivered a deed are admissible against him or those claiming under him adversely to the deed. Cribbs v. Walker \[Ark.\] 85 S. W. 244. Where plaintiff shows title from the state, defendant may show an older grant. Love v. Turner \[S. C.\] 51 S. E. 101. Where it is admitted that a judgment ment under the execution of which plaintiff claimed was final, it was not competent for defendant to Assail it. Kessner v. Phillips \[Mo.\] 88 S. W. 66. A receiver's deed in plaintiff's chain of title is admissible, though the defendant was not a party to the action which resulted in the decree under which the receiver sold the property. Phillips v. Collinsville Granile Co. \[Ga.\] 51 S. E. 666. Nor would the fact that the receiver was not in possession of all the property at the time the deed was executed. Id. Evidence of a lost deed never recorded is not admisstble, Laws 1885, p. 233, c. 147 providing that a deed is only valid from registration as against bona fide purchasers. Hinton v. Moore \[N. C.\] 51 S. E. 787. In an 5 Cur. Law. EJECTMENT (AND WRIT OF ENTRY) SS 6. 1063

SS 6. _Trial and judgment._"--The United States courts in the Indian Territory have jurisdiction of an action by a Cherokee Indian or the Cherokee Nation to recover land from an intruder."

In North Carolina the defendant is required to file a bond for costs and damages,"\[43\] and in Arkansas, in an action to recover land held under tax title, the plaintiff must make affidavit of a tender of the amount paid if the sale is void for irregularities of officers."

If a complaint states a cause of action in ejecment,"\[45\] it will be tried as such, though erroneously styled."\[46\] A different cause of action and source of title cannot be introduced into the case after issue joined."\[47\]

_Instructions_ must meet the usual requirements"\[48\] and should not deny a party the benefit of the presumptions arising from prior possession."\[49\]

In determining what judgment shall be entered on a special verdict, only the pleadings and postea can be looked to; evidence cannot be considered."\[50\] The holder of the legal title is bound by a judgment against the tenant where he is notified of the action and conducted the defense,"\[51\] but under a statute providing that a judgment shall be conclusive as to title and right to possession as to the party against whom it is rendered and those claiming under him after commencement of the action, a judgment against a tenant who removes prior to execution is not binding on the landlord or a subsequent tenant."\[52\] A Virginia office judgment in ejecment cannot become final without the intervention of a court or jury,"\[52\] but may be made final without inquiry at a subsequent term where no claim for damages is filed."\[54\] A judgment must be enforced within a year and a day after rendition both at common law and by the statute of Virginia."\[55\] It will not be reversed on plaintiff's appeal for error in allowing all instead of only one defendant to recover for im 1064EJECTMENT (AND WRIT OF ENTRY) SS 7. 5 Cur. Law.

provements; \[54\] but where judgment by default is irregularly taken and plaintiff put into possession under a writ, the court in striking the judgment should award restitution if the property has not been sold. \[57\]

_A writ of possession_\[58\] is not exhausted by one dispossession. \[60\] One in possession who was not a party to the action cannot be disturbed by virtue of it; \[60\] but the holder of an independent title, not a party to the action, who acquires the defendant's title pendente lite, may be ousted, though his independent title has not been litigated. \[61\]

_Costs.--In Wisconsin a disclaimer by a defendant holder of the record title does not entitle him to a judgment for costs, \[62\] but a disclaimer by one charged with a personal liability for withholding the premises constitutes a complete defense. \[63\]_

## 7 New trial. \[64\]

Mesne profits and damages. \[65\]--In many states it is provided by statute that damages for detention of the premises may be recovered \[66\] if properly pleaded. \[67\] A prayer for mesne profits and damages may be set up by amendment to the original complaint. \[68\]

Allowance for improvements and expenditures. \[60\]--As a general rule, only improvements made in good faith and without notice of adverse claims to the premises can be recovered for. \[66\] Hence one who makes improvements with actual or constructive notice of superior rights of another cannot recover for them, \[71\] though through mistake of law he regards his title as superior. \[72\] Statutes allowing

entry subsequently issued. King v. Davis,

137 T. 198.

56. Where one defendant is entitled to

recover for improvements but others are not.

a judgment erroneous in that it allows a recovery for all is not ground for reversal on plaintiff's exception. Boncher v. Trembley \[Mich.\] 12 Det. Leg. N. 184, 103 N. W.

819.

001. Hoffman v. Hafner, 211 Pa. 10, 60 A.

001.

001. See 3 C. L. 1164, n. 3. See Possession,

Writ of, 4 C. L. 1060.

50. Second execution was lawfnl. Smith v. State \[Tex. Cr. App.\] 81 S. W. 936.

01. Where one in possession was not a party to the action and would be disturbed by execution of the writ of possession, an order will issue to the officer executing the writ to leave his possession undisturbed. King v. Davis, 137 F. 222.

01. King v. Davis, 137 F. 222.

01. Laws 1901, c. 152, p. 186, providing that a judgment against the holder of the record title shall be binding on him and all who claim under him. Stephenson v. Doo- little, 123 WIs, 36, 100 N. W. 1041.

01. Not having a record title, Laws 1901, c. 152, p. 186 does not apply. Stephenson v. Doo- little, 123 WIs. 36, 100 N. W. 1041.

01. See 3 C. L. 1164, and New Trial and

Arrest of Judmment, 4 C. L. 810.

65. See 3 C. L. 1164.

01. Under Mansf. 316. % 2637 (Ind. T. Ann. St. 1899, $\\lx@sectionsign$ 1921), a successful plaintiff is entitled to recover rents and profits as damages for detention. Price v. Cheroke Nation \[Ind. T.\] 82 S. W. 893. In an action for mineral rights where the defendant has leased the premises, the royalties received by him anddue to him are the,prop. \[60\]

01. An allegation that defendant while in possession cut and sold a large number of trees, and demanding damages, sminfentent-by pleads damages for withholding possession. Lassiter v. Okeete Club \[S. C.\] 49 S. E. 234.

01. Phillips v. Collinsville Granite Co. \[Ga.\] 51 S. E. 666.

01. See 3 C. L. 1165.

01. A purchaser with notice of his grantors' violation of a condition subsequent in his deed is not entitled to recover for improvements. Van Tassell v. Wakefield, 214 III. 205, 73 N. E. 240. In order to claim for Improvements under Comp. Laws 1897, $\\lx@sectionsign$ 10,95, defendants must have occupied under color of title and have been in possession six years. Boncher v. Trembley \[Mich.\] 12 Det. Leg. N. 184, 103 N. W. 819. Under Comp. Laws 1897, $\\lx@sectionsign$ 10,986, where a husband and wife occupied premises as a honesated but he died before the expiration of six years and his widow continued the occupancy and made improvements, held, she was entitled to recover for improvements. Id.

01. Yock v. Mann \[Vv. Va.\] 49 S. E. 1019; Wood v. Tinsley \[N. C.\] 51 S. E. 59. Under Actu 1883, p. 106,

## 5 Cur. Law: Elections SS 1.

a defendant to recover for improvements are not retroactive as to occupancy.\[73\] The statutes of some states give the plaintiff an election to pay the value of the improvements or sell the land to the defendant.\[74\] A defendant desiring reimbursement for improvements must make his claim by proper averments in his answer;\[75\] but the striking of an answer as frivolous does not preclude a recovery.\[76\] Where there is a prayer for damages for detention, a tender of money for improvements need not be brought into court.\[77\] In some states a claim for improvements must be made by petition after judgment,\[78\] and that a claim is not set up in the action does not preclude the defendant from thereafter while still in possession maintaining a suit in equity therefor.\[79\]

ELECTIONS.\[80\]

Legal authorization, time, place and notice.\[81\]--Authority always comes from the constitution and statutes under it prescribing occasions which befall either periodically or are created at irregular times by petition of electors, legislative submission or the like.\[82\] A petition must be signed by such electors in such number as the law fixes.\[83\] It may, if the statutes shows no contrary policy, be withdrawn and refiled.\[84\] Where a certain local policy is submitted, a petition which is legally insufficient does not have precedence over a legal petition, covering overlapping

## 7 To give them such effect would in-

damus, 4 C. L. 506; Quo Warranto, 4 C. L. validate them as affecting vested rights. In-

verstment Co. v. Hambach, 37 Wash. 629, 80 P. 190.

"councils" chose officers (see Officers and

"fav if the defendants are entitled to

this pertinent to elections, whereby voters

the value of improvements and the plaintiff

act on matters of law or local policy sub-

elects to sell to them and they refuse a

ended, the value of the land specially found

in the action should be adjuded a first

liem. Bruner v. Hunt \[Kan.\] 81 P. 184.

"fav. Evidence of improvements is not ad-

missble unless claim therefor is made in

the answer. Carraway v. Moore \[Ark.\] 86 S. V. Wass.

"fav." Does not preclude the defendant from

making proof of equitable claims for tax

certificates, fees, recording, etc. Stephenson

v. Doolittle, 128 Wis. 36, 100 N. W. 1041.

"fav." Price v. Cherokee Nation \[Ind. T.\] 82 S. W. 893.

"fav." Cannot be set up at the trial of the

action. Wood v. Tinsley \[N. C.\] 51 S. E. 59.

"fav." Patillo v. Martin, 107 Mo. App. 855.

"fav." Where

83 S. V. 1010. Under Rev. St. 1899, **SS 875**,

"fav." nothing but the value of improvements can be adjudicated, therefore an action for a portion of the purchase price

"fav." The idea is not brought under such statute. Id.

"fav." The idea of elections

is not regarded as including that of offices

and officers or their remedial rights (see Officers and Public Employees, 4 C, L. 854; Man-

"fav." The idea of elections is not yet clear."

"fav." The idea of elections is not yet clear.

territory, which is properly filed before the insufficient petition is made sufficient.\[85\] Matters of local policy referred to voters must be described with certainty in the petition,\[86\] and the order calling the election must conform.\[87\]

_Time.\[88\]_--A fixed and authoritative time for holding an election is indispensable to a full and effectual exercise of the right to vote;\[89\] but a substantial observance is sufficient, and a slight variance will not invalidate,\[99\] except where the time is mandatory.\[91\]

_Place.\[92\]_--It is also imperative that the place of holding an election shall be fixed. An election held at any other than the designated place is void.\[93\] but where result could not have been affected, an election held on the precinct boundary but outside was sustained.\[94\]

_Precincts\[95\]_ may be created or changed by statute or under statutory authority as public convenience may require,\[96\] and their boundaries may become fixed by long public recognition.\[97\]

_Notice\[98\]_ of some kind is essential to the validity of an election.\[99\] But the time and place of holding general elections is usually fixed by public laws of which all are bound to take notice.\[1\] Provisions, therefore, for giving notice, are to be names, provided only that the signers as-sent to the change in the boundaries, and constitute forty per cent. of the electors of the district so changed. City of Columnes v. Glackin, 3 Ohio N. P. (N. S.) 356.

\*\*85. Under Brannock Law. Fulton V. Columbus, 3 Ohio N. P. (N. S.) 358.

**86. Stock law. Ex parte Kimbrell \[Tex. Cr. App.\] 83 B. W. 382.**

**87. Petition and order for stock law election must state what animals are to be kept up. Ex parte Kimbrell \[Tex. Cr. App.\] 83 B. W. 382.**

**88. See 3 C. L. 1166.**

**89. The provision of the Nebraska constitution (Section 13, art. 18), that "the general election of this state shall be held on Tuesday succeeding the first Monday of November of each year," is not of itself an imperative command that general elections shall he held annually. State .v. Galusha \[Neb.\] 104 N. W. 197.**

**90. See 3 C. L. 1166, n. 22. Under a statute that a local option election shall not be held within two years of a former election, that the result of the former election was published within the two years does not invalidate a subsequent election. Ex parte Smith \[Tex. Cr. App.\] 13 Tex. Ct. Rep. 718, 88 S. W. 245.**

**91. The provision of the Brannock Law that an election shall be held not less than twenty or more than thirty days after the thing of the petition's mandatory, and compliance therewith is essential to the validity of the election. City of Columbus v. Cole. 3 Ohio N. P. (N. S.) 353.**

**92. See 3 C. L. 1166.**

**93. See 3 C. L. 1166, n. 27. But though the polling place is in a room not opening on a public thoroughflare, it having been established by the proper authorities, and been the authorized and usual voting place for years, its location does not render the election void. Choiser v. York, 211 III. 56, 71 N. E. 940.**

**94. The designation, in an order for an election and the proclamation giving notice thereof under the Brannock Law, of a voting place on the opposite side of a street forming one of the boundaries of the proposed district and fifteen feet beyond the center of the street where the boundary line runs, is not a sufficient ground for setting aside the will of the voters as expressed by a decided majority, in the absence of any showing of fraud, or that any electors were misled thereby or deprived of an opportunity to vote, or that the result would have been different had the voting place and booth been properly located within the district. In re Petition of John F. Ammer, 3 Ohio N. P. (N. S.) 329.**

**95. See 3 C. L. 1166, n. 27.**

**96. In New Hampshire it is within the general geower of the legislature to divide towns into voting precricts, and have elections of all officers by precinct meetings instead of town meetings. In re Opinion of the Justices \[N. H.\] 60 A. 847. A statutory provision that precincts should not be changed within 90 days preceding an election has no reference to a special election upon question of creating a school district. Rader v. Board of Education of Beaver Dist. \[W. Va.\] 50 S. E. 240.**

**97. Where for many years certain lines have been recognized by election judges as the true lines of a township, votes cast in reliance thereon will not be excluded, though cast in wrong township. Lovewell v. Bowen \[Ark.\] 88 S. W. 570.**

**98. See 3 C. L. 1166.**

**99. Where notice of vacancy in an office and of an election to fill the vacancy is required by law, it will be presumed that such notice was given, and the burden rests upon one who assails the validity of the election to show the want of notice. Rodwell v. Rowland, 137 N. C. 617, 50 S. E. 319.**

\*\*1. Where a statute authorized the submission, at an annual election of borough officers, of the question of the issuance of bonds, failure of the notice of submission of this question to state place of election was not fatal: Fletcher v. Collings-wood \[N. J. Law\] 59 A. 9 regarded as merely directory.\[2\] The manner of notice prescribed in an act specially relating to one kind of elections respecting the public policy of a region is not abrogated by a law relating to general elections.\[3\] An irregularity in the publication of a proclamation by the mayor will not be considered, where it appears that notice to voters of the pendency of the election was so general that more votes were cast that at the last preceding election,\[4\] and a misnomer of the office by virtue of which the election was called has been disregarded.\[5\]

SS 2. _Eligibility and registration of electors.\[6\]_--These are matters of state concern to be fixed by their organic law or legislation within limitations of the Federal or state constitution.\[7\] The right to vote is usually limited to citizens\[8\] or freenen\[9\] who have attained their majority,\[10\] who are sane in mind,\[11\] and sometimes depends upon the payment of taxes.\[12\]

_Residence.\[13\]_--One of the more common requirements is that the person offering to vote shall for a given period have been a resident\[14\] of the district within which the election is held. It is competent for a state to require a stated residence and a prior registration of intent to become a voter.\[15\] Persons in the public service,\[16\] students in attendance at a college or university,\[17\] neither gain nor lose a residence.\[18\]

_Registration.\[19\]_--As a means of determining who possess the qualifications of voters, and of regulating the exercise of the right,\[20\] statutes have been passed in nearly all the states requiring the names of those entitled to vote to be previously recorded by officers designated for that purpose,\[21\] though as to some elections\[22\]

Z. See 1 C. L. 982, n, 13; 3 C. L. 1166, n. 29.

Failure of election notice to contain a description of territory proposed to be incorporated did not violate election. People v. New, 214 Ill. 287, 73 N. E. 362.

&. Stock law election requires 30 days notice (Stock Law, $\\lx@sectionsign$ 5), notwithstanding Acts 28th Leg. 1903, p. 133, p. 101. Ex part Kimbreil \[Tex, Cr. App.\] 83 S, W. 382. The requirement of 12 days notice of a local option election under the Texas status is not repeated by a general act requiring 20 days notice of an election. McGHam v. Love \[Tex, Civ. App.\] 87 S. W. 875.

4. In re South Charleston Election Context, 3 Ohio N. P. (N. S.) 378.

1. The fact that registration commissioners stayed themselves "comminsomers of election" in the public notice calling a special election was a mere clerical error and insufficient to invalidate election. Red River Purchace Co., Tennessee Cent. R. Co., 113 Tenn. 697, 87 S. W. 1016.

1. See 3 C. L. 1167.

1. See 3 C. L. 1167, n. 38, 39; 1 C. L. 982,

1. See 3 C. L. 1167, n. 40.

1. See 3 C. L. 1167, n. 41.

1. As the law notes no fraction of a day, a man attains his majority on the day preceding his 21st birthday; hence a man born on June 9, 1883, is eligible to vote on June 8, 1904. Erwin v. Benton \[Ky.\] 87 S. W. 291.

1. One whose mental condition is such that a court would experience no hesitancy in committing him to an insnane asylum or in appointing a guardian for him were proper application made, comes well within the class of persons who under the term "did!" or "insnane" are prohibited from voting by the constitution. In re South Charles 1068 ELECTIONS SS 3. 5 Cur. Law. or localities it is not made necessary. A registration taken without legal warrant has no force in determining who or how many are qualified.\[28\] Registration laws must be just, reasonable, uniform and impartial,\[24\] not impairing constitutional rights of suffrage,\[24\] and statutory requirements as to time, place and manner of registration must be substantially complied with.\[26\] The name of a voter properly qualified may not at a subsequent meeting of the registration board be arbitrarily stricken from the lists.\[27\]

SS 3. \_Nominations by convention or petition.\[28\] Conventions and nominations.\[29\]--Conventions can only make such nominations as are specified in the call,\[30\] but the convention may delegate to a committee such authority as it itself possesses.\[31\]

Petitions.\[32\]--A provision that the elector shall "subscribe" excludes a signing by another.\[33\] An elector may sign but one petition in Rhode Island.\[44\] Where, as in Rhode Island, the petition is to be examined to determine which of the signers are qualified as shown by the voting list, no initials or abbreviations can be recognized except what are shown by the voting list.\[35\]

Certificates-and declination and vacancies.\[36\]--The certificate must comply substantially with the statute,\[37\] naming the candidates and the offices,\[38\] and be filed at the proper time.\[39\] Under the Nebraska statute, a candidate declining a nomination must do so at least 12 days before the election.\[40\] A failure to properly certify nominations may result in a vacancy which a committee may fill.\[41\]

Contests and disputes.\[42\]--The decisions of statutory tribanks to whom have been submitted disputes as to rival nominations are final.\[43\]

registration for any other election than the annual election for municipal officers. City of Thomasville Elec. Light & Gas Co. \[Ga.\] 50 S. E. 169. 23. The last tally list determines how many there were. City of Thomasville v. Thomasville Elec. Light & Gas Co. \[Ga.\] 50 S. E. 169. 24. People v. District Court of Third Judicial Dist. \[Coo.\] 78 P. 679. 25. See 1 C. L. 983, n. 28. 26. In Rhode Island it is the duty of the board of canvassers to hear evidence offered at a canvass meeting upon the qualifications of persons whose names are sought to be added or removed from the voting lists. Williams v. Chaplin, 26 R. I. 416, 59 A. 76. 27. People v. District Court of Third Judicial Dist. \[Coo.\] 78 P. 684. 28. See 3 C. L. 1168. 29. See 3 C. L. 1169. 30. To entitle the nomines of a mass convention to a place upon the official ballot, the call must state that the convention is to assemble for the purpose of nominating candidates. State v. Hays \[Mon.\] 78 P. 485. 31. Where owing to a deadlock a party convention fails to make a nomination for state senator and thereafter a joint meeting of the proper committees makes a nomination, the nominee's name should be placed upon the official ballot. In re Khehee, 45 Misc. 132, 91 N. Y. S. 889. If a mass convention of electors could not make nominations for public office because the call of the convention did not set forth such purpose, a committee appointed by such convention could not make such nominations. State v. Hays \[Mon.\] 78 P. 486. 32. See 3 C. L. 1168. 33. Gent. Laws 1896, e. 11, $ 13. Attorney General v. Clarke, 26 R. I. 470, 59 A. 395. 37. See 3 C. L. 1170, n. 67. In Montana all convention nominations of one party must be contained in a single certificate. A separate certificate for each nominee cannot be filed. State v. Hays \[Mon.\] 78 P. 301. 38. State v. Hays \[Mon.\] 78 P. 301. 39. See 3 C. L. 1170, n. 68. State v. Dewey \[Neb.\] 102 N. W. 1015. A requirement that certificates of nomination for city offices shall be filed a certain length of time before the election will not be assumed merely because this is required in case of nominations for county offices. City of Annapo-lis v. Gadd, 97 Md. 734, 57 A. 941. The Montana statute that certificates of nomination must be filed with the secretary of state not more than 60 nor less than 36 days before the election is mandatory. State v. Hays \[Mon.\] 78 P. 301. 40. State v. Dewey \[Neb.\] 102 N. W. 1015. 41. In Montana an inadvertent failure to include the name of a convention nominee for a certain office in the certificate renders the certificate insufficient as to that office, and entitles the proper committee to fill the vacancy. State v. Hays \[Mon.\] 78 P. 301. 42. See 3 C. L. 1169. See, also, post, $ 10. 43. See 3 C. L. 1169. People v. Rose, 211 N. 259, 71 N. E. 112; State v. Stewart, 71 Ohlo 81, 55, 72 N. E. 307; State v. Larson \[N. D.\] 101 N.

## 8 4 Official ballot

The official ballot must be in substantial compliance with the form prescribed by statute\[45\]. A form which provides for a means of voting a "party" ticket has been held not offensive to the guaranty of freedom of elections\[46\]. Questions submitted must not be so couched as to render the vote ambiguous\[47\]. Statutes designed to protect the secrecy of the ballot usually forbid the use of other than white paper for the ballots\[48\]. A party emblem may be legally displayed, though not all the names of candidates who adopted it appear beneath\[49\]. Statutes which prohibit the printing of a candidate's name in more than one column are constitutional\[50\].

_Use of party name\[51\]._--A substantial number of persons having an organization with the distinct views and policies is a political party\[52\], and entitled to the benefit and exclusive use of a party name\[53\]. In Montana only one ticket may appear on a ballot under a particular party designation\[54\].

## 5 Primary elections

The legislatures of many states have brought nominating elections, called "primary elections," by which the nominees of a party or delegates to its nominating conventions are chosen, under the surveillance and protection of the law\[56\]. Proceedings under such statutes must conform substantially to the law as to time\[57\] and notice\[58\]. The provision of the Michigan primary statute, which requires that before the name of any candidate shall be placed on the ballot at a primary election such candidate shall on oath declare his purpose to become such, is unconstitutional\[59\].

## 10 44 See 3 C. L. 1170

The requisite number of votes in a general general rule that a mere irregularity in form, which does not mislead the electors, will not invalidate an election, the court holds that the form of ballot used in this case, although not the form laid down in the statute, is not a sufficient reason for invalidating the election, and especially in view of the fact that the contestors by participating in the election sanctioned the form of ballot used. In re South Charles-ton Election Contest, 3 Ohio N. P. (N. S.) 373.

46 Provisions that there shall be printed at the left of ballots a list of the names of all the political parties, with squares at the right of each party named, and instructions as to method of voting party ticket, are not unconstitutional as interfering with freedom of elections. Oughton v. Black \[Pa.\] 61 A. 346.

47 Ballot in the alternative, "for or against the proposition of construction or purchase of waterworks," held to have rendered election nugatory. Marcellus v. Garfield \[N. J. Law\] 58 A. 1099.

48 Where paper of prescribed quality had become exhausted and a paper somewhat lighter in weight and color was used, no fraud appearing, election sustained. People v. Voorhis, 45 Misc. 104, 91 N. Y. S. 595.

The mere fact that a printed ballot contains at the head thereof the emblem legally adopted by a political party, but does not contain all of the names of the candidates adopting it. does not render the ballot. Esquivel V. Chaves \[N. M.\] 78 P. 505.

## 150 50

The legialatures of many states have brought nominating elections, called "primary elections," by which the nominees of a party or delegates to its nominating conventions are chosen, under the surveillance and protection of the law\[56\]. Proceedings under such statutes must conform substantially to the law as to time\[57\] and notice\[58\]. The provision of the Michigan primary statute, which requires that before the name of any candidate shall be placed on the ballot at a primary election such candidate shall on oath declare his purpose to become such, is unconstitutional\[59\].

## 151 44 See 3 C. L. 1170

The requisite number of votes in a general general rule that a mere irregularity in form, which does not mislead the electors, will not invalidate an election, the court holds that the form of ballot used in this case, although not the form laid down in the statute, is not a sufficient reason for invalidating the election, and especially in view of the fact that the contestors by participating in the election sanctioned the form of ballot used. In re South Charles-ton Election Contest, 3 Ohio N. P. (N. S.) 373.

## 160 54

The original ballot is a list of the names of all the political parties, with squares at the right of each party named, and instructions as to method of voting party ticket, are not unconstitutional as interfering with freedom of elections. Oughton v. Black \[Pa.\] 61 A. 346.

## 161 55

The 500 50Control by party committees.${}^{64}$--Primary elections are usually under the control of the party governing committee,${}^{61}$ subject, however, to provisions of law governing their mode of action.${}^{62}$

Ballots for primaries. Review and contest of primary.${}^{63}$--In case of contest or dispute over a party nomination, the governing authorities of that party are usually given exclusive jurisdiction to determine it,${}^{64}$ in which event their action is final.${}^{65}$ A member of a party committee who is a brother of a contestee in a contest of a nomination for office pending before the committee is disqualified to sit in the proceeding.${}^{66}$ The grounds of contest should be filed before such committee and notice given the contestee.${}^{67}$ Where the time within which a contest must be begun is fixed by statute, the resolution of a committee fixing a different time is void.${}^{68}$

Officers of election.${}^{69}$--If the tribunal required by law to appoint election commissioners fails to appoint such commissioners, the qualified voters present on election day may elect them in the manner prescribed${}^{70}$ by statutes in nearly all the states. Where it is provided that officers shall be appointed from lists submitted as "provided by law," but the provision is one for convenience only, the appointment may be made, though no list is submitted and no law provides for one.${}^{71}$ One cannot officate at his own election,${}^{72}$ but that one of the judges of an election for the incorporation of a school district was at the time a candidate for the office of trustee of the district did not render the incorporation election void.${}^{73}$

The duties of members of a canvassing board being ministerial, they are liable for the salary of a county officer who is kept out of office by the wrongful refusal of the board to recognize the certificate of precinct officers.${}^{74}$

An assignee of an election inspector's claim for compensation cannot maintain an action for conversion of certain cards bearing the inspector's signature, and which cards had been filed in the office of the board of elections.${}^{75}$

Polling the vote.${}^{76}$--The state may make such reasonable regulations for the holding of elections and the voting thereat as shall protect and preserve the right of the elector to exercise the franchise;${}^{77}$ but the votes of innocent electors 5 Cur. Law.

ELECTIONS SS 8.

are not to be rendered invalid by mere irregularities on the part of election officials; \[78\] though where it is plain that the irregularities have changed or rendered doubtful the result; \[79\] or where mandatory provisions have been dispensed with, the election is vitiated. \[80\] Provisions of law in regard to the preparation and distribution of ballots by designated officers are mandatory, and must be strictly construed. \[81\] An election is void in which one precinct of the county is deprived of an opportunity to vote by not having ballots furnished it, \[82\] nor can there be a subsequent election in such precinct to supply the deficiency. \[83\] The voter must appear and prepare his ballot in person, \[84\] and until a voter either qualifies by showing his right to vote or offers to do so by making affidavit, he is not a rejected voter. \[85\] Where, on an application to strike a name from registered list, there is any dispute as to facts, the judges should not interfere but permit voter to swear in his vote at his peril. \[86\]_Voting by machine._--Constitutional provisions declaring that all votes shall be by ballot do not render invalid statutory enactments providing for the use of voting machines. \[87\]_Curatire legislation_ will not validate a corrupt and fraudulent election. \[88\]\_SS 8. _Irregularity and ambiguity in ballot. \[89\]_--While the intent of the voter is material in determining the validity and effect of a ballot, \[90\] and he should not be disfranchised or deprived of his right to vote through mere inadvertence, mistake, or ignorance, if an honest intention can be ascertained from his ballot, \[91\] yet_reasonable andimpartial regulation. Gentsch \[\] was violated, or that the election was con- v. State, 71 Ohio St. 151, 72 N. E. 900.

ducted in such illegal manner that the true 78. See 3 C. L. 1171. That polls were sentiment of the electors was not expressed open at only two of three polling places, by it, or that it is impossible to know that the election was called by resolution whether it was expressed. O'Laughlin v. of the common council instead of ordinance \[\] Kirkwood, 107 Mo. App. 802, 81 S. W. 512.

(See 3 C. L. 1167, n. 32. O'Laughlin v. Kirk-

Use of rubber stamp in placing initials of an wood, 107 Mo. 302, 81 S. W. 512), that cer-

election official on ballot is mandatory.

tain ballots cast were rejected without a reason being given,were irregularities cured by a validating statute. Election for sub-

S1, Current v. Luther \[Ind.\] T2 N. E. 556.

by a validating statute. Election for sub-

S2, S3, Commonwealth v. Combs \[Ky\] 86 scripting stock in railroad enterprise. Red

S. W. 697.

River Furnace Co. v. Tennessee Cent. R. Co.

S4, See 3 C. L. 1172, n. 98. Under the

\[Tenn.\] 87 S. W. 1016. Failure to use the

California Pol, Code, # 1208, the question register of voters will not avoid the election, it not appearing that any illegal votes were cast in consequence thereof. Chois-

try is to be ascertained from the entry on ser v. York, 2111. 56, 71 N. E. 940. Minor

irregularities by members of an election board, voters, and bystanders at a polling

judges of election, upon being informed that place, unaccompanied by fraud or conduct

a qualified voter, who is unable to leave his affecting the integrity of the ballot, will not operate to quash the election. Bingham v.

stone, to go out to the carriage and receive

Broadwell \[Neb.\] 103 N. W. 323. The fact

this ballot and deposit it in the ballot box;

that one vote was cast after the time fixed by

and were such not the case the irregularity law for the closing of the polls is no ground

is one which should be charged to the election for excluding the entire vote of a precinct,

tion officers rather than to the voter, and

but when, even if the vote of the precinct

is not of a character which would inter-
were counted as cast, the result of the election-

, free with a free expression of the people's

tlon would not be changed, mandamus will

choice. In re South Charleston Election

contest, 3 Ohio N. P. (N. S.) 373.

reconsolidate the vote of the county so

S5, Erwin v. Benton \[Ky.\] 87 S. W. 291.

as to include the votes of the precinct. GII-

S6, In re Jacobs, 45 Misc. 113, 91 N. Y. S.

S7, In re Smith, 44 Misc. 384, 89 N. Y.

S87, Lynch v. Malley, 215 Ill. 574, 74 N. E.

S. 1006. An election is void where enough

persons were deprived of an opportunity to

of Election for Fourth Election Dist, \[Mich.\]

vote or legal votes were thrown out, de-

102 N. W. 1029; People v. Board of Canvas-

stroyed or miscounted to change the result

of the election if all were counted for con-

88. Red River Furnace Co. v. Tennessee

testant. Maloney v. Collier, 112 Tenn. 78, 83

S8. We such intent, to become effectual, must be expressed comformably to the imperative requirements of law.\[92\] The penalty of losing his ballot will not, in the absence of a statute so declaring, be imposed upon a voter because of informalities in his ballot due to a violation of law by others and for which he is in no sense responsible.\[93\]

\_The marks.\[94\]--Where the voter indicates his choice by writing the name upon, or by pasting a printed sticker containing the name upon the official ballot, a cross mark after the name so written or pasted is not necessary to entitle it to be counted.\[95\] Ballots marked with a cross in the square under the party name at the head of a party column, and a cross extending over the whole column, of such party, thereby crossing out other candidates named in that column are void,\[96\] and in California ballots containing a stamp or cross in the blank opposite "no nomination" are thereby rendered illegal,\[97\] although there may be a large number of such ballots.\[98\]

_The writing in of names.\[99\]--Official ballots upon which the elector has placed printed stickers or written in name in the manner provided by statute are not rendered unofficial by that fact, and must be received and counted.\[1\]_

SS 9. _Distinguishing marks on ballot.\[2\]--An illegal mark upon a ballot, or a legal mark illegally placed, which may serve as a distinguishing mark, will invalidate the ballot, and necessitate its exclusion from the count.\[3\] The intent of a voter in making a distinguishing mark on his ballot cannot be shown other than by what appears upon the face of the ballot.\[4\]_

SS 10. \_Count, canvass and return,\[5\] custody of ballots and recount.\[6\]--The casting of a ballot which is not properly marked is not the casting of a vote, and in determining the number of votes cast, only those should be counted upon which the expression of a choice is indicated.\[7\] The record of a popular election is made up and finally completed at the polls.\[8\] The duty of determining in the first instance the choice of the electors is usually imposed upon the board or officers whose duty it is to count the ballots,\[9\] and the election of the person chosen should be certified pursuant to the result.\[10\] A provision that after the votes are counted

ed markings of a ballot, apparently the re-

**2.** See 3 C. L. 1172.

**3.** See 3 C. L. 1172. Ballots having pieces of colored paper folded within them held to be properly excluded as containing disquent identification, will not justify the re-

**11.** See 6, 71 N. E. 940. Placing a cross on the parallelogram containing the candidate's name after the name, but not in the square, is not a distinguishing mark in the absence of a stand opposite the candidate's name. In re

**3.** See 3 C. L. 1172.

**4.** See 3 C. L. 1172.

**5.** Roberts v. Bope \[N. D.\] 103 N. W. 935.

**6.** Turner v. Hamilton \[Wyo.\] 80 P. 664.

**7.** McCardle v. Barstow, 145 Cal. 135, 78 P. 371.

**8.** Trennor v. Williams, 145 Cal. 815, 78 P. 884.

**9.** See 3 C. L. 1172.

**1.** The fact that the voter has attached a combination of stickers, covering the names of several candidates, and substituting the names of those upon the stickers, without severing the stickers and attaching them separately, does not render the ballot invalid. Roberts v. Bope \[N. D.\] 103 N. W. 935. Writing contestants name with blue pencil instead of black held not to invalidate ballot, under law making intention of voter test of validity of ballot. State v. Conser, 5 Ohio C. C. (N. S.) 119.

**9.** See 3 C. L. 1173.

**10.** Where one has been lawfully elected to fill a vacancy in a borough council, the 5 Cur. Law. ELECTIONS SS 11. 1073

the judges shall proclaim the number of votes received by each person is directory merely.\[11\]

\_Return.\[12\]--\_The certificate of a canvassing board carries a presumption of the proper discharge of duties,\[13\] and is prima facie evidence of the right of the holder to the office.\[14\] Official returns are quasi records and stand until overcome by affirmative evidence against their integrity.\[15\] Failure of election officers to sign and return a certificate on the stub book as required by statute was held not sufficient to throw out vote of the precinct.\[16\]

\_Recount of ballots.\[17\]--\_On a recount the regular custodian or in case of his refusal an appointee of the canvassing board should receive and keep in custody the ballots and ballot boxes during recesses.\[18\] If one who has been declared elected is present at a recount to guard his interests, he is not estopped thereby from setting up the illegality of the recount.\[19\] Where the correctness of a canvass was not assailed, a private citizen was not entitled to mandamus to compel a second count on ground that original count was not made by the officers authorized by law.\[20\]

SS 11. \_Judicial control and supervision.\[1\]--\_In respect to party contentions peculiar to the province of party tribunals, the courts have no power.\[22\] Ordinarily the courts cannot review or correct the decision of the governing or central committee,\[23\] but the courts may require the committee to act or it may restrain them from acting when they have no jurisdiction.\[24\] Primary contests are usually settled before party committees or tribunals.\[28\] How the vote shall be canvassed or how certain ballots shall be counted will not be controlled by the courts.\[26\] Courts will

fact that he did not receive a certificate of election is immaterial in mandamus proceed-

ings to procure his installment in the office. Commonwealth v. Fleming, 23 Pa. Super. N. Y. S. 672.

Ct. 404.

**11.** Choisser v. York, 211 Ill. 56, 71 N. 8. 840.

**23.** Fill v. Holdam \[Ky.\] 87 S. W. 805.

**12.** See 3 C. L. 1174.

**13.** Galloway v. Bradburn, 26 Ky. L. R.

\*\*277, 82 S. W. 1013.

**14.** The only remedy for setting aside or cancelling is that provided by statute for contents. Gibson v. Twaddle \[Cal. App.\] 81

P. 727.

**15.** The frauds of individual voters and the casting of illegal votes do not vitiate the returns unless the officers are parties thereto. In such cases the returns are accepted and purged of the illegal votes. Schuman v. Sanderson \[Ark.\] 83 S. W. 940.

**16.** Preston v. Price \[Ky.\] 85 S. W. 1183.

**17.** See 3 C. L. 1176.

**18.** When the clerk of a county court has laid before the board of canvassing board carries a presumption of the the county, for the purposes of a recount, the ballots, pollbooks, and other returns of the election, and without just cause, has refused to receive back into his custody the ballots and care for them during the recesses of the board, while engaged in the recount, such board may lawfully commit the care and custody of the ballots to the sherift of the county. Stafford v. Mingo County Canvass, 56 W. Va. 670, 49 S. E.

**364.** Retention of one or both of the keys to the ballot boxes, although the ballots are in the boxes, by the board of canvassers or a member thereof, does not justify the re-

fusal of the clerk to preserve and be responsible for the ballots. Id.

**19.**% Election of chief engineer of fire dis-

**5.** Curr. L.--#8.

expedite the decision of questions involving the holding of an impending election."77_Mandamus\_" will not issue in anticipation of an omission of duty, or to compel the performance of a discretionary one,"29 nor unless the relator shows a clear legal right to the relief sought;"9 but where a duty respecting the holding of an election is clearly obligatory, mandamus will lie.31 It has been held that mandatory injunction is the proper remedy to require election judges to correct their returns by adding votes omitted by mistake or oversight, the duties of such officers being ministerial,32 and where a board of canvassers has dissolved before properly performing its func-

statute and cannot be enjoined by the courts,

State v. Carlson \[Neb.\] 101 N. W. 1004. Common connecil acting as a canvassing board held

not to have power to determine that one re-

news is the proper remedy (Ex parte Mackey,

evolving a majority of votes for alderman is

ineligible because not a taxbayer. People

v. Burns, 94 N. Y. S. 196.

27. Ney v. Whitley, 26 R. I. 464, 59 A.

01.

01. See 3 C. L. 1167, n. 34.

01. See 3 C. L. 1167, n. 35. Where a canvassing board has performed its duty, well

or otherwise, and its official existence is at

an end, mandamus will not lie to compel

modification of a certificate of election. People v. Mattinger, 212 Ill. 530, 72 N. E. 906.

30. Insufficient showing of legality of

convention. People v. Rose, 211 Ill. 52, 71 makes no difference that they had adjourn-

N. E. 1124. Rival nominations. State v.

Stewart, 71 Ohio St. 55, 72 N. E. 307. It is

not error to refuse to grant a mandamus

15 Neb. 442, 19 N. W. 685; State v. Hill, 20

to require the clerk of the superior court

to deliver certain ballots and voters' lists

95 N. Y. 124. Speaking in this connection,

to named persons, when it affirmatively apparas

145 N. W. 850, said: "The law imposes upon

15
in his possession. Gilllam v. Green \[Ga.\] 50

the canvassers the duty of canvassing the

15 S. E. 137.

15 C. L. 922, n. 15.

31. See 1 C. L. 922, n. 15.

NOTE. Mandamus against Canvassing

Banders: In Ex parte Mackey, 15 S. C. 332,

the court quoted with approval from McCarry on Elections, 106, 107, where it is

said: "That the doctrine that canvassing

boards and return judges are ministerial

offerca, possessing no discretionary or judicial powers, is settled in nearly or quite

all the states. \*\* * There are statutes in some

of the states which expressly confer upon a

board of canvassing officers the power to

revise the returns of an election, to take

proof, and in their discretion to reject such

votes as they deem illegal. Such a statute

exists in Texas, and in Alabama, and in

Louisiana and Florida." See, also, People

v. County Com's, 6 Colo. 203, as to such

ofCereas having no judicial power.

In State v. Deane, 23 Fla. 121, 1 So. 698,

11 Am. St. Rep. 343, it was held that where

such officers were called upon to exercise

their discretion in determining whether a

ballot was "scratched." and they decided that

it was, mandamus would not lie to control

that discretion.

If the canvassing board improperly performed its duty, mandamus lies; but not

it did so properly, according to the returns

before it, in which case a contest should

be brought. Steele v. Meade, 98 Ky. 614, 33

S. W. 944. If a contest be allowed for

rors during elections, that remedy must be

pursued (State v. Stewart, 26 Ohio St. 216),

and if an appeal lies, mandamus does not;

but the power of congress to judge of the

15.

5 Cur. Law. ELECTIONS SS 12. 1075

tions, its members may, by mandamus, be compelled to reconvene and recanvass the votes in accordance with the direction of a court having jurisdiction of the subject-matter.\[33\] A mandamus to compel common council to grant a certificate of election should be directed to persons who were members of the council at the time of the election and not to their successors.\[34\] An original action does not lie to require the board of registry to strike from the registry the name of a person alleged to be disqualified to vote.\[35\]

\_Injunction.\[36\]--\_The jurisdiction of courts of chancery is confined to questions arising relative to property or civil rights, and the mere right to office, or the nomination to an office, cannot be regulated or controlled by writ of injunction.\[17\]

SS 12. \_Judicial proceedings to contest or review.\[38\] Rights and remedies.\[39\]--\_Certiorari may lie to review the action of a board passing in the first instance on election questions or contests.\[40\] Under the system which obtains in some states whereby the supreme court is required to give its opinion on important questions when requested by a co-ordinate branch of the government, the supreme court may give an opinion on request of the senate as to whether, on a contest over the office of governor, the general assembly may adopt a report to the effect that it is impossible to separate legal from illegal votes, and that no person was elected governor, and declare a vacancy in that office.\[41\]

\_Jurisdiction.\[42\]--\_Courts of original jurisdiction may hear issues arising out of a contest,\[43\] and the original jurisdiction of courts of latter resort may in proper cases be invoked.\[44\] Statutory proceedings to contest must conform closely to the statute in respect to time\[45\] and notice,\[46\] else jurisdiction may not attach.\[47\] Orders made by judges for elections which are merely ministerial and not judgments of the court,\[48\] may be reviewed by an associate judge, notwithstanding a rule against the review of the judgments of associate judges.\[49\]

\_Pleadings and issues.\[50\]--\_A suit to contest an election is a civil suit brought to recover and enforce a civil right, and the rules of pleading in civil actions are applicable thereto except where otherwise provided by statute.\[51\] The contestant

- 33. People v. Burns, 94 N. Y. S. 196; Morris v. Glover, 121 Ga. 751, 49 S. E. 186.
- 34. People v. Burns, 94 N. Y. S. 196.
- 35. Coliler v. Carter \[Md.\] 60 A. 104.
- 36. See 1 C. L. 982.
- 37. People v. Rose, 211 Ill. 252, 71 N. E. 1124. An injunction does not lie to restrain the commissioners' court from canvassing the returns and publishing notice of the result of a local option election as required by statute, since the performance of such duties does not constitute a legal invasion of the property rights of licensed liquor dealers in the districts. Robinson v. Wingate \[Tex.\] 38 S. W. 182.
- 38. See 5 C. L. 1174-1177.
- 39. See 3 C. L. 1174.
- 40. Where hearing of a contest is lodged in a common council, the unsuccessful candidate may have reeorioriar to remove proceedings to circuit court. Staples v. Brown, 113 Tenn. 63, 85 S. W. 254. Certiorari to determine correctness of count in village license election. State v. McIntosh \[Minn.\] 103 N. W. 1017.
- 41. In re Senate Resolution No. 10 \[Colo.\] 79-P. 1009.
- 42. See 3 C. L. 1174.
- 43. The district court in Louisiana held to have original jurisdiction to hear issues arising in a contest for office. McClenny v. Webb \[La.\] 88 So. 558.
- 44. See 3 C. L. 1174, n. 38.
- 45. Must be instituted within the time prescribed. Nelson v. Sneed, 112 Tenn. 36.
- 38. S. W. 785; Cusker v. Berryman \[Wash.\] 81 P. 686. The provision of the West Virginia Code that notice of a contest must be presented to the first term of the county court means the first regular term. Stafford v. Mingo County Court \[W. Va.\] 61 S. E.
- 46. Provisions of a statute that candidates who desire to contest an election shall within 20 days after the election present a sworn statement of the grounds of contest to the chancellor, and for the service of process and a trial, constitute a special tribunal, and such provisions are jurisdictional and must be compiled with. Harmon v. Tyler, 112 Tenn. 8, 83 S. W. 1041. A notice of an election contest which, while it states a defective case, states a case, gives the circuit court jurisdiction, and prohibition will not lie merely to correct an erroneous ruin must exhibit a sufficient petition,\[52\] properly verified,\[53\] as particular as can practicably and reasonably be made,\[54\] showing that the election was valid and that he received a majority of the votes cast by the qualified electors,\[55\] that he is one who has a right to institute the contest,\[56\] and since a candidate who has received a certificate of election has a prima facie title thereto, a contestant should show on the face of his pleading a clear right to the office.\[67\] Where anything occurs after the commencement of a contest and after the time of pleadings which is a relevant and necessary fact in aid of the original grounds, it may be asserted as an amendment of the petition.\[58\] Amendments corrective of defective allegations must be timely.\[59\] On appeal under the Nebraska law from the decision of a county court in a contested election case, it is not necessary to file new pleadings in the district court.\[60\]

_Dismissal.\[61\]_

\_Preservation and production of ballots.\[52\]--\_The ballots are the best evidence of the result of an election, if they have been properly preserved, and have not been, exposed to the reach of unauthorized persons.\[63\] Whether ballots have been sufficiently taken care of so as to preclude any reasonable suspicion that they are not in their original condition is a question largely in the discretion of the trial court.\[64\]

\_Evidence.\[65\]--\_Certificates of the result of an election made by the commissioners at the precincts are prima facie evidence of the result of the election. The ballots, if identified as the same cast, are primary and higher evidence; but, in order to continue the ballots as controlling evidence, it must appear that they have been pre-

52. Johnson v. Briee, 112 Tenn. 59, SS 8. \[\] be permitted where contestant falls to state why. 791.

01. McCardle v. Barstow, 145 Cal. 135, 78 P. 371.

01. Election returns cannot be purged of illegal votes on general charges of fraud and misconduct of the officers of the election and others. Nelson v. Sneed, 112 Tenn. 36,

83 S. W. 786. The general allegation in a petition to contest the validity of an election under the Beal Law that the election was illegal is not sufficient for the admission of testimony as to irregularities other than those specified in the petition. In re South Charleston Election Contest, 3 Ohio N. P. (N. S.) 373. A contestant is not required to allege the facts as to each separate ballot unless the particular facts will apply to a specific ballot only. If there are a number of ballots to which the same allegations will apply, the pleader may adopt them. Robertson v. Grant County Com'rs, 14 Okl. 407, 79 P. 97. The allegation in a petition for an election contest that "many legal votes" cast for petitioner were unlawfully thrown out, destroyed or misconounted without stating the number, is too indefinite. Maloney v. Collier, 112 Tenn. 78, 83 S. W. 667.

55. Nelson v. Sneed, 112 Tenn. 36, SS 8. \[\] W. 786.

01. Where the right to contest an election is limited to an elector of the county, a petition which fails to allege that petitioner is an elector is demurrable. Adams v. McCormick, 216 Ill. 76, 74 N. E. 774.

01. Nelson v. Sneed, 112 Tenn. 36, SS 8. \[\] W. 786.

01. Adams v. Roberts, 26 Ky. L. R. 1271,

88 S. W. 1035. But an amended bill setting forth additional grounds of contest cannot 5 Cur. Law. ELECTIONS $ 13. 1077

served in the manner and by the officers prescribed by the statute, and while in such custody they have not been changed or tampered with." Testimony of election commissioners that a majority of votes cast were in the negative is incompetent, in the absence of a showing that the original returns had been destroyed or could not be procured." The rejection and destruction of ballots by the judges of election is not final or conclusive, but the contents thus rejected and destroyed may be shown by parol." Under statutes requiring evidence in election contests to be taken by deposition, oral testimony may not be taken." Where one has been declared elected by the board of canvassers and holds office under such determination, the presumption arises that he received the number of votes stated in the certificate;" but no presumption arises from statutory authority to use voting machines that such machines and the registers of the votes which they disclose remain unchanged between the close of an election and a subsequent contest." Questions relative to the propriety of counting or rejecting particular ballots are discussed in the note." Where an election turned upon the vote of an insane person, and there is no way of determining which way the one thus afflicted voted, a court will deduct one vote from the proposition receiving the greatest number of votes, and the result being thus made a tie, the court will declare that there was no majority either way and no election under the statute."

\_Decision and review thereof."--\_When authority to hear an election contest is conferred upon a judicial officer, and there is no provision of law for a review of his decision, it is final." A certificate submitting to the supreme court for decision a question as to the rejection of a ballot at the state election, to be communicated to the secretary of state, is not such a reservation as is contemplated by the statute authorizing reservation of questions of law." Findings as to the number of illegal votes and for whom they were cast being made on conflicting evidence heard in open court will not be disturbed unless manifestly wrong." Where an appealing contestee in an election contest did not bring up any of the ballots, the counting or * 1078 ELECTION AND WAIVER SS 1. 5 Cur. Law.

- .
- rejection of which was complained of by him, the supreme court could not reverse the judgment on any point arising out of the rulings on particular ballots.\[78\]
- _Security for appeal; costs.\[79\]_--An appeal bond in an election contest conditioned that appellant will perform the judgment if affirmed does not make the surety responsible for anything more than the surrender of the office if the judgment is affirmed.\[80\] When the supreme court on appeal reverses the judgment of the circuit court in an election contest, and orders the petition filed to be dismissed, the appellant is entitled to costs in that court.\[81\]
- 13. _Offenses against election laws.\[82\]_--The authority conferred by New Jersey election law of 1898 upon county boards of election to appoint district boards of registry and election is valid to the extent that persons so appointed become defacto members, indicitable for misdemeanors.\[83\] An officer at a primary election indicted for fraudulently counting and returning ballots will not be heard to set up as a defense his own neglect to cause ballots to be numbered as required by the rules of the party.\[84\] Where defendant was indicted for willfully and knowingly refusing to perform his duty as an election officer, he was not entitled to a writ of prohibition to restrain prosecution of such indictment, on the ground that he had appeared before the grand jury and testified concerning such offense as a state's witness.\[85\]
- _The indictment\[86\]_ is sufficient in the language of the statute,\[87\] and need not state the name of a person incidentally referred to by it, unless the name is one of the matters that must be proved at the trial or that are required in order to inform the accused of the nature and cause of the accusation.\[88\]
- ELECTION AND WAIVER.
- 1. Election in General (1078).
- 1.4 Acts und Indeln of Election and
- 1.5 Occasion for Elections (1079).
  them may not assume two contradictory positions so inconsistent that the assertion of one necessarily repudiates the other.7

Footnote 7: Iowa Brick Mfg. Co. v. Herrick, 126

Footnote 8: Iowa, 721, 102 N. W. 787.

Footnote 9: Iowa, 721, 102 N. W. 787.

Footnote 10: Iowa, 721, 102 N. W. 787.

Footnote 11: Iowa, 721, 102 N. W. 787.

Footnote 12: Iowa, 721, 102 N. W. 787.

Footnote 13: Iowa, 721, 102 N. W. 787.

Footnote 14: Iowa, 721, 102 N. W. 787.

Footnote 15: Iowa between consistent and concurrent remedies. Redhead Bros. v. Wyroming Cattle

Footnote 16: Iowa, 410, 102 N. W. 144.

Footnote 17: Iowa Brick Mfg. Co. v. Herrick, 126

Footnote 18: Iowa, 721, 102 N. W. 787.

Footnote 19: Iowa, 721, 102 N. W. 787.

Footnote 20: Iowa, 721, 102 N. W. 787.

Footnote 21: Iowa, 721, 102 N. W. 787.

Footnote 22: Iowa, 721, 102 N. W. 787.

Footnote 23: Iowa, 721, 102 N. W. 787.

Footnote 24: Iowa, 721, 102 N. W. 787.

Footnote 25: Iowa between consistent and concurrent remedies. Redhead Bros. v. Wyroming Cattle

Footnote 35: Iowa between consistent and concurrent remedies. Redhead Bros. v. Wyroming Cattle

Footnote 51: Iowa between consistent and concurrent remedies. Redhead Bros. v. Wyroming Cattle

Footnote 52: Iowa, 721, 102 N. W. 787.

Footnote 53: Iowa, 721, 102 N. W. 787.

Footnote 54: Iowa, 721, 102 N. W. 787.

Footnote 55: Iowa between consistent and concurrent remedies. Redhead Bros. v. Wyroming Cattle

Footnote 56: Iowa, 721, 102 N. W. 787.

Footnote 57: Iowa, 721, 102 N. W. 787.

Footnote 58: Iowa, 721, 102 N. W. 787.

Footnote 59: Iowa, 721, 102 N. W. 787.

Footnote 60: accept and retain goods and yet rely upon a breach of warranty in diminution of the price.17 A creditor holding collateral security is not put to an election of remedies but may prosecute simultaneously whatever actions at law or in equity are warranted by the principal and collateral contracts.18 A creditor who collects a portion of his claim from a third person, who after the debt is contracted agrees with the debtor to pay it, does not waive his claim against the debtor, since there is in this no election between inconsistent claims or remedies.19

(SS 2) \_B. Of rights and estates.20--\_The doctrine of election, as applied to instruments of donation, rests upon the equitable principle that one who accepts a benefit under the instrument must accept the whole, conforming to its provisions and renouncing all rights inconsistent with it.21 Thus a grantee of certain land to whom the grantor afterwards devises the land conveyed, and other property, for 5 Cur. Law. **ELECTION AND WAIVER SS 2B.** 1081

life, must elect to take under the deed or will.\*\*22 A party taking the benefit of a provision in his favor under a will cannot assert the invalidity of the instrument.\*\*23 A widow is put to an election between benefits conferred on her by her husband's will, and her statutory rights in his property;\*\*24 but a widow who acquires no beneficial interest under a will is not required to make such election in order to prevent her being bound by the provisions of the will.\*\*25 The right to dover may, however, be lost, if a claim therefor is not filed as required by the statute, even though a will makes no provision for the widow.\*\*26 A widow who is called upon to make an election is entitled to be judicially informed as to her legal rights.\*\*27 An election must be made in the statutory manner.\*\*28 The right of election is personal to the widow and does not pass to her representatives or heirs,\*\*29 but where the widow fails to take any action, the right to a legacy survives to her personal representative, the widow being presumed to have consented to the will.\*\*29 False representations regarding the validity of a will, by virtue of which a widow elected to take against it, are not ground for setting the election aside, unless a will contest was begun or threatened.\*\*31

A widow who has received money for joining in a deed by her husband cannot retain the same and at the same time recover a distributive share of the property conveyed.\*\*32 A widow cannot have both dover and homestead rights in lands of her deceased husband.**28 In some states a widow may elect between a child's part and her dower rights,**34 but such election can only be made in the manner**25 and within the time**29 prescribed by law.

which the testator has attempted to give to is taken for the debts. Rev. St. $ 5963. Al-another, but must compensate the disappoint- \[en v. Tresserdier \[Ohio\] 73 N. E, 1015, ed donee. Brown v. Brown, 42 Minn. 270; Underhill, Law of Wills, $ 729. In the principal case the widow was entitled to claim \[en\], rejection of the will. Flynn v. McDermott, adversely to the will and yet receive $ 100 as her year's support. Computer v. Computer, or probate court is without authority to re- $ 25 Pa. 31; Stone v. Vandemark, 146 M. 312. Unless, after the lapse of time, the rights of third parties had intervened, the dissenting opinion seems preferable.\*\*27 Columbia L. R. $ 29. Where a mother conveys certain land to her daughter reserving a life estate for herself, and thereafter devises all her property to the daughter for life, the daughter is put to an election to take under the deed or will. Morrison v. Fletcher (Ky.) $ 84 S. W. $ 48.\*\*28 U. Stermehle v. Norment, 25 S. Ct. 291, 197 U. S. 40, 49 Law. Ed. 655; Id., 22 App. D. C. 31. A beneficiary of a will who accepts a provision for his benefit cannot dispute the validity of one to his prejudice. Wonsetler v. Wonsetler 32 Pa. Super. Ct. 321. See Tiffany, Real Prop., p. 453. 25. Will held to confer no benefit on widow; hence her legal interest not subject to terms of will. Chaphir v. Leapley (Ind. App.) 74 N. E, 546. 26. Construing Pub. St. 1882, e. 127, $ 18, and other statutes requiring a claim to be filed within six months after probate of will. Shelton v. Sears \[Mass.\] 73 N. E. 666. 27. When a widow is called upon to elect whether she will take under or against the will, and property specifically devised must be taken to pay debts, she is entitled to be judicially informed whether, if she elects to take against the will, she will be expelled to contribute to the devise whose property is taken for the debts. Rev. St. $ 5963. Al- another, but must compensate the disappoint- \[en v. Tresserdier \[Ohio\] 73 N. E, 1015, ed donee. Brown v. Brown, 42 Minn. 270; Underhill, Law of Wills, $ 729. In the principal case the widow was entitled to claim \[en\], rejection of the will. Flynn v. McDermott, adversely to the will and yet receive $ 100 as her year's support. Computer v.

Where a will directs land to be sold and the proceeds distributed, the beneficiaries may elect to take the property in its original form and thus effect an equitable reconversion.\[37\] To constitute a valid election in such case all beneficiaries must concur and must be bound.\[38\] The election may be by deed, or by answer, or partly by deed and partly by answer.\[39\]

SS 3. \_Waiver in general; definition.\[40\]--\_A waiver is usually defined as an intentional relinquishment of a known right,\[41\] and must be supported either by a consideration or by an estoppel.\[42\] Statutory provisions for the benefit of private or personal rights, and not affecting public rights or policy, may, in general, be waived,\[43\] and this is especially true as to statutory provisions regarding formal procedure.\[44\] But an express waiver contrary to public policy is void.\[45\] Waiver must be pleaded.\[46\]

SS 4. \_Acts and indicia of election and waiver.\[47\]--\_An election is usually evinced by the doing of some decisive act of an unambiguous nature showing a choice.\[48\] Such act or acts must have been done with full knowledge of legal rights and the facts." Failure to make an election within a reasonable time is a waiver of the right where the other party will be prejudiced." In the case of an express contract giving an option to purchase property, notice of an election to rescind according to the terms of the contract must be given."

Acts done with knowledge of the legal rights intended to be waived," and clearly evincing an intention to abandon such rights," or inconsistent with an intention to insist upon them," constitute a waiver. Failure to assert rights within

etc., Lodge No. 2, 6 Ohio C. C. (N. S.) 15. The appropriation, otherwise than by attachment or execution, of furniture or other prop- every found on demised premises, does not amount to an election by the landlord to jury. Southern Bldg. & Loan Assi-v. Penn-hold the agent rather than the principal for the balance of unpaid rent. Id. Where Time limit within which plaintiff was to mother defended certain land to daughter, reserving a life estate, and later devised all her property to the daughter, and the daughter, upon her mother's death, entered into possession of the land conveyed, but showed no intention to treat it differently from other property devised, and paid no attention to the deed, held, she had elected to take under the will and not under the deed. Morrison v. Fletcher \[Ky.\] 84 S. W. 548. A notice served on one who contracted to furnish brick of a certain quality, that those delivery were not of the required quality, and that brick would be purchased elsewhere and the difference in price charged to the contractor, is not an election of the measure of damages and does not prevent the defend-ant, when end for the price, to set up the ordinary measure of damages--loss of profits. Iowa Brick Mfg. Co. v. Herrick, 126 Iowa, 721, 102 N. W. 787.

49. To be binding an election must be made with knowledge of legal rights or at least after a reasonable opportunity to learn such rights. Woman induced by fraud to buy houses and lot held not to have elected to stand by contract, because at time she demanded possession of tenant, she did not know her legal rights. Annis v. Ferguson \[Ky.\] 84 S. W. 553. In order that acts of a widow shall be regarded as an election to take under a will, such acts must be plain and unequivocal, indicating an intention to so take, and must be made with full knowledge of the facts and of her rights. White's estate, 23 Pa. Super. Ct. 552.

01. Chenault v. Eastern Kentucky Timber & Lumber Co., 26 Ky. L. R. 1078, 83 S. W. 553.

01. Held. where contract gave option on mining stock, no proper notice of election to reselind was given, and attempted reselism was not in accordance with terms of contract. Guss v. Nelson, 14 Okl. 296, 78 P. 170.

01. A waiver is not binding unless made distinctly and with full knowledge of the rights intended to be waived. Garrett v. \[Hid.\] 83 S. Simpson, 115 Ill. App. 62. The fact that a widow joins with heirs in an agreement to settle an estate without administration in the common belief that the personality would be sufficient to pay debts does not establish a waiver of the widow's portion in the real estate where it appears that the personality was insufficient to pay debts. Bennett v. Morris, 111 Ill. App. 150.

01. An agreement to arbitrate a fire loss is a consequence of the fact that the agent is not a waiver of what do the proofs of loss. Perry v. Greenwich Ins. Co., 137 N. C. 402, 49 S. E. 889. Whether insurance company had waived more complete proofs of loss held for jury. Southern Bldg. & Loan Assi-v. Penn-wild the agent rather than the principal for the balance of unpaid rent. Id. Where Time limit within which plaintiff was to bring parties together and effect a sale held waived and plaintiff held entitled to his commission. Mitchell v. Duke, 134 F. 999. A. property owner who has taken advantage of the Indiana statute and agreed to waive irregularities in assessments for street improvements in consideration of the privi-lege of paying an assessment in installments cannot, in an action on bonds issued to a contractor, set up a defective description in the report of the engineer on which the assessment is based. Dunkirk Land Co. v. Zehner \[Ind. App.\] 74 N. E. 1089. Where there is a recovery on a counterclaim by a defendant, and after a reversal of plaintiff's judgment, defendant again pleads the coun-terclaim, he is not entitled to have judgment on the verdict in his favor in the first action. Sidway v. Missouri Land & Live Stock Co., 187 Mo. 649, 86 S. W. 150.

01. Waiver of defaults or contract provtions: Provisions of contracts for construction of building held unenforceable, having been disregarded and waived by acts of the parties. Kilby Mfg. Co. v. Hinchman-Renton Fire Proofing \[C. C. A.\] 132 F. 957. One who accepts seven instalments after a default as to one cannot thereafter declare a forfulre for the first default, his acts having been inconsistent with an intention to reselind. Kuhn v. Skelley, 25 Fa. Super. Ct. 185. Letters by an insurance company holding out reasonable inference that claims will be ad-justed constitute a waiver of provisions of policy requiring suit to be brought thereon within a certain time. Peters v. Empire Life Ins. Co., 90 N. Y. S. 296. Strict performance of a contract for leasing a farm with option to purchase within two years, upon certain conditions, held to have been waived by parties entering into negotiations; hence owner could not arbitrarily and without notice end the negotiations and refuse to convey. Henion v. Bacon, 100 App. 99, 91 N. Y. S. 399.

a reasonable time,55 or to raise a proper objection at the proper time,56 may also constitute a waiver.

An infant may, on reaching his majority, waive rights accruing during his minority.57

SS 5. _Consequences of an election or waiver.56_--When an election between

v. Hinchman- Renton Fire Proofing \[C. C. (the redemption period, there being no agreement to apply rents and profits on the sher-Watever of grounds of non-liability: When it's certificate, Ryason v. Dunten \[Ind.\] a party places his refusal to perform a contract upon certain grounds, he thereby waives other grounds and cannot assert them in litigation. Gibson v. Brown, 211 till, 330, 72 was furnished. The bags were received and N. E. 678. Where a carrier's refusal to de-Iiver goods was upon the sole ground that an additional charge was not paid, it could not upon suit for conversion set up that the bill of lading was not presented by the proper person. Illinois Cent. R. Co. v. Seitz, 214 till, 350, 73 N. E. 585. Fruit refused on ground that it was frozen; buyer could not in action set up that refusal was on ground that shipment was in excess of order. United Fruit Co. v. Bisese, 26 Pa. Super, Oct. 170. Where liability for insurance was denied on the ground of nonpayment of assessments, the Company cannot, after suit brought, deny liability on the ground that the policy was canceled by the board of directors as authorized by an article of association. Farmers' Milling Co. v. Mill Owners' Munt. Fire Ins. Co. \[Iowa\] 103 N. W. 207.

**Waiver of irregularities of procedures:** Predecessor in title by paying one-third of an assessment estoped those claiming under him from denying validity of assessment. Gillestner v. Grout, 101 App. Div. 150, 91 N.

Y. S. 533. Execure who induced a claiment to delay filing claims for more than a year cannot set up failure to file the claims in time as a ground of forefective of interest thereon. Hamilton's Ex'r v. Wright \[Ky.\]

**87 S. W. 1093.**

\*\*Held net to constitute waiver: Execution of leases of property involved by a constructive mortggger does not indicate intention to abandon Lifing as such mortgger. Conkey v. Rex, 111 Ill. App. 121. A provision in a life Insurance policy releasing the insurer from liability upon failure to pay premiums when due cannot be considered, waived by the company unless some authorized officer has done some act which may reasonably have led the insured to believe the condition would not be insisted upon. Sydnor v. Metropolitan Life Ins. Co., 26 Pa. Super. Ct. 621. Acceptance of the second premium, after it was due, when insured was in good health,' is not a waiver of the condition as to payment of future premiums.

**55.** Salt bags were ordered subject to can-gardless of the health of the insured at the time of such future defaults. Id. Where complaint contains two counts, one for money lent and one on a bond given to secure payment, an election to stand upon the first count is not a waiver of the right to use the bond as evidence if it becomes necessary or proper to use it. Aetna Indemy Co. v. Landd \[C. C. A.\] 135 F, 636. Receipt of rents and profits from land of which a co-tannant was in possession, having purchased at a mortgage sale, held not a waiver of the right to take a sheriff's deed at the end of 5 Cur. Law. 2ELECTION AND WAIVER SS 5. 1085

available inconsistent remedies has been made, with knowledge of the facts, the right to the other is forever gone;50 but if several existing remedies are not inconsistent, nothing short of full satisfaction of plaintiff's claim waives any of such remedies.60 All may be pursued concurrently, even to judgment, but satisfaction in one reaching the whole claim is a satisfaction in all.61 Where only one remedy exists, but plaintiff asserts one which he does not in fact possess, the proper remedy is not waived.62 One who adopts a remedy without full knowledge of the facts, may resort to a different remedy upon learning all the facts;63 but one who has deliberately chosen his remedy will not be heard to say he was ignorant of the law, when he attempts to set his election aside.64 One who has elected to treat a contract as continuing in force, and has waived a breach by the other party, is not entitled to a second election to rescind.65 A creditor who elects to bring an action in trover as for a fraudulent conversion does not deprive his debt of its provable character under the bankruptcy act.66

59. An election once made is final. Dick- 50 s0, providing that if a plaintiff obtains son v. New York Biscult Co., 211 Ill. 468, 71 N. E. 1058. When more than one remedy to deal with a single subject of action exists and they are inconsistent with each other, damages suffered in an action of tergass ($24), an election to sue on the bond under well v. Smith, 123 Wis, 510, 102 N. W. 1. An election of one of two inconsistent remediers is final and bars pursuit of the other, in the absence of ignorance of material facts or mistake. Smesseters v. Schroeder, 123 Wis. 116, 101 N. W. 363. An election of one remedy with full knowledge of the facts is binding unless the party can show that he never had a right to the remedy he attempted to pursue. Fisher v. Brown, 111 Ill. App. 486. A party who has recovered a portion of goods sold by repelvin cannot thereafter maintain assumption to recover price of goods not recovered in repelvin suit. Id. Election to proceed in assumptii precludes subsequent proceeding in tort. Price v. Parker, 44 Misc. 582, 90 N. Y. S. 98. One shipping goods to bankrupt claiming that transaction was a sale cannot after the buyer's bankruptcy claim that it was a baliment. In re Martin- 1985. A party who knows a portion of goods sold by repelvin cannot thereafter maintain assumption to recover price of goods not recovered in repelvin suit. Id. Election to proceed in assumptii precludes subsequent proceeding in tort. Price v. Parker, 44 Misc. 582, 90 N. Y. S. 98. One shipping goods to bankrupt claiming that transaction was a sale cannot after the buyer's bankruptcy claim that it was a baliment. In re Martin- 1985. A party who recovers in repelvin and gets a return of the property from one party cannot bring tres- 1985 for the wrongful taking against such party and another. Palmer v. People, 111 Ill. App. 381. Servant who recovered for three days of service before same was due under contract treated contract as rescinded and hence could not recover under its terms. James v. Parsons Rich & Co. \[Kan.\] 78 P. 438. A policy holder who after a change of plan by the insurance company elects in writing to cancel his policy, and demands his payments, is bound to pursue that remedy and cannot thereafter maintain a bill to compel the company to continue business under its original plan. Iversen v. Minnesota Mut. Life Ins. Co., 187 F. 268. A suit against an ex-agent of an insurance company for failure to keep property Insured, and recovery of judgment against him, is an election to treat the asset as personally liable, and a second suit cannot be brought against an insurance company formerly represented by the agent as an undisclosed principal. Rounasville v. North Carolina Home Fire Ins. Co., 188 N. C. 191, 50 S. E. 619. Under Comp. Laws 1897, 101 N. C. 191, 50 S. E. 619. A party who has received a portion of goods sold by repelvin cannot thereafter maintain a bill to prevent the buyer's bankruptcy claim.

An election to take under a will waives and bars statutory rights.\[47\] Such election by a widow is binding on her representatives.\[48\] One electing to take against a will is entitled only to the statutory allowance.\[49\] Renunciation of provisions in a will frees from the operation of the will only such property as is affected by the provisions renounced.\[70\] An election by a widow to take her homeostatic rights in lands of her deceased husband bars her dower rights therein.\[71\] The waiver of a homesetad exemption in a mortgage is in favor of the mortgage creditor alone, and does not inure to the benefit of others.\[72\] Where a remainderman after the sale of the corpus of a life estate approves the sale, the approval applies only to the sale of the life estate and not to a sale of the remainder.\[73\] Legacies to be distributed after the death of the testator's widow are accelerated in possession by the widow's election not to take under the will.\[74\] The abatement of unequal legacies resulting from a widow's election not to take under the will must be proportionate.\[8\]

## 6. _Pleading_.\[76\]

This topic deals with the law relative to the rights and duties which persons furnishing or using electricity have or owe to third persons not in their employ,\[77\] except in so far as such rights and duties are peculiar to a specific application of electricity, as its use in propelling street cars,\[78\] or in transmitting messages between parties.\[79\] The general principles as to what constitutes negligence,\[80\] and the rules for measuring damages,\[81\] are treated elsewhere.

_Electric franchise and right to use streets_.\[82\]--The regulation and control of electric light companies in respect to their use of streets and the erection and construction of appliances is within the police power generally delegated by the state to its political subdivisions.\[83\] An ordinance must be definite.\[84\] An electric com 5 Cur. Law. ELECTRICITY.

pany by unqualifiedly accepting an ordinance and availing itself of the benefits thereof is estopped to repudiate conditions imposed thereby. \[89\] The constructions placed upon different ordinances are shown in the notes. \[89\] Manufacturing, generating, selling, distributing and supplying electricity for power for manufacturing or mechanical purposes is not a public use for which private property may be taken against the will of the owner, \[90\] though the rule seems to be otherwise if the purpose is to supply the public, or such part of the public as wishes it, with electric lights. \[89\] A corporation being invested with the power of eminent domain for the purpose of establishing its plant, the word "plant" includes its pole and wire lines. \[90\] An electric light company cannot extend its conduits through private walks solely by reason of its employment by lessees of private places of amusement abutting on the walk, though the public have used the walk for access to the places of amusement. \[90\] In most states overhead wires may be cut when necessary for the removal of buildings. \[91\]

\_Contracts. \[92\]--\_The general contract rules as to mutuality, \[93\] consideration, etc., govern. Payments being made after tests, they may constitute an acceptance. \[94\] It being impossible to apply the method of measurement provided by the contract, the method best adapted to show the actual power used should be used. \[95\] Failure on the part of a consumer to pay a monthly instalment when due is not a breach of contract on his part where the seller is at the time owing him more than the amount of such instalment. \[96\]

exclusive. Id. A township may require an electric light company to electric lighting company, authorized by statute and ordinance to erect poles in streets and highways, to obtain a permit from the witness of an electric light company to be street and deposit $10 as security for the restoration of the street or highway to its natural condition. Cook v. North Bergen Tp. \[N. J. Law1 59 A. 1085.

84. An ordinance requiring an electric company to insulate its wires and to protect overhead condotors by guard wires "or ethylene" to be suitable mechanical device or devices" is not rendered indefinite by the use of the quoted phrase, nor does such phrase Im-properly delegate power to a city representative to determine what are suitable mechanial devices. Commonwealth Elec. Co. v. Kose, 214 Ill. 545, 73 N. E. 780. See Municipal Corporations, 4 C. L. 720.

01. Commonwealth Elec, Co. v. Rose, 214 Ill. 545, 73 N. E. 780.

01. Section 1 of ordinance numbered 4363 of the city of Omaha held to impose no duty on the defendant light company, except to trial Elec. Co. v. Street Lighting Dist. No. 1 furnish a competent linemann to act under the city authorities' direction in disconnecting wires. New Omaha Thomson-Houson Elec. Light Co. v. Anderson \[Neb.\] 102 N. W. 89.

01. Brown v. Gerald \[Me.\] 61 A. 785. A corporation empowered to generate and transmit electric power for lease or sale and having granted to it the power of eminent domain is not a quasi-public corporation, and hence its not invested with the right of exercising the power of eminent domain for the purpose of supplying electric power for manufacturing purposes. Id. See Eminent Domain, 3 C. L. 1189.

88, 89. Brown v. Gerald \[Me.\] 61 A. 785.

90. Lent v. Tilyou, 94 N. Y. 87, 47. A lease of such abutting places does not include a lease of the walks for all street pur 1088 ELECTRICITY. $ Cur. Law.

\_Degree of care.${}^{97}$--While one furnishing electricity is not an insurer,${}^{98}$ yet as to persons not in his employ he is obliged to use the utmost human care, vigilance and foresight, reasonably consistent with the practical operation of his plant, to provide against all reasonably probable contingencies,${}^{90}$ the care required in any particular case being proportional to the danger.${}^{1}$ This includes the use of such safeguards as are best known and most extensively used,${}^{2}$ the best mechanical contrivances and inventions in practical use,${}^{3}$ perfect insulation at all places where persons may reasonably be expected to go for work, pleasure or business,${}^{4}$ the consideration of climatic conditions, such as storms,${}^{5}$ and the maintenance of such a system of inspection as will insure reasonable promptness in the detection of de

## 5 Cur. Law.

### 5.1 **Introduction**

The duty to maintain the wires in a safe condition extends to one rightfully on private property over which the wires extend.\[7\] An electric company cannot evade these duties by employing some one else to fulfill them,\[8\] and if it employs an independent contractor, it must make a reasonable inspection to see that the work is skillfully and carefully done.\[9\] One furnishing electricity for interior lighting has the right to assume that the interior wiring is properly done,\[10\] and, in the absence of negligence on its part, is not liable for injuries resulting from defects in such wiring.\[11\] The installer of such interior system need not anticipate and prepare for the access of dangerous or deadly currents of electricity through the wires.\[12\] The contract between the parties providing that plaintiff should keep all inside wires and apparatus in proper condition, the defendant is under no duty to inspect such wires and apparatus, though under the contract he has the right to so do.\[18\] An electric railway using a live rail is bound to use ordinary care and prudence to prevent persons from coming in contact therewith;\[14\] such railway being an elevated one, it is not negligence for the company to fail to place signs on the structure warning the public of the danger from such rail.\[15\] The violation of an ordinance is prima facie evidence of negligence.\[16\] The prevalence of a general strike suspending the operation of street cars and the lawlessness attending such situations does not excuse or justify a fallen wire.\[17\] To be liable, defendant must have owed 6. Memphis Consol. Gas & Elec. Co. v. Letson \[C. C. A.\] 185 F. 969: Bube v. Weatherly Borough, 25 Pa. Super. Ct. 88. Must use utmost degree of care in keeping wires property Insulated. Winkelman v. Kansas City Elec. Light Co., 110 Mo. App. 184, 85 S. W. 99. Central Union Tel. Co. v. Sokola, 34 Ind. App. 429, 73 N. E. 143. R. Toboken Land & Improvement Co. v. United Elec. Co. of New Jersey \[N. J. Law\] 68 A. 1082. W. Where Independent contractor was employed to install electrical apparatus in building. Hoboken Land & Improvement Co. v. United Elec. Co. of New Jersey \[N. J. Law\] 68 A. 1082. Reynolds v. Narragansett Elec. Lighting Co., 26 R. I. 457, 59 A. 393. R. 111. Where death was caused by transmitting an excessive voltage into the lighting system of a building, the defendant is only use and exercise ordinary care and prudence to protect and maintain the same as over it, unless it was negligent in the outskide wiring, or in its connection with the inside wiring. Reynolds v. Narragansett Elec. Lighting Co., 26 R. I. 457, 59 A. 393. Where injury resulted from the admission of an excessive current into a lighting system, a requested instruction that it would not benegligence for defendant to omit the grounding of the secondary wires, if it was not per-upton such structure. Id. Held not guilty emitted to do so, was properly refused, as be- ing too broad. Id. Where inside wiring was not the property of defendant, a defect in the insulation thereof held not to render defendant liable. Bube v. Weatherly Borough, 25 Pa. Super. Ct. 88. Where the insulation on an interior electric light wire is sufficient to prevent accident when a current of the required voltage is flowing over the wire, it is error to charge that a verdict should be returned in favor of the electric company, should the jury find that had the wire 5 Curr. L.--69.

plaintiff a duty, and this duty must have been violated.\[18\] Plaintiff must establish his case by the same degree of proof as in cases where the cause of injury is more certain and easily explained,\[19\] and the negligence of defendant must have been the proximate and efficient cause of the injury.\[20\] A wire being allowed to remain broken, the company is not relieved from liability by the fact that a storm, not unprecedented in violence, caused the wire to come in contact with an electric light wire, causing the injury complained of.\[21\] In order to recover the injured party must have been free from contributory negligence,\[22\] and must not have assumed the risk ;\[23\] a child is held to only such care and prudence as are usual

ting electricity to be conducted through the folk R. & Light Co. v. Sprately, 103 Va. 379, wire at such a period. Clearly v. St. Louis T Transit Co., 108 Mo. App. 433, 83 S. W. 1029.

21. Central Union Tel. Co. v. Sokola, 34

01. Mahan v. Newton & B. St. R. Co. \[Mass.\] 75 N. E. 59. A fireman who assists

01. Winkelman v. Kansas City Elec. Light to host a ladder with metallic corners against an electric light wire cannot, in the absence of invitation or permission of the owner.

01. Inference and vice versa: Failure to use safe-complaint that the wires were not properly insulated, and that he was injured because of such lack of insulation. New Omaha Thomson-Houston Elec. Light Co. v. Anderson \[Neb.\] 192 N. W. 89. Electric light company held not liable to a trespasser on a train for an injury due to the fact that the poles of the company were within 9% inches

01. Oncha Thomson-Houston Elec. Light Co. \[Neb.\] 104 N. W. 162. The defense that plaintiff, a boy eight years old, was a trespasser, because while on astreet heached through a fence,and so came in contact with a chargest ed wire of defendant telephone company, which had been broken for three days, to its knowledge, and was hanging down through a tree, is not available. Lynchburg Tel. Co. v. Booken, 103 Va. 594, 50 S. E. 148. Where the wires of two companies were close together and it was the custom of one of the companies to blow its whistle before turning on the current to warn its employees, it is not liable for an injury received by the employee of the other company through its failure to blow the whistle, there being no agreement between the companies as to signals or any knowledge on the part of the one that the men of the other relied thereon. Rowe v. Taylorville Elec. Co., 213

01. Inference and vice versa: Failure to use safe-complaint that the wires were not to constitute contributory negligence. Rowe v. Taylorville Elec. Co..

01. Heid v. Southern Tel. & T. Co. \[Ga.\] 50 S. E. 361. Negligence in setting gny pole held proximate cause of injury. Smith v. Missouri & K. Tel. Co. \[Mo. App.\] 87 S. W. 71. Where through defendant's negligence the wire broke and fell, the fact that some other person negligently wrapped the ends of the broken wire around the pole, and thereby facilitated the forming of a short circuit on the pole on which plaintiff was working. held not to relieve defendant from liability. Id. Teatinony of a witness that two women were struck in the face by the wire, but not injured, and that the child grasped it at a point where it was not insulated, and that he thought he, the witness, took hold of it at a place where it was insulated without being hurt, is insufficient to show that a lack of insulation, and not the falling of the wire, was the proximate cause of the injury. Nor-

01. Inference and vice versa: Failure to use safe-complaint that the wires were not to constitute contributory negligence. Rowe v. Taylorville Elec. Co..

01. Inference and vice versa: Failure to use safe-complaint that the wires were not to constitute contributory negligence. Rowe v. Taylorville Elec. Co..

01. Inference and vice versa: Failure to use safe-complaint that the wires were not to constitute contributory negligence.

- 5 Cur. Law.

dence it is presumed that a wire is fastened to an insulator in the usual manner.\[42\] Evidence relating to the condition of the wires shortly after the accident,\[43\] and to the condition of a pole at a time subsequent to the accident, it being shown to be the same as at the date of the accident,\[44\] is admissible, as is evidence that guard wires were in common use in similar cases.\[45\] Expert testimony is admissible,\[46\] and negligent construction being alleged, it is competent to put to an electrical expert a hypothetical question embodying the facts of the case and asking him if it constituted good construction.\[47\] Evidence that defendant's wires were defective at other times and places is inadmissible.\[48\] Unverified certificates showing that the work complained of was in compliance with the regulations of the various city departments and of the board of fire underwriters are inadmissible.\[49\] In order to admit evidence of a custom, it must be shown to be a general one,\[50\] and the witness must be shown to have knowledge thereof.\[51\] The relevancy and admissibility of particular questions\[52\] and cases dealing with the sufficiency of evidence\[53\] are shown in the notes. The general rules as to the extent to which cross-examination may be carried apply.\[54\] There must be no variance between the pleading and proof.\[55\] \_Instructions.--\_The general rules as to the sufficiency of instructions apply.\[56\] _Questions for the jury.\[57\]_--As a general rule the questions of negligence\[58\] and

- \[42\] Nagle v. Hake, 123 Wils, 256, 101 N. W. rendered possible by a current negligently permitted at some other point in the circuit by defendant; it not appearing that any usual precautions to prevent such groundings had been omitted, or that defendant had, or, under the circumstances, ought to have had, knowledge of it. New Omaha Thorn-wire, testimony of an electrical engineer as "Neb." 102 N. W. 89. Held, that there was neither allegation nor proof that defendant, after knowledge of the dangerous position of wires, held admissible. Nagle v. Hake, 123 Wils, 256, 101 N. W. 409. 47. German-American Ins. Co. v. New York Gas & Elice, Light, Heat & Power Co., the wire was covered with "Waterproof insulation", by many be asked on cross-examination as to whether additional insulation would not be safer, and whether, under the circumstances of the case, it was not customed to use guard wires. Nagle v. Hake, 103 App. Div. 310, 93 N. Y. S. 46. 50. Question in such case as to witness custom of handling such wires held objectionable as calling for the witness' individl- nal custom. Nagle v. Hake, 123 Wils. 256, 101 N. W. 409. 51. Question asked defendant, a house mover, as to the custom of handling live wires cut in order to allow the house to pass held inadmissible, it not being shown that the witness had any knowledge of such custom. Nagle v. Hake, 123 Wils. 256, 101 N. W. 409. 52. Where it appeared that plaintiff's father and mother knew that wire was hanging where it was, held not error to sustain an objection to a question asking the mother if she made no objection to the wire being so left. Nagle v. Hake, 123 Wils. 256, 101 N. W. 409. Where plaintiff's parents knew that wire was left hanging on house, evidence that no one had told them that wire was "dangerous held admissible on question of negligence. Id. 53. A claim for injury by an electric shock cannot be sustained by a mere hypothetical claim that such shock was only needed to be sustained by a mere hypothetical claim that such shock was only needed to be sustained by a mere hypothetical claim.\[54\] The reason why the shock was not sustained by a mere hypothetical claim, is that the shock was not sustained by a mere hypothetical claim.\[55\] The reason why the shock was not sustained by a mere hypothetical claim, is that the shock was not sustained by a mere hypothetical claim.\[56\] The reason why the shock was not sustained by a mere hypothetical claim, is that the shock was not sustained by a mere hypothetical claim.\[57\] The reason why the shock was not sustained by a mere hypothetical claim, is that the shock was not sustained by a mere hypothetical claim.\[58\] The reason why the shock was not sustained by a mere hypothetical claim, is that the shock was not sustained by a mere hypothetical claim.

of contributory negligence \[59\] are for the jury, as are all other disputed questions of fact. \[60\]

**EMBEEZZLEMENT.**

**SS 1. Nature and Elements of Offense $\\lx@sectionsign$ 2. Prosection and Punishment (1094). (1093).**

This topic includes not only the offense of embezzlement proper but equivalent statutory offenses denominated larceny, larceny by bailee, larceny after trust, etc.

**SS 1.**_Nature and elements of offense_, \[61\]--One who having received as bailee, \[62\] trustee, \[63\] agent or servant, officer of a corporation or association, \[64\] or as a public officer, \[66\] any money or property, \[66\] converts the same to his own use \[67\] with fraudulent intent \[68\] entertained at the time of conversion, \[69\] is guilty of embezzlement. The of-coma Interurban R. Co., 36 Wash. 387, 78 P. 1013. Whether the method used to guard horse. Wilson v. State \[Tex, Cr. App.\] 82 S. the vriver was negligent or not lis. a ques-W. 551. 63. Placing of money :in bank subject to T. Co. \[Ga.\] 50 S. E. 361. Evidence held to require submission to jury of questions not complete a trust, but 'the drawing out of such money by him does. De Leon v. Territory \[Ariz.\] 80 P. 348.

guilty of negligence in wiring the building. 44. Officer of benevolent organization. German-American Ins. Co., V. New York Gas $&$ Elec. Light, Heat $&$ Power Co., 103 App. 103 App.

1094 EMBEZZLEMENT SS 3. 5 Cur. Law.

fense being completed, no subsequent restoration" or agreement to restore\[71\] will avoid the criminality of the act. The distinction between embezzlement and larceny where the taking is fraudulent, consists in whether the intent to convert was formed after or before possession was obtained.\[72\] Criminal intent may be presumed from intentional and unlawful conversion.\[13\] At common law one who held as part owner was not guilty of embezzlement on converting the whole to his own use,\[74\] but statutes in most states have changed this rule in whole or in part.\[75\]

SS 2. _Prosecution and punishment.--Indictment\[76\]_ in the language of the statute is usually sufficient.\[77\] There must be averment of receipt of the money or property? in a fiduciary capacity,\[78\] subsequent conversion with fraudulent intent to defendant's own use,\[80\] and ownership of the money or property in the alleged principal at the time of the receipt and of the conversion.\[81\] Where sums were received for the principal from various persons at different times and embezzled, embezzlement of the aggregate may be charged.\[82\] The venue is properly laid where defendant's pos-

good faith. under mistake of right, he is not embezzlement, and the statute covers uninjulty. Entman v. State \[Fla.\] 37 So. 576. 69. A depositary who uses the fund with the consent of the owner is not guilty of W. 1083; State v. Wise, 186 Mo. 42, 84 S. W. embezzlement in fraudulently failing to re-.\[54\]

pay it on demand. State v. Dunn, 138 N. C. 672, 50 S. E. 772.

77. An indictment stating a fiduciary capacity, receipt of money on behalf of the principal and fraudulent conversion thereof is sufficient. State v. Bogardus, 36 Wash. 297, 78 P. 942.

01. A stated sum in money a better description of which is unknown is sufficient. Territory V. Hale \[N.M.\] 81 P. 583. 565. Borrowing property in good faith and money was entrusted to defendant need not ledn is not larceny. Abrams v. State, 121 Ga. 170, 48 S. E. 95. If the fraudulent P. 348. A charge that defendant was "en-in intent existed at the time possession was obtained, the offense is larceny, though an in-the care" of money. State v. Meeker \[N. J. version by haltee might also lie. Lewis v. Err. & App.\] 61 A. 281. An indictment alleging fiduciary capacity and receipt of money on a certain day and conversion on a 970; State v. Merkel \[Mo.\] 87 S. W. 831.

01. State v. Lentz, 184 Mo. 223, 83 S. W. 970. State v. Merkel \[Mo.\] 87 B. V. 1186.

From retention of money collected for embezzlement or, such day. Thomas v. Territory \[Ariz.\] 80 P. People, 213 III. 114, 72 N. E. 741. A knowl. edge by a corporation officer that the company's course of business would result in money being mismapplied is not sufficient; here must be an intent that such result should follow in the particular case on which the prosecution is based. State v. Carmen, 126 Iowa, 291, 102 N. W. 97.

74. One of the crew of a fishing vessel, selected by the captain to make sales of fish and turn the proceeds over to the captain for division between the owner and crew is an idge, and it is embezzled by an officer of agent, not a part owner. Commwealth v. the local iodge to whom it is entrusted for McDonald \[Mass.\] 78 N. E. 852. Thus a part-aren cannot embezzle partnership funds. But if the partnership contract is in any way, we cannot expect, one prospective partner may be guilty of embezzling funds received pursuant thereto. Ray v. State \[Tex. Cr. App.\] 86 S. W. 761.

01. Rev. St. 1899, $ 1918, relating to em-.\[82\]

01. State v. Wise, 186 Mo. 42, 84 S. W. was designed to obviate the common-law rule by which a part owner is not guilty of A. 281.

5 Cur. Law. EMBEZZLEMENT SS 2. 1095 session became adverse. \[83\] An indictment under the Missouri statute, relating to embezzlement by officers of a benevolent organization, is sufficient if it alleges that the society was such an organization and need not state whether it was incorporated. \[84\] An averment that defendant at a time and place stated then and there received certain money and then and there embezzled the same is sufficient as to time and place. \[85\] A Massachusetts statute defines larceny as including embezzlement, and provides for a single form of indictment; under it embezzlement may be prosecuted by an indictment in common law form for larceny. \[84\] _Variance_ between indictment and proof is not fatal unless material. \[87\] _Admissibility_ of particular items of evidence is shown in the footnote. \[88\] On the issue of intent, other embezzlements are admissible, \[89\] but not other similar transactions which do not distinctly manifest criminal intent, \[90\] nor can forgery of other receipts be shown to negative a defense of repayment. \[91\] Defendant may testify directly to his honest intent, \[92\] and where he claims that he retained money under claim of right on account of indebtedness of the employer to him, he may show the existence of such an indebtedness. \[93\] The rules and by-laws of an association may be shown by a pamphlet copy verified by members, and proof that the members including defendant acted under them, \[84\] or by officers of the grand lodge. \[96\] _Sufficiency of evidence_ \[89\] in particular cases is noted below. \[97\] Proof of a general \[83\] **53. Territory v. Hale \[N. M.\] 81 P. 583: State v. Blackley, 138 N. C. 620, 50 S. E. 310:** 84, 85. State v. Knowles, 185 Mo. 141, 83 S. \[86\] **54.** 1083. \[87\] **56.** 1084.\*\* 1085. \[88\] **57.** 1086.\*\* 1087.\*\* 1088. \[89\] **58.** 1088.\*\* 1089.\*\* 1089.\*\* 1089.\*\* 1089.\*\* 1089.\*\* 1089.\*\* 1090.\*\* 1091.\*\* 1092.\*\* 1093.\*\* 1094.\*\* 1095.\*\* 1096.\*\* 1097.\*\* 1098.\*\* 1099.\*\* 1109.\*\* 1109.\*\* 1109.\*\* 1110.\*\* 1111.\*\* 1111.\*\* 1112.\*\* 1113.\*\* 1114.\*\* 1115.\*\* 1116.\*\* 1117.\*\* 1118.\*\* 1119.\*\* 1119.\*\* 1117.\*\* 1118.\*\* 1119.\*\* 1120.\*\* 1121.\*\* 1122.\*\* 1123.\*\* 1124.\*\* 1125.\*\* 1126.\*\* 1127.\*\* 1128.\*\* 1129.\*\* 1129.\*\* 1130.\*\* 1131.\*\* 114.\*\* 114.

deficiency in defendant's account without showing when or in what amounts the items thereof were received is sufficient.\[98\]

_Instructions\[99\]_ should be confined to the case made by the evidence,\[100\] and present all elements of the offense,\[101\] and all defenses of which there is evidence.\[102\]

_The verdict_ must find the value of the property as in larceny.\[103\]

_A sentence_ on conviction of a county officer that he pay to the county the amount embezzled is erroneous.\[104\]

**EmBLEMENTS AND NATURAL PRODUCTS.\[1\]**

Crops form a part of the real estate to which they are attached.\[2\] Hence a cropper has no interest in them,\[3\] but a tenant has.\[4\] Standing timber is real estate,\[5\] but a sale of it converts it into personality,\[5\] and it is held that annual crops, (fractus industries) are personal property.\[7\] Crops, whether matured\[8\] or unnatural,\[9\] pass with a conveyance of the land, and where the grantee is deprived of them, he may recover their value at the time of conveyance.\[10\]

A trespasser who sows a crop on land in the possession of another\[11\] or a tenant who plants a crop on mortgaged premises under lease from the mortgagor at a time when the equity of redemption must expire before the crop will mature\[12\] is not entitled to harvest it. A life tenant is entitled only to interest on the proceeds of minerals taken from the land; the principal goes to the remainderman.\[13\]

version. Wilson v. State \[Tex. Cr. App.\] 82 S. W. 651.

\*\*98. State v. Meeker \[N. J. Err. & App.\] 61 A. 381. Shortage in accounts held to show embezzlement by administrator. Commonwealth v. Kelley, 184 Mass. 320, 68 N. E. 346. 09. See S & C. L. 1187. 100. Instruction held to require that property belong to alleged principal at time of conversion. Entman v. State \[Fla.\] 37 So. 676. Evidence held not to require instruction on implication of consent from previous use of employer's money by defendant without objection. Id.

**101.** An instruction as to fraudulent intent should be given. State v. Dunn, 138 N. C. 672, 50 S. E. 772.

**102.** Instruction held to sufficiently present a defense that defendant innocently received the property from a third person. Lewallen v. State \[Tex. Cr. App.\] 13 Tex. Ct. Rep. 554, 87 S. W. 1159. 103. State v. Carmean, 126 Iowa, 291, 102 N. W. 97. 104. Commonwealth v. Shoener, 25 Pa. Super. Ct. 526. \*\*1. NOTE. Right to estevors in a tenant ses note to Anderson v. Cowan \[Iowa\] 68 L. R. A. 641. 2. Crops raised by a grantor after execution of a dead belong to the grantee. Chancellor v. Teel \[Ala.\] 37 So. 665. 3. A cropper has no ownership in growing crops. Taylor v. Donahue \[Wis.\] 103 N. W. 1098. 4. A tenant may mortgage his share of crops before division. Denison v. Sawyer \[Minn.\] 104 N. W. 305. 5. No Implied warranty of title in a sale of it. Yan Doren v. Fenton \[Wis.\] 103 N. W. 228. 6. Brodack v. Morsbach \[Wash.\] 80 P. 275. 7. Growing strawberry plants are the subject of replevin. Cannon v. Mathews \[Ark.\] 87 S. W. 428. 8. Matured crops, not severed, pass with a conveyance of the land unless reserved. Firebaugh v. Divau, 111 NII. App. 137. 9. Unmatured crops receiving nourishment from the soil. Newburn v. Lucas, 126 Iowa, 85, 101 N. W. 730. A dead to be delivered at the grantor's death passes growing crops to which the grantor is entitled at the date of his death. Wilhoit v. Salmon \[Ca.\] 80 P. 705. 8. 705. **NOTE: Reservation of grewving crops** may, according to many authorities, be made by parol. Lewilon v. Hexinun, 298 Ind. 509; Kluse v. Sparks, 10 Ind. App. 44, 37 N. E. 1047; Baker v. Jordon, 3 Ohio St. 438; Back-ensouss v. Stahler, 33 Pa. 251, 76 Am. Dec. 692; Kerr v. Hill, 27 W. Va. 576. **But** see Gibbons v. Dillingham, 10 Ark. 9, 50 Am. Dec. 233; Powell v. Rich, 41 Ill. 476; Brown v. Thurston, 66 Me. 126, 96 Am. Dec. 438; Kammroth v. Kidd, 80 Minn. 380; Kirkreby v. Erickson, 90 Minn. 299, 96 N. W. 705, 101 Am. St. Rep. 411: Milvinvalue v. Harris, 20 Mo. 457, 64 Am. Dec. 196, -- 5 Cur. Law. EMBRACERY. Eminent DOMAIN SS 1A. 1097 EMBRACERY.${}^{14}$

To sustain a conviction of improperly influencing "any juror," it must appear that the juror had been impanelled in a pending case,${}^{15}$ and even under a statute forbidding the influencing of one "summoned as a juror," it must be shown that there was a cause pending for service in which the juror had been summoned.${}^{16}$ Something must be done which reasonably tends to exert an improper influence on the juror.${}^{17}$ An indictment for corrupting a juror must contain the name of the juror.${}^{18}$

**EminENT DOMAIN.**

\*\*SS 1. The Power of the State and Delega- (1119). $\\lx@sectionsign$ 7. Who is Liable for Compensation (1097). $\\lx@sectionsign$ 8. Condemation Proceedings in Generan- (1097). $\\lx@sectionsign$ 9. Who May Exercise the Right; Delega- (1121). Parties (1122). Bonds (1122). $\\lx@sectionsign$ 9. Jurisdiction (1122). $\\lx@sectionsign$ 10. Applications; Fetttions; Fleadings or Defeaters (1100). Rights $\\lx@sectionsign$ 11. Process, Notice, Citation, Publication (1124). $\\lx@sectionsign$ 2. Proverse and Uses of a Public Character (1101). $\\lx@sectionsign$ 12. Hearing and Determination of Right to Condemation (1124). $\\lx@sectionsign$ 2. Preperty Liable to Appropripripriation and Estate Therein Which May be Acounted (1104). Property Exempt by Law (1105). $\\lx@sectionsign$ 13. Combinators or Other Tribnan Property in Actual and Necessary Use for a Public Purpose (1105). Statutory Authority to Petitioner to Choose His Own Location (1106). $\\lx@sectionsign$ 14. What is a "Taking" "(injuries or "Damaging" or "Property (1107). Exercises of Police or Taxing Power (1108). Changing Uses of Streams and Highways (1109). Establishment or Vacation of Streets (1109). $\\lx@sectionsign$ 15. Review of Condemation Proceedings (1110). Railroads or Other Ways or Structures on City Streets (1110). Use of Rural Highway for Purposes Other Than General Public Travel (1111). Additional Servitudes on Railways (1112). $\\lx@sectionsign$ 5. Conditions Preceted to The Exercise of the Powery Location of Route (1112). $\\lx@sectionsign$ 6. Measure and Sinfleiency of Compensation (1113). Benefits (1113). Particular Elements of Damage (1117). Taking Rights in Public Way (1118). Amount of Damages as Dependent on Estate or Interest Appropriated (1119). Extent and Sufficiency of Damages (1119).

**Embracerky.${}^{14}$**

To sustain a conviction of improperly influencing "any juror," it must appear that the juror had been impanelled in a pending case,${}^{15}$ and even under a statute forbidding the influencing of one "summoned as a juror," it must be shown that there was a cause pending for service in which the juror had been summoned.${}^{16}$ Something must be done which reasonably tends to exert an improper influence on the juror.${}^{17}$ An indictment for corrupting a juror must contain the name of the juror.${}^{18}$

**EminENT DOMAIN.**

\*\*SS 1. The Power of the State and Delega- (1119). $\\lx@sectionsign$ 7. Who is Liable for Compensation (11097). $\\lx@sectionsign$ 11. Definition and Nature of Power (1099). $\\lx@sectionsign$ 8. Condemation Proceedings in Generan- (1097). $\\lx@sectionsign$ 11. Definitions (1122). Bonds (1122). $\\lx@sectionsign$ 11.1.1 $\\lx@sectionsign$ 11.2. Parties (1122). Bonds (1122). $\\lx@sectionsign$ 11.2. Parties (1122). $\\lx@sectionsign$ 11.3. Parties (1122). $\\lx@sectionsign$ 11.4. Parties (1122). $\\lx@sectionsign$ 11.5. Parties (1122). $\\lx@sectionsign$ 11.6. Parties (1122). $\\lx@sectionsign$ 11.7. Who May is Liable for Compensation (1119). $\\lx@sectionsign$ 1 stitutions.24 Strictly speaking, the power is a right and not a defense.25 In the United States the exercise of the power is limited by constitutional provisions; these provisions, while not uniform in all their details, generally provide that private property can only be taken26 and used27 for a public use,28 and then only upon the payment of just compensation,29 unless such compensation is waived;30 but such a waiver is binding only by way of estoppel,31 hence may be withdrawn at any time before it is acted on.22 An obligation to pay is implied from the taking and use by the public.33 One whose property is taken by condemnation proceedings is not deprived thereof without due process of law,24 nor is a statute authorizing the majority stockholders of consolidating railroads to condemn the stock of dissenting stockholders unconstitutional as impairing the obligation of a contract,35 nor as granting exclusive

5 Cur. Law. Eminent Domain SS 1B. 1099 privileges.\[36\] The right to appropriate private property to public uses lies dormant in the state until legislative action is had, pointing out the occasions, the modes, conditions and agencies, for its appropriation,\[37\] and such power must be exercised in the manner, by the tribunal, and with the limitations provided by law.\[38\] The property owner may always raise the question as to whether the purpose is public in its nature.\[39\] (SS 1) \_B. Who may exercise the right; delegation of power.\[40\]--The power of the state may be exercised through the agency of a private corporation formed for private gain so long as its purpose is public.\[41\] An enabling act need not be limited to that portion of the state wherein the use contemplated will be a public one,\[42\] but, like all other statutes, it must comply with constitutional requirements as to title, etc.\[43\] When the enabling act fails to provide for the payment of compensation, the general law of the state is by implication a part of the act and may be looked to to supply its deficiencies.\[44\] An objection that a statute is unconstitutional for failing to provide compensation to abutting owners can only be made by such owners.\[45\] The statute should also designate who is liable for the compensation;\[46\] but it is not necessary to designate a tribunal for the proceedings; the regular courts may hear them.\[47\] A statute authorizing a city to condemn certain land for a public purpose is not unconstitutional because it provides that the cost of the land shall not exceed a specific sum.\[48\] The corporation asserting the power must come within the provisions of the enabling act,\[49\] and must comply with all the requirements 36. Gen. St. 1902, SS 3694, construed. New York, etc., R. Co. v. Offled, 77 Conn. 417, 59 A, 810.

37. Richland School Tp. v. Overmyer \[Ind.\] 73 N. E. 811; Lazarus v. Morris \[Pa.\] 61 A. 815.

01. Lazarus v. Morris \[Pa.\] 61 A. 815.

01. Case IV. Morris \[Pa.\] 61 A. 815.

of the statutes as to organization,\[59\] though it has been held that a de facto corporation may maintain condemnation proceedings.\[61\] A domesticated foreign corporation is generally authorized to exercise the power.\[52\] The patent of incorporation is proof of petitioner's incorporation,\[53\] and, an affladavit of good faith being a prerequisite to incorporation, the patent of incorporation being produced the question of good faith is not in issue, though the statute requires good faith to be alleged in the petition.\[54\] In determining whether statutes confer the right to exercise the power of eminent domain, the rules of strict construction are to be applied,\[55\] and there can be no implication in favor of the right of eminent domain unless it arises from a necessity so absolute that without it the grant itself will be defeated.\[56\] Under such rules it has been held that a telephone company comes within the term "telegraph company."\[57\]

\_Exient of power granted.--\_The extent of the power granted is largely a question of statutory construction, both as to property which may be taken\[58\] and as to the purposes of the delegation,\[59\] limited always to what is necessary.\[60\] The power being undoubtedly conferred, the statute will be liberally and reasonably construed so as to make its purpose effective.\[61\] In construing a grant of power to an electric power company, the word "plant" includes its pole and wire lines.\[62\] A corporation

domain. Collier v. Union R. Co., 113 Tenn. \[in width, does not give it the right to condemn land in excess of such 60 feet in width for the purpose of relocating a stream so Ohio C. C. (N. S.) 411.

51. Detroit, etc.. R. Co. v. Campbell \[Mich.\] 12 Det. Leg. N. 202, 103 N. W. 856.

01. Amsukar A domesticated foreign corporation may exercise the right of eminent domain for a public pipe line to supply water for mining. Miocene Ditch Co. v. Lyng \[C. C. A.\] 188 F. 544.

Kentucky: A foreign railroad corporation merely complying with the provisions of Ky. St. 1903, $ 481, by filing its articles and hence acquiring the right to "possess, control, maintain and operate" a railroad in the state, has no right to exercise the power of eminent domain. Evansville & H. Traction Co. v. Henderson Bridge Co., 134 F. 973.

South CareIIna: Under Code Laws 1902, SS 221, an undomesticated foreign telegraph company is not entitled to the benefit of the condemnation laws. Duke V. Postal Tel. Cable Co. \[B. C.\] 50 S. E. 675.

53. Under Rev. St. 1898, $ 4181. In re Millwaukee Southern R. Co. \[VWs.\] 102 N. W. 401.

01. In re Millwaukee Southern R, Co. \[VWs.\] 102 N. W. 401.

01. Lewis on Eminent Domain \[2d Ed.\] 55. Lazurus v. Morris \[Pa.\] $1 A. 815. Both as regards the right to take private and state property. State v. Superior Court for Chelan County, 36 Wash. 381, 78 P. 1011. Under Act April 29, 1874, neither a telegraph nor a telephone company has the power of eminent domain to take private lands of individual owners. Act Apr. 29, 1874. Pennsylvania Tel. Co. v. However, 24 Pa. Super. Ct. 96; Pfoutz v. Pennsylvania Tel. Co., 24 Pa. Super. Ct. 105.

01. Bnee v. West Side B. R. Co. \[Pa.\] 60 A. 94. Act Feb. 19. 1849, $ 10 (P. L. 83), giving a railroad the right to enter on land to erect its depots, siblings, etc., and giving it power to condemn a right of way 60 feet in width, does not give it the right to condemn land in excess of such 60 feet in width for the purpose of relocating a stream so that the company may be relieved from the necessity of constructing two bridges over the stream in question. Id.

01. Pennsylvania Tel. Co. v. Hoover, 24 Pa. Super. Ct. 96.

01. Rev. St. $ 5263, giving telegraph companies power to build lines over the public domain and upon military and post roads, gives no power to occupy a railroad right of way. Western Union Tel. Co. v. Pennsylvania R. Co., 195 U. S. 540, 49 Law. Ed. 812. And such power is not conferred as to a particular railroad by the fact that its chart declares its line to be a public highway. Id. A general power of condemnation which authorizes the crossing of the tracks of a railway company by a highway, or of a highway by the tracks of a railway by the tracks of a railway company, is insufficient to authorize the condemnation of property purchased and used by a railroad company for depots, stations and railroad yards. Code 1887, $ 1095, considered. Richmond, etc., R. Co. v. Johnston, 108 Va. 456, 49 S. E. 496.

01. Laws 1901, p. 24, c. 12, authorizing certain counties and cities to construct sea walls, authorizes such a county to construct a sea wall within the limits of a city with-in the county. Johnston v. Galveston Coun. by \[Tex. Civ. App.\] $5 B. V. 511. A city is not authorized to condemn land for the purpose of improving and enlarging a harbor on navigable water. Pub.

may exercise the power only to carry out its corporate objects; and its charter is controlling as to what they are.\[48\]

\_Rights of transferees, agents or receivers of delegates.--\_The lessee of a corporation does not take the power of eminent domain possessed by such corporation,\[64\] but the corporate identity of the lessor company being maintained, its statutory powers continue, although the exercise of them inure to the benefit of the lessee.\[65\] The lessee should condemn in the name of the lessor,\[66\] and a railroad company may authorize an individual to condcmn lands in the name of the railroad whenever necessary in constructing its proposed right of way.\[67\] A receiver not being vested with title to the corporation's property, his appointment does not divest the corporation of its power of eminent domain so far as the exercise thereof does not interfere with the control of the receiver, or transgress any order of the court appointing him.\[48\]

_Exhaustion of the power_ does not result from a single exercise.\[69\]

SS 9. _Purposes and uses of a public character.\[70\]_--As has been shown, the purpose or use for which the property is taken must be public.\[11\] The term "public use" is a flexible one, depending somewhat upon the nature and wants of the community at the time, and hence has necessarily been of constant growth.\[72\] While public benefit is one of the essential characteristics of a public use,\[73\] still the weight of authority seems to be against the doctrine that a public use may rest solely upon public benefit, a public interest or great public utility.\[74\] There must be a public exigency.\[75\] It is not essential that the entire community or people of the state or any political subdivision thereof should be benefited or share in the use or enjoyment of \[69\]

## 8. Hurd's Rev. St. III. 1899, c. 114, SS 45,

providing that a railroad operating water carat for the carriage of passengers shall not have the power of eminent domain to acquire a landing for such vessels, does not deprive a railroad company of the right to condemn land for terminal purposes because its line terminates on a river and its engin-neer states that the purpose of the line is to there construct an incline and operate a ferry, there being nothing in the charter to show any corporate purpose to operate under said SS 45, nor any evidence to show such an intention. Taussey V. St. Louis Valley Transfer R. Co. \[C. C. A.\] 133 F. 220. See, also, Corporations, 5 C. L. 764.

## 9. Western Union Tel. Co. v. Pennsylvania R. Co., 195 U. S. 594, 49 Law. Ed. 332.

S. Snyder v. Baltimore & O. R. Co. \[Pa.\] 60 A. 151. The right acquired by a railroad company to condemn a dwelling house to widen its tracks, under Act Mar. 17, 1869 (P. L. 12), operates for the benefit of a lessee to whom a company was authorized to lease its road. Id.

12. 12.

the improvement.76 The use may be local or limited. It may be confined to a particular district and still be public,77 but in such case the use must be directly beneficial to a considerable number of the inhabitants of such section and the property to be taken must be controlled by law, for the advantage of the particular portion of the community to be benefited.78 The use must inure to the benefit of the parties concerned, considered as members of the community or of the state, and not solely as individuals.79 It is necessary that every one, if he has occasion, shall have the right to share in the use,80 and this must not be a mere theoretical right.81 A use which may be monopolized or absorbed by the few, and from which the general public may and must ultimately be excluded is in no sense public.82 It is not material that each user will not be affected in precisely the same manner or in the same degree.83 Controlling effect cannot be given the fact that the construction of a particular improvement will result incidentally in benefit to private rights and interests.84 The question of the necessity, propriety or expediency of exercising the power is purely a legislative question.85 While a legislative declaration that a use is a public one is entitled to great weight,86 the question as to what is a public use is purely a judicial question,87 and a private use cannot be converted into a public one by statute,88 or, in some states, by constitutional provisions.88 . The legislature has power to delegate the authority to decide upon the necessity or expediency for the taking without submitting the matter to a court or jury,90 and, hence, the power being absolute, the courts have no jurisdiction to review the exercise of such discretion.91 In most states, however, the courts are given revisory powers and will interfere to prevent an abuse of discretion.92 A corporation seeking to appropriate property assumes the burden of proving the necessity in the particular case."8 Such issue is one of fact,94 and the fact that other property had been temporarily used does not estop petitioners.95 Whether a corporation will serve a public purpose depends not alone on its articles of incorporation but also on evidence showing the actual business proposed to be conducted." When a grant of the right embraces several purposes, some of them constitutional and others not, with the discretion in the grantee to exercise the right when and where it chooses, within the confines of a large territory, the grantee must use that discretion in good faith, and the taking must actually be for the constitutional purpose,97 and the actual purpose is open to judicial inquiry."8

\_Particular purposes and uses.99--\_The construction of drainage1 and irrigation2 ditches and mining tunnels3 have been held public purposes. So, also, the improvement of a railroad,4 the building of a union passenger depot,5 and a terminal or transfer railroad,6 are public uses. A park is a public use,7 though not located in,

ed, has primary discretion in determining what land is necessary for the purpose, yet the prolate judge has, under Rev. St. $ 454.

6429, power to prevent abuse in the exercise of such discretion. Wheeling & L. E. R. Co. v. Toledo R. & Terminal Co. \[Ohio\] 74 N. E. 209. The decision of a municipal corporation, to whom the power of eminent domain has been delegated, that a street is necessary at a given point, will not be interfered with in the absence of a palpable abuse of discretion. Town of Poulan v. Atlantic Coast Line R. Co. \[Ga.\] 51 S. E. 557. Where the right of viewers to lay out highways is limited to such as will in their judgment be of public utility, and declaring a want of public utility a ground of remonstrance, the question of public utility becomes a judicial one. Speck v. Kenoyer \[Ind.\] 73 N. E. 886.

92. Louisiana R. & Nav. Co. v. Xavier Realty \[La.\] 39 So. 1.

01. Louisiana R. & Nav. Co. v. Xavier Realty \[La.\] 39 So. 1. The necessity for use of the route selected is a question of fact. Pennsylvania Min. Co. v. Naomi Coal Co., 26 Pa. Super. Ct. 39.

01. In re Niagara Falls & W. R. Co., 108 N. Y. 375, 15 N. E. 429, approved in Brown v. Gerald \[Me.\] 61 A. 785.

97, 98. Brown v. Gerald \[Me.\] 61 A. 785.

99. See 3 C. L 1190.

01. The use of lands for the purpose of constructing thereon a ditch of a drainage district organized under the drainage and levee act (Hurd's Rev. St. 1899, e. 42), is a public use, hence such district may avail itself of the eminent domain act. Cleveland, etc., R. Co. v. Poleset Drainge Dist., 213 Ill. 83, T2 N. E. 684. The taking of private property for the drainage of agriculul but near, a city or town.8 While the taking of land for a public highway is for a public use,9 there is considerable conflict as to whether or not private property may be taken for the construction of a private road.10 The legislature may empower a majority of the stockholders of railroads to consolidate the same upon their paying the value of dissenting stock.11 Manufacturing, generating, selling, distributing and supplying electricity for power for manufacturing or mechanical purposes, is not a public use.12 Structures necessary to facilitate industrial development of a region are for a public use.12a

5 Cur. Law. Eminent Domain SS 3. 1105

tablished business,\[16\] and the interest of a grantee or lessee of tide lands.\[17\] Railroads are not highways within a provision in the charter of a telegraph company giving it the right to occupy streets and highways.\[18\] A conflicting public use to be superior must antedate the beginning of the condemnation proceedings.\[19\]

\_Property exempt by law.\[20\]--In Pennsylvania a railroad company cannot condemn a dwelling house for an original right of way,\[21\] though it may condemn such property for-the purpose of widening its right of way, such widening being rendered necessary by increase in traffic.\[22\] The Louisiana statute prohibiting the taking of residence property unless there is no other feasible way applies to exppropriations for railroad and canal, but not for street purposes.\[23\] In Washington a corporation formed for the purpose of procuring water for domestic purposes has no authority to condemn state school lands.\[24\]

\_Property in actual and necessary use for a public purpose.\[25\]--While property condemned for a particular public use or purpose cannot, unless the fee has been taken, be devoted to a public use or purpose different from that for which the property was originally taken,\[20\] still it may be used for purposes incidental to the original use.\[27\] Property devoted to a public use may when necessary be taken for a more public use.\[28\] The right to exercise the power to take property already subjected to a public use must rest on express legislative grant,\[29\] or it must arise by necessary implication, either from the powers and privileges granted, or it must appear

road company, and cannot agree with the holders of the outstanding stock for purchase thereof, to condemn it on a finding the acts of 1849 (P. L. 78) and 1869 (P. L. 79) that it will be for the public interest, is within the power of the legislature. Id. dwelling house when necessary, for the purpose of widening its right of way, rendered Co. v. Fleming, 118 Ga. 699, 45 S. E. 664. 16. A farmer selling his farm products in a village has an "established business," 1. 164. In the absence of evidence that the though he has no regular route for cus- tomers, within the meaning of St. 1895. p. 873. 488, 1 if, providing for damages done to one having an established business, Village was destroyed by construction of a reservoir. Allen v. Commonwealth \[Mass\].

17 N. E. 287. Woodcliff Land Imp, Co. v. New Jersey Showe Line R. Co. (N. J. Law) 60 A. 44. 1848. City of Shreveport v. Noel (La.) 38

P. L. 1903, p. 658, 5 l3, providing that no railroad shall have power to condemn property of the state, does not affect the case. Shamberg v. New Jersey Shore Line R. Co. (N. J. Law) 60 A. 46. 18. Western Union Tel. Co. v. Pennsylvania R. Co., 195 U. S. 594, 49 Law. Ed. 332. 18. 19. Rights of location date from filling of petition to take for railway and plotting of a town thereafter is subject thereto. Dowie v. Chicago, etc., R. Co., 211 Ill. 49, 73 N. E. 354. 20. See 3 C. L. 1192. 46. See 3 C. L. 1192. 47. See 3 C. L. 121. 48. 122. Under Act March 17, 1869 (P. L. 12) 586, 79 P. 282. a railroad company in widening its road- 29, 10. In Yellowaukee Southern R. Co. bed for additional tracks may condemn a \[VHS\]. 102 N. V. 401. Public service corpo- dwelling house. Snyder v. Baltimore & O. ration is not bound to permit its property R. Co. \[P.L. 60 A. 161. Where a railroad to be subjected to use by a rival corpora- company had, by purchase, acquired for tion, unless by express statutory enenment terminal facilities all the property of a city \[or by due process of law thereunder. Ev- block, except two lots in one of which was "assville & L. Traction Co. v. Henderson a dwelling house, and before any train had Bridge Co., 134 F. 973. Act April 29, 1874 been run on the road the directors adopted (P. L. 73, $4, cl. 2), as amended by Act a resolution to condemn the dwelling house \[May 16, 1889 (P. L. 216), gives water comm- to widen the terminal site, there was no\] pantes the power to condemn property held

5 Cur. L.--70.

1106 Eminent Domain SS 3. 5 Cur. Law. that the rights granted, when applied to the conditions and circumstances covered by it, cannot be beneficially exercised without the taking of such property.\[30\] It follows that a general grant, although it contains no express words of exception, does not give the power to condemn property devoted to a public use.\[31\] A city having authority to lay off, condemn and establish streets may condemn a right of way over the tracks of a railroad.\[32\] The question whether the property is in actual and necessary use for a public purpose is one of fact.\[23\] The public use of the property being abandoned, the property is open to appropriation to other public uses.\[34\] Structural properties created or acquired through the exercise of municipal functions in connection with a franchise or easement granted by the state will not be taken for a distinct and different public use, without compensation.\[36\] Speaking generally, the authorities sustaining the doctrine of a dedication to a second public use without compensation have reference to the rights of the original landowner, who has once been paid full compensation for the land taken.\[36\]

_Statutory authority to petitioner to choose his own location.\[37\]_--That another suggested location is better adapted to the purpose,\[38\] even though such property

for public use, and does not limit such power to private property only. Independent Natural Gas Co. v. Butler Water Co., commons so much of the property of the 210 Pa. 171, 59 A. 894. The charter of the City of Paterson does not authorize it to

Co. \[Ga.\] 51 S. E. 657. Under the general a railroad company, and hence an ordinance authority to establish streets, a city or villages of the 210 Pa.

be owned by those interested in the proceeding,30 or that a less quantity of land than that described will suffice,49 or that in order to effect the purposes of the condemation it will be necessary to take lands not subject to condemnation,41 or which the corporation has, at the time, no power to take,42 or that the corporation has it within its power to do all that it proposes to do by means as advantageous to the public as it will have if it acquires the property,43 are not available as defenses to the proceeding. If there appears to be no bad faith on the part of the delegate of the power, his discretion will not be interfered with.44

SS 4. \_What is a "taking," "injuring" or "damaging" of property.45--Any direct injury to46 or substantial interference with private property which destroys or materially lessens its value, or by which the owner's right to its use and enjoyment is in any substantial degree abridged or destroyed,47 is a taking, though the title remains undisturbed and the occupation of the land is only temporary.48 The injury must be actual, susceptible of proof, and capable of being approximately measured.49 It must not be merely speculative, remote, prospective or contingent.50 It must be a physical61 damage to property, and not a mere personal inconvenience or injury,52 and the owner must sustain a special damage in excess of that sustained by the public generally.53 It is immaterial that such damage be small,54 or that it affects a considerable number of people in the same way.\[55\] It follows from this that damages cannot be recovered for an injury occasioned by the obstruction of a public and common right, even though the injury and inconvenience to the plaintiff be greater in degree than to other members of the public.\[56\] The general public means the people of the whole neighborhood.\[57\] Under a constitutional provision providing that private property shall not be "damaged" for a public use without compensation, the damages must be such as physically affect the property,\[68\] and a recovery cannot be had for injuries consequentially resulting from the devotion of neighboring property to a public use.\[59\] Compensation must be made for the use by the government of a patented article.\[60\]

\_Exercises of police or taxing power.--\_The requirement of adequate compensation does not impose any restriction upon the proper employment of the police power upon any subject lying within its sphere of operation.\[61\] Such regulations must

55. Little Rock, etc., R. Co. v. Newman

enjoyment of the property by the owner but (Ark.) 83 S. W. 653; Illinois Cent. R. Co. v. does not appropriate. State v. Robb \[Me.) Trustees of Schools, 212 Ill. 406, 72 N. E. 59.

60. Little Rock, etc., R. Co. v. Newman

212 Ill. 103, 72 N. E. 219.

\[Ark.) 83 S. W. 653; Herzog v. P. C. C. & St. La R. Co., 6 Ohio C. C. (N. S) 527. A property owner cannot recover damages for an obstruction in a street near but not adjacent, to his property and which the uses in conjunction with the general public, although to be taken without just compensation. Ex parte Fritz \[Miss.) 38 S. W. 722. Laws the public. Smith v. St. Paul, etc., R. Co. v. people, \[Vwash.\] 81 P. 840. Where a railroad is

1903, P. 720, c. 437, S 20, prohibiting the constructed on streets near, but not abutting on plaintiff's property and intersects

terms of the state, does not violate the condition of stress leading to the property and it

is not shown that travel is diverted from

private property for public use without compensation. State v. Nergaard \[Wis.\] 102

the property, and access thereto is not obstructed, the injury is a general one. Lit-

18. W. 859.

01. Bridges: A statute requiring a railroad S. W. 653. Injury caused to a country place

to perform its common-law duty to build its

by the fact that the railroad runs between

18. Bridges over natural water courses, with a

it and a city is general. Id. In procedural

ings to condemn land for a railroad right

confineencies and requirements of such wa-

of way. the landowner is not entitled to recover damages because a bridge to be erected.

artificial improvements, does not constitute

ed over a highway will interfere with his

access to town and will render the highway dangerous. Simons v. Mason City & Pt.

18. W. 129. The er-

etc., R. Co. v. People, 212 Ill. 103, 72 N. E.

reproves a admission of evidence on this point

held not cured by an Instruction that plaintiff could not recover for inconveniences

caused by such bridge. Id.

57. Illinois Cent. R. Co. v. Trustees of

School, 212 Ill. 406, 72 N. E. 39.

58. The property owner may recover damages for injuries resulting from the operation of a railroad and which physically

affect the property, such as Jarring of earth,

casting of soot and elnders on the property

and the emission of smoke (Smith v. St. Paul, etc., R. Co. \[Wash.\] 81 P. 840), but he

cannot recover damages for the ringing of

bells, sounding of whistles, rumbling of

trains and other usual noises, and the emission of smoke, gases, fumes and odors which are necessarily incident to the proper

operation of the road (Id.).

59. Smith v. St. Paul, etc., R. Co. \[Vwash.\] 81 P. 840.

01. Brook's Case, 39 Ct. Cl. 494.

01. Houston & T. C. R. Co. v. Dallas

(Tex.) 84 S. W. 648. The exercise of the police power simply regulates the use and

55.

5 Cur. Law.

## 1102 Eminent Domain 8 4.

be reasonable, \[62\] but where a city is authorized to maintain a pesthouse, it is liable in damages for its act in seizing private property without the consent of the owner and without compensation, for the purpose of a temporary pesthouse. \[63\] The apportionment of the entire cost of a sidewalk improvement upon the abutting lots according to their frontage is not a taking as the term is here used. \[64\]

\_Changing uses of streams and highways.--\_The lowering of the waters of a navigable stream, \[65\] or the interference with the natural and usual flow of a nonnavigable stream, \[68\] may constitute a taking; but compelling the depression of tunnels so as to remove obstruction to navigation of the stream above them, \[67\] or requiring a gas company to change the location of its mains in streets, is not a taking, \[68\] though the removal of telegraph poles and lines from a post road may be. \[69\]

_Establishment or vacation of streets. \[70\]_--A railroad company required to con-

to sell Intoxicating liquours within four miles

authorize the adjacent landowner or others

of its corporate limits, is constitutional.

who have been accustomed to use the street

Jordan v. Evansville, 163 Ind. 512, 72 N. E.

to claim compensation for the deprivation

544.

of this right; that any loss resulting from

62. State v. Robb \[Me.\] 60 A. 874. A rule

the exercise of the power to vacate a street

of a park commission forbidding the erec-

is dammum absque injuria. Paul v. Carver,

tion or display of advertising signs within

24 Pa. 207, 64 A.m. Dec. 619; Levero Dist. No.

a certain distance of a park held a taking of

9 v. Farmer, 101 Cal. 178, 35 P. 569, 23 L. R.

private property for public use without

A. 388; Coster v. Albany, 43 N. Y. 399; Gray

compensation. Commonswealth v. Boston

v. Land Co., 26 Iowa, 387. But there is

Advertising Co. \[Mass.\] 74 N. E. 601.

also authority for the proposition that when

63. Where guest at hotel was discovered

to have smallpay and hotel was quarantin-

adjacent owner or others who had been ac-

ed. city held liable in damages. Barton v.

customed to use the street such peculiar

dessa \[Mo.\] 82 B. W. 1119.

loss as is not of the same character as that

64. There was no judicial inquiry as to the

inflicted upon the general public, equity will

value of the various lots or the benefits re-

interpre in behalf of such owner to

resulting from the improvement. Wilizinski

strain the attempted abandonment of the

v. Greenville \[Miss.\] 37 So. 807.

65. Improvements under the drainage

action against a municipal corporation exer

act of March 29, 1839 (Starr & C. Ann. St.

1896, c. 42) having lowered the waters of a

the state. Heller v. Railroad Co., 28 Kan.

navigable stream, requiring abutting own-

ers to excavate and deepen such stream,

N. W. 389; Brady v. Skinkle, 40 Iowa, 576.

such lowering is a taking or damaging pri-

It has also been said that, if the vacating

vate property. Baldier v. Santary Dist. of

of the street has the effect to entirely de-

Chicago, 211 Ill. 628, 71 N. E. 118.

66. City of Elberton v. Hobbs, 121 Ga.

749, 49 S. B. 779.

67. Under Horse and Dummy Act 1874,

(Hurd's Rev. St. 1903, p. 1833, c. 131a), a city

ordinance requiring the lowering of a street

railway tunnel under the bed of a river,

such tunnel constituting an obstruction to

navigation, does not constitute a taking.

West Chicago St. R. Co. v. People, 214 Ill.

9, 73 N. E. 393.

68. New Orleans Gasslight Co. v. Drainage

01. The state cannot, without the payment of

the removal of telegraph poles and lines from a public

highway, which is a post road, such lines

having been erected with the consent of the

local authorities and the owner thereof

having filed its acceptance of the provisions

of Rev. St. 5 5283, though such poles and

wires have become an inconvenience to the

public. Ohio Postal Tel. Cable Co. v. San-

dusky County Com'rs, 137 F. 947.

70. See See A. C. L. 1195.

NOTE: Is the vacating of a street a taking? It has been held that the vacating of

a street is neither a taking nor a damaging

of private property in such a sense as to

626, 46 Am. St. Rep. 490; Bannon v. Roh struct grade crossings is entitled to compensation for the construction of the highway over its right of way.\[71\]

_Establishment or change of street grade.\[72\]_--In the absence of negligence,\[78\] amunieipality changing a street grade is not liable for injuries resulting to abutting property.\[74\] In some states, however, this rule has been changed by constitutional or statutory provisions.\[75\] Though a railroad is obliged by its charter to maintain safe passages for the public over or under its tracks, it is liable for injuries to property resulting from a change in the grade of a highway made by it for its own convenience.\[76\]

_Railroads or other ways or structures on city streets.\[77\]_--The construction of an ordinary passenger and freight railroad upon the streets of a city constitutes an additional servitude, and abutting property owners are entitled to compensation for the damages resulting to their property.\[78\] The reverse is ordinarily true of an ordinary street passenger railway.\[79\] Except where the fee of the street is in the city,\[80\]

melser, 90 Ky. 48, 13 S. W. 444, 29 Am. St. Laws 1903, p. 1396, c. 610, providing for the Rep. 365; Lindsay v. Omaha, 30 Neb. 512, 46 N. W. 627, 71 Am. St. Rep. 415; Bigelow v. of grade of highways, construed as permit-Ballerton, 111 Cal. 559, 44 P. 307; Cook v. Quick, 127 Ind. 477, 26 N. E. 1007; Pearsall v. Supervisors, 741 Mich. 658, 42 N. W. 77, 4 L. R. A. 1935, 27 Am. & Eng. Enc. Law \[2d Ed.\] 115.--From Marietta Ghird to recover damages for an injury to Chair Co. v. Henderson, 121 Ga. 399, 49 S. E. 312, 315. 71 St. Louis S. W. R. Co. v. Royal \[Ark.\] $$ S. W. 555. 72. See 3 C. L. 1195. See, also, Highways and Streets, 3 C. L. 1593. 73. Rule Is subject to qualification that no unnecessary damage to an adjoining landowner, resulting from a want of ordinary care in making the improvement, or from a physical invasion of such owner's property, thereby depriving him of it and devoting it to a public use. Damkoehler v. Milwaukee \[IWs.\] 101 N. W. 706. Where a city in grading a street removed the lateral support of soil of premises near the highway, causing such soil to fall, held a taking of private property for public uses. 88, 99. 1d. 74. Manufacturers' Land & Improvement Co. v. Camden \[N. J. Law\] 59 A. 1. The revised eminent domain act (P. L. 1900, p. 79) does not apply to injuries arising from a change of a street grade. Id. Here fact that access to property is rendered more difficult is immaterial. McCulough v. Campbellport, 123 Vis. 334, 101 N. W. 709; Smith v. Boston & A. R. Co., 181 N. Y. 132, 73 N. E. 679, 49 S App. Div., 94, 91 N. Y. S. 412. Railroad Law 1897, p. 797, c. 754, $$ 63, providing that a municipal corpora has acquire or condeman land necessary to abolish grade crossings, does not abolish the rule. Id. Complaint alleging that an order was made by the railroad commisioners authorizing a town and a railroad to purchase lands described therln, and that the town destroyed the highway in front of plaintiff's premises, held insulin-clent to render the town. Ild. Id. 75. Laws 1903, p. 1396, c. 610, providing for the recovery of damages caused by the change of grade of highways, is constitutional. Laws 1892, p. 1761, c. 68, 69, construct.

5 Cur. Law. Eminent Domain SS 4. 1111

the construction of an elevated railway is an injury to abutting property for which the property owner,\[81\] and in some states a mortgagee,\[82\] is entitled to compensation, which compensation should include damages for depreciation of value owing to the obstruction of ingress or egress,\[83\] and also, the owner having a vested right in the easements of light and air, for the interference therewith.\[84\] A steam surface railway acquiring a right of way in fee is not liable for damages caused by the construction of a viaduct to connect its trains with an elevated railroad, to a subsequent grantee of its grantor.\[85\] A property owner is entitled to compensation for the obstruction of means of access caused by the construction of a retaining wall,\[86\] or a railroad embankment.\[87\] Where property is damaged beyond a mere incidental inconvenience which unavoidably follows the exercise of charter powers by the construction of tunnels and the operation of railroad trains through them, property owners affected thereby are entitled to recover damages without proof of negligence on the part of the railroad.\[88\] Every approach to a railroad crossing forms a part of the crossing.\[89\]

\_Use of rural highways for purposes other than general public travel.\[90\]--\_The weight of authority seems to be that the placing of telephone poles and wires\[91\] upon a rural highway does not constitute an additional servitude, and the same has been held of an electric railway.\[92\] Where, in the improvement of its road, a railroad company occupies a public highway and supplies another, a common-law action may be maintained by a party injured thereby, whose lands have not been taken in chang-

the northerly half of a road $3 feet In **H. R. Co., 197 U. S. 544, 49 Law. Ed. 872.**

width, pursuant to a city ordinance. The $5. Bennett v. Long Island R. Co., 181

poles were placed close to the outer line of **N. Y. 431, 74 N. E. 418, aff. 89 App. Div. 379,**

the street and the ties extended to within **85 N. Y. 838.**

two or three feet of that line. No side-

86. City built retaining wall, thereby walk had been built. Held not to constitute an additional servitude. Budd v. Camden v. Beranton, 23 Pa. Super. Ct. 276; Haggery

Horse R. Co., 70 N. J. Law, 782, 69 A. 229.\*\*

87. In such case damages are dammin v. Norton, 23 Pa. Super. Ct. 279.\*\*

01. In such case damages are dammin v. Norton, 180 N. Y. 27, 72 N. E. 579, aff. 90 App. Div. 36, 85 N. Y. 836.\*\*

01. L. Hoffmann v. Long Island R. Co., 93

01. X. S. 647.\*\*

01. Z. St. 1894, p. 764, c. 548, $ 6 does not extend the rights given mortgages by St. 1855, p. 66, e. 247 and St. 1851, p. 626, e. v. Ann Arbor R. Co. \[Mich.\] 12 Det. Leg. 110, but merely puts beyond question the right of mortgages to compensation for the construction of an elevated railway in the street on which the mortgaged prem-

01. A. 1858, or. 1858, or.

ing the site of the original highway, and whose injuries are peculiar to himself and different in kind and degree from those sustained by the general public.98

\_Additional servitules on railways.--\_The acquisition of a crossing by one railroad over another involves a taking of private property.94 The fact that a railroad track is changed from narrow to standard gauge and that heavier trains are run over the same does not entitle the landowner to damages.95

SS 5. \_Conditions precedent to the exercise of the power; location of route.96--\_Condemann proceedings are purely statutory, and every condition prerequisite to an exercise of the right must be strictly pursued.97 In delegating the power the legislature has the authority to render the right to exercise it conditional; thus it may require that before proceedings can be commenced to condemn land for a highway98 or a railroad,99 a map of the proposed road shall be made and filed and, in some cases, approved. A location under such a requirement amounts to an appropriation of the place selected as against all persons except the owner of the land and a person who may have perfected a prior location thereon;1 and, as to the landowner, it gives a right to acquire his title, by purchase or the further exercise of the power of eminent domain, paramount to that of a person claiming under a subsequent location.2 As to whether or not an offer to purchase is a necessary condition precedent to condemnation is purely a statutory question.8 In Louisiana the 5 Cur. Law. Eminent Domain SS 6. 1113

only penalty incurred by failure to tender the value of the property before suit is the obligation to pay costs.4

SS 6. \_Measure and sufficiency of compensation.5--\_As a general rule the proper measure of damages as to property actually taken is the fair cash market value of such property at the time of taking.5 As to property not taken, the injury being permanent, it is the difference between such value immediately before and after the injury.7 This includes the cost of such improvements as are necessary to the reasonable enjoyment of the land not taken,8 but the sum awarded for the land taken and not taken must not exceed the difference between the actual value of the entire tract immediately before and after taking.9 The injury being temporary, the owner's measure of damages is the diminution in the value of the use of the premises for the purpose for which it was being used during the period of injury.10 The property being used for business purposes, the court should consider the actual loss of trade and profits caused by the interruption and the reasonably necessary additional labor and expense required to prevent further loss, and which could not have been avoided by the use of reasonable care and foresight.11 If the premises were used as a place of residence, or for the purpose of renting, the measure of dam-property owners to the construction of any railroad track along a street in recon-strip would in all cases be higher than the structuring an approach to Brooklyn Bridge, average of the land as an entire tract, and, the obtaining of such consent is not a condition precedent to the condemnation of it ought to be valued at such a price for the quantity taken as the jury deem it to be worth at the place and in that form. Union Id.

**North Carolina:** Under Laws 1854-55, p. 7 Vincent Brogs. v. New York, etc., R. 264, c. 228, SS 29, an effort to purchase the Land should be made before condemnation.

Calip v of Hickory v. Southern R. Co., 137 N. C. 111, G24, 71 N. E. 1116; Edollar v. Sanitary Dist. of Chicago, 211 till. 628, 71 N. E. 1118; Edollar v. Sanitary is not expressively referred to in Acts 1884, 17 N. E. 1125; Pichon v. Martin \[Ind. App.\] 73 that the written consent of the owner is to be applied for, and if not obtained, that the commissioners should be appointed to as-sess damages. Morgan v. Oliver \[Tex.\] SS 8. W. 1028.

4. City of Shreveport v. Noel \[La.\] 38 So, 117.

1. See 3 C. L. 1197.

1. Hartshorn v. Illinois Valley R. Co. 111.75 N. E. 122; Louisiana R. & Nav. Co. v. avee in such manner as not materiality Xavier Reality \[La.\] 39 So. 1; Big Sandry R. Co. V. Dils \[Ky.\] 87 B. S. W. 120. Change from the river through the cove, the naV-of grade of street. Garvey v. Revere \[Mass.\] 73 N. E. 664. A railroad taking the whole of a tract of land, the compensation to be allowed the owner is, ordarilly, its market value at the time of its appropriation, without any deduction for benefits or appreciation in value, general and common to the community in which the land is, shared by all property along the line of the road, and due to the prospect of its construction.

Gyvandotte V. Willey R. Co. v. Buskirk \[W. Va.\] 59 So. R. E. 211. See, also, on this point. Louisiana R. & Nav. Co. v. Xavier Reality \[La.\] 39 So. 1. In proceedings to condemnation land for a railroad, an instruction that, in assessing damages for land taken, it would not be reasonable to fix the price of one care or less at the general rate of the whole tract, as "this would be selling at retail, and ought to be at a higher price for the quantity taken," is erroneous, because it

### 1114 Eminent Domain SS 6. 5 Cur. Law.

ages would probably be fairly measured by the market rental value, or the diminution in such rental value, during the period of interruption.\[12\] The damages must be confined to the property directly involved in the proceeding,\[13\] and as a general rule where part of a tract is taken, they must be confined to such tract and cannot include separate and segregated tracts unless all are used together and the owner has, as a matter of right, means of communication between them.\[14\] The time of the actual opening of a street is the time the law fixes for estimating the damages.\[15\] The market value is the price for which the property could be sold in the market by a person desirous of selling to, a person wishing to buy, both freely exercising prudence and intelligent judgment as to its value, and unaffected by compulsion of any kind.\[16\] Such value is to be determined by the same considerations that enter into a sale between private parties, namely, the availability of the land for all valuable uses to which it is adapted, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future.\[17\] Rental value is to be considered,\[18\] but it may be shown that the lease was taken as a speculation on the allowance to be made in the condemnation proceedings.\[19\] In proceedings to condemn a right of way over oil-bearing lands, it is permissible to show a progressive decrease in the productiveness of the field within which the land in question is situated.\[20\] Where part of a leased tract is taken, the lessee is entitled to the difference between the value of the annual use of the premises before the taking and what it was worth afterward.\[21\]

The value of intangible property of a public service system cannot be determined by capitalizing its actual income,\[22\] but should be determined by capitalizing an income based on reasonable rates.\[23\] In applying the rule that the basis of all calculations as to the reasonableness of rates is the fair value of the property used for the service of the public, franchise values are not to be disregarded,\[24\] the element of going concern value is not to be considered only as in5 Cur. Law. EMINENT DOMAIN SS 6. 1115

volved in structure value,\[26\] and property value in this connection is not merely structure value.\[29\] Profits which, in the aggregate, exceed a fair return on the owner's property and franchises, involve unreasonable rates, and furnish no criterion of either franchise values or going concern value. What would be a fair return must depend upon the circumstances of each particular case.\[30\] When the rates which furnish a basis for estimating value are earned in part by property taken and in part by property not taken, the appraisers must discriminate and, so far as value may depend upon rates, they should charge the property taken for only its fair proportion of the earnings.\[29\] In determining structure value on a certain day, the market prices of materials and labor on that day or during a period long enough before that time for construction are the standards, rather than former prices,\[31\] and interest upon the money invested in the plant during construction and before completion should be allowed as a part of the cost of construction;\[32\] hence while actual cost bears upon the present value of the structure, it is not the only criterion. If, by the rise in prices, the present value of the structure is greater than the cost, the owner is entitled to the benefit of it; if less than the cost the owner must lose it.\[33\] The fact that the structure is in use and the further fact that it may lawfully be used where it is may enhance its value.\[34\] Where, in widening a street, a building is partly demolished, the jury should either consider the remainder of the building worthless and allow its value, or consider what could be done with the remainder of the building and the cost of doing it in accordance with the ordinances of the city.\[35\] Land being condemned for general railroad purposes, it is the duty of the jury to estimate the damages with reference to the right of the company to devote the entire tract\[36\] to any of the uses to which it may lawfully apply it,\[37\] and with reference to any motive power that the company may use under its charter.\[32\] In the absence of evidence to the contrary, a street being widened, it will be presumed that the grade will not be changed.\[38\] In proceedings to recover damages for the taking of a water power, the measure of damages is not, as a matter of law, the cost that might result from the substitution of steam power for the water power.\[39\] In such a case in making an estimate of the cost of production of power as a foundation for an assessment of damages, the best test is the cost under the most favorable conditions,\[40\] and the average daily yield, including times of the highest water and of the lowest, does not fairly represent the usual available power.\[30\] In the absence of consent by the 25, 26, 27, 28, 29, 30, 31. Brunswick & T. 213 III. 26, 72 N. E. 758. So held where comVater Dist. v. Maine Water Co., 99 Me. 371, 59 A. 537. 92. Waterworks. Brunswick & T. Water Dist v. Maine Water Co., 99 Me. 371, 59 A. 537. 92. Waterworks. Brunswick & T. Water Dist v. Maine Water Co., 99 Me. 371, 59 A. 537. 93. West Chicago Masonic Ass'n v. Chtlagor, 215 III. 278, 74 N. E. 159. A verdict allowing only a portion of the value of the building held sustainable only on the theory that the remaining portion of the building would be of value, by reconstructing the building. Id. 34. Union R. Co. v. Raine \[Tenn.\] 86 S. W. 857. 35. St. Louis & S. R. Co. v. Smith, 216 III. 339, 74 N. E. 1663. In condemnation proceedings by a railroad, an instruction that the company would have the right to haul that "Mas. 552, 72 N. E. 81. In proceedings to recover damages for the taking of a water power, witness testifying as to the mma-mer of handling high water, held petich-er could not complain of the exclusion of a question put to him as to the average daily parties, these rules cannot be changed by legislative enactment.\[41\] The United States in the exercise of the right of eminent domain is under its own limitation and injunction in respect to questions relating to just compensation for property taken in its own right.\[42\] In any case the amount to be awarded is a question of fact for the jury,\[43\] upon consideration of all the evidence in the case, including the knowledge of the property which they have acquired by their view of it.\[44\] Their award should not be based on mere caprice,\[45\] nor influenced by passion or prejudice.\[46\] The person damaged is entitled to interest on the value of the property taken from the time that title vests in the taker;\[47\] but care should be taken in awarding such interest that interest is not given on interest.\[48\]

\_Benefits.\[49\]--While benefits resulting from the improvement cannot be set off against the value of land taken,\[50\] still the value of such benefits as are direct and peculiar to the landowner, as distinguished from those shared by him in common with other citizens,\[51\] and are not speculative, contingent or remote,\[52\] should be set

yield of water from the watershed, includ- \[\] permitting the jury to award damages on the reservoirs above the mill. Id. \[\] There the charter of a political sub- \[\]. Id. \[\]. Mywhere the charter of a political sub- \[\] division of the state provided rule for damages for condemning waterworks, held, rule became effective by the approval of the barrier by the inhabitants of the political subdivision. Brunswick & T. Water Dist. v. \[\]. Mywhere C., 99 Mo. 371, 89 A. \[\]. Mywhere C., 99 Mo. 371, 89 A. \[\]. Mywhere C., 89 Mo. 371, 89 A.

5 Cur. Law. Eminent Domain SS 6. 1117

off against the damages to land not taken.\[53\] So doing does not violate a constitution-

al provision requiring just compensation,\[54\] even though it results in an award of no damages.\[58\] Benefits made possible by the improvement cannot be considered if the

cost of making them must be borne by the property owner.\[59\] In some states the

benefits allowed are only such as inure to or directly affect the land adjacent to the

land taken.\[57\] in others any benefit to a single tract of land used by the owner

for a common purpose is allowed.\[58\] The determination of benefits from a street

improvement is to be based on the increase in the market value of the property, and is

not limited by the benefit conferred for the particular use to which the property is

then put.\[69\] Where damages are assessed according to frontage, benefits may be

assessed in the same way.\[69\] Benefits

accruing from the construction of a railroad

may be set off against damages for consequential inconvenience or injury resulting

from the prudent construction and operation of the railroad.\[61\]

_Particular elements of damage.\[62\]_--In general all damages reducing the

stability of the property should be considered.\[63\] Thus that rights of drain and access are

taken,\[64\] and the fact that surface water will be thrown back on the premises,\[65\] are

proper elements of damage. Where land

bordering on a river is taken, allowance

Illustrations. What benefits may be set

and sewers, rendered possible by the

lm-
off: Drainage of land not taken. Swenson

v. Hallock Sup's \[Minn.\] 103 N. W. 895.

Inceasing value of property for a factory

that the owner will have to pay for such

site. Hartshorn v. Illinois Valley R. Co.

\[Ill.\] 75 N. E. 122. In such case the fact

73 N. E. 664. Where street grade was

that an electric railroad is in operation over

ed, held proper to subtract from the bene-

the land is a fact to be taken into cons-

fits which may appear to have accrued to

sideration. Id. Probable increase in value

the property, the sum charged against the

from a railroad depot then in construction

perry as a special tax for the making of

near by is to be considered. City of EE

the sidewalks accompanying such change of

Paso v. Coffin \[Tex. Civ. App.\] 13 Tex. Cft. Rep. 601, 88 S. W. 502. Where the owner

of land abutting on a street held under

and a witness testified that the improve

dead restricting him for a period of 80

years from building nearer than 20 feet to

bringing business to the street, defendant

the traveled portion of the street, the

con-
is entitled on cross-examination to ascertain

of a strip 20 feet wide along the

antine distance of the street for the purpose

of beautifying the same, held a benefit

the property. In re City of New York, 94

N. Y. S. 146. In proceedings to condemn

land for railroad right of way, it appearing

that the land not taken is valuable for

suitable for
manufacturing sites, the fact that under

the law other railroads would have the right

to cross the plaintiff's tracks and vice versa should be considered. Union R. Co. v.

Raine \[Tenn.\] 86 8 W. 857.

53. Instructions that defendants should

be allowed the fair value of the land taken

and such other damages as directly re-

sulted to the remainder of the tract and

improvements, if any, not exceeding the

difference in value before and after the taking, and authorizing the jury to find for

defendants such incidental damages as re-

sulted to the remainder of their land, by

the building and operating of the railroad

in a prudent manner, less whatever sum the

value of the advantage accruing from the

building of the road, held correct. Chicago,

etc., R. Co. v. Rottgering, 26 Ky. L. R. 1167.

88 S. W. 584.

54. Heath v. Sheetz \[Ind.\] 74 N. E. 505.

01. Bennett v. Hall, 184 Mo. 407, 83 S. W.

01.

01. Where the grade of a highway is

changed, benefits, such as sidewalks, drains

and sewers, rendered possible by the

lm-
off: Drainage of land not taken. Swenson

proverment, cannot be set off against the

v. Hallock Sup's \[Minn.\] 103 N. W. 895.

Inceasing value of property for a factory

that the owner will have to pay for such

site. Hartshorn v. Illinois Valley R. Co.

\[Ill.\] 75 N. E. 122. In such case the fact

73 N. E. 664. Where street grade was

that an electric railroad is in operation over

ed, held proper to subtract from the bene-

the land is a fact to be taken into cons-

fits which may appear to have accrued to

the property, the sum charged against the

from a railroad depot then in construction

perry as a special tax for the making of

the sidewalks accompanying such change of

Paso v. Coffin \[Tex. Civ. App.\] 13 Tex. Cft. Rep. 601, 88 S. W. 502. Where the owner

of land abutting on a street held under

and a witness testified that the improve

dead restricting him should be made for the riparian rights.\[88\] The fact that the property is situated in a religious settlement does not enhance its value.\[97\] Damages accruing from the improper construction of a railroad\[88\] or other public improvement\[89\] cannot be considered; but all damages occasioned by the proper use of the improvement\[90\] or operation of the railroad,\[11\] including the fact that the company is not obliged to fence its right of way,\[12\] should be considered. In proceedings to condemn a highway across a railroad's right of way, the railroad is entitled to compensation for necessary structural changes and for any direct expense incurred:\[78\] but it is not entitled to compensation for the observance of public regulations,\[74\] nor for the fact that it may be compelled to construct an overhead crossing.\[15\] A mere personal right or privilege in the taker cannot be considered in diminution of damages.\[76\] The fact that nearby landowners maintain works beneficial to the use to which plaintiff is putting the land cannot be considered.\[77\] The property being sold pending the proceedings, it will be presumed that the grantor sustained a loss in diminution of the purchase price.\[78\] Neither remote, speculative or fanciful damages,\[79\] nor those common to the general public,\[80\] can be considered.

_Taking rights in public way.\[81\]_--On a railroad's condemning the whole of a dedi cated street, the abutting owner is entitled to compensation for the full value of the land taken.\[84\]

_Amount of damages as dependent on estate or interest appropriated.\[85\]--Where there is no substantial difference between the value of the fee and the value of the easement to be taken by condemnation proceedings, the value of the fee may be proven and assessed as damages;\[34\] but where it can be shown that the fee burdened with the easement is of some value to the owner, this value is reserved to the owner and must be considered in assessing damages.\[85\]_

_Extent and sufficiency of damages.\[86\]--A highway being extended over a railroad right of way, the award covers all ordinary street uses, but not new servitudes.\[87\] Cases dealing with the sufficiency of damages in particular cases are shown in the notes.\[88\]_

Who is liable for compensation.\[89\]--A corporation for whose quasi-public purposes damage is caused is liable, though ostensibly the work done was to improve a public street.\[90\] In the case of an entry and damage necessary to survey a public boundary, the surveying officers are liable only for misconduct, neglect or unskillfulness,\[91\]--the remedy is against the public,\[92\] even though no provision is made for compensation.\[93\]

Condemination proceedings in general.\[94\]--The statutory procedure in effect when the proceedings are commenced\[95\] must be strictly followed,\[96\] and no method.\[85\]\_

## 9 Suffolk & C. R. Co. v. West End Land

& Improvement Co., 137 N. C. 330, 49 S. E.

& 150.

& 83. See 3 C. L. 1200.

& 84. Rule applied where an easement was

try made on private property in making a condemned over oil lands. Southern Pac. R.

Co. v. San Francisco Sav. Union, 146 Cal.

& 290, 17 P. 961.

& 85. Rule applied where an easement was

endomed over oil lands. Southern Pac.

& 93 N. Y. S. 1016.

& 94. See 3 C. L. 1200.

& 95. That board of public improvements

& 86. See 3 C. L. 1200; see, also, ante, this

section, Particular elements of damage.

& 87. Cleveland, etc., R. Co. v. Urbana B.

& & N. Ry. Co., 5 Ohio C. C. (N. S.) 583.

SSS. Where a steam railway by condemn-

ing a right of way necessitated the removal

of a house and the destruction of a large

number of fruit and ornamental trees, held,

an award $2,000 was not excessive. St. Louis & S. R. Co. v. Smith, 216 Ill. 339, 74 N.

& 163. In an action for damages for the $58 S. W. 329. The fact that a city con-

obstruction of ingress and egress by the

streting a sidewalk on private property

rection of a railroad viaduct in a street,

without compensation passed an ordinance

plaintiff's evidence showing the difference

declaring the improvement necessary and

in the value of the property before and after

for any authority on the city's agents to

a verdict for $425 held not excessive. Cam-

den Interstate R. Co. v. Smiley \[Ky.\] 84 S.

& 87. Proofs on one side showing the

property to be worth $9,000, and on the

other a value between $4,500 and $5,500, a

judgment based on a verdict of $9,000 will

not be reversed as excessive. Reed v. Pitts-

burg. etc., R. Co., 210 Pa. 211, 59 A. 1067.

& 89. See 1 C. L. 1018. Rules as to assess-

ing the cost of public works and improvements. Public Works and Improvements,

& 4 C. L. 1121.

& 90. Certain ways on a plat reserved

from dedication to complete public use were

graded so as to destroy access to abutters'

lots. Evidence held sufficient to show that

od of procedure being stated in the enabling act, general rules apply." In extending to a foreign corporation the privileges granted by its charter, modes of procedure and periods of limitation found in the charter will not be read into the enabling act unless its terms clearly import such an intent." It is essential that the defendant be entitled to a judicial hearing." A suit does not lie to condemn property in the hands of a Federal receiver without leave of court,1 and leave to sue may be made dependent upon suit being brought in the Federal court.2 The right to combine or consolidate proceedings8 or to effect a severance or splitting thereof,4 or hear counterclaims,5 is all statutory. The fact that a railroad is improperly occupying a public highway is immaterial in condemnation proceedings directed against the land of private propriators.6 A special procedure for highways, streets and railways and other special uses respectively is usually prescribed.7 In Texas the commissioners in certain counties must proceed under the railroad law to condemn for roads.8 In some mode indicated by statute, the decision that the contemplated taking is a necessity must be made. This is sometimes by order of court or board,9

97. Town of Poulan v. Atlantic Coast \[Kes \[VWs.\] 101 N. W. 930. Under B. & C. Line R. Co. \[Ga.\] 51 S. E. 657; Marietta \[Comp. $$ 5022-5030, a corporation having Chair Co. v. Henderson, 121 Ga. 339, 49 S. E. 312. Applied to limitations. Jones v. Nash-ville, etc., R. Co. \[Ala.\] 37 So. 677. 98. Charter allowed the "taking" and re-quired owners to sue in five years; this was held not to have been adopted. Jones v. Nashville, etc., R. Co. \[Ala.\] 37 So. 677. 99. Orange County v. Ellsworth, 98 App. Div. 275, 90 N. Y. S. 576. Inasmuch as the provisions of the condemnation law (Code Civ. Proc. c. 23) are not inconsistent with Laws 1901, p. 680, c. 240, as amended by Laws 1902, p. 1221, c. 510, the proceedings pointed out by the condemnation law are applicable to proceedings under the act of railroad company, notice to some of the 1901, as amended, and hence such act is not unconsutritional on the ground that there is no provision for denving or controvertising the petition, or making any pleading or defense, and no opportunity to litigate the right of the plaintiff to maintain the proceedings. Id. 1. 24 Stat. 554 and 25 Stat. 436 (U. S. Comp. St. 1901, p. 582) do not alter the rule. Buckhannon & N. R. Co. v. Davis \[C. C. A.\] 135 F. 707, sigf. Coster v. Parkersburg Branch R. Co., 131 F. 115. Refusal by the receiver of a railroad to agree on a crossing at a point and in a manner insisted upon by another railroad does not constitute "an act or transaction" by the receiver within such act. Id. 2. Buckhannon & N. R. Co. v. Davis \[C. C. A.\] 135 F. 707, sigf. Coster v. Parkersburg Branch R. Co., 131 F. 115.

01. Under Code Civ. Proc. $ 1244, subd. 5, it is within the discretion of the court whether suits to condemn separate tracts of land in the same country and required for the same public use shall be consolidated or tried separately. San Luis Obispo Coun- tv. Simas \[Cal. App.\] 81 P. 972. Under Rev. St. 1898, 48 2647, 2844, it is discretion-ary with the court to permit the joinder of an action to recover damages for change of grade of a street with one against the city, its treasure and another to annual an assessment certificate and for an injunc- tv. It led not error for it to refuse to consolidate the actions. Haubner v. Millwau- sullent. 4.1.12.

01. Town of Poulan v. Atlantic Coast \[Kes \[VWs.\] 101 N. W. 930. Under B. & C. Line R. Co. \[Ga.\] 51 S. E. 657; Marietta \[Comp. $$ 5022-5030, a corporation having Chair Co. v. Henderson, 121 Ga. 339, 49 S. E. 312. Applied to limitations. Jones v. Nash-ville, etc., R. Co. \[Ala.\] 37 So. 677. 98. Charter allowed the "taking" and re- quired owners to sue in five years; this was held not to have been adopted. Jones v. Nashville, etc., R. Co. \[Ala.\] 37 So. 677. 99. Orange County v. Ellsworth, 98 App. Div. 275, 90 N. Y. S. 576. Inasmuch as the provisions of the condemnation law (Code Civ. Proc. c. 23) are not inconsistent with Laws 1901, p. 680, c. 240, as amended by Laws 1902, p. 1221, c. 510, the proceedings pointed out by the condemnation law are applicable to proceedings under the act of railroad company, notice to some of the 1901, as amended, and hence such act is not unconsutritional on the ground that there is no provision for denving or controvertising the petition, or making any pleading or defense, 5 Cur. Law. Eminent DOMAIN SS 8. 1131

sometimes by ordinance or the like.\[10\] In Mississippi ap justice of the peace, in eminent domain proceedings, acts ministerially only.\[11\]

\_Discontinuinance or abandonment.\[12\]--In the absence of statutory provisions to the contrary, the condemning party may abandon the proceedings at any time before the rights of the parties have become vested,\[13\] leaving the landowner without grievance which will authorize an appeal from the assessment,\[14\] and such an abandonment will be presumed from continued inaction after the report of the viewers.\[15\] Upon damages being fixed by the judgment, it is the petitioner's duty to determine within a reasonable time whether it will pay the damages and enter upon the land, or abandon the proceeding;\[16\] and, if it takes the latter course, its purpose should be promptly and unequivocally made a matter of record by the vacation of the judgment and the dismissal of the petition.\[17\] The proceedings should be prosecuted with diligence,\[18\] and if plaintiff wrongfully delays the trial of the cause and omits to make its election to take the land or abandon the proceeding within a reasonable time after the amount of the judgment has been fixed, and then elects to discontinue, it is liable to the owner of-the land for damages occasioned by such wrongful acts.\[19\] If the acts be not both wrongful and injurious, there is no liability, but where they are both wrongful and injurious, the landowner is entitled to recover.\[10\] The measure of damages to, which the landowner is entitled is the difference between the value of the land at the time he could have sold it, but for the pendency of the suit, and its value at the time the suit was dismissed.\[11\] The owner of the land at the time of the delay may recover damages for the wrongful delay of the petitioner in bringing the case to trial.\[22\] Though approval by the municipal assembly of petitions by the city for condemnation is required before proceeding to assessment, disapproval by it does not of itself dismiss the petition, though it might possibly be ground for dismissal.\[23\] There is a conflict as to whether the property owner is entitled to recover all costs and expenses, including attorney's fees, upon the abandonment of the proceedings.\[24\] It is, however, competent for the legislature to impose such a burden in delegating the right of eminent domain.\[25\]

lands needed for the location and construction of the sea wall, held, the order sun, cliently showed that it was necessary for the county to construct the sea wall. Id. 10. In Missouri an ordinance is the proper initial step where the purpose of the proceeding is to extend a street. Not a resolution. Rev. St. 1899, **SS 5978**, 5990, con-

without. City of Tarliko V. Clark, 185 Mo. 285, 85 85. W. 329. Under Rev. St. 1899, **SS 5993**, the mayor has no jurisdiction to appoint a jury to assess damages before an ordinance is passed defining the benefit district. Id. In the case of a street extension petition by citizens not necessary. Under Rev. St. 1899, **SS 5978**, 5980 and 5983, Id.

11. His auctions may be controlled by mandamus. Sullivan v. Yazoo & M. V. R. Co. \[Miss.\] 38 Sc. 33.

01. See 3 C. L. 1201.

01. T Ene. Pl. & Pr. 674. A municipality may abandon at any time before award. In re Seventeenth St. \[Mo.\] 88 S. W. 45.

May abandon at any time before a decree of appropriation passing title is entered. Bali Imger's Ann. Codes & St. 5540-5644, con-

sidered. Fort Angeles Pac. K. Co. V. Cooke {Wash.} 80 P. 305.

14, 15. In re Seventeenth St. \[Mo.\] 88 S. W. 45.

6 Curr. L--Tl.

16. Winkelman v. Chicago, 218 III. 360,

01. N. E. 1066.

01. T. Winkelman v. Chicago, 213 IIL 360,

01. N. E. 1066.

01. Winkelman v. Chicago, 213 IIL 360,

01. N. E. 1066.

01. T. Winkelman v. Chicago, 213 IIL 360,

01. N. E. 1066.

01. In Missouri an ordinance is the proper initial step where the purpose of the proceeding is to extend a street. Not a resolution. Rev. St. 1899, **SS 5978**, 5990, con-

01. N. E. 1066.

01. May be recovered by one buying the land after the institution of the proceed-

01. N. E. 1066.

01. City of St. Louis v. Lawton \[Mo.\] 88 S. W. 80.

01. That he is. Sterrett v. Delmar Ave. & Clayton R. Co., 108 Mo. App. 650, 84 S. W. 150; Wiler v. Logan Natural Gas & Fuel Co., 6 Ohio C. C. (N. S.) 206. Where proceedings were dismissed after award was made. Naumann v. Big Tarkio Draniage

01. Date. Naumann v. Big Tarkio Draniage

01.

\_Parties.26--\_It is not necessary to the jurisdiction of the court that all persons interested in the property be made parties, but damages may be assessed to the persons made parties, and they cannot complain of the failure to bring in other interested parties.27 A lessee of the land to be condemned is a necessary party.28 The liability of a city for "damaging" property for a public use is not tortwise, and the statutes authorizing joinder of him against whom a city might recover over do not apply.20 Where between the impaneling of the jury to assess damages and the rendition of their verdict, the owner conveys the land in several parcels and the grantees do not intervene, they cannot object to an assessment of damages and benefits to the tract as a whole.29

\_Bonds.31--\_The necessity of a bond is statutory.32 The validity of the bond is not affected by inaccurate recitals as to the petition if the latter is sufficiently identified.33

Footnote 32: 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 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 authoringing authoring authoring authoringing authoring authoring authoringing authoring authoring authoringing authoring authoringing authoring authoringing authoring authoringing authoring authoringing authoring authoringing authoring authoringing authoring 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 authoringinging authoringing authoringing authoringing authoringinging authoringing authoringinging authoringing authoringinging authoringing authoringinging authoringing authoringinging authoringing authoringinging authoringing authoringinging authoringinging authoringing authoringinging authoringinging authoringing authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringing authoringinging authoringinging authoringing authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringinging authoringing authoringinging authoringinging authoringinging authoringinging authoringing authoringinging authoringinging authoringinging authoringinging authoringing authoringinging authoringinging authoringinging authoringing authoringinging authoringinging authoringinging authoringing authoringinging authoringinging authoringing authoringinging authoringinging authoringinging authoringinging authoringing authoringing 5 Cur. Law. Eminent domain SS 10. 1123

from reading the same, and a comparison thereof with monuments or other landmarks upon the ground, and therein referred to, tell the location of the land which it is proposed to take.\[42\] A defective description may generally be amended,\[48\] and the proceeding will not be set aside for this reason until the party applying for the condemnation has had an opportunity to apply for leave to amend.\[44\] Where the petition is required to state "the property sought to be condemned," property not to be taken but which might be injured by the appropriation of other property need not be stated.\[45\] The petitioner is required at its peril to ascertain and name in the petition the true owner of the land sought to be condemned and taken, and the person so named as owner in the petition is not required to prove title.\[46\] The petition is sufficient if it conform to statutory requirements.\[47\] An allegation, in substance in the language of the statute, that all preliminary steps required by law have been taken, is sufficient.\[48\] As a general rule an ambiguous rectal not required by statute will not be construed so as to contradict necessary averments.\[49\] In Wisconsin a petition by a railroad must state the terminal and length of the road.\[50\] A declaration which states a good cause of action is not subject to a general demurrer because it claims an incorrect measure of damages.\[51\] Amendments in an appellate court cannot cure the omission of necessary jurisdictional allegations.\[52\] A landowner, who has united in a petition for the establishment of a public road, expressly waiving compensation for damages arising therefrom, may withdraw such waiver by filing a claim for compensation before the establishment of the road.\[53\]

In some states a claim for damages must be filed by the property owner.\[54\] A

42. Woodcliff Land Imp. Co. v. New Jersey

Galsveton County \[Tex. Civ. App.\] 85 S. W. Shore Line R. Co. (N. J. Law) 60 A. 44. He

should not be required to seek other maps

43. Where the petition so recited, in pro- and data to be able to ascertain and locate

ceedings under Laws 1901, p. 680, c. 240, as the land proposed to be condemned. Id. The

demand, an objection that the petition fall-record must show with certainty what land

ed to state that the proceeding was authorizs to to be taken. City of Tarkio v. Clark, 186

ed by the board of supervisors was one that

Mo. 258, S. S. W. 329.

43. May be amended in New Jersey.

Woodcliff Land Imp. Co. v. New Jersey

County V. Ellisworth, 38 App. Div. 275, 90 N. Line R. Co. (N. J. Law) 60 A. 44.

Y. S. 576.

44. Woodcliff Land Imp. Co. v. New Jersey

Shore Line R. Co. (N. J. Law) 60 A. 44.

45. Kirby V. Panhandle & G. R. Co. (Tex.

am a multilocus rectal not required by statute,

Civ. App.) 13 Tex. Ct. Rep. 421, 88 S. W. 281.

46. Chicago & M. Elec. R. Co. v. Diver,

213 Ill. 26, 72 N. E. 758.

47. Under Code Civ. Proc. % 1244, a complaint is not demurrable for failing to special:

slients. Orange County v. Ellisworth, 98

fly the manner in which it was proposed to establish a highway. San Luis Obispo County v. 81

48. Rey St. 1898, $ 1846. Is not limited

ty v. Binmas \[Cal. App.\] 81 P. 972. Under % 2

to termini within the state. In er Milwaukee

of the eminent domain act of 1900 (P. L. P. 80), it is not necessary, in a petition for the condemnation of tunnel rights, to allege that

railroad be given refers to the length of the proposed tunnel will be so built or kept

in such condition as to make the surface of the ground above the same firm and safe for

ries of the state. Id. It is sufficient if the buildings and other erections thereon, or

that it will be at such depth beneath the

the designated by naming each county, in the land as not to interfere with the use thereof:

date, through or into which it is designed to

McEwan v. Pennsylvania, etc., R. Co. (N. J. Law) 60 A. 1130. Under Laws 1901, p. 24, e. 51. Belider V. Sanitary Dist. of Chicago,

12, $ 3 and Rev. St. 1855, $ 4447, a petition by

211 Ill. 628, 71 N. E. 118.

a country to condemn land for a sea wall is

not defective for failing to allege that the

voters of the county have voted for the is-

sance of bonds-and the levy of the necessary tax to afford means to enable the county

by tax to afford means to enable the county

to construct the improvement. Johnston v.

cross-petitioner who pays for an award for damages acceruing to land which is not "taken" must allege in the petition that he is the owner of the property alleged to be "damaged."\[98\] If the original petitioner desires to contest the allegation, he must, by appropriate pleadings, raise that issue.\[54\] Where papers are handed to clerk with statement that the attorney would remit the fee, which the clerk did not then demand of the messenger, and the clerk delayed filing the papers, the filing will be held to relate back to the date when the papers were given to the clerk.\[57\]

SS 11. \_Process, notice, citation, publication.\[68\]--As a general rule, unless waiv-ed,\[59\] notice to the landowner is essential.\[69\] This is especially true of the notice of the proceedings to assess damages, for while the state has the power to provide for the designation of property to be taken for its own use, through its own agencies, without notice to the owners,\[91\] the latter have a constitutional right to be heard on the question of the assessment of compensation.\[68\] Notice being jurisdictional, the fact that it was given or waived must appear on the face of the proceedings.\[63\] When given under legislative authority, notice by publication is sufficient.\[64\] A three days notice of a meeting is a notice given three days before the meeting is to be held.\[65\] If the legislative grant of power specifically describes the property, the notice need not contain a description of it.\[69\] The notice to some of the landowners along a proposed railway being insufficient, the proceedings may in Wisconsin be dismissed as to them and continued as to those sufficiently notified.\[67\] A corporation's charter authorizing it to condemn land under a statute not requiring notice to landowners, a subsequent amendment of such statute requiring notice does not violate the charter contract.\[68\]

SS 12. \_Hearing and determination of right to condemn.\[69\]--The issue of ownership, if any, is preliminary to the submission of the question of damages to the jury, and is to be litigated and determined before the jury is impanted to assess the claim handed a member of the board of selectmen, when the board was not in session, in the presence of all the members of the board, is sufficient, though the selectmen fail to record the filing. Garvey v. Reverse \[Mass.\] 73 N. E. 64.

55, 56. Chicago & M. Elec. R. Co. v. Diver, 213 N. 26, 72 N. E. 758.

57. Dowie v. Chicago, etc., R. Co., 214 N.

49, 73 N. E. 354.

58. See 1 C. L. 1022.

01. General appearance waves notice. San Luis Obispo County v. Simas \[Cal. App.\] 81 P. 972. Wavlays defect in notice. Orange County v. Ellsworth, 98 App. Div. 275, 90 N. Y. S. 576. Where the attorney general appears in condemnation proceedings instituted against the state, the jurisdiction of the court attaches to the same extent as if the state had been regularly summoned and the proceedings wereauthorized by law, although instituted prior to the enactment of St. 1901, p. 807, c. 144, adding subd. 7 to Code V. Proc. $ 1240. California & N. R. Co. v. State \[Cal. App.\] 81 P. 971.

01. Condenination proceedings begun in 1870 by a railroad company whose charter authorized it to condemn land under Rev. St. 1845, e. 92, are void unless notice is given to landowners. Chicago, etc., R. Co. v. Abbott, 215 N. 416, 74 N. E. 412. A municipal corporation attempting to exercise the power of eminent domain, the council must pass the preliminary resolution and give notice to the property owners as required by $ 1536-105, 5 Cur. Law. Eminent Domain SS 13.

amount to be paid the owner." In Mississippi the circuit court has no jurisdiction to fix the time and place of meeting of the eminent domain court." The trial court allowing the corporation counsel to assume control of the trial calendar, the city is estopped to claim that the property owner should have applied to the court to have the cause placed on the trial calendar." Distance of the subject-matter from the place of trial, while an element in allowing time to prepare for trial, is not conclusive." The questions of the existence or nonexistence of a corporation seeking to condemn property and its power or want of power to do so are questions of law." The court being required to take judicial notice of the private acts of the state, a defense that petitioner under its charter has power to do all it proposes to do by means as advantageous to the public as it would have should it take defendant's property presents a mere question of law." The court having jurisdiction, the fact that it hears without determining or determines without hearing is merely error." Where the only fact necessary to be established is conceded, the entry of an order for condemnation without a hearing is harmless."

SS 13. _Commissioners or other tribunal to assess damages; trial by jury."_--Where the legislature provides for a commission to determine the compensation, it is evidently its intention to provide a speedy method of procedure, and a construction which admits of divided and protracted litigation is not to be favored;" hence the, appointment and action of the commission is not to be kept in abeyance while the question of the plaintiff's title to certain property of the kinds enumerated is tried out in court." A commission being clothed with the power and duty to determine the value of the property taken, it has authority to decide what property is taken." In some states commissioners chosen by the property owner are given a preference." In Illinois the report of commissioners appointed under a petition for the organization of a drainage district is not conclusive." In many states the parties have a constitutional right to a jury trial," but this right may be waived, in some states, by failure to demand such a trial," and the law in force at the time the proceedings are

70. Chicago & M. Elec. R. Co. v. Diver, 213

Vas complied with. Johnston v. Galveston U1. 26, 73 N. E. 758.

V. Navarre \[Wash.\] 80 P. 845.

74. Chicago, etc., R. Co. v. Liebel \[Ky.\]

01. S. W. 649.

01. Gen. St. 1902, $ 697, considered. New York, etc., R. Co. v. Offield \[Conn.\] 60 A.

01. Is not ground for collateral attack. San Luis Obispo County v. Simas \[Cal. App.\]

81 P. 972.

77. Conceded by bill of exceptions. San Luis Obispo County v. Simas \[Cal. App.\] 81 P. 972.

01. See 3 C. L. 1202.

79, 80, 81. Penobscot Log Driving Co. v. West Branch Driving & Reservoir Dam Co., 99 Me. 452, 59 A. 593.

82. Whereowner was allowed to name one commissioner and he acquiesed In the appointment of two others, held, Rev. St. 1895, art. 448, requiring the county judge to give a preference to those thatmay be agreed upon between the owner and the corporation, 1126 Eminent Domain SS 13. 5 Cur. Law.

instituted is to be resorted to in determining whether or not there is a waiver.86 Changes by the court in the report of appraisers, on hearing exceptions thereto, do not infringe the constitutional right to have damages assessed by a jury of freeholders.87 It is quite generally provided that the members of the commission88 or jury88 must be freeholders, and the record must so recite. "Householders" is not synonymous with "freeholders.99 On appeal from the commissioners and trial de novo, the report of the commissioners is of no force or effect,91 and an instruction that the commissioner's award has been paid should tell the jury what to do in case their award is less or more than that of the commissioners.92 Michigan statutes contemplate that one jury shall determine in one proceeding the questions relating to condemnation by a railroad company of lands of different persons in a locality.98 In Mississippi, the clerk of the circuit court should snmmon the jurors.94 As a general rule a challenge to the array being sustained, the judge should issue a new ventire.99 On appeal, appellant's counsel, in examining jurors on their voir dire, may state the amount of the award below for the purpose of identifying the case,99 and in such a case it is not an abuse of discretion for the court to permit counsel to ask the jurors if such finding would have any weight with them.97 In California several parcels of land lying in the same county being sought for the same purpose, the owners must all join in their peremptory challenges.98 It is error for counsel, witnesses and jurors to mingle freely together, dune together, and for meals, cigars and drinks to be furnished by petitioner's representatives.99 The fact that the commissioners were not sworn is no defense to the payment, no appeal having been taken by the landowner.1

Where the parties by agreement submit the question of damages to referees, the agreement governs.2

86. Chelan County v. Navarre \[Wash.\] 80 95. Under Hurd's Rev. St. 1903, p. 909, c. P. 845. 47, SS 3, 6 and 7, whether condemnation pro-
01. City of St. Louis v. Lawton \[Mo.\] 88 5eedings are instituted in vacation or in term
01. Weor must show that commissioners 88. Record must show that commissioners 88. at the trial, and a challenge to the array is are freeholders. Report of the commission-
    sustained, it is the duty of the judge to iss-

Grossman v. Patton, 186 Mo. 661, SS 8. W. 548. Proceedings to condemn land for a

89. Proceedings to condemn land for a

street extension are invalid unless the record

judge erroneously designated 12 persons by

reites that the jury appointed to award

compensation were disinterested freeholders.

Rev. St. 1889, SS 5993. City of Tarkio v. Clark,

186 Mo. 285, SS 8. W. 329.

90. Grossman v. Patton, 186 Mo. 661, SS 8. W. 548.

01. Where, in proceedings to establish a

highway, exceptions are taken to the report

of the commissionors and a jury trial had,

the fact that the record does not show that

the commissioners were not of kin to any of

the parties is immaterial. Bennett v. Hall,

184 Mo. 407, SS 8. W. 489.

92. An instruction that if they awarded

damages in excess thereof, the amount of the

commissioner's award should be deducted

therefrom, held erroneous as not telling the

jury what to do if the amount awarded

by them was less than the commissioners' award. Missouri Pac. R. Co. v. Roberts, 187

Mso, 309, SS 8. W. 91.

93. Detroit, etc., R. Co. v. Campbell

\[Mich.\] 12 Det. Leg. N. 203, 103 N. W. 856.

94. The circuit court has no jurisdiction to so do. Sullivan v. Ysazoc & M. v. B Co.

\[Miss.\] 88 So. 33.

95. Under Hurd's Rev. St. 1903, p. 909, c. P. 845. 47, SS 3, 6 and 7, whether condemnation pro-

01. City of St. Louis v. Lawton \[Mo.\] 88 5eedings are instituted in vacation or in term

time, where the judge before whom the petition was first presented is unable to preside

are freeholders. Report of the commission-

at the trial, and a challenge to the array is

sustained, it is the duty of the judge to iss-

Grossman v. Patton, 186 Mo. 661, SS 8. W. 548.

98. Proceedings to condemn land for a

01. Proceedings to condemn land for a

01. Proceeding's to condemn land for a
    5 Cur. Law. Eminent domain SS 14. 1137

SS 14. _The trial, or inquest, and hearings on the question of damages._"--The weight of authority seems to be that the burden is on the owner to prove the amount of his damages," and in states so holding, he is entitled to open and close." The jury is the judge of the credibility of the witnesses, and may determine as to the value of the testimony given by such witnesses respectively," and in Louisiana it may take into consideration the information of its members outside of the testimony of the case, and also their own opinions, but in so doing they must not disregard the testimony of witnesses."

_Admissibility of evidence._"--The price brought on the sale of neighboring land similarly situated," within a reasonable time prior to the condemnation proceedings," may be shown." Evidence to show the value of the land by its location and surroundings is admissible;" but evidence as to the value of the same property in a different location is inadmissible." The price paid. for the land by the defendant is admissible on the question of value, provided the purchase was not remote from the appropriation in point of time," also the owner is bound by declarations as to value or offers to sell at a specified price, made at or about the time of the taking." but offers made in the course of negotiations for the compromise of a claim for damages

and the decrease in value in the parts of the property which had been procured or cons-

108 N. W. 129.

structed in order to make the right to use

10. Union R. Co. v. Hunton \[Tenn.\] SS 8.

the water available, was not a damage incl-

118. Sales of property in the neighborhood to the taking of the right to use the water, such parts of the property having

001. Sales of property in the neighborhood to the taking of the right to use the

001. such parts of the property having

001. Sales of property in the neighborhood to the taking of the right to use

001. also made a year and a half and two years

001. with 838 and Code Civ. Proc. 8 526, a property owner excepting to the commissioners'

001.

report has the burden of proof. Chicago,

132.

etc., R. Co. v. Liebel \[Ky.\] SS 8. W. 549.

14.

cannot be shown,16 nor is a tax list admissible on the issue of value.17 The value of the property for speculative purposes is inadmissible.18 In proceedings to recover damages for the taking of a water power, evidence as to the rate of interest paid by savings banks is properly excluded.19 In an action against a city for lowering the grade of a street, mortality tables showing the expectancy of plaintiff's life are inadmissible,20 as is the testimony of a physician as to the injurious effect which would or might be caused upon the health of a woman by climbing the stairs rendered necessary by the improvement.21 A photograph of real estate showing how it existed prior to the change in the grade of the street upon which it is situated is competent.22 Evidence that the property was to be applied to a different use from that for which it was appropriated is incompetent.22 Evidence as to all matters reducing the damage is admissible.24 On appeal from the commissioners and trial de novo, the report appealed from is not evidence as to the amount of damages.25 Speculative,20 hearsay,27 and immaterial28 evidence is of course not admissible; but evidence being clearly disregarded, its erroneous admission is harmless.20

to.representative of railroad offering to sell

ings held admissible. Cincinnati, etc., R. Co. his land for a certain price held admissible

v. Miller \[Ind. App.\] 72 N. E. 827.

as a declaration against interest Id.

**25. Lewis, Eminent Domain \[Ind Ed.\] %**

\*\*16. Kaufman v. Pittsburg, C. & W. R. Co. 44. Missouri Pao, R. Co. v. Roberts, 187 Mo. \[Pa.\] 60 A. 2. Statement in offer that if it

309, 86 S. W. 91. It is error to permit the was not accepted as would sell to a rival

reading of such report to the jury. Id. Such company held to show that offer was not

error is not cured by an instruction that the one to compromise a claim for damages. Id.

jury should not consider such report and

17. Suffolk & C. R. Co. v. West Em Land

that the award had been paid and if dam-

& Improvement Co., 137 N. C. 330, 49 S. E. 350,

ages in excess thereof were awarded the

18. In proceedings to condemn a right of

way over oil fields, testimony of a witness

be deducted therefrom. Id.

that he would take into consideration what

"he could pay for it and have sufficient mar-

gating street, it being admitted that the

given for speculation during at least five

strect had only been opened for a few blocks

years," is incompetent on the issue of mar-

between two terminl, held proper to exclude

ket value. Southern Pac. R. Co. v. San Fran

cisco Sav. Union, 146 Cal. 230, 79 P. 961.

18. Lakeside Mfg. Co. v. Worcester, 186

the street had been opened up all the way

Mass. 552, 72 N. E. 81.

20. Was sought to be introduced for

v. Edelin, 26 Ky. L. R. 601, 82 S. W. 278.

purpose of showing the length of time during which the extra burden placed on him in

ing the grade of a street, hearsay state-

the use of his home would obtain, and the

extra steps he would be obliged to climb.

Swope v. Seattle, 36 Wash. 113, 78 P. 607.

21. Swope v. Seattle, 36 Wash. 113, 78 P.

01.

01. Village of Grant Park v. Trah, 115 III.

App. 291.

23. Richland SchoolTp. v. Overmyer \[Ind.\]

73 N. E. 811.

24. Vhere, on the day condemnation pro-

ceedings were started, the owner of the land

dilated the property, showing the railroad

tract, and the lots could only be bought and

sold with the expectancy that they would be

along the track, held, pist was admissible,

the having been recorded. Hartshorn v. III-

noisy Valley R. Co. \[III.\] 78 N. E. 122. Where

it was claimed that the establishment of the

proposed railroad would destroy the owner's

right to a switch connection with another

in the road would not interfere with the con-

struction of a switch similar to one that had

previously been in operation, held admiss-

sible. Id. In an action for the destruction

of the means of ingress to and egress from

immaterial. Garvey v. Reverse \[Mass.\] 73 N.

land by the construction of a railroad track,

evidence as to the owner's putting in cross-

20. Verdict held so low as to show 5 Cur. Law. Eminent domain SS 14.

_Witnesses and examination thereof._\[80\]--The question of the competency of a witness is a preliminary question, and the trial court should see that the witness discloses his competency by a proper examination before he is permitted to testify generally.\[81\] In an action against a city for lowering the grade of a street, the refusal to permit the respective parties to examine more than three real estate experts as to the value of plaintiff's premises is not an abuse of discretion.\[82\] To render a witness competent to testify to the damages sustained in a particular case, he should have such knowledge as will enable him to estimate the market value of the entire tract of land both before and after the taking,\[83\] and if he has a knowledge of the requisite facts to enable him to give the total amount of the difference, his inability to give the elements of damage does not render him incompetent.\[84\] Hence the witness should disclose some knowledge of the location of the land, its area, quality, and productiveness, the extent and condition of the improvements, the manner of the taking, and of the value of other lands in the neighborhood at or about the time of the appropriation.\[35\] The extent of his knowledge in regard to these facts affects the weight of his testimony and not his competency;\[36\] and any person familiar with values may qualify.\[37\] The same general rules apply where property other than reality is being condemned.\[38\] The general rules as to the cross-examination of witnesses apply.\[39\] The right to that the jury disregarded evidence of market value, and accordingly pertinent to the neighborhood, are competent witnesses as to value. Reed v. Pittsburg, etc., R. Vo. v. 92.

So. See 3 C. L. 1204. See, also, Witnesses, 4 C. L. 1943, and Examination of Witnesses, 4 C. L. 1933.

In proceedings to recover damages for the taking of water power, a mechanical engineer testified but as he did not appear to Pa. 401, 60 A. 996.

S3. Swope v. Seattle, 36 Wash. 118, 7 P.

so. 34, Hope v. Philadelphia & W. R. Co., 211 Pa. 401, 60 A. 996.

S3. Hope v. Philadelphia & W. R. Co., 211 Pa. 401, 60 A. 996.

for damages for the taking of a water power where a witness was called to testify generally as to the damages, and he based his opinion wholly on the value of his own plant, and that he arrived at that value from an offer made him for it, he was held not qualified to testify. Lakeside Mfg. Co. v. Worcester, 38 C.

If he was held not error to refuse to permit one who had never lived in the vicinity of the property, or bought or sold property there. though he was engaged in the real estate business in a neighboring city, to testify as an expert, though a part of the property, a mill, was exceeded from the taking and the witness had had experience as a builder, and operator of mills. He also testified that, in his opinion, the park commissioners might restrict the use of the water, which it was held by the court, as a matter of 18u, they could not do. Klaus v. Commonwealth \[Mass.\] 74 N. E. 330.

S4. Hope v. Philadelphia & W. R. Co., 211 Pa. 401, 60 A. 996.

The property owner testifying as to the value of his land, the taker should be performed to prove by him on cross-examina-free also testified that, in his opinion, the park commissioners might restrict the use of the water, which it was held by the court, as a matter of 18u, they could not do. Klaus v. Wemperd \[Ind. Appl. 74 N. E. 904. Under v. Commonwealth \[Mass.\] 74 N. E. 330.

S5. Hope v. Philadelphia & W. R. Co., 211 Pa. 401, 60 A. 996.

Hence the witness should disclose some knowledge of the location of the land, its area, quality, and productiveness, the extent and condition of the improvements, the manner of the taking, and of the value of other lands in the neighborhood at or about the time of the appropriation.\[35\] The extent of his knowledge in regard to these facts affects the weight of his testimony and not his competency;\[36\] and any person familiar with values may qualify.\[37\] The same general rules apply where property other than reality is being condemned.\[38\] The general rules as to the cross-examination of witnesses apply.\[39\] The right to * 1130 Eminent Domain SS 15. 5 Cur. Law. have an expert's testimony stricken out and allow him to retestify is largely discretionary with the judge.40

\_Instructions.41--\_The instructions must be construed as a whole.42 An instruction should not assume the disputed existence of injury.43 Instructions upon a part44 or upon the weight45 of the evidence are erroneous. It is improper to call the jury's attention to the fact that the land is being taken against the will of the owners.46 An instruction is not prejudicial because not applicable to all the defendants.47

SS 15. \_View of appropriated premises.48--\_Where no formal request was made to have the judge accompany the jury on a view, an absent co-owner of certain of the property, who was represented by his co-owner, will be held to have acquiesced in the action of the court.49

SS 16. \_Verdict, report or award; judgment thereon and lien or enforcement of judgment.50--\_The viewers' report in Pennsylvania must affirmatively show that legal notice was given.51 The amounts awarded for the value of the land taken and for the damages to the remainder should be stated separately, though a joint judg-

40. In proceedings to recover damages for

ant was entitled to, held objectionable as

the taking of a water power, a witness testified as to what it would cost to produce

now that under the most favor-

brook, 211 III. 624, 71 N. E. 1116. But both

able conditions it would be somewhat less

thiana a previous estimate based on existing

the theory that such fact has been proved,

conditions; held discretionary with the judge

neither can compelnian of the instruction.

to strike out such testimony and give the

chienza & M. Elec. R. Co. v. Diver, 213 III:

witness an opportunity to present another estimate.

26, 72 N. E. 768.

44. In proceedings to recover damages for

Mass. 552, 72 N. E. 81.

45. See 3 C. L. 1204.

01. Instruction that jury must confine

damages to the market value of the land

held not erroneous in view of another

instruction that measure of damages was

"fair cash market value" and the proof was

restricted to the fair cash market value.

steam or other power for the water power

Chiageo & M. Elec. R. Co. v. Diver, 213 III:

so taken," held properly refused as being a

26, 72 N. E. 768. An instruction that in

request to instruct upon a part of the

timating the compensation for land actually

taken no deductions could be made because

views of the evidence which would warrant

of any benefits which would accure to land

not taken held not erroneous, other instrucu-

side Mfg. Co. v. Worcester, 186 Mass. 552,

tions clearly showing that benefits to land

72 N. E. 81.

not taken were properly to be considered on

the question of damages to land not taken.

Id. Where, in an action for damages for the

ings to condemn a right of way for a ditch

obstruction of ingress and egress, the court

in three instructions told the jury that they

could give damages only for the obstrucu-

age Dist., 213 Ill. 83, 72 N. E. 684. Where

tion of ingress and egress, an instruction

that the damages should be the difference in

struction authoring the jury to consider

the value of the property before and after

whether witnesses engaged in farming in

the obstruction held not erroneous.

Canden

The last in dispute have

Interstate R. Co. v. Smiley \[Ky.\] 84 S. W.

523. An erroneous instruction that the jury

should award compensation for all injury to

lands not taken which they might believe

from the evidence, or from their own obser

vation. would actually affect its value for

use or its market value, is not cured by

other instructions limiting the recovery to the difference in value of the land

before and after the construction of the

read. Illinois, etc., R. Co. v. Easterbrook, 211

Ill. 62, 72 N. E. 768.

Ill. 624, 71 N. E. 1116.

43. Where injury to land not taken is

held, an instruction that the jury should al-

low full compensation for such injuries to

land not taken as they might believe defend-

ant was entitled to, held objectionable as

the taking of a water power, a witness testified as to what it would cost to produce

not taken. Illinois, etc., R. Co. v. Easterbrook, 211

brook, 211 III. 624, 71 N. E. 1116. But both

Higham proceedings to charge the jury on

the theory that such fact has been proved,

conditions; held discretionary with the judge

neither can compelnian of the instruction.

chienza & M. Elec. R. Co. v. Diver, 213 III:

witness an opportunity to present another estimate.

44. In proceedings to recover damages for

the taking of water power, a requested in

struction that it was competent for the

jump "to ascertain what amount of money

invested at a reasonable rate of interest

would produce an annual income amounting

struction that measure of damages was

to the annual cost of replacing the amount

"fair cash market value" and the proof was

restricted to the fair cash market value.

steam or other power for the water power

chosen & M. Elec. R. Co. v. Diver, 213 III:

so 5 Cur. Law. Eminent Domain SS 16. .1131 ment for both may be rendered.\[52\] The judgment should simply adjudicate that the amount found due and assessed is a just compensation to be paid for the property taken.\[53\] A personal judgment against the taker should not be entered.\[54\] The owner being represented by an agent, it is immaterial whether the damages awarded for such land are allowed to the agent or owner.\[86\]

\_Sufficiency.\[56\]--\_The report should be certain and unambiguous.\[67\] An appellate court in passing upon this question may look into the entire record, and, if from other portions of the record any uncertainty as to amount in the verdict is rendered certain and specific, the judgment should be sustained.\[58\]

\_Effect or conclusiveness.\[69\]--\_The verdict is subject to review by the trial judge, and if he believes that it does not do justice to the parties, he should set it aside.\[60\] The judgment is not subject to collateral attack for irregularities in the proceedings.\[61\] A void decree may be set aside after the expiration of the term of court at which it was made.\[62\] In the District of Columbia when the property owner excepts to an order confirming the verdict of a jury of seven, the verdict is rendered void.\[63\]

In the absence of evidence to the contrary, after the lapse of a long period of time, facts will be presumed rendering the proceeding valid.\[64\] By dismissing his appeal and accepting compensation, one may become estopped to claim that the proceedings were irregular or void.\[65\]

\_Enforcement of judgment.--\_A statute requiring the payment of awards within a certain period stays the enforcement of the lion of a judgment upon an award for such period.\[66\]

52. Union R. Co. v. Raine \[Tenn.\] 86 S. \[ to admit testimony in a condemnation suit W. 857. \[ to examine damages to property does not authorize a subsequent action for recovery of such damages. Tenney v. Cincinnati 536, 75 P. 140. \[ to be a 55. Duncan v.

## 17 Costs and expenses

The right to costs is purely statutory.\[88\] The word "costs" as used in statutes on this subject includes the fees and mileage of jurors.\[89\] A statute making jury fees a part of the costs is constitutional.\[90\] As a general rule, one whose property is taken against his will in condemnation proceedings is entitled to recover his court costs if he prevails in the action,\[71\] otherwise not.\[72\] In some states by failing to tender the true value of the property before bringing suit, the taker incurs a liability for costs.\[73\] In New York, in condemnation proceedings under the rapid transit act, costs are not allowable to a property owner.\[74\]

## 18 Review of condemnation proceedings

Right to review.\[76\] A statute conferring the right of review whenever an "appeal" would formerly have been given uses appeal in the broad sense of review,\[77\] and this is the sense in which the word is often used in eminent domain.\[78\] The court will not review questions which have become moot by abandonment of the proceedings.\[79\] Payment of amount assessed and taking possession of premises does not estop petitioner from prosecuting an appeal from the award of damages.\[80\] A claimant by receiving that part of the award limitations. Yan Loan v. New York, 94 N. Laws 1894, p. 1873, c, 752, as amended by Y. S. 221, afg. 45 Misc. 482, 92 N. Y. S. 734. Laws 1895, p. 887, c, 519, are such as may be 67. See 3 C. L. 1205. Liability for costs on abandonment or dismissal of proceedings, and the statute gives no authority for allese ante, $, par. Discontinuinance or aban-loonment.

which it is conceded he is entitled to does not forfeit his right to appeal from a judgment awarding the balance to another claimant.\[81\]

_Saving questions for review.\[82\]_--Errors not fundamental cannot be first raised on appeal.\[83\] Thus that the award is erroneous will not be considered in the absence of exceptions,\[84\] and the party prosecuting the proceeding must abide by his assumption that it was necessary.\[85\] Error in that petitioner's representatives treated the jury to drinks and cigars is seasonally taken advantage of by objection to confirmation.\[86\] The sufficiency of particular objections\[87\] and exceptions\[88\] is shown in the notes.

_Mode of review.\[89\]_--In proceedings under eminent domain acts, there is no right to a writ of error unless expressly given by statute.\[90\] The validity of an order allowing an appeal from the award must be tried on certiorari or other direct proceedings.\[91\] In New York the act of the board of estimate and apportionment in directing the taking of land is not reviewable by certiorari,\[92\] though the contrary is true where the board of assessors holds that there has not been a former recovery by the claimant for the same damages.\[98\] One opposing the issuance of a writ of certiorari cannot assert the entire invalidity of the proceeding assailed, he having procured it.\[94\]

_Parties appellant and respondent.\[95\]_--The legal successor of an incorporate taker may prosecute the appeal\[96\] on showing that it is such.\[97\] That one of joint defendants may appeal who was allowed no damages, though the other recovered.\[98\]

\[Ind. App.\] 74 N. E. 531. Burns' Ann. St. 1901, 8160, Horner's Ann. St. 1901, 8397, \[MLch.\] 12 Det. Leg. N. 203, 103 N. W. 856, and Rev. St. 1881, 8 3907, construed. Cleve-Isard, etc., R. Co. v. Nowlin, 163 Ind. 497, 72 N. 257. 81. Clity of St. Louis v. Nelson, 108 Mo. Appl. 210, 83 S. W. 271. 82. See 3 C. L. 1205. See, also, Saving Questions for Review, 4 C. L. 1368. 83. Alleged defect in showing made by plaintiff cannot be taken advantage of for the first time on appeal. New York, etc., R. Co. v. O'Dield \[Conn. J. 60 A. 740. Where apparent owner appeared at helping and agent of real owner also appeared, though not as agent, held, objection that notice of intention of common council to acquire the premises by condemnation proceedings was prematurely given cannot be made for the first time on appeal. In re City of Rochester, 103 App. Div. 181, 92 N. Y. S. 405. 84. That no allowance for certain damages was not made will not be considered on appeal in the absence of an exception to the verdict on that ground. Village of Royal Oak v. Detroit, etc., R. Co. \[Mich.\] 101 N. W. 855. The taker failing to make any objections or save any exceptions to the instructions and not filing a motion for a new trial, it cannot claim on appeal that the damages were excessive. St. Louis & S. F. R. Co. v. Fayetteville \[Ark.\] 87 S. W. 1174. 85. After a county board has established a highway by ordinary condemation proceedings, in which the landowner has been allowed damages, it cannot upon the landowner's appealing from the award defeat recovery by showing a previous congressional grant of a highway over the same route, and an acceptance of such grant by the state legislature. Howard v. Hooker \[Kan.\] 78 P. 847. 86. Detroit, etc., R. Co. v. Campbell 1901, 8160, Horner's Ann. St. 1901, 8397, \[MLch.\] 12 Det. Leg. N. 203, 103 N. W. 856. 87. Where the only objection relating to the apportionment of the cost of street widening proceedings was that the improvement was a public one and a public benefit, such objection is insufficient to raise the question that the statute prohibiting a review on error or appeal applies only to special assessments proper and not to condemnation proceedings. West Chicago Masonic Ass'n v. Chicago, 215 Ill. 278, 74 N. E. 159. 88. An exception to an appraisement to the effect that the award was erroneous, in that the valuation fixed was too small, and should have been a specified sum, instead of the sum awarded, held sufficient. Richland School Tp. v. Overmyer \[Ind.\] 73 N. E. 811. 83. See 1 C. L. 1034. 90. Sweeney v. Chicago Tel. Co., 212 Ill. 475, 72 N. E. 677. Under Hurd's Rev. St. 1899, p. 837, 5, 47, proceedings can only be reviewed by appeal. Id. 91. Cannot be questioned on a rule to show cause after trial on the appeal. Murray v. Newark \[N. J. Law\] 60 A. 38. 92. Laws 1901, p. 405, c. 466, $ 970 and Code Clv. Proc. $ 2120, construed. People v. McClellan, 94 N. Y. S. 1107. 93. Board of assessors, in assessing damages for change in the grade of a street under Laws 1134. EMINENT DOMAIN SS 18. 5 Cur. Law.

_Decisions reviewable._\[99\]--The determination of preliminary questions\[1\] and an order of partial confirmation\[2\] are reviewable by statute in some states. The necessity for a motion for a new trial in order to secure an appeal is largely statutory.\[3\]

_Jurisdiction of appeal._--All proceedings which are appellate must rest on a jurisdiction perfected below.\[4\] For the purpose of conferring jurisdiction on appeal, condemnation proceedings in which it is sought to take real estate involve the title to land.\[5\]

\_Taking and perfecting an appeal.\[6\]--The appeal must be taken within the statutory time, and in Ohio, on an appeal from the determination of the probate judge on the preliminary questions, the time within which the bill of exceptions must be filed should be computed from the day on which the questions are determined, no motion for a new trial being filed, or, if such a motion is filed, from the day it is overruled,\[7\] and the time within which a petition in error must be filed is to be computed from the date of the final judgment either dismissing the petition or confirming the verdict of the jury.\[8\] In Iowa jurisdiction of an appeal from an award of a shelf's jury is conferred by service of notice on the adverse party and the sheriff; and the filing of the transcript and payment of docket fees is not necessary to this end.\[9\] The affidavit of a landowner must show his interest in the proceeding.\[10\] In Indiana the filing of exceptions will be treated as an appeal from the award.\[11\]

In order to have a joint appeal, the award must be joint.\[12\] The interests of a landowner and his tenant are not joint.\[13\]

_Defective or tardy proceedings; dismissals; amendments._--Where the transcript is necessary only for the purpose of furnishing the data for the docketing of the case, or to show the trial court what is in issue, appellant's failure to file the same until the case is reached for trial is not a fatal defect,14 nor is the failure of appellant to pay the docket fee ground for dismissal.15 Such defects cannot be raised by answer.16 In New York the notice of a motion to quash a writ of certiorari to review the act of the board of estimate and apportionment in directing the taking of land may be signed by the corporation as such.17 ,

_Record.18--Interlocutory motions become a part of the record only by being preserved in the bill of exceptions.19 In some states an appeal bond and partial transcript being filed within the statutory time, it is proper for the court to allow appellant to perfect his appeal after the expiration of such time.20_

\_Hearing and scope of review.21--Review proper is confined to the questions raised below,22 and properly saved.23 Errors not complained of may be disregarded.24 Questions raised over the introduction of evidence cannot ordinarily be considered on appeal,28 though evidence clearly improper may cause a reversal of confirmation, should it appear that it caused a substantial error on the part of the jury.28 The award being fully sustained by the evidence, it will not be disturbed because of the incompetency of one witness.27 The report of the commissioners is presumptively correct.28 It may be set aside for an insufficient award,29 or for errors occurring in the examination of witnesses.29 but it will not be disturbed as excessive, where it is less than half what it might have been under the evidence.31 The appellate court will not review findings of fact further than to see that the finding is supported by the evidence,32 and an award on conflicting evidence,33 especially where the premises

fusa1 to agree to the rendition of separate verdricts and findings in each case. Id. Co., Vllis \[Ky.\] 87 S, W. 310.

\*\*14. Simons v. Mason City & Ft. D. R. Co. \[Iowa\] 103 N. W. 129. Under Code, SS 3660, 4559, the district court has discretion to re-fuse to grant a motion to dismiss and affirm an appeal from an award for appellant's failure to promptly file transcript and pay the docket fee, on a proper showing of an excuse, which discretion will not be interfered with on appeal. Id. Where notice of appeal had been served on the adverse party and the sheeriff, and the case was properly put on the docket, the appeal will not be dismissed or judgment affirmed for appellants failure to file a transcript before trial or to pay the docket fee. Id. A motion to dismiss the appeal will be denied where appelle failed to make the motion until three days after the first day of the second term after the appeal was taken, and appellant paid the docket fee and filed a transcript before the motions were ruled on. Code, SS 3660, 4559, considered. Id.

**15. Appeal from the award. Code, SS 4559 considered. Simons v. Mason City & Ft. D. R. Co. \[Iowa\] 103 N. W. 129.**

**16. Simons v. Mason City & Ft. D. R. Co. \[Iowa\] 103 N. W. 129. Striking of answer held not prejudical. Id.**

**17. People v. McClellan, 94 N. Y. S. 1107.**

**18. See 3 C. L. 1206.**

**19. So held as regards a motion to quash the proceedings. City of Tarkio v. Clark, 186 Mo. 285, 85 S. W. 322.**

\*\*20. Under Ky. St. 1903, \*\*SS 839, 840, and Civ. Code Proc. & 134, where an appeal bond and partial transcript were filed within the 30 days, it was proper for the circuit court to permit appellant to file a full statement of the parties and a full transcript of the 1136 Eminent Domain SS 18: 5 Cur. Law. were viewed," will not be disturbed unless it clearly appears that, by proceeding on an erroneous principle, injustice has been done."

_Decision and determination._"--The condemner entering into possession pending the proceedings, the appellate court, on ascertaining that the action cannot be maintained, will order restitution to the landowner of the possession of the premises, and remand the case, with leave to owner to sue out a writ of possession, and a direction to dismiss the action with costs, after the effectuation of such restitution." The taker only appealing from one award, the appellate court on dismissing the appeal and affirming the judgment should not direct the entry of judgment against the petitioner and the surety upon its appeal bond, in favor of the other defendants." Where the appellant has only given an appeal bond, the appellate court on entering a judgment of affirmance should only enter judgment for the costs of the appeal." The report being ambiguous, it may be remanded for explanation;" and the words "consequential damages" are ambiguous within this rule. The proceedings being regular except that the jurors were not freeholders, the cause will be remanded." In New York there being an irregularity or error of law, the report should be set aside and not remanded to the commissioners for correction." In Ohio if the court of common pleas reverses the judgment of the probate court for error in the determination of either of the preliminary questions, it should retain the case and hear and determine such questions de novo; and it is clearly error for it to determine them upon the evidence in the record of the hearing before the probate judge, unless the parties see proper so to submit them." If the taker appeals it is not necessary under the Iowa code for the landowner to appeal in order that he may procure larger damages." Upon remanding the proceedings it is proper for the appellate court to tax the costs of that court only, and allow the lower court to tax the costs therein after a final disposition of the proceedings."

34. Hall v. State, 93 N. Y. S. 356; In re City of New York, 94 N. Y. S. 146. 35. In re Board of Public Innovrements, 99 App. Div. 576, 91 N. Y. S. 161; In re City of New York, 94 N. Y. S. 146. 35. 36. 37. 38. 39. 38. 39. 39. 39. 39. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 43. 45. 47. 49. 42. 46. 48. 49. 43. 48. 49. 44. 45. 46. 47. 48. 49. 45. 47. 49. 48. 49. 49. 40. 41. 42. 43. 44. 46. 48. 49. 41. 45. 47. 49. 48. 49. 49. 40. 41. 43. 44. 49. 42. 45. 46. 47. 48. 49. 49. 41. 42. 43. 44. 45. 46. 47. 48. 49. 49. 40. 41. 44. 48. 49. 42. 45. 46. 47. 49. 48. 49. 49. 40. 41. 44. 49. 42. 45. 46. 47. 48. 49. 49. 41. 42. 43. 44. 45. 46. 47. 48. 49. 49. 42. 46. 48. 49. 43. 44. 49. 45. 47. 49. 48. 49. 49. 49. 40. 41. 44. 49. 42. 45. 46. 47. 49. 48. 49. 49. 49. 40. 41. 44. 49. 42. 45. 46. 47. 49. 48. 49. 49. 49. 41. 44. 49. 42. 45. 46. 47. 49. 48. 49. 49. 49. 40. 41. 44. 49. 42. 45. 46. 47. 49. 48. 49. 49. 49. 41. 44. 49. 42. 45. 46. 47. 49. 48. 49. 49. 49. 49. 49. 40. 41. 44. 49. 42. 45. 46. 47. 49. 48. 49. 49. 49. 49. 49. 41. 44. 49. 42. 45. 46. 47. 49. 48. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49. 49
    VOL V. NO. 5. CURRENT LAW, JANUARY, 1906. 1137 (Copyright, 1906, by Keefe-Davidson Company.)

**EMINENT DOMAIN--Con't.**

SS 19. \_Remedy of owner by action or suit. A. Actions for tort, damages or trespass; recovery of property.${}^{46}$--A possessory action does not ordinarily lie where the owner has acquiesed in the construction of a railroad or other works over his land;${}^{47}$ but may lie where the effect of the judgment is so limited as to allow the making of compensation before being executed.${}^{48}$ The possessory action not being allowed, the owner's remedy is limited to an action for damages,${}^{49}$ and this right of action belongs to him personally and does not run with the land.${}^{50}$ The right of action for damages for the appropriation of land by a railroad accrues when the railroad is located.${}^{51}$ The act of location of a railroad is the selection and adoption of a line by the board of directors of the company.${}^{52}$ Only a person showing an interest in the abutting property has a right to sue for damages thereto, by reason of unwarranted servitudes imposed upon the way contiguous thereto.${}^{53}$ Where the property is in the hands of a tenant, the reversioner may recover his damages.${}^{54}$ All damages present and prospective must be sued for in one action and additional damages cannot be made the subject of a subsequent suit.${}^{55}$ The fact that the property might have been condemned is no excuse for an unlawful taking,${}^{50}$ and the payment of a judgment in an action for trespass is not a payment for appropriation so as to bar subsequent actions for the continuance of the nuisance.${}^{67}$ That the taker defaults does not deprive him of his right to have his damages assessed according to the rule applicable to condemation proceedings rather than according to trespass.${}^{68}$

_Prohibition_ is not the proper remedy for relief from an ordinance attempting to take private property for a public use without compensation.${}^{59}$

_Pleading.${}^{60}$--A complaint in an action for the obstruction of a public highway which became such more than 30 years before the alleged obstruction need not allege how the highway came into existence as such,${}^{61}$ and the same is true in an action for the obstruction of a private way, the complaint alleging that for more than 30 years plaintiff has been in the continuous and uninterrupted enjoyment of the way.${}^{68}$_

_Appeal.${}^{68}$--In determining the question of appellate jurisdiction, an action for damages for delay in bringing a condemation proceeding to trial and for delay in_

46. See 3 C. L. 1206. 47. Kakekdy v. Columbia & P. S. R. Co., 37 (Injunction) New York v. Pine, 185 U. S. 93, 781. 575, 80 P. 205. 46 Law. Ed. 820. (Ejectment) Pittsburg, V. 40. 119 A. 47, 17 (Injunction) This is no doubt about the propo-sition that private property being taken for a public use without the knowledge, consent or acquiescence of the owner, the lat-ter may maintain an action for the recovery thereof. Green v. Tacoma, 51 F. 622; Jacksonville, etc., R. Co. v. Adams, 271 Eq. 443, 90 So. 2; Grashman v. Columbus & L. C. R. Co., 27 Trad. 260, 89 Am. Dec. 498. The courts are divided upon the proposition as to whethth. 5, 158 U. S. 1, 39 Law. Ed. 873; Merc. or not an owner of land who stands by 681; Chicago, B. & Q. R. Co. v. Englehart. ment constructed thereon is stepped to 67 (The master maintain an action in element or a suit in equity. The following cases hold that he is: Trenton Banking Co. v. Meckel. way, 8 N. J. Ego. (4 (Hankl), 84; Kakekdy v. 87, 68. 50) Columbia & P. S. R. Co., 37 Wash. 67, 80 P. 206, citing Roberts, Northern Pac. R. Co., 158 U. S. 1, 39 Law. Ed. 873: McAulay V. 1, 38 (Injunction) New York v. Columbus & P. S. R. Co., 37 Wash. 675, 80 P. 205. 46 Law. Ed. 820. (Ejectment) Pittsburg, V. 40. 119 A. 47, 17 (Injunction) New York v. Chicago, 64, 77 N. W. 1092; Maftet v. Quine, 93 F. 847; N. P. R. Co. v. Murray \[C. C. A.\] 87 F. 648. 48. 48. 48. 49. 51. 65. 66. 77. 68. 78. 79. 80. 49. 40. 41. 4 dismissing it after judgment is one involving the taking of private property for a public use.64

(SS 19) \_B. Suits in equity; injunction65--\_While, as before stated, equity has no jurisdiction of condemnation proceedings,76 it has jurisdiction to prevent the construction of a work of internal improvement, where it would work such injury to private property, not actually taken, as virtually destroys its value, until compensation for the injury is paid or secured to be paid,77 and in such case an issue out of chancery will be directed to ascertain the amount of compensation.68 In the absence of a statutory remedy, equity may restrain a corporation from taking property for a private use,79 or under invalid condemnation proceedings.70 An injunction will not issue where there is an adequate remedy at law,71 nor will the condemnation proceedings be enjoined pending the settlement of a controversy respecting the title to the property.72 In the absence of damage, an injunction pendente like will not be continued.73 In a suit to enjoin condemnation proceedings, the fact that the party whose land it is proposed to take is not given personal notice of the bill authorizing such condemnation is immaterial.74 An injunction suit against trespass is no impediment or bar to subsequent expropriation proceedings or to the exercise of rights of property acquired thereunder.75

\_Parties.76--\_A county which has condemned property is the real party in interest in a suit to enjoin a contractor under it from entering upon and making use of the property in the construction of a public work, and is entitled to defend such suit.77

\_Pleadings.76--\_It appearing that plaintiff is entitled to damages if the allegations in the petition are true, the court, after the dissolution of the preliminary injunction, may permit the amendment of the petition so as to pay for damages.78

\_Decree, judgment or order.86--\_The court having jurisdiction of the suit, it will do complete justice by awarding an issue of damages.87

SS 20. \_Payment and distribution of sum awarded; title or interest requiring compensation.87--\_An award made for lands is personal property.88 Receipt of the compensation allowed estops the landowner to claim the land appropriated,84 and he cannot without the consent of the taker return the money and avoid the, esoppel.88 The taker is discharged from liability upon making compensation, in good faith and pursuant to a judgment of the court, to the person in possession, and who is the apparent sole owner of the land.\*\* In Ohio payment of costs and damages arising from the establishment of a county road should be made to the county treasurer.\[87\] Statutory requirements must be followed.\[88\] The landowner, retaining possession, is not entitled to interest on the award from the date of the service of the summons to verdict, less rents and other benefits of possession received by him during that period.\[89\] An incumbrancer is entitled to interest on his debt pending an appeal.\[90\]\_Sufficiency of payment.\[91\]--The owner is entitled to payment in money and cannot be compelled to accept any other kind of property in lieu thereof.\[92\]\_Distribution.\[93\]--The rights of various parties to compensation is fixed at the date of the taking,\[94\] though in some states as to subsequent purchasers the proceedings operate as his pendens.\[95\] The courts are not agreed as to the distribution of the award when mortgaged premises are taken. Some hold that the mortgagee is entitled to the fund;\[96\] others that the mortgagor has the right thereto.\[97\] The matter is now largely regulated by statute. A mortgagee is an "owner" within the meaning of statutes on this subject,\[98\] and a third mortgage is a "mortgagee," as that word is here used.\[99\] In those states where it is held that the award belongs to the mortgagor, the mortgage can in equity follow the land taken, and subject the fund to a lien for the payment of the mortgage debt due him.\[1\] Where part of a tract of mortgaged land is taken, nothing remains subject to the mortgage except the land not taken, and that only can be sold on a foreclosure of the mortgage;\[2\] and the right of the mortgage to reach the compensation fund is an equitable right distinct from his rights

74. Riley v. Charleston Union Station Co. \[S. C.\] 51 S. E. 485.

01. Xavier Beatly v. Louisiana R. & Nav. \[Utah, 311, 78 P. 800. Railroad establishing Co. \[La.\] 38 S. 427.

01. See 1 C. L. 1043.

01. Johnston v. O'Rourke & Co. \[Tex. Civ. App.\] 86 S. W. 501.

01. See 1 C. L. 1043.

01. Camden Interstate R. Co. v. Smiley \[KY.\] 84 S. W. 523.

01. See 3 C. L. 1208.

01. In an action to restrain a city from grading a street, plaintiff being granted a jury trial, the jury may render a verdict for plaintiff's damages. Swope v. Seattle, 36 Wash. 113, 78 P. 607.

01. See 3 C. L. 1208.

01. Van Loan v. New York, 94 N. Y. S. 221, afg. 45 Misc. 428, 92 N. Y. S. 734.

01. SS: Brooks, Neely & Co. v. Yell County \[Ark.\] 88 S. W. 590.

01. Where land was taken by county, held county authorities need not ascertain the construction or validity of a hill. Cedar County v. Lammers \[Neb.\] 103 N. W. 433.

01. And not directly to the claimants. Cincinnati, etc. R. Co. v. Brossia, 5 Ohio C. C. (N. E.) 505.

01. California: Pol. Code, $ 4145, providing that the county treasurer shall not receive money into the treasurer unless accompanied by a certificate of the auditor, has no application to money paid in, under $ 2689, as damages for laying out a private road. Mariposa County v. Knowles, 146 Cal. 1, 79 P. 525.

01. Rev. St. Utah 1898, $ 3599, 3601, 8603, 3864, considered. Oregon Short Line R. Co. v. Jones \[Utah\] 80 P. 732.

01. Kansas City Charter, art. 10, $ 18, providing that in case of appeal the judgment shall stand suspended and no interest shall be allowed until the appeal is disposed of, does not affect the rule. Kansas City v. North America Trust Co., 110 Mo. App. 647, 85 S. W. 681.

1140

Eminent domain SS 21.

5 Cur. Law.

under the mortgage on the remaining land.\[3\] A mortgage being entitled to the money may establish his claim by a bill in equity\[4\] and to such a suit the mortgagor is a necessary party.\[5\] Where mortgaged property is damaged, the payment of the mortgage should be apportioned between the land and the compensation fund.\[5\] Equity has jurisdiction to adjust the equitable rights existing between the various mortgages where the mortgage debts are secured by liens on other funds.\[7\] A sum paid the owner and mortgagor in consideration of his withdrawing his opposition to the condemnation proceedings is no part of the award.\[8\] The award being paid into court, it stands in the place of the land condemned, and the lien or incumbrances on the land are transferred to the fund thus held in the order of priority that they were held on the land before it was taken.\[9\] In New York an award made for really takes the place of the land and remains subject to judgment liens to which the land was subject,\[10\] and hence is payable to a receiver appointed in supplementary proceedings on a judgment against the owner of the land.\[11\] Where a part of a lot subject to an irredeemable ground rent under a lease renewable forever is condemned, the fact that the portion not taken is sufficient security for the rent charge does not deprive the owner of the ground rent of the right to compensation,\[12\] and the rent may be apportioned when necessary to do full justice to all the parties.\[13\] A lessor becoming the owner of improvements is entitled to a fund awarded for damages thereto.\[14\] The eminent domain court has jurisdiction to determine the amount of attorney's fees to be allowed an executrix who is a party to the proceeding.\[15\]

_Lien and enforcement.\[16\]--A claim for damages caused by the location of railroad tracks in a street is a lien upon the corpus of the railroad, superior either to a prior or subsequent mortgage, and cannot be defeated by a sale of the road, unless the lienholder is made a party to the foreclosure proceeding.\[17\]_

SS 21.

_Ownership or interest acquired.\[18\]--The quantity of land\[19\] and the interest therein\[20\] which can be taken, are limited by the necessities of the public usc, and_

In the ground or improvements ought to be and the amount of compensation found due compensated.\[7\] Clity of Hagerstown v. Groh \[Md.\] 61 A. 467.

**90.**: Within St. 1894, p. 764, e. 548, $ 8, providing for the compensation of mortgages having an estate in premises abutting on property taken for or injured by an elevated railway. Bates v. Boston El. R. Co., 187 Mass. 28, 72 N. E. 1017.

**8.**: Where In consideration of one owner withdrawing his opposition to the condemnation of land, the other property owners gur-anteed that his award should equal $4.000, exclusive of benefits, held, that the fund arising thereunder belonged to $t^{-}$m rather than to a mortgage of the land. Bolton v. \[8\] Seemens's Bank for Sav., 99 App. Div. 581, 91 N. Y. S. 122.

In the compensation fund, the right to reclaim which was entirely distinct from the right to reclaim the land itself. Id.

**4.**: Clity of Hagerstown v. Groh \[Md.\] 61 A. 467.

**5.**: City of Hagerstown v. Groh \[Md.\] 61 A. 467. Especially where the state of the mortgage${}^{\*}$ claim depends upon the state of accounts between him and the mortgagor. Id.

**6.**: Where land subject to first, second and third mortgage was damaged by the contraction of an elevated railway, and, the second mortgage being foreclosed and satisfied by a sale of the property, compensation was obtained for the damage done, the burden of satisfying the first mortgages should be apportioned between the land and the compensation fund, proportionally to the value of the land, subject to the injury done by the elevated railway, free of Inceumbrances 5 Cur. Law. Eminent Domain SS 21. 1141

by the terms of the enabling act. \[21\] As a general rule, under a general power of condemnation, corporations are authorized to take only such rights as are necessary. \[22\] What amount of land is necessary is a question for the jury. \[28\] The property or interest acquired may also be limited by the instrument of taking \[24\] or by the terms of the award. \[25\] The mortgage lien of one not a party to the proceedings is not affected thereby. \[26\] Former trespasses are not merged in the expropriation proceedings. \[27\] The judgment in the proceedings and not the petition determines the amount that can be taken; \[28\] but the rights and interests of parties date from the time of the filing of the petition and subsequent dedications are subject to it. \[29\] The record of the condemnation proceedings as to what the assessment was intended to cover cannot be altered or varied by parol. \[30\]

17. Kentucky & K. Bridge & R. Co. v. of 1903 (P. L. p. 657), authorizes railroad Clemmons \[Ky.\] 85. W. 1125, 18. See S. C. L. 1193, 1209. \[30\] Soentent Pac. R. Co. v. San Francisco & Sav. Union. Id. Cat. 290, 79 P. 61; Hellen v. the construction of tunnels as may be necessary for the accomplishment of their purposes. McGrawan v. Pennsylvania, etc., R. Co. Sav. Union. Id. Cat. 290, 79 P. 61; Newton & J. Lowy 60 A. 1180. The Eminent Do-v. Newton (Mass.) 74 T. E. 846; Hellen v. main Act of 1900 (P. L. p. 79) is applicable to Medford (Mass.) 73 N. E. 1070; Mott v. Eno. the condemnation of rights and easemments 181 N. X. 346, 74 N. E. 229, rvg. 97 App. Div. \[30\] under the section above mentioned. Id. \[31\] S80, 90 N. Y. S. 608; Brown v. Asheville Elec. \[32\] NOTE. New Jersey rule: The principle Light Co. \[N. C\] 51 S. E. 62. An electric light or street railway company appropriate. \[33\] by the judgment in the case of Currie v. Ing any of the reserved rights of abutting owners must compensate themofter. Id. \[34\] Notes standing on the edge of a sidewalk and not interfering with the use thereof cannot be cut down without compensating the abutting owners. Id. An easemient being all that is necessary to carry out the provisions of St. 1898, p. 37, 65, 11 will be presumed that an easemient only was intended to be taken. Newton (Mass.) 74 N. E. 846. railroad company is only entitled to acquire an easemient. Southern Pac. R. Co. v. San Francisco Sav. Union, 146 Cal. 290, 79 P. 661; A city condemning a street across railroad tracks acquires a mere right of way. St. Louis & S. F. R. Co. v. Fayetville \[Ark.\] 87 S. W. 1174. \[35\] M. Ott, Eno. 181 N. Y. 346, 74 N. E. 229, rvs. 97 App. Div. 580, 90 N. Y. S. 608. Laws 1847, p. 196, 203 was imperative in approximating the lands it describes for the city streets, and, necessarily, used the city with the fee, leaving those persons, who had title to the same or Interests therein, to re-cover compensation therefrom from the city in ways provided by law. Id. Under Act April 9, 1867 (P. L. 51), authorizing school directors to occupy sufficient ground for the erection of school buildings, the title acquired by the school district is merely a right to use and occupy the land condemned. Lazarus v. Morris \[Pa.\] 61 A. 818. Park commissions taking land under 188. E. 111, c. 154, 8 3, the city becomes vested with the fee. Hellen v. Medford \[Mass.\] 73 N. E. 1070. A city cannot, by encroaching on abutting property in improving a street under an ordinance authorizing such improvement by grading, and not authorizing the widening of the street, acquire any title to such property. \[36\] Davis v. Silverton \[Or.\] 82 P. 16. \[37\] 22. In the absence of express language to that effect, a statute does not authorize the taking of a fee, but only the right to use and occupy the land for the purpose for which it is taken. Lazarus v. Morris \[Pa.\] 61 A. 815. Section 1 of acts of 1902 (P. L. p. 214), now 83 of the Revised Railroad Act 1142

Eminent DOMAIN SS 22. 5 Cur. Law.

**SS 22.**_Transfer of possession and passing of title._"1--In most states, except where the land is taken by the state,\[92\] the payment or tender of the award\[33\] or the giving of security for such payment\[34\] is made a condition precedent to the taking of possession by the taker, unless the use is temporary and of uncertain duration and the extent and character of the injuries which may result are consequently uncertain.\[38\] In some states the rule is limited to property actually taken." This requirement may be waived by the owner," but such waiver does not deprive him of his right to compensation.\[38\] In construing statutes on this subject a county is a "municipal corporation,"\[39\] and the condemnation of land for a county road is a condemnation by the state.\[40\] A requirement for adequate security will be satisfied if the security which it is proposed to give makes it reasonably certain that compensation will in due time be made.\[41\] The property owner refusing the award, it is usually provided by statute that upon the payment into court of a certain sum, usually the amount of the award and costs, possession may be awarded the petitioner,"\[42\] even though an appeal be pending;"\[43\] but such statutory provisions must be strictly complied with.\[44\] If the proceeding is removed from a state to a Federal court and a writ of error is prosecuted, any supersedeas should be modified so that the petitioner shall have the same rights which he would have had if the proceedings had remained in the state court.\[45\] A decree of condemnation vesting title to the land on payment of the award, it is im 5 Cur. Law. Eminent DOMAIN SS 23. 1145

material that a quitclaim deed also given is void.46 A railroad company is not entitled to compensation for improvements made by it on property upon which it has entered, pending the condemnation proceedings, upon reversal of the final judgment in its favor, subsequently obtained in the action and adjudiating against its right to condemn the land.47 The court failing to award writs of possession at the term at which the decree was entered, it can issue such writs at a subsequent term,48 and the lower court having lost the power by lapse of time, the appellate court will issue such writs, or remand the cause to the court below for that purpose.49

SS 23. _Belinquishment or abandonment of rights acquired.50_--Except where the appropriator has.a fee, property taken for a public use reverts to the owner on abandonment.51 The fee to land being taken, a statute providing that abandonment shall reveal title in the person from whom the land was taken is unconstitutional as depriving one of a vested right.52 An abandonment of land cannot be established by proof merely of a failure for the time to use it, or of a temporary use of it not inconsistent with an intention to use it for the purpose for which it was taken, or another public purpose.53 An averment of an actual abandonment of any intent to use the land for any public purpose is a sufficiently well pleaded abandonment.54

Employer's LIABILITY; ENTRY, WBIT or; Equitable Assignments; Equitable Attach. MENT; Equitable DEFENSES, see latest topical index.

fits. Lincoln County v. Brock, 37 Wash. 14. 79 P. 477. 40. Morgan v. Oliver \[Tex.\] SS 2 S. W. 1028. 41. 835. 835.

## 8. 1. Nature of, and General Principles Controlling, Equity (1144)

### 8. 2. Equity Jurisdiction and Oceans for Relief (1144)

A. In General (1144)

B. Maximas and Principles Controlling the Application of Equitable Relief. General Maximas (1146)

E.istence of an Adequate Remedy at Law (1148)

Long Complete Jussite (1151)

Multiplicity of Suits (1151)

C. Oceans for, and Subjects of, Equitable Relief (1151)

(1172)

Involuntary Dismissal (1173)

Effect (1174)

Vacation of Order (1174)

C. Amended and Supplemental Bills, \*\*8.1.

5 Cur. Law. EQUITY SS 2A. 1145 determined from the allegations of the bill.14 Service out of the state by copy of the bill and notice gives the court jurisdiction so far as property within the state is sought to be effected.18

A law action may be converted into an equitable one by amending the complaint so as to ask for equitable relief,16 or by interpleading proceedings.17 In states and courts retaining the distinction between equity and law courts, an equitable defense cannot be interposed in an action brought on the law side of the court;18 but this is not the rule where the mixed system of jurisprudence prevails.19 A bill showing want of equity, the defect may be cured by the filing of a cross bill.20

The court may, on its own motion, dismiss for want of jurisdiction,21 or the defendant may raise the question by answer 22 or plea,23 and in the latter case the merits cannot be gone into further than is necessary to determine the question of jurisdiction.24 Where courts of equity have concurrent jurisdiction with law courts, it is in the sound discretion of the chancellor whether he will assume jurisdiction in a particular case.25 Courts of equity, having once acquired jurisdiction, never lose it because jurisdiction of the same matter is given to courts of law, unless the statute conferring such jurisdiction uses restrictive or prohibitory words.26

Footnote 24: The author is grateful to the author.

Footnote 25: The author is grateful to the author.

Footnote 26: Johnson v. Block, 163 Va, 477, 49 S. E.

Footnote 27: See S C. L. 1211.

Footnote 37: See S C. L. 1211.

Footnote 38: The author is grateful to the author.

Footnote 39: The author is grateful to the author.

legal and equitable. principles is still retained,28 and the question whether an action is legal or equitable raises only a question of practice,29 and equitable defenses and counterclaims may be interposed in an action at law.30 In some states the use of such a defense is not permitted for the purpose of obtaining affirmative relief.31

(SS 2) \_B. Maxims and principles controlling the application of equitable relief. General maxims.32--He who comes into equity must come with clean hands;33 but this maxim requires only that the plaintiff be not guilty of reprehensible conduct with respect to the subject-matter of his suit.34 It has been applied to the right to interpose a defense.36

Equity aids the vigilant and not those who sleep upon their rights,36 and this applies not only to the operation of statutes, but to the action of suitors in the conduct of their causes.37

He who seeks the aid of equity must do equity.38 This maxim only applies a jury in a court of law. Van Houten v. Van Houten \[N. J. Eq. 159 A. 555.

to the vendor, without consideration, and 28. Thompson v. Hardy \[S. D.\] 102 N. W.

merely to avoid the payment of a possible liability, held, equity would not deereere a re-conveyance. Massi v. Lavine \[Mich.\] 102 N. N. W. 909.

No. Crosby v. Scott-Graft Lumber Co., 93 Minn. 475, 101 N. W. 610. In such cases the legal issues are tiable by a jury, the equitable ones by the court, and the order of the trial is a matter of discretion with the court, to be determined by the exigencies. Id. Where equity is administered through the medium of legal forms, any defense to an action on a specialty, which would be good in a court of equity, may be shown. Another v. Hughes, 209 Pa. 156, 58 A. 289.

31. The answer setting up an equitable \_s_efense but asking no affirmative relief, the case is at law. So held in an action of element where the land involved, which plaintiff claimed under an execution sale, was the corpus of a spendthrit trust in which the judgment debtor had been the beneficiary. Kessner v. Phillips \[Mo.\] 88 S. W. 66.

01. See 3 C. L. 1212.

01. Where purchaser made false representations, held, contract of sale would not be specifically enforced. Miller v. Fulmer, 25 Pa. Super. Ct. 106. Where one has, contrary to the statute, tapped telegraph wires, he cannot come into equity and obtain relief with respect to telegraph service previously furnished by means of such wires. Sullivan v, Chicago Board of Trade, 111 III. App. 492. One who has been guilty of unfair competition or has made false statements on the label on his goods is not entitled to have the use of 'his trade-mark by another restrained. Sartor v. Schaden, 125 Iowa, 696, 101 N. W. 511. Where plaintiff elected defendant from the latter's position in line at a public sale, held, he could not bring the action to establish his prior right, defendant having procured the filling of his application prior to plaintiff. Cobb v. Gooden \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 682, 88 S. W. 401. Equity will not entertain a suit by either party to an illegal agreement against the other, where the contract is one against pub-lic policy, whether executed or exucutory. So held where agent refused to account to principal, both being engaged in loaning money at usualrous rates. Woodson v. Hopkins \[Miss.\] 37 S. 1000. Where a business man conveyed land worth $2,500 to another * 5 Cur. Law. EQUITY SS 2B. where the relief sought by the plaintiff and the right demanded by the defendant belong to or grow out of the same transaction,29 and it is essential that the equity which the plaintiff is required to perform be pointed out.40 From the maxim it follows that a court of equity may condition its grant of relief to those who seek its aid by requiring that they shall do equity to their opponents, although the latter have been barred by limitation or by laches from successfully seeking that equity by an independent suit.41 Equity looks to the intent of the parties rather than to the form of their transactions.42 Where equities are equal in other respects the first in order of time shall prevail.43 Where equities are equal the law must prevail.44 An injury which the written law renders a nonactionable wrong, or not a wrong at all, is not within the maxim that equity will not suffer a wrong without a remedy.45 Equity acts in personam and not in rem, hence a court of equity having acquired jurisdiction over the person of the defendant, it has jurisdiction to enter any decree which may concern or affect lands situated in a foreign state to the same extent and as fully as though these were situated within the state of the forum.46 This maxim has been limited in some states by statutes requiring the suit to be brought in the county where the land is situated.47 In equity there is a group of principles which,' while not included in the maxims, may, because of their long usage, be said to have the force of maxims; price, the heirs of the wife should not be permitted to recover without first offering to make restitution to the purchaser or his assigns. Luria v. Cote Blanche Co. \[La.\] 38 So. 279. Maker of a deed of trust cannot enjoin a sale thereunder on the ground that the property sought to be sold was not covered thereby, he having disposed of the property mortgased, unless he offers to make good the amount disposed of by him. Sullivan v. Bailey, 21 App. D. C. 100. The partner of a judgment debor holding money be-longing in the execution creditors must pay interest thereon. Weber v. Zacharias, 105 III. App. 640. A contract made without fraud or mistake may not be modified by a court of equity, to give either party a better bargain, while he retains all the benefits of the original trade. Rule applied to a family settlement. Burnes v. Burnes \[C. C. A.\] 137 F. 781. Reld error to dismiss for want of equity a bill to cancel a bond and mortgage given to a foreign building and loan association doing business in the state without having complied with Code 1896, 6 1316. Hanchey v. Southern Home Bldg. & Loan Ass. 140 Ala. 245. 37 So. 279. In a suit by a city to enjoin a judgment on warrants, one of the warrants being confessedly valid and the paye in another being entitled to a warrant, the failure of the city to tender the just amounts due or the warrant to which defendant was confessedly entitled, violates the maxim that he who seeks equity must do equity. City of Ft. Pierre v. Hall \[S. D.\] 104 N. W. 470. 380. Does not apply where the demand of the defendant is based upon a contract separate and distinct from that which forms the subject of the plaintiff's action. Mercantile Trust Co. v. Hensey, 21 App. D. C. 38. 40. Henry v. Henry \[Neb.\] 103 N. W. 441. 41. 42. 43. 44. 45. 46. 47. 48. 49. 40. 41. 43. 44. 46. 47. 48. 49. 41. 44. 47. 48. 49. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 41. 45. 47. 49. 42. 44. 48. 49. 40. 41. 43. 44. 46. 48. 49. 41. 42. 44. 45. 47. 48. 49. 42. 43. 44. 46. 48. 49. 43. 44. 47. 49. 44. 48. 49. 45. 49. 46. 47. 48. 49. 49. 40. 41. 44. 48. 49. 41. 42. 44. 49. 42. 43. 44. 45. 46. 47. 48. 49. 49. 40. 41. 44. 49. 42. 44. 45. 46. 47. 48. 49. 41. 42. 44. 48. 49. 43. 44. 49. 45. 46. 47. 48. 49. 49. 41. 44. 49. 42. 44. 46. 48. 49. 47. 49. 48. 49. 49. 40. 41. 44. 49. 42. 44. 49. 43. 44. 45. 46. 47. 48. 49. 49. 41. 44. 49. 45. 46. 47. 49. 48. 49. 49. 49. 40. 41. 44 thus equity will never do a vain or useless thing; \[48\] it will not aid a party in taking advantage of his own wrong; \[49\] and, akin to this, where one of two innocent parties must lose, the loss should fall upon the one whose action or conduct has induced or made possible the loss. \[50\] When the parties are not in pari delicto, the one that is comparatively the more innocent of the two may obtain relief by doing full equity to those parties, if any, who have sustained injury by his partial wrong. \[51\] A harsh and unconsionable contract of employment will not be enforced by a court of equity. \[52\] That a creditor has been persistent and determined in his efforts to collect his debt and has resorted to unnecessarily expensive and reavations means to that end affords no just ground for denying him equitable relief in the enforcement of his debt. \[53\]

_Existence of an adequate remedy at law. \[54\]_--Except where changed by constitutions or statutes, \[55\] equity has no jurisdiction where there is an adequate remedy at law. \[56\] To deprive equity of jurisdiction, the legal remedy must be as practical and as efficient to the ends of justice and its prompt administration as any that equity can afford; \[57\] but it is not the mission of a court of equity to simplify or make easier the enforcement of a legal right, \[58\] and to be complete and adequate the remedy must not leave open for future litigation matters really and substantially involved. \[59\] The circumstances of each case must determine the application of the rule. \[60\]

## 48 Where cause was properly adjudi-

of equity or common-law jurisdiction, a defeated it will not grant a bit of revivor. Prouty v. Moss, 111 m. App. 536.

A debtor being in default, he cannot have a sale by a trustee under a chatted feed of trust enjoined on the ground that he advertised the property before taking possession. Shullivan V. Bailey, 21 App. D. C. 100.

50. Pennypacket v. Latimer \[Idab\] 81 States Min. Co. v. Lawson IC. C. A.1 134 F. P. 55. If the negligence of one influences and induces an act whereby an innocent man is injured, the euplap party must sustain the loss. Humphrey Hardware Co. v. Herrick \[Nc.b\] 101 N. W. 1016. Where one of two innocent parties must lose, the one whose misplaced confidence in an agent or attorney has been the cause of the loss shall not throw it on the other. Louchheim V. Somerset Bldg. & Loan Ass'n, 25 Pa. Super. Ct. 325.

01. Sanford v. Reed \[Ky.\] 85 S. W. 213. Where one conveys land to get it out of the way in case recovery be had on a bond on which she was surety, yet, the grantees having taken advantage of her weakness to induce her to make the conveyance without consideration by frrightening her as to her liability on the bond and promising to recover, held, the deed would be canceled at her suit. Id.

01. Contract whereby the employee is bound for two years and the employer for only one week, and which gives the employee no redress against discharge at any time without cause, but prohibits him from entering the same line of business for 18 months thereafter, whether the employer continues in the same business or not, will not be enforced. Jennings v. Bethel, 6 Ohio C. C. (N. S). 245.

01. Anthes v. Schroeder \[Neb.\] 103 N. W. 1072.

01. See 3 C. L. 1212.

01. Under Const. # 147, providing that no decree in changery in a civil cause shall be reversed for want of jurisdiction arising from any error as to whether the cause was 5 Cur. Law.

give equity jurisdiction. Jackson v. Powell, 110 Mo. App. 249, 84 8. W. 113A.

Has no jurisdiction of a petition which

Boundary disputes: A mere confusion of

houndaries of land is not sufficient to give

a court of equity jurisdiction. McCrery

Land & Investment Co. v. Myers \[S. C.\] 49

111. App. 332. Chattel mortgages have an

S. E. 848: Delrich v. Simmons \[Ark.\] 87 S. W. 649. Equity held to have jurisdiction

where tract had been held by one party and

his predecessors in interest for over 13 years,

Dig. 5011. Johnson v. Gillenwater \[Ark.\]

during which time valuable improvements

had been made and their rights acquessed

in by the other party and his predecessors in

interest. Id.

**Damages \[See 3 C. L 1213\]:** The

inadequacy of the legal remedy because of

redants' inability to respond in damages

not presented in such manner as to sustain

the jurisdiction of a court of equity, where

of two defendants, only one is alleged to be

financially responsible. Williams v. Math

evson \[N. H.\] 60 A. 687. An action for damages

ages for breach of contract is not equitable.

Akins v. Hicks \[Mo. App.\] 88 S. W. 75.

\*\*Ensememem: Equity has no jurisdiction

where a person claims title to an easemem

by adverse user, the owner of the land

designing the title and alleging that the use

was merely permissive. Godino v. Kane, 26

Pa. Super. Ct. 556.

**Estates of decedents \[See 3 C. L. 1213\]:**

where complainant has no lien on the per-

sonal property of a decedent, be cannot

maintain a suit in equity against the dis

tributes of such estate to subject it or

lands purchased therewith to the payment

of a bond on which deceased was

liable.

Acton v. Shultz \[N. J. Ed.\] 59 A. 876.

**Highways (See Riparian Lands, infra).**

**Insurance \[See 3 C. L. 1213\]:**

\*\*Equity has

no jurisdiction of a bill by an insurance com-

pany to cancel an insurance policy for fraud.

Des Moines Life Ins. Co. v. Seifert, 112 Ill.

App. 277.

\*\*License: If a decere erroneously awards a

lien priority, the mortgages has a speedy

and adequate remedy by appeal or error,

and equity will not intervene. Nebraska

Loan & Trust Co. V. Crook \[Neb.\] 103 N. W.

57.

\*\*Mortgages: A bill to compel the satisfaction of a mortgage, and to restrain proced

ings thereon will be dismissed, if the plead-

ings and proofs leave the question of pay-

ment in substantial doubt. To sustain such

**Contracts \[See 3 C. L. 1213, 1214, 1215\]:**

a bill the evidence of payment must be clear

and precise: if it is not, the parties will be

left to their remedy at law. Dinner v. Van

Dykg, 25 Pa. Super. Ct. 433.

**Remedients against corporations, officers, or**

**stockholders \[See 3 C. L. 1214\]:**

Where was a breach of an agreement to de-

suit in equity cannot be maintained to re-

liver certain corporate stock, held, plaintiff's

remedy was at law and not a bill for specific

performance, though defendant owned 92 per

Va. 49 S. E. 123. The vende of property

cent. of the stock of such corporation, which

stock was not listed or purchasable in con

may bring a suit in equity to compel him to

market. Butler v. Wright, 103 App. U. 463,

93 N. Y. S. 113. A court of chancery has no

\*\*Equity has no jurisdiction of a suit to

jurisdiction to try title to a corporate office

**Estates of decedents \[See 3 C. L. 1213\]:**

upon a bill filed purely or that purpose, the

a court of equity can entertain jurisdiction

proper remedy being by quo warranto. Blinn

of a suit against a legal representative and

v. Ligess, 110 Ill. App. 37.

\*\*Right to property or possession \[See 3 C.

L. 1214\]:\*\*

Equity has no jurisdiction of a

suit of claimants to land, though it is

leged that the debt secured by a deced of trust

388.

has been paid, though no formal release can

\*\*Fiducary relations \[See, also, 3 C. L.

senting to reference does not admit inadequacy of legal remedy. \[61\] The court of equity may decide whether the legal remedy is adequate or inadequate. \[62\] The court having jurisdiction of the subject-matter, the objection that there is an adequate remedy at law must be taken at the earliest opportunity and before the defendants enter upon full defense; \[63\] in other words, it should be made within a reasonable time after the bill is filed \[64\] and before the filing of an answer. \[65\] The objection may be raised by demurrer \[66\] or by answer, \[67\] as by a denial of plaintiff's allegation that he has no adequate remedy at law. \[68\] Although the objection is not made by demurrer, plea or answer, or suggested by counsel, it is the duty of the court, where it clearly exists, to recognize it of its own motion and to give it effect, \[69\] and the defect appearing upon the face of the bill, and no ground for equitable intervention being shown, an appellate court may notice the defect, although it has been ignored in the pleadings, assignments of error and argument, and may remand the cause with directions to dismiss the bill. \[70\]

1214\]: There is a remedy in equity to com-pel restitution of money taken in violation of the duty owed by a fiducary. Rule ap-plied as between corporation and a promoter thereof. Old Dominion Copper Mining & Smelting Co. v. Bigelow \[Mass.\] 74 N. E. 653.

**Highways:** Where there are several distinct parties necessary to the litigation, whose rights and duties are not clearly defined, a bill to regulate the crossing of a highway over a railroad will not be dismissed on the ground of an adequate remedy at law by retition under Act June 7, 1901 (P. L. 531). Pennsylvania R. Co. v. Bogert, 209 P. 558, 59 A. 100.

**Landford and renamt:** A bill by a landjord to cancel a mining lease as a cloud on his title, to establish his right of possession in the premises, and to enjoin the lease from mining ore on the leased premises, because of its breach of the lease in operating the mine in an unworkmanlike manner, so as to cause the surface of the ground to cave, etc., held maintainable. Big Six Development Co. v. Mitchell \[C. C. A.\] 138 F. 279.

**Matters relating to corporations \[See S 3 C. L. 1215\]**: In a bill to have certain unauthorized acts by corporate officers set aside and a receiver appointed, the fact that a violation of a contract with one of the complainants is alleged is insufficient to show that complainants have an adequate remedy at law. Stone v. Pontica, O. & N. R. Co. \[Mich.\] 102 N. W. 752.

**Public lands:** Equity held to have juris-diction of a suit by the United States under 24 Stat. 556 and 29 Stat. 42, to recover the price of land erroneously patented under a railroad grant. Southern Pae. R. Co. v. United States \[C. C. A.\] 133 F. 651.

**Quelting title \[See Quelting Title, 4 C. L. 1167\]**: The enlarged remedy given by Rev. St. Utah, 1898, SS 2915, 3511, may be enforced in a Federal court of equity sitting in that state when the complainant is in possession, and the defendant is out of possession, or when both parties are out of possession. United States Min. Co. v. Lawson \[C. C. A.\] 134 F. 769. A bill to quiet title will lie where the owner of a mining claim is In possession of its surface claiming title to the entire claim, though the bill further alleges that defendant has, through underground 5 Cur. Law. EQUITY SS 2C.

_Doing complete justice._"--A court of equity having jurisdiction of a case for any cause may, to avoid circuitry of action, proceed to try all the questions in it, whether legal or equitable; "?" but where the sole ground of equity jurisdiction is that a remedy merely ancillary to the legal remedy may be afforded--for example, to hold matters in statu quo until the lawsuit can be ended--then a chancellor may with propriety give the aid of his court to that extent, and leave the parties otherwise untrammeled in their lawsuits."

_Multiplicity of suits._"--Equity will take jurisdiction to prevent a multiplicity of suits."

(SS 2) _C. Occasions for, and subjects of, equitable relief._" Trusts," the settlement of mutual accounts," the regulation of conflicting easements," removing clouds from titles," the enforcement of liens," probate proceedings," the protection

71. See 3 C. L. 1216.

ence to Insurance except the Insurance of 72. Crenshaw v. Looker, 185 Mo. 375, 84 S. V. W. 855: Southern Pac. R. Co. v. United States \[C. C. A.\] 183 F. 651: United States v. Northern Pac. R. Co. \[C. C. A.\] 184 F. 715: 116 Ill. App. 217. Chancery has jurisdiction

McMullen Lumber Co. v. Strother \[C. C. A.\] 186 F. 295: Cebory v. Coberly \[M.O.\] 87 S. W. 957: Rugy W. Rohrbach, 110 Ill. App. 582: 136 King v. Arney, 114 Ill. App. 141: Trustees of Schools v. Board of School Inspectors, 115 Ill. App. 479: Smith v. Irvin, 45 Mice. 262, 93 N. Y. S. 170. In a suit for an accounting, a release, or an assignment which has been obtained by fraud may be set aside. Id. There being an Independent ground of equitable jurisdiction, the court may settle the boundary and title to the land involved. Le Comte v. Carson \[W. Va.\] 49 S. E. 238. Court having jurisdiction to enjoin interference with plaintiffs use of water rights, it may decide all questions involved and grant appropriate relief, such as the quieting of title. Bessemer Irr. Ditch Co. v. Woolley, 32 Colo. 437, 76 P. 1053. Jurisdiction having once attached it may be retained for all purposes, including partition which is as yet premature. Stichman v. Steinman, 5 Ohio C. C. (N. S.) 600. In cancelling dead may quiet title. Cribls v. Walker \[Ark.\] 85 S. W. 244. Where a bill is maintainable to enjoin the lessee of a mine from committing waste and destroying the property as a mine, the court may cancel the lease as a cloud on title, quiet the title, and determine the right of possession. Big Six Development Co. v. Mitchell \[C. C. A.\] 138 F. 279. Equity may determine the title to a corporate office by way of affording incidental relief, it having jurisdiction upon other grounds. Bilnn v. Riggs, 110 Ill. App. 37. In partition proceedings," it appearing that the relations of plaintiff and defendant are not harmonious, that defendant is in possession of a part of the land, and that plaintiff's bid for the whole land is accepted, the court will fix a time within which the defendants share shall be paid to him by the plaintiff, leaving the plaintiff to his legal remedy to secure possession. Monroe v. Monroe, 26 Pa. Super. Ct. 47.

73. Crenshaw v. Looker, 185 Mo. 375, 84 S. V. W. 855.

01. See 3 C. L. 1216.

01. North American Ins. Co. v. Tates, 116 Ill. App. 217. A bill is maintainable against several foreign insurance companies maintaining an agency in Illinois, where they translated all forms of business with refer 1153 EQUITY SS 3C. 5 Cur. Law.

of all persons under disability, \[83\] the appointment of receivers, \[84\] the cancellation \[85\] and restoration \[86\] of instruments, and the reformation of the written evidence of an agreement so as to make it correspond to the understanding of the parties, \[87\] are subjects of equitable jurisdiction. As to fraud \[88\] and mistake, \[89\] the jurisdiction of equity and law is concurrent. Hence equity will grant relief from fraud, \[90\] and if the fraud consists in fraudulent representations as to collateral facts, or as to the nature or value of the consideration of the instrument, equity must be resorted to to reform or set aside the instrument. \[91\] It also has jurisdiction to prevent the consummation of a fraud. \[92\] In order that equity may grant relief, the mistake must have been mutual or brought on by the conduct of the other party. \[93\] A mistake of law may, in some circumstances, be remedied. \[94\] In some states by statutes \[286\] . Where plaintiff alleged that he im-

\[htumetal right to be heard thereon in the proved defendants land under a contract

court of last resort. Zewelel v. Caldwell

whereby the defendant was to convey a portion of the land to him in consideration

of a suit by a judgment credit to impress

therefor, and he sought to recover their

a lien on property bought by the judgment

value and to enforce a lien therefor, and

defendant denied the contract, held, the

by her husband previous to the recovery of

claim was an equitable one. Roards v.

the judgment. Mertens v. Schlemme \[N. J.

Rboards \[Ky.\] SS S. W. 718.

S2. Any person entitled to share in the

\[91\] Miller v. Mutual Reserve Fund Life

distribution of an estate has the right

\[88\], in 131 III. App. 481; Fowler Cycle Works

have the estate administered in a court of

v. Fraser, 110 III. App. 126. Fraudulent

equity without assigning any special equity

representations as to collateral matters held

for transferring the estate to such court.

not available to have instrument set aside

Greenhohoud v. Greenhoud \[A1.\] 39 Sep. 209.

in equity. Id. See Cancellation of Instrum-

\[88\], in 103 Va. 305, 49. S. E.

\[89\], in 104. Haurisdiction in matters of guardian.

\[89\], in 105. Haurisdiction in matters of guardian.

\[89\], in 106. Haurisdiction v. Mauldin \[A1.\] 38 Sep. 209.

\[90\], in 107. Haurisdiction in matters of guardian.

\[89\], in 108. Haurisdiction in matters of guardian.

\[89\], in 109. Haurisdiction v. Mauldin \[A1.\] 38 Sep. 209.

- 5 Cur. Law.

Equitary 2C.

guage employed in the writling. Zieschang

Dec. 613. As every person is bound to know v. Helmke \[Tex. Civ. App.\] 84 S. W. 486.

the law, both civil and criminal, it has been Equity will grant relief from a mistake of

held that no one can complain of the misreport fact resulting from a misconception of the

resentations of another respecting it. Platt

law, Alders v. Estherville \[Iowa\] 104 N. W. V. Scott, 6 Blackf. \[Ind.\] 389, 39 Am. Dec. 453. Will not allow the recovery of a tax

436; Burkhauser v. Schmidt, 45 Wis. 316, 30 voluntarily paid under a mistake of law. Id. Am. Rep. 740.

NOTE. Mistake of law as ground for re-

Firmly settled as is the foregoing general

lif in equity: The maxlm that ignorance rule, that ignorance or mistake of the law does not excuse prevalls in a court of law,

does not excuse, it is equally well settled

ourt of equity, as it does in a court of law,

that there are particular instances in which

Hardigre v. Mitchum, 51 Ala. 151, 154;

equity will grant defensive or affirmative re-

State v. Paup, 13 Ark. 129, 56 Am. Dec. 303;

lif from mistakes of law, pure and simple

Upton v. Tribilcock, 91 U. S. 45, 50, 23 Law.

as well as from those accompanied by other

Ed. 203. Professor Pomeroy in 5 849 of the

inequitable incidents. These instances are second edition of this work on Equity Juris-

expections to the general rule, or rather

patrohere attempts to make a distinction

cases in which the maxlm is not rigidly"en-

whereby one may be charged with a knowl-

forced; but it is difficult to draw any sharply

edge of the law and yet not chargeable with

defined lines by which all these instances

a knowledge of his legal rights. This rule

may be accurately determined. It is said

has been applied and approved in a few

that the maxlm, "ignorantia legis nemememem

cases. See Renard v. Clink, 91 Mich. 1, 30

excusat," is not universally applicable, but

Am. St. Rep. 458; Teland v. Corey, 8 Utah,

only when damages have been hilled or

392, but the great weight of the authorities

crimes committed. Brock v. Weiss, 44 N. J.

is that ignorance or mistake of law alone

Low, 241. It has been held that any de-

does not, as a rule, excuse, and that it is no

parture from the maxlm, under any circum-

ground for either defensive or affirmative

states, should be distinctly marked and so

relief in equity, and such ignorance or mis-

starded as to leave the general rule

unim-
take includes misconception of the law, er-

paired. Yet some courts, in trying to uphold

roneous deductions, and misapprehension of

the maxlm, have in cases of peculiar hard-

legal rights. Emerson v. Navarro, 31 Tex.

ship, distinguished between ignorance of the

334, 98 Am. Dec. 534; Plerson v. Armstrong,

existence of a law and of its legal effect.

1 Iowa, 282, 63 Am. Dec. 404; Tverson v. Wil

burn, 65 Ga. 103; Fisher v. May, 2 Bibb

the rule that equity will not grant relief

(Ly.J. 448, 5 Am. Dec. 626; Smith v. McDouw

where the mistake is one of law is, at best,

gal, 2 C41. 586; Shafer v. Davis, 111. 396;

a harsh one, and applies only where the mis-

Wood v. Price, 46 Ill. 439; Wintherma v.

take is simply one of law, and the party

Snyder, 3 N. J., 269, 489; Good v. Herr, 7

had full knowledge of all the material facts

Watts & S. \[PA.\] 253, 42 Am. Dec. 236; Short-

and circumstances. A mistake of law, three-

well v. Murray, 1 Johns. Ch. \[N.Y.\] 512; Ar-

fore, which is caused by fraud, imposition or

thur v. Arthur, 10 Barb. \[N.Y.\] 512; Lyon v.

misrepresentation, etc., may be relieved

Sanders, 23 Miss. 530; Nabours v. Cocke, 24

against in equity, Kyle v. Fehley, 81 Wils.

Miss. 44; People v. O'Brien, 96 Cal. 171; State

67, 29 Am. St. Rep. 856; Rankin v. Mortmere,

v. Paup, 13 Ark. 129, 56 Am. Dec. 303; McGuill P. Villiets, 141

Ainnel v. Laughlin, 13 PA. 371; McM Murray v.

N. Y. 35, 50; Jordan v. Stevens, 51 M.e. 78, 81 chameery is divested of its jurisdiction to quiet title."5 It is the duty of a court of equity to see that the interests of infants are protected in suits before it whether the claim or defense be properly pleaded or not; and for this purpose the chancellor should look to the record in all its parts, and of its own motion give to the infants the benefit of all objections and exceptions appearing thereon, as if specifically interposed; " but equity will not lend its affirmative aid to enable infants to take advantage of the mistakes and misfortunes of their adversaries." Equity will not entertain a suit to give a construction or declare the rights of parties upon a state of facts which has not yet arisen, nor upon a matter which is future, contingent or uncertain." It has no jurisdiction to construe a will unless a trust is involved." Equity will not enforce a penalty,1 and will relieve from forfeitures; 2 it will not permit its jurisdiction to be used as a mere cover for a collateral attack.3 It will not ascertain and decree compensation for damages to property,4 though it may enjoin the inflection of such damages until compensation is paid, and in such case an issue out of chameery will be directed to ascertain the amount of compensation.5 Equity will not review the exercise of a discretionary power vested in an official,6 nor will it invade the functions confided by law to other departments of the government,7 though equitable jurisdiction over executive officers is, in some states, conferred by statute.8 It has jurisdiction to determine whether certain territory has been properly annexed.9 Equity will not interfere in the internal management

Footnote 10 of a foreign corporation where no question of public policy is involved and the corporation has no property in the state of the forum.\[10\] Where rent is to be determined by designated appraisers and one of the latter dies before the determination is made, equity has jurisdiction to make the determination.\[11\] A court of equity may intervene and grant relief by way of permitting the record of a common-law. court to be impeached,\[12\] may set aside a judgment rendered upon perjured testimony,\[13\] and a fraudulent judicial sale.\[14\] Property rights within the protection of a court of equity may arise under corporate charters.\[15\] In Illinois, equity will enforce a contract at the suit of one having a beneficial interest in it.\[16\] Equity has no jurisdiction in matters merely criminal or immoral, and will not interfere merely to prevent violations of law;\[17\] but it may enjoin the violation of state laws where the acts complained of are injurious to the public, and it is immaterial that such acts are punishable under the criminal statutes, or that there is an adequate remedy at law, or that the complainant has suffered no injury.\[18\] Where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled.\[19\] Equity has no jurisdiction in condemation proceedings.\[20\]

SS 3. _Laches and acquiescence.\[21\]_--Laches will bar equitable relief.\[22\] Laches is inexcusable delay in enforcing a right\[23\] by reason of which the condition or relation of the property or persons has become so changed as to render the enforcement of plaintiff's claim inequitable.\[24\] Thus it will be seen that while lapse of time is one of the chief elements, yet there are others of equal importance, such as change in the value of the property,\[25\] complainant's 'knowledge or ignorance,\[26\] or the spectors may bring a suit to recover school taxes raised upon territory annexed to the city, and to determine the legal effect of the annexation, so far as concerns the public schools in such territory. Phelps v. Board of School Inspectors of Peorila (III) 73 N. E. 412.

10. Bradbury v. VwaKegan & Washington Min. & Smeilding Co., 113 Ill. App. 600. Equitable remedies against corporations, see Clark & M. Corp. 8 771.

01. Weir v. Barker, 93 N. Y. S. 733.

01. Opie v. Clancy \[R. I.\] 60 A. 635.

01. Avocato v. Dell Ara \[Tex. Civ. App.\] 84 N. W. 443.

01. Has jurisdiction to set aside a judicial sale as against one chargeable with notice, it appearing that the sale was for an inadequate price, was made without notice to the judgment debtor and was accompanied with irregularities. King v. Arney, 114 Ill. App. 141.

01. A charter authorizing a corporation to organize subordinate councils of a beneficial assoclation to raise funds for the relief of members and their families, and to defray funeral expenses and to give relief in other cases of distress, gives rise to possible rights of property which are within the protection of a court of equity. National Council Junior Order United American Mechanics v. State Council Junior Order United American Mechanics \[Va.\] 51 S. E. 166.

01. The vendee of property assuming a mortgage thereon, the vendor may bring a suit in equity to compilber tho pay it. Gage v. Cameron, 212 Ill. 146, 77 N. E. 204. See Contracts, 5 C. L. 664.

01. Christensen v. Kellogg Switchboard & Supply Co., 110 Ill. App. 61. See Injunction, 4 C. L. 96.

01. North American Ins. Co. v. Yates, 116 Ill. App. 217.

01. Dobbins v. Los Angeles, 195 U. S. 223, 49 Law. Ed. 169; Daly v. Elton, 195 U. S. 242

01. Code 1899, c. 52, SS 11, does not confer upon courts of equity jurisdiction to condemn the property of one railroad, turnpike or canal company for the purpose of a crossing by another railroad, turnpike or canal company. Welisburg & S. L. R. Co. v. Pan Handle Traction Co. \[W. Va.\] 48 S. E. 176.

01. See S C. L. 1218.

01. Holsberry v. Harris, 56 W. Va. 320, 49

01. E. 404. Laches may deprive a plaintiff of the right to enforce a covenant against the manufacture or sale of intoxicating liquor on the land convoved. Mooter v. Whitman, 3 Ohio N. Y. (N. S.) 141. One who fails, through culpable inertness, to make inquiry when it is his duty to inquire, and by reason of such failure loses a valuable right, is not entitled to relief in equity on the ground of mistake. Farrell v. Bouck \[Neb.\] 101 N. W. 1018. A court of equity will not retrieve a party where he has had a plain, speedy and adequate remedy at law, which by his own negligence be has not availlet himself of. Presley v. Dean \[Idaho\] 79 P. 11.

01. See infra, Excusable Delay.

01. Stevens v. Grand Central Min. Co. \[C. C. A.\] 133 F. 28. Delay in enforcing demand does not constitute laches, unless debtor is prejudiced thereby. Farr v. Haaten-sten \[N. J. Eq. \] 61 A. 147. A compl 1156 EQUITY SS 3. 5 Cur. Law

possession of the means of knowledge 27 of the facts, defendant's own diligence,28 and the death of witnesses and parties.29 As a general rule, delay short of the period fixed by analogous statutes of limitation will not constitute a bar,30 but if such delay render the enforcement of the right inequitable, equity will not entertain the suit,31 even though the statutes of limitation are made applicable, in general terms, to suits in equity, but not to the particular defense.32 Laches is an equitable doctrine, resting on the ground of public policy,33 and depends upon the facts and circumstances of each case.34 In other words, the question is ad-

Law. Ed. 214; Ripple v. Kuehne \[Md.\] 60 A. 461. 462. 26. 26. 27. 28. 214. 28. 214. 28. 214. 28. 214. 28. 215. 216. 217. 28. 216. 217. 28. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 229. 221. 223. 224. 225. 226. 227. 228. 229. 229. 221. 223. 224. 225. 226. 227. 228. 229. 229. 221. 223. 224. 225. 226. 227. 228. 229. 229. 221. 223. 225. 227. 228. 229. 229. 221. 224. 229. 222. 223. 225. 226. 227. 228. 229. 229. 221. 229. 222. 223. 224. 225. 226. 227. 228. 229. 229. 222. 229. 222. 223. 224. 225. 226. 227. 228. 229. 229. 229. 222. 223. 224. 225. 227. 228. 229.

bonds, and a remedy by mandamus was recodinged by the state statute for reviewing such action, which remedy was barred in four years, a suit after the lapse of twenty years is barred by laches. Frank v. Butler County \[C. C. A.139 P. 119\].

Mortigness; foreclosures; Delay of 10 years by a mortggapor and helps in instituting suit to set aside a foreclosure for fraud held to constitute laches. Tetrantul v. Fournier, 187 Mass. 58, 72 N. E. 351. Where a mother and snon held land as co-tenants and the mother purchased it at a mortgage sale, and the son, after reaching his majority, asserted no right against his mother, held, he would not be allowed to assert his claim against a re-mote granted who had parted with value.

Krysson v. Dunten \[Ind.\] 73 N. E. 74.

Mottons: Two years and a half delay held to bar right to have cause transferred from equity to jury docket. Chenault v. Eastern Kentucky Timber & Lumber Co., 26 Ky. L. R. 1078, 83 N. F. 562.

**Mutual benefit insurance company:** Where mutual benefit insurance company passed a by-law which amounted to a reuntention of its contracts and entitled a member to re-mote. While River Sav. scind his contract, failure to so do for 3 years and 7 months held to bar right, a large number of members having died in the mean-time. Supreme Council A. L. H. v. McAlar-ney \[C. C. A.138 F. 72\].

**Public lands:** Two months' delay on the part of steller on state lands after his application to purchase was returned to him by the surveyor general with notice of other claims, held to bar rights. Smith v. Roberts \[Cal. App.\] 81 F. 1026.

**Real property:** Delay of eight years held to bar right to enforce right to mlning inter-, set, compliant having contributed nothing to the development of the mine and the consequent discovery of a rich ore deposit. Patterson v. Hewitt, 195 U. S. 309, 49 Law. Ed. 214.

**Conduct not amounting to inches:** \[Only general illustrations have been kept. What constitutes laches in regard to specific equitable rights and remedies is treated in the specific topics relating to such rights and remedies. See Injunction, 4 C. L. 96; Spe-cliffe Performance. 4 C. L. 1494; Trusts, 4 C. L. 1727, etc. Laches in opening and vacating a judgment is treated in judgments, 4 C. L. 2871. The defense of laches applies only when a party has delayed so long, after his right attaches, in asserting his claim that he is presumed to have abandoned his rights.

Dickinson v. Griggsville Nat. Bank, 111 Ill.

**Copyright:** A year and a half delay after knowledge of Inringement of copyright held not to bar suit. Werner Co. v. Encyclopedia Britannica Co. \[C. C. A.134 F. 831\].

**Decads:** A suit seeking to have a deed declared a mortgage, brought within 10 years after the execution of the deed, is not barred by laches. Gerson v. Davis \[Ala.\] 39 So. 198.

**Estimates of decedents:** Where a legated to whom testeators interest in the firm had beenqueated was appointed administrator with the will annexed a few months after obtaining his majority, and imme-, flately sued the surviving partner for an accounting, held not guilty of laches. Stenh \[VWs.\] 102 N. W. 1074. Adminis-, tract held not guilty of laches in falling to collect debt which had never been established. Reagor's Adm'r v. Chappelear \[Va.\] 51 S. E. 170. In Illinois, in the absence of circumstances excusing a greater delay, a petition for the sale of the reality of a decedent for the payment of his debts must be made within seven years. Graham v. Brock, 211 Ill. 579, 72 N. E. 825.

**Gouridanship:** Where a ward, whose signature to barred by a dressed to the sound discretion of the chancellor,\[35\] and unless that discretion is abused, it will not be interfered with.\[36\] The question of relationship is entitled to great weight.\[37\] Laches can have no effect upon a void transaction.\[38\] The true owner of land having the legal title may bring suit at any time.\[39\] Laches is not ordinarily imputable to the holders of estates in remainders.\[40\] A married woman, as to her separate estate or right, is subject to laches.\[41\] The equitable rules relating to the effect of laches and acquisccnce are enforced against the state when it is a suitor for equitable relief as well as against private suitors.\[42\]

While it has been held that it is necessary to plead laehes, in order to invoke it as a defense,\[43\] yet the better doctrine seems to be that the defense of laches is not one which it is necessary to take advantage of by pleadings; and, if the case at the hearing is liable to such objections, the court may, and usually will, remain passive and refuse relief.\[44\] The defense of laches may be made by plea or answer or demurrer, if the facts appear on the face of the bill.\[45\] The defense of laches cannot be raised for the first time on appeal.\[46\]

- **29. Doris v. Story \[Ga.\] 50 S. E. 348.**
- **30. Henderson v. Kibble, 211 III. 556, 71**
- **31. Five years' delay in bringing salt to have judicial sale of remainder set aside held not to constitute laches, there having been no change of possession. Id.**
- **41. McCPeck v. Graham, 56 W. Va. 200, 49**
- .relief, it is sufficient to prevent it from insisting on the application of a rule of evidence relating to the burden of proof as the basis for deciding that, in the absence of proof to the contrary, it must be conclusively presumed that the grant was in fact induced by false representations. Id.\*\*
- **43. Biliss v. Prichard, 67 Mo. loc. clt. 191; Smith v. Russell \[Colo. App.\] 80 P. 474.**
- **44. Stevenson v. Smith \[Mo.\] 88 S. V. 86.**
- **45. In the Federal courts it is not necessary, in order to let in the defense of laches, that a foundation should be laid by any aberrant in the answer Moore v. Nickey \[C. C. A.\] 133 F. 289.**
- **45. May be taken advantage of by demurrer. Holspberry v. Harris, 56 W. Va. 320, 49**
- **5. E. 404; Tetrault v. Fournier, 187 Mass. 58, 72 N. E. 851; Holzer v. Thomas \[N. J. Eq.\] 61**
- **5. A. 154; Kleinclaus v. Durstad \[Cal.\] 81 P. 516.**
- **5. Laches being apparent on the face of the lachse with l. It need not be set up by answer. Evans v. Woodsworth, 213 III. 404, 72 N. E. 1083.**
- **5. While as a general rule the defense of laches must be made by plea or answer, yet such rule does not apply when the bill already states the causes of and excuses for delay. Wiecorek v. Adamski, 114 III. App. 161.**
- **5. See Exchange National Bank v. Darrow, 177 Ill. 582, where the supreme court seems to have gone a step further and to have held that the question of laches may be raised by demurrer, even where the excuses for the delay are not stated in the bill.--From Wiecorek v. Adamski, 114 III. App. 161.** 5. Cur. Law. EQUITY SS 3. \_Excusable delay.${}^{47}$--\_Lack of knowledge, the circumstances not demanding inquiry, excuses delay.${}^{48}$ Each case depends upon its own facts and circumstances.${}^{49}$ It is incumbent on plaintiff to specifically${}^{50}$ allege facts showing an excuse.${}^{51}$ General allegations of an excuse are insufficient to put the burden on defendant.${}^{52}$ \_Application of analogous statutes of limitation.${}^{55}$--\_In cases of concurrent jurisdiction courts of equity will hold themselves bound by the statute of limitation that would govern an action at law upon the same demand,${}^{54}$ and where the subject-matter of the demand is one ordinarily cognizable at law, but, by reason of special conditions, the remedy for its enforcement in the particular case is obtainable solely m equity, the bar of limitation will be applied, either in obedience to the statute or by analogy.${}^{55}$ In the application of the doctrine of laches, courts of equity are not bound by, but usually act or refuse to act in analogy to the statutes relating to actions of law of like character.${}^{56}$ If unusual conditions or extraordinary circumstances make it inequitable to permit the prosecution of a suit after a briefer, or to forbid its maintenance after a longer period than that fixed by the analogous statute, the chancellor will not follow the statute, but will determine the case in accordance with the equities which arise from its own conditions or circumstances,${}^{57}$ 46. Vollenweider v. Vollenweider, 216 III.1 197, 74 N. B. 795. 47. See 3 C. L. 1220. 48. Barry v. Moeller \[N. J. Eq.\] 61 A. 154. 55. Vashington Loan & Trust Co. v. Dar Darling, 21 App. D. C. 132. 51 App. D. C. 132. 56. Stevens v. Grand Central Min. Co. \[C. C. A.\] 133 F. 28; Williams v. Neely \[C. C. A.\] was old and weak, and lived a long distance from the residence of the defendant, and that he did not learn of the physical condition of the life tenant until after her death held to excuse delay. Obney v. Obney, 26 Pa. 102 N. W. 1. A demurrer will lie to a bill against brokers alleging that the latter fall-sited the accounts between the parties, allegations of fraud, collusion and conspiracy on the part of the managing officer of plaintiff corporation, who controlled the other offin-cers, were important to excuse plaintiff's delay. Bay State Gas Co. v. Lawson \[Mass.\] 74 N. B. 921. 49. A delay of 19 years in filing a pettiion for the sale of reality, subject to dover, of a decedent, for the payment of his debts, is not excused by merely showing that the land was practically worthless for many years and had recently increased in value, Graham v. Brock, 212 III. 579, 72 N. E. 825. In the absence of fraud, fiducary relations or lack of knowledge the fact that the heirs of a record owner of land had became widely scattered is not sufficient to excuse a delay of 16 years in bringing suit to establish title to land, the value of which had increased enormously during an adverse possession of 70 years. Peck v. Haley, 21 App. D. C. 224. Allegations that plaintiff have been delayed in instituting suit by the negligence and misconduct of attorneys employed by them, held too general to constitute a sufficient excuse for ten years' delay. Tetrault v. Fournier, 187 Mass. 58, 72 N. E. 351. Such allegations, in view of the dates set forth, also held insufficient in that they did not cover the entire 10 years. Id. 50. Peck v. Haley, 21 App. D. C. 224. 51. 52. Tetrault v. Fournier, 187 Mass. 55, 72 N. E. 351. 53. See 3 C. L. 1220. 54. Washington Loan & Trust Co. v. Darling, 21 App. D. C. 132: Holzer v. Thomas \[N. J. Eq.\] 61 A. 154. 55. Vashington Loan & Trust Co. v. Darling, 21 App. D. C. 132. 56. Stevens v. Grand Central Min. Co. \[C. C. A.\] 133 F. 28; Williams v. Neely \[C. C. A.\] 134 F. I. Equity will ordinarily refuse to apply the bar of laches on a delay of less duration than the statute of limitations. Washington Loan & Trust Co. v. Darling, 21 App. D. C. 132; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1. A demurrer will lie to a bill in equity which states a case within the statute of limitations at law. Parmelele v. Price, 105 III. App. 271. Defense of laches held not available where action was brought in time allowed by the statute. Barrett v. Mutual Life Ins. Co. \[Ky.\] 85 S. W. 749. Recovery allowed for a period coinciding with the period for which recovery might be had in an action at law. Barry v. Moeller \[N. J. Eq.\] 59 A. 97. Where plaintiff was engaged with defendant in developing even though the status of limitation are made applicable in general terms, to suits in equity, but not to the particular defense.\[58\] These rules apply as regards a Federal court of equity and a state statute of limitations.\[69\] When the suit is brought within the time limited by the analogous statute, the burden is upon the defendant to show, either from the face of the bill or by his answer, that unusual conditions or extraordinary circumstances exist which require the application of the doctrine of laches; \[60\] and when such suit is brought after the statutory time has elapsed, the burden is on the complainant to show by suitable allegations in his bill that it would be inequitable to apply it to this case.\[61\]

SS 4. \_Practice and procedure in general.\[62\]--The court will, to a large extent, disregard technical errors.\[63\] A court of equity should not intervene in an action in a law court involving an equitable right, and by injunction transfer the cause to itself on the ground that it alone can recognize and enforce such right.\[64\] The legal nature of the action is not ground for dismissal, but the cause should be transferred, and failure to make a motion to this effect waives the defect.\[65\]

SS 5. \_Parties.\[66\]--All parties who are legally or equitably interested in the subject-matter of the suit are necessary parties to a chancery proceeding; \[67\] but the interest must be a present, substantial one as distinguished from a mere expectancy or future contingent interest.\[68\] It is sufficient if all such parties are before the court either as complainants or defendants.\[69\] To the rule which, in general, prohibits the joinder of parties having no interest in the suit, there is an exception, which in a suit attacking a transaction as fraudulent renders permissible the joinder as defendant of a party to the fraud.\[70\] Several parties being injured by the same act, they may join in bringing suit.\[71\] The court cannot properly adjudicate the **58**. Patterson v. Hewitt, 195 U. S. 309, 49 Law. Ed. 214. Rule applied to a suit to enforce rights in a mining location. N. M. Comp. Laws, SS 2938, considered. Id. 59. Stevens v. Grand Cent. Min. Co. \[C. C. A.\] 133 F. 28. Where one of two joint owners of mining claims fraudulently relocated the property and applied for a patent, and the excluded owner upon learning of the action brought suit, pending which he died and the suit was dismissed, then his administrator commenced another suit which was subsequently dismissed without prejudice and decedent's interest transferred to complainants who commenced suit; held, relief would be granted in equity, though action at law would have been barred by Imitations. Id. 69. Stevens v. Grand Cent. Min. Co. \[C. C. A.\] 133 F. 28. 62. See 3 C. L. 1220. 63. The fact that in ancillary probate proceedings the will of a testor was admitted to probate without any expressed reference to a compromise decree entered in the state of original jurisdiction by which contesting helrs not named in the will were given a certain share in the estate, so that the record in the ancillary proceedings does not show any interest in such helrs, will not preclude a court of equity from fastening a llen upon their interest in the assets withln the ancillary jurisdiction; the objection being one of form only which such court will disregard. Ingersoll v. Coram, 136 F. 689. 64. Kronson v. Lipschitz \[N. J. Eq.\] 60 A. 819. 65. Cribbs v. Walker \[Ark.\] 85 S. W. 244. 66. See post, SS 9, Dismissal. 66. See 3 C. L. 1221. 67. Indian River Mfg. Co.. v. Wooten \[Fla.\] 37 S. 731; Pinkney v. Weaver, 115 III. App. 582. 68. 69. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 71. 78. 79. 81. 79. 82. 83. 84. 85. 86. 87. 88. 89. 9. 9.

- 5 Cur. Law. EQUITY SS 6A. 1161

matters involved when it appears that necessary parties to the proceeding are not actually or constructively before the court.\[12\]

\_Bringing in new parties, intervention.\[75\]--New, necessary parties, complainant cr defendant, may be added at any time before the final decree is entered.\[74\] De-fendant having consented to the making of other persons defendants, he cannot, after the conclusion of the taking of evidence before a master, object that they cannot be held jointly.\[75\] One having an interest in the subject-matter of the suit may by intervention become a party.\[76\] Intervention may be allowed at any time while the cause is under the control of the court.\[77\]

SS 6. \_Pleading.\[78\] A. General rules.\[79\]--A pleading will be construed most strongly against the pleader,\[80\] hence where there are contradictory or inconsistent allegations in a bill, its equity will be tested by the weaker, rather than by the stronger allegations.\[81\] But all pleadings must be construed reasonably, and not with such strictness as to refuse to adopt the natural construction of the pleading because a particular fact might have been more distinctly alleged, although its existence is fairly, naturally and reasonably to be presumed from the averments made in the pleading.\[82\] It is not good pleading to encumber the record with allegations of more matter, and especially mere matter of evidence, than is necessary to raise the question that may be actually involved for decision.\[88\] A party is entitled to a definite statement in the pleading of the nature of the charge intended to be made against him, but not of the particulars or circumstances of time and place, unless they are material parts of the cause of action or defense.\[84\] A pleader need make no formal averment of a conclusion if he distinctly avers facts from which it must follow.\[85\] Facts constituting fraud must be specifically stated.\[86\] An irrelevant allegation is one which has no substantial relation to the controversy between the parties to the suit.\[87\] Scandal consists of any unnecessary allegation bearing eruelly on the moral character of an individual, or stating anything contrary to good manners or anything unbecoming the dignity of the court to hear.\[88\] Scandalous matter cannot be stricken out if relevant to the issue.\[89\] Where no answer is

- 72. Indian River Mfg. Co. v. Wooten \[Fla.\] 37 So. 731. 73. See 3 C. L. 1222. 74. Chancellor has power to allow such proceedings. Camp Phosphate Co. v. Anderson \[Fla.\] 37 So. 72. A party has the right to add such parties. Sullivan v. Chicago Board of Trade, 111 Ill. App. 492. In a cross bill seeking affirmative relief, new parties may be added, whose presence is essential to a complete determination of the matter. Indian River Mfg. Co. v. Wooten \[Fla.\] 37 So. 731. 75. Equitable replevin. United Shoe Machinery Co. v. Holt, 185 Mass. 97, 69 N. E. 1056. 76. See 3 C. L. 1222, n. 3. All persons whose claims were within clause of deck assuming to pay existing mortage, he entitled to intervene in a suit by the grantor to compel such payment. Gage v. Cameron, 212 Ill. 146, 72 N. E. 204. The privilege of coming into an equity suit under Laws 1904, p. 597, c. 327 applies to an existing equity suit. Murphy v. Wheatley \[Md.\] 59 A. 704. 77. Gage v. Cameron, 212 Ill. 146, 72 N. E. 204. 78. The article on Pleading, 4 C. L. 980, should also be consulted. 79. See 3 C. L. 1222. 80. 810. Kliclicules v. Dutard \[Cal.\] 81 P. 516; Durham v. Edwards \[Fla.\] 38 So. 926. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 98. 99.

filled to a bill and no denial made of any of its averments, the facts as stated, so far as they are well pleaded, must be assumed to be correct.90

(SS 6) \_B. Original bill, petition or complaint.91--\_The facts constituting the cause of action must be distinctly alleged, so that the defendant may know what he has to meet, and so that he may, if he choose, put them in issue.92 This rule must receive a reasonable interpretation, and must be enforced so as to further, and not obstruct, the administration of justice.93 The bill should state not only the ultimate facts but also such collateral facts as are necessary in order that the court may understand the extent and manner of relief to be granted.94 The extent to which facts must be set out depends upon the nature of the principal facts to be established. When a general term used has a double meaning, and, standing alone, may either import a mere fact or a conclusion of law, it must be accompanied by a statement of such additional facts as to constitute ground for the legal conclusion which plaintiff undertakes to establish; else the rule that pleadings must be certain to a common intent is violated.95 The pleader is not confined with the same degree of strictness to alleging material facts only as in an action at law.96 Thus allegations of inducement are permissible,97 and unless the moving party is prejudiced thereby, they should not be stricken out.98 Complainant must clearly and definitely allege every material fact,99 and the facts set forth must constitute a cause of action.1 When it is fairly doubtful whether the complaint states more than one cause of action, and plaintiff intends to state but one, a motion to separately state and number should not be granted, but the defendants should be left to their remedy by denmurr.2 In the Federal courts an allegation of the residence of the parties is not necessary to impart jurisdiction,3 nor is an allegation of citizenship jurisdictional, except in cases in which the jurisdiction depends on diverse citizenship.4 An omission to comply with the provision of Federal Equity Rule 20, requiring the place of abode of the parties to be stated, is properly corrected by motion.5

Footnote 90: Christensen v. Kellogg Switchboard & Supply Co., 110 III. App. 61. 170. 91. See 3 C. L. 1222. 92. Lockhart v. Leeds, 195 U. S. 427, 49 Law. Ed. 263. A bill is sufficient if it so states plaintiffs case as to inform the defendant of what he is called upon to meet. Rule applied to bills filed under Code 1899, c. 59, J. 11, relating to railway crossings. Wellstup & S. L. R. Co. v. Pan Handle Traction Co., 56 W. Va. 18, 48 S. E. 748. 93. Lockhart v. Leeds, 195 U. S. 427, 49 Law. Ed. 263. 94. Bell v. Clarke, 45 Misc. 275, 92 N. Y. S. 411. 95. Wellstup & S. L. R. Co. v. Pan Handle Traction Co., 56 W. Va. 18, 48 S. E. 746. 96, 97, 98. McGarahan v. Sheridan, 94 N. Y. S. 108. 99. Durham v. Edwards \[Pa.\] 38 So. 926. 1. Nelson v. Sneed, 112 Tenn. 36, SS 3 W. 786. A court of equity cannot grant relief when the complaints own showing in his old demonstrates a want of equity in his prayer. Durham v. Edwards \[Pa.\] 38 So. 926. See 3 C. L. 1223, n. 20. 2. Smith v. Irvin, 45 Misc. 262, 92 N. Y. S. 170. 170. 3. 4. Wright v. Skinner, 136 F. 694. 5. Not by demurrer. Wright v. Skinner, 136 F. 694. 6. An affluxit stating that complalinants are absent from the state is sufficient to support a verification by complalmant's attorneys. Code 1896, p. 1205, considered. Kinney v. Reeves & Co. \[Ala.\] 39 So. 29. See, also, Verification, 4 C. L. 1816. 7. Kinney v. Reeves & Co. \[Ala.\] 39 So. 29. 8. See 3 C. L. 1222. 9. 8. Durham v. Edwards \[Fla.\] 38 So. 926. Reeves v. McCracken \[N. J. Eq.\] 60 A. 332. 8. bill to recover, for the use of the school fun, damages for cutting timber on school lands, alleging that defendant was the assignee of a lease of such land, held too vague, there being no aberrant showing when, by whom, or to whom the lease was made, nor of its terms, nor whether it was in force or had expired at the time of the acts complained of. Adams v. Griffin \[Aliss.\] 37 So. 457.

5 Cur. Law. EQUITY SS 6B. Where the complaint refers to "other persons," and there is no averment that their names are not known, defendant is entitled to have the names of such persons definitely stated, where they are necessary parties to the action.10

_Multifariousness.11_--Multifariousness is the improper joining in one bill of distinct and independent matters.12 Although there may be several causes of action, if they grow out of the same transaction, and all the defendants are interested in the same rights, and the relief against each is of the same general character, the bill may be sustained.13 The vice of multifariousness is the union of causes of action which, or of parties whose claims, it is either impractical or inconvenient to hear and adjudicate in a single suit.14 Where it is as practical and convenient for court and parties to deal with the claims and parties joined by a petition in one suit as in many, there is no multifariousness.15 Hence the union of two or more causes of action for the same demand or relief does not render the bill or petition which presents them multifarious.16 The question of when a bill is multifarious is largely one of judicial discretion and depends upon the circumstances of each case.17 The fact that all the defendants are not affected to the same extent

10. Smith v. Irvin, 45 Misc. 262, 92 N. Y. Skinner, 136 F. 694. Two causes of action for infringement of a copyright, one with reference to certain extorons and the other with reference to a play based thereon, may be joined In the same bill. Emptre City intect and independent nature against several defendants, it is multifarious; other-sets of sureties on his official bonds is not 214 Ill. 272, 73 N. E. 423. Notth American Ins. Co. v. Yates, 214

01. North American Ins. Co. v. Yates, 214

01. 272, 73 N. E. 423. Multifariousness 14

01. Where a husband conveys the home-avoided if each of the parties is concerned in matters material, provided they are related

enjoin an action of ejcment by the purton or connected with the others. McMullen

chasers and to cancel the deed for fraud is Lumber Co. v. Strother \[IC. A.\] 136 F. 295.

14, 15. Westinghouse Air Brake Co. v. Kansas City Southern R. Co. \[C. C. A.\] 137

16. Westinghouse Air Brake Co. v. Kansas City Southern R. Co. \[C. C. A.\] 137 F. 26. The union of a cause of action upon a mechanie's lien and a cause of action upon a

01. 213. Under Laws 1904, p. 597, a. 837, a bill

an equitable preference in a bill to enforce

numerous stockholders, some of whom are the same demand against the same property

indebted to one portion of the creditors and does not render the pleading multifarious.

17. Johnson v. Black, 103 Va. 477, 49 S. E. 633. Doctrine rests largely in the discretion

of the court; thus considerations of con-

wintone, the avoidance of a multiplicity of

country board of supervisors and a number of

sults, and of unreasonable hardship to the

their predecessors in office to compel defend-

several parties joined are to be taken into account. North American Ins. Co. v. Yates, 214 Ill. 272, 73 N. E. 423.

**LLLUSTRATIONS. Bills held multifarious:**

A bill by a borrowing stockholder in a building and loan association against the asso-

to warehouse and falsify a large number of

cation seeking to have his contract can-

celled for fraud and usury and also seeking

to have a receiver appointed for the association

tion is multifarious. Emmons v. National

C. v. Lawson \[Mas.\] 74 N. E. 921. Where

689. A bill against two defendants which

bions a cause of action at law against one

defendant with one in equity against both

defendants is multifarious. Motley Co. v. Detroit Steel & Spring Co. v. 386.

**Bills held not multifarious:**

A bill by a truste in bankruptcy to recover a payment

bill to wind up the affairs of an insolvent

either as a preference or as a fraudulent

national bank, and to obtain a complete payment is not multifarious. Wright v.

judicial administration of its affairs, invol or in the same way will not deprive the court of jurisdiction." A bill is not multifarious because it pays impossible or improper relief.19 The joinder of cases of action at law and in equity is not permissible,20 though some courts hold that such joinder does not render the bill multifarious inasmuch as the allegations respecting the legal demand may be treated as surplusage.21 The mere recital of the facts of another transaction does not render the bill multifarious, no relief being asked in reference thereto.22 Multifariousness can be taken advantage of by demurrer, plea or answer;23 and where it is manifest upon the face of the bill that two causes of action are presented, the defense can be interposed by general, as well as by special, demurrer.24

_Prayer.26--Where there is more than one prayer for relief, the prayers must be consistent.28_

ing an ascertainment of claims against it, the enforcement of trusts in respect to assets and capital stock, and for the distribution of the proceeds, is not multifarious. George v. Wallace \[C. C. A.\] 135 F. 286. Id.; McCague lav. Co. v. Same, Id. Bill by a state official against a great flumber of defendants, to prevent their several violations of state laws, the facts in each case being similar and there being an identity of interest, is not multifarious. North American Ins. Co. v. Yates, 116 Ill. App. 217. A bill by corporate stockholders against the corporation, its officers and some of its stockholders, alleging violation of a contract with one of the complainants, and praying that a certain officer be required to account and that certain salaries and dividends be refunded and that certain acts of the directors he set aside and that a receiver be appointed, is not multifarious because some of the complainants had acquired their interests after the making of the contract whose breach was alleged. Stone v. Pontiac O. & N. R. Co. \[Mich.\] 102 N. W. 752. In a suit to relieve a lesser from forfeiture for nonpayment of taxes, held, the bill was not multifarious in view of an allegation that there was an arrangement between the parties by which the tax titles should be procured for the purpose of ousting the complainant and putting the holder of the tax died in possession. Webb v. King, 21 App. D. C. 141. A bill by a joint vendee, who was fraudulently induced to pay the entire purchance price on the representation that such sum was but one-half the price; to establish a trust in the land or its proceeds, is not multifarious, though containing a prayer that the complainant he invested with title, or that an intermediary be held to account to him for the purchase money received by her, or that the defendants be held to account to him for the amount of which he was defrauded. Johnston v. Little \[Ala.\] 37 So. 592. A bill by a beneficiary under a foreign will against the executris, seeking an accounting and also alleging that the same defendant was executris and trustee under a will of a resident of the state, in which complainant was interested, and seeking an accounting thereof, held on multifarious. Holzer v. Thomas \[N. J. Eq.\] 61 A. 154. In an action for damages for injury to dwelling houses caused by a stone quarry, and to enjoin the further maintenance of the same, allegations alleging facts 5 Cur. Law. EQUITY SS 6C. 1165

(SS 6) \_C. Amended and supplemental bills, complaints, or petition."--Amendments may be allowed at almost any stage of the proceedings, the right resting largely in the discretion of the court,\[28\] and the exercise of such discretion will not be reversed on appeal unless clearly abusive.\[29\] Except where changed by statute,\[30\] the amendment must be germane.\[31\] and must not set up a new cause of action.\[32\] An amendment is permissible which does not change the cause of action, but merely sets forth a new assignment or breach springing from the original cause.\[33\] A petition may be amended so as to conform to the proofs.\[34\] In Massachussetts a fact, occurring after the filing of the bill, which makes good the plaintiff's cause of action, may be pleaded by amendment.\[35\] Ordinarily, amendments to a sworn bill should be verified;\[38\] but the rule is not rigid and unbending, unverified amendments being allowed.\[37\] Under Federal Equity Rule 28, entitling plaintiff to amend the bill, as a matter of course, before answer, plea or demurrer filed, the amendment need not be supported by affidavit.\[38\] An offered amendment being ineffectual to remedy the defect, its disallowance is not ground for reversal.\[39\] On an appeal in equity, the cause being tried de novo, an amended petition may be filed in conformity with the facts proven in the record;\[30\] but an amendment presenting a radically different case than that presented to the trial court cannot be permitted.\[41\]

\*\*27. See 3 C. L. 125. 25. 25. 3. Small v. Harrington \[Idaho\] 79 P. 461: 25. 3. 3.

A supplemental bill must be germane to the original and amended bills.\[42\] Where no new facts have arisen since the filing of the bill, except that the defendant afterwards continued to do what the bill alleged he was doing and about to do, a supplemental bill is unnecessary.\[43\]

(SS 6) \_D. Cross bill or peilition.\[44\]--\_Except in a few cases, an action for an accounting being one,\[45\] a defendant seeking affirmative relief in a suit in chanery must do so by cross bill.\[46\] The cross bill must state the grounds relied on for affirmative relief with the same strictness required of plaintiff in the original bill;\[47\] it is auxiliary to the original suit, and a dependency upon it, and should not introduce any new or distinct matter not embraced in the original bill,\[48\] nor should it introduce new controversies between the co-defendants to the original bill, the decision of which is in no way necessary to the complete determination of the controversy between the complainant and the defendants over the subject-matter of the original bill.\[49\] A cross bill in an answer is unknown in the practice of Federal courts,\[50\] and a charge in an answer which is denominated a "cross bill" may be accepted as a statement of defendant's case, notwithstanding the misnomer.\[51\] A cross bill simply seeking affirmative relief may be retained and the relief granted,

42. Supplemental bill held not germane to in a partition suit in the Federal court, title the original and amended bills where the objection of the former was to remove obstacles persons not in possession, and the defendants wish to claim compensation for imnersonam, and that of the latter to enforce a tax lien by a proceeding in rem. Langlois v. People, 211 Ill. 75, 72 N. E. 28.

01. Martin v. Sexton, 112 Ill. App. 19.

01. See 3 C. L. 1226.

01. In an action for an accounting the right of the defendant to affirmative relief is as broad and ample as that of the complaint, although no cross bill has been incorporated. Wilcoxon v. Wilcoxon, 111 Ill. App. 90.

NOTE. Necessary for a cross bill in order to obtain affirmative relief: As a general rule a cross bill is essential in order that defendant may obtain affirmative relief. McPherson v. Cox, 96 U. S. 404; Tallman v. Wallack, 54 N. J. Eq. 655, 33 A. 1059; Fletcher Eq. 71, & 76. 891 and cases cited. "There are some well-recognized exceptions to this rule, where a defendant may have a decreter in his favor without a cross bill, as on a bill for specific performance, where the defendant sets up in the answer and proves an agreement different from the one sought to be enforced; on a blind for accounting; it a balance is found due the defendant; and on a bill for partition, where the defendant claims the same relief as is sought by the original bill." Freeland v. South Penn Oll Co., 189 Pa. 54, 41 A. 1000; McClaskey v. Barr, 48 F. 130; Story, Eq. 71 S 394; Cox v. Smith, 131 Johnsh. Ch. \[N. Y.\] 271. A cross bill is not necessary to enable the defendant to avail himself in a set-off in a foreclosure suit. McClaskey v. Barr, 48 F. 130; Jennings v. Webster, 8 Paige \[N. Y.\] 503. The defendant must proceed by cross bill if, in addition to a denial of the decree for partition and the admission of the bill, he seeks further and affirmative relief on his part, by a decree for the transfer to him of the legal title to the whole premises, or if a discovery is necessary to establish his equitable defense. German v. Machin, & Paige \[N. Y.\] 288; McClaskey v. Barr, 48 F. 130. It is held in McClaskey v. Barr, 48 F. 130, that when, * 5 Cur. Law. EQUITY SS 6E.

though the original bill be dismissed.\[52\] A cross bill must be promptly filed.\[53\] Where the issues raised by the cross bill depend upon the issues under the original bill, the hearing of the former should be stayed until the latter have been decided.\[54\] The failure of a cross complaint to require an answer is a waiver thereof.\[55\] A reply will generally prevent a decree pro confesso on the cross bill.\[56\] (SS 6) _E. Demurrer. Grounds.\[57\]_--Except in the "code states" a demurrer does not lie to a plea or answer.\[58\] As to whether the questions of laches or adequate remedy at law can be raised by demurrer, there is a conflict.\[59\] In equity the statute of limitations may be availed of on demurrer to a bill where the bar appears on its face, unless equitable excuse is alleged in the bill to avoid the bar.\[60\] A general demurrer will be overruled if the bill contains any ground of equitable relief.\[61\] When some allegations in a bill show a case entitling a complainant to some relief, but are contradicted by other allegations in the same bill, and it is impossible for the court to determine the true nature of the case sought to be made by the bill, a demurrer thereto should be sustained.\[62\] A demurrer will not be sustained because the allegations do not entitle complainant to all the relief demanded in the prayer.\[63\] Where the bill alleges a state of facts entitling plaintiff to relief under the general prayer, the failure to ask specifically for such relief is not ground for dismissing the bill on demurrer.\[64\] _Form.\[65\]_--The demurrer must point out specifically what sentences or paragraphs of the bill are demurred to.\[66\] A demurrant may present, ore tenus, an additional ground of demurrer.\[67\] _Effect of, and procedure on, demurrer.\[68\]_--A general demurrer goes to the merits of the case.\[69\] The complaint being insufficient, a demurrer to the answer will be overruled.\[70\] In passing upon a demurrer to a bill, every presumption is against the bill.\[71\] A demurrer to a nonexisting part of a bill should be treated

- 52 Calahanan v. Mercantile Trust Co. \[Mass.\] 74 N. E. 666.
- 53 Application in a divorce suit, to file a cross bill allegating adultery on the part of plaintiff, being made more than six months after issue joined, and no excuse for the delay offered, will be denied. Costell v. Costell \[N. J. Eq. 160 A. 49. 54. Where, in a suit to set aside a judicial sale of a remainder, defendant filed a cross bill praying that a mortgage executed on the land by the remamdendarm be removed as a cloud on defendant's title, the proceedings under the cross bill should be stayed until the issues under the original bill have been determined. Henderson v. Klibble, 211 Ill. 566. 71 N. E. 1091.
- 55 Cribbs v. Walker \[Ark.\] 85 S. W. 244.
- 56 Where a cross bill is blended with matter pleaded as an affirmative defense, a reply denying the new matter is sufficient to deprive defendant of the right to a judgment pro confesso on the cross bill, though the code requires a separate answer to a cross bill and a reply to new matter, where the answer contains new matter and a cross bill. Castleman v. Castleman, 184 Mo. 432, 83 S. W. 757.
- 57 See S. C. L. 1227.
- 58 Demurrers to the evidence, see post, SS 12. Also see topic Directing Verdict and Demurrer to Evidence. 5 C. L. 1004.
- 58 Pennsylvania Co. v. Bay, 138 F. 203.
- 59 See ante, SS 3, Laches and acquiescence and SS 2B, Existence of an adequate remedy at law.
- 60 Wleczorek v. Adamski, 114 Ill. App. \[Mass.\] 74 N. E. 666.
- 61 Cole v. Cole \[N. J. Eq.\] 59 A. 895: Addison v. Ducktown Sulphur, Copper & Plaintiff, being made more than six months after issue joined, and no excuse for the delay offered, will be denied. Costell v. Costell \[N. J. Eq. 160 A. 49. 54. Where, in a suit to set aside a judicial sale of a remainder, defendant filed a cross bill praying that a mortgage executed on the land by the remamdendarm be removed as a cloud on defendant's title, the proceedings under the cross bill should be stayed until the latter have been decided.\[54\] The failure of a cross complaint to require an answer is a waiver thereof.\[55\] A reply will generally prevent a decree pro confesso on the cross bill.\[56\] (SS 6) _E. Demurrer. Grounds.\[57\]_--Except in the "code states" a demurrer does not lie to a plea or answer.\[58\] As to whether the questions of laches or adequate remedy at law can be raised by demurrer, there is a conflict.\[59\] In equity the statute of limitations may be availed of on demurrer to a bill where the bar appears on its face, unless equitable excuse is alleged in the bill to avoid the bar.\[60\] A general demurrer will be overruled if the bill contains any ground of equitable relief.\[61\] When some allegations in a bill show a case entitling a complainant to some relief, but are contradicted by other allegations in the same bill, and it is impossible for the court to determine the true nature of the case sought to 1168

EQUITY SS 6F. 5 Cur. Law. as a demurrer to the whole bill.72 A demurrer admits all material statements of facts which are well pleaded; 73 but it does not admit inferences or conclusions of law.74 Where a bill combines prayers for proper and improper relief, and a demurrer to the part of the bill seeking improper relief is sustained, the bill will be retained for the administration of the relief properly sought.75 A demurrer waives the fact that an amendment is not verified,76 and also any error in a previous ruling on a motion to dismiss.77 A general demurrer waives want of demand before the suit is brought.78 By answering after a general demurrer is overruled, the right to assign error in overruling the demurrer is waived.79 The proper order on sustaining a demurrer is "Demurrer sustained with leave to amend," and on failure to amend, "Bill dismissed," 80 but an order omitting the words "Demurrer sustained," and dismissing the bill absolutely, will not be reversed where the bill was properly dismissed for want of jurisdiction.81

(SS 6) \_F. Plea.82--Unlike a demurrer, one of the main objects of a plea is to bring upon the record such new matter as has not been shown or relied on by the plaintiff, as will preclude him from the relief sought in the bill; 83 hence, whatever shows that there is no right which can be made the foundation of a suit or decree therein for the plaintiff may constitute the subject of a plea.84 A plea must present some single definite point on the maintenance of which the bill will be disposed of.85 It must not be uncertain or evasive,86 and must not tender an issue on an immaterial allegation in the bill.87 In some states a plea must be supported by an affidavit that it is not interposed for delay.88 Under Federal Equity Rule 31, a joint plea should ordinarily be verified by all of the defendants in whose behalf it is filed.89 Setting pleas down for hearing upon their sufficiency is an admission of the facts, but not the conclusions averred in them; 80 likewise the defendant admits to be true the facts alleged in the bill which are not denied by the plea,91 and setting a plea down for argument is a waiver of objections for want of proper verification.92 When a replication has been filed to a plea, it is incumbent upon the defendant to prove the 5 Cur. Law. EQUITY SS 6G. 1169

facts which the pleas suggest."3 If the plaintiff conceives the plea to be defective in point of form or substance, he may take the judgment of the court upon its sufficiency; and so may the defendant interposing the plea, and thus have its sufficiency determined before proceeding further with the defense."4 If plea is defective it may be amended."5 A plea and an answer strictly and wholly in support of the plea form one pleading, and such an answer cannot be regarded as a defense independent of the plea;" but when an answer contains more than is strictly applicable to the support of the plea, it will have the effect of overruling the plea."7

(SS 6) _G. Answer._"8--The answer should fairly meet the allegations of the bill,"9 and, while it need not set forth in detail all the circumstances connected with the facts alleged in the answer," yet it must apprise complainant of the nature of the defense," and defendant cannot avail himself of matters of defense appearing in the evidence but not set up in the answer," unless he amends his answer." When an answer in chameery concludes with the usual general denial found in such a pleading, it is sufficient to make an issue on material allegations in the bill, not admitted in the answer, and to which no especial response is made." Such allegations cannot be taken as admitted to be true, but must be proved by at least a preponderance of the testimony." While the same defense cannot be made by both plea and answer to a bill, yet after the plea has been adjudged insufficient, the same matter of defense set up by the plea may be advanced and relied upon in the answer." In order that the answer of one co-defendant may re-dound to the benefit of another, their interests must not be separate and distinct." An assignment of certain money sued for cannot be set aside for fraud under an answer containing a general denial only." Where the defense is former adjudication, the answer should be supported by a verified copy of the record and decree in the former suit, exhibited as part of the answer."10 A rule requiring an answer to be divided into paragraphs should not be applied where it would work an unnecessary hardship."11 It is proper to file supplemental answers setting up facts occurring since the filing of the original answer."12

92. Computing Scale Co. v. Moore, 139 F. 197. 198. 199.

On a final hearing of a cause upon bill, answer and replication, after the time for taking testimony has expired, every averment in the answer responsive to the bill is taken as true.\[13\]

\_Verification.\[14\]--\_Unverified answers which neither deny the substantial allegations of the bill nor allege any sufficient ground of defense are insufficient.\[15\]

\_Effect of answer; as evidence; admissions.\[16\]--\_By answering, defendant may waive errors in the petition,\[17\] and in the ruling of a court denying a motion to strike out an amended petition.\[18\]

Unless the verification be waived,\[10\] a responsive, sworn answer in equity can only be overcome by the testimony of two witnesses, or of one witness and corroborating circumstances,\[20\] though in some states, to have this effect, discovery must be expressly prayed for.\[21\]

Oath to the answer being waived, complainant must prove the material allegations in the bill by a preponderance of evidence.\[22\] An answer admitting the truth of certain allegations in the bill, the facts so alleged and admitted, are not in issue; consequently the complainant is entitled to a decree upon such allegations, though he produces no other proof, even though defendant has produced evidence tending to show that the allegations are untrue.\[23\]

Pleadings can only be used as evidence by way of admission against the parties whose pleadings they are,\[24\]

hence admissions in the answer of adult defendants do not bind infant co-defendants.\[25\]

Where an answer is used in support of a bill, the whole of the answer must be taken together, and explanations given must be used in connection with the admissions made.\[26\]

Plaintiff setting down the case for hearing upon bill and answer, he admits the truth of every fact set forth in the answer,\[27\]

and this is true as well of averments in avoidance of, as of those responsive to, the allegations of the bill.\[28\]

(SS 6)

\_H. Replication, exceptions and motions.\[29\]--\_When a general replication is filed to an answer in chanery, it thereby puts in issue all the matters alleged in the bill and not admitted in the answer,\[80\]

as well as those matters contained in the

13. Lykes v. Beauchamp {Fla.} 88 So. 603.

the evidence, may prove sufficient to overcome the probative force of the sworn answer. Id. Where both an answer and a plea are filed, it is incumbent upon the complainant to prove the allegations in his bill as to the matters contained in the answer, which were not in support of the plea, but which were responsive to the bill. Id. Complaints sustaining the original and first amended requiring an answer under oath make the same evidence so far as it is responsive to the charges contained in the complaint and to the interrogatories propounded. Evans v. Evans \[N. J. Eq. 59 A. 564. In a suit to set aside an alleged fraudulent convegance, evidence held insufficient to overcome answer. Id. Is open to explanation and rebuttal, unless sworn to with knowledge of the facts. Potter v. Fitchburg Steam Engine Co., 110 II). App. 480.

21. Toomer v. Warren {Ga.} 51 S. E. 393.

01. Parker v. Safford {Fla.} 37 So. 667: Lykes v. Beauchamp {Fla.} 38 So. 603.

01. Lainhart v. Burr {Fla.} 38 So. 711.

01. Potter v. Fitchburg Steam Engine Co., 110 II. App. 430.

01. Prodberg v. Hagan {W.,} 50 S. E.

01.

01. Reager's Adm'r v. Chappelcar {Va.} 51 S. E. 170.

01. Read v. Reynolds {Md.} 59 A. 669: Bowers v. McGavock {Tenn.} 85 S. W. 893.

01. Read v. Reynolds {Md.} 59 A. 669.

01. See 3 C. L. 1230.

5 Cur. Law. EQUITY SS 7. 1171

answer which are not responsive to the bill,\[31\] and it is incumbent upon the complaint to prove all such matters by at least a preponderance of the evidence, the south to the answer being waived.\[32\] The replication cannot be made to perform the office of a bill of exceptions.\[43\] Exceptions to an answer will lie for scandalous or impertinent matter contained therein,\[34\] but not as to matters admissible under the issues formed.\[35\] An exception to an answer for insufficiency does not raise the question of the sufficiency of the answer in point of law,\[36\] but raises the question as to whether a sufficient discovery has been made by the defendant, or the averments fully answered.\[37\] If such complete answer has been made, exceptions to new matter therein will not lie for insufficiency.\[38\] Exceptions for insufficiency will lie to the answer of a corporation.\[39\]

(SS 6) I. Issues, proof and variance.\[40\] An allegation in a bill of material matter and a direct denial of that allegation in the answer frames an issue of fact.\[41\] The allegation and proof must agree. A recovery will not be allowed in a case, although proved, which differs essentially from that alleged in the bill.\[42\]

(SS 6) J. Objections and waiver thereof.\[43\] It is a general rule that certain objections must be taken by demurrer,\[44\] plea,\[45\] or answer,\[46\] according to the nature of the defect, and also that by proceeding to plead defects may be waived. By going to trial on the merits, defendant waives all objections to the sufficiency of plaintiff's pleadings.\[47\] Appearance without objection waives defects in notice indorsed on bill.\[48\]

SS 7. Taking bill as confessed or on default.\[49\] It is proper to take a bill for confessed as to all defendants thereto who have been personally served with process, or who have appeared in the cause and have failed to answer or make an issue therein.\[50\] When a plea in equity is not properly verified, complainant should disregard the plea and take a decree pro confesso.\[51\] A decree pro confesso cannot be entered if there is an answer on file, even though exceptions to it have been sustained.\[52\] A bill cannot be taken for confessed as to infants.\[58\] If the allegations of

**30.** Parker v. Safford \[Fla.\] 37 So. 567; the possession of the decedent up to the time of his death, held not a fatal variance. Darlingen v. Safford \[Fla.\] 37 So. 567,

**31.** Parker v. Safford \[Fla.\] 37 So. 567,

**32.** Lykes v. Beauchamp \[Fla.\] 38 So. 603;

**33.** Robins v. American Car & Foundry Co.

**34.** 35, 36, 37, 38. Pennsylvania Co. v. Bay,

**39.** 39.

1173

Equity 8. 5 Cur. Law.

a bill are distinct and positive, they may be taken as true without proof, if the defendant makes no defense; but if they are indefinite, or if the demand of the complaint is in its nature uncertain, the requisite certainty must be afforded by proof.\[54\]

A decree pro confesso admits the facts charged in the bill, but not the conclusions drawn therefrom, nor the conclusions of law.\[55\]

States largely regulate the time within which application may be made to open a decree pro confesso.\[56\]

In the Federal courts a decree pro confesso on a cross bill may be vacated on motion after the adjournment of the term.\[57\]

The court will generally open the decree if the applicant shows a meritorious defense \[58\]

and an excuse for his default.\[59\]

If a partial defense is shown it will modify the decree pro tanto.\[60\]

A consent decree will not be set aside because, through accident and mistake, one of the consenting parties failed to introduce evidence which was in his possession, and which might, if submitted on a trial, have resulted in the rendition of a decree different from the one which was taken by consent.\[61\]

In some states, reversible error being shown, the trial court should reverse the decree and render a correct one.\[62\]

SS 8. _Abatement and revival.\[63\]_

Upon a bill of revivor the merits of the proceeding sought to be reviewed will be inquired into, and if the cause was properly adjudicated the relief sought by the bill of revivor will be denied.\[64\]

A bill of revival is not the proper remedy where a decree has become final by failure to appeal.\[65\]

SS 9. _Dismissal.\[66\]_

_Voluntary dismissal.\[67\]_

As a general rule, there being no cross bill on file and the answer not seeking affirmative relief, the complainant has the right, upon the payment of costs, to dismiss his bill at any time before final decree;\[68\]

an exception to the above rule exists where a proceeding to account has

54. Perkins v. Tyver, 24 App. D. C. 447.

on an application to open a decree pro con-Under Code Civ. Proc. & 267, plaintiff is not entitled to judgment by default of answer, but is bound to establish his right to the receipt sought to the satisfaction of the channel.\[69\]

they were not entitled to have the decree cellor. Cannaday v. Martin \[S. C.\] 51 S. E. 649.

55. Perkins v. Tyver, 24 App. D. C. 447.

01. Florida: A final decree rendered in pursuance of a previous decree pro confesso may be set aside after the lapse of 20 days from its entry, whereby it has become absolute under Rev. St. 1892, $ 1446, but an application to set aside such a final decree after the expiration of 20 days from its entry should never be entertained from a mere desire to let in a defense on the merits, but only where strong and unavoidable cir-cumstances exist excusing failure to answer at the proper time. Macfarlane v. Dorsey \[YTa\] 38. 50. 512.

Rhode Island: Under Gen. Laws 1896. c. 240, $ 10, as amended by Pub. Laws, p. S1, c. 671, providing that a decree pro confesso shall be "conclusive," such a decree has the same effect as a decree entered after appearance and hearing, and may, under Gen. Laws, c. 246, $ 2, be opened within six months after Its entry. Masterson v. Whipple \[R. L\]

61. A 446.

01. Is within Federal Equity Rule I, but not within Rule 19. Bythe Co. v. Bankers' Ins. Co. \[C.L.\] 81 P. 286.

01. Robinson v. Arkansas Loan & Trust Co. \[Ark.\] 85 S. W. 413. A decree pro confesso on a bill for an account will not be vacated, it being clear that defendant is under a duty to account. Tull v. Brooke, 24 Pa. Super. Ct. 426.

01. Where parties did not depart or answer, though represented by counsel, and shortly after an amended bill had been filed * 5 Cur. Law. , EQUITY SS 9. , reached the stage where the parties have been ordered to account to each other,69 and in some states this right to dismiss is not an absolute one after the cause has been set down for final hearing.70 The general rule is, moreover, subject to the exception that where such dismissal would be manifestly prejudicial to the defendant it will not be permitted.71 The suit must have progressed so far that defendant, upon answer or cross bill, is either entitled to a decree, or the injury or prejudice to him because of the dismissal is of a character that deprives him of some substantial rights concerning the matter of the original bill which would not be available to him in a second suit; 72 and it is uniformly held that mere liability to or the inconvenience of future litigation against him regarding the subject-matter of the suit is not of that character.73

\_Involuntary dismissal.74--\_In a strictly equitable action there is no such thing as a technical nonsuit.75 Defendant may, if he chooses, submit the cause to the court for decision,76 or may, where the bill shows want of equity 77 or is unsupported by evidence,78 or the suit has been abandoned,79 move for the dismissal of the bill. In some states the legal nature of the action is not ground for dismissal, but the cause should be transferred on motion being made.80 The dismissal of a bill for want of equity is a matter of discretion, and cannot be controlled by mandams.81 A motion to dismiss for want of equity is not the equivalent of a denmurrer, nor is it sufficient to reach mere defects or insufficiencies of pleading curable by amendment; 88 but the possibility that a bill showing no equity can be amended so as to give it equity is no ground for its retention against a motion to dismiss.83 Where a suit is improperly brought in equity, it should not on that account be dismissed, but should be transferred to the law court, and, if no motion is made to transfer the cause, the objection is waived.84

\_Effect.85--\_A general decree of dismissal of a suit in equity, without more, renders all the issues in the case res adjudicata, and constitutes a bar to an action at law for the same cause.86 Hence, when the court has no jurisdiction of the suit, the decree of dismissal must expressly adjudge that it is for that reason, or must expressly provide that it is made without prejudice, to the end that the complainant may resort to his action at law for any damages he may have sustained.87 The dismissal of the original bill before the final hearing carries with it the cross bill, in so far as that bill alleges matters that are defensive to the original bill.88

v. American Percheron Horse Breders' & Importers' Ass'n, 114 Ill. App. 131; Wilcoxon , V. Wilcoxon, 111 Ill. App. 90. The rule pre-

Code 1870, five years' delay in prosecuting a village in some jurisdictions, which recognizes a suit will be dismissed at the suggestion of to restrict the exercise of this right, does

any party in interest. Lockhart v. Lockhart, not exist in Illinois. Id.

**80.** In such a case a cross bill is not nec-

**80.** Cribbs v. Walker \[Ark.\] 85 S. W. 244.

essary. Wilcoxon v. Wilcoxon, 111 Ill. App. 90.

**70.** After a cause in equity has been set

down for a final hearing after issue and ex-

**81.** A. Johnston v. Little \[Ala.\] 37 S. 692.

piration of the time for taking testimony, in accordance with the provisions of Equity

Rules Nos. 85 and 86, the complainant has no

absolute right to a dismissal of his bill with

out prejudice, this being a matter resting

within the sound judicial discretion of the

court below. Lykes v. Beauchamp \[Fla.\] 38 So. 603.

71, 72, 73. Gilmore v. Bort, 134 F. 658.

74. See 3 C. L. 1282.

75, 76. Morrison v. Jones \[Mont.\] 77 P.

507. Hendry v. Whidden \[Fla.\] 37 So. 571.

001. Finch v. Finch, 111 Ill. App. 481.

001. Under Act No. 107, p. 155, of 1898,

amending and reenacting article 3519, Civ.

Code 1870, five years' delay in prosecuting a village in some jurisdictions, which recognizes a suit will be dismissed at the suggestion of

any party in interest. Lockhart v. Lockhart,

not exist in Illinois. Id.

80.\*\* Cribbs v. Walker \[Ark.\] 85 S. W. 244.

Failure to make the motion waives the defect. Id.

81. Ex parte Merritt \[Ala.\] 38 So. 183.

01. Johnston v. Little \[Ala.\] 37 So. 692.

01. Edins v. Murphere \[Ala.\] 38 So. 639.

01. Cribbs v. Waiker \[Ark.\] 85 S. W. 244.

See Doeckets, Calendars and Trial Lists, 5 C. L. 1039.

85. See 3 C. L. 1232.

01. Indian Land & Trust Co. v. Shoenfelt

01. \[C. C. A.\] 135 F. 484; Wagenhurst v. Wineland, 22 App. D. C. 356. Where order is not made, "without prejudice," it is presumed that dismissal was on the merits. Lykes v.

_Vacation of order.\[90\]_--A motion to open an order of dismissal must be promptly made.\[90\]

_Trial by jury or master.\[91\] their verdicts and findings.\[92\]_--While juries are not appropriate tribunals to determine purely equitable controversies,\[93\] still the chancellor may, in his discretion,\[94\] call a jury to try any issue of fact, either legal or equitable.\[95\] By the statutes of some states trial by jury in equity is made a matter of right.\[96\] The verdict of the jury is merely advisory.\[97\] A party by permitting the impaneling of a jury without objection does not thereby render its verdict binding.\[98\] It has been held that a verdict upon a legal issue is conclusive until set aside by competent authority.\[99\] In Minnesota the verdict of a jury upon specific questions of fact is as binding on the court as a general verdict in a legal action, and is subject to the same rules as to setting it aside for insufficiency of evidence.\[1\]

_Evidence.\[2\]_--In general it may be said that the rules of evidence are the same in law and in equity,\[3\] though the court is not confined to the strict rules prescribed for the admission of evidence in law cases.\[4\] The matter of enlarging the time for taking testimony rests in the sound judicial discretion of the trial court,\[8\] and an exercise of such discretion will not be reversed on appeal unless the discretion is shown to have been abused.\[6\] Application not being made within the time fixed by the rules of the court, the circumstances, to excuse the delay, must have been controlling and unavoidable.\[7\] One failing to make an application to have the case referred to a commissioner cannot object that the service of plaintiff's notice of his intention to take testimony in open court is premature.\[8\] Every remedy having for its object the perpetuation of testimony is confined to the testimony of witnesses in being.\[9\]

_Bearing or trial.\[10\]_--The parties are entitled to a hearing before the issues can be adjudicated.\[11\] The conduct of the trial is in the sound discretion of the 97. McClelland V. Bullis \[Colo.\] $1 P. 90. Where case was dismissed for lack of prosecution two years and nine months after parties had appeared and defendants deparurred, held, a motion to vacate the order court erred in calling jury and in submit-made 44 days after the making of the order and two days before the end of the term would be denied. Peddecord v. Vanniger-Rolz, 105 11. App. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 188. 189. 189. 189. 189. 189. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 21. 22. 23. 24. 25. 26. 27. 28. 29. 28. 29. 29. 29. 29. 30. 29. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 39. 41. 39. 42. 30. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 51. 53. 57. 59. 61. 54. 56. 58. 59. 62. 63. 64. 65. 66. 67. 68. 69. 60. 61. 62. 63. 65. 67. 68. 69. 61. 63. 68. 69. 60. 62. 64. 66. 67. 69. 61. 64. 68. 69. 62. 65. 68. 69. 60. 63. 61. 64. 69. 62. 66. 67. 68. 69. 61. 65. 69. 62. 66. 68. 69. 60. 63. 64. 66. 67. 68. 69. 61. 69. 60. 64. 69. 61. 61. 62. 63. 64. 65. 66. 67. 68. 69. 61. 68. 69. 62. 69. 63. 64. 66. 68. 69. 60. 64. 69. 61. 65. 67. 69. 62. 66. 68. 69. 61. 69. 60. 61. 61. 62. 63. 64. 66. 67. 68. 69. 61. 69. 62. 63. 65. 67. 69. 61. 66. 68. 69. 60. 61. 69. 61. 62. 64. 66. 69.

5 Cur. Law. EQUITY SS 13.

chancellor,\[12\] hence it is discretionary with him whether certain matters shall be passed by for the time being,\[13\] whether legal or equitable issues shall be first tried,\[14\] and whether, after the cause has been closed, it shall be opened to allow the introduction of more evidence.\[18\] In Pennsylvania the trial of the cause is regulated by rules promulgated by the supreme court;\[10\] these rules of court have the force of a statute,\[17\] and cannot be suspended by the court of common pleas, nor can that court adopt others inconsistent therewith;\[18\] but the rules are subject to the discretion of the chancellor as to their strict enforcement under circumstances productive of in-justice or exceptional hardship.\[19\] A plaintiff being in contempt of court, he has no absolute right to proceed with the trial.\[20\] A feigned issue does not admit of any other defenses than are included in such issue.\[21\] Where an equitable action is tried on oral evidence, the effect of a demurrer to the evidence by defendant is the same as in a law action.\[22\] The taxation of costs is a matter of discretion with the trial court, and, in the absence of abuse, the exercise of such discretion will not be interfered with on appeal.\[33\]

SS 13. _Findings by court\[24\] and decree, judgment or order.\[25\]_--The usage and practice of courts of equity do not require any findings of fact as preliminary to the validity of a decree in equity,\[26\] and while it is the growing practice in some states to file a finding of facts with the decree, yet the propriety of doing so rests wholly within the discretion of the sitting justice,\[27\] and if the justice does make a finding of facts, and therein declares none inconsistent with the allegations of the bill, the omission to find other facts that might have been found will in no way affect the validity of the decree.\[28\] Findings appearing in the decree, it is not necessary that they should appear in findings separate therefrom.\[29\] As before shown, the court may disregard the verdict of the jury,\[30\] and, neither party offering proof, the court may make its own findings without hearing additional evidence.\[31\] Findings of chancellor as to matters of fact will not be reversed on appeal, unless they are clearly and manifestly against the weight of the evidence.\[32\]

_The decree\[33\]_ must be entered by the court.\[34\] Where a bill in equity is filed in connection with an information, separate decrees may be rendered on the bill and information.\[35\] The decree must be supported either by a certificate of the oral evidence heard, or by recitals in the decree of the facts found by the court to be established by the evidence.\[36\] An objection to parties is not the proper subject of de-

interest of the parties to the litigation, including the rights and interests of such de-

Felandant and cross complainant. Geteslman

v. Blazier, 112 Ill. App. 648.

12. Winn v. Itzel \[Wi8.103 N. W. 220.

01. Randolph v. Nichol \[Ark.\] 84 S. W.

01.

01. McGCreary Land & Investment Co. v. Myers, 70 S. C. 282, 49 S. E. 848.

01. Winn v. Itzel \[Wi8.103 N. W. 220.

16, 17, 18, 19. Green v. Prince Metallic

17, 18, 19. Green v. Prince Metallic

Paint Co., 25 Pa. Super. Ct. 415.

20. Campbell v. Justices of Superior Court

\[Mass.\] 73 N. E. 659.

21. Mulhearn v. Roach, 24 Pa. Super. Ct. 483.

01. Anthony v. Kennard Bldg. Co. \[Mo.\] 87 S. W. 921. See Directing Verdict and De-

murrer to the Evidence, 5 C. L. 1004, for discussion of subject.

23. Andrews v. Scott, 113 Ill. App. 581.

01. Verdict and findings of jury or master, see ante, 10.

01. See 3 C. L. 1234, 1235.

26, 27, 28. Pierce v. Woodbury \[Me.\] 60 A. 124.

28. Reiner v. Schroeder, 146 Cal. 411, 80 P. 617.

01. See ante, $ 10.

01. McClelland v. Bullis \[Co10.\] 81 P. 771.

01. Schoop v. Schoop, 115 Ill. App. 343;

01. Entwhistle v. Henke, 113 Ill. App. 572; Obney v. Obney, 26 Pa. Super. Ct. 116; Id., 26 Pa. Super. Ct. 122. Findings of court were in

01. Super. Ct. 122. Findings of court were in

01. Winn v. Itzel \[Wi8.103 N. W. 220.

16, 17, 18, 19. Green v. Prince Metallic

36. Peint Co., 25 Pa. Super. Ct. 415.

01. Campbell v. Justices of Superior Court

\[Mass.\] 73 N. E. 659.

21. Mulhearn v. Roach, 24 Pa. Super. Ct. 483.

01. Anthony v. Kennard Bldg. Co. \[Mo.\] 87 S. W.

cree, but a statement in the preliminary part of a decree that all proper parties have been joined is not an irregularity calling for a reversal.\[37\] A decree is improper which in effect asserts the adequacy of the legal remedy by providing security against damages.\[38\]

\_Effect and construction.\[89\]--\_A decree rendered upon a cross bill is interlocutory.\[40\] 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.\[41\] A decree to which all parties in interest who were in esse at the time the proceedings became his pendens is binding upon parties in interest subsequently coming into being.\[43\]

\_Measure of relief.\[42\]--\_A court of equity obtaining jurisdiction of the suit, it has power to grant full relief, legal as well as equitable;\[44\] such relief must, however, be warranted by the facts and be within the issues made by the pleadings;\[45\] that the pleader is mistaken in the relief which he asks is immaterial.\[46\] It has been held that a party is entitled to such relief as the nature of the case, and the facts as they exist at the close of the litigation, demand.\[47\] Under a prayer for general relief, whatever relief is justified by the allegations of the bill and the proof may be awarded,\[48\] and, where all the facts are stated, it is no reason for denying relief under a general prayer, because it may differ from the theory of the law upon which the special prayer for relief is based, where both prayers are based on the same facts, clearly set forth in the bill.\[49\] On the trial of a feigned issue to determine the ownership of a fund paid into court it is error to permit a verdict and judgment to be entered against the defendant for a stated sum. The verdict and judgment should be for the plaintiff generally.\[40\] The decree may provide for further contingencies,\[51\] and the defendants being liable for different periods, the decree may regulate and provide the periods for which each defendant shall be held responsible.\[52\] The court may condition its grant of relief, by re-

should not be accepted. Day v. Davis, 218 111. 53. 72 N. E. 682.

**37.** Worcester City Missionary Soc. v. Memorial Church, 186 Mass. 531, 72 N. E. 71.

**38.** Western Union Tel. Co. v. Elec. Light & Power Co., 178 N. Y. 325, 70 N. E. 866.

**39.** See 3 C. L. 1234.

**40.** Blythe Co. v. Bankers' Inv. Co. \[Cal.\]

\*\*51 P. 281.

**41.** Kozacek v. Kozacek, 105 Ill. App. 180.

**42.** Pinkney v. Weaver, 115 Ill. App. 582.

**43.** See 3 C. L. 1234.

**44.** See ante, $ 2 B, subd. Doing complete justice.

**45.** See 3'C. L. 1234, N. 98. A bill alleging that the deed was procured by fraud and undue influence at a certain place, a decree that the deed was obtained by fraud and undue Influence, without reference to the place, does not vary from the allegations of the bill. Volinenwelder, 216 Ill. 197, 74 N. E. 795. Under the Code of Practice relief may be granted according to the facts alleged and proved, though they are Insufficient to constitute a cross complaint, and the pleading by which they are set forth is so designated. Randolph v. Nichol \[Ark.\] 84 N. W. 1087.

**46.** Hunt v. Fronizer, $ Ohio N. P. (N. S.)

**303.** Equitable rights will not be denied to a defendant who has failed to pray for the equitable protection of the court in a suit for recovery of money paid out of the county quiring that complainants do equity to their opponents, although the latter have been barred by limitation or by laches from successfully seeking that equity by an independent suit.\[88\]

Immaterial errors will be disregarded.\[84\]

_Modifications and amendment; vacation and setting aside; collateral attack.\[85\]_--\_

The court has power, after announcing a judgment, to amend the order before it is signed, to conform to the facts.\[86\]

After the expiration of the term of court at which a decree was rendered, the court has no power over it, except to correct it in matters of form,\[87\] and it may, after directing the preparation of a decree dismissing a cross bill for want of equity, allow the cross complainant to dismiss without prejudice.\[88\]

The application being made within a reasonable time,\[89\]

the decree will be opened or set aside when to do so will result in doing equity.\[80\]

Courts of equity will not set aside a decree upon the ground that it was obtained by false evidence, but only for fraud which gives the court a colorable jurisdiction.\[81\]

As in other cases, the proof of the fraud must be clear and satisfactory.\[82\]

A bill to impeach a decree by fraud, though not within the terms of the statute which bars a bill of review, must, by analogy, be governed by the same limitations.\[83\]

Statutory methods of procedure govern.\[84\]

**SS 14.**_Reheating.\[86\]_--A rehearing will not be ordered unless some special reason other than the desire of the defeated party to try the cause over again, be shown;\[88\]

the chancellor may, however, grant a new trial if he is satisfied that the verdict or finding is against the weight of the evidence.\[97\]

If the application is also for leave to present additional testimony, it must be shown that such testimony is newly discovered evidence, not accessible to the petitioner at the time of hearing, and that it will probably change the result.\[88\]

A motion for a new trial being sustained, the cause is at issue for trial again, and the court has no authority to enter a judgment without another trial.\[89\]

**SS 15.**_Bill of review.\[70\]_--The object of a bill of review, or a bill in the nature

stockholders against directors. Barry v. haved decree in favor of a volunteer opened, Moeller \[N. J. Eq.\] 59 A. 97.

**SS3.** Burnes v. Burnes \[C. C. A.\] 137 F. v. Phinley, 121 Ga. 673, 49 S. E. 865.

781.

**SS4.** Where, In an action on a vendor's line note, defendant prayed for specific performance of a contract with plaintiff's decedent, N. E. 1082. Two and a half years delay held whereby the note had been paid, held that, while the pleadings did not authorize the rendition of a general judgment for defendant on a finding that the note had been paid, yet being but a short way of accomplishing the right result, the judgment was not erroneous. Hasenbeck v. Hasenbeck \[Mo. App.\] 85 S. W. 916.

**SS5.** See \*\*S \*\*C. L. 1235.

**SS6.** Harmon v. Thompson \[Ky.\] 84 S. W. 56.

**SS7.** Finch v. Finch, 111 III. App. 481.

**SS8.** Paltzer v. Johnston, 213 Ill. 338, 72 N. E. 702.

**SS9.** A divorce decree will not be set aside where the party in whose favor it was rendered is dead, the rights of infants have intervened and the \<mplaimant has been guilty of laches. F.-ans v. Woodworth, 115 Ill. App. 202. Where a judgment note is not entered up until five years after its date, and no rule is taken to open it until four years after its entry, and the testimony on the rule to open is contradictory in character, the court is justified in refusing to open the judgment. Fryberger v. Motter, 24 Pa. Super. Ct. 317.

**SS6.** Where purchaser for value applied to of a bill of review, is to procure the reversal, alteration, or explanation of a decree in a former suit.\[71\] If the decree has been signed and enrolled, the practice is to file a bill of review, if not, a bill in the nature of a bill of review.\[12\] When it is sought to review errors of law apparent on the face of the record, a bill of review may be filed without leave first had and obtained; \[78\] but where it is to review the findings by reason of newly discovered evidence, leave must first be had,\[74\] and the granting of such leave rests in the sound discretion of the court.\[75\] While ordinarily before a bill of review can be filed the decree sought to be reviewed must be first obeyed and performed, prior obedience or performance may be excused by poverty, want of assets, and other inability to perform the decree,\[76\] and the court may, in the exercise of its judicial discretion, grant leave to file the bill without such previous performance.\[77\] An order overruling a motion to strike the bill from the files, which motion is based upon complainant's failure to perform, is equivalent to the granting of such special leave.\[78\] A bill of review does not lie to vacate or review a consent decree unless the consent of the parties was obtained by fraud or mistake.\[79\] All persons or the legal representatives of persons who are necessary parties to the judgment sought to be reviewed must be made parties to the bill of review.\[80\] The term "legal representatives" means the executor or administrator if the subject-matter is personality, and heirs or devisees if it is really.\[81\]

\_Time for bill; laches.\[82\]-Except where the review sought is founded on matters discovered since the decree,\[83\] in the absence of express statutory enactment a bill of review must ordinarily be filed within the time limited by statute for the taking of an appeal\[84\] or the suing out of a writ of error.\[85\] Laches will bar the right.\[86\]\_Grounds.\[87\]-A bill of review must rest on error in law apparent from the face of the record,\[88\] fraud in procuring the decree,\[80\] or newly discovered evidence not of 71. Watkinson v. Watkinson \[N. J. Err. & App.\] 60 A. 931.

T16. Watkinson v. Terror \[Ark.\] 85.

5 Cur. Law. ESCAPE AND RESCUE. 1179 a cumulative or impeaching character, but such as will produce a different result on the merits on another trial,90 and which could not, by the exercise of reasonable diligence, have been discovered before the entry of the original decree.91 If it appears that the complainant was heard as to matters complained of, or had opportunity to be heard in the original proceedings, the decree will not be disturbed.92

\_Application and proceedings.95--An application to review a decree upon a claim of newly discovered evidence must be supported by affidavit that the evidence is new and could not have been discovered by reasonable diligence before the hearing.94 To maintain a bill of review and open a decree for fraud, the allegation must be so specific in fact and circumstances that the court may determine on demurrer whether there is sufficient ground for the relief prayed for,95 and the particular facts relied upon must be supported by the affidavit of witnesses by whom such proof can be made.96 An order overruling a demurrer to a bill of review is not erroneous because it fails to allow the defendants to plead over to such bill, where the bill was filed solely upon the ground of error of law apparent on the face of the decree, and the demurrer raised the only question that could be raised.97 Such order should direct a dismissal of the original bill, unless the same be amended, it being fatally defective.98

\_SS 16. Other equitable remedies for which no specific title is provided. Billi quia timet.99--Fear that future recoveries on unliquidated claims will render a corporation insolvent will not sustain a bill quia timet by the holder of an unliquidated claim for damages,96 nor in such case will fear that all the assets of the corporation will be distributed to the stockholders in the form of dividends before complainant can recover a judgment sustain such a bill.101 It would seem that a bill quia timet will lie to prevent a woman from unwarrantably holding herself out as plaintiff's wife.902

ERROR CORAM NORIS; ERROD, WRIT OF, see latest topical index.

## 5 Escape and rescue.

In both escape 1 and rescue 2 there must have been a detention based on lawful custody. It is immaterial that the arrested person passively submitted to arrest.8 After a liberation of one unlawfully detained is complete, no criminality can be set aside the decree. Rumsey v. Auditor & tender of proof sufficient to sustain it, and General \[Mich.\] 101 N. W. #23. &8. Watkinson v. Watkinson IN. J. Err. & App.) 60 A. #51. & 90. Witzeczek v. Adamski, 114 JIL App. App.) 434. & 161; Watkinson v. Watkinson \[N. J. Err. & App.). & App.) 60 A. #31. & 91. Witzeczek v. Adamski, 114 JIL App.) 161; Jorgenson v. Young \[C. C. A.\] 186 F. & 378. Where detendant testified that its brother was not his authorized agent or attorney in fact, a bill of review by plaintiff, alleging that such testimony was false, and was surmised by him so to be at the time it was given; and the falsity could be shown 'by powers-of attorney of record, held, such records were not newly discovered evidence. Id. & 92. Rowan v. First Nat. Bank, 112 JIL App.) 434. & 93. See 3 C. L. 1236. & 94. Watkinson v. Watkinson \[N. J. Err. & App.) 60 A. #31. & 95. Rowan v. First Nat. Bank, 112 JIL App.) 434. The charge must be coupled with 1180 ESCHEAT. 5 Cur. Law.

fastened on the liberator by procuring a lawful warrant and exhibiting it to him.4 In Georgia it is an escape if a "trusty" voluntarily leaves a lawful chain gang, even if his sentence was alternative and he afterwards paid his fine,6 and even though he left to avoid unmerited punishment.7 A conspiracy to escape may subsist between prisoners, though one of them being sentenced for life is not with the statute defining escapes.8 Under the law of Arkansas, one who aids a prisoner or does that which might aid him is guilty of a crime, though the prisoner does not assent.9 It is irrelevant whether the prisoner is guilty,10 The release of a prisoner under a mistake as to the authority of the officer ordering his release is equivalent to a negligent escape, and a prisoner so released may be taken and returned to custody.11

Footnote 10: The author is grateful to the anonymous referee for his comments.

Footnote 11: The author is grateful to the anonymous referee for his comments.

Footnote 12: The author is grateful to the anonymous referee for his comments.

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.

## 1180 Escheat.

Fastened on the liberator by procuring a lawful warrant and exhibiting it to him.4 In Georgia it is an escape if a "trusty" voluntarily leaves a lawful chain gang, even if his sentence was alternative and he afterwards paid his fine,6 and even though he left to avoid unmerited punishment.7 A conspiracy to escape may subsist between prisoners, though one of them being sentenced for life is not with the statute defining escapes.8 Under the law of Arkansas, one who aids a prisoner or does that which might aid him is guilty of a crime, though the prisoner does not assent.9 It is irrelevant whether the prisoner is guilty,10 The release of a prisoner under a mistake as to the authority of the officer ordering his release is equivalent to a negligent escape, and a prisoner so released may be taken and returned to custody.11

5. Cur. Law. ESCROWS.

Administration of a decedent's estate should precede escheat proceedings," or else the latter should be stayed to abide the determination of the question whether there will be any property after debts are paid. \[28\] The judgment of escheat must be supported by findings that there is such property. \[29\] Whilst a petition to escheat does not invoke power to subject the property to payment of debts due to traversers who come in, \[30\] yet it will not invalidate the judgment where all parties participated without objection. \[31\] The state appealing from a decree of distribution on the ground that some of the shares have escheated must, in order to try that question, give notice of appeal to the distributees claiming such shares. \[82\] Failing such notice the appeal may proceed as to other parties and issues, and the shares which on the record appear to be escheated may be withheld pending suit to so declare them. \[33\]

The statutory right to sue to establish heirship and recover escheated property or its proceeds \[34\] is limited to such heirs and such conditions as are prescribed, and if not retroactive has no application to property fully escheated when the law was passed, \[35\] and under the laws of Montana the prescription of a time within which to sue excludes other limitations. \[36\]

## 125.

An escrow is an instrument deposited with a stranger to be delivered to the obligee on the performance of a condition \[37\] and beyond power of revocation in the obligor. \[38\] The depositary must be a stranger to the escrow. \[39\] The escrow is in-choate, \[40\] and constitutes a mere scroll until the performance of the conditions. \[41\] A

**27, 28. State v. Simmons \[Or.\] 79 P. 498. \[74 N. E. 61\] and If a delivery purports to**

**29. State v. Simmons \[Or.\] 79 P. 498. \[74 N. E. 61\] and If a delivery purports to**

**Under the present law of Oregon (Gen. Laws**

**1908, D. 127, SS 9), a proceeding to escheat**

**40. Instructions held erroneous. Blair v.**

**diction to determine helrship, but does not**

**learn! Its power to settle the estate. Hence**

**where there has been no such finding as that**

**mentioned in the text, a premature judgment of escheat cannot be modified and as thus affirmed. Id.**

**30, 31. In re Bugg's Estate \[S. C.\] 61 S. E. 263.**

**32. In re Pendergast's Estate, 143 CaL.**

**135, 76 P. 962. The notice in such case must be to them, not merely to the attorneys who**

**represented them. Id.**

**33. In re Pendergast's Estate, 143 CaL. 135,**

**76 P. 962.**

**34. In re Pomeroy's Petition \[Mont.\] 81**

**35.**
**7.**
**629, Statute enabling nonresident alien to so sue does not enable citizens to do so.**

**Id.**

**35.**
**Code Civ. Proc. & 2253, is prospective.**

**In re Pomeroy's Petition \[Mont.\] 81 P. 629.**

**36.**
**Constructing Code Proc. & 2253 and Pol. Code, & 5162. In re Pomeroy's Petition**

**\[Mont.\] 81 P. 629.**

**37.**
**A deced deposited with a third person to be delivered to the grantee on the performance of a condition is an escrow. Guild**

**v.**
**Althouse \[Kan.\] 81 P. 172.**

**Reeeipt contrued and held to constitute a mere escrow**

**agreement creating no fiducir relations between the parties. Havana City R. Co. v. Ceballos \[C. C. A\] 139 F. 638.**

**38.**
**Desed. Hayden v. Collins \[Cal. App.\] 81 P. 1120: Tompkins V. Thompson, 93 N. X. S. 1070.**

**39.**
\*\*A delivery In escrow cannot be made to the grantee (Clark v. Harper, 215 III, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 52, 54, 57, 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 1182 ESCROWS.5 Cur. Law.

delivery out of escrow without performance of the conditions is not binding on the obligor,\[42\] unless by virtue of estoppel, based on his negligence relative to such unauthorized delivery.\[43\] And while delivery must be with his consent,\[44\] which is deemed withheld until the performance of the conditions,\[45\] such performance renders the escrow effective, notwithstanding the death of the obligor in the meantime,\[46\] providing the instrument is an escrow,\[47\] no manual delivery out of escrow being essential.\[48\] If the depositary delivers the deed to the grantee without informing him of the conditions, they are not binding upon him;\[49\] but if he is informed of the conditions, he acquires no rights without performing them.\[50\] The holder of the escrow has no authority to accept performance of the conditions after the time within which they were to be performed has transpired.\[51\] It is held by some courts that a deposit of a deed in escrow passes title immediately,\[52\] while others hold that title does not pass until delivery out of escrow,\[53\] the grantor in the meantime being powerless to

dinary case it is not the grantor's deed until

effective on performance of the conditions, the second delivery, the question arises

and the death of the grantor does not abro-whether a subsequent grantee getting a

gate the contract of deposit. Guild. Aiso-conveyance before the performance of the

house (Kan.) $1 P. 172. After delivery in conditions of the escrow would get a title

escrow to be delivered to the grantee on the indesible at law. It is the policy of the

grantor's death, of a deed of the land, rents, law to favor the grant in escrow. At least

issues and profits thereof, the grantor died, it is not regarded as just that one charged

while crops were growing. Held, the grantee with notice of the grant in escrow should

was entitled to the amount agreed as rent. nevertheless take a complete legal title;

Wilholt v. Salmon, 144 Cal. 444, 80 P. 705, and all jurisdictions agree that he cannot,

47. A husband executed a deed to his wife though there may be an exception where the

and deposited it with a third person, to be original grante is a volunteer. Since, how-

deivered in case the grantor again became ever, the cases reach this result on different

invackated. At the time of his death the grounds, a conflict arises as to whether an

dead had not been delivered, though the con-

innocent purchaser will take a complete legal

dition had been satisfied. Held, since there

title. Some jurisdictions cut off the Inter-

was no contract pursuant to which the de-

vennfs grant to a purchaser with notice by

post that he been made, the depositary was only

extending the use of the fiction of relation

the agent of the grantor and his authority

(McDonald v. Huff, 77 Cal. 279). But as it

was terminated by the death of the grantor.

is a general doctrine that a fiction invoked

Bose v. Lent, 44 MiRes, 47, 90 N. Y. S. 41.

to do Justice should not be used against in-

Note: The depositary of an escrow is

nocent third parties (Viner's Abde. Mit. "Re-

usually called the agent of both parties to

lation"), in these jurisdictions a bona fide

the instrument (Davis v. Clark, 58 Kan. 100;

purchaser from the grantor of a deed in

Olmstead v. Smith, 87 Mo. 602); but neither

escrow takes an indeglesible title (Vicolet

the death of the grantor or of the depositary

v. Johns, 7 Colo. App. 360), and this doc-

will defeat the escrow (Ruggles v. Lawson,

prime has been recently followed (Emmons

13 Johns. \[N. Y.\] 285, 7 Am. Dec. 375), and

v. Harding, 162 Ind. 154, 70 N. E. 142).

since it is essential that neither party shall

Other jurisdictions do not allow an inno-

have acquired the instrument (Cook v.

cent purchaser to defeat the grantee in

Brown, 34 N. H. 460; Cocks v. Barker, 49 escrow. Hall v. Harris, 5 Fred. Eq. \[N. C.\],

N. Y. 107), it would seem more accurate to

303. These jurisdictions hold that after

regard him an impersonal or an automaton.

ded is placed in escrow the grantor no

longer has full legal title. The grant in

that the grantor had never released control

escrow puts the land out of his power and

makes it possible for the grantee to get

lumba L. R. 163.

something analogous to specific perform-

48. A delivery in escrow is deemed con-

ance at law. All the grantor has is a title

subject to a defeasure, and a title subject

'to a defeasuree is all that a purchase from

fromance. Gaudy v. Bissell's Estate \[Neb.\]

him, whether maina fide or bona fide, can buy.

Hooper. v. Ramsbotim, 6 Taunt, 12; Fort

v. Bieekman, I Johns. Ch. \[N. Y.\] 288. There

fore, notwithstanding the intervention of

third parties, the grantee in escrow gets a

full legal title upon performance of the con-

ditions. Lumber v. Pike, 127 till. 287.

5 Cur. Law.ESTATES OF DECEDENTS.

revoke it.54 An escrow will be given effect from the date of deposit if such is the intention of the parties.54

ESTATES OF DECEDENTS.

**SS 1. Nuecessity or Occasion for Adminis-tration and Kinds Thereof (1184).**

\*\*SS 2. Jurisdiction and Courts Controlling Administration (1185). Jurisdiction of Federal Courts (1188). Jurisdiction of Courts of Equity (1189).

**SS 3. The Persons Who Adminster and Their Letters (1191).**

**SS 4. Selection and Nomination. The Right to Administer (1191).**

**SS 5. Procedure to Obtain Administration and Grant of Letters (1194).**

**SS 6. Sensitivity or Bond (1195).**

**SS 7. Subelection of Reality to Payment of Debts Under Orders of Court (1230).**

**SS 8. Right to Resort to Reality (1230).**

**SS 9. Procedure to Obtain Order (1232).**

**SS 10. The Order (1233).**

**SS 11. The Sale (1233).**

**SS 8. Subelection of Property In Hands of Their Letters (1191).**

**SS 12. Right and Liabilities Between Represantative and Senate (1238).**

**SS 13. Management of and Dealings With Estate (1238).**

**SS 14. The Authority, Title, Interest, and Relationship of Personnel Representatives (1199).**

_Scope of title._--Matters relating to the descent of property under the interstate laws,1 the validity, probate, and interpretation of wills,2 testamentary trusts,3 and inheritance and succession taxes, are treated elsewhere.4

Footnote 1: The author is grateful to the anonymous referee for the support of the work of the University of Texas 5 Cur. Law. ESTATES of DECEDENTS SS 2.

Community property may generally be administered by the surviving husband or wife without the supervision of the probate court.14 In some states, upon the death of her husband without lineal descendants, the widow is his sole heir, and may, upon the payment of his debts, take possession of his property without administration.15 'This rule applies only in cases of intestacy,16 and a legacy is not a debt as the term is therein used.17

In Louisiana, dative letters will be refused where the widow holds as unfructuary, the only debts are costs which are assumed by the attorney, and the only legatee is willing to await the widow's death before payment.18

\_A temporary administrator_19 may be appointed pending the appointment of one entitled to permanent letters.20

\_An ancillary administrator_21 is one appointed in a state other than that of decedent's domicile for the purpose of representing the estate therein.22

\_An administrator de bonis non_22 may be appointed after the death, resignation, discharge, or removal of the original representative, where the estate has not been fully administered.24

\_An administrator pendente like_22 may in some states always be appointed where the appointment of a general administrator is delayed for any reason, or the validity of the will is contested, or pending an appeal of proceedings on removal of an executor or administrator.26

SS 2. \_Jurisdiction and courts controlling administration.27--\_The jurisdiction and powers of courts in administering upon the estates of decedents are fixed by the statutes of the various states.28

Courts to which such matters are intrusted are,

14. Husband may administer it for pay-

acidental situation of some personality

ment of debts. Levy V. W. L. Moody & Co.

which may require the aid of its laws for its

(Tex. Civ. App.) 87 S. V. 205.

reduction to possession, is an administration

15. Civ. Code 1859, $ 3355, subd. 1. Moore

ancillary in its nature to that of the domi-

v. Smlth, 121 Ga. 49, 49, 5 B. 601; Harrell v.

clhe, whether granted before or after the

Harrell \[Ga.\] 51 S. E. 283. Cannot sue on

grant of domiciliary administration. Appeal

a debt owning decedent until after she has

of Hopkins, 77 Conn. 644, 60 A. 657. In Mis

gold all his debts. Jackson v. Green \[Ga.\]

sonri, nonresident executors cannot act, ei-

51 S. E. 284.

ther in the collection of debts due the estate,

or in disposing of its property for the pay-

tion of decedent where there is in existence

ment of debts or legacles. Stevens v. Lar-

a paper apparently executed in due form of

will, 110 Mo. App. 140, 84 S. W. 113. In case

law as the will of the deceased, until there

one dying destate leaves property in a state

has been a judgment of the court of ordinary

that it is not his will. Harrell v. Harrell v. Harrell

tamentary with the will annexed should be

\[Ga.\] 51 S. E. 283.

Issued in the latter state to some one quali-

17. Harrell v. Harrell \[Ga.\] 51 S. E. 283.

01. Succession of Glancey \[La.\] 38 So. 554.

189, $ 254. Such administration is in the

19. See $ 3. C. L. 1240.

01.

See $ 3. C. L. 1241.

20. An appeal from the order admitting

will to probate taken after the issuance of

Iatter state that the estate is in process of

letters , and the qualification of executors

named therein, operates to suspend their

functions pending its determination, and in

such case it is proper for surrogate to grant

them limited powers necessary for the pre-

servation of the estate. Code Civ. Proc. $ 2582. In re Choate's Will, 94 N. Y. S. 176.

Where a resident of one county dies in another with property or business matters in

the latter requiring immediate attention, the

superport court of the latter may appoint a

special administrator to conserve such prop-

erty until an executor or general administrator is appointed in the former county. In

re Long's Estate \[Wash.\] $1 P. 1007.

21. See $ 3. C. L. 1240.

01. Every administration, either on testate or intestate states, granted in another

state, not based on the adjudicated fact of

decedent's domicile therein, but solely on the

5 Curr. L-- 75.

5 Cur. Law. ESTATES OF DECEDENTS SS 2. 1187

The general rules controlling precedence and conflict in jurisdiction,\[31\] and the jurisdiction of various courts over testamentary trusts, are treated elsewhere.\[32\]

The residence of decedent and the situs of the property fix the jurisdiction of the probate courts of particular counties,\[33\] and the existence of property within the state is generally held to be a condition precedent to the administration of the estates of nonresidents.\[34\] Whether decedents were residents of the state at the time of their deaths so as to give the public administrator a legal right to administer on their estates is a question of fact for the trial court.\[35\]

It has been held that probate courts have no jurisdiction to determine the respective rights of individuals in property the title to which it is claimed that decedent parted with prior to his death,\[36\] or rights under ordinary contracts not testa-defense. Held, that the county court, in the latter requiring immediate attention, exercise of its equitable powers had the right to look beyond the judgments to the apocial administrator to conserve such notes, and allow the claim as an equitable property until an executor or general admin-money demand. The equitable jurisdiction is appointed in the former county of the county and probate courts does not give them power to declare a deced absolute but the appointment of such a special admin-on its face to be a mortgage. Rook v. Rook, 111 III. App. 398.

Missouri: Though the probate court has not general jurisdiction in equity, it may alcise of general jurisdiction by the court of low claims which are equitable as distin-guished from legal, and entertain equitable agents of letters of administration, the predicate. Has jurisdiction to entertain defense to application for widow's allowance based on a separation agreement whereby she released all her rights in her husband's property, though such contract can be affirm- 2476, subd. 4, the surrogate has no authority Clopton, 110 Mo. App. 663, 85 S. W. 623.

In Pennsylvania the probabane court is a court of equity and may compel an accounting by a surviving partner, who is one of the executors, of the assets of the partner-ship estate. Moore v. Fidelity Trust Co. \[C. C. A.\] 138 F. 1, afg. 134 F. 489.

In Texas both the county court sitting in probate, and the district court on appeal, in classifying claims against the estate and for the purpose of determining their privity, have jurisdiction to hear evidence of a mistake in the terms of a written contract in order to determine the status of a claim screwing out of it, and to grant appropriate relief. Held, that there was no intention to release vendor's lien, and that it was done through a mistake, so that lien was superior to widow's allowance. Zieschang v. Hellmke \[Tex. Civ. App.\] 84 S. W. 438.

Wisconsin! Where probate courts are given jurisdiction over all matters relating to the settlement of the estates of decedents, they necessarily have by implication all the judicial authority of courts of equity in the administration of trusts necessary to the proper administration of the particular class of trusts in question. Under Rev. St. 1898, 8 2443, county court has jurisdiction to determine the expense incurred by administrator for legal services, and on his defalcation without having paid for them, to make the amount thereof a lien on the assets of the estate in their favor. Carpenter v. United States Fidelity & Guaranty Co., 123 WIs. 209, 101 N. W. 404.

31. See Jurisdiction, 4 C. L. 324.

01. See Trusts, 4 C. L. 1277.

01. Where the resident of one county dies in another with property or business matters mentary in character, even though made in contemplation of death,\[27\] or the validity of assignments by the heirs or beneficiaries of their interest in the estate.\[38\]

A probate court in a statutory partition cannot decide questions of jurisdiction.\[49\]

A state court has jurisdiction to order the transfer of national bank shares by an executrix to one for whom decedent held them in trust.\[40\]

The right of the probate court to exercise supervisory control over the estate does not give it jurisdiction to appoint a "superintendent" thereof,\[41\] and such appointment being void, a writ of prohibition will issue against the appointee to prevent him from acting as such.\[42\]

\_Jurisdiction of Federal courts.\[43\]--The Federal courts have no original jurisdiction in respect to the administration of the estate of a decedent and cannot take any action or make any decree looking to the mere administration of such an estate.\[44\] They have, however, in cases where the requisite jurisdictional amount is involved, and where there is diversity of citizenship, concurrent jurisdiction with the courts of the various states to hear and allow claims against such estates, and this is true even though the state statutes confer exclusive jurisdiction to hear and adjudge such claims on certain state courts.\[45\] In the exercise of such jurisdiction they administer the laws of the state of decedent's domicile, in the enforcement of which they uniformly follow the rules and decisions governing the state tribunals in so far as they violate no right secured by the Federal constitution or statutes.\[46\] The action may be at law in case it is commenced within the time limited for the presentation of claims, and no equitable relief is necessary to the allowance of the claim.\[47\] In case, however, the allowance of the claim for good cause shown after the expiration of the time limited, or the extension of such time, or other relief which can be secured by the exercise of the judgment of the chancellor alone, is indispensable, resort must be had to a suit in equity.\[48\]

tween an administrator as an individual and third parties, where both parties claim that deceased parted with the title there prior to his death. In re Finn's Estate, 44 Misc. 622, 90 N. Y. S. 159. Code D. C. 122, providing a prompt remedy in the probate court for the discovery and reduction to possession of concealed assets of an estate gives that court no jurisdiction to determine ownership of property in the hands of persons claiming adversely to the estate, they having made full disclosure of assets in their possession. Richardson v. Daggett, 24 App. D. C. 440.

37. Cannot determine rights arising under contract between husband and wife made after marriage, where it was not executed with the formalities essential to a will. McWhorter v. Oneal, 121 Ga. 639. 49 S. E. 592.

01. See post, SS 12.

01. Penn v. Case \[Tex. Civ. App.\] SS 1 S.

01. In re Fisher's Estate \[Iowa\] 102 N.

01. Right of court to exercise a supervisory control over the estate does mean control by means of a personal and irresponsible agent. Court has no agent or representative except the administrator. Such an appointment not authorized by Laws 1901, c. S1, SS 8. Koury v. Castillo \[N. M.\] 79 P.

01. Koury v. Castillo \[N. M.\] 79 P. 293.

01. See 3 C. L. 1244.

01. Where surviving partner of firm was one of the executors of the estate of his deceased partner, the settlement of which was pending in the probate court of the state, which had full equitable jurisdiction to complement an accounting between the executor and by the surviving partner of his deceased partner's interest in the firm, bill cannot be maintained In Federal court by disturbance under bill to compel accounting by such surviving partner and a payment of the amount found due to the executors for distribution, particularly when both parties are citizens of the same state. Moore v. Fidelity Trust Co. \[C. C. A.1 138 F. 1, afg. 134 F. 48.

01. Schurmeler v. Connecticut Mut. Life Ins. Co. \[C. C. A.\] 137 F. 42. Jurisdiction of Federal courts cannot be limited by state statutes. Alice E. Min. Co. v. Blanden, 136 F. 252.

01. Schurmeler v. Connecticut Mut. Life Ins. Co. \[C. C. A.\] 137 F. 42; Alice E. Min. Co. v. Blanden, 136 F. 252.

01. Action to secure allowance of claim and its certification to proper state court for allowance in its class. Schurmeler v. Connecticut Mut. Life Ins. Co. \[C. C. A.\] 137 F. 42.

01. Federal court cannot determine such questions in an action at law. Schurmeler v. Connecticut Mut. Life Ins. Co. \[C. C. A.\] 137 F. 42.

5 Cur. Law. ESTATES OF DECEDENTS SS 2. 1189

A Federal court has jurisdiction equally with state courts to enforce liens on the interests of defendants in funds belonging to the estate of a decedent in the hands of an ancillary administrator.\[40\] Whatever action it may take, however, is subject to that of the probate court within its proper jurisdiction.\[60\] It will not.enjoin the local probate court from directing that the funds within its control be remitted to the court of probate of the domicile,\[51\] but will, on a proper showing, enjoin those whose interests are sought to be reached from receiving any portion of the estate under any order of distribution by either the local probate court or that of the domicile.\[58\] Its accree in such case is necessarily confined to the property localized within its jurisdiction, though personal judgments may be entered against the defendants, to which the liens are incidental.\[58\]

Short of intermeddling with the possession of a state court, or controlling the administration, the Federal court may, where the requisite diversity of citizenship exists, grant full relief to one suing to obtain the share of the estate to which he is entitled.\[54\] If the requisite diversity of citizenship exists, and the jurisdictional amount is in controversy, such courts may direct the disposition of trust property over which the probate court has no jurisdiction,\[58\] and may entertain suits to set aside as fraudulently obtained judgments of a probate court which are liens on decedent's really situated in the district and inherited by complainants.\[60\]

_Jurisdiction of courts of equity.\[57\]--When probate jurisdiction is exclusively vested in probate courts, county courts, or the like, equity has no jurisdiction to interfere in matters of probate,\[58\] unless in exceptional cases, where the jurisdiction of the probate court is inadequate or has been found inefficient.\[58\] Its determination that such an exceptional case exists will not be reversed unless clearly erroneous.\[60\]_

40. Ingersoll v. Coram, 127 F. 418. \[137, Comp. St. 1901, p. 513, empowering cir-50. Ingersoll v. Coram, 127 F. 418; Id., 132 F. 168. Decree should declare that nothing therein is intended to or shall contra-represent defendants. McDaniel v. Trav- vene any action of any probate tribunal in the state of the domicile with reference to value of the matter in dispute in a suit to set distribution, or to any order or judgment resulting to the courts of the domicile. Ingersoll v. Coram, 136 F. 689. \[137, Exp. 168 F. 689, Id., 132 F. 168. In suit in Federal court under Rev. St. 5 738 to establish a lien on the interest of defendants in property in the hands of an ancillary administrator in the state in which the suit is brought, the decree is necessarily confined to the property localized within the jurisdiction, though personal judgments may be entered against the defendants, to which the liens are incidental. Ingersoll v. Coram, 136 F. 689. \[138 F. 689. \[139 F. 69. \[140\] 54. Herron v. Comstock \[C. C. A.\] 139 F. \[141\] 370. \[142\] 355. Where the powers and duties of ex-ectors and trustees under a will are sever-able, and, prior to the films of a bill in the Federal court by a beneficiary under the trust, the administration of the personality by the executors has been completed, and nothing remains but the management and disposition of the trust reality remaining un-sold for the completion of the trust, such court has jurisdiction to decree an account- ings by the trustees and direct final distribu- to and settlement of the trust, the probate court having no jurisdiction in that regard. Herron v. Comstock \[C. C. A.\] 139 F. 370. \[143\] 36. Circuit court has jurisdiction under Act March 3, 1875, 8, 18 St. at L 472, c.

Courts of equity in some states have jurisdiction to entertain administration suits at the instance of creditors, devices, legatees, or others interested in the proper administration of an estate,\[61\] and to appoint a receiver for the estate on a proper showing.\[62\] An order in an administrator's suit authorizing the issuance of a receiver's certificate does not bind creditors not parties to the suit when it is made.\[63\] When one person is both domiciliary and ancillary administrator, the chaneery court of the domicile may assume entire administration, though it covers foreign assets brought thither without settlement by the administrator under his ancillary letters.\[64\]

Creditors of a decedent's estate may resort to equity for the ascertainment and preservation of the property and assets of the estate, and the subject of the same to the payment of the debts against it, when the personal representative refuses to perform his duty in the premises.\[65\] If necessary to full relief in such ease, a receiver may be appointed to take charge of the premises.\[66\]

Equity has jurisdiction of a suit to enforce a pledge of or lien upon the undivided shares of heirs or devisees in the hands of an ancillary administrator,\[67\] and to appoint a new trustee where the administrator de bonis non, who is also trustee, denies the right of the beneficiaries to the trust fund.\[68\] It may also grant relief to the 5 Cur. Law. ESTATES of DECEDENTS SS 3A. 1191 beneficiaries on failure of the executor to properly perform the duty imposed on him by the will to select from the stock and bonds of the estate a sufficient amount to make up deficiencies in funds bequeathed in trust.\[80\]

A Federal court of equity has no jurisdiction of a suit against an executor or administrator to recover unliquidated damages for a tort alleged to have been committed by his decedent, where he is not charged as trustee, but is made a party solely as personal representative.\[70\]

As in other cases, a court of chancery having rightfully assumed jurisdiction of a matter involved in the administration of an estate, will grant complete relief, without remitting the parties to an action at law.\[71\]

SS 3. \_The persons who administer and their letters. A. Selection and nomination.\[12\] The right to administer\[8\] is a valuable right and those upon whom it has been conferred by statute should not be deprived of it except as provided by the statute.\[74\] One cannot sell his right to act as executor, and any agreement whereby he attempts to do so for a consideration is void as against public policy.\[75\] The legislature has a right to determine who may and who may not act as executor.\[76\]

Except as permitted by statute, only natural persons may be appointed.\[77\]

The executors named in the will have the right to the appointment unless they are within the class of persons declared by the statute to be incompetent,\[78\] or unless they have renounced their right,\[79\] which under certain statutes is presumed from delay to claim the right.\[80\] Such statutes apply to foreign as well as domestic

shows that no legal impediment obstructs the
\\begin{tabular}{}

### 1192 ESTATES OF DECEDENTS SS 3A.

5 Cur. Law. wills.\[81\] The delay does not render the executors incompetent, but merely deprives them of their preferential right, and makes their appointment a matter for the exercise of the sound discretion of the court.\[82\] In the absence of a statutory provision to the contrary, mere moral delinquencies,\[83\] alleged indebtedness to the estate, even when liability is denied,\[84\] or allegations that there are reasons warranting the belief that he will subsequently incur disabilities or be guilty of conduct justifying his removal,\[85\] do not justify the court in refusing to issue letters to the person name!, as executor in the will.

In case the person named in the will dies,\[86\] or refuses to act, or is disqualified, letters of administration may be granted to those who would have been entitled thereto had there been no will.\[87\] One is not rendered incompetent to act as administrator with the will annexed by reason of the fact that he is hostile to the will and claims adversely to it.\[88\]

The right to administer on the estate of one dying intestine is generally given first to the surviving husband or wife,\[89\] then to the next of kin \[90\] or the heirs,\[91\] and

tator and of the fact that he has been named as executor may be held to have renounced \[Ed.\] p. 269, SS 1, the court is required, in such his right to letters, and the court may apolimitow, surviving husband, next of kin, or cause for delay is shown. Rev. St. 1899, SS 4582, requires him to petition within thirty days. Rice v. Tilton \[IWyo.\] 80 P. 828. Evl- \[R.\].

Dence held to show no good cause for delay in applying for letters under foreign will.

865, providing for the settlement of a deceased lod.

81. Rice v. Tilton \[IWyo.\] 80 P. 828.

01. Exercise of such discretion will not be disturbed on appeal unless abused. Rice v. Tilton \[IWyo.\] 80 P. 828.

01. Cannot refuse to appoint executor's right to discontinue his estate. Id.

testator, and had aliented his affections from his family, and because by reason therefor his/or appointment would outrage the feelings of testator's family, work serious disadvantage to the beneficiaries, and prevent her co-executors from working in harmony with her. Clark v. Patterson, 214 Ill. 533, 73 N. E. 806, aff. 114 Ill. App. 312.

84. Particularly in view of the statutory provision (3 Starr & C. Ann. St. 1896, p. 4045, c. 148, S. 13) that the appointment of a debtor as executor does not release his debt. Clark v. Patterson, 214 Ill. 533, 73 N. E. 806, aff. 114 Ill. App. 312. Thus letters should not be refused because executive had received property from testator during the existence of illicit relations between them, and that it was necessary for his executors to contest her right to retain it. Id. In any event allegations in regard to the receipt of such property, etc., held too indefinite to warrant refusal of letters. Id.

01. 1 Starr & C. Ann. St. 1896, p. 282, c. 3, SS 29, 30, authoring removals in certain cases, the court has the right to remove executors only when one or more of such statutory grounds are properly brought before it for judicial action, and hence an objection to the appointment of an executor on the ground that the court would be immediately obliged to remove her is untenable where no statutory grounds for removal are set out therein. Clark v. Patterson, 214 Ill. 533, 73 N. E. 806, aff. 114 Ill. App. 312. Such sections authorize removals only for disabilities occurring after appointment. Id.

01. Under 1 Starr & C. Ann. St. 1896 (2d Ed.) p. 269, SS 1, the court is required, in such his right to letters, and the court may apolimitow, surviving husband, next of kin, or cause for delay is shown. Rev. St. 1899, SS 4582, requires him to petition within thirty days. Rice v. Tilton \[IWyo.\] 80 P. 828. Evl- \[R.\].

01. He 839, Sets. Laws 1895, p. 244, 2 Starr & C. Ann. St. 1896 (2d Ed.) p. 265, providing for the settlement of a deceased lodinate's estate by his conservator re-peals the last named statue proto tanto, or en-feats an exception thereon, so that, on the death of a lunstate's executor, his next of kin have no right to appoint an admfnistra-tor as against his elevator's right to distribute his estate. Id.

01. Rev. St. 1899, SS 11. Executors and widow of one dying in foreign state being disqualified by non-residence, letters held properly granted to brother of decedent who moved into state and acquired a residence therein. Stevens v. Larwill, 110 Mo. App. 140, SS 8. W. 113.

01. Ellis bond affords sufficient protection to those interested. Rice v. Tilton \[IWyo.\] 80 P. 828.

01. Under Code D. C., SS 276-280, 287, if the decedent leaves a widow and minor children, the widow, if a fit person, and qualified to act, is entitled5 Cur. Law. ESTATES OF DECEDENTS SS 3A. 1193

then to the creditors, provided they are legally competent to act." If none of these apply or will accept letters, then they may be granted to the first legally competent person applying therefor." In New York a renunciation of the right to administer must be in writing, acknowledged or proved and certified as a deed, or otherwise proved to the satisfaction of the surrogate, and filed in his office." An oral renunciation, which has not been acted upon by the parties, may be. withdrawn with the consent of the surrogate."

In case there are more than one next of kin of the same degree, the court may decide between them." Where a stranger is appointed co-administrator with the next of kin, the latter is the only person entitled to object."

In case the next of kin do not desire to act," or in some states if they are non-residents, they are entitled to nominate some other person who should be appointed if legally competent and a fit and suitable person for the office," his fitness being tested by the same rules and tests as if the next of kin were applying personally." The right of choice is not exhausted by reason of the fact that the first nominee is declared ineligible," and, in such case, the probate court cannot, on its own motion, appoint another person, but should notify the next of kin and give them, and, after them, the creditors, an opportunity to name another appointee."

An erroneous conclusion of the court in determining who is entitled to administer does not render the appointment of one not entitled to the office absolutely void," but he is entitled to act until the order is revoked."

The only grounds rendering one incompetent to act as administrator are those

Morris, 91 N. Y. S. 706. Under Ky. St. 1903,

or desire to act, a person nominated by the $ 3896, a sole distributee is absolutely en-

helfs entitled to administer should be appointed to be appointed. Buckner's Adm'rs v.

pointed. Act df March 15, 1832, P. L. T35,

Bulecher \[Xy.\] J 87 S. W. 716,

gives the right in such case where there is

91. The tutor of minor logates under a

a general residue to those having the right

universal title is not an "heir" present or

to such residue. Hence, a stranger cannot

represented in the state and so entitled by

be appointed nor can one against whom a

preference over the public administrator to

sult by the testator was pending at the date

dative letters. Succession of Bosgau \[La.\] 38 of

of his death. Job's Estate, 23 Pa. Super. Ct.

80. 878.

01. In New York a corporation creditor is

not entitled to administer on the estate of its

titled to serve as administrator is not a resid-

decoased debtor. In re Rhoda, 93 N. Y. S. 973.

dont of the state and either the husband.

An attorney to whom the executor owes fees

for services rendered in a will contest is a

decoased, the may request the appointment of

creiditor in the sense of statute giving cred-

itors a preferential, though deferred, right to

be appointed. Code Civ. Proc. $ 2434, as

administer, and as such is entitled to be

handed before one having no interest in the

the estate is appointed. In re Wooten's Estate

92. 185 S. W. 1105.

01. Under Code Civ. Proc., $ 2680, where

decoased left no relative or next of kin

in the state, and no creditors except a corporation, and neither the next of kin

the next of kin or the

criditor applied for letters, they were prop-

erly issued to the first legally competent person

son applying therefor. In re Rhoda, 93 N. Y. S. 973.

94. Code Civ. Proc., $ 2663. In re Morris,

91 N. Y. S. 706.

95. In re Morris, 91 N. Y. S. 706.

01. Shannon's Code, $ 3939, applies only

where there are more than one next of kin

of the same degree applying for administ

tion. In re Wooten's Estate \[Tenn.\] 85 S. W. 1105.

97. Buckner's Adm'rs v. Louisville & N. R.

To. Co. \[Xy.\] 87 S. W. 777.

98. In re Wooten's Estate \[Tenn.\] $ 5 S. W. 1105. If no executor is named and none of

a class entitled to administer are competent

99.

prescribed by statute,\[4\] or which disqualify or disable him as a trustee.\[7\] In some states, it is the duty of the probate court in the appointment of an administrator to ascertain and determine whether the applicant is a suitable person to administer,\[8\] and, if there is substantial evidence to support a finding that he is not, an order refusing to appoint him will not be disturbed on appeal.\[9\] As a general rule, and in the absence of a statute to the contrary, nonresidence does not disqualify one from acting as representative.\[10\] The rule has, however, been changed by statute in many states.\[11\]

_Administators pendente lite\[12\]_ are appointed to take the place of the court in temporarily caring for the estate, and consequently statutory provisions as to who are entitled to administer do not apply to them.\[13\] The court should ordinarily appoint disinterested persons rather than the nominee of either party, though in certain cases executors may be appointed.\[14\]\_

_Temporary administrators._--A provision for the appointment of a temporary administrator other than one of the parties precludes the appointment of the executor named in the will.\[15\]\_

_Public administrators.\[16\]--A county administrator does not, by virtue of his appointment, become the legal representative of any estate, but by giving the bond required by law he assumes a position where he may be appointed legal representative of such estates as the ordinary is authorized to place in his hands.\[17\] The right of the public administrator to take charge of the estate cannot be raised on exceptions to his accounts going only to the proper settlement of his administration.\[18\]_

(SS 3) _B. Procedure to obtain administration and grant of letters.\[10\]--General administration of the estate of one dying testate cannot be granted until his will has been proven.\[20\] In Louisiana the record of appointment of a dative testamentary executor must show that either the will or a copy was produced or registered in the district court for the parish where it was then sitting.\[21\]_

Application for letters must be made within the time prescribed by law.\[22\]\_

**6. Those prescribed by Rev. St. 1899, SS 4637. Rice v. Tilton \[Vyo.\] 80 P. 828.**

**7. An attorney representing the bulk of the estate, but having no other interest herein, and who is obligated, as such attorney, to carry into effect agreements between those interested in the estate which will diverted large amounts of its funds into channeled different from the ordinary channels of distribution, is not eligible to appointment as administrator on nomination by the next of klin. In re Wooten's Estate \[Tenn.\] 85 S. W. 1105.**

**8. Gen. St. 1901, SS 2817, provides that next of klin shall not be appointed if evidently unsuitable for the discharge of the trust. Brown v. Dunlap \[Kan.\] 79 P. 145.**

**9. Brown v. Dunlap \[Kan.\] 79 P. 145.**

\*\*10. As a general rule, and in the absence of a statute to the contrary, a nonresident may qualify and act as executor. Hecht v. Carey \[Vyo.\] 78 P. 705. Non-resi-dence does not disqualify one to act as executor provided he comes into the state, sub-mits himself to the jurisdiction of the court, and personally conducts the affairs of the estate. Rice v. Tilton \[Vyo.\] 80 P. 828. Rev. St. 1899, SS 4570, authorizes appointment of nonresident executor provided he is a citizen and resident of the United States, though non-residents are incompetent to act as administrators under section 4637. Statute detailing who cannot act omits non-residents.\[14\]\_

**8.** _Gen. St. 1901, SS 2817, provides that next of kin shall not be appointed if evidently unsuitable for the discharge of the trust. Brown v. Dunlap \[Kan.\] 79 P. 145._

**9.** _Brown v. Dunlap \[Kan.\] 79 P. 145._

\*\*10. As a general rule, and in the absence of a statute to the contrary, a nonresident may qualify and act as executor. Hecht v. Carey \[Vyo.\] 78 P. 705. Non-resi-dence does not disqualify one to act as executor provided he comes into the state, sub-mits himself to the jurisdiction of the court, and personally conducts the affairs of the estate. Rice v. Tilton \[Vyo.\] 80 P. 828. Rev. St. 1899, SS 4570, authorizes appointment of nonresident executor provided he is a citizen and resident of the United States, though non-residents are incompetent to act as administrators under section 4637. Statute detailing who cannot act omits non-residents.\[14\]\_

**11.** _Brown v. Richardson, 186 Mo. 361, SS 5. W. 518._

**12.** _Brown v. Dunlap \[Kan.\] 79 P. 145._

**13.** _Brown v. Dunlap \[Kan.\] 79 P. 145._

**14.** _Brown v. Dunlap \[Kan.\] 79 P. 145._

**15.** _Brown v. Dunlap \[Kan.\] 79 P. 145._

**16.** _Brown v. Dunlap \[Kan.\] 79 P. 145._

**17.** _Brown v. Dunlap \[Kan.\] 79 P. 145._

**18.** _Brown v. Dunlap \[Kan.\] 79 P. 145._

**19.**

## 5 Cur. Law.

ESTATES of DECEDENTS SS 3C.

The petition must be in accordance with the statutory requirements \[23\], and the required notice must be given \[24\]. In some states, persons in the preferred classes are entitled to appointment on application without citation, subject only to the approval of the court, or the judge or clerk in vacation \[28\].

An opposition that administration is needless, or, if proper, that opponent should be preferred, should be tried with and determined on the decision of the original application for letters \[20\]. In Missouri the determination of the qualifications of an applicant for letters to properly manage the estate is wholly discretionary with the probate court, and no trial or hearing in regard to the matter is necessary \[27\]. Objection that the time to claim a preferential right has not elapsed can only be made by one who is entitled to such preference \[28\]. Persons recognizing the authority of the representative cannot thereafter question the validity of his appointment \[29\].

On a petition for the granting of letters of administration, the court has no jurisdiction to direct decedent's widow to turn over to the petitioner property alleged to have been held in trust for the latter by decedent, and to have been fraudulently transferred by him to his wife \[20\].

Any party in interest may apply for the appointment of an administrator pendente lite, or the court may appoint one on his own motion \[31\].

(SS 3) \_C. Security or bond \[32\].\_The giving of the bond required by statute is

tration shall be issued where application of any showing of prejudice to the rights of therefor is made more than four years after othere. Id.

decedent's death, and that in no case shall letters testamentary be issued where a will absteeneenes in certain cases, requires notice of after testator's death, apply to ancillary proceedings to procure letters of administration \[33\], than once a week for four successive weeks, c. t. a. and for the probate of a certified copy of a will admitted in a foreign state, and such proceedings cannot be maintained more than four years after testator's death. The granting of such letters after the lapse of that period is not, however, wholly beyond the jurisdiction of the court, so as to render the proceedings subject to collateral attack.

1d.

23. Code Pub. Gen. Laws, art. 93, SS 230, authorizes the appointment of an administrator for one who, by reason of his uninterrupted absence, unheard of, for more than seven years is presumed to be dead, on a petition setting forth when the absente was last heard of, that diligent inquiry has been made among the family, that advertisement and inquiry has been made at the most likely place of his last residence without results, and that the applicant really re-lieves him to be dead. Lee v. Allen \[Md.\].

59 A. 184. Petition held insufficient. Id. Under Code Civ. Proc. 5 2698, the failure of the petition to allege lindependes of decedent to creditors within the state is fatal to the granting of an ancillary letters. Byntt V. Symp. 93 N. Y. S. 728. No authority to issue ancillary letters is conferred on the surrogate by section 2708, relating to the recording of the will of a non-resident testeorty which disposes of reality within the state. Id. A petition for letters of administration need not set forth that there is no other application for letters pending. In re Long's Estate \[Vswahl.\] 81 P. 1007. The application will, on appeal, be deemed to have been amended to correspond to the proofs, where the evidence was sufficient to, and did, establish all the necessary facts, in the absence1196ESTATES OF DECEDENTS SS 3D. 5Cur. Law.

a necessary prerequisite to the right of the representative to act as such \[33\]. The insertion of an illegal or unauthorized provision in it does not affect the validity of the remaining portions, unless the conditions are not severable, or unless the statute expressly or by necessary implication so provides \[34\].

The court may, either on his own motion \[35\], or on petition of the heirs, require the administrator to furnish additional security \[36\]. In the absence of any words 'to the contrary therein, a new bond will be regarded as cumulative \[37\]. The amount of security to be given by an administrator pendente like is discretionary with the court \[38\]. The Ohio statute requiring any administrator's or executor's bond in excess of two thousand dollars to be executed and guarantied by a surety company is unconstitutional as restricting the liberty to contract, and because it discriminates between different classes of estates \[39\].

(SS 3)D. Removals and revocation of letters \[40\].-Letters testamentary or of administration, will be revoked where the person appointed was, or has since become, incompetent or disqualified to act \[41\] or has been guilty of misconduct or mismanagement of the estate \[42\], or where the letters were obtained by a false suggestion of a

**33.** Where declaration, in action against city for damages for death of plaintiff's in- I. Szq.1 5A. 458.

**34.** Where declaration, in action against city for damages for death of plaintiff's in- I. Szq.1 5A. 458.

**35.** Voice City. Proc. $ 1397. Elizalde v.ministrators, and that she presented the claim to the city as such, and it appeared that her bond was approved and filed not a substitute for the original bond so as to defend the federal merely the general issue, held that her letters and evidence of the presentation of her claim were admissible

**36.** Not reviewable unless discretion is were issued before the filing of her bond, and

**37.** Not reviewable unless discretion is that she was not administration when she

**38.** Not reviewable unless discretion is that she was not administration when she

**39.** Not April 20, 1904, $ 97, Ohio Laws, 12 Det. Leg. N. 294, 104 N. W. 37. Failure of

**38.** Not a result of the work 5 Cur. Law. ESTATES of DECEDENTS SS 3D. 1197 material fact, provided the result was affected thereby.${}^{43}$ Letters of administration will be revoked on the subsequent discovery of a will.${}^{44}$

As a general rule when letters of administration are issued to any person other than those entitled to preference, any one of the latter may procure their revocation and his own appointment in his place.${}^{45}$ So, too, letters issued to the nominee of a creditor may, on payment of all the debts by a device, be revoked and new letters be issued to such devicee in his stead.${}^{46}$

The fact that the petition on which letters were issued stated all the facts on information and belief merely, and failed to aver that decedent was a resident of the county or state, is no ground for revocation of the letters,${}^{47}$ particularly where all the material facts necessary to authorize the issuance of letters are shown, on the hearing of the petition for revocation, to have existed.${}^{48}$ The fact that the executor gave his testator unsound advice as to the management of trust property during the latter's lifetime,${}^{49}$ or that he for a long time knowingly concealed the will of testator's wife, and all knowledge of the same, does not necessarily afford ground for his removal.${}^{50}$ Neither should an administrator be removed merely because he has a hostile or unfriendly feeling toward persons interested in the estate, unless it is of such a character as to prevent him from managing the estate in such a manner as prudence, sound policy, and the interests of the heirs, devisees, and creditors require.${}^{51}$

The statutes of Montana provide for the suspension of the power of an executor when the judge has reason to believe that he has permanently removed from the state, and for the revocation of his letters, if, on the hearing, the court is satisfied that cause for his removal exists.${}^{52}$ Since nonresidents may serve as executors in which it is of the form of the state, and the witness that state, this statute does not authorize the removal of an executor who was a nonresident when appointed merely on account of his continued nonresidence.\[52\] The fact that an administrator with the will annexed, appointed by a court of a state other than that of the testator's domicile, is improperly authorized to take possession of the reality and to collect the rents and profits thereof, is no ground for his removal.\[54\]

Creditors may petition for the revocation of letters of administration,\[55\] but only when they were such when the letters were issued.\[56\]

Administrators pendente lite are removable at the pleasure of the court appointing them.\[57\] So is a collector of an estate to whom letters ad colligendum have been issued.\[58\]

On petition for removal of the representative, a notice or citation must ordinarily be served on him.\[59\] In case he tenders his resignation and files his account and the heirs object thereto, he cannot thereafter, by withdrawing his resignation, withdraw the issue tendered by him as to whether his letters should be revoked, but the heirs have the right, on the hearing, to insist on the revocation of his letters for cause, without serving a notice or citation on him.\[60\] The burden is on one alleging grounds for removal to prove them.\[61\] The question of the unsuitableness of the representative is to be determined as of the date of the petition.\[62\] Trial by jury is not generally allowed.\[63\]

Testamentary trust powers conferred on an executor as such are his by virtue of his appointment, and the revocation of his appointment as executor also revokes his power to act as trustee unless the will provides to the contrary.\[64\] If he is specifically named as trustee by the will, the rule is otherwise.\[65\] The fact that an executor is removed by the court of the domicile does not, as a matter of law, require his removal as ancillary executor in another state.\[66\]

An appeal from the order admitting the will to probate, taken after the issuance of letters to, and the qualification of the executors named therein, operates to suspend their functions pending its determination.\[67\] On the issuance of letters testamentary to the executors named in the will, a temporary administrator appointed to

- **53.** Hecht v. Carey \[Wyo.l 78 P. 105. In such case the phrase "has permanently removed from the state" means a permanent withdrawal and remaining away from the state after receiving letters. Must come to the state within a reasonable time, personily submit himself to the jurisdiction of the court, and personally conduct the settlement of the estate. Id.
- **54.** Stevens v. Larwilli, 110 Mo. App. 140, 84 S. W. 113.
- **55.** Code Cty. Proc. $ 2685. In re Rhoda, 93 N. Y. S. 973.
- **56.** Not when they subsequently acquire claims by assignment. In re Rhoda, 93 N. Y. S. 973.
- **57.** Since they are officers of the court. Davenport v. Davenport \[N. J. Err. & App.\] 60. A. 379.
- **58.** Only an abuse of such discretion will be reviewed on appeal. Guthrie v. Welch, 21 App. D. C. 562. Removal of a collector appointed in a wall contest because he is interested in the litigation is not an abuse of discretion. Id.
- **59.** Pierce's Code, $ 2329-2331, Bal. Ann. Codes & St. $ 6081-6083. In re Ditrich's Estate \[Wasah.\] $1 P. 1061.
- **60.** In re Ditrich's Estate \[Wasah.\] $1 P. 1061.
- **61.** Evidence held not to show that admin-strator willully or negligently delayed the settlement of the estate. In re Sylvar's Estate \[Cal. App.\] $1 P. 663.
- **62.** McGuinness v. Hughes \[Mass.\] 74 N. , 217.
- **63.** A proceeding under Rev. St. 1899, $ 42.
- **64.** An illustrative example of the removal of administrators is a statutory proceeding, equitable in its nature, the matter resting primarily in the discretion of the probate court, and hence is not within Const. art., 2, $ 28, guarantying the right to trial by jury " has therefore enjoyed." No jury may be demanded either in produce court or on appeal to circuit court.
- **65.** Marcus v. Larwilli, 110 Mo. App. 140, 84 S. W. 113.
- **66.** Mullannny v. Nangle, 211 Ill. 247, 72 N. E. 385, aff. 113 Ill. App. 457.
- **66.** Ancillary administration is independent, and not affected by orders of foreign court. American Missionary Asa? v. Hall \[Mich.\] 101 N. W. 535.
- **67.** In re Choate's Vfill, 94 N. Y. S. 117.
- **68.** In such case it is proper for the surrogate to grant them limited powers necessary for the preservation of the estate until the appeal is determined. Code Cty. Proc. $ 2682.

5. Cur. Law. ESTATES of DECEDENTS SS 4A. 1199

preserve the estate pending the probate of the will becomes functus efficiio.\[98\] The repeal of a statute authorizing the appointment of an agent to take charge of lands belonging to an estate puts an end to the authority of such an agent.\[99\]

\_Resignations.--\_A county administrator on resigning his office does not thereby cease to be administrator of any estate of which he has been legally appointed as administrator, but remains as such until he has been removed, or his resignation has been accepted as to such estate.\[99\]

In Louisiana, an administrator may not resign after he has begun his administration \[71\] and he may be superseded only when some cause exists which disables him to perform his trust.\[72\] Press of private business is not such a cause \[73\] nor is illness not shown to be disabling, permanent, or protracted.

\*\*SS 4. \_The authority, title, interest, and relationship of personal representatives. A. In general.\[74\]--\_The administrative authority cannot be exercised to the full even in the case of an executor until letters issue,\[73\] but after probate, his power continues pending contests.\[74\] Letters to an executor relate back and validate his acts; \[77\] but it has been held that the authority of an administrator does not relate back in the matter of a claim for wrongful death, but begins with his appointment.\[78\] Where duties other than the mere settlement of the estate are imposed upon an executor by the terms of the will appointing him, he becomes a trustee.\[99\] A judgment for or against one in his representative capacity is not conclusive on him in a subsequent action in which he appears personally, and vice versa.\[99\] An ancillary administrator in one jurisdiction is not in privity with an ancillary administrator of the same

**6S. On appeal from the order admitting**

sons assuming to represent an estate are the will being taken after the qualification of the executors, it is not necessary that the care of the estate pending the appeal be again confided to him, but a new appointment is necessary. In re Choate's Will, 94 N. Y. S. 176.

**6S.** We. St. 1889, $ 257, authorizing the probate court to appoint an agent to take charge of lands belonging to estates, was repealed by Laws 1899, $ 41 (Act May 11, 1899), and hence an agent previously appointed had no authority, after such repeal, to sue for rent of lands of deced descent based by him. His office ceased on such repeal. Wendelton v. Kingery, 110 Mo. App. 67, 84 S. V. 102.

**7Q.** Bailey v. McAlpin \[Ga.\] 50 S. E. 288.

**71, 72, 73.** Succession of Broadway \[La.\] 38 So. 430.

**74.** See 3 C. L. 1249.

**75.** An executor cannot act as such until after the will has been properly probated and letters of administration have been issued to him. Mere taking of affladavits of subscribing witnesses by deputy register of wills does not constitute probate, and execuritz named in will did not defend subsequent caveat in her official capacity so as to be entitled to attorney's fees from the estate. Tilingham v. France, 99 Md. 611, 59 A. 277.

**76.** In a will contest plaintiff cannot by any process that can be issued to enforce the judgment, obtain possession of the property, regardless of the right of the executor to duly and legally administer the estate. Burgess v. Sullivant, 2 Ohio N. P. (N. S.) 327. Executor cannot be interfered with by the appointment of a receiver in a suit to contest a will. Id.

**77.** Nance v. Gray \[Ala.\] 38 So. 916.

**Note:** Accords and satifactions by per- 1200

ESTATES OF DECEDENTS SS 4B, 5 Cur. Law.

estate in another so as to render a judgment against one of them a bar to an action against the other on the same cause of action.\[81\]

It is for the court and not the jury to determine the powers of a representative.\[82\]

Though in the ordinary acts of administration of an estate, the act of one executor is the act of all, and is binding upon the estate, where several have qualified the joint act of all of them is necessary to execute a special trust created by the will.\[83\]

It is the duty of a special administrator to preserve the estate merely.\[83\] The administrator de bonis non has the same powers possessed by the original administrator, and is governed by the laws for the settlement of decedents' estates.\[84\] His authority, however, is limited to the administration of such assets as have not been converted into money and not distributed and delivered or retained by the executor or former administrator, under the direction of the orphans' court.\[85\] Moneys received by the executor or former, administrator and mingled with his own, or other assets sold, wasted, misapplied, or converted to his own use, are regarded as already administered within the meaning of this rule, and hence the administrator de bonis non acquires no title thereto, and cannot sue anyone for their recovery.\[86\] Thus he cannot in such case sue on his predecessor's bond, but the remedy is for the beneficiaries to apply to a court of equity for the appointment of a trustee for that purpose.\[87\]

The public administrator is generally a county officer, and acts by virtue of his office and not merely by virtue of the letters issued to him on particular estates.\[88\] When duly appointed administrator of any estate he occupies the same position as to duties and liabilities as any other administrator.\[89\]

Acts merely ministerial may be delegated; hence it is proper to employ another to conduct a sale in the representative's presence.\[90\]

(SS 4)

\_B. Contracts, conveyances, charges and investments.\[91\] Contracts.--\_The executor or administrator personally, and not the estate, is liable on his contracts for the benefit of the estate,\[92\] and persons performing services thereunder are generally

81. Ingersoll v. Coram, 127 F. 418.

predecessor in office. State v. Fidelity & Deposti Co. \[LM.\] 59 A. 735.

ers of executor and temporary administrator to carry on business belonging to decedent, 59 A. 735.

and not error to refuse to submit the ques-

88. Is a county officer under Pol. Code, tion of their authority to the jury. Aligelt

$ 4103, and St. 1897, p. 492, c. 277, and acts v. Oliver Bros. \[Tex. Civ. App.\] 85 S. W. 28, by virtue of his office when acting under S2a. Hosch Lumber Co. v. Weeks \[Ga.\] 51

Code Viv. Proc. $ 1726, subd. 4, requiring him

S. E. 439. Heirs will not be held to have ac-

to take charge of the estates upon which quiescent in the unauthorized act of one or

letters of administration have been issued to

several co-executors in executing a deed re-

him by the court. Loss Angeles County v.

quiring the signature of all, where there is

No evidence that actual notice of its execu-

$9. Bailey V. McAlpin \[Ga.\] 50 S. R. 88.

tion was ever brought home to them, and

$9. Does not delegate power of sale. Land-

ded was not recorded until after execution

dry v. Laplos, 113 L. 697, 37 So. 606.

and record of a later deed by an adminis-

$1. See 3 C. L. 1251.

trator de bonis non of the estate. Id.

88. In re Bell's Estate, 145 Cal. 646, 79 P.

$5. An administrator pro tem appointed in

to decedent, directing that the amount

a contest of a claim represents the entire eas-

the estate, held erroneous. Renwick v. Gar

date and is bound to follow an appeal if an-

dither appointment is not made as authorized

by administration act, section 72. Mayer v.

Sknelder, 112 III. App. 628.

$4. Burns Ann. R. 1901, SS 2395. As to

payment of taxes. Cultop v. Vincenens, 84

Ind. App. 667, 72 N. E. 166.

$5. Code Pub. Gen. Laws 1899, art. 93,

$70, 72, construed. State v. Fidelity & Deposti Co. \[LM.\] 59 A. 735.

$6. Cannot sue for a devastavit by his

$9. Cannot sue for a devastavit by his

$ 5 Cur. Law. ESTATES of DECEDENTS SS 4B. 1201 required to look to him alone for their compensation," though disbursements by reason thereof, when reasonable in amount and for necessary purposes, will constitute a charge against the estate in favor of the representative." An attorney is not, however, deprived of his lien for compensation for professional services and for disbursements upon moneys received by him on his client's behalf in the course of his employment, by reason of the fact that the client is an executor, and that the services were rendered and the money received on behalf of the estate." Agreements by the representative to pay his attorney a certain part of the amount recovered by him have been held to be valid."

Since an administrator is not an agent of his intestine, but derives his authority solely from the statute, and is, with respect thereto, a public officer," he is not personally liable on his official contracts, though in excess of his powers, provided he acts in good faith, and the persons with whom he contracts have equal means of knowing the extent of his authority, or the latter depends upon a public statue."

Executors making a contract in their official capacity have at least a prima facie right to enforce it." One cannot be sued as executor on a contract made by him personally."

capacity to the same extent as though they \[torney and the estate. In re Sullivan's Essture to be rendered for his personal benefit, 36 Wash. 217, 78 P. 945.

ht. Reynolds-McGinness Co. v. Green \[Vt.\] 61

4. See SS 9D, post.

A. 556. Is not relieved from personal liability on a contract to pay a commission to 1068.

prokers for selling reality belonging to the 'state because, at the time when he made it, he did not have a license from the prostate \[or to make the sale. Particularly where the parties interested in the estate had authorized the sale, there was nothing to prevent its security such a license, and he actually did secure one before the broker procured a customer. Id. Such a promise is an original one, and so not within the statute of frauds (V. S. 124), requiring special promessess of an executor or administrator to answer damages out of his own estate to be in writing. Id.

83. An attorney cannot maintain a suit in the debate court against the estate for legal services rendered by him to the estate under a contract with the executor. Parker v. Mayo \[Ark.\] 83 S. W. 324. Not a charge against the estate until it has been allowed in his account as executor. Plaintiff as executor procured the product of decendent's will, but the probate was thereafter annulted and he was then appointed administrator. On settlement of his account as administrator the surrogate disallowed an amount paid by him for attorney's fees in the probate proceedings, and he appealed. Pending the appeal the estate was distributed by final order, but under an agreement with the distributes sufficient securities were retained to pay the claim if the court should so order. Court affirmed surrogate's decree on ground that claim must be credited to him in his account as executor and not as administrator, and that he might apply for the opening of the executor's account. Held that, on plaintiffs failure to secure the opening of his account as executor because of final distribution, he had no right of action against the distributes for contribution. Blair v. Blair, 97 App. Div., 507, 90 N. Y. S. 190. There 18 no relation 'between the administrator's at 5 Curr. L--76.

In the absence of express authority in the will, the executors have no power to carry on testator's business.2 By statute in some states an independent executor may do so.3

In the absence of a statute, a direction in the will, or an agreement between the partners to the contrary, the executor of a deceased partner has no authority to continue the partnership business.4

\_Investments.5--\_The representative in making investments should employ such diligence and prudence as, in general, prudent men of discretion and intelligence in such matters employ in their own like affairs.6 Investments beyond the jurisdiction of the court are not necessarily illegal, but should not be sustained except under exceptional circumstances.7 Statutes in some states provide in what securities the funds of the estate may be invested.8 Where the security taken is unauthorized, the representative must convert it into cash at his own charges, and make good any deficiency; 9 but this is not necessarily the case where security, though authorized, is insufficient.10 An administrator with the will annexed cannot justify the investment of trust funds in a manner not within the authority of trustees on the ground that the trustees appointed by the will were given discretionary power to make them, such discretion being purely personal.11

\_Conveyances.12--\_The ded of a commissioner who, acting as such, sells land belonging to decedent. is evidence of the facts therein recited.15

One whose interest in property depends upon the terms of a will does not, by a ded from the executor purporting to be executed pursuant to the requirements of the will, but which the executor is not required to execute either by the will or the law, acquire any greater interest than would pass under the will; 14 nor can such

with his own funds under like circumstants-

cs, would require. P. L. 1902, p. 700, c. 240.

Macy v. Mercantile Trust Co. \[N. J. Eq.\] 59 Alleglet v. Oliver Bros. \[Tex. Civ. App.\] 86 S. W. 28. The estate is liable for the salary of an agent employed by an independent executor carrying on a business belonging to the estate under Sayles' Ann. Civ. St. 1897 Art. 1894, whose employment was continued by a temporary administrator, expressly authorized by order of court to continue the business, and by the permanent administrator. Alleglet v. Oliver Bros. \[Tex. Civ. App.\] 86 S. W. 28. In action against administrator for indebtedness incurred and services rendered by plaintiffs as purchasing agents of the estate while it was engaged in a mercantile business, allegations held sufficient to charge estate with indebtedness incurred in carrying on its business. Id.

4. Under Rev. St. 1895, art. 1867, providing that the rights, powers, and duties of representatives shall be governed by the principles of common law where the same do not conflict with any provisions of the statute. Alleglet v. Alamo Nat. Bank \[Tex.\] 83 S. W. 6. Cannot interfere with right of -surviving partner to close up business, nor can survivor consent to his participation in the business. Id. Rev. St. 1895, art. 1894, providing that the representative may carry on decedent's business in certain cases, applies only to his individual business and does not repeal Id., art. 1867, or change the rule above stated. See, also, Partnership, 4 C. L. 908.

1. See $ C. L. 1254.

1. Loans on reality should be such as a reasonable and prudent investor, dealing with his own funds under like circumstants-

1. In re Corbin, 101 App. Div. 25, 91 N. \[ with his own funds under like circumstants-

cs, would require. P. L. 1902, p. 700, c. 240.

3. Sayles' Ann. Civ. St. 1897 Art. 1894.

Macy v. Mercantile Trust Co. \[N. J. Eq.\] 59 Alleglet v. Oliver Bros. \[Tex. Civ. App.\] 86 S. W. 28. The estate is liable for the salary of an agent employed by an independent executor carrying on a business belonging to the estate under Sayles' Ann. Civ. St. 1897 Art. 1894 Art. 1894 Art. 1894 Art. whose employment was continued by a temporary administrator, expressly authorized by order of court to continue the business, and by the permanent administrator. Alleglet v. Oliver Bros. \[Tex. Civ. App.\] 86 S. W. 28. In action against administrator for indebtedness incurred and services rendered by plaintiffs as purchasing agents of the estate while it was engaged in a mercantile business, allegations held sufficient to charge estate with indebtedness incurred in carrying on its business. Id.

4. Under Rev. St. 1895, art. 1867, providing that the rights, powers, and duties of representatives shall be governed by the principles of common law where the same do not conflict with any provisions of the statute. Alleglet v. Alamo Nat. Bank \[Tex.\] 83 S. W. 6. Cannot interfere with right of -surviving partner to close up business, nor can survivor consent to his participation in the business. Id. Rev. St. 1895, art. 1894, providing that the representative may carry on decedent's business in certain cases, applies only to his individual business and does not repeal Id., art. 1867, or change the rule above stated. See, also, Partnership, 4 C. L. 908.

1. See $ C. L. 1254.

1. Loans on reality should be such as a reasonable and prudent investor, dealing with his own funds under like circumstants-

1. In re Corbin, 101 App. Div. 25, 91 N. \[ with his own funds under like circumstants-

cs, would require.

## 5 Cur. Law. ESTATES OF DECEDENTS SS 4C. 1203

ded be used as color to lay the foundation of a prescriptive title against the claims of those whom the grantee was bound to recognize as the owners under the terms of the will.\[15\]

Where an administrator's deed recites the authority given by the ordinary of the county to sell certain land with the exception of all the granite thereon, but in the granting clause fails to refer to the granite, it will be presumed that the administrator did not undertake to exceed his authority, and that there was no intention to pass title to the granite.\[16\]

(SS 4) _C. Title, interest, or right in decedent's property.\[17\]_--The administrator cannot exercise any right which was personal to the decedent.\[18\] The legal title to personality goes to the executor or administrator,\[19\] and the legates or distributese cannot take title thereto except through him.\[20\] He holds the same in trust, however, for the creditors and distributese, and is accountable to the court appointing him after the manner of trustees generally.\[21\]

An executor named in a valid will has a right to the custody of the title papers belonging to his testator, but has no right to refuse to allow the parties in interest to see and examine them.\[22\]

By statute in Georgia, no devise or legacy passes title until the executor asserts thereto;\[23\] such assert perfects the inchoate title of the devisee.\[24\] When once given it is irrevocable,\[25\] and the property cannot thereafter be recovered by the executor or his successor,\[26\] even for the purpose of selling the same to pay debts.\[27\] Assent may

\*\*15. Sanders v. Thompson \[Ga.\] 50 S. E. \[174\] 20. Stehn v. Hayassen \[Vls.\] 102 N. W. 976. Under Utah Rev. St. 1898. $ 2810, in a specific devise or legacy, the title passes by \[Ga.\] 51 S. E. 666. The exception in the handoun clause is not void for repugranancy, from the personal representative, and he since the whole instrument, when construed orgether, clearly shows the intention of the or beatenified in cera cases. Williamson parties to make the exception. Id. 17. See 3 C. L. 1254. 18. Order in bankbook for payment of the order of his testator has beenquehed and which was not indexed by the testator to him and not to authorize payment to his administrator. Cole v. Bates, 186 Mass. 584, discharge cannot be used thereon by such executor as an individual. Jacques v. Bal. 19. See, also, Descent and Distribution, 5 L. 99. Huyler v. Dolson, 101 Exp. Div. 83, $ 147, 242, making it the duty of the rep 91 N. Y. S. 794; Carpenter v. United States Fidelity & Guaranty Co., 123 Wis. 209. 101 N. W. 404; Stehn v. Hayassen \[Vls.\] 102 N. W. 1047. Unless the probache contr, by order, dispenses with administration under the decedent had been paid and that he heRev. St. 1899, $ 2. Perkins v. Goddin \[Mo. App.\] 85 S. W. 956. On setting aside a consequence by complainant of his interest in his deceased wife's reality, in which he also transferred his interest in her personality to the same persons, held error to require her administrator to surrender her personality, of which he had taken possession prior to the commencement of the suit, since he was required to account for the personality only in the course of administration. Irwin v. Sample, 313 Ill. 160, 72 N. E. 687. The legal title of a promissory note bequehed to a particular individual. Jaques v. Ballard, 111 Ill. App. 567. Title to timber severed from reality before owner's death goes to executor, and purchaser from him acquires good title. Instructions held misleading. Curry v. Lanning, 94 N. Y. S. 685. Title vesits in the administrators and not in distributese, and in a controversy between them over its title or possession the former must prevail. Barnes v. Burnes \[C. C. A.\] 187 F. 781.

1204**ESTATES OF DECEDENTS SS 5A. 5**Cur. Law.

be presumed from lapse of time,\[28\] the burden being on the party denying it to overcome the presumption.\[29\] Assent to a devise to the life tenant inures to the benefit of the remainderman, and, at the termination of the life estate, the latter may take immediate possess.n, unless the will shows a different intention.\[30\]

SS 5. _The property; its collection, management, and disposal by personal representatives_. $\\Lambda$\_. _Assels._"--Ordinarily realty passes to the heirs or devisees, subject only to the right of the product court to order a sale thereof for the purposes fixed by statute, and the representative has no interest therein,\[32\] and is not entitled to the rents and profits thereof acc:uing after decedent's death.\[33\] By statute in some states, however, the representative is entitled to the possession of the reality and to the rents and profits thereof until the estate is settled and delivered by order of the court to the heirs or devisees.\[34\] In others where there is no heir or devisee present and competent to take possession of the reality, the administrator may do so, and demand and receive all rents and profits for the benefit of the persons entitled thereto.\[35\] The law of the place where reality is situated governs in respect to the rights of the parties and the modes of its transfer and distribution.\[36\] An administrator, being

Watkins v. Gilmore, 121 Ga. 488, 49 S. E. 588. 111 All. App. 263. 111 All.

legally entitled to the possession of the lands of the estate when they are needed for the payment of debts, may, when the complaint shows that they are so needed, bring ejectment for their recovery without joining the heirs, provided that no affirmative relief is asked against the heirs and no relief which will affect their title.37 In states where the administrator is entitled to the possession of the reality, the heirs may maintain an action for its recovery if there is no administrator; or, if there is one, provided he consents to their doing so.38 A temporary administrator, as such, has no title or interest in the land of his intestine, and cannot maintain an action for its recovery, nor is his consent necessary to enable the heirs to do so.39

It must, of course, appear that decedent actually had title to the property at the time of his death.40 The fact that the representative deals with property as assets is not conclusive upon the question whether or not it is such,41 nor is an application for leave to sell land by an administrator evidence of possession or title in his intestine.42

Property decided to the estate,43 a contract of the grantee to pay the debts of the estate in consideration of the heirs conveying to him a portion of the lands of the deceased,44 rents of realty accruing during decedent's lifetime,45 and the right to redeem from a pledge, where no time for redemption is fixed by the contract, and the 1206ESTATES OF DECEDENTS SS 5A. 5Cur. Law.

creiditor has not in the meantime called upon him to redeem,46 have been held to be assets of the estate.

Where the grantor in a security deed dies after its execution, in exercising the power of sale therein the property should be sold as that of his estate.47

The proceeds of insurance policies payable to the estate are assets,48 but the proceeds of those payable to the widow and children as individuals are not.49 At common law an estate for years in land is personality, and goes to the representative;50 but this rule has been changed by statute in some states.51 One with whom decedent, during his lifetime, deposited money or property with directions to use it for a specific purpose, is not liable to the deedent's representative as for assets in his hands, provided he has complied with such directions, even though he did not do so until after deedent's death.52

A note evidencing an advancement by an ancestor to an heir is not a part of the estate of the ancestor, but the heir must account to the estate.53 The administrator should, however, inventory a note against a son of the decedent, where the will directs that, if the note is not paid at the death of the testator, the amount thereof shall be charged against the son and taken out of his distributive share.54

Since the legal title and the right to possession of personalty is in the representative,55 suits for its recovery must ordinarily be brought by him;56 but this rule does not apply where there is no administration and no necessity therefor.57

Footnote 46: White River Sav. Bank v. Capital Sav.

App.1 85 S. W. 936. Right to recover on Bank & Trust Co. \[Vt.\] 59 A. 197.

- 47. Greenfield v. Stout \[Ga.\] 50 S. E. 111.

v. Harrell \[Ga.\] 51 S. E. 283. Including

- 48. Where death benefits accruing to deedent from a beneficial association are payable to his estate, his administrator and not v. Hayassen \[Vis.\] 102 N. W. 1074. Where a minor son for whose support he was partually liable, is entitled to it. Compton's Estate, 25 Pa. Super. Ct. 28. Widow, as adminstistritz or deceased husband, took out policy of fire insurance on a house which it was supposed belonged to him under the will of his first wife. Later it was held that the latter will was invalid and that the husband had no interest in the property. Hed that the proceeds of policy belonged to the estate and passed as intestine property, and did not go to the widow under her husband's pilium. Bloom v. Strauss \[Ark.\] 84 S. W. 511.
- 49. Widow not bound to account therefor in her capacity as administrative. Bramlett v. Mathis \[S. C.\] 50 S. E. 644.
- 50. Though for a longer period than the tenant's life. Broadwell v. Banks, 134 F.
- 51. Under Swan's St. Ohio 1841, p. 289, % 1, personal leasehold estates, renewable forever, descend in the same manner as reality.

Broadwell v. Banks, 134 F. 470. Lessor may pursue estate of deceased lessee for recovery of accruing rentals so long as there can be found assets of the estate subject thereto.

- 52. Doctrine held 'not to apply where conditions of trust were not performed. Pierce v. Woodbury \[Mc.\] 60 A. 424.
- 53. Tobias v. Richardson, 5 Ohio C. C. (N.
- 54. Bullock v. Bullock, 3 Ohio N. P. (N. S.) 190.
- 55. See SS 4C, ante: also Descent and Distribution, 5 C. L. 995.
- 56. To recover part of crop due decedent as rental for lands owned by him and others in common. Perkins v. Goddin \[Mo.\] \[Mo.\] 51 S. E. 283, but the cannot 5 Cur. Law. ESTATES of DECEDENTS SS 5B.

It is only under special circumstances that distributee may maintain a suit against the personal representative and another who is a debtor of the estate.\[58\]

It is not incumbent on an administrator suing to recover rents belonging to the estate to prove that decedent left debts unpaid and that creditors are interested in the estate.\[59\]

Assets of the estate cannot be said to be in custody of the law where distrained for rent long after the final account of the executor has been confirmed.\[60\]

(SS 5) _B. Collection and reduction to possession.\[61\]_--The administrator is the agent of the creditors in marshaling the assets and accumulating funds for the payment of their claims, and is also the representative of the estate,\[62\] and may maintain an action on a contract made by the creditors for the benefit of the estate.\[63\] In Louisiana, it is his duty to recover the assets and rcluce them to cash if the succession owes debts, unless the heirs pay such debts.\[64\] He may in that state sue a purchaser of land for the price or may recover the land pursuant to the contract in the event of nonpayment \[65\] and for that purpose the right is indivisible so that the assent or objection of heirs is immaterial.\[60\]

Statutes in some states provide for a proceeding by the representative in the probate court to recover money or other personal property belonging to the decedent, to the possession of which the representative claims to be entitled.\[67\] In the absence

sue in such case until she has actually paid

it could not be presumed in support of the all his debts (Jackson v. Green \[Ga.\] 51 S. E. 284). Nonsuit properly granted in ac-

a decededent in common, suing to re-

tion by widow on open account for salary

over decedent's share of the rents, that deducedent, where it appeared from her

ceased left no debts and hence that adminis-

evidence that she had paid some of his debts

traton on her estate was unnecessary. Per-

before bringing the suit and some after-

kins v. Goddin \[Mo.\] 85 S. W. 936.

wards. Her status when suit is brought

60. Where furniture had been bequeathed

governs. Id. A specific legate of a chose

to a child who after the death of the deced-

in action may sue when there are no debts

and no administration (Patron v. Pinkston

was to pay the rent from income derived

\[Miss.\] 38 S0, 500), and the possibility that

from the shares of the children. The rent

funeral expenses and administration costs

are unpaid is no defense (Id.). The fact

more than a year after decedent's death.

that a distributee is a defendant in such an

Fidelity Trust Co. v. Cook, 25 Pa. Super. Ct.

action is no obstacle in equity. Id.

142.

001. Heid allowable to do so in suit against

001. See 3 C. L. 1258.

representative and two others, all of whom

62. Stewart v. Rogers \[Kan.\] 80 P. 58.

were debtors, the object of which was to

63. On contract between two creditors of

have a further settlement of the accounts of

the representative, to require debtor defend-

casts to account for what they owed the

an the debts and expenses of administration

tate, and for a distribution thereof between

those entitled, where all defendants were

judgment against the estate, and of the heirs

necessary parties to a suit for settlement

agreeing to convey certain tracts of land to

and distribution, and bill in effect charges

each of them, after the same has been r

collusion between the representatives and

the other defendants, shows confidential

reinforve her nor the heirs knew of the

lations between them and deceased, and that

representative did not charge himself with

\[Kan.\] 80 P. 58. After its rinfication, the

his indebtedness or attempt to collect that

contract becomes an asset of the estate. Id.

of the other defendants. Reager's Adm'r v.

The term expenses as used is such contract

Chappelear \[Va.\] 51 S. E. 170. Allegation

that representative had been requested to

sue other debtors and had refused to do so

64. Right to rescale side of land for non-

held not necessary under the circumstances.

Id. In action by a distributee against ad-

ministrator and debtor of estate where peti-

tion alleged that a third person had borrowed money from the decedent and repaid

It to the administrator, there could be no

recovery on proof that the money was re-

paid to the decedent through the medium of

the debtor. Id.

59. Where court in partition suit divided

reality and also certain rents aceruing before

decedent's death among the heirs, held that

it could not be presumed in support of the

all his debts (Jackson v. Green \[Ga.\] 51 S. E. 284). Nonsuit properly granted in ac-

a decedent in common, suing to re-

covered decedent's share of the rents, that dec

due decedent, where it appeared from her

ceased left no debts and hence that adminis-

evidence that she had paid some of his debts

from no her estate was unnecessary. Per-

before bringing the suit and some after-

kins v. Goddin \[Mo.\] 85 S. W. 936.

words. Her status when suit is brought

60. Where furniture had been bequeathed

governs. Id. A specific leg of statute, only the heir may recover intestate and the devisee testate really or interests therein." By statute in Arkansas the representative of a fraudulent grantor may, on application to a court of chancery, have any deed or grant made by decedent with intent to delay and defraud his creditors, set aside for the use and benefit of the grantor's heirs at law, saving the rights of creditors and purchasers without notice." In case the representative refuses to take advantage of the act, the heirs at law may bring such a suit." The sale of the subject of a fraudulent conveyance made by a decedent during his lifetime to one with notice of the fraud may be enjoined, where the estate is insolvent, particularly where the creditor has a lien upon the land." This rule, however, has no application when a person seeking to enjoin partition proceedings has no present claim against the decedent's estate."

A conditional gift of personalty by an intestine can be recovered by his administrator."

An executor who is made trustee of certain legacies has sole power to maintain actions with respect to their preservation and recovery."

An administrator with the will annexed to whom the testamentary trustee has, on his discharge, transferred the trust estate, may sue to recover property belonging to it." The executor of the wife may enforce a trust resulting in her favor in property purchased by her husband in his own name with money belonging to her."

In the absence of a statute to the contrary, the executor or administrator may assign, sell, and transfer the choses in action of the estate held by him," but this

\\begin{tabular}{l|l} ance and the filing of an answer to the mer- & 71, 72. Monroe v. Monroe, 26 Pa. Super. \\ its. Id. If the control of the property is & Ct 51. \\ admitted, but the petitioner's right there & 73. An intestine shortly before his death \\ is disputed, the surrogate is required to dismiss the proceedings, unless the parties con- & stating that if he did not come back she \\ sent to have him determine their rights. Id. & could have it. Hafer v. McKelvey, 23 Pa. \\ $ 2710. Id. Duty of surrogate to dismiss & Super. Ct. 202. \\ proceedings where witness claimed an attorney's lien on papers sought to be recovered. & 74. The guardian or curator of the leg- \\ \\

## 5 Cur. Law. ESTATES OF DECEDENTS SS 5C.

right has been taken away in some states.\[18\] The representative of a deceased surety may recover from the estate of the principal the amount which the surety has been compelled to pay by reason of his secondary liability, and may enforce such claim against property fraudulently conveyed by the principal where his estate is insolvent.\[19\] He may also compel the obligee to resort to the property so conveyed for the satisfaction of the balance of his claim.\[20\]

A surviving partner has a right to the possession and control of partnership property superior to that of the administrator of a deceased partner, and the latter can claim only such of it as remains after the payment of the partnership debts.\[21\] On a proper showing the administrator may compel the survivor to account,\[22\] but he cannot enforce partnership demands or maintain actions to reduce partnership assets to possession.\[23\]

The conservator of a nonresident alien whose property upon his death will escheat to the state is not precluded by that fact from removing it to the state of his residence.\[24\]

The heir ab intestato under the laws of Porto Rico may discharge debts owing the estate and release the debtor from further liability.\[25\] The validity of a payment by a mortgagor to one decreed the sole heir ab intestato of the deceased mortgage is a question of fact where made before maturity and at a time when the debtor had notice of a well-founded assertion of another claiming a right to the property.\[26\] A mortgagor who, pending proceedings to have a petitioner declared sole heir ab intestato of the mortgage, under order of the court pays his indebtedness into court, is thereby discharged from liability to one declared a co-heir in proceedings commenced subsequent to the payment.\[27\]

(SS 5) \_C. Inventory and appraisal.\[28\] The inventory is an admission by the administrator, though not a conclusive one, of possession of such assets of his intestine as are therein described.\[29\] He may explain any mistake or error therein, or

and compound them. Nance v. Gray \[Ala.\] Code #SS 976-980 are not made at the risk of 38 So. 916.

\*\*78.\*\*Broadwell v. Banka, 134 F. 470. Unger Ohio Rev. St. $ 6074, right to sell notes, claims, demands, rights of action, etc., is taken away except as to desperate claims, and bonds and stocks necessary to be sold to pay debts as provided by Id. $ 6077, 6080.

Id. Sale of claim for rents acerning before decedents' death held to confer no right of action on purchaser. Id.

\*\*79.\*\*Right of action of surety goes to repristative and not to her. Coffinberg v. McClellan \[Ind.\] 73 N. E. 97.

\*\*80.\*\*Has equitable right to have property of principal exhausted before resort is had to estate of surety which he represents. Cof-finberry v. McClellan \[Ind.\] 73 N. E. 97.

\*\*81.\*\*Reality. Hartnett v. Stillwell, 121 Ga.

\*\*82.\*\*Where an administrator of a deceased partner brings action for a partnership accounting against a surviving partner who asserts that he purchased the interest of the decedent, the surviving partner has the bur-den to show by clear and satisfactory evidence the truth of his assertion. Consaul v. Cummings, 24 App. D. C. 36.

\*\*83.\*\*For a full discussion of these questions see Partnership, 4 C. L. 908.

\*\*84.\*\*Langmuir v. Landes, 118 Ill. App. 134.

\*\*85.\*\*Payments by a mortgagor to one deced the heir ab intestato of the deceased mortgage, in proceedings under Porto Ricomay show that deceased had no title to the property inventoried, but the burden of doing so is on him.\[90\]

In Texas any executor may, on petition of any person interested in the estate pointing out property alleged to have been omitted from the inventory, be cited to show cause why he should not correct such inventory so as to include the same,\[91\] and upon proof, on the hearing, that property has been so omitted, the county court may require him to make such correction.\[92\]

(SS 5) _D. Property allowed widow or children.\[93\]_--In some states the widow is allowed to retain the manison or chief dwelling house of her husband, free from molestation or rent, until dower is assigned to her.\[94\]

The widow and children generally have an extended estate of homestead in land occupied by decedent,\[95\] free from liability for debts except such as he charged thereon. The widow's right in the homestead is one of occupancy only, which she cannot convey, and may abandon at pleasure.\[96\] When she abandons it,\[97\] or sells her interest, the homestead right terminates, and the heirs of the deceased husband are entitled to possession of their interest in the property.\[98\] She cannot have both dower and homestead in the same land, and therefore by electing to take the former she' waives' her right to the latter.\[99\] By statute in some states it is made the duty of the probate court or judge, on the coming in of the inventory, to set aside to the surviving husband or wife, or minor children, the homestead selected and recorded during decedent's lifetime, or, if none has been so selected and recorded, then to select and set apart one from the estate and have it recorded.\[1\] The court may act either on petition or on its own motion.\[2\] The wife is not deprived of her right to

lect amount of widow's allowance held to

in which defendant claims right to hold land require submission of case to jury. Id.

90. Wood v. Brown, 121 Ga. 471. 49 S. E.

01. Has the burden of proving that proprely included in the inventory did not belong to decedent at the time of his death.

In re Bayley \[N. J. Eq.\] 59 A. 215. Xvi-dence insmclient to show gift of stock by decedent to her children, but merely showed an attempted testamperly disposition, in-effective because not made by will. Id. Husband of decedent not stepped from claiming accounting for stock by his silence, where he did not have knowledge of all the facts.

91. Batts' Ann. Civ. St. art. 1974. Allegation that particular description of notes and credits which legates and devises sought to have included could not be given because executor had suppressed and destroyed all evidence in regard to them held to state a sufficient excuse for failure to specifically describe property. Moore v. Mertz \[Tex. Civ. App.\] 85 S. W. 312.

01. Batt's Ann. Civ. St. arts. 1973, 1975.

Moore v. Mertz \[Tex. Civ. App.\] 85 S. W. 312. Such a proceeding to compel him to include notes and credits held by him for decedent is not an action for debt so as to

oust the county court of jurisdiction. Has jurisdiction under Const. art. 5, 16, and Rev. St. 1895, art. 1840, giving such court

general probate jurisdiction and under express provisions of Batts' Ann. Civ. St. 1973-1975. Id.

93. See 3 C. L. 1261.

01. Under statute authorizing widow to

occupy the manison or chief dwelling house of her husband for two months or until her

dower is assigned, an answer in ejectment

10

in which defendant claims right to hold land

under her dower right, and alleging that de

90. Wood v. Brown, 121 Ga. 471. 49 S. E.

01. Has the burden of proving that proprely included in the inventory did not belong to decedent at the time of his death.

11

re Bayley \[N. J. Eq.\] 59 A. 215. Xvi-dence insmclient to show gift of stock by

tribution, 8 & 5, C. L. 1001.

5. See, also, Homestead, 3 C. L. 1630.

under Const. art. 8, 58 3-6, entilting the

widow of a deceased resident to a home-

head during her natural life, answer in

acceptment alleging that defendant was

widow of one who occupied land as a home-

stead and that she had continued to occupy

at as such since his death, held to state a

good defense. Gates v. Solomon \[Ark.\] 83

S. W. 348. See, also, Descent and Dis

10

94. Jones v. Green, 25 Ky. L. R. 1191, 83

S. W. 582. The right of the survivor of a

community to occupy the community home-

sufficient excuse for failure to specifically

11

s. York v. Hutcheson \[Tex. Civ. App.\]

83 S. W. 895.

97. Terminates an unexpired lease pre

viously made by her. Jones v. Green, 25

Ky. L. R. 1191, 83 S. W. 582.

98. York v. Hutcheson \[Tex. Civ. App.\]

83 S. W. 895.

99. Having conveyed and abandoned land

after electing to take homestead, her grantee such homesetead by the fact that she has other property fitted for occupancy." In a proceeding merely to set apart a homesetead to the surviving wife, the probate court has no jurisdiction to determine in whom the remainder in fee vests.4 Where the administrator has previously, and under order of the court, mortgaged property belonging to the estate, including that subsequently set apart as a homesetead, the administrator is entitled to pay out of the assets of the estate a sum necessary to secure the release of such homesetead.5

The surviving husband or wife is also generally entitled to certain of deco-dent's personality free from liability for his debts, or a money equivalent in lieu thereof.6 Description of her husband by the wife may operate to deprive her of this right.7

In most states the widow is also given an allowance for the support of herself and her family during the period of administration.8 It is for the benefit of herself and her family, and, if it may be reached by her creditors after it has been allowed, she cannot be compelled to assert it for their benefit, nor can they assert it for her.9 It is not a claim against the decedent within the statute relating to the filing of claims.10 The widow and minor children of a deceased partner are entitled to a statutory year's support only in what remains of his interest in the partnership property after payment of the partnership debts.11

The right may be lost by delay in asserting it.12 The wife is not necessarily de-jugal relations a considerable time before his death, she is not such a widow as entitles her to appropriate $300 of his estate to her own use. Myer's Exstate, 24 Pa. Super. Ct. 142.

8. Widow's and minor's allowance given by Rev. St. 1895, arts. 2038, 2044, 2093, P. 643.

1. Even though it was a greater sum than the homesetead tract was liable for in proportion to its value. In re Shively's Estate, 145 Cal. 400, 78 P. 869.

1. Under Burns' Ann. St. 1901, $ 242, she may select articles named in the perpissement not exceeding 5500 in value, and if she falls to select any part of them the amount of the deficiency shall be paid to her in cash. If the personality is insum-cient to pay that amount, it is made a lien on the reality, to be enforced by sale upon petition of the administrator. Rush y. Kelley, 34 Ind. App. 449, 73 N. E. 130. Where administrator knows that the amount selected by her is less than $500, and that there is not sufficient personality to pay the balance, it is his duty to petition for a sale of the reality before seeking final settlement of the estate. Id. Where a husband dearts his wife and family in England and after becoming domiciled in Pennsylvania dies, leaving an estate, the widow is entitled to the exemption allowed by the act of April 14, 1851 (P. L. 612), though she knew during his lifetime of his residence in Penn-sylvania. Balmforth's Estate, 26 Pa. Super. Ct. 491. Tex. Rev. St. 1895, art. 2046, authorizing probate court to set aside property exempt from forced sale to the widow, minor children, and unmarried daughters remaining with the family of the deceased, held not repugnant to Const. art. 16, $ 52, providing for the descent of the homesetead. Randolph v. White, 135 F. 875.

1. Where a wife without reasonable cause leaves her husband and renounces all con- prived of her right by her misconduct,13 but a separation agreement between herself and her husband may have that effect.14 The acknowledgment by a married woman of a deed of trust given by her husband does not deprive her or her minor children, after her husband's death, of the right to have the proceeds of a sale of the land covered thereby applied to the payment of her allowance, where the estate is insolvent.15 Neither does the fact that she joins the grantee in an application for the sale of the land.16 She does not, by joining in an agreement with other heirs to settle the estate without administration and agreeing to take a life estate in the realty for her share, waive her right to an award when administration becomes necessary because of a deficiency of personality to pay the debts.17 The allowance of a claim by an independent executrix in her official capacity does not estop her, on her subsequent removal and her appointment as administatrix with the will annexed, from claiming priority over the same for her widow's allowance.18

The allowance may, in some states, be made before the return of the inventory and appraisement.19 Any person interested in the estate may ordinarily oppose the application therefor.20

In determining the amount thereof the court may take into consideration the character and amount of the estate, and the provision the deceased sought to make for the widow as well as her actual necessities.21 Evidence showing the financial condition of the estate when the application is made is admissible.22

The widow may recover property set apart to her for a year's support and in the possession of a third person.22 She is not entitled to interest on the amount thereof from the date when it is set off by the commissioners.24 It is the duty of the administrator to pay the allowance, and a final settlement made before doing so is illegal and may be set aside, though she made no demand for such payment.25 The judgment of the ordinary allowing a year's support is conclusive only that she is entitled to the amount of the judgment, if there are assets to pay it, and is no 12. Misconduct held, under the circumstance, not to be such as to deprive her of her right to an Allowance, even if misconduct ever would be. In re Drasdo's Estate, 36 Wash. 478, 78 P. 1022.

Footnote 22: We have not been able to use the terminator to be used in the context of the author.

14. Though she does not therein expressly renounce all interest in her husband's property. Sufficient it appears that there was an Intent to do so. Fisher v. Clopton, 110 Mo. App. 668, 85 S. W. 623.

01. Klnve v. Battaglia \[Tex. Civ. App.\] 84 S S. W. 839.

01. Where there is no other property from which it can be paid. Klnve v. Battaglia \[Tex. Civ. App.\] 84 S. W. 839.

01. Bennett v. Morris, 111 III. App. 150.

01. Evidence held to show that she made allowance in her official capacity without any intention of waiving her individual rights. King v. Battaglia \[Tex. Civ. App.\] 84 S. W. 839. Even if approval could be construed as having been made in her individual capacity, it was not binding because there was no consideration there. Id. Evidence as to her intention and as to lack of consideration held admissible, without pleas of non est factum or want of consideration. Id. Hence, if it was error to allow filling of such pleas by administration after itstimony was concluded, it was harmless. Id.

01. Under Gen. St. 1894, 6477, as amended by Laws 1903, e. 234, 9. 681, and 4 4493. In re Stranchi's Estate \[Minn.\] 104 X. W. 535.

01. Including the executor of a co-surety N. E. 130.

5 Cur. Law. ESTATES OF DECEDENTS SS 5E. 1213

evidence of the fact that the administrator has sufficient assets out of which to pay it.20

(SS 5) \_E. Management, custody, control, and disposition of estate.27--\_The management and disposal of property under testamentary trusts, though the same persons act as executors and trustees, is treated in the article on trusts.28

Where there is a will the executor is governed by its directions, if legal, as to administration.29

The executor or administrator represents the creditors as well as the heirs in the collection of debts, and in the prosecution and defense of claims,30 and it is his duty to conserve the interests of all the creditors, and not to so administer the estate as to work a preference to any one of them.31 He may assert any right commensurate with his title; hence an executor who, under the will, has the right to keep the estate intact until the youngest child becomes of age, may sue for an injury to the property resulting from a negligent tort.32 For any acts contrary to good trusteeship, he may be held liable according to the usual equitable principles.33

An independent executor in Texas may do, without an order of court, everything which an executor administering the estate under the control of the court may do with such order.34 He may, without an order of court, convey land belonging to the estate in payment for services rendered to him as executor.35 He may sell personality, especially when so licensed, but cannot without license mortgage it.36 Executory sales of personally whereby title remained in decedent at his death leave the personal representative free to dispose of it.37

\_Control by courts.--\_The exercise of a legal discretion vested in the executor may be compelled.38 In Georgia, when for any reason it becomes impossible to carry out the will in whole or in part, the judges of the superior court are given power at chambers, in vacation, to render any decree that may be necessary and legal in the premises, provided all parties in interest consent thereto in writing.39 In some states the court may order a sale of securities which are in danger of depreciation.40

26. Administrator is not required to object to setting aside of allowance, and can- not show lack of assets with which to pay it. right of satisfaction out of proceeds reserved by decedents agreement was not 27. See 3 C. L. 1263. 285. See Trusts, 4 C. L. 1727. 38. Where will imperatively requires the will intends. See Wills, SS 5E, 4 C. L. 1937. 30. Perkins v. Goddin \[Mo. App.\] SS 5 W. 98. 31. Schermerhorn v. Gardenler, 94 N. Y. S. 32. For loss due to fire set by locomotive. If Hendricks v. Southern R. Co. \[Ga.\] SS 5 E. 415. 33. See post, SS 9. 34. Aligcul v. Mernitz \[Tex. Civ. App.\] SS 83 W. 891. 35. Where will authorizes him to gather and collect all decedent's property, collect all debts due the estate, and to sell and convey of the property. Baker v. Hamblen \[Tex. Civ. App.\] SS 5 W. 467. 36. A purchase from an administrator under a sale authorized by the court acquires title as against a purchaser under a sale submitted a purchaser under a sale submitted a purchaser under forcebase in marital rights with respect to the the administrator without authority. Richley v. Childs, 114 III. App. 173. 37. Sale of chatbts by the executor was regarded as in pursuance of a new contract
    Contracts for sale or conveyance of land by or to decedent.--The administrator may maintain a suit in equity to compel the heirs at law to specifically perform a contract made by the decedent for the sale of land.41 His right to do so is not dependent on the fact that the funds to be derived from the sale are necessary for the payment of decedent's debts.42 The fact that such suit is instituted by the widow, who is also administratrix, and that she will, under the statute of distributions, take the whole of the proceeds of the sale as personalty whereas she would only take half the reality, does not affect her right to specific performance as against the heirs.43 By statute in some states, where one bound by a contract in writing to convey reality dies before doing so, and where such decedent, if living, might be compelled to make such conveyance, the probate court may make a decree authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto.44 An executor or administrator of an estate has the same right to present a petition for conveyance of real estate to him under these circumstances as any other person, and need not first resign his position in order to enforce it.45 Such a statute does not give jurisdiction to compel performance of an executor oral contract to convey,46 and hence the petition must show that the contract was in writing.47

Right to sell reality.48--In the absence of a provision to the contrary in the will, an executor has no authority to sell reality except when necessary for the payment of debts and legacies, and then only after obtaining an order of sale from the probate court,49 nor has he authority to deliver a deced executed by testator.50 He cannot

40. In Ohio the probate court has power to order the sale of securities of an estate which are in danger of depreciation. Guth-rie v. Cincinnati Gas & Elec. Co., 2 Ohio N P. (N. S.) 117.

01. Where purchaser was ready and willing to perform and had deposited the money in escrow. Has no adequate remedy at law. Putman V. Butman, 213 Ill. 104, 72 N. E. 821.

Hurd's Rev. St. 1903, c. 29, $ 4, providing that the representative of a decedent who has contracted to sell land may, when the consideration has been paid, or a conveyance ought to be made, obtain an order for a conveyance on notice to the vendee, does not require such notice to be given to the helrs when they refuse to convey, and the vendee is ready and willing to perform. Id.

42, 43. Butman v. Butman, 213 Ill. 104, 72 N. E. 821.

44. Comp. St. 1887, div. 2, $ 236. Buller-dick v. Hermmmeyer \[Mont.\] 81 P. 834. Provision in decree setting aside certain water for use of such homesetah held invalid, the petition being one merely for setting aside homesetah and not asking for or contemplateing any other relief. Id. Code Civ. Proc. $ 1597-1602, held within the power of the legislator to enact. In re Garnier's Estate \[CaI.\] 82 P. 68. Rev. Prob. Code, $ 259, authorities the circuit court to take jurisdiction of a suit to compel an executor to specifyelfaultly perform a contract to convey land entered into by his testator, where the latter died before making the conveyance, and requires the county court to dismiss the petition whenever the rights of the petitioner to specific performance is doubtful. Right held so doubtful as to render dismissal of petition by county court proper. Id. Saye's Ann. Civ. St. 1897, arts. 2152, 2153, authorizes the county court to direct the admissibility to convey land in accordance with a bond for a deced executed by decedent, and 5. Cur. Law.ESTATES of DECEDENTS SS 5E. Exercise a power of sale of reality given him by the will until the will has been produced and he has qualified under his appointment.\[91\] A power of sale coupled with a trust,\[52\] or a mandatory power, without discretion, may be exercised by an administrator with the will annexed.\[53\] The power of an administrator to sell land belonging to the estate is in all cases limited by the order granting him license to sell, and is confined to the lands therein described.\[54\] Though the estate owns only an equity of redemption in land, the administrator may, with the public consent of the owner of the legal title, sell the fee.\[55\] A notice of sale must be given where the statute or order of license requires it.\[56\] Mere irregularities will not avoid the sale,\[57\] or render the proceedings subject to collateral attack,\[58\] nor will fraud be presumed on a sale in regular form to the executor,\[59\] for confirmation is an adjudication that the sale was under order of the court, and cures all irregularities.\[60\] The rule of caveat emptor applies, and the purchaser takes only such title as the decedent had at the date of his death.\[91\] He is also charged with absolute notice of any want of power on the part of the representative to make the sale,\[62\] and must right to sell it unless the will, either expressly or by necessary implication, authorizes him to do so. Where will directs property to be sold and proceeds to be divided, executor is by implication vested with power of the trust decade to cancel the same. Id. donee of the power. Smith v. Courtnas's EEx'rs \[Ky.\] 85 S. W. 1101. A decade by an executive who by the terms of the will of Gen. St. 1894, SS 4600, 4612. Cater v. Steves a decedent has power to convey in as full a manner as the testator could had he been alive passes a good title, though she was not empowered to pay debts of the estate. Kerr v. Long's Ex'r \[Ky.\] 88 S. W. 1068. 50. Delivery of a deced to the grantor by the executor of the grantor and recording the same by the grantee, held not to pass title to the latter, in the absence of a show-ing that the executor was authorized by the grantor to make the delivery. Berkmeier v. Peters \[Mo. App.\] 86 S. W. 598. 51. Coy v. Gaye \[Tex. Civ. App.\] 84 S. W. 441. 52. May v. Brewster \[Mass.\] 73 N. E. 546. 53. Ayers v. Courvolsier, 101 App. Div. 97, 91 N. Y. 854. 54. Hall v. Davis \[Ga.\] 50 S. E. 106. One claiming title to land under an administrator to's deced must in all cases show the order of the court of ordinary granting the administrator license to sell the land in question. Must affirmatively appear that the land described in the order is the same as that described in the dead and for which the action is brought. Id. NOTE. Right to postpone sale: An executor or administrator may lawfully postpone the sale if in doing he exercises a sound discretion and acts with a view to the best interests of the parties. Norris v. Howe, 15 Mass. 176; Noland v. Barrett, 122 Mo. 181, 26 S. W. 692, 43 Am. St. Rep. 572; Gillespie's EStat, 10 Watts \[Pa.\] 300; Lamb v. Lamb, 1 Spears Eq. \[S. C.\] 289.--From 40 Am. Dec. 618. 55. Mallard v. Curran \[Ga.\] 51 S. E. 712. 55. 56. 57. 58. 59. 60. 61. 62. By records of necessary proceedings in proboute court. Copy v. Gaye \[Tex. Civ. App.\] 84 S. W. 41. 50. 63. 64. 65. 66. 67. 68. 69. 61. 68. 69. 60. 61. 69. 61. 60. 62. 63. 64. 65. 67. 69. 61. 62. 64. 66. 68. 69. 62. 65. 69. 63. 66. 67. 68. 69. 64. 68. 69. 65. 69. 66. 67. 69. 68. 69. 69. 60. 61. 61. 62. 63. 64. 66. 68. 69. 67. 69. 68. 69. 60. 61. 69. 61. 60. 62. 64. 69. 61. 62. 65. 66. 67. 68. 69. 69. 61. 60. 63. 66. 68. 69. 61. 61. 62. 64. 66. 69. 61. 63. 66. 67. 68. 69. 61. 64. 69. 61. 65. 67. 69. 68. 69. 61. 69. 61. 60. 62. 66. 69. 61. 61 see that the order of sale is regularly obtained and properly complied with.63 As a general rule the representative is not bound to make known defects of title within his knowledge, and where there is neither fraud nor misrepresentation by the administrator-in selling, and the sale is regular, the purchaser is bound to pay the amount bid, though there be a defect in the title.64 He will, however, be protected from the consequences of having been misled by the fraud or mistake of the representative in so far as he had a right to rely on his representations.65

An executor will not be compelled to execute a deed to a purchaser guilty of fraud.66 An administrator's sale is effective without any deed where the record shows that he received the purchase money.67

Footnote 67: The author is not aware of the fact that the author is not aware of the fact that the author is not aware of the fact that the author is not aware of the fact that the author is not aware of the fact 5 Cur. Law. ESTATES OF DECEDENTS SS 6B. 1217 mortgagee under an unauthorized mortgage, where the proceeds have been applied to the payment of debts and legacies.${}^{15}$

SS 6. _Debts and liabilities of estate; their establishment and satisfaction. A. Claims provable "_ embrace those arising out of contracts, express or implied, valid against-decedent in his lifetime and not extinguished by his death,${}^{77}$ and also torts which survive.${}^{78}$ They must subsist in law and be enforceable as against a plea of limitations or of the statute of frauds or like defense.${}^{79}$ These matters are the subjects of separate topics in Current Law. An implied contract may arise on the death of decedent leaving his part of a contract unperformed.${}^{80}$ The decedent rather than his heir, partner, principal or other person must have stood as debtor. Thus, taxes which become a lion on decedent's reality prior to his death should be paid by his representative out of the personality.${}^{81}$ So also the estate is liable for money loaned decedent to be used in a business in which he was interested, whether he owned the entire business or was only a partner;${}^{82}$ but the estate of one partner is not liable for money loaned to another partner as an individual.${}^{83}$ Where the husband, as head of the community, manages a business and treats it as his own, he and the community and not the wife or her paraphernal property invested in the business is liable for its debts.${}^{84}$

The estate is not liable for the torts of the representative, even though persons interested therein have benefited thereby.${}^{84a}$ An administrator who obtains and converts property belonging to another under the mistaken belief that it belongs to the estate which he represents is liable to the owner for the value thereof both in his representative and his individual capacity.${}^{84b}$ An executor who borrows money from an heir for the use of the estate may be personally bound if it is not used as agreed at the time of the loan.${}^{84c}$

(SS 6) \_B. Exhibition, establishment, allowance, and enforcement of claims.${}^{85}$ Jurisdiction.${}^{88}$--\_As a general rule the courts having jurisdiction of probate

75. Thomas v. Provident Life & Trust Co. \[C. C. A.\] 18 F. 348. Executors borrowed and services rendered in reliance money and executed mortgage to secure its repayment without specific authority to do so, 138 N. C. 90, 50 S. E. 592. so, and used the proceeds to pay debts-and a legacy charged on a portion of the land. Later, in consideration of their obligation to repay the money, they quile claimed to the mortgage. Held, neither the legate whose legacy was charged on the land nor a judgment credit of the regulatory devices could attack the mortgage or deed in the absence of fraud. Id. \[F6. See 3 C. L. 1267. 77. See Contracts, 5 C. L. 664; Implied Contracts, 3 C. L. 1690. 78. See Abaatement and Revival, 5 C. L. 6. 79. See Limitation of Actions, 4 C. L. 445; Frauds, Statute, of 3 C. L. 1527; Fraud and Unduc Influence, 3 C. L. 1529; Duress, 5 C. L. 1047. See full treatment in Implied Contracts, 3 C. L. 1690. One rendering services to deceased for which the latter agrees to compensate him out of his estate has, in case he fails to do so, a claim against his estate on a quantum merit. Properly constructed, petition held to be one for recovery on quantum merit. Moore v. Smith, 121 Gla. 479, 49 S. E. 601. One authorized to improve and sell lands and reimburse himself for his expenses out of the proceeds of the sale is enclited, after the termination of his authority. This is the death of party conferring it, to be repaid and compensated from the proceeds \[S4. C. L. 77. 5 Curr. L.--77.

natters are given authority to hear and determine claims against the estate." Accordingly creditors must enforce their claims in the probate court and cannot, during the time allowed by law for the issuance of letters of administration, sue the heirs or devisees." But this rule does not apply where there is no administration and no necessity therefor."

_Occasion and necessity of proving claims._"--The widow's allowance," claims arising under contracts with the representative,"2 and costs incurred by the representative in suits to recover assets alleged to belong to the estate, are not claims against the deceded within the statutes relating to the filing and adjustment of such claims."3 The widow is not a creditor to the extent of the amount necessary to augment her separate estate to the share she is entitled to take under the statute by electing against the will, under the Mississippi statute."

The presentation of a claim against the estate is not necessary to enable one to sue the representative for property or money which can be identified in specie as that of the plaintiff,"8 nor is the presentation of a claim against the estate of the maker

**ST.** See, also, SS 2, ante.

**In New York the surrogate has no authority to determine disputed claims, but where**

**that his claim was the only debt due by the a claim is questioned by the representative,**

**the must dismiss the proceeding and remitt the creditor to the common-law courts for the**

**This by implication and analogy to Civ. Code establishment of his claim. Code Civ. Proc. 1895, SS 3422, authorising creditors to compel**

\*\*(\*\*\*\*) disturbances without notice to contribute pro

**In Oregon the county court has jurisdiction to hear and determine claims which have been presented to and rejected by the administrator, under Laws 1854-56, p. 339, without notice of any existing debt can be**

\*\*giving such jurisdiction to the judge of pro-

**bate, and Const. art. 7, SS 12, conferring on**

**the county court the jurisdiction pertaining to**

**to phone courts. In re Morgan's Estate**

**(\*\*\*\*).** 78 P. 1029.

**ss.** On the death of the defendant pending an appeal from a judgment against him

**in the superior court, the power of the latter court to enforce the judgment terminates, and,**

**the case said judgment is affirmed, plaintiff is remitted for its collection to the**

**prolate jurisdiction of the court having charge of the administration of his estate, to**

\*\*which court any objection to its payment out of the assets of the estate must be presented. Peoples' Home Sav. Bank v. Sadler \[Cal. App.\] 81 P. 1029. Appellate court will not, on substitution of defendants' exectors, refuse to consider the case on the ground that the judgment appended from was unenforceable because not presented to defendant's executors. Id. A vendor's lie when established in the district court as against an estate must be collected through the pro-

**thate court. A failure to pursue such remedy results in a loss of the claim. \[Wall\] V. Club**

**Land & Cattle Co. \[Tex. Civ. App.\] 13 Tex.**

\*\*Ct. Rep. 677, SS 8. W. 534. Until a claim has been established in a pending suit at law, equity cannot make any declaration or decer against the executri in regard to Id. Segro-

**the creditor has exhausted his remedy against the estate in the hands of the executor, equity cannot grant any relief against against**

**the representative for property or money which can be identified in specie as that of the plaintiff,"8 nor is the presentation of a claim against the estate of the maker**

**the is sole heir and in possession, that there has been no administration on the estate, that his claim was the only debt due by the estate, and that the widow took possession without notice of any debt due by the estate.**

**This by implication and analogy to Civ. Code establishment of his claim. Code Civ. Proc. 1895, SS 3422, authorising creditors to compel**

\*\*(\*\*\*\*) disturbances without notice to contribute pro

**In Oregon the county court has jurisdiction to hear and determine claims which**

**Smith, 121 G. 479, SS 2. 601. Failure of**

**the petition to allege that widow took possession administrator, under Laws 1854-56, p. 339, without notice of any existing debt can be**

\*\*giving such jurisdiction to the judge of pro-

**bate, and Const. art. 7, SS 12, conferring on**

**the county court the jurisdiction pertaining to**

**the to phone courts. In re Morgan's Estate**

**(\*\*\*\*).** 78 P. 1029.

**ss.** On the death of the defendant pending an appeal from a judgment against him

**in the superior court, the power of the latter court to enforce the judgment terminates, and,**

**and, in case said judgment is affirmed, plaintiff is remitted for its collection to the**

**the public jurisdiction of the court having charge of the administration of his estate, to**

\*\*which court any objection to its payment out of the assets of the estate must be presented. Peoples' Home Sav. Bank v. Sadler \[Cal. App.\] 81 P. 1029. Appellate court will not, on substitution of defendants' exectors, refuse to consider the case on the ground that the judgment appended from was unenforceable because not presented to defendant's executors. Id. A vendor's lie when established in the district court as against an estate must be collected through the pro-

**thate court. A failure to pursue such remedy results in a loss of the claim. \[Wall\] V. Club**

**Land & Cattle Co. \[Tex. Civ. App.\] 13 Tex.**

\*\*Ct. Rep. 677, SS 8. W. 534. Until a claim has been established in a pending suit at law, equity cannot make any declaration or decer against the executri in regard to 5 Cur. Law.ESTATES of DECEDENTS SS 6B.1319 of a promissory note a necessary prerequisite to a suit against a surety thereon." A creditor of the community after the death of the wife may sue the husband and, upon establishing his debt, subject the community property to its payment, notwithstanding administration may be pending." The claim of one partner against the estate of his deceased co-partner cannot be passed upon by the probate court until the accounts of the partnership have been settled by a bill in equity." The administrator of a deceased partner may maintain a suit for a partnership accounting against the administrator of the surviving partner, who dies before the partnership affairs are settled, without presenting a claim against the latter's estate."

A claim for taxes need not be filed against the estate, but it is the duty of the representative to take notice thereof and pay it before final settlement.1 Statutes in some states, however, provide for the presentation of such claims.2

As a general rule mortgages and other liens on land owned by decedent may be foreclosed without presenting a claim for the debt secured thereby to the representative.3 In California a mortgage upon the homesetead cannot be enforced unless a claim for the mortgage debt is first duly presented to the representative; 4 but this rule applies exclusively to the property described in the mortgage which is impressed with the character of the homesetad, and a failure to present the claim does not deprive the mortgage of his right to foreclose the same against property covered by it in excess of that set off as a homesetad by the superior court to those entitled thereto.5 In the same state on foreclosure of a mortgage on land

the account of decedent as administrator of claimant and decedent, in which proceeding an estate of which claimant was afterward a decree pro confesso was taken against made administrator does not change the claimant and his interest sold and a certain character of the claim so as to make him a credit (Id.).

**96. Planters' & Mechanics' Nat. Bank v.**

Robertson \[Tex. Civ. App.\] 86 S. W. 648. Rev. St. 1859, art. 8814, providing that, when a principal and surety are used together, the surety may have the property of the principal first sold for the satisfaction of the debt, cannot be enforced where the principal is dead, with a preservation to the creditor of his right to proceed against the surety, since the principal must be proceeded against in the probate court, and hence does not apply to such a case. Id. Hence in an action on certain notes secured by trust deceds, one of which was given by the deceased maker alone and the other by him and certain other parties who were liable as sureties on the notes, and to foreclose such deceds, held, that foreclosure should have been authorized against the interests of the suties alone as in ordinary cases, without making a sale dependent on proceedings in the probate court to enforce the claim against the decedent's estate. Id. Where a trust deced was given to secure payment of notes executed by one of the grantors since deceased, his administrator was properly joined as defendant in an action to foreclose the dead against the other grantors, he having rejected a claim on the notes against the estate, though the mortgaged property of the estate could not be sold therein. Id.

" 97. Levy v. Moody & Co. \[Tex. Civ. App.\] 87 S. W. 205.

**98.** Cannot be passed upon by the orphans' court until the accounts of the partnership have been settled by bill in equity in the court of common pleas. Claim cannot be considered where accounting has previously been had upon a bill filed against belonging to the estate, the petition must either allege that the mortgage debt has been presented to the administrator for allowance as a claim against the estate, or must expressly waive all recourse against the other property of the estate.\*

Statutes in some states provide for the presentation and allowance of contingent claims and for their payment, less interest.7 In California if there is any claim not, due, or any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, established, or absolute, must be paid into court, to be paid to the party when he becomes entitled thereto, or if he fails to establish his claim, to be paid over or distributed as the circumstances of the case require.8 A matured mortgage indebtedness against the estate is not contingent within the meaning of this statute.9

\_Time for presentation; limitations.10--It is the policy of the law to insure the speedy administration and distribution of estates.11 As a general rule all claims must be filed or presented to the executor or administrator within the time fixed by statute or they will be barred.12 The time may usually be extended, however, or claims may be allowed after its expiration in cases where justice and equity require

Footnote 12: The time is not a constant, but it is not a constant

## 6 Cur. Law. **ESTATES of DECEDENTS SS 6B.**

it.18 A decree barring all claims not presented within the time limited operates in a court of law to prevent plaintiff from showing facts stepping the executrix from setting it up, or that the presentation of plaintiff's claim under oath was waived.14 Equity however, may enjoin the executor from proving such decree in the action at law, where it appears that verification was waived when the claim was presented before such decree.15

Such limitations do not apply to the remedy provided by the Federal statutes for the enforcement against an estate of its liability on national bank stock owned by it, but the estate is liable so long as its assets may be reached.16 Unless the statute makes an exception in favor of creditors laboring under disability, it is generally held that none exists.17

Claims which are so contingent and uncertain as not to be susceptible of ascertainment and proof are not ordinarily barred by failure to present them within the time prescribed.18 Provision is generally made for their presentation and payment where they do not become absolute until after such time has expired.19 The 18. In Maine if the supreme judicial court, 1Even if the rule previously laid down by the upon a bill in equity filed by a creditor 14. Decree made under heavyAlabama act requiring the filing of claims against insolvent states within six months has no application to judgments rendered not against the intestine but against the administrator.\[20\]

In the absence of a special statute of limitations, claims not barred by the general statute of limitations may be proved and presented at any time before final settlement, and therefore no claim not within the bar of the special statute can be excluded.\[21\] The death of the debtor arrests the running of the general statute of limitations until an administrator or executor has been or can be appointed.\[22\] Any claim that might have been enforced against decedent at the time of his death may be enforced against his representatives within the time prescribed by law therefor in any court having jurisdiction thereof.\[23\] The time prescribed within which claims may be enforced against the representative is a period of limitations as to debts owing by the decedent at the time of his death, distinct and separate from that prescribed by the general statute of limitations.\[24\] It is not operative until the death of the debtor, but it then supersedes the general statute, and stops the running thereof as to such debts.\[28\] Such time may shorten or extend the period fixed by the general statute as to such debts, and all thereof that are not barred at the time of the debtor's death may be proven against his representative within the time fixed therefor, and will not be barred until the expiration of such time.\[26\] Statutes providing short limitations for actions on rejected claims, and for barring claims not duly presented, are generally regarded as penal, and cannot be invoked by the representative to bar suit on the claim where his action toward the creditor in relation to its preservation or rejection has been ambiguous or equivocal.\[27\]

It is the duty of the representative to plead the general statute of limitations against a demand which is barred,\[28\] at least if the bar attached during decedent's

cover from distributes in case claim does executors of the trustee, and the beneficiaries not become absolute until after estate is closed, see SS 8, post.

20. Woodall v. Wright \[Ala.J 37 So. 846,

seek to follow a specific trust fund, held that,

21. Wolfe v. Knapp \[Iowa\] 103 N. W. 369,

as to the defendants, the claim was a mere

Conceding that preferred creditor may lose his right to priority by laches, the adminis

formed as any other obligation, and the two

trator cannot object to payment because of

delay, where the estate is solvent and no

other creditor is in any way prejudiced

thereby. Id.

22, 23. Alice E. Min. Co. v. Blanden, 136 F.

F. 252.

24. Alice E. Min. Co. v. Blanden, 136 F.

01. Proviso to Code 1887, SS 2920, barring

rights of action within five years from the

qualification of the representative in terms

applies only to cases in which the person

whose estate is to be affected died after it took effect and where the right of action had

accrued at the time of his death, and con-

currence of both of these circumstances is

essential. Davis' AdmX v. Davis \[Ya.J 51\]

S. E. 216. Where creditors accepted securities under agreement that when and if

pald they should be in full settlement of the

debt, right of action was suspended during

the currency of the securities, and where

some of them did not mature until after

death of decedent, right of action had not

then accrued. Id. In any event case this

controlled by Code 1887, SS 2938, providing that

when action was not pending when code took

effect, it may be prosecudent within such time

as it might have been had not the change

been made. Limitation before code was enacted was 20 years. Id. Where trust fun4,

as such, did not come into the hands of the 5 Cur. Law. ESTATES OF DECEDENTS SS 6B. 1323 lifetime.29 If he allows judgment to be rendered against him in either case, both he and the beirs, who are his privis, are bound hereby, and cannot thereafter set up that the claim is barred.30 A dormant judgment is a debt of record and these rules apply to a proceeding instituted thereon, whether an ordinary suit on the judgment or a scire facies to revive the same.31 Devisees may rely on the defense of limitations,32 or show such laches on the part of plaintiff as to deprive him of the right to invoke the equity powers of the court, even though the representative fails to do so.33

Where it affirmatively appears on the face of the petition that the statutory period for bringing an action on a claim had elapsed before the action was brought, the objection may be raised by demurrer on the general ground that it fails to state facts sufficient to constitute a cause of action.34 In case the bar does not so affirmatively appear, the objection must be taken by answer.35

It is held in South Carolina that an administrator may, by his promise in writing, renew a note of his intestine so as to prevent the running of general limitations against the right to collect it from the personally of the maker's estate,36 but the promise of the heir is necessary in order to prevent limitations from running against the right to collect it from the reality.37 The representative may also, by his conduct, estop himself from setting up limitations.38

An express waiver of the statute of limitations in the will and a direction to pay claims without reference thereto inures to the benefit of creditors and is binding on the executors.38

Where the representative has collected the assets and, by filing a petition for the settlement of his accounts, has brought the surplus into court for distribution among the creditors and next of kin, the fund becomes a trust fund for the benefit of creditors whose claims were presented in due time, and such claims do not afterwards become barred by lapse of time.36

To assert defense when claim is presented. In re Goss, 98 App. Div. X. Y. S. 768, **29.** If the bar attached during decedent's lifetime, but not otherwise. Civ. Code 1895, **8** 3433. Helms v. Marshall, 121 Ga. 769, **49** S. E. T33. Helms v. Marshall, 121 Ga. 769, **49** S. E. T33. Helms v. Marshall, 121 Ga. 769, **49** S. E. T33. Judgment against administrator, purporting to revive a dormant judgment which so far as the record discloses was barred, there being no entry on the execution within ten years after its insurance, is not void, and cannot be collaterally attacked by helrs in trial of claim interposed by them to levy of an execution issued on the revived judgment. Helms v. Marshall, 121 Ga. 769, **49** S. E. T33. Brantley v. Bittle \[S, C.\] 51 S. E. 561. A Judgment cannot be renewed against the administrator of the judgment debtor, so as to again become a lleon on the hands of the estate, by his acquiescence after the expiration of the 20 years' limitation prescribed by Code of Laws of 1902, **8** 2449. Id. Though he allows renewal after that time by default, devises may prevent its enforcement against the reality. Id. 83. In action for partition and to enjoin defendants from enforcing judgment rendered against testator and revived more than 20 years thereafter against his administrator, tor, the latter permitting such revival by default, held that the judgment creditor was barred by laches. Brantley v. Bittle \[S, C.\] 51 S. E. 561. **34.** Columbia Sav. & Loan Ass'n v. Clause \[VYv.\] 78 P. 708. **35.** Objection not raised by general denmurrer where petition shows the date of the acrcual of the cause of action but not the date when the action was commenced. Co-lumbis Sav. & Loan Ass'n v. Clause \[VYv.\] 78 P. 708. **36.** Divine v. Miller, 70 S. C. 225, **49** S. E. 479. Promise of administrator held to bind him to extent of his interest in reality as heir. Divine v. Miller, 70 S. C. 225, **49** S. E. 479. Note: There is a conflict on the question whether the personal representative has any power to waive or toll the statute, see S. C. L. 1270, **8** 99; p. 1271, **1**, **98** ; **1** C. L. 1106, **8** 69-90; **2** C. L. 159, **4** -49\*\*. A selector who assures a claimant of full payment of his claim and requests him not to use and induces him to delay filing his claim for more than a year from the qualification of the executor is estopped to assert a forfeiture of his rights because of such failure to file. Hamilton's Ex'r v. Wright \[Ky.\] 87 S. W. 1093. An executor of a variety who induces a creditor not to file his claims cannot set up the limitations prescribed for sureties to defeat the clause. The statute does not apply to a period during which a variety obstructs or hinders suit. Id. 83. Glassell v. Glassell \[Ca.\] 82 P. 42. **40.** No presumption of payment arises. In re Hannon's Estate, 93 N. Y. S. 207.

The enforcement of claims may also be barred by laches.\[41\]_Notice.\[42\]--Publication of a notice to creditors directing them to present their claims within a specified time is commonly required.\[43\] In California, after notice has been given, the court may, on proof of due publication filed, make an order or decree of due notice given.\[44\] In case the value of the estate is doubtful and the court is, therefore, unable to determine whether the notice allows sufficient time for the presentation of the claims, he may postpone the making of the decree of due notice until final settlement and distribution.\[45\]_The claim; its form and substance.\[46\]_Claims should so specify and identify the transactions out of which they arise as to appraise all concerned of their general nature, character and amount, so that they can be properly investigated and defended against if desired.\[47\] As a general rule it is not necessary to present the agreement on which the claim is founded; \[48\] but in some states, if it is founded on a bond, bill, note, or other instrument, a copy thereof must accompany it.\[49\] If a claim is secured by a recorded mortgage, it is sufficient to describe the mortgage or lien, and to refer to the date, volume, and page of its record.\[50\]_In some states claims must be supported by an affidavit of the claimant that they are justly due, and that no payments have been made thereon and that there are no offsets thereto.\[51\] In others the representative may require such an affidavit if in doubt as to the validity of a claim.\[52\]_In Ohio any person whose property is or may be affected by the recovery of a judgment on a claim may file a written requisition on the representative to disallow and reject it.\[53\]_Informalities in the manner of presenting claims may be waived.\[54\]_The objection that a claim was not presented by the proper party is a matter in abatement_41_. Plaintiffs loaned money to their brother and subsequently forgave him half the debt and accepted securities for balance 50. Code Civ. Proc. $ 1497. Description of under agreement that, if paid, they should constitute full settlement. Brother died leaving his estate to his wife for life. Plaintiffs took no steps to interfere with her possession, but commenced action against broth, er's representatives with two years after wife's death to recover the unpaid balance.\[52\]_Hel that they were not guilty of laches, Davis's \[53\]_Addnx v. Davis \[54\]_51 S. E. 216._
42_. See $ C. L. 1272._
43_. Code Civ. Proc. $ 1490._ In re Wilson's \[54\]_Estate \[Cai.\]_87 B. 318._
44_. Code Civ. Proc. $ 1492._ In re Wilson's \[54\]_Estate \[Cai.\]_87 B. 318._
45_._ Helid that a decree vacating a decree of due notice, after publication of notice requiring claims to be presented within four months, and stating that the court found the estate to be greater in value than $10,000 (in consequence of which notice should have allowed ten months) is not res adjudicate as to the value of the estate, and does not preclude the court from determining, on an application for settlement and distribution, that the estate never exceeded $10,000 in value, and that the notice was sufficient, and again making a decree of due notice. In re Wilson's Ekate \[Cai.\]_87 B. 318._
46_. See $ C. L. 1272._
47\_.\_ Carter v. Pierce, 114 Ill. App. 589.\_
48\_.\_ Altept v. Elmendorf \[Tex. Civ. App.\]_of claims not so presented, if proved to be just. Seromov v. Goodwin \[N. J. Eq.\]_59 A._
49_.\_ Code Civ. Proc. $ 1497.\_ Filing of note $ 1497.\_ Filing of note $ 1498.\_
51\_.\_ Affidavit to claim presented held in conformity with Rev. St. 1895, $ 2072.\_
52\_.\_ Adlett v. Elmendorf \[Tex. Civ. App.\]_86 S. W. 41._
53\_.\_ Effect of the claimant that the claim was not presented by the proper party is a matter in abatement_41\_.\_
54\_.\_ Plantiffs loaned money to their brother and subsequently forgave him half the debt and accepted securities for balance 50. Code Civ. Proc. $ 1497.\_ Description of under agreement that, if paid, they should constitute full settlement. Brother died leaving his estate to his wife for life. Plaintiffs took no steps to interfere with her possession, but commenced action against broth, er's representatives with two years after wife's death to recover the unpaid balance.\[55\]_Helid that they were not guilty of laches, Davis's \[54\]_Addnx v. Davis \[54\]_51 S. E. 216._
54_._ See $ C. L. 1272.\_
55\_.\_ Code Civ. Proc. $ 1490.\_ In re Wilson's Ekate \[Cai.\]_87 B. 318._
56\_.\_ Effect of the claimant that the claim was not presented by the proper party is a matter in abatement_41\_.\_
57\_.\_ Effect of the claimant that the claim was not presented by the proper party is a matter in abatement_41\_.\_
58\_.\_ Effect of the claim that the claim was not presented by the proper party is a matter in abatement_41\_.\_
59\_.\_ Effect of the claim that the claim was not presented by the proper party is a matter in abatement_41 5. Cur. Law. **ESTATES of DECEDENTS SS 6B.** 1255

only, and is waived by joining issue on the merits without raising it in the county court.\[53\]

\_Allowance and rejection.--\_In some states, the executor or administrator is required to indorse on all claims presented to him his allowance or rejection with the date thereof.\[54\] If he allows it, it must then be presented to the county judge, who must in,the same manner indorse upon it his allowance or rejection.\[57\] The failure or refusal of the representative or the judge to indorse such allowance or rejection within a specified time amounts to a constructive rejection.\[58\] The judge may, in his discretion, set aside a previous rejection and allow a claim, provided he does so before it is barred by either the general or special statute of limitations.\[59\] If rejected, suit must be brought on the claim in the proper court within a specified time.\[68\] The allowance of a claim at less than the full amount thereof is a rejection of the balance.\[61\] The rejection of the claim in such states is a condition precedent to the right to sue thereon.\[62\] Notice of the rejection is generally necessary in order to start the running of limitations.\[63\]

\_Contests and actions on claims.\[64\]--\_All interested parties must be cited to appear.\[65\] In Ohio any person whose property may be affected by the recovery of a judgment may file a requisition on the representative to disallow any claim presented, and is a proper party to an action on a claim so rejected, and may defend

5. That it was presented by assignee in- \[58\], 145 Cal. 55, 78 P. 1046. The re- \[58\] of the original claimant, even if pre- \[58\], 1958. In re- \[58\], 1958.

against it.68 In New York a legatee cannot intervene in a proceeding to collect a disputed claim, which by reference has assumed the status of an action in the supreme court, on the ground of collusion between the administrator and the claimant, and consequent danger to his legacy.69

The ordinary rules of pleading apply to actions on claims,68 though in states where the contest is in the probate court, technical rules governing suits at law may be disregarded and the substantial rights of the parties considered.69 In some states it is not necessary for defendant to plead any matter by way of answer except a set-off or counterclaim.70 A plea of plee administravit which fails to allege that the estate has been fully administered without notice of plaintiff's claim is defective, and is properly stricken on demurrer.71

Footnote 69: The fact that a referee appointed to pass on a disputed claim allows an amendment and that a judgment materially differing from that asked for in the claim filed is rendered on the amended claim is no ground for vacating such judgment at a subsequent term. Though it may be ground for reversing it on appeal. Riley v. Ryan, 103 Claims against estates of decedents must be established by very satisfactory evidence," and this is particularly true of claims for services and the like, which were never presented to decedent during his lifetime,81 and claims or contracts alleged to have been made by him.82 By statute in Massachusetts if a cause of action brought against an executor is supported by oral testimony of a promise by the testator, evidence of written or oral statements made by him and of his habits of dealing tending to disprove or show the improbability of making such a promise, are admissible.83

Footnote 87: The _ 1328

ESTATES OF DECEDENTS SS 6C. 5 Cur. Law. his claim until all those of the preceding class are fully paid.88 If the estate is insufficient to pay all the debts of any one class, each creditor is entitled to a dividend in proportion to the amount of his claim.89 Classification is primarily for the benefit and protection of creditors, and when they will not be prejudiced thereby, the representative cannot object to the belated payment of a preferred claim not filed and presented within the time limited for the presentation of ordinary claims.90 Claims for proper and necessary attorneys fees and other expenses of administration which are payable out of the assets of the estate are usually given priority over the general debts of the decedent.91 The right of the widow to dower and homestead is superior to the rights of the general creditors.92 The liens, incumbrances, and order of payment of the indebtedness are fixed either by contract or by statute, and cannot be disturbed by the court in an administration suit.93

5 Cur. Law.ESTATES OF DECEDENTS SS 6D.1329

widow and minors in necessitous circumstances does not disturb the relative rank of inferior claims or cause them to prorate in what may be left.\[97\]

(SS 6): \_D. Funds, assets, and securities for payment.\[98\]--The usual way in which charges against an estate are satisfied is for the administrator to collect the debts owed to the deceased, and to sell personalty not specifically bequeathed, and use the proceeds for that purpose.\[99\] The personality is the primary fund for the payment of debts,\[1\] with the realty secondarily liable if there is a deficiency.\[2\] The testator may, however, if he so desires, designate what portion of the estate shall be appropriated for that purpose and the expenses of administration, and such a provision controls.\[3\] In case he fails to do so, or the estate appropriated for that purpose is insufficient, resort should be had to that portion of the estate not devised or disposed of.\[4\]

Legatees and devices must contribute stably in case there is not sufficient un-disposed-of property.\[5\] A widow electing to take under the will in lieu of dower must also contribute.\[6\] Her election against the will does not make what she takes under the statute intestate in the sense that it is primarily liable; but her portion and that devised are equally liable.\[7\]

Subsequently collected assets are available to creditors unless their claims have become statute barred.\[8\]

Under the doctrine of marshaling assets, general creditors may, ordinarily, compel the holder of a claim secured by a lion on reality to look to the land alone for the satisfaction of his debt, or, failing in that, are entitled to be subrogated or substituted to his rights against the land to the extent that the personality is used in paying his debt.\[9\] This rule does not, however, apply to a case where the widow is asserting her right of dower and homestead against the general creditors, to whose rights hers is superior.\[10\] If the holder of the lion debt resorts to the reality instead of the personality for its payment, the widow is entitled to be subrogated and substituted to the rights which he would have had in the personality, had he filed a claim against the estate, for the satisfaction of her claim to dower and homestead, which is superior to the rights of the general creditors.\[11\]

was revived against his administrator. Judge-

version is made, there is an "insufficient" pro-ment was entered by plaintiff and execution

Vision within the meaning of this section. was issued and a levy made on the land.

Heid that, by releasing and returning the lively, and by proving his claim against the

undisposed of, debts and expenses should be estate as an absolute and unsuected one,

without anything to indicate an intention to

retain his lion, and a continuance of that

condition for over a year, plaintiff abandoned

his levy and placed himself in the list of general creditors.\[11\]

to contribute their respective proportions of

102 N. Y. G.26.

97. Succession of Peters \[La.\] 38 So. 690.

01. See S 0. C. L. 1271.

01. In absence of evidence to the contrary, it will be presumed that testator intended his estate to be administered in the ordinary way. Walker v. Hill \[N. H.\] 60 A.

01.

I. Whitmore v. Rascoe, 112 Tenn. 621.

85. W. 860. Including a vendor's lien debt

created by decedent. Id.

2. See post, SS 7.

1. Code Civ. Proc. SS 1560. In re Traver's

Estate, 145 Cal. 508, 78 P. 1058. Where a testator designates a fund, items of indebted-

v. Pugh, 57 Miss. 163, 163, and in Pool v. Ei-

ness paid should not be charged by the ex-

118. Get to the general estate. Phillips v.

001. Checkett, 112 Ill. App. 587.

001. Code Civ. Proc. SS 1562. Where no pro-

001.

Assets should not be applied to discharge liens on land which when thus cleared will not come into the estate but will go to the administrator as an individual holding under the foreclosure of a junior lien.\[18\] Moneys arising from one year's crops and constituting nearly the entire assets should not be ordered paid to satisfy crop liens partly on other crops.\[18\]

(SS 6) \_E. Payment and satisfaction; \[14\] refund; interest.--\_Interest on a claim for board can only be allowed from the date of 'its presentation.\[15\]

In California, if the estate is insolvent, no greater rate of interest can be allowed on any claim after the first publication of notice to creditors than is allowed on judgments obtained in the superior court.\[16\] In case of payment of a lien to clear land later adjudged to a stranger, the executor may be subrogated to the lien.\[17\]

SS 7. _Subjection of really to payment of debts under orders of court. A. Right to resort to really.\[18\]_--\_The personality being insufficient for that purpose, so much of decedent's land as may be necessary may be sold under order of the court for the payment of his debts,\[19\] unless the same is exempt by law from sale on execution.\[20\] Such exemptions will be deemed waived unless asserted when the application for sale is made.\[21\] The land may also as a general rule be sold for the payment of funeral and administration expenses,\[22\] but in some states the rule is otherwise.\[23\]

honestead from surplus arising on the sale

of the reality, and from the pro rata share

of the personality to which the lien creditor

V. R. Gefefs. 1991. \_S. R. Gefs. 1991. \_S.

5. Cur. Law. .ESTATES OF DECEDENTS SS 7A. 1231

The application for a sale must be made within the time limited by statute,24 or, in case no time is fixed, within a reasonable time.25 Only those persons can complain of the delay who have been injured thereby,26 and it is not a ground of collateral attack where the rights of innocent third parties have intervened.27 Equity having assumed jurisdiction of a suit to set aside a sale of lands to pay a claim may, where the right to resort to the land has been lost by delay, enjoin any further proceedings to sell it for that purpose.28

It is the policy of the law not to permit the sale of lands of a decedent by the representative for any purpose for which other funds and property are available and sufficient.29

Reality which is specifically devised should not be sold until the rest of the estate has been exhausted,30 and it is the duty of the devise to see that this is done.31

leicht Lumber Co. \[Ark.\] 84 S. W. 1044. In \[application of the equitable doctrine of case application is made to sell lands solely for the purpose of paying the expenses of \[a\], sui generis, rather an application of the administration, it must be made to appear that such expenses were incurred in the course of administering the estate to pay \[b\] from abusing their rights. Id. Fact that debts due personally by the decedent. Id. \[a\]. Where plaintiff was both the committe of a lunate and administrator of his estate after his death, held, that limitations \[b\]. \[c\]. \[d\]. In \[e\]. \[f\]. \[g\]. \[h\].

In some states the whole of the reality may be sold, when such a course is deemed to be for the best interests of the estate, though the sale of only a part thereof is necessary.\[32\]

In Georgia, on the executor assenting to a devise of reality, the land is no longer assets of the estate, and is not subject to sale for the payment of its debt and the ordinary has no jurisdiction to order it sold as part of the estate.\[33\]

(SS 7) B. Procedure to obtain order.\[34\]--An application under the statute to a court of general equity powers for license to sell realty is not an action in equity, but a special statutory proceeding.\[35\] It is purely a proceeding in rem, and the only questions to be determined are the amount of the indebtedness, the amount of personality available for its payment, the necessity for selling the land, and the character of the estate sought to be charged.\[36\] The allowance of claims against the estate by the administrator, though not binding on the heirs, is prima facie sufficient to authorize the sale of realty for their payment, and the administrator need not, in the first instance, prove them on the hearing of the application to sell.\[37\] The heirs may, on the hearing of the application, contest the validity of claims already allowed in proceedings to which they were not parties, but if they do so, must introduce some evidence to overcome the prima facie case made by proof of their allowance.\[38\]

Creditors or others interested in the estate are generally given the right to petition for a sale,\[39\] or to oppose an application to sell.\[40\]

- \[\]

5. Cur. Law. ESTATES of DECEDENTS SS 7D. 1233

Among other things the petition should set forth a description of the real estate of the deceased liable to be made assets for the payment of his debts, and his title therein at his death.\[41\] The sufficiency of the petition may be tested by a de-murrer for want of facts.\[42\]

The required notice of the proceedings must be given,\[43\] and a failure to give it is not waived by a voluntary petition.\[44\]

A mortgagee of a portion of the lands of the estate has a right, when application is made for authority to sell all the lands, to require that the sale of land which his mortgage does not cover shall be proper and regular.\[45\]

More irregularities in the proceedings do not affect the title of the purchaser \[40\] or render them subject to collateral attack.\[47\]

(SS 7) \_C. The order.\[48\]--An order authorizing a sale of the land does not give the representative power to exchange it,\[49\] but though the order authorizes a sale of all the land, where the representative sells a part of it for a sum sufficient to pay all the debts, and his return to that effect is approved, accepted and recorded, and his final account showing the receipt and application of the proceeds is also accepted, he has no authority to thereafter sell the balance.\[50\]

Recitals in the order that the statutory notice was given is evidence of such fact only on a collateral attack on the order.\[41\]

A license purporting to authorize the sale of a homestead for the payment of debts, in states where it is exempted from liability therefor, is absolutely void.\[52\]

(SS 7) \_D. The sale.\[53\]--The rules of fairness, etc., applicable generally to judicial and trustees' sales apply here.\[54\] Where the general bond does not include it or where the statutory requires it, a special bond must be given before making the sale.\[55\] In Mississippi the land sold must be divided into tracts of not to exceed one hundred and sixty acres.\[56\]

A sale of reality to pay decedent's debts, made under order of the proper court, is a judicial sale,\[57\] to which the rule of caveat emptor applies.\[58\] The court in dealing with the purchaser, however, will do so upon the equitable principles governing all cases of specific performance, and will grant him relief if he can legally claim that he was misled or deceived by some apparent adjudication by the court, and that it would be inequitable to enforce his contract against him under the circumstances.\[59\]

The purchaser ordinarily takes all the right, title, and estate which the deceased had in the premises at the time of his death,\[60\] and hence his title is superior to that of a mortgage of an heir.\[61\] The mortgage, however, has a lien on the funds of the administrator, and is, therefore, entitled to recover from him, payable out of the mortgager's share, the amount due him, with costs.\[62\]

The purchaser takes decedent's title cum onere.\[63\] Thus, the purchaser at a sale of a deceased partner's interest in land, the title to which stands in the partnership name, takes only the interest of the deceased partner in the land after a settlement of the partnership affairs, and the surviving partner may, in a proper proceeding against him, subject the land to the payment of partnership debts.\[64\] The proceeds of the sale, in such case, belong to the estate of the deceased partner, and are no part of the partnership assets.\[65\] But where title to the land stands in the name of the individual partners, an innocent purchaser takes the interest of the deceased partner unincumbered by the secret equity of the partnership, and the proceeds of the sale can be recovered from the administrator by the surviving partner, if necessary to pay partnership debts.\[66\]

S5. Parol evidence of the gwings of the v. Chann, 21 N. C. 435, 30 Am. Dec. 174: Perry statutory bond must rest on proof of loss of v. Adams, 98 N. C. 167, 3 S. E. 729, 2 Am. St. regrignal or failure to find it where it should be. Shannon v. Summers \[Miss.\] 38 So. 345. 56. A sale is void as one of more than 160 v. Hudgin, 6 Grat. \[Va.\] 320, 52 Am. Dec. ing an unaccarified homesetad and dover. Const. 186, art. 12, 81. Shannon v. Summers \[Miss.\] 38 So. 345. All subsequent purchasers must take notice of this. Id. 57. Podesta v. Binns \[N. J. Eq.\] 60 A. 815; Pierce v. Vansell \[Ind. App.\] 74 N. E. 554. 58. Hartnett v. Stillwell, 121 Eq. 386, 49 S. E. 276. Purchaser is bound to examine for himself beforehand to see what title he will get, and to take such title as an examination of the proceedings will show that he will get. Podesta v. Binns \[N. J. Eq.\] 60 A. 815. Orphans' court not called upon and does not pass upon question of how much or what kind of a title sale made in pursuance of Its order will vest, but purchaser takes as prescribed by P. L. 1898, P. 749, 84, and assumes risk of what he will get. Id. NOTE. Subregation of purchaser at void sale to rights of creditors: A purchaser at an invalid sale is entitled to be abrogated to the rights of creditors to the extent that the money paid by him has been applied to the payment of their claims, and may retain the property as security for the repayment of the sums to which he is entitled. Duncan v. Galney, 108 Ind. 57. 9 N. E. 470: Pool v. Ellis, 64 Miss. 555, 1 So. 725: Valle v. Fleming, 29 No. 152, 77 Am. Dec. 657; Scott 5. Cur. Law.ESTATES OF DECEDENTS SS 7D.

The sale is subject to the widow's right of lower unless she consents to the disposal of her interest, in which case her rights attach to the proceeds." In case she has only a life interest in the homesetad, the fee may be sold subject to her rights." Where the lion of a first mortgage is set up, it must be preserved in the fund realized from the sale; but if the mortgage is not set up, the lion is cut off, and the mortgage becomes a general creditor."

Statutes in some states require the deed to refer to the record wherein the order or judgment of the court authorizing its execution is entered," and in case this is done the grantee and all those claiming under him take with notice of the character, extent, and contents of the order and judgment." One is not deprived of his character as bona fide purchaser because the administrator's deed to him is a quit-claim." Where land of a nonresident deedent is sold, a copy of the will probated in the state is not within the chain of title of a subsequent purchaser so as to charge him with notice of outstanding equities."

Mere inadequacy of price is no ground for setting aside the sale," but by statute in some states it may be be set aside if a sum greater by ten per cent. than the amount bid, together with the expenses of resale, is offered for the property before confirmation." In such case the intrinsic value of the property and the motive of the person making the increased bid are immaterial."

Payment or tender of part of the indebtedness before the sale does not affect its validity," nor does a tender of the whole indebtedness before the sale affect the title of one purchasing without notice thereof."

The confirmation eures all irregularities in the sale or order, but not jurisdictional defects." The sale cannot be set aside except on grounds authorizing the vacation or modification of a judgment after the expiration of the term." The

Stillwell, 121. Ga. 386, 49 S. E. 276. If the surviving partner himself purchases the land, he is charged with knowledge of the nature of the title and is estoped from claiming the proceeds of the partnership property. Id. See, also, Partnership, 4 C. L. 908.

67. May be sold free and clear of her interest where she consents thereto and such course appears to be for the best interests of the estate. Widow in such case takes her interest in cash. Decree directing sale of reversionary interest only, reversed and re-manded for that purpose. Fullman v. Winternling \[Md.\] 60 A. 468.

01. Robbins v. Boulware \[Md.\] 88 S. W. 674.

01. Sherman v. Millard, 6 Ohio C. C. (N. S.). 338.

01. Burns' Ann. St. 1901, $ 2518, requires the deed to describe the kind of record, the number of the volume, and the page wherein the order or judgment of the court is entered, by virtue of which the administrator is authorized to execute the particular deed. Pierce v. Vanesel \[Ind. App.\] 74 N. E. 554.

01. Where the deed contains all such entries, the grantee and all persons claiming under him take with notice of the character, extent, and contents of the order and judgment, and in a suit to reform the deed on the ground that, through a mistake, it describes more property than was intended to be sold, one claiming under the grantee cannot defend on the ground that he is an income pentabaser. Pierce v. Vanesel \[InW. App.\] 74 N. E. 554.

72, 73. Nelson v. Bridge \[Tex. Civ. App.\]

87. S. W. 885.

01. Costigan v. Truesdell, 26 Ky. L. R. 971,

01. S. W. 98.

01. Purchaser takes subject to this contingency. Rohlf v. Snyder's Estate \[Neb.\] 103 N. W. 49.

01. Rohlf v. Snyder's Estate \[Neb.\] 103 N. W. 49.

01. Rohlf v. Snyder's Estate \[Neb.\] 103 N. W. 49.

01. Green v. Cannady \[S. C.\] 51 S. E.

01.

01. Does not render sale valid where or-der shows on its face, tant it was made to pay expenses of administration only and not to pay debts, and statute only authorizes sale for latter purpose. Collins v. Paepcke-Leicht Lumber Co. \[Ark.\] 84 S. W. 1044.

Where evidence demanded finding that administrators of common grantor of plaintiffs and defendant sold property in dispute at public outery as that of their decedent, to pay debts and for distribution; that defendant had a complete chain of title from the purchaser; that sale was had by order of the court of ordinary, and after compliance with the usual procedure, and that plaintiffs or their predecessors received the benefits of the proceeds, and never attempted to repudiate the sale or trend the money received, held that defendant showed a perfect equitable title as against plaintiff, regardless of any defects of irregularities in the sale, and that it was not error to direct a verdict in his favor. Leggett v. Peterson \[Ga.\] 50 S. E. 51.

80. Grounds stated in Civ. Code Prac. $ $ $ $18. Costigan v. Truesdell, 26 Ky. L. R. 971, $ rule is not changed by the fact that one claiming to be a creditor, but who has not proved his claim, is not made a party.\[81\]

The representative may make the ded as the purchaser directs.\[82\] Equity may correct mistakes in the ded,\[83\] and fraudulent sales may be set aside.\[84\] If bidders abstain on the general understanding and belief that the purchase is for the heirs, the purchaser holding out such facts may be held as their trustee.\[85\]

An invalid sale may be cured by subsequent ratification.\[86\]

Owners of decedent's lucky sold for the payment of a mortgage thereon are entitled to possession until a receiver is appointed or until the expiration of the time for redemption.\[87\] Where land is sold merely for enough to pay a mortgage thereon, the fact that the equity of redemption is not also sold in accordance with the order of the court does not prevent the termination of the right to redeem at the expiration of a year from the date of the sale.\[88\]

If the sale is subsequently declared void, a purchaser who has entered and made improvements in good faith cannot be ejected until the purchase money has been repaid and he has been paid for such improvements,\[89\] and as against a purchaser who rescinds an assignment of his bid for fraud, the fraudulent assignee may be subrogated to liens he has discharged.\[90\] Various statutes limit the time within which sales open to objections and irregularities may be challenged,\[91\] but sales not in good faith are not within them.\[92\]

Actions to recover reality sold by an executor or administrator must be brought within the time fixed by the statute of limitations.\[93\] Laches will bar such a suit in a court of equity.\[84\]

**S1.** Costligan v. Truesdell, 26 Ky, L. R. 971, against her, held hearsay. King v. Bynum, 137 N. C. 491, 49 S. E. 955.

**S2.** Sale is not rendered vold because deed 1s made to the husband of the successful bidder even though the bidder paid the purchase price. West v. Burge \[Ark.\] 88 S. W. 557.

**S3.** Whereby more land was described than was intended to be sold. Pierce v. Vanstell \[Ind. App.\] 74 N. E. 554. Estate not estipped from prosecuting action to correct seed and recover possession of excess by sent of the fact that the purchase money notes and mortgage were assigned to a third person who foreclosed the mortgage, it not appearing that the administrator knew of the mistake when he assigned it. Id.

**S4.** Fact that sales were irregular or even void does not establish that executor was guilty of fraud, where he applied for permission to sell and truthfully stated in detail the condition of the estate and the previous conduct of its affairs. Williamson v. Berds- they \[C. C. A.\] 137 F. 467. Mere allegations that sales sought to be set aside were fraud- undently conducted, without an averment of substantive facts justifying the charge of fraud, are insufficient. Id. Evidence insulin- client to show fraud in an executor's sale of reality. West v. Burge \[Ark.\] 88 S. W. 557.

**S5.** See 15 Am. & Eng. Enc. Law \[2d ed.\] 1191. But on suit to hold persons, in whose name land was purchased, as trustees for all the devises, it being claimed that the person who bid it off had agreed with his mother by lit for the benefit of both plaintiffs and defendants, and that this agreement being known, no one else bid at the sale, evidence that it was understood that the mother was to buy the land for the children, and that people did not want to bid 5 Cur. Law. ESTATES OF DECEDENTS SS 8. 1237

By statute in Ohio the proceeds of the sale must be applied first to discharge the costs and expenses of the sale, and the percentum and charges of the representative thereon for his administration of the same, then to the payment of mortgages and judgments, and then to the payment of claims and debts in the order of their priority.\[95\] General costs of administration are not charges and expenses of the sale within the meaning of this act.\[96\]

SS 8. _Subjection of property in hands of heirs or beneficiaries to payment of debts.\[97\]_--At common law the heirs and devisees took the realty by descent, free from the debts of the ancestor, unless the latter expressly bound or charged them for the payment thereof.\[98\] This rule has, however, been generally abrogated so that the heir or devisee now takes by descent or devise, subject to all valid claims against the ancestor's estate,\[99\] and they, together with distributes and legatees, are liable to creditors to the amount of property received by them from the estate.\[1\] An heir or devisee, having entered as such, cannot acquire title to the lands descended or devised, as against the debts of the ancestor or devisor, by a claim of adverse possession as against the title descended or devised.\[2\] One who advances money to pay claims is not a "creiditor of the deceased" entitled to sue the heirs in assumpsit.\[3\]

In the absence of a statute to the contrary, presentation of the claim to the representative is not necessary to enable the creditor to enforce such liability,\[4\] and \*

1998, & 2870, requires such actions to be \[99, Takes it with all the burdens heft brought within three years after the sale, \[Ky.\] 87 S. W. 810, wtthdrawing former opinions after the discovery of the fraud or \[26 Ky.\], L. R. 1260, 83 S. W. 1129. Under \[83, Ky.\], St. 1903, & 5087, the only way to prevent \[84, 85, 86, 87, 88, 89, 90, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 211, 222, 223, 234, 235, 246, 247, 251, 262, 263, 264, 265, 266, 267, 268, 270, 271, 272, 273, 274, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 300, 311, 329, 332, 340, 341, 342, 343, 344, 345, 346, 347, 348, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 383, 384, 385, 386, 387, 388, 389, where a claim does not arise until after the settlement of the estate, the creditor has a right of action against the heirs and distributes independent of and in addition to the statutory one.6 In South Carolina a creditor's equity to subject land devised to the payment of his debts does not arise until his remedy against the executor has been exhausted and a return of nulla bona made, and until this has been done, the heir's possession does not become hostile and adverse.7 In Pennsylvania, however, a creditor who secures an adjudication of his claim and a decree against the executor awarding him his debt out of the personal estate cannot thereafter proceed against real estate in the hands of a device.8

Where complainant seeks relief as, to the personal estate of the deceased, his remedy is at law and not in equity, unless some right of lien is made to appear.9 It has, however, been held that the remedy of the receiver of a national bank to collect an assessment on stock from the distributes of a decedent's estate is in equity.10

The creditor must commence his action within the time prescribed by statute, unless it is practically impossible for him to do so.11 If no time is fixed, he must act within a reasonable time.12

Footnote 12: Credit whose claim does not mature does not become absolute until after estate is closed must sue distribupers is closed to recover from distributes in tees within reasonable time. Rankin v. Big Equity. Rankin v. Big Rapids \[C. C. A.\] 133 F. 670.

F. 670. Failure of a claimant of an annuity 13. See 3 C. L. 1285.

acquired by contract with the decedent to 14. Is chargeable in his account with the prosecute suit against the executor before who of the estate which may come into his his final discharge will not preclude him possession at the value of the appraisement from proceeding in equity to charge the es- contained in the inventory. Code Civ. Proc. state in the hands of a trustee who received 1613. In re Gianell's Estate, 146 Cal. 139, it from the executor. Washington Loan & Trust Co. v. Darling, 21 App. D. C. 132.

In the evidence, held that the court would $. Clevenger v. Mathews \[Ind. App.\] 75 N.

Lettman items of the account of an executrix 6, 7. Brock v. Kirkpatrick, 69 S. C. 231, 48

S. E. 72.

It is concluded on the fact that there were assets. Reading Trust Co. v. Pennsylvania Trust Co., 26 Pa. Super. Ct. 599.

When one has no lien on personal assets he cannot sue in equity against distributes to subject them or really purchased with their shares to payment on bond on which deceased was liable. Acton v. Shultz

In South Carolina a creditor's equity to subject land devised to the payment of his debts does not arise until his remedy against the executor has been exhausted and a return of nulla bona made, and until this has been done, the heir's possession does not become hostile and adverse.7 In Pennsylvania, however, a creditor who secures an adjudication of his claim and a decree against the executor awarding him his debt out of the personal estate cannot thereafter proceed against real estate in the hands of a device.8

Footnote 12: Credit whose claim does not mature does not become absolute until after estate is closed must sue distribupers to recover from distributes in tees within reasonable time. Rankin v. Big Equity. Rankin v. Big Rapids \[C. C. A.\] 133 F. 670.

Where complainant seeks relief as, to the personal estate of the deceased, his remedy is at law and not in equity, unless some right of lien is made to appear.9 It has, however, been held that the remedy of the receiver of a national bank to collect an assessment on stock from the distributes of a decedent's estate is in equity.10

Footnote 12: Credit whose claim does not mature does not become absolute until after estate until after estate is closed must sue distribupers to recover from distributes in tees within reasonable time. Rankin v. Big Rapids \[C. C. A.\] 133 F. 670.

Footnote 13: Credit whose claim does not mature does not become absolute until after estate until after estate is closed must sue distribupers to recover from distributes in tees within reasonable time. Rankin v. Big Rapids \[C. C. A.\] 133 F. 670.

Footnote 14: If the estate is closed is not mature, then it is not mature, but it is mature, but 5 Cur. Law. ESTATES OF DECEDENTS SS 9A. 1239 is not excused from doing so by reason of the fact that the decedent, at the time of his death, owed him a sum in excess of the value of the estate.\[15\]

The representative is required to act with the utmost good faith in dealing with the estate,\[16\] and is responsible for losses resulting from his want of reasonable 'diligence,\[17\] or his unauthorized acts or omissions.\[18\] Acquiescence of a beneficiary in the wrongful application of a trust fund releases the administrator and his sureties from liability therefor.\[19\]

An administrator is not chargeable, either in his individual or representative capacity, with the amount of a debt which he has never collected and which has

him. Id. Where owner transferred brewery the estate is entitled is the lqss, if any, which to corporation composed of himself and his it sustained by reason thereof. McDoewell v. wife and children, who paid nothing for aue! First Nat. Bank (Neb.) 102 N. W. 615. stock, and it subsequently conveyed its property to a reality company formed by the herwer in which his children held merely estate on a note on which decedent was started in equity, in determining the assets of the brewery. Id. Evidence held to warrant finding that certain gold coin buried by tes- and had been established before a referee, executive and that she should be charged (therewith. Id. Item for money received from "political lease" of mine owned by decedent, held properly disallowed, there being the question of her competency to testify on some question as to whether executor had accounted for full amount received, or which accounts were improperly surcharaged with he should have received, therefrom. In re the amount thereof. In re Vostnon, 101 App. Courtney's State \[Mont.\] 79 P. 817. Objects to account that certain personality should have been charged to the adminis-trance overtended, where it did not appear that if ever belonged to decedent, or came into the administrator's hands. In re Robinson, 45 Mirsc. 551, 92 N. Y. S. 987. Evidence insum-Failed to provide for their payment at end of client to show that executrix had not accounted for all the property of the estate.

Bramlet v. Mathis (S. C.) 50 S. E. 644. Anne Investment. In re Woosley's Estate \[N. J. Eq.\] 59 A. 463.

Thare owner of possessory right in Indian lands operated ferry thereon, which, though conducted under periodical license, was regarded by the customs of the nation as ap-purtenant to the land, its operation by his widow and administrator after his death, though under license granted in her own name, must be regarded as having been for the benefit of the estate, and she is chargeable with the income thermor. Niven s.

never been established against the debtor.20 By a statute in Rhode Island both the person and estate of an executor are exempted from execution for the debts and legacies of his testator unless he has committed waste.21 The act does not apply to an action on a bond given by the executor as residuary legate and conditioned to pay the debts and legacies.22

Executors are entitled to credit for money used in keeping up the market price of stock owned by testator and on which he had borrowed large sums, where the loans would have been called if any considerable depreciation had occurred, and injury would thereby have resulted to the estate, particularly where testator had a contract with another person to keep up the price in their joint interest, which the latter performed on his part.23 So, too, they are entitled to credit for the repayment of moneys advanced by a corporation, in which decedent was largely interested, for the payment of pressing bills against the estate, even though it was indebted to the estate, where the will constitutes such indebtedness a fund which is not to. be distributed except for certain specified purposes.24

The position of representative is one of trust and confidence and not one of profit.25 In the absence of a provision to the contrary in the will, he cannot purchase property at his own sale either personally or through third parties.26 Such a sale is not void.27 but is voidable at the option of the heirs or others interested in the estate,28 regardless of the adequacy of the consideration.29 The fact that the sale was made under order of, and was subsequently approved by, the court, does not prevent its being set aside, where it is reported as having been made to a third party.20 In such case the lien of a mortgage of the purchaser, who took in good faith, is superior to that of one having a judgment against the heir.21

Neither the administrator of the estate nor his attorney may, for his personal use and profit, purchase an outstanding life estate in really of which the adminis * 5 Cur. Law. **ESTATES of DECEDENTS SS 9A.** 1241

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  1243

ESTATES OF DECEDENTS SS 9B. 5 Cur. Law.

Though the revocation of his letters terminates the authority of the administrator, it does not relieve him from liability on account of acts done while in office, or the retention of assets of the estate after his removal.\[42\]

_Executors de son tort.\[48\]--In some states anyone converting any property of the deceased before the granting of letters testamentary or of administration is made liable for double its value.\[44\]_

(SS 9) _B. Representative as debior or creditor.\[45\]--As a general rule any indebtedness of an executor or administrator to his decedent is regarded as assets with which he is chargeable at its maturity as so much money in his hands.\[46\] It is generally held that this rule does not apply where the representative is insolvent at the time of his appointment and so remains during the course of his administration,\[47\] nor will it be applied so as to prevent the running of interest on such a debt evidenced by an interest-bearing obligation.\[48\]_

The fact that decedent, at the time of his death, owes the administrator a sum larger than the value of the estate, is no excuse for his failure to inventory and account for all moneys received by him in his representative capacity,\[49\] but his remedy in such case is to present his claim to the probate court for allowance, and to have a special administrator appointed for the hearing.\[50\] An administrator and heir who agrees to rent decedent's lands and apply the proceeds on the amount due him from the estate should so credit his share of the rent as well as that of the other leirs.\[51\]

To apply on an individual debt to an estate a sum coming from the estate to the debtor as trustee is a misappropriation of estate funds, and the debt being for the price of land, the vendor's lien remains.\[52\]

If the widow, under an order to a bank authorizing her to do so, draws out deposits standing in decedent's name, she, if not entitled thereto as done or as the beneficiary of a trust, will hold it as trustee for decedent at the time of his death, and, on her subsequent appointment as executrix, the claim of his representatives therefor is protected from the running of limitations in her favor in the same man-

property belongs to the estate, then he is entitled to reimburse himself, as executor, from the property, for the money so ad-

that the representative shall not be account-

to have been misconstured by trial judge.\[42\]

remain uncollected without his fault. Sand-

43. See 3 C. L. 1289. For a full discussion of who are executors de son tort, the rights and liabilities of such executors, and the effect of statutes abolishing the office, see

outfall to be the same, but not 98 Am. St. Rep. 19L.

44. Rev. St. 1888, # 8824. Statute is penal

and must be strictly construed. Dixon v. Sheridan \[Vis.\] 103 N. W. 239. Conversion after the appointment of a special adminis-

that, before the appointment of the

general one, is not a conversion before the

granting of letters of administration within

the meaning of the act. Id.

45. See 3 C. L. 1290.

01. Sanders v. Dodge \[Micl.\] 12 Det. Leg. N. 187, 103 N. W. 597. Rev. St. $ 6069. Jones v. Willis \[Ohlo\] 74 N. E. 166. On executor's

death before the estate is closed, his repor-

sentative must account theror the same as

other property, whether it was included by

decedent in his inventory or not. Id. Evil-

dence held to show that an administrator

was properly charged with interest on notes

held by the estate of his decedent against

until he reports it as cash in his hands or

distributes the same in a manner approved

by the court. Phillips v. Duckett, 112 Ill. App. 587.

49. State v. Stuart \[Mo. App.\] 86 S. W. 471.

01. Rev. St. 189, $ 205. State v. Stuart

(Mo. App.) 86 S. W. 471. The disputed

amount due from an executor to the estate

may, in Illinois, be determined by the

Date court, either with or without the appointment of a special administrator to

fed on behalf of the estate. Phillips v. Duckett, 112 Ill. App. 587.

51. Cauthen v. Cauthen, 70 S. C. 167, 49 S

01. S. 321.

01. Z. Marshall v. Hall, 51 W. Ya. 569, 42 S

01.

01. Cur. Law. ESTATES of DECEDENTS SS 9C.

Inner and upon the same principle as applies to a debt from a representative to his decedent.${}^{53}$

(SS 9) C. Interest on property or funds.${}^{54}$--An administrator is properly charged with interest on a sum with which he is charged on the record with his consent as money which he should have put into his account and held as an identified fund and did not,${}^{55}$ and also on a fund which he retained in his own hands after the assets of the estate had been ordered paid into court and, with the consent of the parties, transferred to the solicitors of the parties as custodians.${}^{66}$

. All presumptions being in favor of the regularity of the management of the estate by the representative ${}^{57}$ the burden is on one alleging that he should be charged with interest as a penalty for willfully or negligently delaying the settlement of the estate to prove that he has done so.${}^{58}$ He should not be charged with compound interest in the absence of any showing that he received compound interest on any moneys of the estate, or that he misappropriated any of the property of the estate.${}^{69}$

In Georgia the'interest to be charged trustees, including executors and administrators, is fixed by statute at seven per cent. per annum, without compounding, for six years from the date of their qualification, and after that at six per cent. per annum, annually compounded.${}^{60}$ Any trustee may relieve himself from this rule by returning annually the interest actually made, and accounting for the balance of the fund,${}^{51}$ and any distributee may recover a greater interest by showing that the trustee actually received more, or that he used the funds himself to greater profit.${}^{62}$

Where the funds of the estate are deposited with a trust company which is also one of the executors, and it allows interest thereon at the usual rate allowed other customers, it cannot be charged with a higher rate on the theory that it is bound to account for all the profits made by it out of the estate.${}^{68}$

Interest may, in proper cases, be allowed the executor or administrator on ad-

53. Sprague v. Walton, 145 Cal. 228, 78 P. in the case of executors or administrators. Id. Under Civ. Code 1895, SS 3496, in regard to funds coming into his hands after the first year, a reasonable time must be allowed due, see SS 12, post.

55, etc. McIntire v. McIntire, 192 U. S. 116, and disbursements should generally bear in-

57. In re Sylvar's Estate \[Cal. App.\] 81 P. 683. Evidence held not to show that administrator willfully or negligently caused the delay. In re Sylvar's Estate \[Cal. App.\] 81 P. 663.

01. In re Castner's Estate \[Cal. App.\] 81 P. 91.

01. Civ. Code 1895, SS 3498. Tippin v. Perry

\[Ga.\] 50 S. E. 85. The charging of compound interest under this statute is not dependent upon misappropriation of assets, or fraud, misconduct, or negligence. Id. When beginning to charge compound interest, simple interest for six years at seven per cent.

ing therefrom both the principal of such un-

cipal formed upon which the compound interest should be computed. Id. Where administrator made only five returns in 19 years, and the auditor calculated interest against

him upon each separate receipt and in his favor on each separate disbursement,

held not erroneous to overrule an exception of law to auditor's report merely alleging

established their legal right to the fund and that he erred in not making the calculations

of interest on "the balances as they appear

in the several returns" of the administor.

If, under Civ. Code 1895, SS 3497, no interest

63. In re Moore's Estate, 211 Pa. 348, 60

is to be charged either way for the first year, vances made by him to the estate out of his own funds, where the making of such advances is necessary and results in benefit to the estate.64 Such -claims are not favored, however, and will be viewed with caution and examined with scrupulous care.65

(SS 9) _D. Allowance for expenses, costs, counsel fees, and funeral expenses.66-_

The representative is entitled to an allowance for all necessary expenses incurred by him in the care, management, and settlement of the estate.67 He is entitled to be reimbursed for reasonable attorney's fees and court costs necessarily incurred.68 In some states the allowance is made directly to the attorney.69 Money paid by an administrator to his attorney from funds of the estate is paid at the former's peril until the court has duly adjudicated his claim for an allowance for that purpose, after giving all interested parties an opportunity to be heard,79 and the same is true of money paid by an administrator to himself.71 In case he improperly pays fees to his attorney out of the funds of the estate, the latter will not be compelled to make restitution, but the administrator will be held personally liable therefor.72

Footnote 69: The author is grateful to the anonymous referee for the support of the 1990s.

If the representative acts in good faith, he will not be refused an allowance for attorney's fees and costs merely because he is unsuccessful in the suit in which the services were rendered.73 He will not, however, be allowed attorney's fees for services which he should have performed personally,74 nor attorney's fees

64. In re Carpenter's Estate, 146 Cal. 661, testator under such former will, is entitled to reasonable attorneys fees, though the court holds that the will does not execute showing the evidence on which it was made, former will and appointed an administrator that the circumstances were not such as to justify the allowance made. In re Carpenter's Estate, 146 Cal. 661, 80 P. 1072.

01. See S C. L. 1292.

01. Bal. Ann. Codes & St. $ 6312. Noble v. Whitten \[VWash.\] 80 P. 451. Though he receives no free because no money has passed through his hands. Adamson v. Parker \[Ark.\] $5 S. W. 239. For expenses incurred in defending the estate from claims deemed unjustg Hampton Trust Co. v. Leary, 186 Mass. 577, 72 N. E. 88.

01. In re Arnton, 94 X. Y. S. 471. Fee for preparation of account and services in connection with the distribution held reasonable and proper. In re Castaner's Estate \[Cal. App.\] 81 P. 991. Sum allowed and paid attorneys of executor for services in attempting to produce codil discovered after product of will held reasonable. Couchman v. Bush, 26 Ky. L. R. 1277, 83 S. W. 1039. Court held not to have abused his discretion in allowing $12,500 for attorney's fees for two and a half years' services. In re Davis' Estate \[Mon.\] 78 P. 704. Entitled to counsel fees for services in settling estate and in defending agreement suit resulting in saving property for legatees and creditors. Evan's Estate, 24 Pa. Super. Ct. 151. Under 2 Bal. Ann. Codes & St. $ 6312, allowing him all necessary expenses. Noble v. Whitten \[VWash.\] 80 P. 451. Costs of suit to recover assets alleged to belong to the estate, which he was authorized by the court to bring and in which he was unsuccessful. Ferguson v. Woods \[VWs.\] 102 N. v. 1094. An executor who, without objection by the other parties in interest, sues to construe the will of his testator which undertakes to exercise a power conferred on the latter by a former will, and who comes into possession of the property taken by his or expenses incurred in litigation carried on for his own benefit or for the benefit of those whose interests are adverse to the estate.\[15\] So, too, he cannot charge the estate with expenses incurred in advising with counsel whom he knows is at the time representing interests and demands antagonistic to the claims of the heirs, as such, and with respect to those very interests,\[70\] nor is he entitled to an allowance for a fee paid an attorney's clerk for engrossing the bill of exceptions therein, where the attorney is allowed a fee by the court.\[17\] In case the administrator is an attorney, he is not entitled to extra compensation for drawing his own ordinary papers in the conduct of the estate.\[78\]

An allowance to an executor for the amount paid to an accountant employed by him,\[70\] and an allowance to a stenographer employed on the executor's accounting, have been held proper.\[80\] The amount paid by the representative to a security company for his official bond is not ordinarily a proper charge against the estate.\[81\]

A trust fund is not chargeable with the expenses incurred by an administrator with the will annexed, into whose hands the trust property came on the death of the trustee named in the will, in procuring a bond, or with disbursements for the services of counsel in the matter of the administration.\[82\]

Statutes in some states authorize the appointment of an attorney to represent minor heirs and devisees who have no general guardian, and provide that he shall receive a fee to be fixed by the court and payable out of the funds of the estate as necessary expenses of administration.\[83\] Such acts have been construed to mean that such fee shall be payable out of the portion of the heir, devisee, or legatee represented by the attorney, and hence the latter's right thereto depends upon the existence of a fund or property belonging to such person.\[84\] Therefore the debts and general expenses of administration must first be paid.\[85\]

It has been held that a special administrator will not be reimbursed for expenses incurred in employing real estate and other agents to secure purchasers for the property of a debtor of the estate, though made in good faith and resulting in 75. Whore the administrator pays claims before their allowance and has them assigned to himself individually, the estate is not interested in their classification, and the costs of litigation carried on by him with reference to such classification, apparently for his personal benefit, should be paid by him personally and not by the estate, it not appearing that he paid the claims out of his own money, or that the estate is not able to pay all claims. Felsenthal v. Kline, 514 till 121, 73 N. E. 428. Not entitled to credit for a attorney's fee paid for services in collecting a claim which it is afterwards determined does not belong to the estate. Langhlin's Ex'x v. Bougher \[Ky.\] $4 S. W. 300. Can-not recover from the estate money advanced for court costs and attorney's fees for his own benefit, or for the benefit of those whose claims are adverse to the estate.

benefit to the estate," nor for expenditures in procuring the examination of a mine in which the estate held stock, for the purpose of ascertaining its value," nor for expenditures for a detective to watch the executors, who had been removed at her suit, because they had not turned over all the papers and she believed them dish honest, they never having refused to produce any paper when asked."

There seems to be some conflict of authority as to whether the executor is entitled to an allowance for costs and counsel fees incurred by him in defending the will. Some courts hold that he is entitled to such allowance," others that he is not," unless the estate is materially benefited by his taking part in the litigation;" others that he is entitled to an allowance provided that the will has been probated before the contest is instituted;" and still others that he is not entitled to an allowance pending the trial, but that one may thereafter be made to him in the discretion of the court provided it appears that he has acted in good faith."

Orders making an allowance to an administrator and his attorney for their services are void if made without notice to all interested parties, or a voluntary appearance on their part."

The burden is upon contestant to show that payments made by the representative in the discharge of his duties are not a proper charge against the estate."

8G. Civ. Code, & 2273, providing for re-

bough legates had a share in calling in

payment to a trustee of unlawful expendi-

such counsel. McIntire v. McIntire, 192 U.

tures which are of benefit to the estate, does

S. 116, 48 Law. Ed. 369.

not apply, & 2250 limiting its application to

- 90. As a general rule the executor has no

express trusts not including those of ex-

right to take sides in a controversy between

coutsors of beneficiaries as to the validity of

Bell's Estate, 145 Cal. 646, 79 P. 358.

The will, nor in a contest in which it is

NOTE. Lability of estate for broker's

contended that the will is invalid and that

commulsions: There seems to be a conflict

distribution should be made under a prior

of authority as to the liability of the estate

will or under the intestine laws, and can-

for commulsions of broker's or agents selling

not charge the expense of so doing to the

property. It is liable where the will

ests. In re Alexander's Estate, 211 Pa.

pressly or impliedly permits their employ-

124, 60 A. 511.

ment. In Inghman v. Ryan, 18 Colo. App. 347,

11 P. 899; O'Brien v. Gilleland, 79 Tex. 602,

15 S. W. 681. If governing statutes exist,

they, of course, control. See Danielvitz v. Shepard,

the amount allowed broker's will be deducted

from the representative's commission. See

Jacobs v. Jacobs, 89 Mo. 427, 12 N. W. 457;

Pommeroy v. Mills, 35 N. J. Eq. 442; Sloan's

Estate, 7 Pa. Co. Ct. 377.--From note to In

re Willard's Estate \[Cal.\] 64 L. R. A. 554.

he is not entitled to allowance, where will

87, 88. In re Bell's Estate, 145 Cal. 646,

79 P. 358.

80. Should be allowed for expenses in-

curred in proving the will, and in restating

an attack upon it by persons interested in

preventing its allowance. Hampden Trust

C. v. Leary, 186 Mass. 577, 72 N. E. 88.

Trust decd, to the provisions of which the

will was made subject, held not to require

D. C. 463); but after the trial if it appears

that he has acted in good faith throughout,

state. Id. Sum allowed and paid attorneys

of executor for services in attempting to

probate codili discovered after probate of

whether the will be sustained or not. Id.

will held a proper claim against the estate.

Couehman v. Bush, 26 Ky. L. R. 1277, 83 S.

W. 1039. Entitled to counsel fees, even

95. Evidence held insufficient to over 5 Cur. Law. ESTATES OF DECEDENTS SS 9F. 1247

\_Funeral expenses. 96--\_There is conflict of authority as to whether the funeral expenses of a married woman are a charge against her estate. 97

The courts will allow a reasonable sum to be expended for the erection of a monument over deedent's grave, even where the will makes no provision therefor. 98

(SS 9) \_E. Rights and liabilities of co-representatives. 99--\_Where one of two executors and trustees fails to qualify; the other, on his qualification, becomes vested with all the power and authority of a sole executor and trustee. 100

The acts of a regularly appointed administrator are valid, notwithstanding irregularities in the appointment of a co-administrator who acted with him. 101

One executor is not liable for funds in the hands of his co-executor unless they subsequently come into his hands, or are dissipated with his consent or by reason of his negligence. 102

One of two administrators may appeal from an order allowing claims, though his co-administrator does not consent thereto. 103

One of two executors made a defendant in an action by his co-executor merely because he refuses to join as plaintiff, and who is not mentioned in the judgment, is not an adverse party and need not be served with notice of a motion for a new trial or of appeal. 104

(SS 9) \_F. Compensation. 105--\_Matters relating to the compensation of testamentary trustees are treated elsewhere. 106

In the absence of statute the representative is entitled to a fair compensation for the amount and character of labor performed and responsibility involved. 107

In many states the compensation of the representative is fixed by statute, and in such case he is generally allowed a certain percentage on all property passing

come presumption in favor of administrator's

Especially where the estate is solvent and honesty. In re Cosine. 93 N. Y. S. 567.

five of six helrs consented to such expenditure. Phillips v. Duckett, 112 Ill. App. 587.

96. See 3 C. L. 1294.

01. In Maryland the husband is chargeable with the funeral expenses of his wife and is bound to pay them, and they constitute no charge upon her separate estate, under Code, art. 45, & 21, providing that

for specific purposes, and one refuses to husband's liability for necessaries shall remain as at common law. Stonesifer v. Shriver \[Md.\] 69 A. 139. The same is true in regard to a tomstone for her grave. Id.

Note: It has been generally held that statutes creating the wife's statutory estate do not absolve the husband from his common-law obligations to provide suitable burial for the wife. and that he is not entitled to any credit on the settlement of his admins-tration of her estate for such expenditures.

Smylev v. Reese, 53 Ala. 89, 25 Am. Rep. 58;

Sears v. Giddey, 41 Mich. 590, 2 N. W. 917,

32 Am. Rep. 168; Staple's Appepal, 52 Conn.

475; Matter of 'Werringer's Estate, 100 Cal.

345, 34 P. 825. Rhode Island and Ohio, under their statutes, hold that a husband who ad-ministers upon his wife's estate, is entitled to be allowed for reasonable funeral expenses. Moulton v. Smith, 16 R. I. 126, 12 A.

891, 27 Am. St. Rep. 728; McClellan v. Filson, 44 Ohio St. 184, 5 N. E. 861, 68 Am. Rep. 814.

The Massachusetts statute expressly declares the husband to be so entitled (Constantides v. Walsh, 146 Mass. 281, 15 N. E. 631, 4 Am. St. Rep. 311), but before its adoption it was held otherwise (Cunningham v. Reardon, 98 Mass. 638, 96 Am. Dec. 670)--_From Stone-sifer_, 83r. Shriver \[Md.\] 53 A. 139.

98. Regarded as funeral expenses. In re Kopplikus' Estate \[Cal. App.\] 81 P. 732.

01. Especially where the estate is solvent and have of six helrs consented to such expenditure. Phillips v. Duckett, 112 Ill. App. 587.

01. See 3 C. L. 1294.

01. Spengler v. Kuhn, 212 Ill. 186, 72 N.

01. Where property is given to the two executors or the survivor of them in trust

under Code, art. 45, & 21, providing that

for specific purposes, and one refuses to

quality, the other becomes sole trustee and

main as at common law. Stonesifer v. Shriver \[Md.\] 69 A. 139. The same is true

other person to act with him. Mullanny v.

In regard to a tomstone for her grave. Id.

Note: It has been generally held that statutes creating the wife's statutory estate do not absolve the husband from his common-law obligations to provide suitable burial for the wife. and that he is not entitled to any credit on the settlement of his admins-tration of her estate for such expenditures.

89. See 3 C. L. 1294.

01. Farmers' Loan & Trust Co. v. Pendle- 1248

ESTATES of DECEDENTS SS 9F. 5 Cur. Law. through his hands.108 In case the statute fixes a maximum, the amount to be allowed is, within the limit so fixed, discretionary with the court.1 In states where the administrator is entitled to the possession of real estate, he is entitled to commissions on the appraised value thereof.2 On the sale of realty subject to an incumbrance, he is only entitled to a commission on the balance of the price remaining after deducting the amount of the incumbrance.3 An administrator of the estate of a deceased partner who administers on the partnership estate is entitled to his regular statutory commissions on partnership assets coming into his hands.4 The representative is not entitled to commissions on claims collected by him which are afterwards held not to belong to the estate,5 nor on the amount of a mortgage which is paid off and satisfied by giving the holder trust certificates secured by a new mortgage.6

Footnote 123: http://www.math.wisc.edu/~h 5 Cur. Law. ESTATES OF DECEDENTS SS 9F. 1249

But this does not apply where the will expressly provides that such compensation shall be in addition to that allowed by the statute, in which case he is entitled to both.\[11\] So long as one remains an executor, he is entitled to the compensation provided by the will.\[12\] If the will provides for an annual stipend, deficiencies due to failure of income may be made up from excess income in other years.\[13\]

Commissions will generally, but not necessarily, be divided equally among several executors, or administrators.\[14\] In such case a gross sum should be allowed to all, and the court should not attempt to distinguish between their services, or determine how much each or any of them may have earned,\[15\] though in some states commissions must be apportioned among the representatives according to the services rendered by each.\[16\]

The representative may waive his statutory compensation,\[17\] and if his acts purport to be done gratuitously, no claim for payment can be founded on them at a later date.\[18\]

In some states the public administrator receives a salary and is required to pay all fees received by him into the county treasury.\[19\] In such case he is not entitled to retain the fees allowed him for services rendered after the expiration of his term of office, but such services will be deemed voluntary.\[20\] In other states he is entitled to the same commissions as an ordinary representative.\[21\]

Executors and administrators have no absolute right to commissions until they are determined upon and awarded by the proper court on a judicial settlement of their accounts,\[22\] and the assignment by an executor of his fees before they are earned is void as contrary to public policy.\[28\]

a written Instrument filed with the surro-

Law. Ed. 369. Where order was made by state. In re Sprague, 94 N. Y. S. 84

consent of all parties that assets should remain in the custody of the court and that 12, 18. Married v. McMcurdy, 25 App. D. C. 342.

I. Griswold v. Smith, 214 Ill. 323, 73 N.

E. 400. See 116 Ill. App. 223.

I. Griswold v. Smith, 116 Ill. App. 223,

I.G. Loseis County Laws 1897, 0. 577,

app. dism? 314 Ill. 323, 73 N. E. 400.

16. Code Civ. Proc. $ 159, subd. 10, and $ 215, 216, 217, control

where the estate is worth more than $100,000, and there is more than $100,000, and there is more than one representative,

shall receive the same compensation and a full commission shall be allowed for each allowances as are allowed to other admin-

of them, not to exceed three, and the gross sum so allowed shall be apportioned among

146 Cal. 590, 80 P. 861.

them according to the services rendered by each. In re McCormick, 94 N. Y. S. 1071;

to state his accounts to the close of his

In re Arnton, 94 N. Y. S. 471. The number of

executors or administrators to whom an al-

lowance can be made under this section 18 the number who are such at the time of the

the judicial settlement, and not those who may

have been such at any prior time, and who,

for any cause, are no longer before the court

as such. In re McCormick, 94 N. Y. S. 1071.

Hence where three executors were named in

the will and only two qualified, and one of

them died before settlement, only one full commission can be allowed to the survivor.

Id. Where there were two executors, both

of whom took part in the work and shared

in the responsibility, held, that commissions

should have been equally divided between

them. In re Arnton, 94 N. Y. S. 471.

**17.** McIntire v. McIntire, 192 U. S. 116,

48 Law. Ed. 369. Record must show an agree-

ment to do so. Letters and other evidence

held not to show waiver of fees. Noble v.

Whitten \[Wash\] 80 P. 451.

**18.** McIntire v. McIntire, 192 U. S. 116, 48

5 Curr. L.--?q.

Law. Ed. 369. Where order was made by

consent of all parties that assets should remain in the custody of the court and that

the administrator should act without commissions, held, that he was not entitled to

commissions, though the assets were restored to him under a subsequent order on his

15. Griswold v. Smith, 116 Ill. App. 223,

I.G. Loseis County Laws 1897, 0. 577,

app. dism? 314 Ill. 323, 73 N. E. 400.

16. Code Civ. Proc. $ 159, subd. 10, and $ 215, 216, 217, control

where the estate is worth more than $100,000,

Code Civ. Proc. $ 1618, providing that he

and there is more than one representative,

shall receive the same compensation and

a full commission shall be allowed for each allowances as are allowed to other admin- Statutory commissions may be denied for misconduct.24 The approval of an executor's final report and the distribution of the estate does not debar him from his right to fees provided he asserts it during the term at which his final report is allowed.25 On appeal from an order setting aside an ev-eutor's semi-annual account and revoking his letters, it will be presumed that, on final settlement of the estate he will be allowed proper compensation for his services, there being nothing in regard to the matter in the orders appealed from.26

(SS 9) \_G. Rights and liabilities of sureties and actions on bonds.27--\_The sureties on the representative's bond are only responsible for his faithful performance of the duties imposed upon him by law in his representative capacity.28 They are liable for all breaches by him of its conditions,29 including his failure to account for assets in his hands at the time of his removal,30 and for the value of property obtained and converted by him under the mistaken belief that it belonged to the estate.31

As a general rule the sureties of a representative who is indebted to the estate are chargeable with the amount of the debt,32 but in most states this does not apply where the representative is insolvent at the time of his appointment, and continues to be so until his discharge.33

death should be used as a basis for computing commissions at one-half rate for re-

can Bonding & Trust Co. v. United States,

ceiving. Id. Right depends.upon the ren-

28 App. D. C. 535. Evidence in action by ad-

dition of the services and the settlement of

his account. Code Civ. Proc. $ 2730. Executor not entitled to claim or be paid commissions until the will has been proved, let

that, on the settlement of his account, the

in the hands of such administrator on

the will have been proved, let

there to and passed upon by the surro-

gally admitted. Bailey v. McAlpin \[Ga.\] 50

gate. Oakeshott v. Smith, 93 N. Y. S. 659.

23. Oakeshott v. Smith, 93 N. Y. S. 659.

01. Denfed for maladmirastrion in paying

ing claims which had not been proved. State

v. Taylor \[Mo. App.\] $ 87. W. 7. Surrogate

may deny them in his discretion, notwithstanding Code Civ. Proc. $ 2730, providing

that, on the settlement of his account, the

surrogate must allow him the commissions

fixed by law. In ref. Gal, 95 N. Y. S. 124.

Administatrix deprived of all commissions

and costs because of misconduct. Allowance

by surrogate reversed, Id. Where no misconduct or improper

duct or improper management of the estate

is shown, it is error to allow the executor

only half his legal commissions and to

charge him personally with costs, on the

theory that he made out his account in the

manner he did for the purpose of getting

commissions to which he was not entitled.

In re Dutcher, 102 App. Div. 410, 92 N. Y. S. 418.

25. Evidence held to show that he did

not intend to waive right. No time being

fixed for allowance, it may be made after ap-

proval of the final report as well as before.

Griswald v. Smith, 116 Ill. App. 223, app.

dism?d 214 Ill. 323, 73 N. E. 400.

26. In re Courtney's Estate \[Mont.\] 79

P. 317.

27. See 3 C. L. 1297.

01. Not responsible for misapplication

of proceeds of insurance policies payable to

the administrators for the benefit of the

widow. Administrator takes fund as agent

and trustee of widow and not as assets of

the estate. Nickakis v. Stanley \[Cal.\] $1 P.

117.

001. Evidence held sufficient to show a

breach of an administrator's bond. Ameri-

can Bonding & Trust Co. v. United States,

ceiving. Id. Right depends.upon the ren-

28 App. D. C. 535. Evidence in action by ad-

ministrator de bonis non against a former

his account. Code Civ. Proc. $ 2730. Executor not entitled to claim or be paid commissions until the will has been proved, let

has removal, held to demand the verdict

terstententary issued, and his account

premented to and passed upon by the surro-

gally admitted. Bailey v. McAlpin \[Ga.\] 50

gate. Oakeshott v. Smith, 93 N. Y. S. 659.

**NOTE.** **Subrogation In favor of sureties:**

Sureties on bonds of executors and adminis

tratraps are entitled to be subrogated to the

v. Taylor \[Mo. App.\] $ 87. W. 7. Surrogate

may deny them in his discretion, notwithstanding Code Civ. Proc. $ 2730, providing

that, on the settlement of his account, the

the commissioning of creditors (Pierce v. Holzer, 65

fixed by law. In ref. Gal, 95 N. Y. S. 124.

Administatrix deprived of all commissions

and costs because of misconduct. Allowance

by surrogate reversed, Id. Where no misconduct

duct or improper management of the estate

is shown, it is error to allow the executor

only half his legal commissions and to

charge him personally with costs, on the

theory that he made out his account 5 Cur. Law. ESTATES of DECEDENTS SS 96. 1851

A surety on the bond of an administrator of an insolvent estate who has been guilty of maladministration is liable to a creditor of the estate only for the difference between what he received and what he would have received but for the maladministration.${}^{34}$

A county administrator who has been appointed administrator of an estate and has not been required to give a bond in addition to that which he has given as county administrator, is liable upon the latter under the same circumstances and to the same extent as if the bond had been given in the particular case, and the remedies upon such bond are the same that would be allowed to those interested upon an ordinary administrator's bond.${}^{35}$ So far as persons interested in the administration of estates vested in him are concerned, his bond is to be treated as one given for the faithful performance of his duties as administrator of each estate, and any person aggrieved by his conduct as administrator of a particular estate may bring suit thereon.${}^{36}$ It is not necessary, in such case, that other persons who may have been aggrieved on account of his administration of other estates should be joined in the action.${}^{37}$ A recovery in such action for a sum less than the full penalty of the bond does not exhaust all remedies thereon but persons interested in other estates who may be aggrieved by the administrator's conduct may bring other suits and recover other judgments until the full penalty in the bond has been exhausted.${}^{38}$

An administrator de bonis non may maintain an action against his predecessor and the sureties on his bond to compel them to account for property of the estate not turned over to him.${}^{39}$ The same is true of a county administrator, who has been appointed administrator de bonis non of an estate, and he may call to account a former county administrator, who was appointed administrator of the same estate and removed, by suing him and the sureties on his official bond.${}^{40}$ In a suit by the ordinary on such a bond for the use of the administrator de bonis non of an estate of which such county administrator has been administrator, the court will take judicial notice of the fact that he is the incumbent of such office.${}^{41}$

In some states it is not necessary, as a condition precedent to a suit on the bond, to establish against the principal either a liability in his representative capacity or a devastativt by him.${}^{42}$ In others an action cannot be maintained against the sureties of authority as to the liability of the sure-

Jan (Sanders v. Dodge \[Mich.\] 12 Det. Leg.

tes in such cases where the representative

N. 187, 108 N. W. 597).--From note to 61 L.

was insolvent at the time of his appointment. A. 313; note to 61 Am. Dec. 521; 18 Harv.

ment and continues to be so until his

Law Rev. 394; 3 C. L. 1299; 1 C. L. 1118;

discharge. They have been held liable in

Massachusetts (Lealam v. Felton, 1 Allen,

35, 36, 37, 58, 39, 40. Bailey v. McAlpin

531; Kinney v. Knesign, 18 Pick. 232; Stevens

(Ga. 50 S. E. 388, 39, 40. Bailey v. McAlpin

v. Gaylord, 11 Mass. 256; Chapin v. Waters,

41. Where it is alleged that he ls ordi-

110 Mass. 195; Winshub y. Bass, 12 Mass. 198),

nary, no averment as to his election and

New Hampshire (Judge of Probe v. Sul-

qualification is necessary. Bailey v. Mc-

lowway, 68 N. H. 511, 44 A. 720, 73 Am. St.

Alpin \[Ga.\] 50 S. E. 288.

Rep. 619, 49 L. R. A. 347), Alabama (Vrigth

42. Cir. Code 1855, **SS 2536**, 3398, 3501-

v. Lang, 66 Ala. 88), Ohio McGuehcy v. 3504.

Suit by administrator de bonis non to

Jacoby, 54 Ohio St. 487, 44 N. E. 231) and

recover funds.not turned over by his prede-

Maryland (Lambrecht v. Stato, 57 M. 240).

cessor on revocation of his letters. Bailey

A contrary rule prevails in California (Pa v. McAlpin \[Ga.\] 50 S. E. 388. Code 1863,

re Walker, 125 Cal. 242, 57 P. 991, 73 Am. St.

8 Z476, providing that no prior judgment

Rep. 40), Indiana (State v. Gregory, 119 Ind.

505, 21 N. E. 1), Kentucky (Buckel v. Smith\*)

"or" a devastativt by him shall be necessary

Admar't, 26 Ky. L. R. 991, 82 S. W. 1001), New

before suit against the sureties on the bond.

York (Daucus v. Stover, 88 N. Y. 1, 467, 107 is included in all subsequent Codes, including

N. Y. 624, of an executor or administrator for breach of the bond until the probate court has, by order or decree, fixed the liability of the representative.\[48\] In others a judgment must first be recovered against the representative, an execution issued, and a return of nulla bona made.\[44\] In the latter case such a judgment or decree is conclusive evidence of the debt as against the sureties.\[45\]

Actions on bonds must, of course, be brought within the time fixed by the statute of limitations.\[46\] No demand on the administrator or the sureties is necessary as a condition precedent to the owner's right to sue the sureties for the value of property obtained and converted by the administrator under the mistaken belief that it belonged to the estate.\[47\]

Plaintiff having alleged the execution of the bond and its breach need not, as against a general demurrer, allege its condition.\[48\] A petition alleging the administrator's failure to inventory and account for all the assets of the estate in his hands and the conversion of a part of them to his own use, states a cause of action.\[49\] A statement of claim against a surety on a bond given to secure the proper distribution of the proceeds of a sale of real estate must aver that the award made by the orphans' court and claimed by plaintiff was a portion of the proceeds of such sale.\[50\]

The exoneration of the administrator from personal liability on judgments where the estate was subsequently declared insolvent is immaterial and not a defense to his sureties when sued because of his failure to pay; in such a case the proper plea is want of assets.\[51\] While want of assets is a defense to suretyship, want of "sufficient assets" is not.\[52\]

In a suit by an administrator de bonis non against his predecessor, who had been removed, and the sureties on his bond, evidence showing that the principal had, during the time of his administration, received assets, and had, after his removal, failed and refused, upon demand, to deliver them to his successor, establishes a prima facie liability on the bond.\[58\] Admissions made by the legal representative of an estate, after his letters have been revoked, are inadmissible against the surety.\[54\] The return of the administrator charging himself with assets and crediting himself with payments and showing on its face a balance due by him to the estate, is prima facie evidence, both against him and his sureties, as to the amount in his hands appearing therefrom.\[45\] The liability of the sureties cannot be terminated by the filing of a void bond as a substitute for the original.\[58\] In states where a release of one of two or more joint debtors does not extinguish the obligation of any of the others, an order releasing a surety upon application of the heirs at law does not release a co-

Id. Rulings on this question in Henderson v. Levy, 52 Ga. 35, and Richardson v. Whitworth, 103 Ga. 741, will not be followed as they are in conflict with that in Morgan v. West, 43 Ga. 276. Id. 43. Nickals v. Stanley \[Cal.\] 81 P. 117. 44. Act Maryland, 1720, requiring that before an action be maintained on an administrator's bond, after recovery of judgment against the administrator, execution must have been returned nulla bona, is satisfied where return is made the day after issue upon the order of plaintiff's attorney. American Bonding & Trust Co. v. United States, 23 App. D. C. 535. 45. American Bonding & Trust Co. v. United States, 23 App. D. C. 535. 46. A distribute who is a nonresident infant at the time of distribution has five years after reaching his majority in which one is forced his right to a share of the estate by suit on the executor's official bond, under 5. Cur. Law. ESTATES OF DECEDENTS SS 10. 1253

surety.${}^{57}$ Sureties of an administrator or trustee who wrongfully applies a trust fund with the acquiescence of the beneficiary are released from liability to the beneficiary.${}^{58}$

A bond given by an executor and residuary legatee to pay debts and legacies so as to relieve himself from the necessity of accounting is not invalidated because it contains a provision requiring him to account.${}^{59}$ It is no defense to an action on such a bond that the executor is ready and willing to apply such assets as he has received to that purpose.${}^{68}$ A legate is not bound to obtain judgment against the executor before suing on the bond.${}^{61}$

SS 10. \_Actions by and against representatives and costs therein.${}^{62}$--\_The personal representative is the only person entitled to represent the estate as such in litigation.${}^{68}$ His capacity in this respect is official and not personal.${}^{64}$

Upon the death of a party to an action, it may generally be revived by or against his executor or administrator,${}^{65}$ and the exclusive remedy for proof of claims does not apply.${}^{66}$ After the death of defendant has been suggested, and a motion has been made to revive the cause in the name of his administrator, the latter's appearance in filing an answer in which he alleges that he is the administrator, and that the cause has been revived in his name, is equivalent to a waiver of summons and a formal order of revivor.${}^{67}$ Because his capacity is representative only, he is not a necessary party unless some interest or title is affected which he represents, but may be a proper one.${}^{68}$ One of two co-executors alleged to have interests inimical

ST. Code Civ. Proc. & 1548, has this effect, though $ 1403 authorizes the release of by complaint and summons and requiring a surety only on his own application. Ellizabeth v. Murphy, 146 Cal. 168, 79 P. 866.

SSs. Estate of Koehnken, & Ohio C. C. commenced before the death of the deceased, nor prevent their prosecution by or against his representatives. Burns' Ann. St. 1901, $ 2465; Newman v. Gates (Ind.) 72 N. E. separable may be disregarded. Probate Court v. Adams \[R. L\] 60 A. 769.

60. Such he not the legal condition of the bank on a counterclaim, and one of the bond. Probate Court v. Adams \[R. L\] 60 A. 769.

01. Obligation to pay ls absolute and amount is fixed by the will. Probate Court v. Adams \[R. L\] 60 A. 769.

01. See $ 0. L. 1301.

01. There is no person in existence to bring an action in favor of the estate of a decedent, arising after his death, until an executor or administrator is appointed, and hence limitations do not begin to run until such appointment. Right of representative of deceased partner to compel surviving where the equity of redemption is of any partner and representatives of another deceased partner to account. Stehn v. Hayssen \[Toh.\] 72 N. N. E. 638. See $ 0. N. E 468.

01. See $ 0. L. 1301.

01. There is no person in existence to bring an action in favor of the estate of a decedent, arising after his death, until an executor or administrator is appointed, and hence limitations do not begin to run until such appointment. Right of representative of deceased partner to compel surviving where the equity of redemption is of any partner and representatives of another deceased partner to account. Stehn v. Hayssen \[Toh.\] 72 N. N. E. 638. The representative of a decensed maker of a note is not a necessary party to a bill in equity by two other pur-authorized to sue when the cause of action accrues cannot extend the time within which void on the ground that their signatures the action may be brought to more than double the period otherwise provided by the election (Hitterhoff v. Puget Sound Nat. law. Rev. St. 1898, $ 4251. If. Statute canh; 37 Wash. 76, 79 P. 601), nor is the not be taken advantage of unless pleaded.

01. An exemption from service of propossibilities of a decensed or a nonresident who comes into a state is $ 448, 448, providing that where parties as a witness, ls personal and does not apply are jointly and severally bound on the same institute, they may all, or any part of them, be used in the same action. Brannon \[Ky.\] 87 S. W. 763; Id. \[Ky.\] 87 S. W. 1101.

01. See Abatement and Revival, $ 0. L. 1301.

01. A statute prohibiting the bringing to those of the estate cannot be joined as a party plaintiff in his representative capacity in a suit for the benefit of the estate, but should be made a party defendant in his individual capacity.\[99\] Though he may have, in the first instance, been made a defendant, if it appears at the trial that he really has no interest in the outcome of the litigation, he may, on the death of his co-executor after the case has been appealed, be substituted in his stead as the party entitled to represent the interests of the estate.\[70\] An administratrix suing the heirs at law to compel them to specifically perform decedent's contract for the sale of reality may join herself, in her personal right as one of the heirs, as a complainant.\[11\] A defendant to a bill for partition who becomes an administrator after it is filed cannot complain that he was not made a party in his official capacity, in the absence of an application therefor.\[72\]

Actions brought by or against one described as administrator or executor of a certain estate are generally presumed to be actions by or against him in his own right, the additional words being description personae,\[73\] but this rule does not apply where it would be impossible under the pleadings for a judgment to be rendered for or against him individually, or for him to have a personal interest in the subject-matter of the proceedings,\[74\] nor where on appeal the case is tried as one against him in his representative capacity.\[75\] Where the will devises reality in trust to executors, a complaint containing a copy of the will, and showing that as executors defendants have accepted the trusts created by the will, is not demurrable for failure to add the words "as trustees" to the statement of the representative capacity of defendants in the caption.\[76\]

One suing as administrator can only recover for the use and benefit of the estate he represents, or, in certain cases, for the benefit of the next of kin of the decedent.\[77\] One suing a representative in his official capacity cannot amend so as to state a cause of action against him individually,\[78\] nor can one suing on a quantum merit for 5 Cur. Law. ESTATES of DECEDENTS SS 10.

services rendered decedent amend so as to seek a recovery on an express contract made with decedent's widow after his death." If plaintiff sues as an administrator only, he cannot, in the absence of an amendment, be treated as having sued as trustee of an express trust."

Where an administrator is, by order of court, made a party to a suit commenced by his decedent, no allegation of his official capacity is necessary." A denial that plaintiff was duly appointed administatrix as alleged in the complaint raises the issue of jurisdiction, involving as it does the right of the court to issue the letters." In Texas in order to put in issue the legal capacity of the representative tosue, defendant must deny the same under oath."

The probate proceedings " and the letters are admissible to prove the authority of plaintiff to prosecute the suit," and the production of letters is sufficient proof of capacity to sue in the absence of proof of want of jurisdiction in the court granting them." Proof of capacity may be waived by appearance." Where special letters are presented, limiting the power of the administrator to specific property of the intestine, his power will not be extended beyond them."

An executor cannot join his individual claim for rent, as devisee, with a claim in his representative capacity for rent which had accrued during the lifetime of his testator," nor can the grantee in a security deced join in the same action a suit against the widow of the deceased grantor to recover the land described in the deced, and a suit against the administrator of the grantor's estate to recover a judgment on the debt secured by the deced." A complaint showing a good cause of action in plaintiff in his individual capacity and another in his representative capacity, both growing out of the same contract, and demanding specific performance and damages for a breach, is not demurrable."

on appeal so as to allow judgment to be entered against her individually. Renwick v. Horges, 121 Ga. 758, 49 S. E. 775.

Garland \[CaL. App.\] 82 P. 89.

79. One suing the widow who has taken possession of the estate as sole her and without administration, on a quantum merit for services for which deceased agreed to compensate him out of his estate, cannot amend by seeking to recover upon an express contract made with the widow after the husband's death to pay a given sum for such services. Moore v. Smith, 121 Ga. 479, 49 S. E. 601.

01. Sommer v. Franklin Bank, 108 Mo. App. 490, 83 S. W. 1025.

01. Noyes v. Young \[Mont.\] 79 P. 1063.

01. Under Code Civ. Proc. $ 532, providing that if an allegation that a judgment of a court of special jurisdiction was duly given is denied, the party alleging it must show the facts conferring jurisdiction. Ziemer v. Crucible Steel Co., 98 App. Div. 189, 90 N. Y. S. 962.

01. Rev. St. 1895, art. 1265, cl. 2. Young v. Meredith \[Tex. Civ. App.\] 85 S. W. 32.

01. Where one's righth, as community administration of the estate of herself and her deceased husband, to prosecute an action is put in issue, the probate proceedings appointing her are admissible. Rogers v. Tompkins \[Tex. Civ. App.\] 87 S. W. 379.

01. Heid no error in admitting in evidence a paper purporting on its face to:be letters of administration issued to plaintiff over the objection that it did not show on its face whether it was an original or a copy. Defendants at liberty to show by evidence that An answer in a suit by a public administrator to recover property assigned to defendant by decedent before his death, alleging the assignment and that defendant was disposing of the property in accordance with the request of decedent made after such assignment does not estop him from alleging in a subsequent suit brought by the distributes to compel him to account for the property from relying on a defense of absolute ownership by virtue of the assignment."

As a general rule an executor or administrator cannot maintain an action as such in the courts of any sovereignty other than that under which he was appointed and qualified without obtaining an ancillary grant of letters in the state where the action is brought," but this does not apply to a case where the cause of action declared on is one involving an assertion of his own right rather than one of the deceased, or is one which has accrued directly to him through his contract or transaction and which was not originally an asset of the estate." The rule has been changed by statute in many states." The foreign representative is, however, generally first required to file an authenticated copy of his letters." His failure to do so goes to his capacity to sue and is waived unless taken advantage of by demurrer, if it affirmatively appears on the face of the complaint, or by answer, if it does not so appear." So, too, when incapacity because of nonresidence is apparent on the face of the complaint, it is waived unless taken advantage of by special demurrer, and when so waived cannot be taken advantage of after judgment in his favor."

In the absence of a statute to the contrary, an executor or administrator cannot be sued in a state other than of his appointment, at least where he has taken no steps to recover assets there located," nor can a foreign executor or administrator be substituted for a party who dies during the pendency of an action.1

1. 92. Mussman v. Zeller, 108 Mo. App. 348, 83 S. W. 1021.
1. 93. Unless its laws permit him to do so. Moore v. Petty \[C. C. A.I 135 F. 668; Taylor v. McKee, 121 Ga. 223, 48 S. E. 943. A foreign administrator has no legal capacity to sue. Sommer v. Franklin Bank, 108 Mo. App. 490, 83 S. W. 1025. Foreign executor cannot sue to set aside fraudulent conveyances. Downey v. Owen, 98 App. Div. X. F. 280.
1. 94. In such case may sue in his personal capacity, and, if he sues as executor or administrator, the words so describing him may be regarded as merely descriptive, and rejected as surplusage. Moore v. Petty \[C. C. A.I 135 F. 668. Thus he may sue on cause of action to recover, from agents employed by him, the proceeds of a sale of reality belonging to the estate. Id.
1. 95. Arkansas Under Kirby's Dig. $ 6008, permitting a foreign administrator to sue in the courts of the state, a married woman who is competent to act as administrator in the state of her appointment may maintain an action though she marrled subsequent to her appointment. St. Louis, etc., R. Co. v. Cleere \[Ark.\] 88 S. W. 955.

In Georgia to authorize a foreign executor or administrator to sue it must appear that his decedent was, at the time of his death, domicled in the state where letters testamentary or of administration were granted, and that no administrator or executor has been appointed in the state where the action is brought. Civ. Code 1895, $ 3521. Taylor v. McKee, 121 Ga. 223, 48 S. E. 943.

In Illinois a foreign administrator may maintain an action for the unlawful death of 5 Cur. Law. ESTATES OF DECEDENTS SS 10. 1257

In New York an execution cannot issue upon a judgment for a sum of money against an executor or administrator in the representative capacity until an order permitting it to be issued has been made by the surrogate from whose court the letters were issued.2 To obtain such an order, the petitioner must show either that the representative has funds of the estate on hand applicable to the payment of the judgment which he refuses to apply, or that funds which should have been devoted to its payment have been misapplied.3 If it appears that the assets, after payment of all sums chargeable against them for expenses and for claims entitled fo priority as against the plaintiff are not, or will not be, sufficient to pay all the debts, legacies, or other claims of the class to which that of the plaintiff belongs, the sum directed to be collected by the execution must not exceed the plaintiff's just proportion of the assets.4 On application being made to the surrogate for such an order, he may, in his discretion, require the representative to make an intermediate account.5

Footnote 4: The author is grateful to the anonymous referee for the support of the manuscript.

\_Costs and counsel fees.\_5--Costs and reasonable counsel fees, payable out of the estate, will be allowed for services rendered for the benefit of those who take the fund in litigation.7 The costs of a contest between a device and an administrator concerning the right of the latter to continue the administration, which results in a revocation of the letters, are properly taxed against the administrator personally.8 So, too, an executor is properly required to pay a portion of the costs of litigation resulting largely from personal claims advanced by him which are not sustained.9 Where, on the death of complainant pending suit, her legates, devisees, and executrix are substituted as complainants, no part of the costs should be taxed against the estate or the executrix.10 The attorney's fees, costs, and expenses of an heir who successfully prosecutes an action for the removal of the executors, are not payable out of the estate, though he is afterwards appointed special administrator.11

Footnote 29: The author is grateful certain property absolutely and only her life estate in certain securities belonging to the estate, and the decree refers the cause for an accounting, the court has power to make an allowance to an attorney rendering services in support of the deed.\[13\]

In Wisconsin costs in actions by or against representatives are chargeable against the estate, unless the court directs that they be paid by the representative personally, on account of his mismanagement or bad faith.\[14\]

In North Carolina, in a suit on a claim, no costs are recoverable against an executor, administrator, or collector unless it appears that payment was unreasonably delayed or neglected, or that the defendant refused to refer the matter in controversy, in which cases it is discretionary with the court to award the costs either against defendant personally or against the estate.\[15\] The burden is on plaintiff to bring himself within the exceptions.\[16\] Where there is a material reduction between the claim presented and the amount allowed at the trial, refusal to pay it is not regarded as unreasonable.\[17\]

SS 11. _Accounting and settlement by representatives. A. The right and duty.\[18\]_--As a general rule an administrator or executor can only be compelled to account by the courts of the state in which he was appointed,\[19\] but in case he removes a portion of the assets into a foreign state and there invests them, the equity courts of that state may require him to account therefor and decree their distribution.\[20\] Unexplained laches is a bar to the suit.\[21\]

Since an executor is a trustee for the benefit of those entitled to the decedent's property under the will, limitations do not begin to run against his liability to account therefor until he repudiates his trust by some act sufficient for the purpose.\[22\] If he relies on limitations he must allege in his answer both the requisite lapse of time and that such lapse occurred after his repudiation of the trust.\[23\]

The executor or administrator of a deceased representative is generally required to render a final account of the latter's administration within a certain time after his appointment.\[24\] In an action to compel the representative of a deceased executor to account for funds alleged to have come into the latter's hands in his official 5 Cur. Law. ESTATES OF DECEDENTS SS 11C. 1259 capacity, the contestants must show by competent proof the amount of the estate in the hands of the decedent as executor or trustee, and his representative is chargeable only for the amount thus found to have been in his hands.\[25\] In order to have accounting as incident to other relief defendant must have had the estate as personal representative or in privity to him.\[25\] In some states an executor who is also residuary legatee may relieve himself from the necessity of accounting by giving bond for the payment of the debts and legacies.\[27\] (SS 11) \_B. Who may require.\[28\]--\_As a general rule any one interested in the estate may compel an accounting by the representative.\[29\] The administrator de bonis non with the will annexed is the proper party to call on the administrator of a deceased executor to account for any funds belonging to the estate of the testator in the hands of the latter.\[30\] (SS 11) \_C. Scope and contents of account.\[31\]--\_The account should be itemized,\[32\] and should ordinarily be accompanied by vouchers covering all expenditures.\[33\] No vouchers are necessary for interest paid to the widow in accordance with the provisions of the will.\[34\] In case the representative is charged with rents collected and retained by one entitled to them under the will, he should also be credited with an equal amount.\[35\] Beneficiaries cannot take advantage of the fact that executors, by mistake, charge themselves with a fund for which they are not liable to account.\[36\] The fact that credits allowed the public administration.,tor in one of three estates which he represents would more properly have appeared in the settlement of another one of them is not prejudicial where the exceptors are the sole beneficiaries, in the same proportions, in both estates.\[37\] The court is not precluded from settling the account because it does not show what property or estate is in the possession of the executor.\[38\] 25. Farmers' Loan & Trust Co. v. Pendleton, 179 N. Y. 486, 72 N. E. 508, rvg. 90 App. Div. 607, 85 N. Y. S. 113, 75 N. Y. S. 294, 11 N. Y. S. 294, 11 N. Y. S. 295, 11 N. Y. S. 296, 11 N. Y. S. 304, 11 N. Y. S. 297, 11 N. Y. S. 310, 11 N. Y. S. 320, 11 N. Y. S. 331, 11 N. Y. S. 34, 11 N. Y. S. 351, 11 N. Y. S. 361, 11 N. Y. S. 37, 11 N. Y. S. 381, 11 N. Y. S. 394, 11 N. Y. S. 382, 11 N. Y. S. 395, 11 N. Y. S. 306, 11 N. Y. S. 311, 11 N. Y. S. 307, 11 N. Y. S. 312, 11 N. Y. S. 321, 11 N. Y. S. 332, 11 N. Y. S. 34, 11 N. Y. S. 352, 11 N. Y. S. 363, 11 N. Y. S. 37, 11 N. Y. S. 383, 11 N. Y. S. 396, 11 N. Y. S. 397, 11 N. Y. S. 308, 11 N. Y. S. 313, 11 N. Y. S. 314, 11 N. Y. S. 322, 11 N. Y. S. 333, 11 N. Y. S. 34, 11 N. Y. S. 353, 11 N. Y. S. 364, 11 N. Y. S. 37, 11 N. Y. S. 385, 11 N. Y. S. 396, 11 N. Y. S. 397, 11 N. Y. S. 398, 11 N. Y. S. 309, 11 N. Y. S. 310, 11 N. Y. S. 311, 11 N. Y. S. 312, 11 N. Y. S. 313, 11 N. Y. S. 314, 11 N. Y. S. 315, 11 N. Y. S. 316, 11 N. Y. S. 317, 11 N. Y. S. 318, 11 N. Y. S. 319, 11 N. Y. S. 320, 11 N. Y. S. 321, 11 N. Y. S. 322, 11 N. Y. S. 323, 11 N. Y. S. 324, 11 N. Y. S. 325, 11 N. Y. S. 326, 11 N. Y. S. 327, 11 N. Y. S. 328, 11 N. Y. S. 329, 11 N. Y. S. 330, 11 N. Y. S. 340, 11 N. Y. S. 351, 11 N. Y. S.

After an account is homological except so far as opposed, the opponent may raise all questions involved in his rights as pleaded and may even amend if he does not change the issues.\* When a rule to vacate letters is dismissed, the question cannot be determined on an opposition to the account, notwithstanding the opposition was grounded on the pendency of the rule.40

Intermediate accounts are only for the purpose of informing the court and the interested parties of the receipts and disbursements and changes in the property from time to time, and it is not necessary for each of them to contain a full inventory of the assets of the estate.41

(SS 11) \_D. Procedure.42--\_One who as administrator takes what does not belong to the estate may be required to answer for it either by direct action or by accounting.43 On the judicial settlement of the representative's account, all persons interested in the estate, though not cited, are entitled to appear on the hearing and make themselves parties to the proceedings.44 On final accounting it is not necessary to cite illegitimate relatives of decedent, or persons holding disputed assignments of interests in the estate.45 In New York as a general rule, where application is made to the surrogate for permission to appear and file objections to the representative's accounts, he may examine into the question of whether the applicant is interested in the estate, and if necessary, send the issue to a referee, in proper cases.46 But where he can see from the moving papers that a real question is presented, involving the right of the applicant and the other heirs and next of kin to participate in the distribution of a portion of the estate, he should reserve the question until the hearing of the account, when all interested parties will be present.47 One who fails to appear in response to a citation, because she does not then know of her interest as heir, is entitled, on motion, to open her default, and to appear and litigate her claim.48

'The report of the representative and an exception thereto stand as the complaint and answer of the respective parties, and the cause is to be tried upon the issue thus raised.48 As a general rule an interested party desiring to contest the account is re-

3S. In re Carpenter's Estate, 146 Cal. 661, 80 P. 1072.

39. Opposition to a charge for rents collected admits of a supplemental opposition that opponent paid taxes and made repairs.

Succession of Sangfried \[La.\] 38 So. 593.

40. Succession of Thomas \[La.\] 34 So. 519.

01. Account held to sufficiently comply with Code Civ. Proc. $ 2780 et seq. In re Davis'Estate \[Mont.\] 78 P. 704.

01. See 3 C. L. 1306.

01. The public administrator caused him-self to be appointed dative testamentary executor of a succession, which had been closed by the sending of the heir into possession, and he, as such dative testamentary executor, took into his possession funds not belonging to that succession. Casey v. Abraham, 113 La. 581, 37 So. 484.

01. Code Civ. Proc. $ 2728. In re St. John, 34 Civ. Proc. R. 279, 93 N. Y. S. 836. By $ 2514, subd. 11, a person interested includes every person entitled, either absolutely or contin-gently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legate, next of kin, heir, devisee, assignee, grantee or otherwise, except as a creditor. Id. Includes next of kin whose right to share in the estate depends upon the determination of a disputed question as to the survivorship of three persons who persisted in a common disaster. Id.; In re St. John, 93 N. Y. S. 840.

01. In re St. John, 93 N. Y. S. 840.

01. Spray v. Bertram \[Ind.\] 74 N. E. 592.

Where exceptors alleged the existence of a written contract between all the next of kin making it improper to charge them with advancements, the administrator was not obliged to file a plea of non est factum to put them to their proof as to the existence of such contract. Id.

5 Cur. Law.ESTATES of DECEDENTS SS 11D.1261

quired to file his exceptions thereto in writing, setting out specifically the grounds of his objections, and is limited on the hearing to the exceptions so presented." The rule that in the absence of exceptions the court may inquire into any matter in the settlement of the account which may seem objectionable, and may pass judgment thereon does not apply to any matter by which it is sought to impose a penalty on the representative, nor to cases where the parties have appeared and made their objections in writing."

In Wisconsin, whether the final account is contested or not, the county court must be satisfied of its correctness before allowing it, and must not allow it of course." Where specific objections are filed, the burden is on the representative to justify the allowance."

Beneficiaries cannot object to the accounts on the ground that they have received more than they are entitled to," or because other beneficiaries have received less than they are entitled to."

A par to a contest in the probate court, upon an administrator's account, is not entitled to a jury trial."

Statutes disqualifying judges on account of prejudice have been held applicable to probate proceedings on motion to confirm the report of a referee on objections to an executor's account."

The practice of raising purely legal questions by demurrer is not applicable to probate courts."

The account itself is not evidence of contested items."

The report and findings of a referee, to whom an account is referred for the purpose of examining it and the objections thereto and making report thereon, are merely advisory, and the court may modify, adopt, or disapprove them as he sees fit, or may take further testimony and make findings of its own on which to base its orders." An exception to a report on the ground that the auditor erred in not allowing a specified credit is properly overruled, where it clearly appears from the report of the evidence that the representative is not entitled thereto."

On appeal from the allowance of the administrator's account, where the applicant desires the administrator to produce books of account, he should procure a subpoena duces team or order to produce." It is proper for the court on appeal to al low amendments and additions to the account presented for settlement, in further-ance of justice.\[68\]

(SS 11) \_E. The decree or order.\[64\]--\_The settlement of the estate is completed by the settlement and acceptance of the administrator's final account.\[65\]

The order settling the account need not necessarily set forth the then condition of the estate, nor need it show the property and estate on hand, with its value.\[66\]

The decree need not in any way affect the manner of the distribution of the estate, and hence it is not necessarily error to make such a decree pending an appeal from a decree of partial distribution.\[67\]

A decree settling the balance due in the executor's hands on final accounting is not an exercise of the jurisdiction of the court to construre the will on application for distribution, and does not prevent the executor from subsequently claiming the right to turn over securities in payment of legacies instead of paying them in cash.\[68\]

In Indiana a final settlement made without payment or provision for the payment of taxes is illegal, and may be set aside for the purpose of compelling their payment.\[69\]

Upon the settlement of the accounts of the representative court is required, in some states, to make an order for the payment of the debts, or for a dividend to the extent justified by the funds on hand.\[70\]

On the incoming of an auditor's report leaving a fact in doubt, the account may be left open in the particulars affected till the question be adjudiated.\[71\]

Where some of a contestant's objections to the account are well founded as to material matters, his costs should be paid out of the estate.\[72\]

Where the order settling the final account of a special administrator is modified on appeal by inserting items inadvertently omitted, the administrator is not entitled to costs where he did not call the attention of the lower court to the omissions.\[73\]

SS 12. _Distribution and disposal of funds.\[74\]_

_Occasion and time for distribution.\[75\]_

After the payment of debts, any remaining personalty not specifically bequethed is subject to distribution.\[76\]

In the case of a will this should, unless otherwise directed or impractieable,\[77\]

be accomplished within a year.\[78\]

If there are debts,

63. Not confined to questions passed upon 70, Code Civ. Proc. $ 1647. Held error to by the probate court, but the appeal brings 70,0

## 5 Cur. Law. ESTATES of DECEDENTS SS 12.

the representative ordinarily has no right to make distribution until final settlement and an order of distribution by the probate court." Administrators may, however, vest in the distribuetes both title and possession of their respective shares of the property before an order of distribution," and an unauthorized conveyance of the personality to them, when subsequently approved by the court, vests title in them as of the date of the conveyance."1 A decree of final distribution should not be made pending litigation involving property belonging to the estate."

_Partial distribution._"--In some states a partial distribution may be had before the administration is completed, where the estate is but little indebted, and the share of the applicant therefor may be allowed to him without loss to the creditors," whether such conditions exist being a question of fact to be determined by the court upon a comparison of the value of the estate with the amount of the debts."

In determining the amount available for the payment of the petitioner's legacy, the court should not take into consideration the amount of the collateral inheritance tax to which the legacy is subject," nor the amount required to erect tombstones where the executor is authorized by the will to resort to the realty for that purpose if necessary."

Before ordering a partial distribution prior to the expiration of the period of administration, the better practice is to require a written report from the representative."

The petition is properly denied where there is pending an application for the sale of the reality for the payment of the administration and funeral expenses."

A refunding bond may be dispensed with if the time for presenting claims has expired and all allowed claims have been paid, and the court is satisfied that no injury can result to the estate."

A bond given by a distributee during his lifetime is sufficient to protect the estate where after his death his share is paid to his executor."

The appearance of an executor on the hearing on petition for a expenses, and hand over the clear residue to bonds. Murdock v. Murdock, 111 Ill. App. 375.

him. Macy v. Mercantile Trust Co. IN. J. Eq. 159 A. 586.

P. 679. Persons claiming property described 79. W were there are debts, the representative holds the estate in trust for their payment, and has no right to transfer choses in action to a regulatory legate until final settlement and order of distribution by the probate court. Broadwell v. Banks, 134 F. 470.

86. Turns v. Burnes (C. C. A.) 137 F. 781.

Judgment of probate court and contract held to have stopped parties thereto from claiming that title to stock did not vest in grantee.

Id.

81. No debts. Burnes v. Burnes (C. C. A.) 137 F. 781.

01. Objection to jurisdiction of court to rendezvous of final distribution while litigation involving property belonging to the estate was pending held untenable, it appearing that all such litigation had been finally determined. Drasdo v. Jobst \[VWash.\]

81 P. 857. Evidence held to sustain finding that all debts had been paid except expenses of administration and funeral expenses. Id.

83. See 3 C. L. 1313, a 32 et seq.

01. Code Civ. Proc. $ 1661. In Mr Murphy's Estate, 145 Cal. 464, 78 P. 960. Petition for partial distribution following the language of that part of the statute declaring what must be made to appear before the petition can be granted, held sufficient as against the excentric. Id. Either a full or a partial distribution may be made prior to the expiration of the period of administration where it appears that there are sufficient assets to satisfy all demands against the estate, subject, however, to the giving of refundingpartial distribution solely in his representative capacity gives him no standing to claim rights to which he is entitled as residuary legate.\[92\]

_Person entitled to receive payment or transfer of share.\[98\]_--It is the duty of the representative to pay funds in his hands to those entitled thereto by law or to their assignees.\[94\] In the absence of a statutory provision to the contrary,\[95\] probate courts have as a general rule, no jurisdiction to determine controversies between heirs, devisees, legates, or the next of kin and persons claiming under them;\[96\] but where it is shown that funds have been wrongfully included in the account as trust funds, or where title or ownership is in another person, jurisdiction may be assumed to avoid circuity of action.\[97\] When the distributee is under a guardian or committee regularly qualified, the guardian is entitled to payment.\[98\]

Contracts between the heirs and distributes, or between them and the representative, in regard to the distribution of the estate, will be enforced if otherwise valid.\[99\] In New York, where the person entitled to a legacy or distributive share is unknown, the statute provides that the distribution decree must direct the representative to pay the amount thereof into the state treasury for the benefit of those who may thereafter appear to be entitled thereto, and that the surrogate or the supreme court on petition of one claiming to be so entitled may, by reference, ascertain the rights of the parties interested and grant an order for payment of the money found to be due claimant.\[1\] The surrogate referred to must be deemed to be the one who has or had jurisdiction of the settlement of the estate, and no other surrogate may act in the matter.\[2\] Property turned over to trustees may be delivered direct by them to ultimate beneficiaries on cessation of the trust.\[3\]

_Distribution need not always be in money;_ residuary legatees\[4\] and heirs may, if they so desire, take the residue of the personality in kind.\[8\] Where an equitable 5 Cur. Law. ESTATES of DECEDENTS SS 12. 1265 conversion takes place at testator's death by reason of a direction to self realty, distribution should be made on the theory that the donation in the first instance was made in money.\* _Procedure to obtain order for final distribution._--If on the settlement of any account of an administrator or executor, there appears to remain in his hands property not necessary for the payment of debts and expenses of administration, and not specifically bequeathed, it is the duty of the court to determine who are entitled to the estate and their respective shares therein under the will or according to law, and to order the same to be distributed accordingly.\* A decree directing distribution is void as to creditors not cited to appear.\* A final order of distribution, made in proceedings to administer the estate as intestate, is valid and binding upon the parties until set aside, notwithstanding the subsequent discovery of a valid will.\* On the termination of a trust estate after the death of the executor, distribution should be made directly to the legatees without the appointment of an administrator de bonis non, where it appears from the account of the administrator of the deceased executor that all the debts of the estate have been paid.\* _Swits for payment of shares or settlement._*As a general rule legatees are not entitled to sue for the amount of their legacies until the court has made an order of distribution,* but where the executor is not required to give bond and dies before any account is due or filed, and all the testator's debts have been paid, the legatees may, on the failure or refusal of the executor's administrator to account for moneys charged against such executor's estate, sue such estate in equity for an accounting and to recover the amounts due them under the will.\* An action to enforce a legacy as a lien on realty is not based on an instrument for the payment of money, and consequently plaintiff has the burden of proving nonpayment.\* A legatee whose legacy is payable when the property is disposed of, and who is also one of the heirs at law and next of kin, may maintain a bill to compel the executor, to whom the property is given in trust for the payment of debts and legacies with a discretionary power of sale, to execute the trust by a sale _and_ to distribute the balance among those entitled thereto.\* The executor cannot, set up that parties seeking the helrs may, if they so desire, take the rest-due of the personality in kind, rather than have not converted into money by the representative. Stevens v. Meserve \[N. E.\] 61 A. 420. Statute covers oboses in action as well as goods and chatlets. Id. A guardma may bind his ward by an agreement for a division of the property in kind. Id. Laws 1857, p. 1874, c. 1963, authorizing the court to direct the transfer of bonds, stocks, or other evidences of indebtedness to minor helrs or their guardians instead of giving them their share in cash, does not deprive the guardian of the right to consent to a division in spoc-ele without an order. Id. See, also, Guardianship, 3 C. L. 1668.

- Nelson Nelson \[Ind. App.\] 72 N. E. 482. See Conversion in Equity, 5 C. L. 758.
- See 3 C. L. 1312, n. 18 et seq.; 1309, n. 17 et seq.; 184, c. 60. 188.
- Rev. St. c. 67, 8 20, c. 65, 8 7. Tn re \[N. Y. Stilphen \[Mc.\] 60 A. 888. Probate court has jurisdiction to determine whether legacy was specific one, and was consequently accepted by failure of the fund out of which it was to be paid and therefore the balance in admin-istrator's hands not otherwise disposed of went to the heirs as intestine property, or 5 Curr. L--80.

payment of their legacies have forfeited their right thereto by contesting the will.17 In some states devisees, distribuetes, or creditors may, at any time after the qualification of the representative, institute suit for a settlement of the estate.18 No allegation of fraud or mismanagement on the part of the representative is necessary.19_Adjustment of shares.20--Debts due by distribuetes,21 advancements made to them by decedent,22 and partial distributions or anticipations,23 should be reckoned against their shares in order to equalize them; but an executor cannot as such make an offset against what he is to pay over as trustee.24 In the absence of a definite understanding to the contrary, payments made to legates on a partial distribution should be charged against their legacies instead .of their share of the residue, and the liability of the estate for interest on the legacies thereby stopped.25_Interest on legacies.26--A legatee whose legacy is wrongfully withheld is entitled to recover interest thereon, though a judgment for the amount of the legacy and the interest will exceed the balance in the hands of the executor.27 General legacies ordinarily draw interest at the legal rate after one year from the issuance of letters testamentary, unless there is something in the will to indicate a contrary intention.28 This rule, however, deals only with interest given as compensation for the withholding of money and not with income earned, and hence does not apply to gifts in trust to pay income only to one for life or a term, so as to cut down the term of enjoyment for a year.29 In such case, though the beneficiary is not, while the estate is in the hands of the executor, entitled to receive the income in quarterly or yearly instalments as the will directs, he is entitled to have the income then accruing, calculated at the average rate earned by the whole estate, added to the corpus of the fund.30 In the absence of a provision in the will to the con 5 Cur. Law. ESTATES OF DECEDENTS SS 12. 1267

trary, an executor who is given a fund in trust to pay the income to the widow is not bound to separate it as soon as practicable from the rest of the estate, so as to entitle the beneficiary, on his failure to do so, to legal interest rather than the actual income earned. \[31\]

If partial payments are made on legacies, each payment should first be applied to the discharge of the interest then due. If the payment exceeds the interest, the surplus goes toward discharging the principal, and the subsequent interest is to be computed on the balance of the principal remaining due. If the payment is less than the interest, the surplus of interest must not be taken to augment the principal, but interest continues on the former principal until the period when the payments taken together exceed the interest due, and then the surplus is to be applied towards discharging the principal, and interest is to be computed on the balance as before. \[32\]

Legacies payable after the death of the life tenant bear interest from that time. \[38\] If payable out of the proceeds of a sale of the property of the estate, a reasonable time will be allowed in which to make the conversion, and interest will not be given until after the sale. \[34\]

If legacies are paid before they become due, proper deduction should be made for interest. \[8\]

\_Setting out and retaining funds and precedent interests.--\_Sufficient should be set apart from the residue of the estate to meet annuities given by the will, \[38\] which amount is subject to distribution according to the will when the annuities cease. \[37\]

Statutes in some states provide for the retention by the representative of sufficient assets to pay claims for the establishment of which actions are pending. \[38\] A petition for the retention of assets by an executor to pay a claim alleged to be due the petitioner and on which he subsequently brings suit must be filed before final settlement. \[39\] The claim specified in the petition must be substantially the same as that on which suit is subsequently brought. \[40\]

32. In re Erving's Estate, 92 N. Y. S. 1109,

01. Where will gives income to widow for

that there was sufficient cash realized from life income as well as principal belong to

testator's estate, to have set aside the children immediately on widow's death, and

amount for the payment of the legacies implying are entitled to interest on principal, if

mediately after his death. In re Driskel, 100

it is retained after that time. In re Driskel, 100

App. Div. 171, 91 N. Y. S. 273. Where expenses connected with the probate of the will

100 App. Div. 171, 91 N. Y. S. 273.

34. Where reality is devised to executor

and the administration of the estate which

after death of life tenant in trust to sell it

and divide proceeds, and no time is fixed for

been paid out of income, the proceeds of the

execution of trust, a reasonable time will be

sale of a bond of the estate are properly ap-
allowed, and interest will only be allowed

piled to the reduction of the amount due

from the date of sale, there being no claim

Townsend v. Wills

that the trustee arbitrarily or capricuously

refused to sell. In re Schabacker, 94 N. Y. S. 87.

87. Is a part of the residuum and ex-

01. Doctrine of equitable conversion at tes-

ector never parts with title thereto. Same

tator's death will not be applied so as to

rule applicable even if it is treated as a trust

quire interest to be paid on the legacies as

tund for the benefit of the annunt. Mer-

though a sale had actually been made at

full W. Wooster, 99 Me. 460, 59 A. 596.

that time. Id.

88. Code Civ. Proc. $ 2745, providing for

01. Suit to charge land with legacies,

the retention of a sufficient amount to pay

Malivery V. Facer, 181 N. Y. 567, 74 N. E. 487,

clims for the establishment of which acc-

rvg. 90 App. Div. 610, 85 N. Y. S. 1137.

tions are pending, applies only to cases in

38. Merrill V. Wooster, 99 Me. 460, 59 A.

which no distribution has been made before

596. Where legacies are left to testator's

the pendency of such an action has been

children with the condition that the widow

brought to the notice of the surrogate. In

shall have the income for life, it is the duty

re Gal \[N. Y. J. 17 N. E. 876.

of the executor to set apart the amount

38. Downver, 99, 186 Mass. 189, 71 N.

thereof and keep it Intact until the widow's

E. 534. Pettition filed more than a year be-

death. Where executor died and widow was

for executors filed their account, in which

appointed administrative, remarried, and

they charged themselves with a balance

died, leaving a will directing payment of

more than sufficient to meet the claim sued

such legacies, her second husband could not

on, no account having been previously set-

defest the right of the children to their pay-

tled, held seasonably presented, though ex _Refunding bonds._\[41\]--Where the will provides that the executrix shall not be required to give bond as such, she will not be required to give bond as life tenant.\[42\] In New Jersey if a decree barring action against the executor is made upon the settlement of the estate, he should take a refunding bond upon paying the distributive shares to those entitled thereto.\[43\]

_Partition of really among heirs and devises._\[44\]--Partition of reality among adult heirs may be made under some statutes, or, if the premises are not divisible, a decree of sale may be entered, prior to the expiration of the period for probating claims against the estate.\[45\] In case a sale is ordered, the court should, on the coming in of the report, take additional proof and make such an order with reference to the distribution of the proceeds as will insure their application, so far as may be necessary, to the satisfaction of the claims of creditors against the estate.\[46\] A widow in possession of the homestead and having an unassigned dover interest in the rest of the reality cannot maintain an action for partition against her husband's other heirs.\[47\]

By statute in Missouri, no partition of devised lands can be had contrary to the terms of the will.\[48\] Under such statute the court has no jurisdiction to entertain a suit for partition of devised land instituted by persons expressly excluded from participation in the estate, or who have disposed of their interest, and the bringing of such suit does not exclude the jurisdiction of the probate court over the lands involved.\[49\]

In some states in case the reality may not be equitably divided among those entitled thereto, the probate court may order the same to be sold to pay specific legacies, if for the best interests of the estate and all parties concerned.\[50\]

ecutors, who were also trustees, had previously closed their accounts as executors on their books, so far as the administration of income was concerned, and had turned over the personal assets to themselves as trustees. Id.

40. Downer v. Sqinre, 186 Mass. 189, 71 N. E. E. 534. Where successor of trustee filed petition as such against executors of his deceased predecessor for retention of assets to pay claim on latter's bond conditioned on payment of the trust fund to his successor, held no objection to subsequent action by obligees on'bond, who were also the beneficiaries of the trust, against the executors to recover the trust fund, that the action was not brought by the person filling the petition for retention of assets. Id.

01. See 3 C. L. 1313, n. 26. See, also, supra, "Partial Distribution," and see 3 C. L. 1313, n. 32 at seq. 2a. Where the will provides that the executrix shall not be required to give bond as such, she will not be required to give bond as life tenant. McGilure v. Gallagher, 99 Mc.

334, 59 A. 445.

43. Orphans' Court Act, $ 78, (Laws 1898, p. 742). Acton v. Shultz \[N. J. Eq.\] 59 A.

01.

01. See 3 C. L. 1314, n. 47 et seq. See, also, Partition, 4 C. L. 898.

01. Waste v. Stine, 214 Ill. 563, 73 N. E.

01. Right given by Hurd's Rev. St. 1903, c. 106, $ 1, not affected by heat that estate is not settled. Hall v. Gabbert, 213 Ill. 208, 72 N. E. 806. Under Civ. Code Prac. $ 480, authorizing a court of equity to sell land owned jointly by two or more persons on the petition of either if the estate be in possession.

01. Cur. Law. ESTATES OF DECEDENTS SS 15. 1269

The title of heirs who request and procure a sale of reality for the purpose of closing up the affairs of the administration passes to the purchaser by estoppel, and a stranger to-the proceeding cannot impeach the sale on the ground that the probate court had no authority to order a sale for that purpose, especially after a long time has elapsed.${}^{51}$

SS 13. _Enforcement of orders and decrees by attachment as for a contempt.${}^{52}$_

SS 14. \_Discharge of personal representatives.${}^{53}$--\_The administration of a dead man's estate is never complete until all the assets have been turned over to those rightfully entitled to them.${}^{54}$ An executor continues to be an executor so long as he has anything under the will to execute, even though the period of administration may have elapsed.${}^{55}$ After such period has passed he is responsible to a court of equity for the performance of his trust, while during such period he is responsible to the probate court.${}^{56}$ As to a consenting creditor, the administration closes when the administrator delivers all the property to the widow and heirs.${}^{57}$ Notice of the administrator's application for a discharge need not be given to creditors who have not filed their claims.${}^{58}$

SS 15. \_Probate orders and decrees.${}^{59}$--\_Courts having charge of the administration of estates are usually held to be courts of general jurisdiction in regard to probate matters;${}^{60}$ hence, their judgments and decrees are as binding on parties and their privies,${}^{61}$ and until vacated, or reversed, set aside, or modified on appeal, as conclusive as to matters necessarily involved in their determination as those of any other court.${}^{62}$ The existence of all facts necessary to give jurisdiction will be pre-

of all concerned and that reality could not be equitably divided, and order directing sale of all the land, including the undivided third interset of the husband who elected to take under the statute instead of under the will, held proper. Id.

51. Whitaker v. Thayer \[Tex. Civ. App.\] 86 S. V. 364.

52, S3. See 3 C. L. 1315.

54. Bristol Sav. Bank v. Holley, 77 Conn.

225, S8. A. 691.

55. Marfield v. McMurdy, 25 App. D. C.

01. Where the will provides for an annual stipend and the scheme of the will indicated an intention to continue the executorship for several years, it will continue after the expiration of the period of administration. Id.

Rev. St. 1899, S 3850, providing that the county court may not extend the time for settling the estate beyond six years from the time of granting letters, does not have the effect of terminating the functions of the executor at the expiration of that time, but they continue until final settlement or until he is otherwise discharged where the nature of his duties and the matters involved in the settlement of the estate require a longer time. Lindemann v. Rusk \[VWs.\] 104 N. W.

119. Where no steps are taken to compel a termination of the proceedings in the county court, it will be presumed on appeal that a necessity existed for continuing the administration. Id.

001. Marfield v. McMurdy, 25 App. D. C. 342.

001. Barton v. Burbank \[La.\] 38 S. 160.

001. Boyle v. Boyle, 126 Iowa, 167, 101 N. W.

001. 748.

001. See 3 C. L. 1316. The rules generally applicable to all orders and decrees are discussed in Former Adjudications, 3 C. L. 1476; Judgments, 4 C. L. 287; Motions and Orders, 4 C. L. 704.

001. See, also, SS 2, ante, and title Jurisdic-

001. See 324.

001. See, also, SS 2, ante, and title Jurisdic-

001. See 33.

001. See 34.

001. See 35.

001. See 36.

001. See, also, Former Adjudication, 3 C. L. 1476.

001. See 37.

001. See 38.

001. See, also, Former Adjudication, 3 C. L. 1476.

001. See, also, 52, ante, and title Jurisdic-

001. See 39.

001. See 30.

001. See 31.

001. See 32.

001. See 33.

001. See, also, Former Adjudication, 3 C. L.

sumed until the contrary appears,63 and such judgments cannot be collaterally at:

1476. In re Morris, 91 N. Y. S. 706; Blackman v. Mulhall \[S. D.\] 104 N. W. 250. Are conclusive only as to matters necessarily the deceased at the time of his death and litigated. Allowance of claims is not binding on heirs. Milburn v. East \[Iowa\] 102 Nr. W. 1116. The unapapelable order of the dissent. -3 Mich. L. R. 159.

surrogate denying the motion of an executor to compel his attorney to pay money into court, on the ground that the circum-

sales he the widow, and cannot be collaterally stances were not such as to require punishment of the attorney and that the executor's remedy was in another direction, is no 79 P. 428. No appeal having been taken, or, bar to an action by the executor to recover the money. Reilly v. Provost, 98 App. Div. 208, 90 N. Y. S. 591.

Grant of letters. Letters granted by court having jurisdiction are conclusive evidence of the authority of the persons to whom they are granted until the decree granting them is reversed, or the letters are revoked. Code

Civ. Proc. $ 2591. Shaw v. New York Cent. & H. R. Co., 101 App. Div. Y. S. 746. A decree granting letters of administ-

that the statement of an account and the allow-

ration to one of two contesting relatives of deceased does not determine who is entitled

is conclusive against all persons in any way to take as distributes of the fund. In re

morris, 91 N. Y. S. 706.

**NOTE. Letters of Administration. How**

Far Evidence of Wildwowid: Plainifts' husband was killed in a wreck caused by the alleged negligence of a street railway company, and she, as administrator, said for

Proc. $ 1628, included an allowed claim in damages. Defendants claimed that plaintiff

was not the lawful wife of the deceased and, therefore, not entitled to damages under the

sature and offered to show that deceased

had a lawful wife living other than plaintiff.

Held, that exclusion of such evidence was

properly allowed because purchased by the

186.

The claim has been made that letters of

administration are prima facte evidence of

death and it was so held in Tisdale v. Con-

nection Mut. Ben. Life Ins. Co., 26 Iowa 170,

96 Am. Dec. 136; Id., 28 Iowa, 12; but that

such evidence is very weak may be rebutted

by slight evidence. On the same state of

acts with the same plaintiff the United

sales' supporte Court held in Mutual Benef

until reversed, modified, or otherwise

Life Ins. Co. v. Tisdale, 91 U. S. 238, 23 Law.

Ed. 314, that the granting of letters of ad-

milistration afforded no legal evidence of

upon the first account of an executor is, as to

death. The latter holding seems to be the

correct one, for if otherwise it would open

being distributed. Does not determine that

up an avenue of fraud In connection with

all subsequent distributions must be made

life Insurance policies that would be start-

in 1ts possible consequences. It would

Super. Ct. 402.

be easy to procure a policy for a large sum.

**Decrees on distribution:** Adjudication of

In a year or two the person insured could

disappear. Then letters of administration

that the system is concluded on the admissibility

can be procured and the case is made. Similar

lar unfortunate consequences will result in

Final order of county court settling estate,

holding that granting letters of administra-

tion is conclusive evidence of widowhood.

It might defeat the rights of heirs and the

tute,'s conclusive. Carpenter v. United

lawful widow and would be an easy way to

foresstall a prosecution for bigamy. Counsel

for plaintiff coins or James v. Emmet Min.

Co., 55 Mich. 347, as sustaining his position;

the facts were similar to the principal case

but the point decided was that the letters of

administration were conclusive evidence of

plaintiff's right to appear as plaintiff. But

in the principal case counsel contended that

**Decrees on distribution:** Adjudication of

thesis is not. In re Nolan's Estate, 145 Cal. 569,

administration. We are not obligated to

and ordering payment of attorney's fees, and

imposing lien therefor on funds of the es-

late,'s conclusive. Carpenter v. United

Rates Fidelity & Guaranty Co., 123 Wis. 209,

101 N. W. 404.

for plaintiff coins or James v. Emmet Min.

Co., 55 Mich. 347, as sustaining

presumptions are in favor of an order making

the facts were similar to the principal case

but the point decided was that the letters of

administration were conclusive evidence of

plaintiff's right to appear as plaintiff. But

in the principal case counsel contended that

**Decrees on distribution:** Adjudication of

thesis is not. In re Nolan's Estate, 145 Cal. 569,

administration. We are not obligated to

and ordering payment of attorney's fees, and

imposing lien therefor on funds of the es-

late,'s conclusive. Carpenter v. United

Rates Fidelity & Guaranty Co., 123 Wis. 209,

101 N. W. 40 5 Cur. Law. ESTATES OF DECEDENTS SS 15. 1271

tacked 64 except for want of jurisdiction appearing on the face of the record,65 or for fraud or collusion.66

tion of the surrogate to make an order is presumptively, and in the absence of fraud 1025).

or collusion, conclusively established, by an allegation of the jurisdictional facts contained in a written petition or answer July verified, used in the surrogate's court. The fact that the parties were duty elted is pre-supitively proved by a recital to that effect in the decree. Smith V. Blood, 94 N. Y. S. 867. Surrogates court obtains jurisdiction by the existence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the necessary parties. An object to a decree or other determination, founded upon an omission thereln, or in the papers upon which it was founded, of the reciacl or proof of any fact necessary to juris-dition, which actually existed, or the failure to take any intermediate proceeding required by law, is available only on appeal. Surrogates, may allow such defect to be supplied by 'endment. Code Civ. Proc. $ 2474. Id. North Carolina. Where it is admitted that the administrator of a deceased monstined was regularly appointed, it will be presumed, Id. on collateral attack, and in the absence of a showing to the contrary, that deceased left assets within the state and died within the county of the clerk making the appointment (Code, SS 1274, subsec. 4), and hence that the clerk had jurisdiction and that the appointment is valid. Vance v. Southern R. Co., 1138 N. C. 460, 50 S. E. 860.

**In South Dakota** decreases of the probate court have same force and effect and subject to same presumptions as those of circuit court. Rev. Probate Code, 1 26. Blackman v. Mulhall \[S. D.\] 104 N. W. 250. Need not recite the existence of facts, or the performance of acts upon which jurisdiction depends, but, except as otherwise provided, it is only necessary for them to contain the matters ordered or adjudged. Rev. Probate Code, 8322. Id. Where the order confirming a sale recites that the sale was legally made, it will be presumed in a collateral proceeding that the court had before it proof of compliance with all the statutory requirements, includ-administrator. If administrator relies for authority to use on letters issued by a proper lateral attack it will be presumed that a petition for appointment of administrator was in fact filed and notice thereof given, in the absence of an affirmative showing to the contrary. Id.

**Courts of general jurisdiction:** It will be presumed in a collateral proceeding that the relevant court making a decree directing the jurisdiction to a decreeation had jurisdiction of both the parties and subject.

- \[L.\] 38 So. 878. Fact that no petition 85 S. W. 249. Recital in chancery decree of collateral proceeding. Blackman v. Mulhall \[S. D.\] 104 N. W. 250. Though, under Rev. Internal attack though alls, etc., contain no citation or indication thereof. Shannon v. Summers \[Miss.\] 38 So. 345.
- \[L.\] 44 Blackman v. Mulhall \[S. D.\] 104 N. W. 250; Rogers v. Tompkins \[Tex. Cliv. App.\] 105. W. 378. Within its jurisdictional Timits, judgments of probate court import also- to collateral attack. Nelson v. Bridge \[Tex.\] 106.
- \[L.\] 88 S. W. 7. A decree annulling a clause of the will appointing an independent execu-trlx and appending the same person admin-istrarrar with the will annexed cannot be
  1272

1273

1272

1273

5 Cur. Law. **ESTATES OF DECEDENTS SS 15.**

An administrator seeking to get in rents and profits of land for the estate does not represent heirs and though by statute he may sometimes represent them he cannot be regarded as having done so when their interests were not considered or passed on by the court.${}^{\\text{\\ref{eq:1}}}$

In a former volume it was pointed out that a probate decree of distribution should not properly be re adjudicata as to real property titles except so far as to decide who is "entitled to take possession" from the personal representative in order to discharge him, or except the distribution is also ended with the statutory functions of a proceeding to settle titles, a power not ordinarily attributable to courts of probate.${}^{\\text{\\ref{eq:1}}}$ This is just what would follow from the general rules of res adjudi-cata.${}^{\\text{\\ref{eq:1}}}$ In a recent case where the effect of a probate decree to deliver property to the personal representative was discussed, an analogous result was reached.${}^{\\text{\\ref{eq:1}}}$

The right of the court to vacate or modify its orders or decrees depends upon the statutes of the various states, construed in the light of the fact that such courts are usually of record and of superior jurisdiction in their limited field.${}^{\\text{\\ref{eq:1}}}$

where the only jurisdictional fact stated in the petition for letters was that deceased in the state, when in fact he left none, are was a resident of the county, and this fact is baswon to be untrue on the trial of the col-cita that such property was of no value. Id. lateral action. Id. The surrogate's jurisdiction cannot be upheld by proof of facts not **Milburn v. East \[Iowa\] 102 N. W. 1116.**

before him or acted on by him when he made the decree. Id. Appointment of adminis-tractor d. b. n., where there was no vacancy.

**Gale of reaty, where it is only authorized to any debts, and the order of sale shows on its face that it was made to pay expenses of administration only and hence was vold.**

\*\*Jorge in vacate, where it was impossible to carry out terms of the will, may be col- Internally distinguished **A**

**Hickey v. Stallworth \[Aia.\] 39 So. 267.**

\*\*Sale of reaty, where it is only authorized to any debts, and the order of sale shows on its face that it was made to pay expenses of administration only and hence was vold.

1274ESTATES OF DECEDENTS SS 16. 5Cur. Law. An infant distributee, who is one of the next of kin, is a proper party to a proceeding by a creditor for a modification of a decree of distribution.\[12\] In such a proceeding the representative cannot set up limitations to protect himself against his own fraud.\[13\] If the probate court is a court of record, it may at any time amend its records for the purpose of making them conform to the facts and truth of the case.\[14\] A decree of distribution has no effect as to property outside of the jurisdiction of the court rendering it as against a stranger in possession thereof.\[15\] The full faith and credit rule applies to judgments of probate courts.\[16\] The discovery of a valid will after the estate has been administered as ingestate does not render such administration proceedings void for want of jurisdiction, but merely furnishes ground for the revocation of the letters of the administrator, and of all the acts of the court inconsistent with the terms of the will.\[17\]

## 16Appeals in probate proceedings.\[18\]

The jurisdiction of appellate courts\[19\] and the practice on appeal is regulated by the statutes of the various

\\begin{tabular}{l|l|l} \\multicolumn{3}{l}{tiec may require it. Griswold v. Smith, 116} & \\multicolumn{1}{l}{\*\*73. Administratrix was served with notice} \\ Ill. App. 223, app. dism'd, 214 Ill. 323, 73 N. & of claim, but did not reject it, and no steps \\ E. 400. An executor m: ing to have such an & were taken to have it passed upon. She \\ order set aside for failure to allow him his & thereafter procured an order for distribution \\ fees is not required to give notice of his motion to the heirs and beneficiaries. Id. A & in which she alleged under oath that her \\ final order settling the estate is not a consent order, so as to preclude its being set & infant daughter was the only creditor. Claim- \\ aside except for fraud, accident or mistake, & that who had no notice of the proceedings, \\ & where it is entered in the usual way, though & claim which she contested for over five \\ it appears from the order that the parties & years, and which resulted in a judgment in \\ & consented to the approval of the report and & his favor. In the meantime she had ex- \\ & the discharge of the executor. Id. Order & hausted the estate. Held that, in a proceed- \\ & allowing fees to executor and directing pro- & by the creditor to procure a modification \\ & bate court to take such proceedings as might & of the decree of distribution brought more \\ & be necessary to secure re payment by legal- & than 8 years after it was made, the admins- \\ & tees of sufficient sum to pay them, held not & tratrix could not set up limitations. In re \\ & a personal judgment against against the heirs. Id. Gal \[N. Y.\] 74 N. E. 875. & \\ & In Indiana the final settlement may be & 74. So as to include an order of notice of \\ & set aside on petition of a person interested & the appointment of the executors. Smith v. \\ & in the estate, who did not appear and was & Whalley \[R. I.\] 61 A. 178. Such an order is \\ & not personally summoned to do so, showing & not a judgment so as to preclude its amendment. Id. \\ & ment or in the prior proceedings in the ad- & 75. In such case is not evidence as to the \\ & ministration of the estate affecting him ad- & hefship of the distributes. Mace v. Duffy \\ & versely. Burns' Ann. St. 1901, $2558. Rush & \\ & v. Kelley, 34 Ind. App. 449, 73 N. E. 130. & 76. Decree of foreign court directing \\ & WVldo now may have the settlement set aside for &cies to be paid out of property therein will \\ & a failure to pay her allowance. Id. Petition & control the imposition of inheritance taxes. \\ & by widow showing settlement without payment of her allowance, and that decree was & 26. \\ & procured by fraudulent statement that heirs & **77.** Under Rev. St. 1898, $2 443, giving the \\ & had settled with her, and the taking of im- & county court jurisdiction over the settlement \\ & proper credit by the administrator and a & of the estates of all deceased inhabitants or \\ & wrongful application of assets which should & residents of the county, whether they die tes- \\ & have gone to pay her allowance held to state & date or intestine, and in view of Id. $3815- \\ & sunflleent grounds for settling aside the set- & 3817, which contemplate such a situation and \\ & element. Id. Need not allege that she has & recognize as legal the acts of the adminis- \\ & not lost or walyed her right to the allowance. Id. The probate court had no power & trator done prior to the revocation of his \\ & to modify its judgments or decreees after the & letters and provide for the continuation of \\ & expiration of the time for appealing there- & the settlement of the estate. Perkins v. \\ & from, except when they were entered through & **78.** See S. C. L. 1320. See, also, Appeal and \\ & a mistake of fact or a clerical error. Gen. St. 1894, $4730. In re Phelps' Estate \[Minn.\] & \\ & 101 N. W 5 Cur. Law. ESTATES OF DECEDENTS SS 16. 1275

states."6: Statutes authorizing executors or administrators to appeal without giving bond do not apply to cases where the representative is acting in his own interest and adversely to the estate."81

judgment, order, or decree Is such that no
Appeals are generally allowed from all final orders or decrees of the court having jurisdiction of probate matters,\[82\] and may be taken by anyone having an interest in the estate,\[83\] who is aggrived thereby.\[84\]

Moore v. Bankers' Surety Co., 34 Ind. App. \[instances in which an appeal may be taken from the district court to the supreme court, 633, 73 N. E. 607.

SZ. Section 124, Administration Act, relative to appeals from country courts in pro-

are not appealable. Orders' refusing to va-

bato matters, allows appeals only from orders, final In their character. Van Sellar v.

James, 113 Ill. App. 206. Whenever a bill or

petition is filed in the orphans' court,

whether or not the parties are cited to appar,

year, the proceedings are 'plenary if they

do in fact appear and answer. Stonnesfiver v.

Montl. 178 P. 579. Orders refusing to va-

Shriver \[Md.\] 59 A. 139.

Orders and decrees held appealable: Judgment overruling motion to dismiss caveat to

widow's application for an allowance. Mat

hews v. Rountree \[Ga.\] 51 S. E. 423. An

order permitting resignation and cancellation of the bond on qualification of a successor. Succession of Broadway \[La.\] 38 So. 430.

The disallowance of an opposition to letters

where it was predicated alternatively on

needlessness of administration and on opponent's preferential right to letters. Miguez

a against devises in possession under the wili,

v. Delembre \[La.\] 38 So. 820. An order of

the probate court vacating in part a previous decree of distribution. Gen. St. 1894.

s 4685, subd. 9. In re Phelps' Estate \[Minn.\]

101 N. Y. 496. Orders allowing fees of administor and his attorney entered in the

form of solem judgments, and showing that

they were entered after hearing evidence and

making findings, and unqualifiedly directing

payment of the sums allowed, which are

found reasonable. In re Sullivan's Senate, 36

Wash. 217, 78 P. 945. Decree in suit by ex ex

ecutor against devises to convene creditors

and administer the assets for their payment,

made on a report of debts by a commissioner,

which decrees debts against the estate and

subjects its land to their payment. Must be

appaled from within two years. Trail v.

Trail, 56 W. Va. 594, 49 S. E. 431.

Orders and decrees held not appealable:

Supreme court cannot review allowance of

amendment to caveat to widow's application

for an allowance, since it is interlocutory

and would not have finally disposed of the

case if decided in favor of the excepting

party. Civ. Code 1895, $ 5526. Mathews v.

Rountree \[Ga.\] 51 S. E. 423. An order by

the circuit court upon appeal from the

county court refusing to pass upon the merits

of objections to a final account and finding

that such account was not proper account.

Van Sellar v. James, 113 Ill. App. 206. Comp.

Laws, $ 669, authorizing appeals from orders,

sentences, appeals or denials of probate

judges, does not authorize an appeal from

an order to produce for examination books

and papers to be used in controversy over

removal of executor and the settlement of

his accounts, it not being final or decisive of

the merits. Erwin v. Gudwa Circuit Judge

\[Mich.\] 101 N. W. 537. A decree directing

an executor to make return to the court of

an order of sale of real estate for the payment of debts, granted upon his application, and upon confirmation of the sale to

execute a feed to the purchaser, is interlocutory. Walker's Estate, 25 Pa. Super.

Ct. 256. Where the statute enumerates the

and the right to an immediate distribution

are involved, and hence the executrix is in

an order of a sale of real estate for the payment.

The creditors, and may appeal from an order

directing such distribution. In re Murphy's

Szstate, 145 Cal. 464, 78 P. 960. Administrator

is not an interested party and hence can-

not sure out a writ of error to review the

score in a suit to remove a cloud from title

to reality. Right is in the helrs. Strong v.

Peters, 212 Ill. 282, 72 N. E. 369.

84. Gen. Laws 1896, c. 248, $ 1. Smith v.

Whaley \[R.\] 51 A. 173. Rev. St. 65, $ 28.

In re Stilphen \[Me.\] 60 A. 888. Code Pub.

Laws, art. 50, $ 60, Lee v. Allen \[Md.\] 59 A.

184. Code Civ. Proc. $ 938. In re Seward's

Szstate \[Cal. App.\] $1 P. 728. Only those are

agrived whose peculiary interests are dI-

recily affected by 5 Cur. Law. ESTATES of DECEDENTS SS 16. 1277

Only such persons in such capacities as are affected by the order appealed from need be joined as appellees, not all who are interested in the estate.\[85\] The estate is not a necessary party to an appeal from an order directing an administrator to file a new bond and removing him for failure to do so.\[86\] The administrator is neither a necessary nor a proper party to an appeal from a judgment classifying approved claims against the estate.\[87\] Where the judgment or order entered on the administrator's report is favorable to the estate, but unfavorable to him individually, he should appeal therefrom in his individual and not in his representative capacity.\[88\] In such case the estate, by its administrator, should be made an appellee and should not be joined as appellant.\[80\] Notice of appeal from an order settling the account whose rights of property may be established (from (In re Steward's Estate \[CaI. App.\] or divested thereby. Not every one who is dissatisfled, or who happens to entertain dehes or the subject. In re Stilphen \[Me.\] 60 he has no pecuniary or personal interests (A. 888. Means a denial of some personal or property right, or the imposition on the party of a burden or penalty. Smith v. Whaley \[R. I\] 61 A. 173.

An assignee of the distributive share may appeal from a decree directing distribution to a legate, under Rev. St. c. 65, SS 34, giving anyone claiming under an heir at law the same rights as the heir in all proceedings in probate courts, including rights of appeal. In re Stilphen \[Me.\] 60 A. 888.

Creditors may appeal from order permitting resignation of representative and cancellation of bond on qualification of his successor. Succession of Broadway \[La.\] 88 So. 430.

Executor may appeal from an order retusing to set aside an order approving his final account and to fix and allow his fees. Griswold v. Smith, 116 Ill. App. 223, app. dism'd 214 Ill. 322, 73 N. E. 400. Appeal properly taken from such order and not from order approving the final account, where no fees at all were allowed by the latter order, since it contained no adjudication personal to himself. Id.

**Heirs:** Where, on petition alleging that moneys deposited in the name of the deceased belonged to the petitioner, the heirs intervened, denying the allegations, they were entitled to appeal from a judgment that the petitioner owned the money, though the judgment entry did not refer to them in terms. In re Anderson's Estate, 125 Iowa, 670, 101 N. W. 619.

Trustee holding funds of an absentee may appeal from order refusing to revoke letters of administration on his estate, especially when it was made for purpose of testing title to trust property in administrator. Lee v. Allen \[Nd.\] 59 A. 184.

Representative held not to have right to appeal: Executor not aggrieved by order, on petition for partial distribution, directing payment of legacies, though she claims that legatees have forfeited their rights under the will by contesting it. In re Murphy's Estate, 145 Cal. 464, 78 P. 960. In any event she is not entitled toligate the question on appeal, where the order directing distribution has become final by failure of the legates and devises to appear or in any manner object thereto. Id. Administrator not aggrieved by order denying his petition to sell all of the reality, where enough of it was ordered sold to pay the expenses of adminis.

In a separate author, 1878ESTATES OF DECEDENTS SS 16. 5 Cur. Law.

of an executor need not be served on a creditor whose claim has been allowed, but who does not appear and make himself a party to the proceedings," nor on the attorneys of the executor, whose fees the order appealed from directs him to pay."

An appeal from an order of final settlement deprives the probate court of jurisdiction over the estate pending its determination."

In those states in which an appeal lies to a court of general jurisdiction, the matter is generally tried de novo," the issues, however, being limited to those raised in the probate court."

A court having appellate jurisdiction only can consider only questions raised and passed upon in the lower court," except that fundamental errors may be raised at any time." The usual presumption in favor of the proceedings in the lower court apply."

All the findings and matters decided which enter into and are part of the order appealed from go up with it," but matters subsequently decided " and recitals of facts previously decided and become conclusive will not be considered."

represent the estate so as to change the rule.

95. The supreme court has no original jurisdiction in the matter of the removal of executors, and can only consider grounds of removal passed upon by the lower court.

01. In re Carpenter's Estate, 146 Cal. 661, 80 P. 1072.

01. Not persons interested in the estate, and could not be parties to the proceedings

order erroneously removing executor on the settling the account. In re Carpenter's Estate, 146 Cal. 661, 80 P. 1072.

98. A probate court has no jurisdiction to adjudicate a claim filed therein while the estate is pending in the circuit court on ap-

01. The supreme court has no original jurisdiction in the matter of the removal of executors, and can only consider grounds of removal passed upon by the lower court.

01. That then creditors do not object to an \[Mo. App.\] 87 S. W. 595.

01. In Himeis appeals from the probate court are triable de novo, and their effect is

show that proper notice of the application to vacate the judgments appealed from.

for the order of sale was given or that there was no evidence of necessity for the sale,

In Minnesota appeals from the probate to

does not preclude them from objecting on the district court are to be tried de novo in

appeal. Texas Land & Loan Co., V. Dunno-

the latter court. Gen. St. 1894, $ 4672. On appeal from order making allowance for supreme

That mortgages of a portion of the lands of port of widow and familly, district court

an estate do not object to a sale of all the should determine allowance to be made in

exercise of its own judgment. In re Strauch's

Shastte \[Min.\] 104 N. W. 585.

In Texas issues on orders appealed from

the county to the district court will be

97. Where the court finds that an order

tried de novo. Levy v. Moody & Co. (Tex.

Clv. App.\] 87 S. W. 205. On appeal from a judgment classifying claims. Evidence otherwise

wise admissible may be admitted, though not

ordered below. Zieschang v. Helmke \[Tex.

Civ. App.\] 84 S. W. 436.

In Wisconsin on appeal from allowance of

final account case is tried de novo in circuit court. Rev. St. 1898, $ 4034. Fitch v. Huntington \[Wis.\] 102 N. W. 1068.

94. In Missouri the jurisdiction of the circuit court on appeal from a decree in the pro-

bate court settling the executor's accounts is

limited to passing on the matters presented by the appeal: hence it cannot remand the

case to the probate court to hear and deter-

mine a claim filed there pending the appeal.

In re Cassity \[Mo. App.\] 87 S. W. 595.

In Texas the district court has appellate jurisdiction only in the administration of

states \[Levy v. Moody & Co. \[Tex. Civ. App.\] 87 S. W. 205\], and has no jurisdiction

to order a sale of property, on an appeal

from the county court from an order removing an administrator (Id.).

99. The supreme court has no original jurisdiction in the matter of the removal of executors, and can only consider grounds of removal passed upon by the lower court.

Order erroneously removing executor on the sole ground of non-residence cannot be sustained because the evidence shows other

state, 146 Cal. 661, 80 P. 1072.

99. A probate court has no jurisdiction to

tzing the supreme court in certain cases to

render such judgment as the court below

stable in pending in the circuit court on ap-

99. In rubber Carper's Estate, 146 Cal. 661, 80 P. 1072.

01. That then creditors do not object to an

order authorizing the sale of land to pay

obets, on the ground that the record falls to

show that proper notice of the application

for the order of sale was given or that there

was no evidence of necessity for the sale,

does not preclude them from objecting on

the district court are to be tried de novo in

appeal. Texas Land & Loan Co., V. Dunno-

that's Estate \[Tex. Civ. App.\] 87 S. W. 208.

99. That mortgages of a portion of the lands of

our estate do not object to a sale of all the

lands in bulk, at the time application for an

cherlog to sell was made does not preclude

them urging on appeal that there was no

evidence authoring 5 Cur. Law. ESTATES OF DECEDENTS SS 17A. 1279

A reversal will not be ordered for errors not affecting the substantial rights of the parties.2

The right of the appellate court, on reversal of an order appointing an administrator, to itself make an appointment,3 and, on reversal of a decree of distribution, to itself make distribution, depends on the statutes of the various states.4 In Minnesota on appeal from an order making an allowance for the support of the widow and minor children, the district court should determine the allowance to be made in the exercise of its own judgment.5

Footnote 4: In reversing an order of distribution in action by an administrator to pay debts, subject-matter and all the parties contest- ing therefor. Zieschang v. Helmke \[Tex. Civ. App.\] 84 S. V. 436.

Footnote 42: representative in regard to the distribution of the estate, will be enforced, if otherwise valid." In case a consent division is made, each heir, without deed or further conveyance, acquires a perfect equity in the property set apart to him, and loses all interest in the part assigned to the other distributes.10 A release of all claims on account of a legacy does not estop one from participating as heir in any portion of the estate as to which testator died intestine.11 Where a conveyance of the interest of certain female heirs in decedent's land is void for failure of their husbands to join therein, their interest in the proceeds of the sale of the land for purposes of distribution and payment of debts should be charged with the amount received by them

sary for any other purpose, but he could only | WIs, 238, 101 N. W. 415. Though the mother convey the same to them as tenants in common. Cronan v. Adams \[Mass.\] 75 N. E. 101. Evidence insufficient to show agreement or | therein, and entities the widow to a deree estate should be applied as payment for certain land conveyed to her husband. Berkecmeier v. Peters \[Mo. App.\] 86 S. W. 598. An agreement by the husband that estate of his wife's shall be distributed in a certain manner | of testator assigned an undivided third in- to public policy, though he is her executor. Is not an agreement to permit setting aside | of the Wills. Crockett v. Slibley \[N. H.\] 61 A. 469. Agreement by husband with heirs of deceased wife to accept a specified sum in full of his rights in her estate, held to | of the assignors are not necessary or proper | of the rest of his interest. Id. Agreements by heirs of deceased wife that if will was set aside they would pay a specified sum | of the husband and another sum to another person, and by husband to accept such sum | of his rights and to pay certain special | of the beagles therefrom, held to constitute | of the other. Id. Persons to whom the husband agreed to pay certain sums out of the share which he was to have in case the will | of the assignorces' in the case a transfer tax was not assessed | of the assignorces' in the same. Id. An agreement for the assignorces' in the case a transfer tax was not | of the assignorces' in the case a transfer tax | of the assignorces' in the case a transfer tax | of the assignorces' in the case a transfer tax | of the assignorces' would divide the amount reserved for that | of the assignorces' in the case a transfer tax | of the assignorces' in the case a transfer tax | of the assignorces' in the case a transfer tax | of the assignorces' would divide the amount reserved for that | of the assignorces' in the case a transfer tax | of the assignorces' in the case a transfer tax | of the assignorces' in the case a transfer tax | of the assignorces' would divide the amount reserved for that | of the assignorces' in the case a transfer tax | of the assignorces' in the case a transfer tax | of the assignorces' would divide the amount reserved for that | of the assignorces' in the case a transfer tax | of the assignorces' in the case a transfer tax | of the assignorces' would divide the amount reserved for that | of the assignorces' in the case a transfer tax | of the assignorces' in the case a transfer tax | of the assignorces' would divide the amount reserved for that | of the assignorces 5 Cur. Law. ESTATES of DECEDENTS SS 17B. 1281 as the consideration for such conveyance \[12\]. A separation agreement between husband and wife whereby the latter releases all her interest in his property, in consideration of a payment to her of a part thereof, is enforceable against her after her husband's death \[13\].

A contract to dispose of one's property in a particular way by will may be enforced against his heirs, devisees, or legates \[14\].

The omission of an executor to formally convey to the widow who remained in possession under a written agreement whereby she was to pay the debts of the estate and discharge the executor from liability does not affect the right of the widow to the property \[15\].

Legacies abate stably to pay the share of a widow electing to take against the will \[16\]. One who elects against a will devising land charged with unpaid purchase money takes the intestine share in the lands free of such incumbrance \[17\] though he elects after the devisee has assumed the charge \[18\]. The personality is in such case exonerated from contribution \[19\] and the devisee is on a parity with specific legates in this respect \[20\]. Forced contribution does not apply against specific devises to exonerate specific legacies \[21\]. A specific charge on a devise is not to be reckoned as a debt of the estate in finding the intestine share of one who renounces \[22\].

The liability of heirs to contribute is pro rata \[23\].

_Family settlements \[24\]._--Compromises of conflicting claims by family settlements are encouraged by the courts, and they may not be avoided or disregarded for mere inadequacy of consideration, or except upon clear and convincing proof of grave fraud or mistake \[25\]. Children who do not claim from their father, but directly under the will of their grandfather, are not affected by a family settlement to which their father was a party \[26\].

(SS 17) _B. Advancements \[27\]._--Strictly speaking the word advancements is applicable only to cases of intestacy, and means moneys advanced by a parent to a child in anticipation of the latter's future share of his estate \[28\]. It is, however, employed by courts of equity in a broader sense to denote money or property advanced as a satisfaction pro tanto of a general legacy given by a parent or other person standing in loop parentis to a child or grandchild \[20\]. Whether monoys advanced to a legatee shall be considered as reducing his legacy is a question of intention \[20\].

As a general rule if the purchase money for land is paid by the husband or father, and the legal title is taken in the name of the wife or child, the presumption

12. Furnish's Adm'r v. Lilly \[Ky.\] SS 4 S. 12. Adopted children held to have no equitable claim to have settlement, whereby they accepted certain stock, set aside after eleven years, and where they did not offer to return what they had received. Burnes v. Burnes \[C. C. A.\] 137 F. 781. Family settlement held not void for dures or fraud, nor would it be set aside because some of the parties signed it without reading it. Burnes v. Burnes, 132 F. 485.

01. Where stock was decreased one-third by widow's election to take against the will, the interest of the legates in the remainder abates in proportion to their original holdings. In re KIenke's Estate \[Pa.\] 60 A. 167.

17, 15, 19, 20. Gordon v. James \[Miss.\] 39 S0. 18.

21. All legacies must be entirely consumed. Gordon v. James \[Miss.\] 39 S0. 18.

01. Gordon v. James \[Miss.\] 39 S0. 18.

01. Hence assumpist lies not. Calhoun v. Tanguany, 105 T. Allp. 23.

01. See 3 C. L. 1315.

5 Cur. L. - SL.

25. Adopted children held to have no equitable claim to have settlement, whereby they accepted certain stock, set aside after eleven years, and where they did not offer to return what they had received. Burnes v. Burnes \[C. C. A.\] 137 F. 781. Family settlement held not void for dures or fraud, nor would it be set aside because some of the parties signed it without reading it. Burnes v. Burnes, 132 F. 485.

01. Parrott v. Barrett, 70 S. C. 195, 49 S.

01. See 3 C. L. 1324.

01. Code Civ. Proc. SS 2733, Real Property Law (Laws 1896, c. 547), SS 295, 296. In re Cramer, 43 Mise. 494, SS 31 Y. S. 469. The operation of the statute as to advancements can only apply where the deceded died in-testate as to his property. Bullock v. Bullock 8 Ohio N.Y. (N. S.) 190.

01. In re Cramer, 43 Mise. 494, SS 31 Y. S. 469.

01. See Willis, 4 C. L. 1319.

is that such conveyance was intended as an advancement, and there is no implication of a resulting trust.\[31\] Such presumption, however, may be rebutted by proof of a contrary intention,\[32\] and parol evidence is admissible for that purpose.\[38\] No such presumption exists where the person paying the consideration is under no legal or natural obligation to support the person taking the title.\[34\] The use of land which is enjoyed must be accounted for as an advancement.\[35\] In the absence of statutory provisions to the contrary, the value of advancements is to be reckoned as of the time when they are made, unless the contrary appears from the terms of the conveyance.\[36\] This rule has been changed in many states so that the advancement is valued at what it would have been worth at the death of the decedent if no change had been made in the condition of the property.\[37\] Though the intention of the parent as to the equality of advancements is not conclusive, and will be disregarded if it is shown that he was mistaken, yet, where the facts were within his personal knowledge, and there was no interference with his judgment or attempt to influence it, some weight must be given to his conclusion that he had equalized the shares of those to whom the advancements were made.\[38\]

By statute in some states in order to constitute an advancement it is necessary either that the ancestor express in the gift or grant his intention that it be an advancement, or that he charge it in writing as an advancement, or that the child or other descendant acknowledge it in writing to be such.\[39\] Under such a statute _-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_--_--_---\_ * 5 Cur. Law. ESTIMATES OF DECEDENTS SS 18.

- Money given as an advancement cannot afterwards be made a debt.\[48\] Advancements do not bear interest unless an intent that they shall is clearly expressed in the will.\[44\]
- _Hotchpot.\[49\]_--Where advancements have been made in the lifetime of the parent, they must, on his death intestine, be brought into hotchpot by those who have received them, so that perfect equality may be obtained.\[40\] There is a conflict of authority as to whether or not this rule applies where those receiving the advancements have relinquished all further interest in the inheritance.\[47\] In determining the effect of such relinquishments, the law of the state where the property is situated controls.\[48\]

SS 18. _Rights and liabilities between beneficiaries and third persons.\[40\]_--If made for a legal consideration and without fraud, an assignment of one's interest in the estate of a decedent before the estate is settled and his right to a distributive share is established is valid and is a good defense to an action by the assignor against the administrator to recover the share adjudged to be due him as distribute.\[50\] In such case, though the adjudication of the probate court as to his right to such share is conclusive on the defendant, he may, for the purpose of meeting the charge of fraud in obtaining the assignment, prove circumstances tending to show that at the time of the assignment the assignor doubted his right to a share.\[51\]

One claiming title to property ordered distributed as assets of the estate of a decedent should sue in equity to prevent its being turned over to the estate, provided this has not already been done, rather than to recover it from the beneficiaries.\[52\]

In equity and good conscience, the debts of decedent should be paid out of his estate before it should be made to pay the individual debts of the heir or devisee,\[53\]

of its real character. Lodge v. Fitch \[Neb.\]

ated, and distribute the estate in Virginia 101 N. V. V. 388. Evidence insufficient to show that noting executed by daughter and her husband to her father was intended as an ad-

be made to appear that such advancements vancement. Id.

added to their share of the estate in 'Virgina, exceeds the shares of the infant heirs 83 N. V. V. 145.

in the entire estate, in which case they should be required to account for so much of such advancements to each of them as will produce equality. Id.

49. See 3 C. L. 1326.

and deducted from the shares of the heirs to whom they were made. Wick v. Hickey \[Iowa\] 103 N. V. 469.

47. See 3 C. L. 1326, n. 58. In Virginia the rule is unaffected by the fact that some of the heirs at the time of receiving their advancements entered into covenants with the parent relinquishing all interest in or claim to any portion of the estate then owned or thereafter acquired by the parent, and as to which he might die intestine. Mort v. Jones \[Va.\] 51 S. E. 220.

For discussion of right of one receiving an advancement and executing a release of his interest to share in after-acquired property, see note 65 L. R. A. 578.

48. Mort v. Jones \[Va.\] 51 S. E. 220. Adult children of owner of land in Tennessee and Virginia conveyed their expectancy to him in consideration of advancements. Such conveyances were inoperative in Virginia but effective in Tennessee. Held that in a suit for partition the Virginia court could not en-

join the infant heirs from setting up the deeds in the courts of Tennessee. Id. In such case the court should ascertain the amount of decedent's estate, wherever situ and hence a judgment creditor of the latter only acquires a lien on his interest in the estate after the payment of decedent's debts.${}^{54}$ In North Carolina after the expiration of two years from the grant of letters, a purchaser for value of a device's interest takes good title even as against creditors of the testator of whose claims he has no notice.${}^{65}$

In the absence of a statutory provision to the contrary, property or money held by the executor or administrator in his official capacity cannot be reached by attachment or garnishee process in an action against the heir or legatee prior to an order of distribution.${}^{56}$ In Illinois no assignment or transfer by an heir, devisee, or legatee, of his share of the estate in the hands of the representative, can operate to defeat a garnishment of the same unless the transfer is reduced to writing and filed with the clerk of the county court before the service of the garnishee process.${}^{57}$

The mere fact that a child would inherit real estate of the father in the event of the latter's death intestine does not invest the child with an interest therein which can be made the subject of sale or conveyance by him during the life of the father.${}^{58}$

In an action by distributes to impress a trust upon property in the hands of a third person, defendant may, under a general denial, avail himself of an assignment to him by decedent.${}^{59}$

Where the executor and residuary devisee takes land subject to the payment of certain legacies, and sells it and applies the proceeds to his own use and becomes insolvent, the legacies will be charged upon the lands so conveyed.${}^{60}$ In such case the lien of the legacies should be charged on the various parcels of land in the inverse order of their alienation.${}^{61}$

87 S. W. 810, withdrawing former opinion, 26 & $ 35. Rhodes v. Rhodes, 115 Ill. App. 335. Ky. L. R. 1260, $ 3 S. W. 1129. See, also, Clifford v. Gridley, 113 Ill. App. 164. 54. Can only be enforced against share $ 37. Act of 1897. Rhodes v. Rhodes, 115 Ill. reranking due him after such debts are paid. App. 335. Transfer of notes in full settle-Alderson v. Alderson's Guardian \[Ky.\] $ 3. W. 810, withdrawing former opinion, 26 Ky. L. R. 1260, $ 3 S. W. 1129. The assignment by devises of their interests to secure judg-

ments confessed by them does not put an end to the lien of a judgment against their

ancy" of grantors in land of their mother testator so as to deprive the orphans' court

of jurisdiction to sell the decedent's land for its payment. Ziegler v. Schall, 209 Pa. 526, $ 83. W. 1021. 56. 60. Mallery v. Racer, 181 N. Y. 567, 74 N. N. C. 269, 49 S. E. 213. One who makes a loan to a device, secured by a trust deded on the land so devised, and on the faith of the devisee's title thereto, is a purchaser for value. Lender held to have no notice of debt. Id.

56. Executor is not creditor of heir until order of distribution is made, nor is it certain until that time that he is the custodian

since of the purchase price, the purchaser is

lopp v. Schueller \[Ohlo\] 73 N. E. 1012. Rev. St. 1892, $ 5531, authoring the service of

process on public officers does not apply to or authorize service on an executor or ad-

mistrator. Id. Fact that executor was

made garnishee contrary to Gen. St. 1902,

$ 881, held not to make writ defective as

against the principal defendant. Hatch v. Boucher, 77 Conn. 347, $ 4. 132. Judgment

cannot be rendered against executors as gar-

mishes before order of distribution has been made by county court. Hurd's Rev. St. C. 62,

E. 487, rvg. 90 App. Div. 610, 85 N. Y. S. 1137.

5 Cur. Law. ESTOPPEL SS 3. 1285

ESTATES Tail, see latest topical index. ESTOPPEL.

S 1. In General (1285). (1292). Pleading and Proof; Questions of 8 2. Estoppel by Record (1285). (1285). (1285). 8 5. Extent of Operation of Doctrine of 8 4. Estoppel in Pals (1285). Elements (1288). Illustrative Applications of Doctrine (1288).

Scope of title.Many common applications of the doctrine of estoppel are so closely related to other subject-matters that it is deemed best to treat them elsewhere; thus estoppel to claim that a corporation acted ultra vires or to aver want of authority in a corporate officer or agent,\* to question the existence or scope of an agent's authority,\* to deny partnership,\* and the estoppel of a tenant to deny his landlord's title,\* are elsewhere discussed.

S 1. _In general. Kinds of estoppel.\*_--\_Estoppels are usually classified as those arising from records, from deceds, and from matter in pais.\*11 Where an estoppel is set up against an estoppel, the matter is set at large.\*52 Estoppels are mutual and reciprocal and cannot be insisted on by one who is not himself bound thereby.\*53

S 3. _Estoppel by record.\*_--\_The doctrine of estoppel by record rests upon the rule that public official and judicial records import absolute verity. Estoppel by judgment is given separate treatment in Current Law,\*54 and the doctrine of the conclusiveness of public records in general is based upon principles of evidence, and is not here discussed.\*65 While one cannot be estoppel to set up a decree in bar of a cause of action in a court of law,\*76 a court of equity will in a proper case enjoin use of the decree for such purpose.\*65

S 3. _Estoppel by deed.\*65_--\_Recitals in deceds and conveyances may operate as an estoppel against the parties to such deceds and in favor of those claiming in priority of title with them;\*76 but such an estoppel cannot be invoked by a stranger

56. See Corporations, 5 C. L. 164. 57. See Agency, 5 C. L. 64. 65. See Partimership, 4 C. L. 908. 59. See Landlord and Tenant, 4 C. L. 189. A person entering upon land under title of 2. 740, 57. 741. 742. 743. 744. 745. 746. 747. 748. 749. 749. 750. 751. 752. 753. 754. 755. 756. See Partimership, 4 C. L. 189. 757. See Landlord and Tenant, 4 C. L. 189. A person entering upon land under title of 2. 740, 57. 758. 759. 751. 752. 753. 754. 755. 756. 757. 758. 759. 751. 752. 754. 759. 752. 755. 756. 757. 758. 759. 750. 751. 753. 754. 756. 757. 758. 759. 751. 759. 752. 750. 751. 754. 751. 755. 756. 757. 758. 759. 751. 759. 752. 753. 754. 755. 756. 757. 758. 759. 759. 750. 751. 751. 752. 754. 751. 753. 755. 756. 757. 758. 759. 751. 759. 752. 754. 759. 753. 754. 755. 756. 757. 758. 759. 759. 751. 759. 750. 751. 752. 753. 754. 755. 756. 757. 758. 759. 751. 759. 752. 759. 753. 754. 755. 756. 757. 759. 758. 759. 759. 751. 759. 751. 759. 751. 759. 752. 759. 751. 759. 751. 759. 752. 759. 753. 754. 755. 756. 757. 758. 759. 759. 751. 759. 751. 759. 751. 759. 751. 759. 752. 759. 751. 75 to the conveyance who is claiming by an independent and hostile title." Thus, erroneous recitals in a patent from the government do not estop the grantee therein as against a stranger."2 A reeital of consideration does not estop the grantor from showing an abatement thereof,"1 nor the grantee from showing a consideration other than that recited,"1 unless the rights of third parties have intervened."4 A trust deed by a husband and wife of land formerly conveyed to the husband by the wife by an unrecorded deed, such trust deed reciting that the trustees might re-convey to the wife on payment of the debt which the deed was given to secure, does not estop the husband to deny the ownership of the wife."4

One who conveys by warranty deed is estopped to assert title in himself thereafter; 7 hence a title subsequently acquired by such a warrantor inures to the benefit of his grantee 7 and those holding under such grantee." But this rule does not operate when the subsequent title is acquired in a different representative capacity from that in which the prior title was held and conveyed,"8 nor when the instrument by which a transfer of title was attempted is wholly void."1 The rule applies to married women where they are given full power over their separate property."2 Benefeiary heirs, as well as heirs pure and simple, are bound by the warranty estopped of those through whom they inherit by representation."8 A grantor of property held as a homestead is estopped to claim title thereafter on the ground that his wife did not join in the deed,"4 unless the deed by the husband alone is wholly void."5 The covenant of seizin in a purchase-money mortgage does not

1. In efjectment against a railroad, plain-

leans v. Riddell, 113 La. 1051, 37 So. 966. This

iff was not estopped by reservation of certaine quetas, though the vendee sign as a

tain land claimed by the road, in a mortgage, given by plaintiff to a third person. Chicago,

step. R. Co. v. Abbott, 215 III. 416, 74 N. E.

412.

001. McCorkell v. Herron \[Iowa\] 102 N. W.

001.

001. That a deed of an equity of redemption

tion recites that the consideration is paid

and covenants against incommensences does not estop the grantor to show that the con-

sideration was abated on account of the

mortgage, so that the grantee was bound to

indemnify him against the same. Lowy v. Boenert, 110 III. App. 16.

74. Recital of love and affection as con-

sideration for deed does not estop grantee

from showing a money payment equal to

the value of the land as against persons

claiming by shelf's deed under judgment

against the grantor. Miles v. Waggoner, 23

Pa. Super. Ct. 432. See, also, following article on Evidence, 5 C. L. 1301.

75. Where, in efjectment, defendant claims

a homestead right, a conveyance by the deedant is shown, whereby the homestead

right was lost, defendant cannot set up

want of consideration rendering the conveyance void. Jasper County v. Sparham, 125

lowa, 464, 101 N. W. 134.

76. Tyler v. Carrier \[Cal.\] 81 5.19.

01. A conveyance estops the grantor from

later setting up title in himself, but if his

wife did not join she would not be estopped

to assert any contingent interest she had at

the time. Cunningham v. Cunningham, 125

Iowa, 681, 101 N. W. 470.

78. Warrantor's title was defective; title

subsequently acquired inured to grantee.

Yock v. Mann \[Vv. V.\] 49 S. E. 1019. Where

one sells property of which he is not owner,

any title which he may subsequently acquire

quire inures to his vendee. City of New Or-

leans v. Riddell, 113 La. 1051, 37 So. 966. This

rule operates, though the vendee sign as a

fun land, elaimed by the road, in a mortgage

witness the subsequent act of purchase, since

given by plaintiff to a third person. Chicago,

step. R. Co. v. Abbott, 215 III. 416, 74 N. E.

412.

001. McCorkell v. Herron \[Iowa\] 102 N. W.

001.

001. That a deed of an equity of redemption

tion recites that the consideration is paid

and covenants against incommensences does not estop the grantor to show that the con-

sideration was abated on account of the

uptage, so that the grantee was bound to

indemnify him against the same. Lowy v. Boenert, 110 III. App. 16.

74. Recital of love and affection as con-

sideration for deed does not estop grantee

from showing a money payment equal to

the value of the land as against persons

claiming by shelf's deed under judgment

against the grantor. Miles v. Waggoner, 23

Pa. Super. Ct. 432. See, also, following article on Evidence, 5 C. L. 1301.

75. Where, in efjectment, defendant claims

a homestead right, a conveyance by the deedant is shown, whereby the homestead

right was lost, defendant cannot set up 5 Cur. Law. ESTOPREL $ 3.

estop the mortgagor from suing for breach of the covenant of seizin in the deed of his grantor."

As a general rule a grantee named in a deed is not estopped to deny his grantor's title." The estoppel exists only where there is an obligation to restore the possession in some event or upon some contingency." A second mortgagee who does not assume the first mortgage is not estopped to deny its validity, even though it is excepted from the covenants of the mortgage he holds." Hence a holder of a second mortgage taken subject to rights under a first mortgage, which is in fact void, is not estopped to assert it against the first." A recital in a warranty deed that the premises conveyed are free and clear of all incumbrances, excepting certain named liens, is only a limitation of the covenant against incumbrances, and is not such a recognition of the liens as will estop the grantee from contesting their enforcement against the property conveyed." A recital in a mortgage that the grantor therein has good title from the mortgages estops the mortgages from asserting want of title in the grantor as against his subsequent grantee."

Estoppel arises against a grantee seeking to escape a street assessment when it appears that the assumption of that particular assessment constituted a part of the purchase price," provided the deed specifies the assessment with sufficient particularity."

The doctrine of estoppel by deed is applicable only when there has been a delivery; but a party may be estopped by his conduct to deny that there has been a valid delivery," and thus became bound by the deed.

86. Reinhalter v. Hutchins, 26 R. I. 586,

delivery in escrow being in fact void. Clark v. Harper, 215 Ill. 24, 14 N. E. 61. Plaintiff

87, SS8. Oregon Short Line R. Co. v. Quigley \[Idahol\] $0 P. 401.

88. Livingstone v. Murphy, 187 Mass. 315,

72 N. E. 1012.

90. First mortgage was no part of consideration for second. Nicholson v. Aney \[Iowa\] 103 N. W. 201.

01. Stough v. Badger Lumber Co. \[Kan.\]

79 P. 737.

92. School trustees who accept a mortgage

89 on property, reciting that the grantor therein has good title "from said trustees" and that the property is free from incumbrances, is estopped to set up 40 years thereafter against a grantee under the mortgagor that the latter had no title. Trustees of Schools of De Witt County v. Wilson, 215 Ill. 352, 74 N. E. 375.

93. Waldschmidt v. Bowland, 6 Ohio C. C. (N. S.) 99. Estoppel arises against a grantee who purchased after the resolution declaring the necessity for the improvement and the ordinance ordering the improvement were passed, but before the passage of the ordinance assessing the property. Id.

01. Estoppel does not arise against a grantee resisting a street assessment where the provision in the deed as to payment of a street assessment does not specify any particular street,

01. Debtor conveyed land to son-ln-law in violation of injunction in creditors' unit, but

01. Estoppel does not arise against a grantee resisting a street assessment where the provision in the deed as to payment of a street assessment does not specify any particular street.

01. Debtor conveyed land to son-ln-law in violation of injunction in creditors' unit, but

01. Debtor conveyed land to son-ln-law in violation of injunction in creditors' unit, but

_Bstoppel in pais._"Briefly stated, the doctrine of estoppel in pais is that one cannot deny the existence of a state of facts which by his representations, silence, or misleading conduct he has induced another to believe, and to rely and act upon to his prejudice." Though estoppels were formerly characterized as codious, and were said not to be favored," the doctrine is now rather freely applied, both in courts of law and equity," and when properly limited, is a salutary one.\[1\] It should be applied, however, only in cases where every element of an estoppel is made to appear.\[2\]

_Elements._"--It must appear that the misrepresentations, silence or conduct of the party claimed to be estopped,\[4\] related to existing," material facts;\[5\] that he had full knowledge of the truth,\[7\] or that it was his duty to know the truth;\[5\] and that

96. See 3 C. L. 1329,

money as proceeds of a sale of land in an 97. An estoppel 1s, in substance, an ad- "orphans" court, but did so without knowl- "mission by a party regarding the subject- "abstor" at the fact, he cannot "dge or authority of his clients, who did not "thereafter deny it, but is bound by his admis- "ecieve the money." Held, his clients were "not estopped to claim the land." Harrington "G0 A. 234. The doctrine of equitable estoppel "." Sufivanson, 210 Pa. 10, 59 A. 268.

is founded upon principles of equity and Justiee and is applied so as to conclude a party "promise as to future action. A parol prom- "who by his acts and admissions intended to "is to release ready, in reliance on which "influence the conduct of another, when in "goods on premises were purchased, does not "good conscience and honest dealings, he "work an estoppel to deny validity of the "ought not to be permitted to gainas them", "promise under the statute of frauds. De- "Rogers v. Portland & B. St. R. Co. \[Me.1\] 60" . 713. One insisting on an estoppel must "show that the other party has done some- "M. N. E. 151: Pierce v. Vansell \[Ind. App.\] "thing or represented something which has had the effect to deceive and mislead him and "with" had no interest in a note which would render it inequitable for the "promise" thereafter. Barber v. Stroub \[Mo. against him. Huot v. Reeder Bros. Shoe Co. \[Mich.\] 12 Det. Neg. N. 98, 103 N. W. 569.

Husband and wife conveyed wife's land as security for a loan, on the agreement to re- "54. A receipt to an administrator given as convey to the husband, neither understand- "result of mistake held no basis for an es- "toppel. HHI v. Terrell \[Ga.1\] 61 S. E. SL.

wife are a husband puts property purchased with bis wife's money in his own name instead of hers, and she is ignorant of such "conveyance to him." Id. Parties who have "knowingly made false statements with the "intention that another should rely thereon," such other having in fact relied thereon to "his injury, cannot show the credulous confidence of such other as a defense." Miller v. John, 111 D. App. 56.

98. See Rogers v. Portland & B. St. R. Co. \[Me.\] 60 A. 713.

01. Rogers v. Portland & B. St. R. Co. \[Me.\] 60 A. 713. An estoppel by matter in "pass may be set up as a defense to an action at law in the Federal courts. Courts of "law have long recognized such estoppels and resort to equity is not necessary to assert them. Anglo-American Land, Motrg. & Ag. Co. v. Lombard \[C. C. A.\] 132 F. 721.

1, z. Rogers v. Portland & B. St. R. Co. \[Me.\] 60 A. 713.

3. See 3 C. L. 1330, 1331, 1332.

1. Alleged representations held to have been made by a stranger and not to be blind- "ing on plaintiff. Campbell v. Flannery \[Mont.\] 79 P. 702. Declarations of the wife made in the absence and without the knowl- "edge of the husband cannot raise an estoppel when his title to community property "is unvected" in "subsecence" herein. Schenck v. Griffith \[Ark.\] 86 S. V. 850. Heirs held not to have had adequate knowledge of source of money 5 Cur. Law. ESTOPPEL SS 4. 1289

he intended that the other party should act upon facts so misrepresented,\* though such intent may be implied, so that an actual intent to mislead and deceive is not essential.10 It must further appear that the party relying on the estoppel was igno:ant of the truth,11 and that such ignorance did not arise out of his own

received by them to be estopped to deny va-

measurements and indicated what he heblity of administrator's deed; nor was giving power of attorney to procure sale suffh-

the site of a house to be built thereon, and cient. Demmas v. Hickey \[VWyo.\] 80 P. 521.

put up a fence. Held, he was estopped to Plaintiff accepted dividends on a claim

assert that the line so indicated was the true against an insolvent, not knowing that its

line, even though he was innocent in making property had been used to realize assets, or

his representations, the other parties having that one claiming to be its agent had as-

related and acted on them. Clark v. Hind-

sumed to waive its rights or consent to a

man \[Or.J 79 P. 56,

sale. Held, it was not estopped to claim the

11. Davis v. Neighbors, 34 Ind. App. 441,

property. Jos. Schiltz Brewing Co. v. Grimm-

73 N. E. 151; Pierce v. Vansell \[Ind. App.\]

mon \[Nev.\] 81 P. 43. A person represented

74 N. E. 554. A party settling up an estop-

to plaintiff that he owned the exclusive

pell must have been ignorant of the true

right to sell a certain newspaper in certain

facts. Carter-Battle Grocer Co. v. Unshaling

toritory and induced plaintiff to buy the

\[Tex. Civ. App.\] 85 S. W. 449. Pleasant

right. The newspaper company accepted

client to show estoppel where ignorance of

plaintiff as its agent and sold him papers.

the truth was not alleged. Bartholomee v.

Held, since the company had no notice of

Lowell \[Ind.\] 72 N. E. 1030. Where there is

the contract or of the representations made

neither concealment nor misrepresentation,

to plaintiff, it was not estopped to deny that

but both parties have equal knowledge or

the third person had any rights. Fox v. means of knowledge, there can be no estop-

Commercial Press Co. \[Ky.\] 88 S. W. 1063.

Pulsband of Intestate held not to have had

Board of Education \[Ind. App.\] 72 N. E. 829.

such knowledge of transfer of stock by ad-

One who discovered the truth regarding

mministrator as to be estopped to object to the

administrator's account with reference to

led or prejudoted by representations or cons-

such transfer. In R. Bayley \[N. J. Eq. 5\]

egalment of the true ownership could not

A. 215. Silence concerning title will not

vork an estoppel where the other party is

\[N. D.\] 103 N. W. 626. A married woman

himself aware of the title; nor where

gave note and mortrage to secure husband's

owner is ignorant of his title; nor where

debt, but stated in mortgage and in an affh-

with knowledge of his title is the ignorant

davit that debt secured was her own. Un

of valuable improvements being made by

der the statute such a contract-to secure

others in ignorance of his title. Wickham

others debt--was vold. The mortgage

v. Twaddell, 35 Pa. Super. Ct. 188. Judg-

Knew all the facts. Held, woman not estop-

ment creditor bought land at execution said,

ped to set up the true facts showing the in-

and thereafter land was sold under execution.

vulidity of the contract. Ft Wayne Trust

tion against him, and he then caused a third

Co. V. Shiller \[Ind. App.\] 72 N. E. 494.

sale under his judgment. Held, purchaser at

Flatinf not estopped to rely on representation

second sale not having been a party to the

tion that property could be turned over to

motion or order for the third levy, was not

his possession within 30 days by accepting a

estopped to assert title against the purchaser

4 at the third sale. Ables v. Webb, 186 Mo.

of the property, when he did not examine the

233, 85 S. W. 883.

8. Want of knowledge in making the rep-

rescind as soon as he discovered the fact.

resentation or inducing conduct is no excuse

Thompson v. Hardy \[S. D.\] 102 N. W. 299.

if it resulted from negligence or otherwise

Where one of two contestants for office of

involves culpability. Failure of casualty

clerk of school board executed a bond to the

company to learn true facts of case from its

board to hold it harmless against loss by re-

own attorers before advisting abandonment

son of paying him the salary, the board was

of an appeal, held not to excuse it from

not stepped to use on such bond by allow-

bility for judgment which it promised to

ing him to perform the services of the office,

pay. Globe Nav. Co. v. Maryland Casualty

face. McLaughlin v. Board of Education of

9. Davis v.

1890 ESTOPEL SS 4. 5 Cur. Law. negligence,${}^{11}$ as from failure to consult an available public record; ${}^{12}$ but if failure to consult a record is induced by active conduct of the other party, it is excusable.${}^{14}$ Again, it must appear that the party setting up an estoppel actually ${}^{15}$ and reason-

and time, they were estopped to assert that

representing title in another. Brtice v. Shefhe did not disclose the facts, in a suit by

field, 121 Ga. 216, 48 S. E. 925. If one behim to enforce a Ilen for compensation.

comes active his actions, declarations and Adams v. Schmidt \[N. J. Eq. 60 A. 245.

conduct with reference to the title must not

12. It should appear that such person had

be such as to deceive or mislead a reason-no knowledge, and did not have equal means

able person, or deter, prevent, or dissuade of knowledge with the other party. Rogers

him from examining the record and learning v. Portland & B. St. R. Co. \[Me.\] 60 A. 713.

the true condition of the title. Eastwood v.

It is essential that the person claiming to

Standard Mines & Milling Co. \[Idaho\] 81 P.

have been influenced by the conduct or deco-

382. If the situation is such that it is one's

larations of another was not only destructure

duty to speak, as where inquiries are made

of knowledge of the facts, but was also des-

of him, or where, instead of merely remain-

itime of any convenient and available means

ing silent, the does some affirmative act which

of acquiring such knowledge. Gallagher v.

would naturally have the effect of mislead-

Northrup, 215 Ell. 658, 74 N. E. 711. Lender

held to have been put on notice of invalidity

that the truth can be ascertained by an ex-

of contract for homestead lien; hence borrower on faith of contract not equipped to

the operation of the estoppel against him.

set up its invalidity. Cooper v. Brazezeiton

Roggers v. Portland & B. St. R. Co. \[Me.\] 60

\[C. C. A.\] 15 F. 476. The fact that a cometnam in possession of property, who paid off a

option on mining property and caused a no-

mortage debt thereon, failed to attend a

sale on execution of the other tenant's interest

the corporation was the owner, knowing that

est and notify the purchaser of his equity,

the employees would rely thereon, could not

does not estop him from enforcing his right

the thereafter assert title against the employes

to contribution from the purchaser who be-

when they were seeking to enforce liens

came his ecotamen, his possession and the

record being sufficient notice of his rights.

though his title was a matter of record.

Rippe v. Badger, 125 Iowa, 725, 101 N. W.

Eastwood v. Standard Mines & Milling Co.

642. Husband and wife conveyed city prop-

\[Idaho\] 81 P. 832.

erty to son, he agreeing to recovery to the

15. There can be no estoppel unless the wife. While title stood in the son he-

party alleging it relied on the representa-

same survey on a repelvin bond, and later a

tions and was induced thereby to act to his

judgment was acquired against him on the

hond. While the son had the paper title,

P. 707. The conduct, silence, or declarations

tennants of the property paid rents to his

ruled on must have been in the presence of

mother. Held, mother not estopped to as-

or made to a person known to have an inter-

sert that property belonged to her at the

est in the subject-matter. Rogers v. Portland

time her son became surety, since inquiry

of the tenants would have disclosed her

need not be an affirmative declaration by

equitable ownership. Gallagher v. Northrup, 215 Ell. 658, 74 N. E. 711.

one party that he relied on the acts of the

12. Under modern registration laws a pub-

lie record is an available, convenient and

ants held to have relied on acts and declara-

ready means of information as to all such

questions touching title to really as are re-

quited to be made matter of record. East-

ing additional insurance for that reason.

wood v. Standard Mines & Milling Co.

\[Idaho\] 81 P. 832. Hence one who has

cored his title is not bound to give any

claimed rights in a mine by virtue of a comet

other notice to anyone who assumes to

deal with other parties in reference to such

against a third person, to enjoin him from

property; he may remain silent and passive.

Id. A person will not be estopped merely by

his silence and failure to disclose facts that

from aiserting rights against plaintiff, since

public records, when the situation is not such

as to place upon him the duty of making

known the truth. Rogers v. Portland & B.

St. R. Co. \[Me.\] 60 A. 713. Where assignee

of mortgage gave notice of his rights by re-

verdling his assignment, and thereafter a

purchaser paid the debt to the assignor, the

mere fact that the assignee waited two

years did not 5 Cur. Law. ESTOPPEL SS 4. 1291

ably \[16\] relied upon the conduct, silence or representations of the other party, and was thereby misled \[17\] and induced \[18\] to so change his position \[19\] that he will suffer injury,\[20\] if a denial of the facts as represented to him be permitted.

ments or representations of the petitioner, among such being made. Billings Co. v. Brand & almarrled woman is presumed to use the \[Mass.\] 73 N. E. 637. A contractor assigned \[Husiness.\] that the community when she engages his contract, and told an employ who in- in business. Bashore v. Parker, 146 Cal. 525, paired as to his pay, to quit if dissatisfled. The assignee's agent told him the assignee cannot base his claim on an estoppel by vir- would guaranty payment if he would continue of an oral agreement by a married women to work. The employe, however, quit. & an, since he could not be misled by an agree-Held, the assignee was not estopped to deny & in-business. Central Asphal & Hefnling Co. v. Manning \[Tex. Civ. App.\] & \[Husiness.\] & \[Husiness.

1892 ESTOPEL SS 4. 5 Cur. Law.

_Illustrative applications of doctrine.${}^{21}$_--Among the rules which have resulted from the application of the doctrine of estoppel in pais are: One who has been silent concerning facts which it was his duty to disclose ${}^{22}$ will not thereafter be

hls attitude, the person relying on his con-

stopped to deny the attorney's authority to

duct will be prejudiced. McDougald v. New

collect for it. Bank of Batesville v. Maxey

Richmond Roller Mills Co. \[Wis.\] 103 N. W. W.

\[Ark.\] 88 S. W. 968. Bank president allowed

244. A landowner who has built and im-

his son to overdraw, and bank agreed to look

proved ditches on his hand through which

water from another's land was drained, is

against him. Held, the Bank was not estop-

not estopped to fill up a ditch on his hand,

ped to recover from the president its loss

when the other has taken no action in re-

sustained by, his breach of trust, Western

liance on his former improvements. Schoenk

Bank v. Coldewey's Ex'x, 26 Ky. L. R. 1247,

field v. Cooper, 126 Iowa, 334, 102 N. W. 110.

83 S. W. 629. A vendec of land under a

The fact that a citizen may have led city aul

paral contract to sell, the rendition of serv-

thorlies to believe that he would not attack

ices being the consideration, took possession

the validity of an ordinance providing for

in good faith and held it until after the ven-

vacation of a street does not work an estop-

or's death and until the claim for services

pel so as to preclude an attack by him on

was barred by limitations. Held, such facts

the ordinance before anything has been done

did not constitute an estoppel creduting as

under it. Coker v. Attaina, etc. R. Co. \[Gla.\]

sertion of title by the vendor's estate. Torry

51 S. E. 481. Promise by defendant to pay

v. Craft \[Tex. Civ. App.\] 87 S. W. 844.

judgment against him to an assignee of the

judgment did not estop him to set up payment to

ment to the plaintiff without notice of the

assignment, when the assignee had not

unless there was a duty to speak. The rule

changed his position in reliance on such

that where a man has been silent when in

promise. Workv. Prall, 26 Pa. Super. Ct.

104. A person is not estopped to claim propre-

shall be dehydrated from speaking when con-

erty by having previously sworn that it be

signed to another, unless the party against

apply to a judicial sale so that a judgment

whom he claims has changed his position in

creiditor will be estopped to assert facts re-

reliance on the former sworn declaration.

garding the true ownership of the land sold

Greenberg v. Stevens, 114 Ill. App. 483.

Where no interested party had changed his

sale. Brady v. Carteret Reality Co. \[N. J.

position or in any way relied on an alleged

Err. & App.\] 60 A. 938. But an adjudicate

promise or a grantee in a deed to assume

at a tax sale who not only stands by with-

a mortgage, such grantee was not estopped

out objection but by his acts and assertions

to contend that the was not bound by the as-

shows he does not claim the property is es-

sumption clause because he had never seen

topped to thereafter assert a claim against

the ded and it had not been delivered to

the purchaser. In re Lafferranderie \[La.\] 37

him. Merriman v. Schmitt, 211 Ill. 263, 71 N.

So. 99. Failure to file a claim to property

which has been levied on will not estop the

20. Davis v. Nelsibhorn, Ind. App. 441, 73

true owner from asserting title against a

N. E. 151; Pierce v. Vansell \[Ind. App.\] 14 N.

purchaser at the sale, where the owner has

E. 554: Rogers v. Portland & B. St. R. Co.

done nothing tending to mislead the pur-

\[Me.\] 60 A. 713; Houghen v. Skjerheim \[N.

D.\] 102 N. W. 311. By Code Civ. Proc. 2

Lawless v. Orr \[Ga.\] 50 S. E. 85. The true

1848, the rights of a party cannot be prej-

woter, though cognisant that a stranger to

udiced by the declaration, act or omission of

the title is having improvements made on

another, except by virtue of some particular

the premises, is under no legal duty to give

relation existing between them. Bashorve v.

a materialian notice of his ownership; and

Parker, 146 Cal. 525, 80 P. 707. That con-

when nothing has been done to mislead the

duct failed on induced plaintiff to abandon

matriemman, the true owner is not estopped

an appeal was a sufficient showing of prey:

by silence to assert his ownership. Reaves

udice.

5 Cur. Law. ESTOPPEL SS 4. 1293

permitted to assert such facts to another's prejudice.23 One who has recognized legal title in another 24 by inducing a third person to purchase from him,25 or by:

23. When a party has by his silence property having been devised to the widow's when, If ever, it was his duty to speak, naturally induced conduct on the part of his adversary, he will not be permitted to take advantage of any act or omission so induced, to the latter's disadvantage. Fair haven & W. R. Co. v. New Haven, T7 Conn. 667, 60 A. 651. One who fails to respond when asked if a signature to a note purporting to be his was genuine is stepped thereafter to deny that it is genuine. Harmon v. Leherman \[Tex. Civ. App.\] 87 S. W. 203. A retriing partner who fails to give notice of the dissolution of the firm is estipped to deny liability for a debt contracted by the continuing partner in the name of the firm after such dissolution. Eas- ton v. Wostenholm \[C. C. A.\] 137 F. 524. A party who permitted another to believe that a paper on which he rellect had not been altered was equipped to deny the falsity of a representation that it had not been changed. Webster Reality Co. v. Thomas, 46 Misc. 139, 93 N. Y. S. 1077. In a suit against a city for damages for trespass to land, plaintiff's son testified for plaintiff but did not assert any claim of title to any part of the land or for damages. Held, he would be stopped thereafter to set up such claim. City of Clinton v. Franklin, 26 Ky. L. R. 1053, 83 S. W. 142. Gas company notified a rival company before laying its mains and requested information as to position of its mains which was refused. Rival company had a representative on the ground who did not object to work being done. Held, rival company was estipped, in injunction suit, to object that mains being laid were not at the distance from its mains required by P. L. 1876, & 21. Atlantic City Gas & Water Co. v. Consumers' Gas & Fuel Co. \[N. J. Eq.\] 61 A. 750. Defendant, though informed that plaintiff was to finance certain work to be done for defendant by another who was to assign claims therefor to plaintiff, did not reveal an indebtedness due him from the one who was to perform the work. Held, in an action by plaintiff as assigne, defendant was estopped to set off such indebtedness. House v. Brilliant, 92 N. Y. S. 325. Bank re-ceived warehouse receplits for cotton as collateral for a loan and wrote to warehouse company to that effect. Company did not reply, though it had no cotton corresponding to receplits, which were in fact forged. Held, company liable for loss to bank on failure of the borrower, on theory of estipped. Commercial Nat. Bank v. Naceg-doches Compress & Warehouse Co. \[C. C. A.\] 133 F. 501. Mortgagor is estopped, as against purchaser, to deny validity of sale, when he falls to give notice at the sale of his appeal from the order denying his application to correct the amount found due by the dorece, and fails to except to the confirmation of the sale. State Mut. Bldg. & Loan Ass'n v. O'Callaghan \[N. J. Eq.\] 57 A. 496. Specific performance of agreement to devise land, conveyed by compliant, denied, when compliantancel and failed to assert her rights for ten years, her grantee and his widow having died, and the standing by without objection while such other makes valuable improvements upon land,\[26\] cannot thereafter assert title in himself. Conversely, one who represents himself as owner cannot thereafter deny ownership in order to escape a liability acerning from such ownership.\[27\] One who has by his conduct treated a contract or transaction as valid\[28\] cannot thereafter assert its invalidity\[29\] and deny liability thereunder.\[50\]

other to purchase land from a third person | ment, or a suit for an injunction to prevent operation of the road. His remedy is an ac-self as against such purchaser, even though his title was of record at the time. Brice v. Keldy v. Columbia, etc., R. Co., 37 Wash. 67%, Sheffeld, 121 Ga. 216, 48 S. E. 925. Owners | S P. 265. One who has allowed a railway of land who induce persons to purchase the same land from others are stepped to assert any rights in themselves when the purchaser relied on their conduct and were ignorant of the former conveyance. Virginia Iron, Coal & Coke Co. v. Roberts, 103 Va. 641, 49 S. E. 984.

26. A landowner who stood by and permitted a steam railway to be constructed over the land is stepped to maintain electement for the entry and is restricted to damages for injuries suffered. Warren & O. V. R. Co. v. Garrison \[Ark.\] 85 S. W. 81. Where a bondary line was agreed upon by adjoining owners, and one saw the other erect a building and make other improvements, and his successors acquessed in the line for thirteen years, the one agreeing there and his successors were estopped to question the correctness of the line. Delrich v. Simons \[Ark.\] 87 S. E. 649. A vendor of land knew that the land described in the bond for title was not that which the vendee intended to buy, but allowed him to take possession and make improvements. Held, his heirs were estopped to deny knowledge of the facts to the prejudice of the vendee. Black v. Baskins \[Ark.\] 87 S. W. 647. Plain-if made deed to husband that did not deliver it. He obtained it, and transferred to others. A subsequent grante took title in trust for a railway company, which took possession of the land and made improvements. Plainf learned facts ten days after such possession was taken, and knew of improvements. Held, she was estopped to deny defendant's title three years thereafter. Ball-large v. Clark, 145 Cal. 589, 79 T. 268. Husband and wife made an oral contract for sale of their homesetad, and the purchaser took possession, paid the price and made valuable improvements, all of which was known and consented to by the wife. Held, she was estopped to set up want of consent by her to a transfer of the homesetad. Grice v. Woodwarth \[Idaho\] 80 P. 912. Stattutes protecting married women's rights in home-stead and prescribing manner of transferring homesetad do not prevent operation of such acts as estopped. Id. A landowner agreed in writing to allow use of right of way over his land In consideration of benefit to him, and allowed railway company to construct road and operate it seven years. Held, he was estopped to question the right to such use or disturb possession of the company. Robertson Morts. Co. v. Seattle, etc. R. Co., 37 Wash. 137, 79 P. 610. A landowner who stands by and without protest sees a railroad constructed on his land is estopped thereafter to maintain an action of electement.

5 Cur. Law. ESTOPPEL $ 4.

and assert an Interest in the land itself. Wormser v. Metropolitan St. R. Co., 98 App. Knutson v. Vidders, 126 Iowa, 511, 102 N. W. Uv. 29, 90 N. Y. S. 714. If a carrier by an 433. A person who causes his land to be sold for some purpose of his own under a judicial proceeding which turns out to be been charged, it cannot, after arrival of the void, and receives and retains the proceeds of sale, cannot be heard to question its valuation. He has made his election. Rhea v. Shields, 103 Va. 305, 49 S. E. 70. Corpora- 214 Ill. 356, 73 N. E. 588. A seller of goods obtained by fraud attached the property in an action for the fraud; thereafter a third cannot deny authority to give notes. Peoria Star Co. v. Cutright, 115 Ill. App. 492. Plain- 1ff who obtained lumber on replevin writ estipped to say that writ was wrongly issued or executed, or to contradict the return of the marshal. Three States Lumber Co. v. Blanks \[C. C. A.\] 133 F. 479. Where one defines district connects with another, it will be estopped to deny that some benefit helr. Held, by so affrming his deed, he was accepted to its lands. Drainage Com'res Dist. No. 2 v. Drainage Com'res Dist. No. 3, 11 Ill.

App. 114. A father conveyed land to his son for cancellation of his deed, especially where in consideration of support, and the son conveyed to his sister, with the father's con- (after his death. Ferns v. Chapman, 211 Ill.

sented to assert that the son had de his lease with the landorld's consent, he raulted, when the daughter supported him could not, in an action to recover rent, as she agreed. Hrumback v. Chowning, 26

tain the proceeds of the assignment while Ky. L. R. 917, 82 S. W. 974. Where a person the assignee retained possession, and at the in possession of land held himself out as owner and contracted with defendant for the removal of materials for the construca. Gilesv y. Keen, 93 N. Y. S. 783. A

tion of a roaded, and accepted a sum of money as full or partial payment, he could not thereafter, as assignee of the real owner, as against purchaser. Ray v. Pitman, 119

whose ownership and been concealed, sue for the conversion of the materials so used. Rogers v. Portland & B. St. R. Co. \[Me.\] 60

knowledge of the facts, consent to a pur- (or presented) of the merchandise as one by the firm, property without joining her husband as required by Rev. St. 1887, $ 249S, and the pur- (or presented) of the merchandise as one by the firm, or by the firm.

other reserves, uses and consumes the property, he cannot set up non-compliance with the statute to defeat recovery of the price, to purchase reality and made a tender of Karlsson v. Hanson & K. Saw Mill Co. \[Idaho\] 78 P. 1080.

**29.** One who has recognized the exist- (or, and author has)- (or, and the author has)- (or, The doctrine that one assuming a certain position in a judicial proceeding is precluded from subsequently assuming a position inconsistent therewith, though not strictly one of estoppel, is closely related thereto.\[31\] The term "estoppel" is sometimes used to designate the equitable doctrine that where one of two innocent parties must suffer a loss, the loss should fall on the one whose conduct has induced or made it possible.\[32\]

Other applications of the doctrine \[33\] and cases wherein it was held inapplicable \[34\] are collected in the notes.

to deny liability for the shares as specified by setting up an agreement that he was to to quiet title by grantee, grantors were estake a smaller number of shares, the remainder being intended as treasury stock. Grester Pittsburg Real Estate Co. v. Riley, 210 Pa. 283, 59 A. 1068.

31. See Election and Waiver, 5 C. L. 1078; Saving Questions for Review, 4 C. L. 1383; Appeal and Review, 5 C. L. 121. When one takes a position in a judicial proceeding, and a decree is made conformable thereto, and another party relies upon it and acquires property under the decree, he that takes such position is estopped from afterwards claiming contrary to such position to the prejudice of the other party. La Comte v. Freshwater, 56 W. Va. 386, 49 S. E. 238; Neal Loan & Banking Co. v. Chastan, 121 GaN, 121 GaN, 600, 49 S. E. 618. A Litigation is bound by his judicial admissions and cannot shift his position and claim the same amount first for services rendered to one interest and then to another. In re Immanuel Presbyterian Church, 113 La. 911, 37 So. 873. One who has assumed and successfully maintained a certain position in a cause cannot thereafter assume a position inconsistent therewith to the prejudice of one who has acquieseed in the position first taken. He has v. Shieldde, 103 Va. 305, 49 S. E. 70. A party who has deliberately chosen his ground of defense and has been defeated thereon will not ordinarily be allowed to shift it so as to secure the benefit of another trial. Amendment to answer, tenderer after trial had well progressed, not permitted when it set up a new defense. Barrett v. Kansas & Tex. Coal Co. \[Xen.\] 79 P. 150. A party who has agreed by counsel to certification of the shorthand notes of the evidence in a certain manner is estopped to thereafter assert that such certification is improper. Hozerc v. Monticello \[Iowa\] 103 N. W. 488. An administrator claimed that a bond and mortgage running to an estate were only indemnity for a judgment, and his contention prevailed and they were not included in the appraisal of the estate for the transfer tax. Field, he could not afterwards claim they were an absolute liability so as to have them deducted from the appraised valuation. In re Skinner's Etstate, 94 N. Y. S. 144. Where the theory of an action against an agent as shown by pleadings and evidence is that the agent is personally liable, not having bound the principal, there can be no recovery upon the theory of damages for false assertion of authority. Le Roy v. Jaelobsky, 136 N. C. 443, 48 S. E. 796. A grantee returned his dead to the grantors before record and demanded reseglasion, and upon refusal by the grantors, brought suit for damages for deceit in which grantors disfavored the way to the agent. He has been able to accept the agent to 5 Cur. Law.

01. Estoppel arises against one seeking to enforce a covenant against the sale or manufacture of intoxicating liquor on the land conveyed, where he has encouraged a breach of the covenant. Mooter v. Whitman, 3 Ohio N. P. (N. S.) 141. If a landowner is in-debted to a contractor in a sum equal to or greater than the amount of the lien of a materialman, the fact that the materialman is on the contractor's bond to save the owner harmless from mechanics' Hens does not espop the materialman from enforcing his liem against the owner. Badger Lumber Co. v. Muehlebach \[Mo. App.\] 83 S. W. 546.

**Entoppel to deny representations:** De-fendant having induced plaintiff to act on supposition that certain conditions existed which would give plaintiff a right of subrogation to a lien, defendant was estopped to deny the existence of such conditions by virtue of a secret agreement with another. Anthes v. Schroeder \[Neb.\] 103 N. W. 1072. Where a defendant had denied that it had bought certain property from plaintiff, and plaintiff then sued as for a conversion, defendant was estopped to claim there had been a sale and that assumpust was the proper form of action. Great Western Smelting & Refining Co. v. Evening News \[Miss.\] 38 So. 302. Town supervisors who Asst \[Mich.\] 102 N. W. 286. A contractor who had furnished finishing material for a hotel had judgment giving him a lien on the reality and enjoining a levy on unused material on the ground that it was to go into the building. In other proceedings he also treated it as a part of the reality. Held, he was thereafter estopped to claim It was personality and that it did not pass by a sale of the land on execution. Potvin v. Denny Hotel Co., 37 Wash. 323, 79 P. 40. A shipper who has placed a certain valuation on his property for the purpose of procuring a certain rate is estopped thereafter to show a greater actual value when seeking to recover for a total loss; but actual value may be shown in case of a partial loss to show the proportionate part of the real value to which the shipper is entitled under the limitation clause. United States Exp. Co. v. Joyce \[Ind.\] 72 N. E. 865. In a bankrupty proceeding begun in Arkansas, the alleged bankrupt swore that he was a resident of Colorado. The suit was commenced in Colorado at great expense and trouble. Held, the administrator was es-topped to deny residence of the bankrupt in Colorado. Long v. Lockman, 135 F. 197. A proposal for insurance contained a certain rate and agent told insured that he need not keep the application, as a copy would be attached to the policy. Such copy contained a different rate. Insured, relying on agent's declaration, did not read policy. Field, insurer could not claim that policy rate controlled because insured had actual or implied notice of the change. Employers' Liability Assur. Corp. v. Grand Rapids Bridge Co. \[Mich.\] 102 N. W. 975. A surety who represents himself as the owner of certain property above his debts and exemptions is estopped to claim such property exempt from the judgment obtained on the bond. McMahon v. Cook, 94 N. Y. S. 1018. Code Civ. Proc. $ 1404, providing the manner in which such exemptions may be 5 Curr. L.-- 82.

177. Estoppel arises against one seeking to enforce a covenant against the sale or manufacture of intoxicating liquor on the land conveyed, where he has encouraged a breach of the covenant. Mooter v. Whitman, 3 Ohio N. P. (N. S.) 141. If a landowner is in-debted to a contractor in a sum equal to or greater than the amount of the lien of a materialman, the fact that the materialman is on the contractor's bond to save the owner harmless from mechanics' Hens does not espopped to the materialman from enforcing his liem against the owner. Badger Lumber Co. v. Muehlebach \[Mo. App.\] 83 S. W. 546.

**Entoppel to deny representations:** De-fendant having induced plaintiff to act on supposition that certain conditions existed which would give plaintiff a right of subrogation to a lien, defendant was estopped to deny that he had intended to carry the plaintiff. Chamberlain v. Chamberlain \[N. J. Eq.\] 59 A. 813. A party who proceeds to take possession of property under a written agreement for a contract, and falls to demand formal execution of the contract, and leads the other party to be-bought certain property from plaintiff, and manded, is estopped to insist on such con-fendant was estopped to claim there had been a sale and that assumpust was the proper form of action. Great Western Smelting & Refining Co. v. Evening News \[Miss.\] 38 So. 302. Town supervisors who stood by and permitted street railway com-who had furnished finishing material for a hotel had judgment giving him a lien on the reality and enjoining a levy on unused material on the ground that it was to go into the building. In other proceedings he also treated it as a part of the reality. Held, he was thereafter estopped to claim It was personality and that it did not pass by a sale of the land on execution. Potvin v. Denny Hotel Co., 37 Wash. 323, 79 P. 40. A shipper who has placed a certain valuation on his property for the purpose of procuring a certain rate is estopped thereafter to show a greater actual value when seeking to recover for a total loss; but actual value may be shown in case of a partial loss to show the proportionate part of the real value to which the shipper is entitled under the limitation clause. United States Exp. Co. v. Joyce \[Ind.\] 72 \_Pleading and proof; questions of law and fact. \[35\]An estoppel should be pleaded, \[34\] but if evidence of facts constituting it are admitted without objection, the defense is available, though not pleaded. \[37\] The facts constituting an estoppel is estopped to deny that he has been paid \[ railway company while streets occupied by in full. McGregor v. Ware Const. Co. \[Mo.\] 87 S. W. 81. See, also, Accord and Satisfis- \[ or \]87 C. L. 14. \[\] 87 C. L. 14. \[\] 87 C. L. 14. \[\] 87 C. L. 15. \[\] 87 C. L. 16. \[\] 87 C. L. 17. \[\] 87 C.

5 Cur. Law. ESTOPPEL SS 5. 1299 must be set forth with particularity and precision, and nothing can be supplied by intendment or inference,\[38\] and when there is ground for inference on intendment, it will be against and not in favor of estoppel.\[39\] The burden of proving estoppel is on the party alleging it,\[40\] and every element or essential fact must be made to apper by clear and convincing proof.\[41\] Proof of an equitable estoppel in a suit on a contract does not violate the rule that a written contract can be altered only by a contract in writing or by an executed oral agreement.\[42\] Whether certain facts constitute an estoppel is for the court; but the existence of such facts is for the jury if there is a conflict in the evidence.\[43\]

SS 5. \_Extent of operation of doctrine of estoppel.\[44\]--\_in estoppel operates against a privy of the party estoppel.\[45\] Parties under disability are not estoppel unless their conduct has been intentional and fraudulent.\[46\] Though there is a conflict, the weight of authority seems to be that the doctrine of estoppel is applicable to married women;\[47\] at least in those states where they have been given enlarged property rights.\[48\]

estoppel is admissible under the general ls- 42. Civ. Code, SS 1287, not violated. Franuse. Dickison V. New York Biscuit Co., 211 isn V. Regents of Education of South Dakota \[C. C. A.133 F. 24. 43. In ejectment to recover land on which shown by the evidence, it cannot be taken advantage of unless pleaded. Schofield v. properly instructed that if they found that plaintiff had consented to the construction of the building, he was estoppel to deny lo.\[18\] When an estoppel if relied on as a defense in equity and is such that it can be pleaded, it should be alleged with particutivand certainty. Potter v. Fitchburg Steam Engine Co., 111 Ill. App. 430. 39. Bartholomee v. Lowell \[Ind.\] 72 N. E. W. 1030. 40. Jos. Schlitz Brewing Co. v. Grimmon \[Nev.\] 81 P. 43. 41. Proof of acts constituting an estoppel must be clear. Houghen v. Skjervheim \[N. D.\] 102 N. W. 311. Claim of estoppel untenable because proof of essential elements was wholly wanting. McCook Irrriation & Water Power Co. v. Kreps \[Neb.\] 87. 39. 102 N. W. 249. Evidence held not to show reperesentations on which an estoppel could be based. Hase v. Schotte \[Mo. App.\] 84 S. 87. 1014. An estoppel in pais must be made to appear by clear and convincing evidence and is only sanctioned in order to prevent perpetation of fraud and to promote Justice. Potter v. Fitchburg Steam Engine Co., 110 Ill. App. 430. Unless fraud is proved, an estoppel cannot be based upon acts or conduct of the party sought to be estopped, where such: conduct is as consistent with honest purpose or with absence of negligence, as with their opposites. Standard Sanitary Mfg. Co. v. Arrott \[C. C. A.135 F. 150. Evidence held insuffient to prove an agreement by which the owner of a patent would be estoppel to claim title to a pat.\[18\]

5. \_Extent of operation of doctrine of estoppel.\[44\]--\_in estoppel operates against a privy of the party estoppel.\[45\] Parties under disability are not estoppel unless their conduct has been intentional and fraudulent.\[46\] Though there is a conflict, the weight of authority seems to be that the doctrine of estoppel is applicable to married women;\[47\] at least in those states where they have been given enlarged property rights.\[48\]

estoppel is admissible under the general ls- 42. Civ. Code, SS 1287, not violated. Franuse. Dickison V. New York Biscuit Co., 211 isn V. Regents of Education of South Dakota \[C. C. A.133 F. 24. 43. In ejectment to recover land on which shown by the evidence, it cannot be taken advantage of unless pleaded. Schofield v. properly instructed that if they found that plaintiff had consented to the construction of the building, he was estoppel to deny lo.\[18\] When an estoppel if relied on as a defense in equity and is such that it can be pleaded, it should be alleged with particutivand certainty. Potter v. Fitchburg Steam Engine Co., 11 Ill. App. 430. 39. Bartholomee v. Lowell \[Ind.\] 72 N. E. W. 1072. Assignor of chatted mortgage being estopped by conduct to enforce it against subsequent mortgages for value, assignee is also estoppel. May v. First Nat. Bank \[Neb.\] 104 N. W. 184. 46. Minors not estopped by accepting benefits of sale of land from setting up in-validity of sale, guardian having purchased for his own benefit. Cooper v. Burns, 133 F. 398. 47. Orlee v. Woodwarth \[Idaho\] 80 P. 912. 81. 8.

1300 ESTOPPEL SS 5. 5 Cur. Law.

The doctrine of estoppel applies to states and public municipalities in litigation concerning property rights.\[40\] But neither the state 50 nor a public municipality 51 can be estopped by unauthorized acts of its agents. A state may be estopped by record.\[52\]

The doctrine of estoppel does not apply to a matter in the nature of a public right,\[53\] nor where property, and not a person, is to be charged.\[54\] One cannot be estopped to assert the invalidity of a wholly -void assessment \[55\] or tax foreclosure proceeding.\[56\] Since jurisdiction cannot be conferred on a foreign tribunal by the application of the principle of equitable estoppel, one cannot be estopped to deny

tive fraud (Steed v. Petty, 65 Tex. 490), or original bonds were void. City of Tyler v. at least unless her acts amount in law to Tyler Eldg. & Loan Ass'n \[Tex.\] 86 S. W. fraud (Johnson v. Bryan, 62 Tex. 623: Louls- 760. Where the trial court has for years alive, etc., H. Co. v. Stephens, 96 Ky. 401, 49 Am. St. Rep. 303). But if a married woman's contract re- led to claim that application to have case 1 5 Cur. Law. Evidence. Evidence.

the validity of a foreign decree of divorce.\[87\] In Texas a parol sale of real estate is upheld on the ground of estoppel if the facts constituting an estoppel are present,\[88\] as where the vendee makes improvements in reliance upon the parol sale, the vendor having knowledge thereof.\[89\]

The doctrine of estoppel has been applied in criminal law as well as in civil cases.\[90\] Thus, it has been held that a county officer who had himself selected a jury list and sworn to its legality is estopped to set up illegality on the ground that the grand jury was drawn from an irregular list when tried on an indictment for misfeasance in office.\[91\]

## Evidence.

- 1. Necessity and Duty of Adudueling Evidence (1302).
- 2. Practical Notice (1302).
- 3. Presumptions and Burden of Proof (1303). The Burden of Proof (1308).
- 4. Reviewancy and Materiality (1308).
- 5. Competency or Kind of Evidence in General (1315).
- 6. Best and Secondary Evidence (1315).
- 7. Documentnry Evidence (1342).
- 8.1 Quantity Required and Probatve Effect (1368).

### Scope of article.

This article treats specifically of the competency of evidence, the competency of witnesses and the rules governing their examination being entirely excluded,\[62\] and questions of relevancy and sufficiency of evidence, except so far as they illustrate some general rule, being excluded to titles dealing with the particular subject or issue to which the evidence is addressed. Evidence in criminal prosecutions is also treated elsewhere,\[93\] though occasional holdings of undoubted general application have been included.

- 57. Percival v. Percival, 94 N. Y. S. 999.
- 58. Bringhurst v. Texas Co. \[Tex. Civ. App.\] 87 S. W. 893.
- 59. One who bought up several outstanding claims, bought one under a parol agreement, and thereafter made valuable improvements on the land. Held, though the purchaser did not rely exclusively on the parol sale, the vendor was estopped to claim against him. Bringhurst v. Texas Co. \[Tex. Civ. App.\] 87 S. W. 893.
- 60. See discussion in State v. Second Judicial Dist. Ct. \[Mont.\] 78 P. 789.
- 61. State v. Second Judicial Dist. Ct. \[Mont.\] 78 P. 789.
- 78. 79.
- 79.
- 70. Note: "It has been held that if a person makes away with money which he has received upon his false representation that he is the agent of another and that he accepts the money for his alleged principal, he may be punished for the crime of emplacement. State v. Spaulding, 24 Kan. 1. Contra, Moore v. State, 53 Neb. 831. As in the present case (State v. Second Jud. Dist. Court \[Mont.\] 78 P. 789), this result is reached on the ground that the prisoner is estopped to deny what he represented to be true. This reasoning can hardly be supported. The state should punish a person only for doing it an Injury, and should conduct the trial in a legal and regular manner. Hence the false representation of a person which, if true, would result in his criminal liability, or his false statement that a certain procedure is legal, should not form the basis for the inflation of punishment: for, in the first instance, the injury for which he is being punished has not really been done, and in the second he is not in fact being legally tried. 12 Hrav. L. R. 58."--18 Hrav. L. R. 467.
- 62. See 3 C. L. 1335. See Witnesses, 4 C. L. 1943; Examination of Witnesses, 5 C. L. 1943. See Indictment and Prosecution, 4 C. L.

EVIDENCE SS 1A. 5 Cur. Law.

**SS 1**.: _Necessity and duty of adducing evidence._\*\*--Facts admitted in the pleadings or on the trial "65 need not be proved.

(SS 1) _A. Judicial notice._\*\*66--Courts take judicial notice of their own records and proceedings "7 in causes pending before them; "85 of public domestic statutes "9 and other official acts of the legislature; "0 of the adoption of a constitutional amendment; "11 of regulations "2 and official acts of the executive departments of the United States; "3 of public elections; "4 of who are public officers; "5 of the common-law powers of a notary; "65 of public surveys and boundaries of public municipalities; "77 of matters of common knowledge; "78 of general customs; "9 of well settled

**64**.: See 3 C. L. 1335.

falroads have been assessed and have paid ad valorem taxes for previous years purv- civil suit may obviate necessity of proof of suquant to Rev. Code 1892, $ 3877. Gulf & S.

N. R. Co. V. Adams (Mils.) 38 Sq. 48.

v. Davis, 112 Ill. App. 636; Everett v. Marsden, 186 M. 687, $ 5 B. V. 540. Admissions

nail by which members were expelled Judicialy noticed under Code City. Proc. 1875, when distinct and formal and made for the express purpose of dispensing with proof of acts of the legislature. French v. Senate a fact on the trial. Hicks v. Naomi Falls

Mfg. Co., 138 N. C. 219, 50 S. E. 702. Inferred by legislative enactment for beginning formal admissions of an attorney at a for- and sessions of superior courts of the state. Edwards v. State (Ga.) 51 S. E. 630. That at a subsequent trial. Thus, where, in foreignitance action, attorney said he would take a of enactronchments on public streets. Emnonsuit if facts were as defendants' witnesses said they were and after two per-sons had investigated, did take a nonsuit, the attorney's admissions were not binding-in on the client in a subsequent action. Id.

**72**.: _Judicial notice taken of post office regulations which are a part of public records. Carr v. First Nat. Bank \[Ind. App.\]_

**73**.: _N. R. 947._

**74**.: _Under Code Civ. Proc. 8 3150, orders er, 126 Iowa, 111, 101 N. W. 638. Court took judicial notice of records of other cases be judicially noticed. State v. Tully \[Mont.\]_

**75**.: _Necessity and duty of adducing evidence._\*\*64--Facts admitted in the pleadings or on the trial "65 need not be proved.

(SS 1) _A. Judicial notice._\*\*66--Courts take judicial notice of their own records and proceedings "77 in causes pending before them; "85 of public domestic statutes "9 and other official acts of the legislature; "0 of the adoption of a constitutional amendment; "11 of regulations "2 and official acts of the executive departments of the United States; "73 of public elections; "14 of who are public officers; "15 of the common-law powers of a notary; "76 of public surveys and boundaries of public municipalities; "77 of matters of common knowledge; "78 of general customs; "79 of well settled

**64**.: See 3 C. L. 1335.

falroads have been assessed and have paid ad valorem taxes for previous years purv- civil suit may obviate necessity of proof of suquant to Rev. Code 1892, $ 3877. Gulf & S.

N. R. Co. V. Adams (Mils.) 38 Sq. 48.

v. Davis, 112 Ill. App. 636; Everett v. Marsden, 186 M. 687, $ 5 B. V. 540. Admissions

nail by which members were expelled Judicialy noticed under Code City. Proc. 1875, when distinct and formal and made for the express purpose of dispensing with proof of acts of the legislature. French v. Senate of State 141 C. 640, $ 10 P. 1021. Dates

Mfg. Co., 138 N. C. 219, 50 S. E. 702. Informal admissions of an attorney at a for- and sessions of superior courts of the state. Edwards v. State (Ga.) 51 S. E. 630. That at a subsequent trial. Thus, where, in foreignitance action, attorney said he would take a nonsuit if facts were as defendants' witnesses said they were and after two per-sons had investigated, did take a nonsuit, the attorney's admissions were not binding-in on the client in a subsequent action. Id.

**76**.: _Necessity and duty of adducing evidence._\*\*64--Facts admitted in the pleadings or on the trial "65 need not be proved.

(SS 1) _A. Judicial notice._\*\*66--Courts take judicial notice of their own records and proceedings "77 in causes pending before them; "85 of public domestic statutes "9 and other official acts of the legislature; "0 of the adoption of a constitutional amendment; "11 of regulations "2 and official acts of the executive departments of the United States; "73 of public elections; "14 of who are public officers * 5 Cur. Law. EVIDENCE SS 1B. 1303 or authenticated scientific, \[56\] geographical, \[91\] and historical \[82\] facts; and, since attorneys are officers of the court, \[83\] whether a certain person is a duly licensed attorney at law. \[84\] In the absence of a statute to the contrary, \[85\] the laws of another state, \[86\] special or private acts, \[87\] and municipal ordinances, \[88\] will not be judicially noticed. A voluntary report of a grand jury not made pursuant to the requirements of law will not be judicially noticed. \[89\] Appellate courts may judicially notice terms of lower courts, \[90\] but not their rules. \[91\] Alkin to the doctrine of judicial notice but clearly to be distinguished therefrom is the inference by the court of ultimate from probative facts. \[92\] (SS 1) _B. Presumptions and burden of proof. \[93\]_--The so-called conclusive presumptions, being mere rules of law, are not here treated; and only those disputable presumptions which are of wide application are discussed or illustrated. \[94\]

neister v. White, 179 N. Y. 235, 72 N. E. \[disease and that swamps are detrimental to 97. Construction of ordinary horse street \[public health. Applegate v. Franklin \[Mo. car. Kleffman v. Dry Dock, etc., R. Co., 93 App.\] $4 S. W. 347. N. Y. S. 741. Nature of game of ping pong \[83\]. That Missouri military reservation is and that ping pong balls not lovs. located in Missouri County. State v. Tully United States v. Strauss Bros. & Co. \[C. C. \[Mont.\] 78 P. 160. That the Passac river A.\] 136 F. 185. That certain land is held as \[is a tidal stream, the bed of which belongs \[to the state so far as the tide ebbs and flows. under private purchase; but not of the \[Mccarter v. Hudson County Water Co. \[N. mates and bounds of the land so used. Baker v. State \[Tex. Car. App.\] 83 S. W. 82.\] J. Eq.\] 61 A. 710. 1123. That the use of dynamite in constructing tunnel under populous city is \[and\] the original English colonies. Frank brently dangerous. City of Chicago v. Murchol, 113 Ill. App. 656. That electricity \[s dangerous and that society recognizes the \[s\]. fact and acts accordingly. Warren v. City, \[84\]. Weber v. Powers, 114 Ill. App. 411. 115. R. Co. \[Michel.\] 12 Det. Ex. N. 415, 104 N. W. 613 That best spark arrests will \[judical notice is taken of laws of other \[s\]. states. Creelman Lumber Co. v. Lesh & gines under certain conditions. Babbit v. Erie R. Co., 95 N. Y. S. 429. That phosphate is mined in parts of Florida and is an article \[App. 405; Clark v. Assets Realization Co., of transportation. State v. Atlantic Coast Line R. Co. \[Fla.\] 37 S. 652. That all taxes assessed are not collected until years after the assessment. State v. Multy \[Wash.\] 82 P. 118. Judicially known that letters "N. P." after signature in acknowledgement are \[commonly used to signify \["notary public." Leech v. Karthans \[Ala.\] 37 S. 656. In action for infringement of patent, court will take judicial notice of conventional bushel basket. Roberts v. Bennett \[C. C. A.\] 136 F. 193. Judicial notice taken of intimate commercial relations between two ports, and inference drawn that highest wage at port of departure would not be less than lowest at port of destination. The Elihu Thompson, 139 F. 89. Court will not that its eyes to common knowledge of character of improvements in business center of Chicago, and that large buildings are there erected under long term leases. Denegre v. Walker, 114 Ill. App. 334. Code Civ. Proc. $ 1875, authorizing courts to take judicial notice of the true significance of English words and phases, enables them to assume judicial knowledge of common and current knowledge relating to automobiles. Ex parte Berry \[Cal.\] 82 P. 44. \[Th. John O'Brien Lumber Co. v. Wilkin-son, 133 Wis. 272, 101 N. W. 1060. 80. That 1-10 of grain of morphine taken \[every four hours could not poison a person. Laturen v. Bolton Drug Co., 93 N. Y. S. 1035. That overflows and floods are followed by A presumption of fact is simply an inference or conclusion logically deduced from known data. \[95\] A presumption of fact cannot be based upon another presumption of fact, \[96\] but must be an immediate inference from facts proved. \[97\] Inconsistent presumptions cannot spring from the same state of facts. \[98\] Whether a particular inference can be drawn from facts proved is a question of law; \[99\] which of two possible and proper inferences shall be drawn, and whether one inference defeats or answers another, is for the jury. \[1\] Among the presumptions of fact or logical inferences commonly recognized are the presumption that a state of facts once shown to exist will continue to exist \[2\] as long as is usual with things of that nature; \[4\] that the ordinary and usual course of business has been followed; \[4\] that a letter properly addressed, \[5\] stamped and mailed, and not returned, was received by

trol over rules of evidence subject only to constitutional limitations. (Applied to act of Congress which creates presumption in favor of report of interstate commeree commission). Titt v. Southern R. Co., 138 F. 75. 85. Western Maryland R. Co. v. Shivers \[Md.\] 61 A. 618. 96. Byczynski v. Illinois Steel Co., 115 Ill. App. 326; Condon v. Schoenfeld, 214 Ill. 236, 73 N. E. 333: Tull v. St. Louis R. W. R. Co. \[Tex. Civ. App.\] 87 S. W. 910. The existence of a fact cannot be presumed from another fact which itself rests wholly on presumption. Williams v. Miles \[Neb.\] 102 N. W. 482. 97. No presumption can be drawn from a presumption; circumstantial evidence being relied on, the circumstances must be proved and not themselves presumed. Bube v. Weatherly Borough, 25 Pa. Super. Ct. 88. 98. Pacts warranting inference of negligence cannot give rise to contrary presumption. Western Maryland R. Co. v. Shivers \[Md.\] 61 A. 618. 99, 1. Seely v. Manhattan Life Ins. Co. \[N. H.\] 61 A. 585. 2. Cohablitation, without marriage ceremony, commenced as meretricious, is presumed to continue such. Bell v. Clarke, 45 Misse. 272, 92 N. Y. S. 163. Incorporation of a bank, once admitted, is presumed to continue until contrary is shown. Anglo-Call: formalen Bank v. Field, 146 Cal. 644, 80 P. 1080. Voting machines are presumed to remain unchanged between the close of election, when read by inspectors, and the time of an election contest. Turnbull v. Board of Canvasers of Jackson \[Mich.\] 12 Det. Leg. N. 255, 103 N. W. 993. Recital in deed of 1862 that grantor was a bachelor is presumptive proof that he was a bachelor in 1858, a deed of that year containing no statement as to whether he was married or sling. Gibson v. Brown, 214 Ill. 330, 78 N. E. 578. Where no evidence of a change in the condition of an automobile between the time of its possession by defendant and exsmination by experts was introduced, the jury was warranted in drawing inference that condition had remained unchanged, and evidence of the expert examination was admissible without showing that the condition had remained unchanged. White Sew. Mach. Co. v. Phoenix Nerve Beverage Co. \[Mass\] 74 N. E. 600. 3. Under Code Civ. Proc. $ 3266, cl. 32, account shown to have been good and col 5 Cur. Law. EVIDENCE SS 1B. 1305

the addressee' in due course of the mail;' that one in possession of personality is the owner;' that an owner of land is in possession;' that a person absent from home for seven years, and not heard from, is dead.10 Identity of person is presumed from identity of name.11 Other illustrations are given in the note.12

Suppression or spoliation of evidence warrants the presumption that, if produced, the evidence would be unfavorable to the party suppressing it;13 and failure to call an available 14 witness 16 to rebut a prima facie showing made by the other party on a particular issue 16 warrants the inference by the jury that the testimony of the witness, if produced, would be unfavorable.17 But this presumption

Caplis \[Mich.\] 12 Det. Leg. N. SS7, 103 N. W. 531. Account stated sent in customary way what he would have seen had he looked, and is presumed to have been duly received. Inexd what he would have heard had he Dick v. Zimmermann, 105 III. App. 615. Addressee presumed to have received notice July 7, 72 N. E. 1053.

43 Patch Mfg. Co. v. Protection Lodge, but presumption is rebuttable. Sherord v. No. 215, International Ass" of Machlinists Farmers' Mut. Fire Ass" \[N. C.\] 61 S. E. 910.

7. Disputable presumption that letter

day directed and mailed was received in it was a properly witnessed note on which regular course of mail. B. & C. Comp. 8 788, subd. 24. Sloan v. Sloan \[Or.\] 78 P.

893. Mailing of letter raises prima facie presumption that it was received in due course by the person to whom it was properly addressed, Merchants' Exch. Co. v. Sanders \[Ark.\] 84 S. W. 786. Proof of the writing of a letter on a certain day and of his receipt by the addressee at the time it would have arrived in due course is suffunct, the father's claim as to serious incident to support a finding that it was mailed the day it was written. Campbell v. Beard \[W. Va.\] 50 S. E. 747. Proof of the receipt of a letter and the day on which it was written, dispenses with proof in detail of addressing, stamping and deposit in the mail, no objection being made to the form in which the evidence is introduced. Id.

001. Husband who had possession of money before and at time he deposited it in wife's name was presumptive owner. First Nat. Bank v. Taylor \[Ala.\] 37 So. 695. Posses-

sion of a negotiable instrument payable to order and properly indorsed is prima facie proof of bona.fide holdership. Price v. Win-

the negao Nat. Bank, 14 Okl. 268, 78 P. 105.

9. An owner of land is presumed to be in possession until quoted by an actual occupant. Kreamer v. Voneda, 24 Pa. Super. Ct. 347. Presumption of possession follows proof of ownership. Bewers v. Smith, 98 App. Div. 289, 90 N. Y. S. 575.

1. Presumption of death arises where a person leaves his home and is continually absent therefrom for more than seven years, without any intelligence being received of his wireanobouts. Policemers'

Benevolent Ass" n V. Ryce, 115 III. App. 95.

Mere absence of husband from home and failure to send word to family for sixteen years does not raise presumption of death when husband was known to have been living with another woman, having given up his former home. Donovan v. Twist, 93 N. Y. S. 990.

11. Code Civ. Proc. subd. 25, SS 1963. Bickerdike v. State, 144 Cal. 698, 78 P. 271.

01. Fact and date of baptism being shown, birth on a day prior thereto will be presumed. Collins v. German-American

Mut. Life Ass" \[Mo. App.\] 85 S. W. 881. It will be assumed that a traveler, bound to tion does not relieve the other party from introducing affirmative proof on the issue in question 50 far as he has the burden thereon.\[18\] Evidence tending to show efforts to produce witnesses,\[10\] or to show that certain persons would be incompetent to testify if produced,\[20\] or to otherwise explain their absence,\[21\] is admissible to rebut any unfavorable inferences which may be drawn from their absence. No unfavorable inference is to be drawn from failure to call a witness equally available to both parties,\[22\] or to call all the persons who could throw light on the questions at issue.\[23\] Efforts to suppress testimony must be shown by competent evidence.\[24\]

Among the presunptions indulged by courts on grounds of public policy are, the presumption that judicial proceedings have been regular;\[25\] that a court of record is one of general jurisdiction\[26\] and had jurisdiction of the parties and subject-matter in a given case;\[27\] that official acts and duties have been regularly performed,\[28\] in accordance with law;\[28\] that men are same\[29\] and solvent,\[21\] and are the right to draw any inference from the \[ to accident. Macon R. & Light Co. v. Mason fact which they deem warranted. Kirkpatrick v. Alternannia Fire Ins. Co., 102 App. Div. 227, 82 N. Y. S. 466.

18. Instruction, fairly construed, held to correctly state the law. Patch Mfg. Co. v. Protection Lodge, No. 215, I. A. M. \[Vt.\] 60 A. 74. Suppression by one party of a document relied upon as evidence by the opposite party \[g not equivalent to an admission of the truth of the claim of the latter re-garding its contents. Suppression does not dispense with the necessity of prima facie proof of the claim sufficient to sustain a judgment or decree. Stout v. Sands, 56 V. Va. 663, 49 S. E. 428. But when a prima facie case is made, and doubt is cast upon it by rebuttal evidence or otherwise, suppression of the document raises a strong inference against the party suppressing it, and determines the point in favor of the other party. Id.

01. Lichtenstein v. Case, 99 App. Div. 570, 91 N. Y. S. 57. Evidence that party had applied to street railway company for list of witnesses of accident and had been refused was admissible to account for failure to produce witnesses. Iaquinto v. Bauer, 93 N. Y. S. 388. Where, in action for non-de-livery of telegram, it 'appeared from the evidence that the messenger, who testified on a former trial, was not present, evidence of defendant's efforts to procure his attendance was admissible to rebut the inference which jury might draw from his non-attendance. Western Union Tel. Co. v. Waller \[Tex. Civ. App.\] 84 S. W. 695.

01. No unfavorable inference can be drawn from failure to call an attending physician as a witness, since information acquired by him to enable him to prescribe would be privileged under five. St. 189.

01. Arnold v. Maryville, 110 Mo. App. 254, 85 S. W. 107. In action on liquor dealer's bond for allowing minor on premises, state could show that minor's mother was mentally unsound in explanation of its failure to put her on the stand to prove the alleged minor's age. Brewster v. State (Tex. Civ. App.) 13 Tex. C. Rep. 685, 88 S. W. 858.

01. Component for plaintiff personal injury case to explain absence of eyewitness 5 Cur. Law. EVIDENCE SS 1B. 1307 under no disability;\*\*2 that they exercise ordinary care;\*\*33 that their acts are legal;\*\*4 within their rights,\*\*35 \*\*and free from fraud;\*\*36 \*\*and that death resulted from natural causes and was not voluntary.\*\*37 \*\*The presumption that a public officer has done his duty cannot sustain his action when mandatory requirements of the law concerning the record of such action are disregarded.\*\*38 \*\*The presumption that members of a corporation are citizens of the state where the corporation has its legal existence is indulged only to fix the status of a corporation as a litigant and does not obtain when the question is as to the citizenship of an individual suing in his own right.\*\*39 \*\*In the absence of proof of a statute, the common law is presumed to prevail in a foreign state,\*\*40 \*\*providing such state was once subject to the laws of England.\*\*41 \*\*In the absence of proof to the contrary, the laws of a foreign state are presumed to be the same as those of the forum;\*\*42 **but this presumption does not apply to statutory law.**43****

01. Absence of disability tosue is presumed, no disability being shown by evil.

vanla being proved, prohibitting alienation of annualties, common law with reference thereof. Arnold V. Limeburger \[Ga.. 49 S. E. 812.

33. No presumption that physician was

negligent arises from fact of failure to ef-

fect a cure. Wohlert v. Seibert, 23 Pa. Super. Ct. 213.

34. Law presumes payments made by

bankrupt were legal. Keith v. Gettysburg

Nat. Bank, 23 Pa. Super. Ct. 14. Every presumption is against a violation of law by

a usurlous contract. Cameron v. Fraser, 94

N. X. S. 1058. Presumed that one creating

a buliding compiled with regulation requiring

ing filing of plans, and that city consented

to creation of building. Empire Realty Corp.

v. Sayre, 95 N. Y. S. 371.

35. Presumption is that possession of one

co-tenant is not adverse to other co-tenant

ants. Cberly v. Copherly \[Mo.\] 87 S. W. 957.

36. Fraud will not be presumed. Jones

v. Rogers \[Miles.. 38 S. 742.

37. Prima facte presumption is that death

v. Murbny, 145 Cal. 482, 78 P. 1053. Law of

was not by suicide. Clemens v. Royal

Neyabka as to express trusts in reality pre-

Nightsbornes of America \[N.. D.\] 103 N. W. 402:

v. Knightts Templars' & Masons' Life Indemality

Dunphy's Estate \[Ca..\] 81 P. 315. Laws of

Co. v. Crayston, 110 Ill. App. 648. Presump-

lous as to effect of alteration in note on its

tion that same man will not commit suicide

negotiability presumed same as those of

is rebuttable. Hardinger v. Modern Brothth-

Schans. First Nat. Bank v. Nordstrom

erb of America \[Neb.\] 103 N. W. 14. Pre-

sumption is against suicide, but this pre-

sumption may be rebutted. Masonic Life

Ass'n v. Pollard's Guardian \[Ky.\] 89 S. W.

219.

001. No record of selection of land to supply deficiency of school land. Laurve v. Wilson

\[La.\] 88 S. 622.

39. That litigant is president of a corporation creates no legal presumption that the

is a citizen of the same state as the corpora.

Utah-Nevada Co. v. De Lamar \[C. C. 1. 133 F. 113.

40. Midland Steel Co. v. Citizens' Nat. Bank, 34 Ind. App. 107, 72 N. E. 299: Penn

Mut. Life Inc. Co. v. Norcross, 163 Ind. 379.

72 N. E. 132: Scholten v. Barber \[Ill.\] 75 N. N. E. 456:

8. Atob; Eckles v. Missouri Pac. R. Co. \[Mo. 5.00:

Appl.\] 87 S. W. 99; Frank v. Gump \[Ya.\] 51

8. E. 358. Common law of contracts

sumed to be in force in other state. Bailey

v. Devine \[Ga..\] 51 S. E. 603. Common law

person who may take fraternal Insurance.

presumed to prevail in Virginia as to bills

Wood V. Supreme Ruling of Fraternal My-

of lading as evidence of contract. National

tie Circle, 212 Ill 532, 72 N. E. 783. There

Bank of Bristol v. Baltimore & O. R. Co., 99

bing no common law on the subject, no pre-

Md. 661, 69 A. 134. No statute of Pennsylvania-

sumption can be indulged as to the law of The burden of proof44 is always on the party asserting a fact as the basis of his action or defense,45 and it never shifts during the progress of the trial.46 The burden of adduction may, however, change according to the necessities of the case in overcoming evidence introduced by the other party.47 Which party has the burden of proof on particular issues is to be determined from the pleadings48 and the rules governing their construction.49

Footnote 47: The author is grateful to the anonymous referee for the support of the research

## 5 Cur. Law.

evidence $2.

on issue whether such light shone on adja-cont track. Chicago & A. R. Co. v. Vipond,

whether certain money or property came $12 $11. Ill. 199, 72 N. E. 22. Evidence that de- to him. Bank account admissible. Wright

fendants procured indemnity insurance

Against accidents in an elevator admissible

for injuries to child from electric wires, evidence of voltage carried in .wirca in city

them. Forkins v. Rice, 187 Mass. 28, 72 N.

E. 323. Evidence that railway employees

worked on a main crane admissible to show

of negligence. Nagle v. Hake, 123 VIs. 256, the railway company erected and main

tained it. Western R. of Ala. v. Clehorn

evant on issue of fraudulent representations

(Ala.) 39 So. 133. Condition of two cars

as to flow of oil, though statements them-

which collided may be shown on issue of

solves were not shown to be correct. Barns-

speed of train. Elgin, A. & S. Traction Co.

all v. O'Day \[C. C. A.\] 134 F. 828. In ac

v. Wilson \[I'll.\] 75 N. E. 436. On issue of fraud in a salo, evidence of financial con-

lowed to show market value of property

dition is admissible but should be confined

to time of sale. Fabian v. Traeger, 215 Ill.

amount realized from public judicial sale as

220, 74 N. E. 111. Where fraud in procur-

compared with ordinary market value. Mills

ing insurance on goods is charged, and false

v. Larrance, 111 Ill. App. 140. Evidence that

swearing after the fire, testimony as to

on former trial a witness had been asked to

value of goods based on what witnesses saw

point out plaintiff, in the court room, and

in the warehouse was relevant. Prudential

Tire Ins. Co. v. Alley \[Va.\] 51 S. E. 812. On

in issue whether she knew him. Interna-

the issue of damage caused by burning over

land, evidence of another owner that his

App. 1 $5 W. 1163. Measurement by wit-

land had been similarly burned over and

ness of place pointed out by prosecutor as

was not permanently injured but improved,

place where crime was committed admiss-

was relevant though the parcels of land

sild. People v. Kelly, 146 Cal. 119, 7 P.

wro not shown to be similarly situate

ed. Castner v. Chicago, etc., R. Co., 126

**Held Irrelevant:** In action by payee against

Iowa, 158, 102 N. W. 499. Whether rail-

maker of noto, evidence of an indorsorsent

road track had been worked so that tracks

is irrelevant. Burns v. Goddard \[S. C.\] 51 of steer had been obliterated relevant to

show position of animal when struck and

street railway company, evidence that no re-

whether obliteration of tracks was inton-

ports of the accident had been sent in by

tional. Klay v. Chicago, etc., R. Co., 126

comployes, and that company had not heard

Iowa, 671, 102 N. W. 526. Whether witness

of it from anyone, is inadmissible. Guenther

over board defendant request plaintiff to do

v. Metropolitan R. Co., 23 App. D. C. 493.

any work admissible in action for services

Proof of doctor's bills inadmissible in

based on implied contract. Grodian v. Rice

sonal injury action without proof of re-

\[VWs.\] 102 N. W. 551. In action for breach

sonalness of charges and of payment of

of covranant permitting losses to go on ad-

the bills. Klingman v. Fish & Hunter Co.

Joining land to shore leased property,

\[S. D.\] 102 N. W. 601. Where lettor of owner

port testimony that sharing of building from

offering land at certain price was introduced,

lessor's other land was unnecessary was rel-

offord evidence in rebutal that writer had

vant and material. Levy v. Tiger, 90 N.

nothing to do with land or its management,

Y. S. 366. Evidence of hole in roadbed rel-

some time before the letter, irrelevant.

vant where petition alleged that rail

Kaufman v. Pittsburg, C. & W. K. Co. \[Pa.\]

tended above ground, and earth was waswab

- 60 A. 2. In action to recover contract price

away from it. El Paso Elec. R. Co. v. Davis

for water furnished during a particular

\[Tex. Civ. App.\] 83 S. W. 718. Letter con-

period, evidence of condition of reservoir

taining statements of plaintiff inconsistent

and sufficiency of supply at a subsequent

with claim in suit erroneously excluded.

time is irrelevant. Ephrata Water Co. v.

Lemback v. Steidel \[N. J. Err. & App.\] 59 A.

Ephrata Borough, 24 Pa. Super. Ct. 353.

460. In suit for cancellation of deceds for

Whether plaintiff's doctor bills had been

dures, evidence ofto collateral matters not pleaded \[52\] or otherwise placed in issue,\[53\] not relating to the transaction \[54\] or subject matter \[55\] in issue, and furnishing no legal inference as to was irrelevant. Stewart v. North Carolina \[\[Tex. Civ. App.\] 13 Tex. Ct. Rep. 503, 88 S. E. Co., 136 N. C. 385, 48 S. E. 178. Introduction of lease from defendant to plaintiff erroneous in action against defendant for tresel- pass for wrongfully foreclosing chattel mort- gage. Tanton v. Boomsaarden, 111 Ill. App. 37. Ordinance providing where cars should stop at street intersections inadmissible to prove where a car should have stopped when turning a corner. West Chicago St. R. Co. v. Brown, 112 Ill. App. 351. Ordinance restricting speed of trains inadmissible to prove contributory negligence of fireman on engine of one of two colliding trains, since such fireman did not have control of operation of train. Chicago & A. R. Co. v. Vipond, 112 Ill. App. 558. Where expert testified that a car-in might occur in a prop- erly timbered mine, evidence of causes that might produce a cave-in was properly excluded, it not being in evidence that any of such causes existed at the mine in question. Mountain Copper Co. v. Van Buren \[C. C. A.\] (N. S.) 407.

133 F. 1. Question as to rate of interest at which money could be invested for long term of years, too remote on question of damages, since rate changes. Lakeside Mfg. Co. v. Worcester, 186 Mass. 552, 72 N. E. 51.

In action by consignor, who had sought to stop goods in transit, against a purchaser from the consigne, to recover the goods, a letter from the attorney of the consigne to such purchaser, demanding payment, is in- admissible. Delta Bag Co. v. Kearns, 112 Ill. App. 269. Whether a sum would have been paid by a beneficial association if dues had been paid on certain date, immaterial.

Wells & McComas Council No. 14, Junior Order U. A. M. v. Littleton \[Md.\] 60 A. 22.

"Mitness could not testify to condition of light at place visited by him without a showing that such place was that where the crime in question was committed. People v. Kelly, 146 Cal. 119, 79 P. 846. Inventory and ap- prasement of property in settlement of estate landmissible to show acts of ownership over property by deceased in his lifetime.

Nathan v. Dierssen, 146 Cal. 63, 79 P. 739.

52. In general, evidence is admissible to prove facts pleaded and not admitted. Greenlee v. Mosnat, 126 Iowa, 330, 101 N. W.

01. Testimony irrelevant because not responsive to allegations of complaint. Book v. American Pipe Mfg. Co., 69 S. C. 360, 48 S. E. 276. Evidence that injuries were permanent inadmissible, such fact not being pleaded. Wallace v. New York City R. Co., 92 N. Y. S. 766. Where charge in personal injury action was only ordinary negligence, evidence of the arrest of the conductor and motorman after the accident was irrelevant. Chicago City R. Co. v. Unter, 212 Ill. 174, 72 N. E. 195. Where one party pleaded an agreed boundary line, and the other trav-ersed the allegation, the latter could not show that the agreement was under a mistake, this being inconsistent with the pleading. Berry v. Evans \[Ky.\] 89 S. W. 12. The party pleading the agreement could show statements of the other relating to the agreement. Id.

01. Evidence relating to facts not made an issue is inadmissible. Oneal v. Welsman 5 Cur. Law. EVIDENCE SS 2.

facts in dispute 56 but tending rather to introduce collateral issues which the adverse party is not bound to be prepared to meet,57 is usually excluded as too remote.58 But whether evidence which is relevant, but only remotely so, shall be admitted or excluded, rests largely in the discretion of the court.59

On the issue of negligence, evidence of other similar accidents is inadmissible 59

tine Ins. Co. v. Santa Fe Mercantile Co. \[N. M.\] 82 P. 363. In civil assault and battery, evidence of former assaults of plaintiff is irrelevant to show that he only employed a physician when he intended to bring suit. Lakeekee W. Ring, 128 Vris. 107, 101 N. W. 381. Where vende 1m fraudulent else case said

be borrowed money to pay for stock from a third person, a judgment against the third person, including his testimony in supplementary proceedings that he was pennless, was inadmissible for the creditors. Mori-muru v. Samana, 25 App. D. C. 189.

55. Testimony regarding town meetings, and copies of records thereof, called to consider propositions to convey land other than that in suit, properly excluded. Dawson v. Orange \[Conn.\] 61 A. 101. Evidence that one part of beach had long been public property

proves nothing as to ownership of another part. Id. An opinion of the New York court of appeals on the validity of a contract like the one in suit is inadmissible

where the contract is to be performed in Indiana and must therefore be construed with reference to the law of the latter state. Lake Shore & M. S. R. Co. v. Teeters \[Ind. App.\] 74 N. E. 1014. In action on attachment bond, it is error to read to the jury the opinion of the appellate court in an appeal in the attachment suit, especially since it was admitted that the attachment was unsuccessful. State v. Parsons \[Mo. App.\] 84 S. W. 1019. Rvidence of what an old inhabitant said regarding public rights to certain land properly excluded because not confined to the particular land concerned in the suit. Dawson v. Orange \[Conn.\] 61 A. 101.

56. On an issue whether goods were sold on the credit of a married woman or her husband, evidence that she had rented rooms was irrelevant. Hughes v. McHan, 121 Ga. 499, 49 S. E. 590. Value of water power at certain town irrelevant when not shown to be same as at mill in question. Lakeside

Mfg. Co. v. Worcester, 186 Mass. 552, 72 N. E. 81. Whether one muste was sick is not proved by showing condition of others, the disease not being contagious. Moulton v. Gibbs, 105 Ill. App. 104. In action for damages from smoke coming from defendants' premises, evidence that others than plaintiff were annoyed is inadmissible. Kuhn v. Illinois Cent. R. Co., 111 Ill. App. 323. In action by passenger for injuries, whether other passengers had complained of injuries and sent in claims were collateral and remote matters. Poss v. Portsmouth, etc., R. Co. \[N. E.\] 60 A. 747. Evidence of value of services is irrelevant when it appears there was an express contract specifying the price. O'Connell v. King, 26 R. L. 544, 58 A. 926.

57. Where a witness testified to a specific charge of immortality against a witness, testilmony of the person said to have made the charge was held irrelevant, introducing a
    1312 EVIDENCE SS 2. 5 Cur. Law.

except to show notice; \[61\] and evidence of long use of a device \[62\] or existence of a condition, \[63\] without resulting injury or accidents, is also excluded. What is customary may be shown on the issue of negligence \[64\] but not to excuse negligence, \[65\] and evidence of an individual custom is incompetent. \[66\] To prove the existence of a dangerous condition at a particular time, proof of such condition before or after such time is admissible when it is shown that there has been no change. \[67\] Proof of a defective condition at places other than that where the accident in suit occurred is inadmissible. \[68\] Proof of repairs subsequent to the time of an injury is also inadmissible. \[69\]

61. Proof of previous accidents from the same cause is admissible to show knowledge of the dangerous condition. Previous accidents by falling into unwarted ash pit. Withers v. Brooklyn Real Estate Exch., 94 N. Y. S. 328. In action for injuries received in runaway caused by steam white evidence that a team had been frightened by the whistle on another occasion was admissable to show whistle in that place danger- oaus. Powell v. Nevada, etc., R. Co. \[Nev. 17\]

01. Proof of previous accidents from the admissible on issue of negligence in falling to require, by rules, engineers to whistle of the dangerous condition. Previous accidents by falling into unwarted ash pit. Withers v. Brooklyn Real Estate Exch., 94 N. Y. S. 328. In action for injuries received in runaway caused by steam white evidence that a team had been frightened by the whistle on another occasion was admissable to show whistle in that place danger- oaus. Powell v. Nevada, etc., R. Co. \[Nev. 17\]

01. Proof of previous accidents from the admissible on issue of negligence in falling to require, by rules, engineers to whistle of the dangerous condition. Previous accidents by falling into unwarted ash pit. Withers v. Brooklyn Real Estate Exch., 94 N. Y. S. 328. In action for injuries received in runaway caused by steam white evidence that a team had been frightened by the whistle on another occasion was admissable to show whistle in that place danger- oaus. Powell v. Nevada, etc., R. Co. \[Nev. 17\]

01. Proof of previous accidents from the admissible on issue of negligence in falling to require, by rules, engineers to whistle of the dangerous condition. Previous accidents by falling into unwarted ash pit. Withers v. Brooklyn Real Estate Exch., 94 N. Y. S. 328. In action for injuries received in runaway caused by steam white evidence that a team had been frightened by the whistle on another occasion was admissable to show whistle in that place danger- oaus. Powell v. Nevada, etc., R. Co. \[Nev. 17\]

01. Evidence that elips attaching shafts to wagon had broken on other occasions, to show notice to owner, must be confined to the shipment, evidence of customary length breaks before the accident in question.

of time consumed by a run between the two Schlesinger v. Scheunemann, 114 Ill. App. 459. Evidence as to the condition of a sidewalk subsequent to an injury caused from of street railway company of allowing thereby, or as to injuries subsequent to the one in suit, is not admissible to show knowledge. City of Chicago v. Vesely, 105 Ill. App. 459. Previous specific acts of negligence by engineer admissable to show incompetency and knowledge thereof by master. Conover v. Neher-Toss Co. \[Vrsab. 3\] S. P. 281. Specific acts of negligence by a brakeman could be shown on issue of company's knowledge of his incompetency, it being also shown that the conductor knew of such acts and that it was his duty to report them. Gulf, etc., R. Co. v. Hays (Tex. Civ. App.) 13 Tex. 123 Wis. 256, 101 N. W. 409.

67. Evidence as to condition of defective versible error to show that the brakeman wrote when there was evidence that its confore the fell asleep while on duty, since Metropolitan St. R. Co. 183 Mo. 58, 82 S. W. 126. Condition of seamphone soon after rail-road accident held competent in view of all the evidence. Chicago & A. R. Co. v. VI-pond, 112 Ill. App. 558. Testimony of witness who examined a railroad crossing held to show that the condition of the crossing had not been changed since the accident in question, so that his description of it was relevant. Galveston, etc., R. Co. v. McAdams \[Tex. Civ. App.) 84 S. W. 1076. Evidence of condition of boiler a year or two before an accident was admissible when plaintiff said he would show condition had remained un-changed. Shea v. Pacific Power Co., 145 Cal. 680, P. Y. 373. Condition of railing on stairway day after accident indadmissible wit- and showing there had been no change. Merchants' Loan & Trust Co. v. Boucher, 115 Ill. App. 101. Questions not tending to show repairs or changes but to show a condition of wires existing at the time of an accident, held proper. North Amherst Home Tel. Co. v. Jackson, 4 Ohio C. C. (N. S.) 386.

01. In action for death from crossed electric waves, evidence that defendants' wires were defective at other times and places is 5 Cur. Law. EVIDENCE SS 2. 1313

Proof of similar independent transactions is usually inadmissible to show the nature or terms of an agreement,\[70\] except in the case of a written agreement distinctly referring to a previous transaction; \[11\] but may be admissible to show a conspiracy \[72\] or general scheme to defraud.\[73\]

To prove the value of reality, sales of other lands in the vicinity may be shown, if such lands are shown to be similar in character and location,\[74\] and if the sales are not too remote in time,\[75\] but mere offers are usually inadmissible.\[76\] Rental

Irrelevant. "United Elec. Light & Power Co. V. State \[MAd.\] 60 A. 248. In action for Inapurs from electric wire, evidence of defactinge of defactinge of defactinge insulators at points other than that where injury occurred was inadmissible. North Amherst Home Tel. Co. v. Jackson, 4 Ohio C. C. (N. S.) 386. Evidence of condition of other places in city is admissible, none to show city's negligence, but to show plaintiff was not negligent in choosing face military, 57 Wash. S66, 79 P. L119. Where two sales were on the same day, made in Dodge, 15 Iowa, 627, 101 N. W. 455.

69. Achsey v. Marion, 216 Iowa, 47, 101 N. W. 435. Evidence of repairs to machine after an injury inadmissible to prove negligent. Rabin v. Traeger, 215 Lill, 220, 74 N. E. 131. Where fraud is basis of defense to \[Ala.\] 37 So. 784. Evidence showing that four years after accident wooden railling on against a third person is inadmissible, in starway had been replaced by iron trailing, the absence of aay claim of a general erroneously admitted. Merchants' Loan & Trent Co. v. Boucher, 115 III. App. 101. In action for damages for smoke, etc., allowed to escape from defendants' premises, evidence that smoke stacks were raised after commencement of action is inadmissible to prove negligence, but is admissible to show that lowness of stacks caused injury dominated of. 'Kuhn v. IIlinois Cent. R. Co., 111 Ill. App. 323.

01. On issue of agreement to pay commissions on sales to certain customer, contract between parties relative to sales to another customer was inadmissible. Abrams v. Manhattan Consumers' Brewing Co., 90 N. Y. 8, 425. In action for money had and received, receipt showing payment of money between strangers inadmissible. Vacca v. Marucci, 90 N. Y. S. 386. In action on note, whether plaintiff's agreement with defendant was different from that he usually made in such cases was irrelevant. Shmoys v. Moodard \[8\] C. J 51 S. E. 915. Evidence of what was done under similar contracts with other parties is sometimes admissible to show what the contract in issue is. Where deed to right-of-way provided for construction of "eattle or wagon pass" on plaintiff's premises, evidence that railway had built undergraduate crossings for ethers who had similar contracts was admissible. Owens v. Carthane & W. R. Co., 110 Mo. App. 320, 85 S. W. 987.

01. Where there is evidence that in making a contract a previous transaction was distinctly referred to, evidence of the previous transaction is admissible. Sullivan v. Mauston Mining Co., 123 Wis. 360, 101 N. W.

01.

01. In a civil action based on conspiracy to defraud, evidence of subsequent like acts and transactions, closely allied in time, before the end of the conspiracy, is admissible to show the fraudulent character of the set in question. Wright v. Stewart, 130 F. 905.

5 Curr. L. - 83.

value may be shown,17 but not the amount of insurance carried,78 nor the value as returned for taxation.79 The cost of a railroad may be shown.80 Whether, in proving the value of personalty, offers,81 cost price,82 selling price,85 or market value,84 may be shown depends, usually, on the remoteness, in time or place, of such evidence.

In civil cases, evidence of the good or bad character of one whose reputation is not made an issue, is almost universally excluded as irrelevant and immaterial;83 but if a person's reputation is put in issue, evidence in regard thereto is admitted.86

Testimony, not otherwise relevant, is usually held inadmissible merely to show that other testimony is probable or improbable;" but where there is a conflict, evidence of collateral facts is sometimes admitted to show that testimony on one side is more reasonable than that on the other,88 or to corroborate a witness.89 If evidence is relevant and material, it is admissible, though its admission incidentally lets

77. Rental value of property may be shown, in condemnation proceedings. Union R. Co. v. Hunton \[Tenn.\] 88 S. W. 182. Cut evidence of rent or net income from buildings on a lot is inadmissible to show value of lot exclusive of buildings. Springer v. Borden, 112 Ill. App. 168.

01. Evidence of the amount of insurance on property is not usually relevant on the issue of its value. Refusal of such evidence not reversible error. Union Pac. R. Co. v. Lucas fC. C. A.136 F. 374.

01. Rention of property for taxation is no criterion of value. International & G. N. R. Co. v. Goswick \[Tex. Civ. App.\] 82 F. W. 423. Assessment for taxes not control.18 as standard of actual value. Thompson v. Williams \[Md.\] 60 A. 26. Tax lists inadmissible on value of land in condemnation proceedings. Suffolk & C. R. Co. v. West End Land & Improvement Co., 137 N. C. 330,

49 S. E. 350. Valuation for taxation of other property, or a valuation of the same property in previous years is inadmissible on the issue of its value. Penobscond Chemical Fibre Co. v. Inhabittants of Bradley, 99

Me. 263, 59 A. 83. Leases return of property for taxation not conclusive on issue of value in condemnation proceedings. Sanl-

Jan state, who testified in her own behalf,

75 N. E. 248.

80. Cost of railroad as shown by amount of stock is admissible on its value, since it is presumed to be worth what it cost until the contrary is shown. State v. Nevada

Cent. R. Co. \[Nev.\] 81 F. 99.

81. Offer of $100 for dog two years before it was killed inadmissible in action for damages for its death. Southern R. Co v. Parnell \[Ala.\] 87 So. 925.

01. Price paid is competent on market value but is not conclusive. Doll v. Hennsey Mercantile Co. \[Mon.\] 81 P. 625. Cost

price of furniture admissible to prove market value. Osmers v. Furey \[Mon.\] 81 P. 86.

345. Cost price of goods admissible on value when destroyed by fire. Glaser v. Home Ins. Co., 93 N. Y. S. 524. Value of property when involved at another time and place is inadmissible on issue of value when destroyed, without a foundation showing such values the same, or showing the difference. Lundwick V. Westchester Fire Ins. Co. \[Iowa\] 104 N. W. 429.

001. Selling price is some evidence of value, and witness should have been permitted to give it on cross-examination.

## 5 Cur. Law. Evidence & 4.

in other irrelevant matter; \[90\] but the effect of such evidence should be properly restricted by the court.\[91\]

3. _Competency or kind of evidence in general._\[92\]--Where one party introduces incompetent evidence, he cannot complain of the introduction by the other of similar evidence addressed to the same point.\[93\] The mere fact that evidence is cumulative does not justify its exclusion.\[94\] Certain evidence being competent, other evidence necessary to explain and render intelligible such material evidence is also admissible.\[95\]

1. _Best and secondary evidence._\[96\]--Evidence must, in general, be the best of which the nature of the case admits.\[97\] Under this rule, original written documented.

1. W. 348. Where evidence of a statement, made at the time of an accident is introduced, the other party may introduce evidence relating to an entirely different accident in order to show that such state- or the evidence so introduced. Barkerment was made at that time and not at the time of the accident in issue. Texas & P. R. Co. v. Malone \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 1018, 88 S. W. 389.

### 90.

That evidence admissible as tending to prove allegations of the complaint tends also to prove wrongs not charged does not render it inadmissible. Objecting party must be satisfied with instructions limiting the effect of such evidence. Plourd v. Jarvis, 99 Me. 161, 58 A. 744. On the issue of knowledge by a witness of an approach to a walk where plaintiff was injured, and of its dangerous condition, the time when it was removed may be shown, though proof of a subsequent change is thus shown. Achrey v. Marion, 126 Iowa, 47, 101 N. W. 435. Evidence of a conversation, to show admissons by a party, is competent though the witness incidentally repeats statements which he said at the time had been made to him by others. Fitzpatrick v. Tucker \[Kan.\] 1311 78 P. 828.

### 91.

Where evidence admitted upon the trial relates only to a single issue, the court, upon proper request, should instruct the jury to consider it only in the proper connection. Original petition properly restricted to issue of contradicting a party by showing inconsistent claims. Texas & P. R. Co. v. Slangbett \[Tex. Civ. App.\] 84 \[Mich.\] 101 N. W. 664. Expert opinion hay-S. W. 1085. Copy of record of vote in town meeting held properly restricted to proof of a particular issue in order to keep-out irrelevant matters. Dawson v. Orange \[Conn.\] 1311 78 A. 101. The court should by proper instructions, restrict evidence admitted for impeachment only, to that Issue, and not allow its consideration as substantive evidence. Straight Creek Coal Co. v. Haney's Adm?r \[Ky.\] 87 S. W. 1114.

### 92.

See 3 C. L. 1345. This section is intended to include only a few miscellaneous holdings not covered by the general rules treated in the following sections.

### 93.

One party having introduced telegrams, other could put in other telegrams and letters relating to same matter. Ger-man-American Ins. Co. v. Brown \[Ark.\] 87 S. W. 135. Party cannot object to evidence as Irrelevant which is introduced to rebut evidence which he has introduced. Oneal v. Weismm \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 102, 88 S. W. 290. One cannot complain of evidence when he has himself introduced evil-

### 94.

The current author is being concerned with the fact that evidence is not possible. Weismm \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 103, 88 S. W. 290.

The current author is being concerned with the fact that evidence is not possible. Weismm \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 104, 88 S. W. 291.

### 95.

The current author is being concerned with the fact that evidence is not possible. Weismm \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 105, 88 S. W. 292.

The current author is being concerned with the fact that evidence is not possible. Weismm \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 106, 88 S. W. 293.

### 96.

The current author is being concerned with the fact that evidence is not possible. Weismm \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 107, 88 S. W. 294.

The current author is being concerned with the fact that evidence is not possible. Weismm \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 108, 88 S. W. 295.

The current author is being concerned with the fact that evidence is not possible. Weismm \[Tex. Civ. App.\] 13 Tex. Ct. Rep.\] 109, 88 S. W. 299.

The current author is being concerned with the fact that evidence is not possible.

1316

EVIDENCE SS 4. 5 Cur. Law.

ments,99 books of account 99 and records,1 are the best evidence of their contents; but

scribed into a book. Chott v. Tivoli Amuse- were lost or destroyed or could not be prominent Co., 114 Ill. App. 178. City clerk may ticed, or that abstracts had been made in registry that a claim for injuries had been ordinary course of business. Hurd's Rev. presented and disallowed. Jewell City v. St. 1905, c. 8, 8 &6, and c. 116, SS 23, 24. Van Meter \[Kan.\] 79 P. 149. Though a writ- ten order on an employer was given as payment on accident insurance policy, the reason why such order was not paid was admissible. Hagins v. Atena Life Ins. Co. \[S.\] C1 $ S. E. 683. Testimony by a governor that he signed a bill inadvertently and immediately erased his name is the best eviled transcript. Carpenter v. Dressler dence of want of approval as required by law, and does not vary or modify the language of a law. Commissioners of Allee- gamy County v. Warfield \[Md.\] 60 A. 599. Testimony of certain witnesses that they were street commissioners at different times and that certain acts-were done by them as such officers, was competent to prove such acts official. Conner v. Nevada \[Md.\] 85. S. Asgari's authority being in writing, writing by 256. A railroad president may testify to intention of the company to make certain improvements and the production of a record vote is not necessary to prove such intention. New York, etc., R. Co. v. Off-field \[Conn.\] 60 A. 740. Writing is best evidence of its contents, but not best evidence of what one person told another as to its contents. Minnesota Lumber Co. v. Hobbs \[Tex.\] 87 S. W. 884. Letters of \[Ga.\] 49 S. E. 783. Record of dead in year of its execution best evidence to show nucleation of original and that parts thereof where missing. Santerfeit V. Shandy \[S.\] C1 $ S. E. 142. Contents of petition filed in a court of record in a courty other than that where the trial took place should be proved by a certified copy of the record and not by parol. Parker v. Ballard \[Ga.\] 51 S. E. 465. A transcript of a witness' testimony on a former trial is the best evidence thereof. Where transcript was available, it was error to permit turys in the case to tell what a witness' testimony was. Estes v. Missouri Pac. 11, Co., 110 Mo. App. 725, SS 5. W. 909. A stenographer's minutes of testimony on a former trial is not the best evidence thereof of in the sense that the testimony of one who heard it is secondary. Weinhandler v. Eastern Brewing Co., 92 N. Y. S. 792. Bought and sold notes made by a broker' in negotiating a sale are not the contract itself but are mere memoranda of its terms, admissible to prove it, in the absence of any entry upon the sales book of the broker. Eau Claire Canning Co. v. Western Brokerage Co. 115 Ill. App. 71. In forgery case, it was proper to ask school official how he signed school warrants, it not being shown to be possible to produce all the warrants, and the evidence relating to a collateral matter. Woodridge v. State \[Fls.\] 88 So. 3.

98. Tax deed best evidence of rectails therein. Eastern v. Cranmer \[S.\] 102 N. W. 944. Paroal evidence of contents of title bond indmissible, loss of bond not being shown. Comp's Adm'x v. Krish \[Key.\] 84 S. W. 562. Printed copy of contract indamdisble, no attempt being made to produce original or show inability to produce it. Chicago, W. & V. Coal Co. v. Moran, 110 Ill. App. 664. Abstract of title indmissible in 'registration proceeding in absence of proof that original conveyances abstracted since only the best evidence available 2 is required to be produced, secondary evidence, such as oral testimony 3 or a duly authenticated 4 copy,6 is admissible when the proper foundation has been laid by showing that the original has been lost or destroyed," and that diligent but fruitless search has been made for it ' by the proper person," or that it is in the possession of the adverse party or his attorney, who has failed to produce it, after due notice to do so." An alleged lost instrument must be proved to have been in existence and to have been duly executed.10 Copies of copies

''' lostdeadmaybeprovedbyrecordoft1t,dationforsecondaryproof.Alabamathoughrecordisvoidbecausedeedwasnotententledtocreod,beingimproperlyacknowedgedgedgedged.Simmonsv.Hewitt\[Tex.Civ.App.\]87S.W.188.Aeraturedeedexecutedtocetoredefectiveacknowledgmentofformerforedwhichislost,andtherecordofwhichisvold,iscomp * 5 Cur. Law. EVIDENCE SS 5. are inadmissible. \[11\] In the case of instruments executed in duplicate, each is primary evidence. \[12\] Hence a party who has lost his copy cannot prove its contents by parol where he has taken no steps to procure the production of the other copy. \[13\] Where a telegram is sent in reply to another the copy of the reply filed for transmission, and not the copy received by the addressee, is the original for the purpose of evidence. \[14\] Where weather conditions are exceptional, the impressions of witnesses may be given in regard thereto; \[15\] but reliable testimony concerning temperature can be expressed only in degrees as observed by the witness or recorded by signal service officers. \[16\] Written evidence noticed to be produced should be presented at the hearing at the time it is called for by the noticing party. \[17\] Refusal then to produce is a ground of objection to the admission of the same writing, after secondary evidence of its contents has been offered because of such refusal, if the party who withheld it should then offer it. \[18\] \*\*SS 5. _Parol evidence to explain or vary writings._\[10\]--When a written contract inports on its face to be a complete expression of the whole agreement, it is presumed that the parties have introduced therein every item or term, \[20\] and that all prior negotiations \[21\] and contemporaneous oral agreements have been merged therein; hence the well settled rule that evidence of prior or contemporaneous oral agreements is inadmissible to vary or contradict the terms of a valid written instrument. \[22\] But this is the rule only when the writing is a complete, clear, and unam-

held Insufficiently established as genuine to \[19\] No. E. 19; Nielson v. Northeastern Siberian prove title in ejectment.--3 Mich. L. R. 243. Co. \[Wash.\] SS P. 292. Letters prior to execution of charter party properly excluded. of the clerk and ex offlco recorder's office \[C. C. A.\] 135 F. are copies of copies, and inadmissible. Rud. \[50\] No. Negotiations prior to sale emerged in written contract. Spencer v. Huntington, No. 858. \[100\] No. 463, 34 City. Proc. R. 30, 91 N. Y. S. 561. Express warranty of machine in \[12\] Corbon -copy of letter made at same time \[form of advertisements and letters cannot and by same impression of type, admissible \[13\]\] be read Into subsequent written contract of \[13\] sale. Cooper v. Payne, 103 App. Div. 118, 93 son as a copy: but letter in question held \[13\] N. Y. S. 69. Proof of prior negotiations in \[13\] admissible to vary written order for goods \[14\] so as to show a warranty respecting them. American Home Sav. Bank Co. v. Guardian Trust Co., 210 Pa. 320, 59 A. 1108. Previous conversations and negotiations leading up to place of life insurance presumed to have been merged in written policy. Ijams v. \[15\] Provident Sav. Life Assur. Soc., 185 Mo. 466, Hurd \[Mom.\] 78 P. 578. The reply messe \[16\], dent, or mistake, all prior parol negotiations and is admissible only when the proper \[17\] are, as a general rule, merged in the writt foundation for secondary evidence has been \[18\], and its genueness and authenticity \[19\]. No representation, promise, or agree-

Lumber Co. IV. Va.\] 49 S. E. 1005. \[15\], **16.** Peterson v. Chicago, etc., R. Co. \[18\], **17.** 18.\*\* Merritt v. Jordan, 65 N. J. Eq. 712, 60 A. 183. \[19\], See 3 C. L. 1348. \[20\], **20.** Written contract signed by parties, conclusively presumed to contain all terms of agreement, and constitutes waver of terms discussed but not included therein. Standard Mfg. Co. v. Hudson \[19\], **30.** 18.\*\* 18.

## Evidence 5.

Written contract to pasture and care for side the writing, evidence of contemporane-cattle. Brown & Co. v. St. John Trust Co.

\[Kan.\] 80 P. 37. Oral agreement wholly inconsistent with written contract indamismble. Halliday v. Mulligan, 113 Ill. App. 177. Absolute written agreement to pay for lamp cannot be varied by oral evidence that payment was conditioned upon buyer's satisfaction. Cluster Gaslight Co. v. Baker, 90 N. Y. S. 1034. Letters regarding return of beer keeps being explicit, and their directions having been agreed to, evidence of a custom to return Keys was inadmissible. So. v. Grimmom \[New.\] 81 P. 43. Panel evidence contradicting express terms and adding new terms excluded. Tucker v. Bolles \[C. C. A.\] 133 F. 858. Panel evidence inadmissible to enlarge scope of contract as written or give witness' con-armuant of it, different from its terms. Julius Kessler & Co. v. Perilloux & Co. \[C. C. A.\] 122 F. 903. Terms of accepted order cannot be varied by parol. Parsons v. Wentent-worth de Drew \[N. H.\] 59 A. 623. Admission of testimony to identity signer of contract as a partner did not make admissible evidence as to terms. Dunn v. Mayo Mills \[C. C. A.\] 134 F. 804. A warranty not expressed or implied from the terms of a written contract cannot be added by implication of law or parol proof. Hollins Engine Co. v. Eastem Forge Co. \[N. H.\] 59 A. 382. Written warranty of quality of engine cannot be enlarged by proof of subsequent oral warranty.

Instrum acknowledging receipt of $100 in Hough Implement Co. v. Dougust \[N. D.\] 104 N. W. 516. A written submission of a dispute to arbitration and the written award cannot be enlarged by parol proof. Pinkstaff v. Steffy \[III.\] 75 N. E. 163. Where final letter in correspondence shows it was intended to embrace the entire contract as finally agreed upon, it is the only evidence of the contract; oral testimony as to negotiations, and other letters in the correspondence are incompetent to vary or contradict it, or to supply terms as to which it is silent. Gruet her Engineering Co. v. Waldron \[N. J. Err. & App.\] 80 A. 386. Evidence of custom and usage admissible to explain and enlarge meaning of written contract, but has little if any bearing to establish a different contract which by mistake was not reduced to writing. John O'Brien Lummer Co. v. Wilkinson, 123 Wis. 272, 101 N. W. 1050. An instrument under seal cannot be varied except by an instrument of the same dignity. Morehouse v. Terrill, 111 Ill. App. 460. Sealed Instrument being complete and unambigu- ous, oral agreement that it was to be conditional cannot be shown. Bieber v. Gans, 24 App. D. C. 517. Where a written contract of safe referred to a catalogue for the warranty, parol evidence regarding the warranty was incompetent. Buchanan v. Laber \[Vwash.\] 81 P. 911. When letters plainly showed all terms of sale contract, one party's understanding as to price could not be shown by parol. Fletcher v. Underhill \[Tex. Civ. App.\] 83 S. W. 726. Sale from sample could not be shown when written parting, parol evidence isadmissible to v. Mahon \[N. D.\] 101 N. W. 903. Oral evidence that sale of beans was to be by samp-ple held to contradict and vary written contract. Gardiner v. McDonough \[Cal.\] 81 P. 964. Where written contract of sale expressly stated there were no agreements out.

5 Cur. Law. EVIDENCE SS 5. 1321

biguous expression of the entire contract. Parol or extrinsic evidence, such as evidence of the circumstances surrounding execution of the instrument,\[23\] and of the conduct and acts of the parties before and after such execution,\[24\] is admissible to

ded. McCall v. Wilkes, 121 Ga. 722, 49 S. E. first year inadmissible, when note provided 722. Where deed of married woman purports to convey title to husband unconditionally, statements of husband that he did not intend to take title unless he survived his wife are inadmissible. Wilbur v. Grover

that note was then to be for balance; since \[Michel.\] 12 Det. Leg. N. W. 89, 103 N. W. 853. In an action of covenant the deed governs and the grantor cannot show by parol the grante's knowledge of an incumbrance to defeat the covenant. Newburn v. Lucas, 126

for latest at ten per cent. per annum from Iowa 85, 101 N. W. 730. Absolute conveyance

cavings that he did

Cavings that he did

Oral evidence inadmissible to show agreement to take title unless he survived his wife are inadmissible. Wilbur v. Grover

that note was then to be for balance; since \[Michel.\] 12 Det. Leg. N. W. 89, 103 N. W. 853. In an action of covenant the deed governs

one for a certain sum to one for a less sum. and the grantor cannot show by parol the grante's knowledge of an incumbrance to

519. Parol evidence incompetent to show defeat the covenant. Newburn v. Lucas, 126

lowa 85, 101 N. W. 730. Absolute conveyance

cavings that he changed by proof of oral agreement

\[Ky.\] 87 S. W. 1081. In action on absolutement whereby grante was to devise to

grantor, thus converting fee into life estimate with reversion in grantor. Lozier v.

given time, and breach of that agreement,

Hill \[N. J. Eq.1 59 A. 334. A deed expressing a consideration, and notes for a certain amount executed at the same time, held to

Cavings that he did
supply a term as to which the writing is silent,25 and which is not supplied by implication of law;26 to explain a latent 27 or patent 28 ambiguity; to identify the sub-

Footnote 27: The term $\\alpha$ is not included in the term $\\alpha$.

Footnote 28: The term $\\alpha$ is not included in the term $\\alpha$.

Footnote 29: The term $\\alpha$ is not included in the term $\\alpha$.

Footnote 30: The term $\\alpha$ is not included in the term $\\alpha$.

Footnote 31: The term $\\alpha$ is not included in the term $\\alpha$.

5 Cur. Law. EVIDENCE SS 5.

ject matter; \[20\] to show the actual relation of parties to the contract; \[50\] and, in general, to show the real intention of the parties at the time.\[31\]
sale. Young v. Guess \[La.\] $8 So. 975. Parol

evidence, explanatory of subject-matter of

written contract, consistent with its terms

and necessary for its interpretation is admissible. Cox v. Wilson, 25 Pa. Super. Ct.

635. Parol evidence admissible to show

mortgaged property was a part of land re-

ferred to in a pending suit. Johnson v. Mc-

Kay, 121 Ga. 763, 49 S. E. 757. Description

of timber in deed being ambiguous, parol

evidence was competent to show intention

of parties as to what was to be conveyed. Ward v. Gay, 137 N. C. 387, 49 S. E. 884.

Parol evidence competent to show what land

was meant by term "Levi Jackson Home

Place" used in contract of sale of land. Jackson V. Hardin \[KY.\] $7 S. W. 119. Where

land is described, in instrument leasing and

giving an option on it, merely as a certain

person's "place," parol evidence is admissible to

be to identify it. Wellmaker v. Wheatley

\[Ga.\] $1 S. E. 436. Where grantee assumed

"mortgages, Ibens, taxes and claims of any

and every description," parol proof was com-

bwent to show what mortgages and claims

cisted and were assumed. Gage v. Cam-

corn, 212 Ill. 146, 72 N. E. 204. Where

a seed, may be shown that of a partnership,

deed conveys property generally described

as that "formerly occupied by" a certain

WOoisely v. Henke \[Wis.\] 103 N. W. 267. In

company and "now occupied by" a certain

unit on promissory note executed by corpo-

other company, parol evidence is admissible

ration and indorsed by stockholders, min-

to show what land had been occupied by the

comes named. Georgia A. R. Co. v.

an facts and circumstances were admissible.

Shiver, 121 Ga. 708, 49 S. E. 700. Location of

ble to show intention. Somers v. Florida

land from uncertain description in deed

Pebble Phosphate Co. \[Fla.\] $9 So. 61. Where

impossible, resort will be had to the acts

two persons sign a note apparently and pre-

and conduct of the parties at and after the

supsuptively as joint principals, parol evi-

time when possession is given under the

deced. Carney v. Hennessey, 77 Conn. 577, 60

a. 199. An ambiguity in the description in

a deced may be explained by parol, and the

Charter party leasing dredge to corporation

deed as explained, may be made the basis of

was signed by corporation and also by presi-

a claim. Leverett v. Bullard, 121 Ga. 534,

ient individually, but contained no reference to

49 S. E. 591. When a deced does not specify

the particular appartment right alleged to

hence admissible to show that dredge owner

have been conveyed by it, extrinsic evidence

refused to contract unless president also

must be resorted to in order to establish

igned. Esselstyn v. McDonald, 98 App. Div.

Parol evidence admissible to identify par-

ticular water right appartement to land.

Bullerdick v. Hermmeyer \[Mont.\] $1 P. 334.

paper rovidence admissible to show that word

"claims" as used in a release given in a

settlement of an estate meant all possible

claims under a supposed will which was not

discovered until after the final settlement

was made. Perkins v. Owen, 123 Wis. 238,

101 N. W. 415. Description of property in

chatted mortgage being sufficiently definite

to make the mortgage admissible, extrinsic

evidence is competent to identify the property. Coleman Implement Co. v. Strong, 126

Iowa, 598, 102 N. W. 506. Where bill of sale

describes property as "complete sawmill"

consisting of certain specified articles "to-

gether with equipment" and things pertaining

ing thereto, and refers to chattel mortgage

as source of title, parol evidence is compe-

tent to show whether sale included articles

placed in mill after mortgage was given but

before the sale. Edwards v. Wisconsin Inv.

Co. \[Wis.\] 102 N. W. 575. Wherewriting attached to policy described property insured

as a certain building "and addition,"

e valence that the addition was to be built

after policy was issued, and of its value, did

not vary, but helped explain the policy.

Prudential Fire Ins. Co. v. Alley \[Va.\] $1

5 E. 812.

where a sufficient description is given in

a contract to convey land, parol evidence is

admissible to fit the description to the land

(Powers v. Rude, 14 Okl. 331, 79 S. E. 89); but

there is no description, or an insufficient

description, such evidence is inadmissible

(Id.) Description in deed held sufficient to

warrant admission of parol evidence to

identify property. Hinton v. Moore \[N. C.\]

51 S. E. 787. A fatally defective description in an assessment for taxes, as where

township and range numbers are omitted,

cannot be added or cured by parol. P 5 Cur. Law. EVIDENCE SS 5.

Agreements collateral to the obligation imported by the written contract and not inconsistent therewith,\[32\] and subsequent agreements,\[93\] may be shown by parol. A mere receipt is always open to parol explanation;\[34\] hence recitals of consideration in written contracts are not conclusive,\[35\] and do not exclude parol proof of the real consideration \[36\] different from that expressed.\[37\] Failure of the consideration

his wife admissible on his intention to make a gift. Sprague v. Walton, 145 Cal. 228, 78 P. 645. Declarations of grantor at time of execution of instrument admissible to show whether it was intended as an absolute load or mortgage. Bell v. Pleasant, 145 Cal. 410, 78 P. 957. Where, in applying a contract to its subject-matter, an ambiguity or uncertainty arises which cannot be removed by an examination of the agreement alone, parol evidence of the circumstances under which it was made, and of statements made in prior negotiations may be admitted to resolve the ambiguity and prove the real intention of the parties. Kilby Mfg. Co. v. Hinchman-Renton Fire Proofing Co. \[C. C. A. I 132 F. 957.

pressed may also be shown by parol. \[38\] But where the consideration, instead of being merely recited in the contract, is made one of its terms and conditions, \[30\] parol evidence is inadmissible. \[40\]

Parol or extrinsic evidence is admissible to show that a writing, purporting to be a contract, never became effective as such \[41\] owing to the breach or nonfulfillment of a condition precedent, \[42\] unless such condition is expressed in the writing. \[43\] It

sideration for conveyance. Merriman v. \[were given as s convenience in bookkeepSchmilit, 211 Ill. 263, 71 N. E. 986. True consideration for life insurance policy, and that it was not paid may be shown by parol. \[to collect rent under a lease, evidence of a Continental Casualy Co. v. Jasper \[E.Y.\] 88\] 8. W. 1078. Parol evidence is admissible to misribute to show that the lease was never show additional consideration for \_.\_deed. \[to have any validity. Metzger v. Roberts, Windsor v. St. Paul, etc., R. Co., 37 Vash. 5. 344. Witness to a deed 156, 79 P. 613. Where instrument recites that maker of note received checks from payee, and contains an agreement for the transfer of stock by the maker, parol evidence is admissible to show consideration for such transfer. Cameron v. Fraser, 94 N. \[to be published. 1125.\] Y. S. 1058. Evidence that part of condieration for mortgage was contemporaneous oral agreement to extend time of payment of notes, admissible. Moroney v. Coomes \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 527, 88 S. W. 480. Real consideration for deed of right of way may be shown to location of station on adjoining land. St. Louis & N. A. R. Co. v. Crandall \[Lark.\] 86 S. W. 885. As between indorser and immediate indorsee, consideration may be shown by parol. Pea-body v. Munson, 211 Ill. 242, 71 N. E. 1006. Written agreement being an original and not a collateral one, within the statute of frauds, it need not express consideration, but this may be shown aliunde. Dryden v. Barnes \[Md.\] 61 A. 342. 347. Real consideration for deed may be shown to be different from that expressed in the writing. Gemmer v. Hunter \[Ind. App.\] 14 N. E. 586. Grante agreed to pay the taxes in addition to the consideration named in the deed. Henderson v. Tobey, 105 Ill. App. 154. Though check had words written across face "In payment of note of 15 Dec. '92," maker and indorser may show conditions and for what it was given. United States Wringer Co. v. Cooney, 214 Ill. 520, 73 N. E. 803. Full or partial failure of consideration may be so shown. Gaar, Scott & Co. v. Hill \[Mo. App.\] 87 S. W. 609. Panol evidence admissible to show failure of consideration of note. Autlman Trreshing & Engling Co. v. Knoll \[Kan.\] 79 P. 1074. It may be shown by parol that consideration for note was bonds issued by the payee; that such bonds were actually the undertaking of the payee, and that performance of the undertaking was impossible. German-American Security Co.'s Assignee v. McCulloch \[Ky.\] 89 S. W. 609. As where terms and conditions expressed on one side form the consideration for terms and conditions expressed on the other. Wellmaker v. Wheatley \[Ga.\] 51 S. E. 436. Wellmaker v. Wheatley \[Ga.\] 51 S. E. 436.

41. Parool evidence is admissible in equity to show a collateral agreement that note and mortgage were not to be enforced, but * 5. Cur. Law.Evidence SS 5.1.

may also be shown that what purports to be a written obligation has been discharged by performance of a parol collateral agreement,\[44\] unless the parol agreement contradicts the writing.\[46\] Fraud in the inception of the contract,\[46\] or mutual \[47\] mistake \[48\] whereby the writing does not express the real agreement, may be shown by parol, and such evidence is also competent to show that a writing is a cover for usury, a penalty or.forfeiture, or other illegal advantage.\[49\]

hal v. Ulrich \[Minn.\] 101 N. W. 1057. Parol \[Code, SS 1625, which provides that & written evidence in competent to show nondilivery or a conditional delivery, and if the contions. Willey v. Clements, 146 Cal. 91, 79 P. tract is not under seal, this may be shown \[850\]. Written order for goods expressly chewing the instrument is in possession of the obligee or his assignee. Thus, parol \[and therein. Held, promise by an agent evidence is competent to show delivery of nondilisation, but admissible on issue of fraud. Patronance of another agreement. Oakland \[Churg Co. v. Planters' MerCemetery Ass'n v. Lakins, 126 Iowa, 121, 101 N. W. 778. Oral evidence showing conditional delivery of deed from father to daughter, and that condition precedent to vestribe of title never happened, competent. Holbrook v. Truesdell, 100 App. Div. 9, 90 N. Y. S. 911. But parol evidence is inadmissible to show that a deed delivered to the grantee and absolute on its face shall take effect only upon the performance of some condition or the happening of some contingency unexpressed therein, since in such case title vests by the legal effect of the terms of the grant. Whitney v. Dewey \[Mahab\] 80 P. 1117.

43. Parol proof is inadmissible to show conditions precedent when the instrument itself sets them forth. United Engineering & Contracting Co. v. Broadnax \[C. C. A.\] 136 F. 351.

01. As where note was given to secure collateral agreement which was performed. Oakland Cemetery Ass'n v. Lakins, 126 Iowa, 121, 101 N. W. 778.

01. The rule that a written contract may be shown by parol to be a mere part performance of an entire verbal contract does not apply where the verbal contract is inconsistent with or contradicts the writing, or where the writing plainly purports to contain the entire contract. Corbett v. Joannes \[Wis.\] 104 N. W. 69.

01. McCarthy v. Woods \[Tex. Civ. App.\] 87 S. W. 405. Parol evidence admissible to show a written permit to locate a telegraph line was obtained by a fraudulent representation. Mason v. Postal Tel. Cable Co. \[S. C.\] 50 S. E. 781. Parol evidence is admissible to show that an indorcement in blank was induced by fraud. Nethercut v. Klopkins \[Wis.\] 80 P. 798. Evidence that defendant was induced to execute written agreement by fraudulent misrepresentations \[Lecke Co. \[Ky.\] 84 S. W. as to consideration admissible. Machu v. Prudential Trust Co., 210 Pa. 253, 59 A.

01. Fraud may be shown by parol, though facts shown are contrary to those stated in written application for member-ship in benefit society. Supreme Council \[and\] 88 So. 914. In equity Catholic Knights & Ladies of America v. Prudential does not express their real agreement. Beggs, 110 11. App. 139. In determining whether release was free from fraud, cor-respondence preliminary to it was properly stable to show contract purporting to have admitted as, showing circumstances attend- being the use of the fact executed on Oct 18, and the date v. Chiles \[Miss.\] 88 So. 498. Oral misrepresentation inducing execution of a contract may be shown not withistanding City.

The rule above discussed, excluding oral evidence to contradict or vary written contracts, is peculiarly applicable to those contracts which the statute of frauds requires to be in writing.\[50\] It applies not only to the original parties to a contract, but to parties subsequently acquiring rights thereunder.\[51\] It does not apply to a mere incomplete memorandum, not intended by the parties to contain or express their entire contract,\[52\] nor to instruments collateral to the issue.\[53\] Illustrative applications of the analogous rule excluding oral evidence to contradict or vary the reci statements. Andrews v. People \[Colo.\] 79 --admissible. Id. Provision of railroad fran-P. 1031. Pariol evidence is inadmissible to show that final action was taken by a board of equalization on an increase in assessment at a date after that shown by its recorder. Montana Ore purchasing Co. v. Lahber \[Mont.\] 81 P. 13. Pariol evidence incompetent to contradict entries in justice's docket and make an otherwise void judgment valid. Pfeiffer v. McCullough, 115 Ill. App. 251. Pariol evidence inadmissible to show purpose of vote of school district appropriating money. Brooks v. School Dist. of Fran-conia \[N. H.\] 61 A. 127. Order of commissioners's court authorizing and instructing plaintiff to act as counsel for county in a given case held clear and unambiguous, and parol explanation was inadmissible. Pre-sidio County v. Clarke \[Tex. Civ. App.\] 36 S. W. 47%.

Record held not contradicted: Where a particular order does not show there was an adjudication on the merits, parol evidence is admissible to show what was ad-judicated. Langmuir v. Landes, 113 Ill. App. 134. Where settlement of former suit is relied on as bar to subsequent suit, parol evidence, not contradicting the record, is competent to show that prior suit and settlement related to a different transaction. Atchison, etc., R. Co. v. Jones, 110 Ill. App. 626.

55. Where a resolution by a board of directors of a corporation is uncertain and indefinite, its terms may be explained by parol evidence relating circumstances surrounding its passage, and the conduct of the corporate authorities before and after its passage. Chesapeake & O. R. Co. v. Depwwater R. Co. \[W. Va.\] 50 S. E. 890.

01. Pariol evidence is inadmissible to show a testator meant one thing when he said another. Oliver v. Henderson, 121 Ga. 836, 49 S. E. 743. "Usual mining privileges," used in will, is clear and unambiguous and extrinsic evidence inadmissible. Allshouse's Eastate, 23 Pa. Super. Ct. 144. Whom testator meant by "William Wilson's children" could be shown by parol, being a latent ambiguity. Miller's East, 26 Pa. Super. Ct. 443. Ecetlish in an instrument that it is a will, that it has been signed as such by the person named as testator, and attested and subscribed by persons signing as witnesses may be contradicted by parol. Fleming v. Morrison, 187 Mass. 120, 72 N. E. 499.

01. Field notes of survey held ambiguous so that parol evidence was admissible to locate it. Wilkins v. Clawson \[Tex. Civ. App.\] 83 S. W. 733. A spheriff's formal and correct return of his writ cannot be over-thrown by parol evidence. Philadelphia Sav. Fund Soc., Purocell, 24 Pa. Super. Ct. 206. It may be shown by parol that a certificate of acknowledgment is false, and that there was in fact no examination or acknowledgment by the person signing. Chattanooga Nat. B. & Loan Ass'n v. Vaught \[Ala.\] 39 So. 215. Some courts admit test-mony of a notary to impreach an acknowledgment taken before him, but such evidence is of little weight. Winn v. Itzel \[Wins.\] 108 N. W. 820. Testimony by no-tary that grantor did not express consciousness of the nature of the transaction and that another person lifted her hand and held it on the pen while he made her marks held .5 Curr. L.-- 84.

1329

4.

say,60 and not on the personal knowledge of the witness,61 or which is conjectural,"62 is also excluded. Proof of the fact that a statement or inquiry was made is not

sessment was hearsay. Terry v. Clark \[Ark.\]

amount for land. Pichon v. Martin \[Ind. 88 S. W. 987. In san action on life insurance policy, evidence that insured said he had taken insurance and paid premium by crediting the agent on his account, and that he told his son to credit the agent on the books, is incompetent as hearsay. Horine v. New York Life Ins. Co. \[Ky.\] 87 S. W. 274. Advertisements of an air brake, in the back of a book of instructions relating to the use and operation of the brake, are inadmissible to show distance in which train could be stopped with such brake. Illinois Cent. \[Texas & P. R. Co. V. Crowley \[Tex. Civ App.\]

442, 102 N. W. 45. Testimony regarding market value of cattle at a certain place, based on an article of commerce has been held competent. Trade paper containing market value of hides in Chicago competent, when that city is shown to be the great market for that commodity. Kibler v. Cap-

13 Tex. Ct. Rep. 547, 88 S. W. 448. Testi-

531. Quotations from National Live Stock Reporter, showing sales of cattle at a certain market on a certain day, admissible on

132 N. W. 45. Testimony of policeman

issue of damages to shipment of stock, plaintiff's cattle being shown to have been

1330

134.
001.
001.
001.
001.

- 5 Cur. Law.Evidence $6.4.

objectionable as hearsay. \[83\] A fact incapable of direct proof, owing to lapse of time, may be established by proof of general opinion in the community, \[64\] and proof of the notoriety of a fact in the neighborhood is competent to show knowledge of such fact. \[85\] Reputation is admissible to prove the location of a boundary line only when it has its origin at a time comparatively remote and always ante litem motam, \[86\] and when it attaches to some monument of boundary or natural object, or is fortified and supported by some evidence of occupation and acquiescence tending to give the land in question some fixed or definite location. \[87\] The only reputation admissible to tify thereto. Bunte v. Schumann, 92 N. Y. \[ been on engine, but had stood beside them S. $06. Reading copied entries relating to transactions of which witness had no per- component. St. Louis, etc., R. Co. v. Shannon Inowledge amounted to hearsay evidence. Rothenberg v. Herman, 90 N. Y. S. \[71\]. Universal, who ex- 431. General testimony not based on per- smined a railroad crossing, held to have sonal knowledge will not support a claim. Spring v. Markowitz, 98 App. Div. 324, 99 N. Y. S. \[72\]. Testimony as to sales made in Europe, not based on personal knowl- and elsewhere, but it was not objectionable as representative there, held hearsay. Kirby \[73\].

- 65 C. R. Cummings & Co. \[Tex. Av. App.\] $7 S. W. \[74\]. Testimony of witness who sold cattle but did not weigh them or see them weighed, and an account of sales, attached to witness's answers as to weights of cattle, held hearsay, it not ap- and pearing who weighed the cattle or made the account, and witness's knowledge being based on the account. Texas & P. R. Co. v. Scott & Co. \[Tex. Av. App.\] $6 S. W. \[75\]. Where court sustained objection to questions as to what frightened a horse, and remarked that it would be well to find out if witness knew, and counsel did not then attempt to lay a foundation, it was not err- or or or or or or to sustain the objection. Foster v. East Jordan Lumber Co. \[Mich.\] 12 D. Let. Leg. N. \[76\]. Testimony that witness "supposed" certain persons to be his nices and nephews, incompetent. Keith v. Scott & Co. \[Tex. Av. App.\] $6 S. W. \[75\]. Where court sustained objection to questions as to what frightened a horse, and a certain person had done, a question whether he had any reason to believe such if witness knew, and counsel did not then happen, calling at most for conjecture. John for to sustain the objection. Foster v. East Jordan Lumber Co. \[Mich.\] 12 D. Let. Leg. N. \[76\]. \[77\]. \[78\]. \[79\]. \[80\]. \[81\]. \[82\]. \[83\]. Where the fact that \<\< statement was made and was acted upon by a party bearsay when not emanating from one comes original and material evidence, the whose interest is thereby subverved. York \[84\]. When it was made. Connelly v. Brown \[N. H.\] A witness whose knowledge is gained from market reports may testify to market value. Plaintiff in trying to find residence of de- fectans, and information given him, held on v. App.\] $6 S. W. \[75\]. Witness may state what market value of cattle was on a cer- and pear. App.\] $8 A. W. \[75\]. \[84\]. Where owing to lapse of time it was there all day, when he said he knew the market. McCraury v. Chicago & A. R. Co. \[M. App.\] $3 S. W. \[76\]. Testimony of witness as to market value of cattle on a cer- tain day admissible so far as it was based on market report in a stock journal, but inadmissible so far as based on information gained from salesmen. St. Louis, etc., R. Co. v. Guntor \[Tex. Av. App.\] $6 S. W. \[75\]. Witness who had paid a fright rate several times, and had been told by agent what it was, qualified to testify to it. Texas Conf. R. Co. v. West \[Tex. Av. App.\] $1 Tx. Ct. Rep. 552, 88 S. W. \[75\]. Witness who has paid a certain freight rate, a number of times may testify to it from his own knowledge. Texas Cent. R. Co. v. Miller \[Tex. Av. App.\] $6 S. W. \[75\]. \[76\]. \[77\]. \[78\]. \[79\]. \[80\]. \[81\]. \[83\]. \[84\]. \[85\]. \[86\]. \[87\]. \[88\]. \[89\]. \[90\]. \[91\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[99\]. \[90\]. \[91\]. \[90\]. \[92\]. \[93\]. \[94\]. \[95\]. \[96\]. \[97\]. \[98\]. \[99\]. \[99\]. \[90\]. \[91\]. \[90\]. \[93\]. \[95\]. \[97\]. \[98\]. \[9 1333 EVIDENCE SS 6B. 5 Cur. Law.

establish the fact of public ownership of land is that of a past generation.\[88\] Matters of pedigree may be proved by family repute,\[89\] or by regularly kept and properly authenticated church records.\[90\] But family repute is incompetent to prove possession of land by an ancestor.\[71\]

(SS 6) _B. Res gestae.\[72\]_--Contemporaneous or nearly contemporaneous acts or declarations, explanatory of the act, transaction, or condition which is the subject of controversy, and growing naturally therefrom, are admissible as a part thereof.\[73\]

ing it, that according to such reputation a of decedent, an osteopath, that he had division line ran along a certain ridge, was admissible. Hemphill v. Hemphill \[N. C.\] and was in great pain, made a half hour after commencing such treatment, admissib- 68. Dawson v. Orange \[Conn.\] 61 A. 101. 68. Luttrell v. Whitehead, 121 Ga. 699, 49 S. S. 691. 70. A baptismal register of a church, in which entries are made by the onlating ceremony in the regular course of his onlating "get any where with this dummy" ties, is admissible to prove the fact and date of bagbtism. Entries in church register, kept in Ireland, properly verified by parish priest, "R. Co. v. Kempton \[C. C. A.\] 188 F. 932. shown to be admissible in Ireland, held component in Missouri. Collins, V. German-Amer to the scene, and the account of how the inlaim Mut. Life Ass' Hlo. App.\] 86 S. V. 891. 87. Where baptismal record had been kept from time immmerorial by the parish priest, entries therein were presumed to have been made by the onlating "get any where with this dummy" ties, is admissible to prove the fact and date of bagbtism. Entries in church register, kept in Ireland, properly verified by parish priest, "R. Co. v. Kempton \[C. C. A.\] 188 F. 932. shown to be admissible in Ireland, held component in Missouri. Collins, V. German-Amer to the scene, and the account of how the inlaim Mut. Life Ass' Hlo. App.\] 88 S. V. 891. 87. Where baptismal record had been kept from time immmerorial by the parish priest, entries therein were presumed to have been made by the onlating "get any where with this dummy" nature to the onlating

## 5 Cur. Law. Evidence & 6B.

Statements subsequent to the main transaction in issue,74 relating to its cause or effect,76 or merely narrating past events,76 are usually excluded. But subsequent declarations may be competent if intimately connected with the transaction out of which they arise.77 Declarations or exclamations of a mere spectator are inadmissible as res gestae.78

74. Exclamation of plaintiff when riding

warning, and responsibility for accident.

G. a train some time after the injury com-

Shims v. Forbes \[Aliss.\] 38 So. 546. Narra-

plained of indamdisible to prove his neu-

true of circumstances attending accident to

asthenic condition. Union Pac. R. Co. v.

passenger on alighting from train, given by

Hammerlund \[Kan.\] 79 P. 182. In suit for

him a half hour after the was hurt. White

damages caused by fire from sparks, what

V. Southern R. Co. \[Ga.\] 51 S. E. 411. An ac-

defendant's foreman said about refusing to

count to defendant's agent the following

take engine back into the field unless fixed

day, reduced to writing by the agent. Id.

so as to prevent escape of sparks was not

Statement of deceased, a minute or more

res gestae. Quint v. Dimond \[Ca.\] 82 P.

after the accident in which he received

310. In action for ejecment from train,

jury resulting in death, as to manner in

statements of conductor to witness the day

after the occurrence were inadmissible.

St. R. Co., 112 N.I. 49. 50.

Wiland v. Southern Pac. Co. \[Cal. App.\] 82

77. The limit of time in regard to such

P. 276.

declarations--how long before or after the

diately after street car collision that he lost

totary. Hagar v. Norton \[Mass.\] 73 N. E.

N. Y. S. 460. Statement by mate of vessel

1073. Declarations of woman to her hus-

ten minutes after man fell down hatchway,

sereamed and he had come to her, having

matac, 132 F. 936. Statement by foreman after

injury to plaintiff and while plaintiff was

es gestae. District of Columbia v. Dierleh,

confined from injury, made to plaintiff and

12 A. App. D. C. 577. Exclamation of plaintiff

13 F. \[T\]. 147. Statements by master of

barge, sunk by collision with bridge, as to

cause of accident, made at a subsequent

time. Hilehts v. Cedar Rapids & M. C. R.

time and a different place. The Maurice \[C. C. A.\] 138 F. 516. Statement of street car

a few minutes after he was hurt, while cry-

conductor to injured passenger as he was

assisting him off the car after the injury,

as to cause of sudden stopping of car. Red-

mon v. Metropolitan St. R. Co., 185 Mo. 1, 84

S. W. 26. What miners said to mine boss

forty-five minutes after accident,

Wojtylak

v. Kansas & T. Coal Co. \[Mo.\] 87 S. W. 506.

What occurred between mine boss and work-

men forty-five minutes after an accident to

a miner. Id. Statements of section boss in

mine day after injury. Straight Creek Coal

Co. v. Haney's Admr \[Ky.\] 87 S. W. 1114.

In action for fire from locomotive sparks,

statements of conductor and engineer that

fire from locomotive was the cause. Houston & T. C. R. Co. v. Laforge \[Tex. Civ. App.\] 84 S. W. 1072.

76. In action for death under intoxicating

ligator law, declarations of deceased as to

where he got whisky, while on the road.

Errost v. Lewis \[Tse.\] 103 N. W. 460. Declarations of a testator relative to an agreement of co-

wreshing between himself and

defendant, made in his own interest and in

defendant's absence. Chapman v. Pendelton,

26 R. I. 573, 69 A. 928. Testimony as to

what witnesses heard an engineer say in

explanation of circumstances under which

ceased was killed held nearsy and of no

probative force, though admitted without objection. Kemp v. Central of Georgia R. Co.

\[Ga.\] 50 S. E. 465. Declarations of motor-

man, long after collision, as to his position

in car and distance away of truck when first

seen. Dorry v. Union R. Co., 93 N. Y. S. 637.

Statements by plaintiff and defendant's agent

after plaintiff had fallen in elevator, as to

the
Complaints 78 or natural expressions 80 of present 81 pain and suffering are competent, even though made subsequent to the time of the original injury.82 But statements relating to the cause or nature of an injury or malady are inadmissible,83 unless the absence of any motive for falsifying is shown.84

79. Estes v. Missouri Pac. R. Co., 110 Mo. App. 725, 85 S. W. 627: Birmingham R. Light & Power Co. v. Rutledge \[Ala.\] 39 So. 338. Plaintiff's wife could testify that after accident he complained of pain in his back and hips. Indianapolis St. R. Co. v. Haveristc \[Ind.\] 74 N. E. B. 84. Complaints of pain "in and about the groins," Texas Cent. R. Co. v. Powell \[Tex. Civ. App.\] 86 S. W. 21. Evidence that witness had seen plaintiff frequently since accident and heard him complaint of pain in the spine, held admissible. Kansas City, etc., R. Co. v. Butler \[Ala.\] 38 So. 1024. Parents of plaintiff properly allowed to testify to complaints by plaintiff showing natural symptoms and effects of injury and to the fact that plaintiff had not complained before the injury. Stevens v. Friedman \[W. v.\] 61 S. E. 132. Testimony made by plaintiff some months after his in-state mimic accident, and getting up blood," held, as a whole, proper, and not mere hearsay. Chicago, etc., R. Co. v. Williams \[Tex. Civ. App.\] 82 S. W. 248.

01. Usual and natural expressions of physical and mental suffering, manifested at the time, are admissible as original evidence. Louisville & N. R. Co. v. Smith \[Ky.\] 84 S. V. 755. Expressions of pain and complaints regarding it are admissible, though made to persons who are not medical experts. Texas Cent. R. Co. v. Powell \[Tex. Civ. App.\] 86 S. W. 21. Exclamations, acts and demeanor of child could be shown to prove he was in pain. Boehm v. Detroit \[Mich.\] 12 Det. Leg. N. 397, 104 N. W. 628.

01. Evidence that plaintiff was complaining while at work, and finally had to quit, inadmissible because it was not shown that the complaints concerned present pain and suffering. Wells Farro & Co. Exp. v. Bayle \[Tex. Civ. App.\] 87 S. W. 164. Witness statement that plaintiff "always complains of being sore through her lungs" fairly imports that complaints were related to present suffering. Howe v. Chicago, etc., R. Co. \[Mich.\] 103 N. W. 185.

01. Complaints of suffering three or four weeks after accident causing injury admissible. St. Louis S. W. R. Co. v. Haynes \[Tex. Civ. App.\] 86 S. W. 934. Testimony that about fifteen minutes after accident, injured man was sitting on the edge of the track, groaning and complaining, was competent. Chicago, etc., R. Co. v. Williams \[Tex. Civ. App.\] 88 S. V. 248. Statements of facts fairly indicative of a relevant bodily condition of a declaration at the time of the declaration will be recycled as circumstantial evidence of the existence of that condition.

Though made a considerable time after the injury was received. Statement some hours after injury, "I am badly shaken up. No bones broken, old fellow; and it might have been wrong," held competent. Western Travelers' Acc. Ass'n v. Munson \[Neb.\] 103 N. W. 688. Complaints of pain from injuries attributable to defendants' negligence during the time intervening between the time when the injuries were received and the death of 5 Cur. Law. EVIDENCE SS 6C. 1335

(SS 6) _C. Admissions or declarations against interest,_\[85\] oral 86 or written,_\[87\] are competent evidence against the declarant,_\[88\] _and similar admissions and declarations by one shown to be the agent of another,_\[89\] _accompanying and explaining acts_

tent. McCormick v. Detroit, G. H. & M. R. \[or's settlement of a tax collector's account Co. \[X Mich.\] 12 Det. Leg. N. 326, 104 N. W. 390. \[to\] is admissible both against him and his sure-upinion of physical based In whole or in ties, even though the settlement contains an item for which the sureties are not Ihable.\_

_with view of enabling physician to testify. Commonwealth v. Carson, 26 Pa. Super. Ct. Bates Machine Co. v. Crowley, 115 Ill. App. 437. Assessment value of vessel, together with evidence that owner had appeared before common to a physician at the time of his exeemsment as too high and more than boat animation, to enable him to give proper treatment, are admissible as a part of the it, and that assessment had then been low-res gestae. Shade's Adm' v. Covington-Cincinnati El. R. & Transfer & Bridge Co. v. Philadelphia, B. & W. R. Co. \[X.J.\] 61 A. \[K.J.\] 84 S. W. 733. In action by husband 692._

for death or wife, wife's declarations concerning her condition were admissible against him. Hardin v. St. Louis S. W. R. \[to\]. 85 W. R. \[to\]. 85 W. 440. \[to\]. 85 W. 440. \[to\]. 85 W. 441. \[to\]. 85 W. 442. \[to\]. 85 W. 443. \[to\]. 85 W. 444. \[to\]. 85 W. 445. \[to\]. 85 W. 446. \[to\]. 85 W. 447. \[to\]. 85 W. 448. \[to\]. 85 W. 449. \[to\]. 85 W. 449. \[to\]. 85 W. 450. \[to\]. 85 W. 451. \[to\]. 85 W. 452. \[to\]. 85 W. 453. \[to\]. 85 W. 454. \[to\]. 85 W. 455. \[to\]. 85 W. 456. \[to\]. 85 W. 457. \[to\]. 85 W. 458. \[to\]. 85 W. 459. \[to\]. 85 W. 450. \[to\]. 85 W. 451. \[to\]. 85 W. 452. \[to\]. 85 W. 453. \[to\]. 85 W. 454. \[to\]. 85 W. 455. \[to\]. 85 W. 456. \[to\]. 85 W.

1336

EVIDENCE SS 6C. 5 Cur. Law.

declaration were competent as an admission introduce as evidence the pleadings of the against interest. Anderson v. Halverson, 126 adverse party. Palmer Transfer Co. v. Eayes Iowa, 125, 101 N. W. 781. Declarations of \[LKy.\] 85 S. W. 750. Pleadings in a case are woman that she had a solid a clock admissible, before the court and jury and may be read being against interest as tending to show she had no title. Wonsaertler, 23 show what is admitted without being form-Pa. Super. Ct. 321. Declarations of a father \[Horn's Christian Ass'n, 92 N. Y. S. 781. Allo-admissible. Caldwell v. Caldwell, 24 Pa. Super. Ct. 230. Teatimy on former trial con-

gations of a reconvention or cross bill may be used as evidence by the plaintiff, but are tainting admissions on point in issue improperly excluded. Hillman v. De Rosa, 92 N. Y. S. 67. In an action against a city and the water, light and power commission of the city, evidence of a conversation between the chairman of the commission and the city

Inside to prove that status of frauds had electric, tending to show why power was not cut off from the wires on which plaintiff

Bachrachrach, 187 Mass. 128. T. N. 938. Unvas wax working, was held admissible, though the conversation occurred after the injury.

in stated, but may be referred to to show City of Austin v. Forbis \[Tex. Civ. App.\] 86 grounds of defense. Mankey v. Willoughby, S. W. 29. An admission by a party against interest relating to any material matter may

emended pleading, the original pleading is be proved without laying a predicate therefor. Contreras v. San Antonio Traction Co.

bertson \[Vis.\] 103 N. W. 234. In such case

FTex. Civ. App.\] 83 S. W. 870.

sft. Written calculation of interest by decedent, found among his papers, used to

misible. Thus, testimony of attorney that show admission of liability. Yost's Estate,

23 Pa. Super. Ct. 223. In action for commissions by salesman, a letter, written by him

admitting a mistake in use of samples by

mision. Schultz v. Culverton \[Vis.\] 103 which sale was made was competent evidence against him. Schriter v. Klassock, 91

dence against him. Schriter v. Klassock, 91

N. Y. S. 28. On issue whether building was

to be erected on leased premises by lease

and cost taken from the rent, letters from

the facts. Potter v. Fitchburg Steam Engine

a co-closer to the lease, showing knowledge

Co., 111 11. App. 430. Allgations in a suit of the election of the building and tending

between two parties, if available at all to

to show the agreement claimed by the leasee,

were competent. Chamberlain v. Tba, 181

N. Y. 486, 74 N. E. 481. Letter by owner to

railroad representative offering to sell land

at certain price admissible in condemation

proceedings as declaration against interest.

Aaufman v. Pittsburg, etc., R. Co. \[Pa.\] 80

the facts pleaded show such admission to

A. 2. Letter by plaintiffs to defendants, re-

erring to milli as "your milli," competent as

admission regarding an arrangement be-

tween them regarding the milli. Cox v. Burgett, 23 Pa. Super. Ct. 346. Letter written in

course of negotiations competent to show

the assistance's title. This is an exception to

tention, notice, and reason for punitive damages, in action for Inducing breach of contract. Morotheav v. Terrill, 111 111. App. 440.

Letter written by attorney of party to contract

tract In answer to bill rendered admissible

as tending to show that no claim of fraud

had been set up at that time. McNamara v.

Douglas \[Conn.\] 61 A. 368. The agency of

a certain person in the transaction out of

which the prosecution grew may be shown

from statements that he was agent made in

a publication of which defendant was the

author. Hurgren v. Union Mut. Life Ins. Co.

141 Cal. 585, 76 P. 168. Book of railroad

rules giving, among other things, heights of

b bridges, competent evidence. Doyle v. Illinois Cent. R. Co., 113 11. App. 532. AffadavIt

of person under whom defendant claimed in

terest in land, admitting that affant did not

own such interest, admissible, though affant

was dead, and though affadavit had been used

In litigation to which defendant had not

been a party. Phillips v. Collinsville Granite

Co. \[Ga.\] 51 S. E. 666.
then being done by him "0" while acting within the scope of his authority as agent," are competent against the principal."22 The existence of the agency "0" or the extent

missible against it. Walker Mfg. Co. v. Knox \[C. C. A.\] 136 F. 834. Declarations and acts of agent are binding on principal only after prima face case of agency has been established. Brittain v. Westall, 137 N. C. 30, 49 S. E. 54. Proof as to time of termination of agency being conflicting, ma- Burbank v. Hammond \[Mass.\] 75 N. E. 102. terlal and relevant declarations of the agent during the entire term as to which there is evidence tending to show the existence of the agency should be received. Porter v. Adams, 115 Ill. App. 438. Where evidence authorized inference of agency, exclusion of representations by the agent was error. Romano v. Brooks \[Ala.\] 89 So. 213. Statements by person in insurance office, unidentifed, and not shown to have authority to bind the company, held incompetent. Spencer v. Travser's Ins. Co. \[Mo. Appl.\] 86 S. W. 899. Admissions or declarations of partner after dissolution of firm are inadmissible against the bank. Harrison against co-partners. Mackintosh K. Kimball, 121. Employey's statements as to character of principal's work, not made when employe was authorized to represent principal as to such matters, are incompetent against prima-Johnson \[Tex. City. App.\] 85 S. W. 1023.

90. Declarations of an agent are admissible against, the principal only when accompanying an act within the scope of the agency, and so nearly connected therewith as to become a part of the res gestate. Turner v. Turner \[Ga.\] 50 S. E. 86. Statements by corporation's servant as to how horses were injured held mere narratives of past events and inadmissible as res gestate. Aldon v. Grande Ronde Lumber Co. \[Or.\] 81 P. 385. Declarations of driver of wagon after injury to child, 'in absence of employer, inadmissible. Burke v. Borden's Condensed Millie Co., 98 App. Div. 519, 90 N. Y. S. 527. Statement of section foreman as to cause of accident inadmissible against defendant, because not res gestate, even though foreman was vice principal. Lee v. St. Louis, etc., R. Co. \[Mo. App.\] 87 S. W. 12. Statement of en-sinesiner in charge of steam roller, after accident to horse, not part of res gestate so as to be binding on employer. Hall v. Umke \[Ashpalt Pav. Co., 92 N. Y. S. 46. Admision of town chairman of receipt of notice of injury on highway, not a part of the res gestate, is inadmissible against the town on issue of service of notice. Garske v. Ridge-ville, 123 Wils. 503, 102 N. W. 22. Statement of manager to plaintiff's wife, who came to collect wages after he was hurt, that it was not plaintiff's fault that he was hurt, not part of res gestate, and not binding on company. Alquist v. Eagle Iron Works, 126 Iowa, 67, 101 N. W. 520. In action by passenger for abusive language by brakeman, evidence that brakeman said to witness, some time after the occurrence, that he started to slap plaintiff, and wished he had, was inadmissible. Illinois Cent. R. Co. v. Winslow \[Ky.\] 84 S. W. 1175. Statement of herein any matter of the work, but it would be of the agent's authority 94 cannot be shown by the declarations of the alleged agent,

istence of conditions subsequently causing injury. Bates Mach. Co. v. Crowley, 115 Ill. App. 540. In forcible entry and detamer action, statements by plaintiffs authorised agent made for and in behalf of plaintiff, sending to show plaintiff did not claim the land, are admissible. Bailey v. Blackshear Co. \[Ala.\] 87 So. 827. Statement of conductor in charge of train that he knew the condition of the engine, and knew he couldn't get far with it, admissible against defendant. Missouri, etc., R. Co. v. Russell \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 591, 88 S. W. 379. Person sous known as "general manager" and "general traffic manager" of railroad held to have such apparent authority that their statements were competent evidence against the railroad company. Choctaw, etc., R. Co. v. Rolfe \[Ark.\] 88 S. W. 870. Declaration of insurance company's supervisor of death claims relative to company's refusal to pay loss is not hearsay but competent proof on issue of waiver of proof of loss. Penn Mut. Life Ins. Co, v. Norcross, 168 Ind. 379, 72 N. E. 132. Statement of telephone company manager while in performance of his duties as manager, that a certain wire belonged to his company admissible against the company. Lynchburg Tel. Co. v. Booker, 103 V. 694, 50 S. E. 148. Statement of bank cashier, who represented the bank, to the effect that a contract of indeminy was to be held in escrow by the bank until all the stockholders of a certain corporation had signed it, was admissible against the bank. Delaration of co-conspirator after completion of criminal enterprise, relating to a past transaction, and not accompanying an act done in furtherance of the enterprise, is incompetent against other conspirators. Lederer v. Adler, 92 N. Y. S. 827. Unsworn Relations--Attorer and client: Application for continuance, made through attorney, con-taining admissions contradicting plaintiffs' testimony, admissible. Scott & Co. v. Wood- and \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 550, 88 S. W. 406. Letter written by attorney under mistake of fact containing advice to client, held not an admission binding on client. Klein v. East River Elec. Light Co. \[N. Y.\] 74 N. E. 495. Advice given by an attorney cannot be treated as an admission by the client, especially where the client does not act upon it. Id. Admission of inadequances by attorney, unauthorized and not of record, not binding on client. Jefferson Bank v. Gossett, 45 Misc. 630, 90 N. Y. S. 1049. Failure of an attorney to answer letters held not an admission binding on the client rendering the letters admissible. Irwin v. Buffalo Pits Co. \[Wash.\] 81 P. 849. The mere fact that counsel for plaintiff does not state sufficient facts in his opening statement does not warrant a directed verdict, such statement not containing admissions constituting a complete defense. Redding v. Puget Sound Iron & Steel Works, 36 Wash. 642, 79 P. 308. Admission inserted in contract by attorney after its execution held not binding on client. Everett v. Marston, 185 Mo. 587, 85 S. W. 540. Principal and snrety: Admissions of a principal, made during the transaction of the business for which the snrety is bound, be 5 Cur. Law. EVIDENCE SS 6C.

though an agent may himself testify to the fact of agency." Self-serving," ex parte " declarations are incompetent evidence for the declarant, or those in priority with him." Silence or acquiescence of a person in whose presence statements are made is construed as an admission by him," as is failure to deny " or present " claims. A portion of a declaration or other admission being introduced,

95. Jos. Schlitz Brewing Co. v. Grimmon \[New.\] 81 P. 43; Aultman Threshing & En- \[New.\] 81 P. 43; Aultman Threshing & En- \[Newda Cent. R. Co. \[New.\] 81 P. 99. En- \[96. Hayden v. Collins \[Ca1. App.\] 81 P. 1120. Statements by plain claiming rights will be treated as declarations in his favor in land in dispute inadmissible because self- \[Nor.\] 81 P. 1120. 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. 169. 161. 169. 160. 161. 161. 162. 163. 164. 165. 167. 168. 169. 161. 169. 161. 160. 161. 162. 164. 166. 167. 168. 169. 161. 161. 163. 165. 167. 169. 161. 161. 164. 167. 168. 169. 161. 169. 160. 161. 161. 162. 163. 165. 167. 168. 169. 161. 161. 169. 162. 161. 163. 166. 167. 169. 161. 161. 167. 168. 169. 160. 161. 161. 162. 164. 169. 161. 161. 167. 169. 161. 160. 162. 161. 163. 164. 167. 168. 169. 161. 161. 169. 160. 161. 161. 162. 163. 164. 167. 169. 161. 161. 162. 165. 167. 168. 169. 161. 160. 161. 161. 162. 163. 167. 169. 161. 161. 161. 162. 164. 167. 168. 169. 160. 161. 161. 163. 167. 169. 161. 161. 164. 168. 169. 161. 160. 162. 161. 165. 167. 169. 161. 161. 162. 166. 167. 168. 169. 161. 160. 161. 161. 162. 163. 164. 169. 161. 161. 165. 167. 169. 161. 161. 162. 167. 168. 169. 160. 161. 161. 163. 169. 161. 161. 164. 169. 162. 167. 169. 161. 161. 162. 163. 164. 168. 169. 160. 161. 161. 165. 167. 169. 161. 161. 162. 167. 169. 161.

the remainder is competent,\* since an admission is to be considered as an entirety.4 The party against whom an admission is introduced may explain it.5

Offers of compromise * and admissions of liability * made in the course of negotiations looking toward a settlement,\* are excluded on grounds of public policy.

Declarations of a person in possession of land which qualify or explain the nature of his possession * are competent against a successor in interest.10 The sub-

rendered city is an admission against the compromise after suit has been threatened good faith of the claim. Nichols v. New Britain, 77 Conn. 695, 60 A. 655. Written submission of claims to arbitration admissible on existence of claim in suit, such claim not being included in written submission. Stock v. Crawford, 125 Iowa, 355, 101 N. W. 89. Verified tax schedules, made by a party, in which no return of note was made, complement on issue whether such party owned the note at the time the schedules were made. Fudge v. Marquell \[Ind.\] 72 N. E. 565.

3. Where part of a declaration or conversation is given in evidence by one party, the whole on the same subject may be induired into by the other party. Code Civ. Proc. 1854. Rikson v. Yates, 145 Cal. 210, 78 P. 641. A letter having been admitted, reply thereto is admissible. Hogpson & P. Mfg. Co. v., Sears, 77 Conn. 587, 60 A. 133. Under Code, & 4615. Robertson v. Yasey, 125 Iowa, 526, 101 N. W. 271. Fortion of a conversation having been shown, details thereof may be shown in rebuttal. St. Louis S. W. R. Co. v. Frasier \[Tex. Civ. App.\] 87 S. W. 400. Robertson v. Vasey, 125 Iowa, 526, 101 N. W. 271. Where one witness testified to interview, another could testify in rebuttal and to contradict other witness, and admission of statement that party wanted to settle was not error. Hogpson & P. Mfg. Co. v. Sears, 77 Conn. 587, 60 A. 133. Where a conversation contained an admissible declaration, another statement in the conversation, explanatory of such declaration, is admissible. Smith's Adm'r v. Smith \[Vt.\] 61 A. 558. Declarations or admissions of a party inconsistent with present claims having been admitted, evidence explanatory of such admissions is always competent. Chamberlain v. Iba, 181 N. Y. 486, 74 N. E. 481.

1. Account book kept by deceased executor held competent, if at all, as a whole; error to introduce only certain items. Curry v. Lanning, 94 N. Y. S. 585. Portion of answer showing admission of a Killing held admissible without the rest of the answer. Stewart v. North Carolina R. Co., 186 N. C. 385, 48 S. E. 793. Part of a sentence in an answer which admitted that death of plaintiff's decedent was caused by his coming in contact with overhead bridge admissible without the rest of the sentence. Hedrick v. Southern R. Co., 186 N. C. 510, 48 S. E. 830.

1. Party against whom admissions have been introduced should be allowed to explain them. Barley v. Comer \[Tex. Civ. App.\] 13 Tex. Ct. R. 816, 89 S. W. 82. He may state that he acted on advice of counsel when making statements, but cannot tell what the attorney told him. Id.

1. Evidence of overtures to compromise, and offers to settle inadmissible. Field v. Schuster, 26 Pa. Super. Ct. 82. Offers of

## 5 Cur. Law. Evidence $ 6C.

ject-matter of the declarations must be capable of parol proof,\[11\] and the declarations must tend to establish such subject-matter.\[12\] Declarations of one in possession of personality, explanatory of and characterizing his possession, are also admissible.\[13\] But declarations in disparagement of title by a former owner who has parted with his title are incompetent against any successor to the title.\[14\]

Where defendant pleads guilty in a criminal action, the plea and judgment are admissible as an admission in a civil action based on the same facts, but are not conclusive.\[16\] Hence defendant in the civil suit may show his entire statement to the court at the time he entered his plea of guilty in the criminal action.\[10\]

shown by his declarations while in possess-

have no reference to identity or location of slion. Henry v. Brown \[Ala.\] 39 So. 325.

Declarations of one in possession of land

concerning physical conditions or use, are are competent to show extent or nature of

incompetent. Fail v. Fail \[Mc.\] 60 A. 718.

possession, though not to show title. Dibble v. Cole, 102 v. Cole, 102 App. Div. 229, 92 N. Y. S. 938.

Making a map of lands, and conveyances

the sole purpose of which is to show that based on the map, are acts admissible to

a title shown by the record did not in fact

show extent of possession. Dawson v. Orange \[Conn.\] 61 A. 101. Declarations of a

was in or out of possession, or is living or

decased grantor while In possession

ending to show character of possession and

whether he claimed adversely or in sub-

servence to the title of another are competent. Emmet v. Perry \[Mc.\] 60 A. 872.

Declarations against interest as to bound-

arties admissible against one in privity of

state with declarant. Dawson v. Orange \[Conn.\] 61 A. 101. Declarations of husband

that certificates and land located by them

belonged to his wife admissible in suit

between wife and persons claiming through

execution sale against husband. Mataor

Land & Cattle Co. v. Cooper \[Tex. Civ. App.\] 87 S. W. 235. Proof of permission given by

town official to camp on certain land held

inadmissible as proof of an act accompany-

ing and characterizing possession where it

was not proved that permission was given

as to the land in suit, nor that those seen

camping were those to whom permission

had been given. Dawson v. Orange \[Conn.\] 61 A. 101.

10. Declarations of a person under whom

title is claimed are recivable against his

successor, if admissible at all, on the theory that there is sufficient identity of interest to render statements of the former

equally recivable with admissions of the latter. Pall v. Pall \[Mc.\] 60 A. 718. To be

competent against a tenant, the declaration

must be the tenant's predecessor in title.

Id. In action involving title to reality, letters of plaintiff's grantor acknowledging

that defendant's grantor had an interest in

the property were admissible. Costello v. Graham \[Arlz.\] 80 P. 336. A mortgagor

and mortgage are not so far in privity that

naked declarations of the former are admissible to disparage title of the latter. Dawson v. Orange \[Conn.\] 61 A. 101. Oral declarations of a deceased mortgagor which

have no relation to the resgate or character or extent of his possession, many

years after the mortgage was given are

incompetent against the mortgage when

there is no identity of interest between the

mortgagor and mortgage. Corkiling v. Weatherwax, 181 N. Y. 258, 73 N. N. 1028.

11. Declarations which do not bear on

quality of any possession of declarant, and

the jury should be instructed to disregard

such declarations if they do not believe he

was possession. Smiley v. Padgett \[Ga.\] 50 S. E. 927.

14. Self-serving declarations of a grantor after he had conveyed, in disparagement

of title conveyed, are inadmissible for him-

self or his subsequent vendee, or to rebut

other declarations against interest. West

v. Houston Oil Co. of Texas \[C. C. A.\] 136 F. 343. Self-serving declarations of grantor, after giving his

dead, are incompetent

against his grante, or the vendees of the

latter. Skidmore v. Smith \[Ky.\] 84 S. W.

1163. The vendor of property cannot, after

the sale, prejudice the vendee's rights by

any ex parte denial of the bona fides of the

transaction. Glaucke v. Gerlich, 91 Minn.

282, 98 N. W. 94. In

repelvin salt, third

party's title to property cannot be shown by

his own unsworn declarations, after he has

parted, or while he is parting, with posses

sion. Vagts v. Utman \[Wis.\] 104 N. W. 88.

But this rule does not render incompetent

declarations of a grantor at the time of execution of an instrument to show whether

it was intended as an absolute deed or

mortgage. Bell v. Pleasant, 145 Cal. 410, 78

P. 957.

Dec

## 8 7. Documentary evidence

A. In general.\[20\] Private writings are competent evidence \[21\] when their contents are relevant and material \[22\] and their authenticity.

## 17. Under Massachusetts Rev. Laws, c.

of grantor's interest. Hemphill v. Hemphill \[N. C.\] 51 S. E. 42. Acts of a surveyor made in good faith before commencement of

in marking a tree or placing a stone at the the action, and upon the personal knowl-

time of surveying a line are incompetent, edge of the declarant, are competent. Nagle v. Boston & N. St. R. Co. \[Mass.\] 73 N. E.

in the absence of proof of his death, or other 1019. Such declarations are competent proof making his declarations competent. though made in answer to leading questions,

Hill v. Dalton, 138 N. C. 339, 48 S. R. 784.

Motormans' affirmative answer to question

by conductor if he had orders to go to a certain place, over a single track, compe-

a successor in interest, by Code Civ, Proc.

ent. Nagle v. Boston, etc., R. Co. \[Mass.\] 8 1853. Declaration of deced that certain 73 N. E. 1019. An offer of such declarations

must show that they were made before com-

in possession for convenience sake, held ad-

marcinment of the action. Flynn v. Copl-

idge \[Mass.\] 74 N. E. 342. Under St. 1898,

81 P. 666. Declarations and entries of a per-

c. 535 (Rev. Laws, c. 175, 8), declarations

son since deceased, against his interest, and

of a deceased person after notice has been

not made with a view to pending litigation are 'admissible in any case. Massece-

as required by Rev. Laws, c. 51, 8 20, but

Fulton Lumber Co. v. Birman \[Qa.\] 50 S. R.

before an action is in fact commenced, are

23; Turner v. Turner \[Qa.\] 50 S. E. 596. If

competent. D'kinson v. Boston \[Mass.\] 75

the declaration or entry contains state-

N. E. 68. From the fact that such declarations

tens were admitted in evidence it will be

tenser, it is admissible only if those against

inferred that the trial court found they were

mateg in good faith. Id. Declarations of

est. Massece-Fulton Lumber Co. v. Birman's

a testator to persons In his lifetime or com-

tained in his will are admissible to contra-

dict an oral claim for services against his

estate, under Rev. Laws, c. 175, 8 67. Tripp

v. Maccomber, 187 Mass. 109, 72 N. E. 361. Entries by an agent in the course of his

principal's business are admissible after the

agent's death. Civ. Code 1895, 8 3034, is

merely declaratory of the common law and

makes entries by an agent admissible only

where, under established rules of evidence,

declarations of a deceased person would be

admissible. Turner v. Turner \[Ga.\] 50 S. E.

989. In action for death, declarations of

decedent, and of his 'father, also dead, as to

of account are admissible in evidence, and

decedent's age, were competent. Traveler's

Inso, Co. v. Henderson Cotton Mills \[Ky.\] 85

S. W. 1903.

18. Acts of owner, when upon it, point-

ing out monuments and location of line, and

departments made when no controversy existed, are competent on location of a bound-

ary line after declarant's death. Emmnet v. Perry \[Mc.\] 60 A. 872. The declarations of

a deceased person, disinterested at the

time, respecting boundaries, are competent,

even though they do not accompany and

give character to some act affecting

distantants title. Declaration that a certain

tree was a line tree admissible. Hathaway

v. Goslant \[Vt.\] 59 A. 835. Declarations re-

lating to boundaries of land, made ante

literum notam by a disinterested deceased

person are competent evidence. Tow v.

flammation, 138 N. C. 357, 48 S. E. 782, The

fact that another person, who established

the boundary is available as a witness does

not make such declarations incompetent as

from tax sales. Arneson v. Haldane, 105

not the best evidence. Id. Recitals in deced

as to location of line indmissible because

## 18. The case of a person

The case of a person is not necessarily

of a person is not necessarily

- 5. Cur. Law. EVIDENCE SS 7A.

ticity 28 and due execution 24 have been properly shown. Where one party produces a paper and there is found thereon an entry, memorandum, or indorsement favorable to his adversary, the latter may rely on the same as evidence without further proof of its genuineness.25 A deed is admissible only when the description contained in it is legally sufficient,26 and when title in the grantor therein is shown.27 A void deed

ville Granite Co. \[Ga.\] 51 S. E. 666. The value being under a consent decree, the fact that the receiver was not in possession of super. Ct. 263. Under Rev. St. 1899, SS 4341, all the land at the time of the sale would not make the deed inadmissible. Id. Nortaining plaintiff's signature, being only means of authentication and connecting the ground that an administrator bid off the property which was in part that of an instance being one instrument. Bagnell testing's estate. Id. \[M. 420, 79 S. W. 1130. Where the value, ".".

is admissible to show color of title, if it contains a legally sufficient discription of the land, without proof of execution.28 Recitals in a private writing are evidence only against parties thereto and their privis.29 Inquiry as to the origin, competency, or evidential value of a writing, more or less relied on by an opponent, does not make the contents of the writing evidence for the opponent.30 An ancient document, if it comes from proper custody and is itself free from fraud or invalidity, proves itself.31 Recitals in such documents are presumptively true.32 But recitals in an ancient deed that grantors are heirs of a former owner are not alone sufficient to prove the fact recited.33 Standard mortality tables are competent 34 when life expectancy is in issue.35

color of title. Luttrell v. Whitehead, 121 Ga. book in his office containing records for 699, 49 S. E. 691. A deed in which the de-

1818, and that the older records were in his

scription is wholly inadequate is inadmis-

custody as clerk, held to render such record

sible either as a conveyance or as color of

admissible without other proof. In re

Website. Crawford v. Verner \[Ga.\] 50 S. E. 585. set,

steer, 94 N. Y. S. 1050. Record containing

Description in deed held sufficient to

copy of certificate of clerk dated 1829 to re-

tify land, and deed held admissible. Schools

port of commissioners on bridges filed 1819,

v. Jacobs Mercantile Co. 1Tex. Civ. App.\] 84 the whole record being certified by town

S. W. 1082. Description of land as one-

clerk in 1835, held to be an ancient document

font interest in definitely described lot is

ment, and properly admitted. Id. Record of

sufficient. Phillips v. Collinsville Granite

certificate from town minute book made in

Co. \[Ga.\] 51 S. E. 666. A stute grant is ad-

1818 also properly received as ancient

- missile without preliminary proof if the

ord. Id. Map showing division of estate,

lot of land can be located by reference to

didd in 1820, admissible without proof of

the state survey of which the court takes

judicial notice. Stanford v. Bailey \[Ga.\] 50 purported to have been made. Id. Deced

S. E. 161. A power of attorney to sell all

thirty years old admissible without proof of

the donors' lands situated in the state of

execution, even if not recorded within stat-

Georgia is not inadmissible in evidence bo-

story period. Campbell v. Bates \[Ala.\] 39 cause not describing the lands by county

S. 144. Ex parte afflavits made forty years

number and district. Lanier v. Hebard \[Ga.\]

after the ovent cannot be regarded as an

51 S. E. 632.

27. A deed is inadmissible in evidence

ch. 39. Recitals of pedigree in ancient deeds.

in the grantor. Jackson v. Gunton, 26 Pa. Super. Ct. 203. Super. Ct. 203. Where plaintiff's predeces-

Administora's deed, over thirty years old,

sor was shown to have owned the land in

proved itself and its recitals. Dutton v.

controversy admission of a deed to him,

without showing title in the grantor in such

citeds of heirship and widowhood in deeds

doed, was not error. Nathan v. Diersson, 146

Caf. 63, 79 P. 733. To prove title by a chain

true, and are admissible against adverse

from the commonwealth, an intermediate

claimants. Wilson v. Braden, 56 W. Va. 372,

ded, not shown to be connected with the

49 S. E. 409.

83. Deed purported to convoy property

sible. Christ v. Boust, 26 Pa. Super. Ct. 543.

for the party executing it and by him as

where deed conveys all of grantor's interest

tomers as heirs of a former

as heir of another, it is admissible for one

or
chairing title from such grantor, since the

was dead and that the grantors were his

latter's interest may be shown by other evi-

heirs. Such recitals were held insufficient to

done. Phillips v. Collinsville Granite Co.

prove the facts, without proof of the relation

\[Ga.\] 51 S. E. 666.

28. Brannan v. Henry \[Ala.\] 39 So. 92.

01. Recitals in Instrument purporting to

session under the deed for such time as to

substitute a new truste held not evidence

render recitals therein presumptively

of death, resignation or removal of former

Lanier v. Hebard \[Ga.\] 51 S. E. 632.

truste, as against strangers to the instrument

34. Virginia & S. W. R. Co. v. Bailey, 103

ment. Loech v. Karthaus \[Ala.\] 37 So. 696.

Vac. 205, 49 S. E. 33. Carlisie and other

Recitals of facts in deeds are not evidence

standard mortuary tables are competent. against a stranger. Jackson v. Gunton, 26

City of South Omaha v. Sutliffe \[Neb.\] 101

Pa. Super. Ct. 203. Recitals in a 5 Cur. Law.Evidence $ 7A.

Books of science are not admissible to establish doctrines therein stated, \[36\] nor can the contents of such books be placed before the jury indirectly by incorporating the same in questions. \[37\]

_Proof of handwriting._\[38\]--Any writing admitted or proved to contain the genuine writing or signature of the party is admissible as a standard of comparison, \[39\] though inadmissible for any other purpose. \[40\] But the court, in the exercise of its discretion in the matter, may exclude from the jury any irrelevant writing or paper which might influence their decision. \[41\] Comparison of the disputed and admittedly genuine writings may be made by experts in some states; \[42\] in others such comparison can be made only by the jury. \[43\] An expert who has several specimens of handwriting before him, may testify which is the normal handwriting of the writer, but may not give an opinion as to cause of the abnormality of the others. \[44\] A witness may be qualified to testify as to genuineness of handwriting by having seen the party write; \[45\] by having seen letters or documents shown to be in the handwriting which is the subject of controversy; \[46\] or by comparison of handwritings as an expert. \[47\]

there is evidence tending to show injuries 41. Misatisfippi Lumber & Coal Co. v. permanent. Hyland v. Southern Bell Tel. & T. Co., 70 S. C. 315, 49 S. E. 879. Mortal-ness denied signing a paper containing statements, contradictory of his testimony, case where permanent injury is alleged, un- and on request wrote his signature on an-, other paper in the presence of the jury, iffs services or capacity to earn. Atlanta, etc. R. Co. v. Gardner \[Ga.\] 49 S. E. 818. for comparison of the signatures by the jury, it was held that such paper was in-, extensive for purpose of proving length and the signature alone, if detached, would have to climb steps after street in front of home head been graded down. Sweope v. Seattle, 36 V. Wash. 113, 78 P. 697. Carlisle tables not to be considered unless jury found injuries permanent. Randers v. Central of Georgia R. Co. \[Ga.\] 61 S. E. 728.

36. Elliott v. Ferguson \[Tex. Civ. App.\]

85 S. W. 56.

37. Error to relate facts relative to his-, two of which entitle is Switzerland and ask witness if such statement was correct. Elliott v. Ferguson \[Tex. Civ. App.\] 88 S. W. 56.

01. See note in 3 C. L. 1377.

01. Common-law rule has been changed. Mississippi Lumber & Coal Co. v. Kelly (S. D.) 104 N. W. 285. An admittedly genuine lead pencil signature is competent as a standard of comparison. Groff v. Groff, 209 Pa. 603, 59 A. 65. Answer containing admittedly gen'ine signature held admissible as standard of comparison. Mississippi Lumber & Coal Co. v. Kelly (S. D.) 104 N. W. 285. Checks with Indersoments thereon not shown to be in handwriting of party, inadmissible. Id. Unidentified signatures are inadmissible. Taylor v. Taylor's Estate \[Mich.\] 101 N. W. 832. Where Issue is whether will is a forgery or genuine, it is competent to introduce the disputed will in evidence for comparison with other written documents which have been proved to be genuine. Gurley v. Armentraut, & Ohio C. C. (N. S.) 156.

Signatures to records of commissioners' court indamsible for purpose of comparing with signature to deed. Campbell v. Bates \[Ala.\] 39 So. 144.

40. Mississippi Lumber & Coal Co. v. Kelly (S. D.) 104 N. W. 265.

5 Cur. Law.Evidence $ 7A.

Books of science are not admissible to establish doctrines therein stated, \[36\] nor can the contents of such books be placed before the jury indirectly by incorporating the same in questions. \[37\]

_Proof of handwriting._\[38\]--Any writing admitted or proved to contain the genuine writing or signature of the party is admissible as a standard of comparison, \[39\] though inadmissible for any other purpose. \[40\] But the court, in the exercise of its discretion in the matter, may exclude from the jury any irrelevant writing or paper which might influence their decision. \[41\] Comparison of the disputed and admittedly genuine writings may be made by experts in some states; \[42\] in others such comparison can be made only by the jury. \[43\] An expert who has several specimens of handwriting before him, may testify which is the normal handwriting of the writer, but may not give an opinion as to cause of the abnormality of the others. \[44\] A witness may be qualified to testify as to genuineness of handwriting by having seen the party write; \[45\] by having seen letters or documents shown to be in the handwriting which is the subject of controversy; \[46\] or by comparison of handwritings as an expert. \[47\]

there is evidence tending to show injuries 41. Misatisfippi Lumber & Coal Co. v. permanent. Hyland v. Southern Bell Tel. & T. Co., 70 S. C. 315, 49 S. E. 879. Mortal-ness denied signing a paper containing statements, contradictory of his testimony, case where permanent injury is alleged, un- and on request wrote his signature on an-, other paper in the presence of the jury, iffs services or capacity to earn. Atlanta, etc. R. Co. v. Gardner \[Ga.\] 49 S. E. 818.

for comparison of the signatures by the jury, it was held that such paper was in-, extensive for purpose of proving length and the signature
The proved signature of one witness to an instrument does not prove the signature of the other.48 Handwriting may be proved by circumstantial evidence.49 A witness should be permitted to examine documents in testifying to signatures contained therein.50

The Florida statute permitting a disputed writing to be compared with one proved to be genuine, and providing that the writings and the evidence of witnesses making the comparison may go to the jury or court,61 applies to criminal as well as civil actions.52 Under this statute, not only the genuine writings of the party whose signature is alleged to be forged, but also the genuine writings of the alleged forger, are admissible.58

(SS 7) _B. Books of account.54_--Original entries in books of account,55 regularly kept in the usual course of business54 and shown to be correct,57 are compeportunities to become acquainted with handwriting of county superintendent could testify whether handwriting in certain warrant states was that of accused, charged with forgery. Wooldridge v. State \[FIa\] 38 So. 3. A stenographer and typewriter, who had stndled penmanship, and was assistant to clerk of court, held qualified as handwriting or an instrument is disputed, it has been expert. Abernethy v. Yeunt, 138 N. C. 357, 50 S. E. 696.

47 In re Burbank's Ekstate, 34 Civ. Proc. R. 247, 93 N. Y. S. 865. Expert should not be allowed to give an opinion as to handwriting without a thorough examination. Colbert v. State \[VWs\] 104 N. W. G. Ulf. Witnesses with long experience in handling and examining written papers may, as experts, testify whether one witness' signature was written in the same ink as the body of a will and the testatory's signature, and which was the older writing. Savage v. Bowen, 103 Va. 540, 49 S. E. 668. Witness who said she had seen a signature on a lost will-fourteen years before, and had compared her recollection of it with proved signatures, and that signature on will was genuine, was not qualified to give such opinion. In re Burbank's Ekstate, 34 Civ. Proc. R. 247, 93 N. Y. S. 866.

48 In re Burbank's Ekstate, 34 Civ. Proc. R. 247, 93 N. Y. S. 866.

49 It is not required that a witness testifying to the handwriting of a party should have seen him write, or have corresponded with him, but proof of handwriting may consist of ordinary circumstantial evidence.49 A showing a reasonable probability of the handwriting being that of the party whose handwriting it purports to be. Shaffer v. U. S., 24 App. D. C. 417.

50 A witness who has given testimony tending to show genuiness of signatures to notes in suit may properly refuse to testify to the genuteness of signatures on documents, not in evidence, when he is not permitted to examine the documents. Taylor v. Taylor's Ekstate \[Mich.\] 101 N. W. 833.

Contrar In an action upon a promissory note, after denying the genuteness of the maker's signature, a non-expert witness was shown documents, apparently already in evidence, so covered as to leave visible only the signatures, and was asked whether the latter were genuine. Held, that the witness is not entitled to see the entire document before expressing an opinion. Groff v. Groff, 209 Pa. 603.

## 5 Cur. Law. EVIDENCE SS 7B.

tent evidence of the facts of the particular transactions to which they relate.\[58\] Evidence explaining words or marks which constitute part of an entry is admissible with the entry.\[59\] Secondary entries are usually inadmissible " unless supported by the original memoranda."\[91\] In the case of entries made upon information reported by another acting in the line of his duty, there is a conflict as to the necessity of producing the person upon whose report the entry is made.\[42\] Memoranda or book entries the transaction recorded, and if the one \[nal entries made for that purpose. Hagerty making them had personal knowledge of the \] v. Webber \[M6a.\] 61 A. 685. Entries in town fact recorded. Bouldin v. Atlantic Ricemillis \[treasure' books under caption "Land Rent Co. \[Tex. Civ. App.\] 86 S. W. 795. The entries must be made in, and must relate to town for many years admissible to show matters in the regular course of business, and matters not relating to the business and \[M38\] 73 N. E. 524. Entries which are not properly the subject of book \[in memorandum book kept by agent conc accounts, cannot be proved by such entries. \[Id.\] Private memoranda not made in pursuent and nature of business relations because of any duty owed by the person making them are inadmissible. Manchester Assur. Co. v. Oregon R. & N. Co. \[Or.\] 79 P. 60.

Bouldin v. d. R. \[M38\] 79 P. 60.

Memoranda by one watching a blackboard \[from any years admissible to show matters in the regular course of business, nor as \[M38\] 73 N. E. 524. Entries which are not properly the subject of book \[in memorandum book kept by agent conc accounts, cannot be proved by such entries. \[Id.\] 75 N. E. 272.

Bouldin v. d. R. \[M38\] 79 P.

1348Evidence $ 7B. 5Cur. Law. are not the best evidence when witnesses are shown to have a distinct and independent recollection of the facts.\[43\]

\_Corporate records.--\_When the controversy is between stockholders, concerns their interests in the corporation, and involves the consideration of the acts of the corporation as affecting directly its status and indirectly their interests, the records aud books are admissible, if authenticated, by showing that they are the records and books of the corporation and have been regularly kept as such.\[64\] But in a controversy between a private corporation and a stranger respecting title to property or other right directly in issue between them, such books and records are not admissible in favor of the corporation to prove that the acts therein recited were performed at the time and in the manner therein stated, except as memoranda in connection with the oral evidence of witnesses testifying from personal knowledge to such transactions.\[65\] After proof that certain corporate acts have been performed and written memorials thereof made in the form of resolutions or otherwise, the books and records are admissible to identify and prove the character and terms of such instruments.\[66\] Books of a corporation are prima facie identified when shown to have come from the proper custody and to be free from suspicion of fraud.\[67\] The trustee is the proper custodian of such books when the corporation has become bankrupt.\[68\]

Line R. Co., 138 N. C. 42, 50 S. E. 452. In is better evidence than a memorandum made some states It has been held that train memory with the memorandum. State v. departure of trains is entered by a dispacher upon information telegraphed by operators, value of property must be the individual action of witnesses, not a quotation from dispatcher, without that of the operators, the dispatcher testifying that the entered theron reports as sent him. Id. Where cattle wigher entered weights on slips which were sent to bookkeeper in regular course of business, and entered by him, his accounts, testified to be correct, are admissible to establish such weights, without the original slips or the testimony of the wigher, especially where, as in this case, the wigher could not be found. Atchison, etc., R. Co. v. Williams \[Tex. Civ. App.\] 8 S. W. 3S. Memoranda made in the usual course of business, when made up from reports of subordinates, are admissible when accompanied by the testimony of such subordinates that they are correct, combined with that of the person muting the transactions that they were also truly noted. Manchester Assur. Co. v. Oregon R. & N. Co. \[Or.\] 79 P. 60. **Note:** See opinion in Firemen's Ins. Co. v. Seaboard Air Line R. Co., supra, for discussion and authorities on the proposition. **63.** A memorandum cannot be read in evidence if the witness who made it remembers the facts without it. Morris v. New York City R. Co., 91 N. Y. S. 16. Books of account are not best evidence, when witness testines from Independent reclection. Echols vs. Jacobs Mercantile Co. \[Tex. Civ. App.\] 84 S. W. 1082. Memorandum made by offline, though competent to refresh his memory, should not have been read by the court, not being competent as original evidence. Garber v. New York City R. Co., 92 N. Y. S. 722. A memorandum is of no evidentiary value unless it appears that the witness cannot speak from Knowledge of the facts, or from present recollection thereof, after having consulted it. Manchester Assur. Co. v. Oregon R. & N. Co. \[Or.\] 79 P. 60. **Vitness memory of contents of policy of insurance** 5 Cur. Law. EVIDENCE SS 7C.

(SS 7) _C. Public records and documents._"Public records, required by law to be kept," are competent evidence of facts therein stated."11 A valid 72 record of an instrument required by law to be recorded is competent evidence of the contents of the instrument."18 Records of courts,"14 of legislative bodies,"15 or administrative or executive branches of government,"76 are competent evidence, and are

from the proper custodian. Lowry Nat. \[Arb.\] 50 S. E. 386.

and, of an Instrument purporting to be such

Bank v. Fickett \[Ga.\] 50 S. E. 386.

eg, See 3 C. L. 1367.

70. Voluntary weather observations, re-

corded daily for weather bureau, but not re-

78. Under Burn's Ann. St. 1901, $ 3272, rec-

quired, are indamisible as records. Monarch

Mffg. Co. v. Omaha, etc., R. Co. \[Iowa\] 103

need not be produced. Embree v. Emmer-

N. W. 493. Where no law was proved rela-

so \[Ind. App.\] 74 N. E. 44. A power of at-

tive to certificates of incorporation or their

curody, a copy of articles of Incorporation,

istry, may be recorded, and is admissible

certified by the secretary of state of III-

nols, was inadmissible in Missouri. Flor-

sechim & Co. v. Fry \[Mo. App.\] 84 S. W. 1023.

eming the admissibility of the recorded

One who has kept records of vital statistics

for some years cannot testify in regard

49 S. E. 745. Where original ded showed

thereto unless it appears that the records

were kept pursuant to a statute or a church

or local custom. Pirrun's V. Supreme Coun-

of the ded and plat was admissible to show

cl of Catholic Mut. Ben. Ass'n, 93 N. Y. S.

575. If records are shown to have been kept

pursuant to a foreign law, proof of such

law must be made according to Code Civ.

Proc. $ 942. Id.

71. Records of vital statistics: Copy of

death certificate placed on record according

to requirement of law, reciting certain dis-

555, 50 S. E. 210. Under We. St. 1893, $ 3098,

ease as cause of death, is evidence of that

fact. National Conncil of Knights & Ladies

of Security v. O'Brien, 112 Th. App. 40.

\*\*Records of weather bureau: Records of the

federal weather bureau may be read in evidence by an

dence by an officer of the department. An

\[Mo. App.\] 84 S. W. 1023. Certified copy of

derson v. Hilker \[Wash.\] 80 P. 848. Official

records of meteorological observations re-

quired to be kept by public officers in

per-
evidence of incorporation. Anglo-Californ-

formance of their duties are admissible.

Monarch Mfg. Co. v. Omaha, etc., R. Co.

74. Certified copy of tax judgment is

\[Iowa\] 103 N. W. 493. Letter press coples

of typewritten sheets, kept in Chicago office

in. Tifft v. Greene, 211 Th. 899, 71 N. E. 1030.

of weather bureau as records, the original

sheets being sent to Washington, are com-

pence admissible, in action for malicious

pection evidence, being equivalent to sworn

occupy of a record, when introduced with tes-

timony of officer in charge of bureau. Chi-

Cago & E. L. R. Co., V. Zapp, 110 Th. App. 553.

72. Dead acknowledged before a justice of

California who had no official seal is not en-

tiled to be recorded in Florida and hence

1s not evidence if recorded. Rev. St. 1892,

$ 1973. Norris v. Billingsley \[Fla.\] 87 So.

564. A copy of a void record is not admi-

sible for any purpose. Where certificate of

clerk did not show that subscribing witness

to dead had been sworn, in proving execu-

\[Arb.\] 83 S. W. 326.

tion, the acknowledgment was defective, and

hence the dead was not entitled to record

The existence of such recd could not be

proved by certified copy. Vanzas v. Trapp

\[Tex. City. App.\] 87 S. W. 877. The record

of a deed, void because the deed was

improly acknowledged and not entitled to

record is admissible to establish existence

of the deed when lost. Simmons v. Hewitt

\[Tex. City. App.\] 87 S. W. 188. Though

dimil-

was properly considered a public record, and

a certified copy of the record of a vote there-

was made, and its loss plausibly accounted

for, but it appeared that no witness had ever

8. Co. v. Horgan, 26 R. L 448, 59 A. 310.

seen the original, a certified copy of the rec-

76. On issue of service of a person as a usually proven by transcript or copy,77 though the originals are competent when produced.78 Copies must be certified as required by law,79 or otherwise duly authenticated.80 Foreign records 81 and laws 82 must be proved in the manner pre-

- **80.** A foreign judgment may be proved by jutant general as copy of instrument in his an examined copy. Testimony of two wit-offee, admissible under Rev. St. 1895, 8 238.

scribed by law.

Reports, when used to prove facts contained therein, should be produced entire.\* Persons who have searched records may testify that they do not contain certain entries; * but some courts hold that such testimony can be given only by the lawful custodian of the record.\*

Official documents are competent to prove essential * but not incidental * facts recited therein, and are not competent if unauthorized.\* The contents of an official document beyond the jurisdiction of the court may be proved by the deposition of the official custodian.\* Courts of Louisiana receive the attestation of American consuls or commercial agents residing abroad as legal evidence of the attributes and official station or authority of magistrates and civil officers of foreign countries.\*

(SS ?) \_D. Proceedings to procure production of documentary evidence.\_91--If timely * and legally sufficient * notice to produce documentary evidence is given,\* or if a subpoena duces recum or order to produce is asked for,\* the court should order such evidence to be produced.\* Refusal to produce unprivileged * documents

Supreme Council of Catholic Mut. Ben.

and American vice consult certifies to signature and seal of such official, his capacity and authority, the signatures to the power public lands being introduced, other parts

must be considered as proved. Rev. St. were competent In rebuttal. Lynch v. U. S.

1876, $ 1436. Werner v. Marx, 113 La. 1002, \[C. C. A.\] 138 F. 635. Transcript of judg.

37 So. 905.

ment held incompetent because only a part

91. Klee 3 C. L. 1368.

of the record to be proved. Southern R. Co.

92. Where in suit for injunction the time v. Seymour, 113 Tenn. 523, 83 S. W. 674.

between sanction of the bill and return of $4. That records did not show natural--the rule was less than 10 days, an order to fixation of certain person. Rev. St. 1898, $ 4163, relative to proof of records by certifi-

proper, it being impossible to give 10 days aate of custodian, does not render such

notice, and defendant having made no objection. State v. Rosenthal, 123

37. No. 442, 102 N. W. 49. Town clerk after

01. Notice specifying letters by insurance deaths could testify that an alleged mar-

agent concerning loss, and letters by in-

riage and alleged death did not occur in a certain year. McPhelemy v. McPhelemy

1\[Conn.\] 61 A. 471.

SS. Testimony of one not the custodian

that he had examined files in-office of secretory of state and had failed to find record of

term:" If the trial occurs at a term subse-

chapter of certain corporation, held inadmissible. Cobb v. Bryan \[Tex. Civ. App.\] 83

83. W. 887.

01. Duly certified tax roll of a town

showing lands assessed and names of those

sessed as owners, competent evidence In

stutory proceedings to exclude bonds from municipal organization under Acts 1903, c.

5197. Town of Ormond v. Shaw \[Fla.\] 39 So.

0001.

0001. Since viewers under Act Feb. 17, 1822,

P. L. 35, have no power to fix width of road,

the record of their report is not legal evidence of the width of the road. Maus v.

Mahoning Tp., 24 Pa. Super. Ct. 624. Certificate of discharge of soldier from army, re-

90. Where a party does not respond to a citing his physical characteristics, is hand-

missible to prove his size and height. Com-

monewealth v. Crowley, 26 Pa. Super. Ct. 124.

88. In Texas, a certificate of the secretory of state that a permit to a foreign corporation to do business in the state has been

fortified for nonpayment of taxes is not

evidence of such forfeiture, since the stat-

utes do not authorise such certificate. St.

Louis Expanded Metal Fireproding Co. v.

Bellahrex \[Tex. Civ. App.\] 13 Tex. Ct. Rep.

605, 88 S. W. 512.

89. Kelly v. Moore, 22 App. D. C. 9.

01. When German official certifies to gen-

unless of signatures to power of attorney 1352 EVIDENCE SS 8. 5 Cur. Law.

renders the party guilty of contempt. \[98\] The Federal court has no power to order an examiner before whom documents and books have been produced under subpoenas duces tecum to remove such documentary evidence to another district for use in examining witnesses. \[99\]

SS 8. _Evidence adduced in former proceedings._\[1\]--Testimony of a witness given on a former trial is admissible when the witness is dead, \[9\] or beyond the jurisdiction of the court. \[9\] There is a conflict as to the applicability of this rule in the Federal courts. \[9\] The issues and parties in the former proceeding must have been substantially the same as those in the subsequent trial. \[9\] A transcript of the former test-mony is the best evidence of it, \[9\] if shown to be correct, \[9\] but oral testimony by one who heard it is admissible. \[9\] Testimony of a party on a former trial may be comn-company are not privileged and must be pro-duced under a duces tecum issued in an action growing out of such accidents. Ex a state rule. Toledo Traction Co. v. Cam-Parte Schober, $ Ohio N. P. (N. S.) 93. \[10\] First 48. But in another circuit it is held that the provisions of the poem dueces tecum tecintles that he is un-revised statutes as to the mode of proof in Federal courts form a complete system, that attorney for the party admits, when called to the stand, that the document is in court or exceptions there specified and that no state legislation can add to or take from the methods of procuring evidence there provided. Diamond Coal E. Coke Co. v. Allen New York Edisson Co., 92 N. Y. S. 187. \[11\] First 48. \[12\] First 48. \[13\] First 48. \[14\] First 48. \[15\] First 48. \[16\] First 48. \[17\] First 48. \[18\] First 48. \[19\] First 48. \[19\] First 48. \[20\] First 48. \[21\] First 48. \[22\] First 48. \[23\] First 48. \[24\] First 48. \[24\] First 48. \[25\] First 48. \[26\] First 48. \[27\] First 48. \[28\] First 48. \[29\] First 48. \[20\] First 48. \[21\] First 48. \[23\] First 48. \[24\] First 48. \[25\] First 48. \[26\] First 48. \[27\] First 48. \[28\] First 48. \[29\] First 48. \[20\] First 48. \[21\] First 48. \[22\] First 48. \[23\] First 48. \[24\] First 48. \[25\] First 48. \[26\] First 48. \[27\] First 48. \[28\] First 48. \[29\] First 48. \[20\] First 48. \[21\] First 48. \[23\] First 48. \[24\] First 48. \[25\] First 48. \[26\] First 48. \[27\] First 48. \[28\] First 48. \[29\] First 48. \[29\] First 48. \[20\] First 48. \[21\] First 48. \[22\] First 48. \[23\] First 48. \[24\] First 48. \[25\] First 48. \[26\] First 48. \[27\] First 48. \[28\] First 48. \[29\] First 48. \[29\] First 48. \[20\] First 48. \[21\] First 48. \[22\] First 48. \[23\] First 48. \[24\] First 48. \[25\] First 48. \[26\] First 48. \[27\] First 48. \[28\] First 48. \[29\] First 48. \[29\] First 48. \[20\] First 48. \[21\] First 48. \[22\] First 48. \[23\] First 48. \[24\] First 48. \[25\] First 48. \[26\] First 48. \[27\] First 48. \[28\] First 48. \[29\] First 48. \[29\] First 48. \[20\] First 48. \[21\] First 48. \[22\] First 48. \[23\] First 48. \[24\] First 48. \[25\] First 48. \[26\] First 48. \[27\] First 48. \[28\] First 48. \[29\] First 48. \[29\] First 48. \[20\] First 48. \[21\] First 48. \[22\] First 48. \[23\] First 48. \[24\] First 48. \[25\] First 48. \[26\] First 48. \[27\] First 48. \[28\] First 48. \[29\] First 48. \[29\] First 48. \[29\] First 48. \[ 5.Cur. Law. EVIDENCE SS 9A. 1353

petent as an admission against interest." In the absence of anything in a stipulation as to facts limiting its use, it may be introduced in evidence in a subsequent trial of the same cause.10

Footnote 10: The author is grateful to the anonymous referee for his careful reading of the manuscript.

The record of a coroner's inquest is inadmissible to show cause of death in another proceeding.11

**SS 9.**\_Expert and opinion evidence. A. Conclusions and nonexpert opinions.12--\_Mere conclusions of a witness13 or the opinions of nonexperts on issues

testmony at the former trial was taken

down officially in shorthand and transcribed

size was revolving, under a certain condition of light. Morrowv v. Gaffney Mfg. Co., one who heard the testimony, Incorpentient

70 S. C. 24, 49 S. E. 573. Whether there

had not been previous attempts to break

9. Testimony on a former trial is compe-

into welling. Osborn v. Stato. 140 Ala. 84,

tent as an admission against interest,

37 So. 108. What witness could have seen if

though it does not contradict present testi-

mony. Lush v. Incorporated Town of Park-

Marrow v. Gaffney Mfg. Co. 70 S. C. 242, 49

srubury \[Iowa\] 104 N. V. 336.

S. E. 673. Testimony that defendant acted

10. Sitpluation that certain person was

as though he thought five or six men were

seized and possessed of the land in dispute

after him. Bell V. Stato, 140 Ala. 57, 37 So,

at his death. Nathan v. Dierssen, 146 Cal.

281. That only baggage received on board

63, 79 P. 739. A stipulation containing an

shp was that shown by baggage list. Luni-

admission is not limited to the first trial,

sasky v. Hamburg-American Packet Co., 94

but is in the case until the litigation is

N. Y. S. 857. That witness did all in his

ended, and on a second trial, it may be read

power to get a message off. Western Union

from the record of the preceding trial.

Tel. Co. v. Merrill \[Alta.\] 39 So. 121. That

Stemmer v. New York, 179 N. Y. 478, 72 N.

5. K. 581.

1. Finding at coroner's inquest that de-

censed committed suicide, is inadmissible in

friendly" of certain persons. Stevens v.

action on life insurance policy, where suicide

is the defense. Boehme v. Soverstein Camp

Woodomen of the World \[Tex.\] 84 B. W. 422;

boehme v. Soverstein Camp of Woodman of

the World \[Tex.\] 84 B. W. 444;

witness thought deceased was near enough

boehme v. Soverstein Camp of Woodman of

the World \[Tex.\] 84 B. W. 444;

witness incapable of self-control, or self-

Kane v. Supreme Tent Knights of Maca-

bees of the World \[Mo. App.\] 87 S. W. 647.

Corna: Verdict or inquisition of coron-

of "Pay" competent evidence on issue of

suelido. Knights Templars & Masons' Life

Mendimity Co. v. Crayton, 110 Ill. App. 648.

But depositions taken before coroner's jury

are not competent. Id.

**Note:** For discussion and collection of

authorities see note to Aetna Life Ins. Co. v.

Milward \[Ky.\] 68 L. R. A. 285.

12. See 3 C. L. 1370.

01. Nonexpetry are required to testify to

facts within their own knowledge and not

to opinions, inferences, and conclusions from

facts. Watson v. Colusa-Parrot Mining &

Smelting Co. Mont.\] 79 P. 14; Illinois Steel

Co. v. McNulty, 105 Ill. App. 634.

**Held mere cenelsenism and inadmissible:**

Whether testaator controlled, or was con-

trolled by, his wife. Franklin V. Boone

\[Tex. Civ. App.\] 13 Tex. Ct. Rep. 93, 88 S. W.

82. Whether price of stock was steady

enough to withstand the pufting of 18,000

shares on the market. Spinks v. Clark \[Cal.\]

82 P. 45. Whether there was anything un-

usual in the appearance of a small crime at

a railway crossing. Western R. of Ala.

v. Geghorn \[Alta.\] 39 So. 133. Whether or

not car on which workmen were being carried was

overcrowded. Chicago Terminal

Transfer R. Co. v. O'Donnell, 213 Ill. 545, 72

N. E. 1133; Chicago Terminal Transfer Co. v.

orDennell, 114 Ill. App. 345. Whether it was

possible to discover defect in plant previous

to the accident. Village of Upper Alto v.

Green, 112 Ill. App. 439. Whether witness

would have told that a wheel of a certain missible. Reid v. New York City R. Co., 93

N. Y. S. 833. Certificate of clerk containing only his conclusions as to contents of a record, held incompetent. Bickerdike v. State, 141 Cal. 698, 78 P. 277. Witness answer to question regarding speed of car, that it would be hard to judge because the car had just started and could not have been running fast, excluded because a mere conclusion of fact based on another conclusion of fact. Birmingham R. Light & Pow-

ent Co. v. Rutledge (Ala.) 39 So. 338. In action on bond, testimony of a witness that he would not have accepted the bond if he had known the facts shown by the proof, was

indamissible, the witness having had nothing to do with the acceptance of the bond.

Cited States Fidelity & Guaranty Co. v. Blackley, Hurst & Co. \[Ky.\] 85 S. W. 196. In suit to enjoin location of cemetery, statements of witnesses that their land would de-

preciate in value because they would not and could not drink water off dead people,

held mere opinion on issue whether water

would be polluted. Elliott v. Ferguson

\[Tex. Civ. App.\] 83 S. W. 56. Admission of statement of witness as to what she thought

her condition was, though an opinion, was

not reversible error, where she had previl-

ously testified to all the facts. Chicago City

R. Co. v. Saxby, 213 Ill. 274, 72 N. E. 755.

**Neural status:** Witnesses are not permitted to testify to their motives, wishes, or mental status. Barnewil v. Stephens

\[Ala.\] 38 So. 662. Purchaser of property

may not give his conclusion as to whose efforts induced him to buy. Johnson v. Dy-

sert \[Kan.\] 79 P. 652; Jenkins v. Beachy

\[Kan.\] 80 P. 947. Testimony of plainity injured by collision that he looked and

thought he would have plenty of time to

cross the street, held competent on issue of

his negligence. McCrebahn v. Davison \[Mass.\] 99

73 N. E. 553. Where the intent is a mate-

rial issue in the case, the party may be

asked the direct question what his intent

was at the particular time or with respect

to the particular act in question. If circumstances tend to show an intent and no-

tice thereof to the other party, such testi-

mony is admissible; an undisclosed intention is inadmissible. Dunbar v. Armstrong,

in actual possession of designated reality at

115 Ill. App. 549. On issue of fraud as to

creditors, buyer and seller properly allowed

193, 48 S. E. 984. Witness who saw plaintiff

to testify directly to their intent in the

sale. Hill v. Page, 95 N. Y. S. 465. The

cognition of another is not a fact of which

a witness may testify. Question to physical

57. Witness may state that there was no

can as to "what every experienced physical

can knows," improper. Graham v. State

\[Ala.\] 38 So. 919. In an action on a life in-

sumance policy, the defendant, in order to

prove that the insured had committed sui-

cide, sought to introduce in evidence the

following declaration of the deceased made

about an hour before his death. "Adolph,

will you be as good a friend to my wife as

you have been to me?". Held, that the dec

lateration is not admissible. Ross-Lewin v.

Germania Life Ins. Co. \[Coi. App.\] 78 P.

305.

**Note: "In most jurisdictions declarations**

of intention are admitted in proof of a sub-

sequent act, where the declarations are

made under circumstances including the

idea of misrepresentation or bad faith, and

so close to the act in point of time as to ren-

der it probable that the intention was car-

ried into execution. Commonwealth v. Trec-

fethon, 157 Mass, 180, 24 L. R. A. 235; Rens

v. Northwestern, etc., Ass'n, 100 Wis. 266.

In the present case the court, while not

squery rejecting this doctrine, refuses to

apply it to a case where the statement does

not expressly declare the alleged intention,

been running fast, excluded because a mere

but merely implies it. The soundness of

this decision seems doubtful; for, once ad-

minting that the intention is a relevant fact

and that it may be proved by evidence of

declarations, it is difficult to see why a

statement should not be admitted, which un-

der the circumstances could reasonably be

interpreted as expressing such intention. In

cases of murder and arson remote and obscure

serve allusions to the act in contemplation

are often admitted to show an existing dis-

position or design. State v. Hoyt, 47 Conn.

518, 36 Am. Rep. 89; State v. Gallor, 71 N. C.

preciate in value because they would not

88.7 71 Am. Rep. 3,-18 Arv. L. R. 393,

maning on Ross-Lewin v. Germania Life

held mere opinion on issue whether water

Ins. Co. \[Coi. App.\] 78 P. 205.

would be polluted. Elliott v. Ferguson

**Heid statements of fact, and admissible:**

\[Tex. Civ. App.

5 Cur. Law. EVIDENCE SS 9A.

which are for the court 14 or jury,15 or the subject-matter of which requires expert

\\begin{tabular}{l|l} thing irrational did not call for an opinion & called for opinion as to what would constitues \\ on his sanity. State v. Lyons, 113 La. 959, & vote such an attempt, Dawson v. Orange \\
37 S6. 880. Question whether testator spoke & \[Conn.\] 61 A. 101. A witness, as an account \\ of his brother "affectionately or otherwise" & countant, may summarize classified items in \\ does not call for conclusion. Appeal of Spencer & railroad books, leaving the effect to be given \\ & such items to the court. State v. Nevada \\ & canult case may testify that she had her back \\ & canutrized for the ailment resulting from \\ & be injury. Hubbard v. Perlie, 25 App. D. \\ & \\ C. 477. Question whether one's hand could \\ & be caught in gear of machinery held not to \\ & call for opinion, but to be a way of getting \\ & a description of a machine. Gomes v. New \\ & Bedford Cordage Co., 187 Mass. 124, 72 N. E. \\ & \\
840\. Question to commissioner of public & \\ & works whether he objected to use of dynamic \\ & mite by contractor in excavating tunnel \\ & that sidewalk was in a reasonably safe \\ & does not call for conclusion. City of Chilion. \\ & \\ & cago v. Murdock, 212 Ill. 9, 72 N. E. 46, \\ & \\
96\. Whether rule requiring work trains to \\ & timony that witness could not get into car \\ & before he was hurt (by a pole), because the \\ & car was crowded, was not a mere conclusion. \\ & \\ & engine had necessary knowledge and ability \\ & \[Ind. Appl.\] 74 N. E. 34. Statement that \\ & skill or knowledge,14 are inadmissible. But the opinions of nonexperts are received in regard to such matters as value,17 ownership,18 sanity,10 mental capacity,20 and

Phillips v. Collinsville Granite Co. \[Ga.\] 51 of real estate values in a section of the city S. E. 666. Where testimony of witness on precliminary examination was used to imparcelsed an opinion contrary to the law as peach him, and examining magistrate testi- fied that witness did not give certain testi- mony before him, it was error to allow such magistrate to say that he remembered it because it had impressed him as unreasonable.

\[Mass.\] 74 N. E. 330. After it was shown byver v. State \[Tex. Cr. App.\] 88 S. W. 192.

Where descriptive language can put the facts before the jury adequately, opinion evidence is incompetent. Philadelphia v.

\[Dobbins, 24 Pa. Super. Ct. 186. Opinion evidence inadmissible when facts and circumstances are such that they can be clearly detailed and the jury can readily form conclusions therefrom. City of Macon v. Humphries \[Ga.\] 50 S. E. 986.

\[Mass.\] 74 N. E. 330. After it was shown byver v. State \[Tex. Cr. App.\] 88 S. W. 192.

\[Mass.\] 88 N. P. 192. Statement that plaintiff dent, could not be used for same purpose as before, given without facts, inadmissible.

\[Led.\] 88 N. P. 194.

\[Led.\] 88 N. P. 195.

\[Led.\] 88 N. P. 196.

\[Led.\] 88 N. P. 197.

\[Led.\] 88 N. P. 198.

\[Led.\] 88 N. P. 199.
other matters not requiring expert skill or knowledge,21 when the witness is shown to be qualified 22 by his observation or familiarity with the subject of inquiry,28 and when his opinion is accompanied by a statement of the facts on which it is based.24

the jury considering the opportunity for and |inconsistent with capacity or sanity. Hibacuracy of such observation. Howard v. Carter \[Kan.\] $0 P. 61. Non-expert wit-nesses who have observed acts and conduct a dececent, who had observed his habits, that of a person may give an opinion on his sanity after giving instances of his conduct. Chicago Union Traction Co. v. Lawrence, 211 |M. 373, 71 N. E. 1024. Witness who had known defendant since childhood and had had several recent conversations with him could testify as to his sanity. Braham v. |M. W. 399. Testimony of associates of masses who have observed acts and conduct of a person may give an opinion on his sand- they had seldom or never seen him drink or appear to be under the influence of liquor, Chicago Union Traction Co. v. Lawrence, 211 |M. 373, 71 N. E. 1024. Witness who had known defendant since childhood and had had several recent conversations with him. |M. W. 165.

and |M. W. 211. Non-experts may testify to experimentfully as to his sanity. Braham v. |M. W. 399. Testimony of associates of masses who have observed acts and conduct of a person may give an opinion on he's sand- they had seldom or never seen him drink or appear to be under the influence of liquor, Chicago Union Traction Co. v. Lawrence, 211 |M. 373, 71 N. E. 1024. Witness who had known defendant since childhood and had had several recent conversations with him. |M. W. 165.

and |M. W. 399. Testimony of associates of a person may give an opinion on he's sand- they had seldom or never seen him drink or appear to be under the influence of liquor, Chicago Union Traction Co. v. Lawrence, 211 |M. 373, 71 N. E. 1024. Witness who had known defendant since childhood and had several recent conversations with him. |M. W. 165.

and |M. W. 399. Testimony of associates of a person may give an opinion on he's sand- they had seldom or never seen him drink or appear to be under the influence of liquor, Chicago Union Traction Co. v. Lawrence, 211 |M. 373, 71 N. E. 1024. Witness who had known defendant
(SS 9) _B. Subjects of expert testimony._\[25\]--Expert opinion is admissible in regard to matters adequate knowledge of which presupposes special skill, experience, or investigation; \[26\] it is inadmissible regarding matters of common knowledge,\[37\] or

- \[\] cago, etc., R. Co. v. Jones \[Tex. Civ. App.\] 13 of accused in homiediede case is for court; weight and value of his opinion is for the jury. Shaffer v. U. S., 24 App. D. C. 417. Witness should not be permitted to testify to land values or damage to land until his competency has been shown by a proper preliminary examination. Hope v. Philadelphia & W. R. Co., 211 Pa. 401, 60 A. 986. Qualification of expert on real estate value should be shown before his testimony is received. Watkins Land Morris. Co. v. Campbell \[Tex.\] 84 S. W. 424.
- \[\] **23.** One not a surveyor may testify to measurements of a city lot made by him. Gunkel v. Seiberth \[Ky.\] 85 S. W. 733. Witness may tell within what time an act may be done, when he testifies from personal knowledge. Biggers v. Catawba Power Co. \[S. C.\] 51 S. E. 882. Not necessary to qualify physical as expert to admit his testify.
- \[\] **25.** One not a surveyor may testify to measurements of a city lot made by him. Gunkel v. Seiberth \[Ky.\] 85 S. W. 733. Witness may tell within what time an act may be done, when he testifies from personal knowledge. Biggers v. Catawba Power Co. \[S. C.\] 51 S. E. 882. Not necessary to qualify physical as expert to admit his testify.
- \[\] **26.** Another work of this work is to be done, but it is not possible to use the same as the one in the previous work.
- \[\] **27.** Another work of this work is to be done, but it is not possible to use the same as the one in the previous work.
- \[\] **28.** Another work of this work is to be done, but it is not possible to use the same as the one in the previous work.

5 Cur. Law.

EVIDENCE SS 9B.

out of pasture. Kittredge v. City of Cin-

ton \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 589,

cinnati, 6 Ohio C. C. (N. S.) 646. Where

88 S. W. 857. The fact that medical test-

agreement was to pay reasonable value of

mony as to the cause or effect of injury conservices, witnesses could testify to usual

ists usually of opinions based on personal

custom as to percentage paid, though no

experience and the learning of the profes-

fixed custom was proved. Walker Mfg. Co.

sion, and not of positive statements of fact,

v. Knox \[C. C. A.\] 136 F. 334. Captain of

does not render it incompetent. City of

vessel, qualified as expert, could give opin.

South Omaha v. Suillffe \[Neb.\] 101 N. V.

lon on whether he could have prevented a

897. Opinion of physician as to cause of

collision after he saw a projection in a

death should be confined to facts and should

bridge. Lambert v. La Conner Trading &

not extend to matters not requiring medical

Transp. Co., 37 Wash. 113, 79 P. 608.

Raifford construction and management:

Masons' Life Indemity Co. v. Crayton, 110

Experts may testify whether

smitch frogs are dangerous. Schroeder v.

wounds about the head were sufficient to

Chicago & N. W. R. Co. \[Iowa\] 103 N. W.

produce death. Horst v. Lewis \[Neb.\] 103

985. Distance within which street car can

N. W. 460. Expert medical opinion, based

be stopped by brake. Indianapolis St. R. Co.

on symptoms as shown by the evidence, is

v. Sserley \[Ind. App.\] 72 N. E. 169. Expert

comment on issue whether a person was

cannot state distance in which particular

adicted to use of morphine. Buxton v.

car could be stopped unless he has had ex-

Emmery \[Mich.\] 102 N. W. 948. Exclusion of

perience with that or similar cars; but he

question to physician whether child could

may state that cars differently equipped

show no symptoms of olightria one day

could be stopped in a shorter distance. Co-

and develop a fatal case the next was error.

lumbus Ry. Co. v. Connor, 6 Ohio C. C. (N. S.)

Purcell v. Jessup, 99 App. Div. 556, 91 N. Y.

361. Speed of-train and distance in which

S. 166. Physical could testify whether

it could be stopped not subject of expert tes-

sons uncancolous with pneumonia ever rally

timony unless based on operation of cars

and regain consciousness. Struth v. Decker

and engines of similar construction and

\[Mfd.\] 59 A. T27. Testimony of physician

equipment. Wise Terminal Co. v. McCormick

that pain might possibly be referred to

\[Va.\] 51 S. E. 731. Experienced railroad

jury did not invade province of jury. Noller

men could testify to conductor's duties and

v. Wright \[Mich.\] 101 N. W. 553. A phy-

whether he ought to give a stop signal

sician may testify to which of two accl

in switching before he knew a car to be

s switched was uncoupled. Pittsburgh, etc., R.

stones surrounding each being fully shown.

Co. v. Nicholas \[Ind. App.\] 73 N. E. 195.

Properly qualified witnesses may testify as

387, 49 S. E. 355. Medical expert in personal

to whether sparks or fire can leave fire box

injury action may be asked either as to

of engine without going through spark

cause of plaintiff condition, or conversely,

rester; whether engines could be operated

as to effect of injuries such as he received.

without small cinders escaping through

Holden v. Missouri R. Co., 108 Mo. App. 665,

smoke-stack; and to construction and enf

$4 S. W. 133. Physicians who had examined

ciency of spark arrerers on engines like

plaintiff's injured foot, could testify that in

those in question. German Ins. Co. v. Chi-

their opinion injury must have been caused

cago & N. W. R. Co. \[Iowa\] 104 N. W. 361.

by contact with uneven surface. Illinois

Experts may testify to condition of sparke

or elnders thrown a .certain distance, and

physician may testify to the probable

whether live or burning sparks would have

sequences of an injury. Norfolk R. & L. Co. carried that far if engine emitting them was

v. Sgruley, 108 Va. 379, 49 S. E. 502. Questions whether

in proper order. Babbitt v. Errie R. Co., 85

to switch in recurrent troubles or were "apt"

**Machinery**, **construction**, **engineering**, \*\*to affect injuriously the other eye were

Whether insulator on pullover wire was

safe. North Amherst Home Tel.Co. v. Jack-

son, 4 Ohio C. C. (N. S.) 3 when the facts can be intelligibly presented to the jury and are of such a nature that jurors generally are competent to form opinions and draw conclusions from them \[28\].

Expert opinion is inadmissible on issues of law \[29\].

City, M. & B. R. Co. v. Butler \[Ala.\] 88 So. by boy of twelve of starting a belt operat-1024. A practicing physician knowing the nature, extent and condition of the injury in its early stages may give an opinion as to whether or not it will be permanent, and smoke thrown on land. Baltimore Belt C. (N. S.) $21.

T. V whether keeping cows in connection with hotel is profitable. Smith v. Stevens \[Colo.\] $1 P. 35. Proper way to lift cable from one insulator pin to another on telephone pole. Meehan v. Holyoke St. R. Co., 186 Mass. 511, 73 N. E. 61. Whether land was injured by construction of tunnel whereby smoke was thrown over land, and noise and vibration from trains resulted. Baltimore Belt R. Co. v. Sattler \[Md.\] $9 A. 654. That certain items of expense, such as coal, were necessary operating expense of a railroad. State v. Nev. Cent. R. Co. \[Nev.\] $1 P. 99. That railway tunnel increased quantity of smoke at ends, over quantity there would have been if trains ran through open cut. Baltimore Belt R. Co. v. Sattler \[Md.\] $5 A. 654. Question to master mechanical whether it was necessary to sound whistle at stated times to notify employees when to begin and leave work. Powell v. Nevada, C. & O. R. Co. (Nev.) $7 P. 978. Damages to property by change of grade crossing not subject to export teamory. Rams Ramshaw Sassel's Ext. 24 Pa. Super. Ct. 262.

28. State v. Nev. Cent. R. Co. \[Nev.\] $1 P. 99. The opinion of experts should not be received if all the facts can be ascertained and made intelligible to the jury or if it is such as men in general are capable of comprehending and understanding. Opinion of machinelints that certain machinery should have been safeguarded incompetent. National Bi lut Co. v. Nolan \[C. C. A.\] $18 F. 6. Opinion evidence is admissible only where, because of the complexity of the elements involved, it is impossible for the witness to detail all the circumstances which lead his mind to a particular conclusion. As what time would reasonably be required to perform an unusual task or special work, where all the elements or data for calculation could be successfully intelligibly presented to the jury. Allison v. Walf, 121 Ga. $22, 49 S. E. $31. Expert opinion manlinsible on question whether land was mineral or non-mineral. Lynch v. United States \[C. C. A.\] $18 F. 555. Whether a shaft was sunk on a vein of ore. Hickey v. Anaconda Copper Min. Co. \[Mont.\] $1 P. 806. Whether train could be run safely over submerged track, when a freight train had preceded it. Chicago, etc., R. Co. v. Cain \[Tex. City. App.\] $4 S W. $82. Whether machinery was reasonably safe and suitable. Coe v. Van Why \[Colo.\] $0 P. 894. Who was responsible for securing of train, and what witnesses would have done under certain circumstances. Denver & R. G. R. Co. v. Vitello \[Colo.\] $1 P. 766. Whether cause of derallment was spreading of ralls and defect in wheels of street car. Schutz v. Union R. Co., 181 N. T. $33, 73 N. E. 491. Whether method adopted by the jury or if it is not possible to perform a conflict with the jury or if it is possible to perform a conflict with the 5 Cur. Law. EVIDENCE SS 9C.

(SS 9) _C. Qualification of experts.\[30\]_--Qualification of a witness to testify as an expert is a preliminary question,\[31\] addressed largely to the discretion of the trial court.\[32\] Special familiarity with the subject under investigation, experience, and professional skill and training, are the tests usually applied.\[33\] Expert capacity is a matter wholly relative to the subject of a particular question.\[34\]

ing value of road for taxation. Id. Witness may not state whether he considered certain language used by policeman profane, without giving the exact language used; whether it was profane, within the meaning of a law prescribing policemen's duties, being for the court. Lamb v. City of Brunswick, 121 Ga. 346, 49 S. E. 275. Where witness opinion involved not only what could have been done in a certain time, but also what should have been done, it was inadmissible. Allison v. Wall, 121 Ga. 822, 49 S. E. 831. The text of a foreign statute being before the court, Its construction is for the court and the opinion of a lawyer of experience as to the consensus of opinion among lawers in the slater state, as to its meaning, isadmissible. Clark v. Ellinge \[Vwash.\] 80 P. 556.

30. See S C. L. 1375.

01. Meyers v. McAllister \[Minn.\] 103 N.

W. 564. It is improper to allow a witness called as an expert to testify, leaving his qualification to be determined on cross-examination. Dolan v. Herring-Hall-Marvin Safer Co., 94 N. Y. S. 241. The party calling the expert should show his qualification before his estimony is admitted. Id. Expert testimony on former trial, having been given without objection to qualification of witness, such objection was unavailing on reading of testimony at later trial after experts' death.

Wallach v. Manhattan El. R. Co., 94 N. Y. S. 574. Objection that expert coulist was not qualified to testify to a pathological condition of the optic nerve, held untenable, his qualification having been conceded. State v. Lyons, 113 La. 959, 37 So. 890. Where witness was shown to be qualified to give opinion by cross-examination, the cross-examination, curve was dangerous. Id. Engineer, long in the service and familiar with locality, qualified to testify what rate of speed was necessary to haul a train across a street and into yards. Baltimore & O. R. Co., v. Connell \[C. C. A.\] 137 F. 8. Practical railroad man, with three years' experience in construction and repair work on tracks qualified to testify to purpose and proper location of derailing switch. Smith v. Fordye \[Mo.\] 88 S. W. 679. That a physician cannot testify to confidential communications does not disqualify him to give expert opinion, based on hypothetical facts, as to cause of injury of a patient whom he attended. Crago v. City of Cedar Rapids, 123 Iowa, 48, 98 N. W. 354. Osteopath, who had had experience in nervous diseases, qualified to testify to extent of injuries, though not a licensed practitioner. Macon Railway & L. Co. v. Mason \[G.\] 51 S. E. 549. Electricals held competent to give their experience and opinions as to effectiveness of certain insulators and their tendency to fall into disuse where formerly used. Warren v. City Elec. R. Co. \[Mich.\] 12 Det. Leg. N. 415, 104 N. W. 613. One who had been a waterman for twenty years, had knowledge of boats, and special knowledge of boat in question, complement to testify to boat's value. Gossage v. Philadelphia, etc., R. Co. \[M.d.\] 61 A. 692.

\*\*Reld Incompetent:\*\*Witnesses not shown to have sufficient knowledge of subject to give opinions on effect of embankment on flow of water in stream. Gulf, etc., R. Co. v. Harblson \[Tex. Civ. App.\] 13 Tex. Ct. Rep. 67, 88 S. W. 452. One not shown to have any knowledge of a general custom in handling wires in house moving cannot testify thereon. Nagie v. Hake, 123 Wins. 256, 101 N. W. 499.

\*\*Manification of witnesses to value:\*\*Witnesses with no knowledge of cost price or of value of jewery incompetent to express an opinion on value. Motton v. Smith \[R. I.\] 60 A. A. 681. Witness held qualified to give opinion on value of furniture. Osmers v. Furey \[Mont.\] 81 P. 345. Witnesses held competent to testify to value of automobile. Paterson v. Chicago, etc., R. Co. \[Minn.\] 103 N. W. 621. Experienced salesman who had inspected stock of goods could testify to their value. L. T. Madden & Co. v. Phoenix Ins. Co., 70 S. C. 295, 49 S. E. 555. Witnesses engaged in business some years and has some knowledge of property destroyed qualified to give opinion on value of goods burned. Glaser v. Home Ins. Co., 93 N. Y. S. 524. Woman who did her own business, managed farm and bought and sold horses, qualified to give opinion on value of horse she claimed to own. Vogts v. Ultman \[Wis.\] 104 N. W. 88. Opinion of treasurement of company competent on value of stock when there had been no sales. Aldrich v. Bay State Const. Co. \[R.\] 186 Mass. 489, 72 N. E. 53. Witnesses with long experience in deals, involving value of brokers' services in sale of railroad plants and corporations holding franchises were qualified to testify to value of such services in sale of electric light plant. Hart v. Maloney, 101 App. Div. 37, 91 N. Y. S. 922. Salesman in dry goods store which handled millinery, who knew cost and value of millinery, and had assisted in Invoicing, qualified to testify to value of millinery stock. Lundwick v. National Union Fire Ins. Co. \[Iowa\] 103 N. W. 970. Husband and wife 5 Cur. Law. EVIDENCE SS 9D.

(SS 9). _D. Basis of expert-testimony and examination of experts._\[35\]--The opinion of an expert may be based directly on his personal knowledge of the facts or subject under investigation; \[36\] but it is usually elicited by means of a hypothetical question.\[37\] Such a question should hypothesize all the essential facts relating to the matter on which the opinion is sought,\[38\] which the evidence tends to show,\[39\] but

testify as to value of lot condemned. Union

the witness is an expert upon the matter as R. Co. v. Hunton \[Tenn.\] SS 8. W. 182. On

to which he is called to testify, he need not the issue of value of land, the opinions of

testify to all the facts on which his convergons residing near it and who have

clusion is based. Error to require physi

known it for some time, are competent evidence, though such persons are not real es-

post mortem to detail all the facts before

tate dealers and are not specially informed

giving opinion on cause of death. \[Morovw as to prices. Guyandotte Valley R. Co. v.

v. National Masonic Acc. Ass'n, 125 Iowa,

Buskirkr \[W. Va.\] 50 S. E. 521.

**34.** One who had been frowworker eight-

can years but had been building vaults only

withess thinks he has made and to ask an

forer or six weeks was not qualified as to the

opinion based on such case. Elgin, A. & S.

falling of steel plates used in vault build-

Ing. Dolan v. Herring-Hall-Marvin Safe

Error to permit physician to base opinion

Co., 94 N. Y. S. 241. Mine employe who

and no knowledge of mine in question

and gave it weight. Id. A hypothetical

could not testify to the duties of employees

from his knowledge of the customs and

rules in other mines. Smith v. Hecia Min.

113 Ill. App. 188. Facts must be stated hy

Co. \[Wash.\] 80 P. 779. Estimate of mar

betterly, leaving jury to determine their

ket value of stock at place of destination

tron indmissible because based on knowl-

111 App. 484. The purpose of a hypothetical

edge of market at another place. Missouri, etc., R. Co. of Texas v. Allen \[Tex.

civ. App.\] 87 S. W. 168. Experienced

draulic and mechanical engineers, familiar

with production of power, but not familiar

with values in vicinity, could testify to cost

true. Id.

of producing power in a given place, but not

to its value in the vicinity. Lakeside Mfg.

Co. v. City of Worcester, 186 Mass. 552, 72

N. E. 81.

Members of different schools of medicine:

Where it appears that a disease is ascribed

to the same causes, and diagnosed the same,

by different schools of medicine, members of

one school are qualified, in an action for

malgractice, to give opinions on the diag-

noiss made by a member of another (Grain-

ger v. Still, 187 Mo. 197, 85 S. W. 1114); but

members of one school cannot express opinions as to the treatment of a disease by a

which opinion could be based. United Elec-

member of another, unless it appears that

the treatment employed by the two schools

is the same. Aliopathic physicians held

quailted to give opinions on diagnosis of

disease by osteopath, but not on treatment

of disease by him (Id.).

35. See 3 C. L. 1376. For examination of

witnesses in general,'see following article.

36. Physician's testimony, based on

examination of injured child, competent. Boehn

v. Detroit \[Mich.\] 104 N. W. 626. Question

to physician whether pains claimed to exist

were caused by or likely to result from

Juries received, held to call for opinion based

on his knowledge gained from treating the

patient. Franklin v. St. Louis & M. R. R.

Co. \[Mc.\] 87 S. W. 930. Questions pub to

a medical expert need not be hypothetical if

the witness is personally acquainted with the

facts. City of Chicago v. Lamb, 105 Ill.

App. 204. General manager of corporation

may testify as to solvency of concern at a

given time without a prior disclosure of the

facts on which he bases his opinion. Campbell V. Park \[Iowa\] 101 N. W, 861. Where

by the author's 11th item.

Wireless is a member of the author's 11th item.

should not assume facts not in evidence," unless it is understood that such facts shall be made toeappear," \[41\] or unless they are uncontroverted." \[42\] Questions should be clear and definite," \[43\] but are not objectionable because somewhat leading in character." \[44\] They should not call for speculative opinions." \[45\] One who has adopted and used a hypothetical question asked by his adversary cannot thereafter complain of the form of the question." \[46\] Testimony of a proper kind to show reasons

if plaintiff's condition was the same as when \[proper. Snyder v. Zeller, 113 Ill. App. 34. he last examined him, was proper. Kaiser V. St. Louis Transit Co., 108 Mo. App. 708, 84

"old" scar, hypothetical question assuming that the scar resulted from recent injury proved with reference to construction of electric wires and asking an opinion as to whether such .construction was good, was

\[very\] New York City R. Co., 92 N. Y. S. 248. It

- 5 Cur. Law.Evidence $ 10.

for the opinion of an expert, already in evidence, is competent to give weight to his opinion and make it intelligible.\[47\] A wide range of inquiry is permitted in the cross-examination of experts to test the accuracy \[48\] and extent \[49\] of their knowledge, and to show the elements of which their judgments are made up,\[50\] but such examination must be confined to issues in the case.\[51\] The court may, in its discretion, limit the number of experts to be examined by each side.\[52\]

SS 10. _Real or demonstrative evidence.\[53\]_--Real evidence is admissible if relevant.\[54\] Exhibition of wounds or injuries is usually permitted,\[55\] but exhibitions of the effect of injuries is held improper.\[56\] Photographs,\[57\] radiographs,\[58\] maps or

- 47 Expert having testified to damage to property by construction of elevated rail-road, may testify to diminished salability of $ 35. See 'S C. L. 1380.
- 58 Presence of rotten wood, identified as El. R. Co. \[Mass.\] 74 N. E. 668.
- 48 Insanity expert properly cross-ex-examination of texts in ycenti. Guf., etc., H. Co. v. Boyce \[Tex. Civ. knowledge. Braham v. State \[Ala.\] $ 8 So. $ 395. Electric insulator or $ 19. Where a physician testifying as an expert admits that a certain medical work might in evidence. Warren v. City Elec. R. is standard, he may be asked if it does not contain
- certain statement, inconsistent with his team. Beale v. Paine \[Or.\] 80 P. 803. Where a medical expert has testified to his original diagnosis of an injury, he may properly be cross-examined with a view of showing his original diagnosis in-compatible with subsequent developments. Detent evidence. Muncle Pulp Co. v. Martin Chicago, etc., R. Co. v. Harton \[Tex. Civ. App.\] 13 Tx. Cr. Rep. 589, 88 S. W. 857.
- 49 The extent of the cross-examination of a witness testifying as one specially familiar with the subject-matter depends on the extent of knowledge or familiarity which the witness profeses to possess. Witnesses
- 50 Which of injuries held proper. Coney
- 51 Who testified in effect that they could form a judgment as to the genuiness of a certain person's signature on sight of it, were properly cross-examined by placing the pa-per containing the signature in an envelope, allowing only the signature to be visible $ 3. W. R. Co. v. Smith \[Tex. Civ. App.\] $ 6 A. 202.
- 52 Question to physician, who had testified to testamentary capacity, whether he would have been "willing" to make a contract with testing the amount involved in the will, at the time of its execution, held improper. Struth v. Decker \[Md.\] 53 A. 272. Expert on value in proceedings to condemn right of way over all bands was properly allowed to testify on cross-examination in regard to matters which would influence him if a contemplative buyer, as that he would consider the number of wells which could be economically placed on the land, and ordinary losses therform, and the general relation of outlay to income. Southern Pac. R. Co. v. San Francisco Sav. Union, 146 Cal. 290, 79 P. 961. But his statement that he would consider what "he could pay for it and have sufficient margin for speculation for at least five years" was improper. Id.
- 53 Physical testifying to extent of injuries, cannot be cross-examined as to professional opinions in other personal injury actions. Chicago & E. L. R. Co. v. Schmitz, 2111 446, 71 N. E. 1050.
- 54 Limitation of experts on value of property to three held proper. Swope v. Se plats \[59\] and models, \[40\] are competent evidence, when shown to be correct, \[41\] and to represent actual conditions \[42\] at the particular time in issue. \[63\] Permission to

Co. v. Cluck \[Tex. Civ. App.\] $4 S. W. $52. - Photograph of real estate showing its condition before change of street grade is competent. Village of Grant Park v. Trath, 115 - III. App. 291. - 58. X-ray photographs are competent after proper preliminary proof of correctness and accuracy. Chicago & J. Elec. R. Co., v. Spence, 213 Ill. 220, 72 N. E. $76. X-ray photograph admissible when not shown to be actually misleading, even though it was admitted that such photographs are not infallible. Miller v. Minturn \[Ark.\] $3 S. W. $91. X-ray photograph competent to show position of bullet in body. State v. Mathe son \[Iowa\] 103 N. W. 137. \[See discussion and authorities in this case.-Bd.\]

**NOTE. X-ray photographs** "Photographs are generally recognized as a permissible mode of testimony when appropriate. A photograph must, however, be verified; not necessarily by the one who takes it, but by some one who can testify that it represents his idea. of the subject. Greenleaf. Evi: dence, $439b; People's Gaslight & Coke Co. v. Amphlett, $3 Ill. App. 194; Bedell v. Burky, 76 Mich. 435, 15 Am. St. Rep. 370; Miller v. 104 N. W. $36. Evidence tending to show Louisiana R. Co., 128 Ind. 97, 52 Am. St. Rep. 416. Whether it is sufficiently verified is a preliminary question of fact for the trial judge, and not open to exception. Blair v. Pelham, 118 Mass. 420; McGar v. Borough of Bristol, 71 Conn. 652. But in this, as in other matters which may be left generally to the discretion of the trial judge, his direction is not unlimited, and he is not at liberty to disregard the rules of law, by which the rights of the parties are governed. De Forge v. N. Y., etc., R. Co., 178 Mass. 59, 86 Am. St. Rep. 464. The discovery of the X-ray is comparatively recent. However, its utility and the reliability of its results are already so well known and established as scientific facts that courts ought to take judicial notice of them. Witt: tendency v. Onsgaard, 78 Minn. 342, 47 L. R. A. 141. And, although a picture produced by an X-ray cannot be verified as a true representation of the subject in the same way that a picture made by a camera can be, yet it should be admitted if properly taken. Bruce v. Beall, 99 Tenn, 303; Miller v. Dumon, 24 Vash. 648; Mauch v. Hartford, 112 Wis. 40; Zimmson v. Weld, 93 Mo. 345. Clty of Geneva v. Burnett, 65 Neb. 464, and note; Carlson v. Benton, 66 Neb. 485; De Forge v. N. Y., etc., R. Co., supra. It has been said that "unless precluded by some rule or principle of law, all that its logically probative is admissible." Thayer, Preliminary Treatise on Evidence, p. 265. It is the duty of courts to use every means for discovering the truth reasonably calculated to aid In that result. In the performance of that duty, every new discovery when it shall have passed the experimental stage, must necessarily be treated as a new aid in the administration of justice in the field covered by It. In that view, courts have shown no hesitation, in proper cases, in availting themselves of the art of photography by the X-ray process. See 1 Mich.

- 5. Cur. Law. EVIDENCE SS 10.

perform experiments in court is discretionary. \[54\] Evidence of experiments out of court is admissible when the experiments are shown to have been fairly and honestly made, \[65\] under conditions similar to those surrounding the occurrence in question. \[66\] The admission or exclusion of photographs or evidence of experiments is largely discretionary, the test applied by the court being relevancy, \[67\] and the tendency of such evidence to aid or mislead the jury. \[68\] To render competent evidence of an expert analysis or examination, it must be shown, first, that the thing analyzed or examined is identical with that which is the subject of inquiry, \[69\] and second, that the condition of the thing examined has remained unchanged between the time when it became a question and the time of the examination. \[70\] Comparison of real evidence is usually for the jury, but comparisons may be made by witnesses when inspection by the jury has become impossible. \[71\]

cident. Chicago, etc., R. Co. v. Crose, 113 106. Evidence of experiments, performed IIL App. 547. To be competent photographs should simply show conditions existing at the time in question. Babb v. Oxford Paper Co., 99 Me. 298, 59 A. 290. Photographs showing sidewalk just as it was when plain-

themar Furniture Mfg. Co. \[Tex. Civ. App.\]

appear, were admissible. Considine v. Dubuque, 126 Iowa, 283, 102 N. W. 102. Photographs of place may be met by evidence

to have been made under substantially same of changes meanwhile. Achey v. Marion,

126 Iowa, 47, 101 N. W. 435. Photographs

lison, Eiglin, A. & S. Traction Co. v. Wil-

of scene of railroad accident incompetent

when not shown to represent conditions just

nesses who had made observations of dis-

as they were at the time of the accident.

Chicago, etc., R. Co. v. Crose, 214 Ill. 603, 73 N. E. 855. Photograph of hole in stretch

taken in October admissible in action for

tinyy sustained preceding April, evidence

Poughkeepstic City & W. F. Elec. R. Co., 93

showing photograph to be a correct representation of it as it was in April, except that

the hole was then deeper. Miller v. New York, 93 N. X. S. 227. Photograph of scene

of wreck taken next morning before conditions had changed materially, admissible to

of will, evidence of an experiment by wit-

show force of collision. Mayward v. Oregon

R. & Nav. Co. \[Or.\] 78 P. 983.

**64.** See 3 C. L. 1381, n. 30; Trial, 4 C. L. 1708.

**65.** See 3 C. L. 1381, n. 33.

**66.** Chicago, etc., R. Co. v. Crose, 113 Ill. App. 547. Evidence of experiments inadmissible, conditions not being shown same as

at time of accident. Merchants' L. & T. Co. v. Boucher, 115 Ill. App. 101. Experiments with a horse other than the one driven at

time of accident to determine time required

to turn and cross tracks could not be

shown. Louisville E. Co. v. Hoskins' Admir

\[Ky.\] 88 S. W. 1087. Experiment consisting

In sending car round curve where accident

occurred at same speed, conditions not being

shown same, was inadmissible. Zimmer v. Fox River Valley Elec. R. Co., 123\*Wils. 643, 101 N. W. 1099. Evidence of an experiment

by a witness to show that an undobstructed

view of a track could be had from a certain point was properly excluded when not

made under same conditions as existed at time of accident. Chicago & E. I. R. Co. v. Crose, 214 Ill. 602, 73 N. E. 855. Where

death was caused by being thrown from engine

gine on defective track, evidence of a run

by the engine over the same track next

morning was inadmissible, there having

been changes both in the engine and track.

Chicago City R. Co. v. Brecher, 112 Ill. App. 1367

**68.** Evidence of experimental analysis of all-

ledged bloody clothes inadmissible where it

appeared the clothes had been placed in a

sack with other bloody articles and carried

for a long distance before they were examined. State v. McAnarney \[Kan.\] 79 P.

187. Evidence of a comparison by wit-

nesses between spots on pieces of clothing

and other pieces used by experts in analysis,

## 11 Quantity required and productive effect

The weight of evidence 73 and the credibility of witnesses 74 are exclusively for the jury or trial court 75 who may consider the interest or bias of the witness 76 or the inherent improbability of testimony 77 A preponderance of evidence, by which is meant the greater weight of evidence 78 and not necessarily the greater number of witnesses 79 is all that is required in civil cases 80 Evidence need only satisfy the minds of jurors, not their held competent. State v. Miller \[N. J. Err. & App.\] 60 A. 202.

72. See 3 C. L. 1381. Sufficiency of evidence as to particular issues is treated in the topic dealing with the particular subject, which side scales incline. Gottlieb v. Midmatter. Facts which evidence, or which, in accurate speech, constitute or form a predicate for a given right, cause of action, defense or duty, are assigned to such titles as treat of the particular matter. Consult also topics such as Appeal and Review, 5 C. L. 121, Directing Verdict and Demurrer to Evidence, 5 C. L. 1004: Discontinuinance, Dismissal and Nonsult, 5 C. L. 1011: New Trial and Arrest of Judgment, 4 C. L. 810.

01. Poppers v. Schoenfeld, 110 Ill. App. 408: Illinois Cent. R. Co. v. Golly \[Key.\] 86 S. W. 536; Avery v. Stewart, 136 N. C. 426; 48 S. E. 775. Comparative weight of evidence for jury. Western Maryland R. Co. v. Shiv-

ers \[Md.\] 61 A. 618. Instruction erroneous as on weight of evidence. Simons v. Mason Cty & Ft. D. R. Co. \[Iowa\] 103 N. Y. 129. See Instructions, 4 C. L. 133. Weight and value of a deposition of a lawyer as to the law of another state is for the jury. Hancock v. Western Union Tel. Co., 137 N. C. 497,

49 S. E. 952. Weight of evidence is for jury and trial court, and a verdict approved by the judge will very rarely be set aside on appeal. Buck v. Newberry, 55 W. Va. 681,

47 S. E. 889. Impecachment of a witness by proof of previous contradictory testimony does not wholly destroy his testimony; the weight to be given it is for the jury. East

St. Louis Connecting R. Co. v. Aligen, 112 III. App. 471. Corroborated expert opinion experiments shortage in weight of bridge materials held properly followed by court,

though another witness attempted to give actual weights. Modern Steel Structural Co. v. Van Buren County, 126 Iowa, 606, 102 N. v. 536.

74. Western Maryland R. Co. v. Shivvers \[Md.\] 61 A. 618; Presned Steel Car Co. v. Herath, 110 Ill. App. 596. Various instrucues on credibility of witnesses held erroneous.

ous. Illinois Cent. R. Co. v. Burke, 112 III. App. 415; Himrod Coal Co. v. Clingma, 114 Ill. App. 568. Error to ask one witness if another was not mistaken in his testimony. Braham v. State \[A$\\underline{\\Lambda}$.\] 38 So. 919. Opinion of witness that certain other witnesses would swear the truth inadmissible. Har-

din v. St. Louis S. W. R. Co. \[Tex. Civ. App.\] 88 S. W. 440. Error to allow witness to characterize testimony of another as untrue. People v. Buckley, 91 App. Div. 586, 87 N. Y. 5, 191. Expert cannot pass on relative merits of testimony of other experts. Lancaster's Extr \[Key.\] 87 S. W. 1137. Statement of plaintiff in deposition, contrary to testimony, not conclusive against him; it was for jury to say which statement was correct. Bond v. Chicago, etc., R. Co., 110 Mo. App. 131, 84 S. W. 124.

75. Where, in suit on note, defendant tes-

01. Credibility for jury, who may consider bias or impartiality as shown by the evidence. Macon R. & L. Co. v. Barnes, 121

01. 43, 49 S. E. 282. Testimony of hired de-

01. Tecstinony to that which is physically

limpossible should be rejected even if uncon-

78. Proppers v. Schoenfeld, 110 Ill. App. 408: Illinois Cent. R. Co. v. Golly \[Key.\] 86 S. W. 536; Avery v. Stewart, 136 N. C. 426; 48 S. E. 775. Comparative weight of evidence

01. Webster, 112 Ill. App. 346. Verdict set

01. Nickey v. Steuder \[Ind.\] 73 N. E. 117. The judge will very rarely be set aside on appeal. Buck v. Newberry, 55 W. Va. 681,

47 S. E. 889. Impecachment of a witness by proof of previous contradictory testimony

does not wholly destroy his testimony; the

weight to be given it is for the jury. East

St. Louis Connecting R. Co. v. Aligen, 112 III. App. 471. Corrobor 5 Cur. Law. EVIDENCE SS 11. 1369

consciences. \[81\] Prima facie evidence means evidence sufficient to establish a fact unless rebutted, \[82\] and a prima facie case cannot prevail if rebutted or if the contrary is shown by competent proof. \[83\] To support an action depending wholly on circumstantial evidence, the circumstances must form a connected chain pointing to a single conclusion, or a number of independent circumstances pointing in the same direction or verging to a common center. \[84\] In civil as in criminal cases, a theoretical possibility, wholly insupported by proof or probability, will not outweigh direct testimony which, to the ordinary mind, carries conviction beyond a reasonable doubt. \[85\] The inference of ultimate from probative facts is for the trier of the facts, though an expect opinion may have been given thereon. \[86\]

Evidence of a negative character is not to be given such probative value as positive or affirmative evidence; \[87\] but this rule does not warrant entire disregard of negative testimony by the jury. \[88\] Casual statements or admissions \[88\] and declarations of a deceased person, \[90\] are entitled to little weight; but written admissions are entitled to very considerable weight. \[91\] Soleman admissions of a party made in the course of a trial have the same effect as if contained in his pleadings. \[92\] Allegations in a pleading of one party introduced in evidence by his adversary are not conclusive. \[98\] A deposition has the same weight as though the witness was present testify-

tainty, Brown Store Co. v. Chattahooche

tive testimony that it rang. Chicago &, E. I. Lumber Co., 121 GA. 809, 49 S. E. 839. If evil

R. Co. v. Eganolf, 112 III. App. 223. Where

dence proves the essential facts. this is suf-

one set of witnesses testify to an occurrence

feient: the jury has the right to draw reasonable inferences from facts found. Indians

opportunity to know the fact, having had

apolis, G. & F. R. Co. v. Hubbard \[Ind. App.\]

their attention directed thereto, and that the

74 N. E. 535. Premoderance of evidence has

facet did not occur, the testimony of the lat-

reference to the quality of outweighing in

ver set is not negative testimony. Grabill V.

convincing power. Instruction that it "was

revidence which satisfies and convines your

ing equal opportunity with others testifying

minds and judgments" condemned. Grojian

to the contrary to hear and know whether

v. Rice \[Wis.\] 102 N. W. 551. Jury should

reconnelle conflicts in evidence if possible, and

was not, their testimony is deemed affirma-

if not, should render verdict for side on

tive. Chicago Consolidated Traction Co. v.,

which evidence reasonably and clearly pre-

dervens, 113 III. App. 275. Where witnesses

pondreates. Walter v. Willington City R.

sover that they did not see one person strike

Co. \[Del. Super.\] 61 A. 874.

another, but do not swear that no blow was

81. Birmingham R., L. & P. Co. v. Hinton

struck, their testimony is negative. Grabill

\[Ala.\] 37 S. 635.

v. Ren, 110 III. App. 587.

82, 83. Wathen v. Allison Ditch Dist. No.

ing in open court." Standard mortuary tables are not binding on a jury; they may make their own estimate of life expectancy."

Uneontradicted testimony of disinterested witnesses cannot be disregarded;" but the entire testimony of a witness may be disregarded.if he has willfully sworn falsely to a material fact." The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague or equivocal." But the mere fact of interest is not sufficient to discredit the witness." Expert testimony is not conclusive."

Evidence offered and admitted for a limited purpose, and facts found upon such evidence, cannot be used for another and totally different purpose." Incom-petent evidence, admitted without objection, is in the case for all purposes and must be given the same effect as if legally admissible;" but if admitted over a proper objection, it cannot on appeal be considered as evidence of the facts it tends to prove."

dence by plaintiff. Masterson v. F. W. Helt.

City, 110 Mo. App. 653, 85 S. W. 630. Jury

mann & Co. \[Tex. Civ. App.\] 87 S. W. 227.

sole judges of credibility of experts and may 94. Oloese v. Moblle Fruit & Trading Co.,

reject their testimony. State v. Lyons, 113

211 Til. 539, 17 N. E. 2084.

La. 953, 17 So. 890. Jury not bound to find

95. Based on age, health, habits, physical

in accordance with evidence of customary condition, and appearance of person. City of rate of payment as shown by witnesses. South Omaha v. Stuffle Neel 101 N. W. 937.

Walker Mfg. Co. v. Knox (C. C. A.) 151 F.

Mortality tables prepared for use in insurance matters are of little real aid in deter-

damage to land in condemnation proceeding-

ning life expectancy in cases of wrongfold

death, especially in the case of colored persons: commissioner erred in following tables

mony alone on a question of damages, their absolutely. The Saginaw, 139 F. 906.

96. Knight &. Felt. 91 N. Y. S. 27: Spring

v. Millington. 4 MISE, 624, 90 N. Y. S. 152.

97. See Witnesses, 4 C. L. 149. But false

testlimony must relate to a material fact.

lielery and award no damages or only nom-

Dickerman v. Tarter, 115 Ill. App. 278. And

must have been willfully false. Klimrod

Cool Cv. Clingen, 114 Ill. App. 568.

98. Southern R. Co. v. Hobbs, 121 Ga. 428,

49 S. E. 294: Steele v. Central of Georgia R.

Co. \[Ga.\] 51 S. E. 438. Where a plaintiff tes-

tifles in his own behalf and there are matre-

rial conflicts and contradictions in his test-

mony, he is not entitled to recover unless

that portion of his testimony which is least

favorable to his contention authorities a recovery. Horn v. Peaceok \[Ga.\] 49 S. E. 172.

48. 42 S. E. 49: Harishn v. Miles, 111 Ill. App.

Testimony of motorman corroborated by

three disinterested witnesses held to

weigh that of plaintiff which varied on dit-

rect and cross-examination and was only

slightly corroborated by one witness. Or-

chard Stables v. Interurban St. R. Co., 91 N. Y. S. 230.

90. A court is not justified in refusing to

believe a witness who gives the only test-

mony on a certain point merely because he

was a party and interested. Williams V. Van

Nonden Trust Co., 93 N. Y. S. 821. The un-

corroborated evidence of plaintiff alone may

prevent a judgment in his favor from being disturbed as against the weight of the evidence. Doherty v. Metropolitan St. R. Co.,

91 N. Y. S. 19.

100. Morrow v. National Masonic Acc.

Asr#, 125 Iowa, 633, 101 N. W. 468. Jury

must consider expert testimony with other

evidence, but is not bound by it. Restetsky

V. Delmar Ave, & C. R. Co. \[Mo. App.\] 85 S. W. 630.

, 5 Cur. Law. Examination of witnesses $ 1. 1371

EXAMINATION OF WITNESSES.

General Rules of Examination (1871). Leading Questions (1872). Refreshing Memory (1873). Responsiveness (1875). $ 2. Cross-examination (1875). Limitation to Scope of Direct Examination (1876). Limitation to Issues (1877). Examination $ 5. Privless of Witnesses (1882).

\_Scope.--\_This article treats generally of the rules governing the examination of witnesses, except those peculiarly applicable to the examination of experts, which are treated in the preceding article.1 Matters pertaining to the impeachment of witnesses are elsewhere treated,2 as are general questions of trial procedure, such as the exclusion of witnesses from the court room,3 and performing experiments in the presence of the jury.4 The proper manner of raising objections is also given separate treatment.5

SS 1. \_General rules of examination.6--\_The examination of witnesses is a matter resting largely in the discretion of the trial court. It is proper for the judge to question a witness,7 provided such examination is fair and impartial, no opinion as to the facts or credibility of witnesses being disclosed, and no prejudice being aroused.8 An improper question asked by the court is more effective to impress and mislead a jury than one asked by counsel.9 Questions 10 and answers 11 should be clear and definite. Questions should not assume facts not in evidence 12 and should be so framed as to call for facts, not opinions.13 Questions are properly refused that hypothesize the existence of supposed facts into which the policy of the law will not permit an inquiry.14 The youth or inexperience of a witness justifies considerable latitude in the form of questions.15 A witness may properly be allowed to give his testimony in narrative form without questions by counsel, when counsel

so requests, if he is not permitted to state anything which is inadmissible.1e A party should not be allowed to experiment with witnesses by offering incompetent evidence, and then be permitted to withdraw the testimony at the close of the trial, on finding it prejudicial or unavailing.17 It is unprofessional and improper for counsel to seek to get collateral matters before the jury by suggestive questions to witnesses.18 It is also improper for counsel, when merely surprised by a witness's testimony, to remark that he is an unwilling witness, and proceed to so conduct the examination as to show that he is unwilling:19 One party cannot limit his adversary's method of making proof by offering to admit facts, during the examination of a witness.20 The calling of interpreters,21 permitting witnesses to illustrate testimony,22 and the exclusion of questions calling for testimony that has already been given,23 are matters within the court's discretion. When the court has limited the number of expert witnesses, a party who has examined all that he is entitled to cannot ask an expert opinion from one called as an ordinary witness.24

\_Leading questions.25--In general, leading questions, that is, those which suggest a desired answer,26 are improper on the direct examination,27 but such questions are usually permitted on cross-examination 28 or where a witness proves to be hostile.29 Whether a question is leading depends on the circumstances attending the 5 Cur. Law. Examination of WITNESSES SS 1. 1373

examination of the witness, and the fact that it is leading does not necessarily make it objectionable,\[30\] and the allowance of such questions is very largely discretionary,\[31\] especially in criminal cases\[32\] or where the witness is examined by written interrogatories.\[33\] Lack of knowledge of the English language is no ground for permitting leading questions to be asked, if the witness understands sufficiently to make intelligent answers.\[34\] Testimony adduced by leading questions will be considered if not objected to,\[35\] but an objection is not waived by permitting the witness to reiterate the suggested matter.\[36\] Leading questions are reversible error if the evidence, without the replies to such questions, is insufficient to support the verdict.\[37\]

\_Refreshing memory.\[38\]--\_A witness may refresh his memory from a memorandum made by him,\[39\] or under his direction,\[40\] at or near the time of the transaction in issue,\[41\] and while the facts of which it speaks were fresh in his mind; or from a memorandum or record made by another if read by or to him when the matter was fresh in his memory, so that he could depose that the writing correctly represented his recollection at the time.\[42\] By statute in Oregon, a memorandum must have been made by the witness himself, or under his direction.\[43\] Whether the memorandum was made by the witness or another, it must appear that he had personal knowledge of the facts;\[44\] it must also appear that the witness cannot testify with:

30. Shaffer v. U. S., 24 App. D. C. 417.

01. Colley v. Williams \[Ga.\] 5 S. E. 917;

Dinmaze v. Bunn \[Ga.\] 5 S. R. 200; Holmes

v. Clisby, 121 Ga. 241, 48 S. E. 934; Condon

v. Schoenfield, 114 Ill. App. 48. A case will

not be reversed because lending questions

where allowed, no abuse of discretion appear-

tng. Hollingsworth v. Ft. Dodge, 125 Iowa,

627, 101 N. W. 455.

32. Woodruff v. State \[Neb.\] 101 N. W. 1114: State v. Newman, 93 Minn. 393,101 N. W. 499.

01. Holmes v. Clisby, 121 Ga. 241, 48 S. E. 934.

01. Craddelk v. State \[Tex. Cr. App.\] 13

Tex. Ct. Rep. 637, 88 S. W. 347.

35. Smith v. Brooks, 24 App. D. C. 75.

01. Tt. Worth & R. G. R. Co. vones

\[Tex. Civ. App.\] 85 S. W. 37.

37. Questions to plaintiff in action for

damages for mental angusth caused by conduct of conductor held leading. Ft. Worth

& R. G. R. Co. vones \[Tex. Civ. App.\] 85 S. W. 37.

38. See 3 C. L. 138.

01. Memorandum in witness' own handwriting properly used to refresh his memory. Heenan v. Forest City Paint & Varnish

Co. \[Mich.\] 101 N. W. 806. Error to refuse

to allow street car conductor to refresh his

memory by use of written report at time

of accident containing names and addresses

of passengers who saw accident. Clark v. Union Traction Co. \[Pa.\] 60 A. 302.

40. Deputy shelf may refresh his memory by use of copy of his own return on

order of delivery of goods, the copy being written under his direction and supervision.

Flohr v. Territory, 14 Okl. 477, 78 P. 665. In

fire insurance case, treasurer of company

under whose supervision an inventory of

stock had been made a year before could

use a verified copy of the inventory to re-

fresh his memory in testifying regarding the

stock and net profits. Wells Vhip Co. v.

Tanners' Mut. Fire Ins. Co., 209 Pa. 488, 58

A. 894.

41. Witness having testified that he made

memoranda of log marks as he found them

on logs, he was properly allowed to testify

von obsnt entries. St. Paul Boom Co. v.

Kemp \[VWs.\] 103 N. W. 259. Memoranda

not he reversed because lending questions

made by foreman of lumber yard the day

were allowed, no abuse of discretion appear-

tng. Hollingsworth v. Ft. Dodge, 125 Iowa,

627, 101 N. W. 455.

32. Woodruff v. State \[Neb.\] 101 N. W. 1114: State v. Newman, 93 Minn. 393,101 N. W. 499.

01. Holmes v. Clisby, 121 Ga. 241, 48 S. E. 934.

01. Craddelk v. State \[Tex. Cr. App.\] 13

Tex. Ct. Rep. 637, 88 S. W. 347.

35. Smith v. Brooks, 24 App. D. C. 75.

01. Tt. Worth out the use of such record or memorandum.48 Some courts hold that a witness cannot testify with the aid of a memorandum, unless, after refreshing his memory, therefrom, he can then testify from present remembrance,49 or is willing to swear positively to the facts from the paper.47 Others hold that where the witness sewars positively that the memoranda or entries were made at the time according to the true facts, he may testify therefrom though such facts are not in his present remembrance; 48 and that in such ease the memoranda are also admissible as a part of his testimony.49 The memorandum used must be the original unless the original is lost or its absence explained.50 A memorandum made for the purposes of the trial is not a sufficient basis for testimony.51 It is not essential that a paper used by a witness should itself be competent evidence,52 or that it should be produced in court.53 It has been held proper to allow a witness to refresh his memory from books of account,54 from testimony given on a former trial, correctly preserved,55 from a memorandum made by an attorney and read to the

no personal knowledge of the facts. Texas & P. R. Co. v. Leggett \[Tex. Civ. App.\] 86 & P. R. Co. v. Leggett \[Tex. Civ. App.\] 86 & P. R. 106%. A memorandum cannot be wholly swit. Co. v. Oregon R. & Nav. Co. \[Or.\] 78 submitted for the recollection of the witness must have some present knowledge or recollection independent of the memorandum, and cannot testify wholly swit. Co. v. State \[Ind.\] 75 N. E. 272. 45. If witness has present knowledge or recollection of facts, the memorandum is only secondary evidence. Manchester Assur. Co. v. Oregon R. & Nav. Co. \[Or.\] 79 F. 60. Use of report of accident improper. Morris v. New York City R. Co., 91 N. Y. 8. 16. 46. See Manning v. School Dist. No.-6 of Ft. Atkinson \[Vis.\] 102 N. W. 356. A printed copy of testimony on a previous trial could not be used, when witness could not testify from his own recollection after refreshing his memory. Ragsdale v. Southern R. Co. f's. C.\] 51 S. E. 540. No error in permitting witness to refresh recollection of figures by use of memorandum, his testimony being based on refreshed recollection and not on memorandum. Aschelem v. Levinsohn, 91 N. Y. S. 157. Witness properly allowed to refresh memory from testimony given on former trial where after doing so he could testify from recollection. State v. Aspara, 113 La. 940, 37 So. 883. A witness may use memorandum not made by himself, if after referring thereto, he can testify to the facts from memory. Memoranda of weights of cattle sold held proper to refresh memory of witness. Texas & P. R. Co. v. Birdwell \[Tex. Civ. App.\] 86 & P. R. 106%.
47\. Under Civ. Code, 1895, & 5284, witness may use a mortgage not prepared by himself. Shronder v. State, 121 Ga. 615, 49 S. E. 702.
48\. This is Wisconsin rule. Manning v. School Dist. No. 6 of Ft. Atkinson \[Vis.\] 102 N. W. 356. 49. Manning v. School Dist. No. 6 of Ft. Atkinson \[Vis.\] 102 N. W. 356. No error in introducing in evidence memoranda made from books, used by witness in testifying, where books were also in evidence. Morrison Mfg. Co. v. Bryson \[Iowa\] 103 N. W. 1016. Ledger used by witness in testifying was admissible as part of his cross-examination. Logan v. Freerks \[N. D.\] 103 N. W. 428. 50. Memoranda made from original en 5 Cur. Law. Examination of WITNESSES SS 2.1375

adverse party,56 from a newspaper report, recognized as an authority,57 and from a copy of an indictment prepared and furnished under direction of the court."

_Responsiveness.59--If an answer is not responsive to the question,60 it should, on motion, be stricken.61_

SS 2._Cross-examination.62--The range of the cross-examination is largely discretionary with the trial court.68 Repetition is properly prevented.64 Examination in the nature of argument with the witness is improper.65 Permission to re-cross-examine a witness is discretionary.64 A party who has not availed himself of an opportunity to cross-examine a witness cannot complain on appeal.67_

Greater latitude is allowed in the cross-examination of a party than in that of a mere witness.68 Where a party is called by his adversary for cross-examination under the statute, whether the examination may be continued by his own counsel

may refresh his memory from notes taken by counsel or other persons at a former

ing of his will, and that her affection for trial, or from his own testimony at such

dressed was merely mercary, held in-trial, or a copy thereof. State v. Dean \[S. C.\]

proper cross-examination. Stutsman v.

51 S. E. 524.

Sharpless, 125 Iowa, 335, 101 N. W. 105.

56. Memorandum from which attorney

Where both a notice of an appropriation of water rights, and the witness' testimony

that it was made without defendant's knowl-

were before the court, it was prbber to re-

edge or consent, where attorney testified

fuse to allow a cross-examination to show

that he read it to defendant at the time, and

disrepancies between the two. Norman v.

that defendant assented to it. Crawford v.

Apbyce \[Tex. Civ. App.\] 79 S. W. 346.

64. The court may properly limit cross-

01. Witness properly allowed to refresh

memory on price of milk at given time with

been covered more than once. San Miguel

newspaper shown to be recognized by milk-

man as authority on price of milk. Bland-

P. 1025. The substance of questions having

ing v. Cohen, 101 App. Div. 442, 92 N. Y. S. 93.

so big. Flohr v. Territory, 14 Okl. 477, 78 P.

58.

01. See 3 C. L. 1387.

01. Where question as to gangways be

tween piles of baled cotton was whether

they were straight or "how were they," the

object being to ascertain whether they

were left in such condition that a fire could

be readily discovered, an answer that they

were nashly straight but sometimes the

totn might fall off and block them a little

was responsive. Texas & P. R. Co. v. Co-

tourie \[C. C. A.\] 135 F. 455.

61. Beadle v. Paine \[Or.\] 80 P. 903.

01. See 3 C. L. 1387.

01. Quigley v. Thompson, 211 Pa. 107, 60

01. S06: Smith v. State \[Ind.\] 74 N. E. 983;

Henderson v. Henderson \[Ind.\] 75 N. E. 269;

Carey v. State, 70 Ohio St. 121, 70 N. E. 955.

No error to refuse to allow further cross-

examination, no sufficient reason for such

examination appearing. Brown v. Harris

\[Mich.\] 102 N. W. 960. Discretion of court

not abused by allowing and refusing to allow certain questions on cross-examination.

Worrell v. Kinnear Mfg. Co., 103 Va. 719, 49

S. E. 988. Question as to value of land after

construction of road, after witness had been

cross-examination as to value in general, held

properly excluded. Heath v. Sheetz \[Ind.\]

74 N. E. 505. Where counsel had fully

cross-examination physicala set to an examination by him of plaintiff, suing for damages

for injuries, refusal to permit cross-examination as to his unand method of examination was proper. Pittsburgh, etc., R. Co. v.

Banfill, 206 Ill. 553, 69 N. E. 499. Questions

carrying intimation that witness had

pressed inquiries on deceased, when he was

in a feeble condition, concerning the mask-

in of his will, and that her affection for

ideal, or from his own testimony at such

dressed was merely mercary, held in-trial, or a copy thereof. State v. Dean \[S. C.\]

proper cross-examination. Stutsman v.

51 S. E. 524.

Sharpless, 125 Iowa, 335, 101 N. W. 105.

56. Memorandum from which attorney

Where both a notice of an appropriation of

water rights, and the witness' testimony

that it was made without defendant's knowl-

were before the court, it was prbber to re-

edge or consent, where attorney testified

fuse to allow a cross-examination to show

that he read it to defendant at the time, and

disrepancies between the two. Norman

### 1376 Examination of WITNESSSS 2.

5 Cur. Law. rests in the discretion of the court.\[69\] Where an adverse party is examined as to a transaction or conversation as to which he could not have testified in his own behalf, he is entitled to explain the entire conversation or transaction.\[70\]

When the defendant in a criminal case takes the stand, he may be cross-ex-amined the same as any other witness.\[71\] Much latitude is also allowed in the case of prosecuting witnesses.\[12\]

\_Limitation to scope of direct examination.\[72\]--\_The cross-examination should be confined to matters connected with or related to matters brought out on the direct examination.\[74\] But where the direct examination opens up a general subject, the cross-examination may cover any phase of the general subject;\[75\] and an incident of

as to acts which caused the discharge, was

comcast testified on direct examination only on proper to show bias. Houston, etc., R. Co. v. Wilson \[Tex. Civ. App.\] 84 S. W. 274.

cross-examination as to his opinion of the cause

69. Muller v. Carnes \[Min.\] 103 N. W. 877.

01. Personal transaction with a decedent.

v. Gould \[N. J. Law\] 59 A. 28. Witness can-

In re Cozine, 83 N. Y. S. 657.

74. See Witness (Privileges of), 4 C. L.

01. Under Kirby's Dig. 3 8088, a defend-

tanted who takes the stand may be cross-ex-ex-

amined the same as any other witness. Cozine

contend be asked if he suggested to foreman

others v. State \[Ark.\] 88 S. W. 585.

Defandant may be cross-examended as to an attempt to get prosececurity out of the country

There being no previous testimony as to so she would not testify against him. Id.

contribution to a fund to a batse a pool as a

Proper to subject defendant in criminal case

nisance, cross-examination thereon was

to rIgd and searching cross-examination.

State v. Sherouk \[Conn.\] 61 A. 897.

De-

R. Co. 120 Ga. 74, 48 S. E. 139. When wit-

fendant may be cross-examended as to conviction of assault and battery. Examination as to particulars of assault held harmless error. State v. Mount \[N. J. Law\] 61 A.

259. Extent of cross-examination of a defendant is discretionary. Corothers v. State \[Ark.\] 88 S. W. 585.

001. Cross-examination of prosecutrix for rape, who testified she was unconscious part

of the time, held improperly restricted. Posev. State \[Ala.\] 38 So. 1019.

73. See S 0. L. 1388.

01. State v. Gray \[Or.\] 79 P. 53; Bill v. Fuller, 146 Cal. 50, 79 P. 592; Cheney v. Field, 114 Ill. App. 597; Meyer v. Purcell, 214 Ill.

62, 73 N. E. 392: State v. Ubler, 126 Iowa.

281, 102 N. W. 101; Quisley v. Thompson, 211 Pa. 107, 60 A. 506; Hathaway v. Gosland \[Vl.\] 59 A. 835; Johnston V. Charles Abresch Co., 123 Wis. 130, 101 N. W. 395; Nagle v. Hake, 123 Wis. 256, 101 N. W. 409. Cross-examination on matters not covered in direct examination is largely discretionary.

State v. Lyons, 113 La. 959, 37 So. 890. Matters of defense, not touched on in direct examination, cannot be brought out on cross-examination. Story v. Nidiffer, 146 Cal. 549, 80 P. 692. Cross-examination of defendant's wife on matters not touch

ed in her direct examination, and incriminative of defendant, held improper. Webb v. State \[Tex. Cr. App.\] 83 S. W. 394. Witness who had testified that lots were substantially at grade could not testify on cross-examination whether accident would

have happened if lots had been brought to grade established by city. Monarch Mg. Co. v. Omaha, etc., R. Co. \[Iowa\] 103 N. W. 493. Where direct examination had not referred to

mail crane, question on cross-examination

whether there was anything unusual about

It was properly excluded. Western R. of Ala. v. Cleghorn \[Ala.\] 39 So. 133. Where physi-

can testified on direct examination only on removal of kidney by him, he could not be

v. Wilson \[Tex. Civ. App.\] 84 S. W. 274.

69. Muller v. Carnes \[Min.\] 103 N. W. 877.

01. Personal transaction with a decedent.

1n re Cozine, 83 N. Y. S. 657.

74. See Witness (Privileges of), 4 C. L.

01. Under Kirby's Dig. 3 8088, a defendant who takes the stand\* 5 Cur. Law. Examination of WITNESS $ 2. 1377

a transaction proved, and circumstances connected with it which qualify or destroy the effect of the testimony in chief, may be brought out on cross-examination.78 That facts brought out on cross-examination tend to establish a defense is not a valid objection to the cross-examination when the facts so brought out are merely explanatory of matters testified to on the direct examination.77 An explanation of previous statements is properly drawn out on the cross-examination.78 A portion of a conversation 79 or of an account book 89 having been introduced on the direct, it is proper to show other relevant portions on the cross-examination. A party who desires on cross-examination to go outside the scope of the direct examination must make the witness his own.81

_Limitation to issues.82_--Cross-examination, not directed to the credibility of testimony, should be confined to issues in the case.83

\_Examination going to credibility of witness.84--It is always proper on cross-examination to interrogate a witness, within reasonable bounds, as to any matter of fact calculated to affect his credibility or the weight of his testimony,85 and the

had an X-ray machine, it was proper cross-

claim conversations, cross-examination may examination to ask him if it was the only one

bring out all of such conversations. In re

and if it was customary for physicians in the

Hayden's Estate \[Cal. App.\] 81 P. 668. Part

locality to have them. Beadale v. Paine \[Or.\] of a conversation being elicited on direct, it

80 P. 903. Where defendant charged with burgers in a house of ill-fame himself testi-

tions thereof to be shown on cross-examination. Adams v. Long, 114 Ill. App. 277.

and his approaching marriage, cross-examination

When state shows a conversation, defend-

ination on these subjects was proper. People v. Davis \[Cal. App.\] 81 P. 716. In action

was said in reference to the matters brought

for support, where plaintiff testified to marriage with defendant, she could be asked on

cross-examination if defendant had ever con-

tributed to her support since the marriage,

McPhelemy v. McPhelemy \[Conn.\] 61 A. 477.

Witness having shown by statements in dif-

rect examination that he had dealt with one

as another's agency, he could be cross-ex-

amined on that subject. Brownlee v. Relner

\[Cal.\] 82 P. 324.

76. Where plaintiff, suing for injury

caused by automobile collision, called chauffeur to identify machine and testify to his

employment by defendant, the fact that he

was at the time running the machine for his

own personal use, contrary to his

employ-
er's orders, could be shown on cross-examination. Quigley v. Thompson, 211 Pa. 107,

60 A. 506. Certain transaction being testi-

fed to on direct examination, what was said

and done at the time could be shown on

cross-examination. Harnis v. Miles, 111

I'll. App. 105. Where witness testifies to

facts tending to show that mistake in tele-

gram was due to carelessness of sender in

dictating it, the adverse party may show on

cross-examination that negligence was that

of the sending operator. Wolf Co. v. West-

ren Union Tel. Co., 24 Pa. Super. Ct. 129.

77. Garlich v. Northern Pac. R. Co. \[C. C. A.\] 131 F. 837. The fact that cross-examination of plaintiff regarding operation and

use of saw by which he was injured might

tend to show contributory negligence did not

make it improper, being confined to mat

ters touched on in direct examination. Belitz v. American Mill Co., 37 Wash. 399, 79 P.

981.

001. Proper to draw out on cross-examination explanation of what witness meant

by statement made by him. Nichols v. New Britain, 77 Conn. 695, 60 A. 655.

79. Where direct testimony is as to cer-

50 Curr. L.--87

79.

extent of such examination is necessarily left largely to the discretion of the trial judge.\[84\] Among the matters which such examination may properly cover are the relationship of the witness to the parties,\[87\] compensation of the witness,\[88\] his interest in the result of the suit,\[89\] his sincerity and honesty,\[90\] and his bias or hostility.\[91\] The character and previous life of the witness may be inquired into to some extent,\[82\] especially if the witness is the defendant in a criminal case;\[93\] and in some states

or dispute an inference that may be drawn\[defendant expected the vendor to make from his direct testimony, is admissible on cross-examination. Perrin v. Carbone \[Cal. #5\] #5. J 82 P. 222.

86. Illinois Cent. R. Co. v. Burke, 112 Ill. App. 415.

01. Seymour v. Bruske \[Mich.\] 12 Det. Leg. N. 145, 103 N. W. 613. Proper to ask witness if he was in employ of defendant. Stove v. La Conner Trading & Transp. Co. \[Wash.\] 50 F. 856. Proper to show whether witness was in employ of party calling him, and whether he was paid to some and testify. Gulf, etc., R. Co. v. Braves \[Tex. Civ. App.\] #5. W. 29. Al-lowance of questions to show relation of attorney and client between a witness and plaintiffs attorney held not an abuse of discretion. Birmingham So. R. Co. v. Lintner \[Ala.\] #5. S. W. 410. Discretionary to allentering witness acted in gaining information may be shown to show fact and manner of his interest. National Enameling & Stamping Co. v. Fagan, 115 Ill. App. 590. Proper to ask defendant's wife on cross-examination whether she had been hyponized by defendant, where evidence tended to show he had great influence over her. State v. Exum, 138 N. C. 599, 50 S. E. 283. To show bias of witness, and close relation to defendant, testimony, on cross-examination, that had she lived with defendant in adultery, and believed he had a wife and child living, and that she had visited defendant in jail, was proper. Sexton v. State \[Tex. Cr. App.\] #5. W. 348. As affecting credibility of witness, facts could be brought out on cross-examination showing that action was being supported by a street railway company which was responsible in part for the accident in question. Iaquinto v. Bauer, 92 N. Y. S. 388.

01. Evidence that witness was paid for time taken to investigate an alleged illegal election, and that expenses of a trip were paid by one of the parties, proper on cross-examination. State v. Rosenthal, 123 Wis. 442, 102 N. W. 49. Whether witness had a conversation with a party relative to being paid if out of the state at time of trial could be inquired into. Hathaway v. Gosland \[Vt.\] #5. A. 825. What witness expected as compensation immaterial when no agreement to pay him anything was shown. Southern R. Co. v. State \[Ind. App.\] 72 N. E. 174. Where detective testified that he was paid by his agency and salary did not depend on conviction in cases on which he worked, it was not error to refuse to allow inquiry as to the amount of his salary. White v. State, 121 Ga. 191, 48 S. E. 941.

01. In action concerning ditch, witnesses may be tsked if they paid anything to discharge their ditches on another's land. Kennedy v. Murphy, 112 Ill. App. 607. Plaintiff might show on cross-examination that 5 Cur. Law. Examination of witnesses SS 2.1379

indictment 94 or conviction of crimes 95 or offenses involving moral turputude 96 may be shown. It is usually held that specific acts of immorality cannot be shown,97 but some courts hold that such examination may be allowed in the discretion of the court.98

Previous contradictory statements may always be shown to impeach the witness.99 In some states it is unnecessary to lay a foundation for proof of contradictory oral statements by inquiring on cross-examination whether he made the declarations of which it, is proposed to offer proof;1 but usually such foundation is required.2 A witness cannot be cross-examined as to whether he made written statements inconsistent with his testimony unless the writing has been put in evidence, and has been shown the witness.8 Further examination of the contents of the writing cannot then be made unless the witness admits the writing to be his.4 Questions as to previous statements 8 or charges of crime 9 should definitely specify time and place.

1380 Examination of witnesses SS 2. 5 Cur. Law. made by them, but may explain the true facts by other witnesses,\* and cross-examination of its own witnesses is allowable if they prove hostile and give testimony other than that expected.\[10\]

Questions which tend only to humiliate and degrade a witness, and not to show bias, are improper.\[11\] It is improper to read from a medical work in the cross-examination of a medical witness.\[12\]

\_As to probability of testimony.\[13\]--In testing the probability of testimony, previous acts or conduct of the witness, inconsistent with his testimony\[14\] or other facts inconsistent with those testified to,\[15\] may be shown. Questions designed to test the recollection of the witness are proper\[16\] and in the case of expert\[17\] and opinion evidence,\[18\] full cross-examination as to the knowledge of the witness and the

- 0. State v. Bolee \[La\_\] 38 So. 584. \[Md.\] 59 A. 753. Where an expert testifies as to dangers apparent and appreciable in operating a given machine, he may be cross-examined as to whether he had learned what dangers could be known by a person was unmarried, held improper. Adkinson v. State \[Fla.\] 37 So. 522. \[Md.\] 58 A. 874. Question to physician sanity before jury without offering it in evidence, held improper. State v. Thompson \[Iowa\] 103 N. W. 377. \[Iowa\] 103 N. W. 377. \[Iowa\] 13. See 3 C. L. 1393. \[Iowa\] 14. Acts of witness inconsistent with his statements on direct examination may be shown in cross-examination as affecting credibility. Philadelphia y. Dobbins, 24 Pa. Super. Ct. 136. Where defendant, in homi-cide case, testified that he was shot at the night before the killing, cross-examination as to why he had not reported the fact to the authorities was proper. Long v. State \[Tex. Cr. App.\] 13 Tex. Ct. Rep. 55, 88 S. W. 203. \[Iowa\] 15. Where in action for pollution of stream a witness produced a sample of the water while on the stand, it was proper to ask him on cross-examination whether he did not know that the sewage in question was dumped into the stream above his ranch and above the place where he took the water. Watson v. Colusa-Parrot Min. & Smeti-ing Co. \[Mcnt.\] 79 P. 14. Question to plain-ifif as to ability to pay taxes if he had not paid other bills held proper cross-examination, ln action for false imprisonment against a tax collector. Kerr v. Atwood \[Mass.\] 74 N. E. 917. \[Iowa\] 16. Children properly cross-examined as to occurrences in room where they were in order to test their credibility or the probability of their testimony. State v. Patchen, 37 Wash. 24, 79 P. 479. Telegraph operator having testified to the minute when he received a message, could be asked on cross-examination when he received a certain message for transmission the day before. Western Union Tel. Co. v. Merrill \[Ala.\] 39 So. 121. Conductor having testified that he was not sure of identity of man seen on his car, could be asked if he did not think it strange for a man to alight where he did. State v. Sherouk \[Conn.\] 61 A. 897. \[Iowa\] 17. Expert who testified that coupling of engine and dynamo was too short could be asked on cross-examination if room was large enough for longer coupling, though it was a fact that other rooms could have been added. Kernan v. Croek, Horner & Co.

5 Cur. Law. Examination of W-TNESSES SS 3 1381 elements of his opinion is proper. It may also be shown that the witness's testimony is a mere conclusion \[10\] or that he entertains opinions inconsistent with the facts to which he has testified. \[20\]

SS 3. _Redirect examination._\[21\]--A witness may be re-examined 'as to matters brought out on cross-examination, \[22\] and while the court may, in the exercise of its discretion, \[23\] prevent a mere repetition of testimony already given, \[14\] such repetition is not necessarily prejudicial. \[25\] On redirect examination, the witness should be allowed to explain statements made on the cross-examination, \[16\] and where statements, acts, or conduct of the witness have been shown, it is proper on redirect examination to introduce explanatory matter tending to show such statements, acts, or conduct consistent with present testimony. \[27\] A witness should be re-examined as to matters brought out on his cross-examination at the close of such examination, and should not be called in rebuttal for that purpose. \[28\] The re-examination should be confined to matters brought out on cross-examination. \[29\]

charged with and indicted for suboramitor \[26\] or perhaps, but not that he married the woman he induced to swear falsely, in order to escape prosecuti-, Stull. State \[Tex\]. opportunity of explaining answers given on Cr. App.J 84 S. W. 1059. Where witness testified that brakeman's reputation for com-, and he had heard of \[28\]. The re-examination should be confined to matters brought out on cross-examination. \[29\]

\[26\] Marlow v. State \[Fla.\] 38 So. 653. It is proper on redirect examination to ask questions designed to afford the witness an opportunity of explaining answers given on cross-examination. Baltimore Belt R. Co. v. Sattler \[Md.\] 59 A. 654. On redirect examination witness may explain what he intended to convey by answers on cross-examination to show that witness had \[13\]. State v. Lyons, 113 La. 959, 37 So. heard of the brakeman's allowing a car to \[85\]. Where a witness has given an erroneous impression of facts, he is entitled to ex-, plus himself while under examination, in the presence of the jury. Pacific Export Lumpe Co. v. North Pacific Lumpe Co. \[Or.\] 88 P. 105. \[27\]. Comer v. Thornton \[Tex. Civ. App.\] 86 S. W. 19. Where witness admitted leaving a place after a certain conversation wherein he was told to leave, it was proper to show on redirect examination how long after the killing, to which he testified, such conversation occurred. Bardin v. State \[Ala.\] 38 So. 833. Where claimant against an estate testified that she signed her husband's name to a certain note, she could, on redirect examination, explain the transaction to rebut presumption that she signed the notes in suit in the same way. Taylor v. Taylor's East \[Md.\] 101 N. W. S12. Where in action on note, plaintiff was cross-examination as to state of accounts between himself and defendant with a vive to showing satisfaction of note by sale of mortgaged property, it was proper to show other transactions as basis of note on redirect examination. Finch v. Mishler \[Md.\] 59 A. 1009. A contradicted witness is entitled to an opportunity to explain statements claimed to be inconsistent with his testimony after proof of such statements has been made, or the party calling him may re-examine him for the purpose of such explanation. Villinev v. Manchester St. R. Co. \[N. H\] 60 A. 748. Where an attempt is made to disredit a witness by showing a motive or interest influencing his testimony, he may show that he made statements similar to his testimony at a time when the alleged motive or influence did not exist. Sweeney v. Sweeney, 121 Ga. 293, 48 S. E. 884. \[28\]. Struth v. Decker \[Md.\] 59 A. 127.

1382exchange of property. 5Cur. Law.

**SS 4.**_Recalling witness for further examination._\*\*30--**Permitting a witness to be recalled for further examination is discretionary.**31****

**SS 5.**_Privileges of witnesses._\*\*32--**The privileges of witnesses, both as to the manner of examination and the matters as to which they may be examined, are elsewhere fully considered.**33****

**Exceptions and objections; Excceptions, Bill of, see latest topical index.**

**Exchange of property.**

**The general rules governing an exchange of property are the rules applicable to all contracts and are treated in appropriate topics.**34****

**If time is not of the essence of a contract for the exchange of property each party has a reasonable time within which to comply with its provisions.**35**** A substantial compliance is all that is required.**36**\*\* Original lack of mutuality may be supplied.**37**\*\*

**One party to a fair exchange cannot recover property delivered under it, where the contract has never been broken;**38**** but on failure of the owner of land to comply with the terms of the contract, the value of merchandise turned over to him may be recovered in an action for money had and received.**39**\*\* Where there is a breach of the\*\* **covenant of warranty in one of the deeds to lands exchanged, the grantee has a lien on the land he conveyed for the damages he sustains.**40****

**If induced by fraud, the defrauded party may maintain an action for damages,**41****

**or he may bring an action to rescind,**42****

**or he may rescind and recover the specific property parted with,**43****

**though the fraudulent representations were innocently**

**30.** **See 3 C. L. 1395, also title Trial.**

**31.** **Refusal to allow witness to be re-called for further cross-examination is dis-cretionary. United States Wringer Co. v. Cooney, 214 Ill. 520, 73 N. E. 803. Allowing witness to be recalled to explain former test-imony is discretionary. Plehl v. Plehl \[Mic.\] 101 N. W. 628. Allowing witness to be recalled for the purpose of laying a foundation for impeaching him is within court's discretion. Savage v. Bowen, 103 Va. 540, 49 S. E. 668.**

**32.** **See 3 C. L. 1395.**

**33.** **See Witnesses, 4 C. L. 143.**

**34.** **See Contracts, 5 C. L. 664; Fraud and Undue Influence, 3 C. L. 1520; Sales, 4 C. L. 1318; Vendors and Purchasers, 4 C. L. 1769.**

**For remedies relative to such transactions, see Contracts, 5 C. L. 644; Specific Performance, 4 C. L. 149.**

**35.** **Gibson v. Brown, 214 Ill. 330, 73 N. E. 578.**

**36.** **A stipulation that the property shall not be incumbered is satisfied by the production of releases of incumbrances secured by an arrangement with the lienors to satisfy the liens out of the purchase price. Gibson v. Brown, 214 Ill. 330 73 N. E. 578. In an action to recover "boot money" paid, evidence held insuffient to show an agreement to trade back in case of dissatisfaction. Boire v. McDowell, 93 N. Y. S. 1091.**

**37.** **Where it is not mutual at the time it is made, but subsequent developments reconsired by the party renders it mutual. Gibson v. Brown, 214 Ill. 330, 73 N. E. 578.**

**38.** **Forbes v. Rogers \[Ala.\] 38 So. 843.**

**39.** **Proctor v. Stevens Land Co. \[Minn.\] 102 N. W. 395.**

**40.** **Newburn v. Lucas, 126 Iowa, 85, 101**

**37.** **730.**

**41.** **Joyner v. Early \[N. C.\] 51 S. E. 778.**

**A refusal of one party to comply with the terms of a contract relieves the other of the necessity of keeping good a tender of a deed or preserving it unmutated in order to maintain an action for damages. Cohen v. Parnas, 93 N. Y. S. 649.**

**42.** **Under Cliv. Code, 81 1282-1285, a suit to rescind a contract for the exchange of real property may be maintained on an offer to restore everything acquired and a tender of a deed of the real property acquired. Thompson v. Hardy \[S. D.\] 102 N. W. 299.**

**43.** **Joyner v. Early \[N. C.\] 51 S. E. 778.**

**44.** **Joyner v. Early \[N. C.\] 51 S. E. 778.**

**A party induced to exchange his land by false representations as to the title of the land he received may have rescission of his deed. Gorbett v. McGregor \[Tex. Civ. App.\] 84 S. W. 278.**

**45.** **S. W. 278.**

**46.** **Motiveness of the land and apputernant** * 6 Cur. Law. EXCHANGES AND BOARDS OF TRADE. 1383

- made; 44 but if the contract is executed, the fraud must be established by clear and satisfactory evidence.45 The action to recover the specific property is at law,46 and resort should not be had to a court of equity, unless for some special reason the remedy at law is unavailing or inadequate.47 A rescission based on a demand for performance not made in good faith does not preclude the right to specific performance; 48 but where the evidence of one party shows him to be entitled to a recission, the claim of the other party for specific performance is eliminated.49

## 7 Exchanges and boards of trade.

_Membership, rights and dealings.49_--A membership on a board of trade is in its nature a personal privilege, yet such value as it may possess, notwithstanding the restrictions to which it is subject, is susceptible of being realized by creditors.51 Proceedings of a board of trade regularly engaged in an investigation of a complaint of a member, pursuant to valid by-laws will not be enjoined,52 nor will the expulsion of a member for the violation of a valid rule.53 Members can lawfully refuse to deal with a person who has been expelled from the association for his wrong doing.54

\_Property and contract rights of board.55--The quotations collected by a board of trade are property, and an unlawful use of them may be enjoined, even assuming that such statistics relate to unlawful transactions.56 Contracts between boards of trade and telegraph companies which limit the communication of quotations collected by it are not in restraint of trade.57 A by-law which prohibits members from doing business with a person expelled from the board for misconduct does not render it an illegal combination in restraint of trade.58 Under the rules of the New York Stock Exchange, an indorsement of a member on a certificate of stock is a guarantee of the correctness of the signature of the party in whose name the stock stands.59

- 44 Du Bois v. Nugent \[N. J. Eq. \] 60 A. \[16 N. Y. 112, 69 Am. Dec. 665; Rowe v. Willemans, 97 Mass. 163; Heath v. President of Gold Exch., 7 Abs. Pr. \[N. Y.\] 54). And in 8 E. I23. A litigant relying on the out-standing title of a third person to sustain his action or defense must fully establish such title by competent and sufficient proof. Id. 46 A. verbal contract for the exchange of personal property may be resended by either party thereto for good cause, and a suit at law maintained for the restitution of the property. Wilson v. Maxon, 56 W. Va. 194, 19 S. E. I23. 47. Wilson v. Maxon. 56 W. Va. 194, 49 S. E. I23. 48. Gibson v. Brown, 211 Ill. 330, 73 N. E. 578. 49. Bales v. Roberts, 87 S. W. 914. 50. See 3 C. L. 1397. NOTE. Constitution and by-laws: It is essential to the validity of rules and regulations for the government of members that they be reasonable (Belton v. Hatch, 109 N. Y. 593, 4 Am. St. Rep. 495; Lewis v. Wilson, 121 N. Y. 284; Hiberna Fire Engine Co. v. Com., 92 N. 264), and not in conflict with the settled law of the jurisdiction (State v. Williams, 75 N. C. 134; Sewell v. Yves, 61 How. Pr. \[N. Y.\] 54), nor contrary to public policy (Belton v. Hatch, 109 N. Y. 593, 4 Am. St. Rep. 495), nor deny to a member the aid and protection of a court of Justice in his legitimate operations (Austin v. Bearing,

## 1. Definition

H. Llability of Offcer for Loss of Prop-

H. Llability for Owneful Levy (1391).

H. Llability of Offcer for Loss of Prop-

H. Llability for Owneful Levy (1391).

5 Cur. Law. EXECUTIONS SS 4. 1385

ment stand as security does not prevent the issnance of an execution thereon, nor operate as a stay,\[69\] and hence does not preserve the lion of a judgment after the expiration of a year, no execution having issued thereon.\[70\] The California statute providing that execution may issue by leave of the court upon motion after the expiration of five years after entry of judgment is valid, though no notice to defendants is provided for.\[71\] In New York leave to issue execution on a judgment five years after its entry is discretionary.\[72\] In an action by trustee process, where final judgment against the principal debtor has been entered, execution may issue thereon by special leave of the court while the action is still pending and undetermined as to the trustee.\[73\] A judgment entered against a partnership as a corporation, over a plea in abatement, cannot be enforced against the partners.\[74\] One who has assigned his judgment cannot thereafter issue execution.\[75\] .Execution will not be summarily denied when the rights of the parties are in doubt and there is a legal remedy for a wrongful enforcement of the judgment.\[76\]

SS 3. _Stay and how procured.\[77\]_--Execution may be stayed where a petition in bankruptcy is filed before the day on which the sale is to be made.\[78\] It should not be stayed until a proceeding in equity to determine the amount of another person's claim on the fund has been disposed of;\[79\] but the proper practice in such case is to ask for a rule on plaintiff to show cause why leave should not be granted to pay the money into court to discharge the judgment.\[80\] A writ of supersedeas subsequent to the levy of an execution stays further proceedings but does not have the effect of restoring the personal property levied on to the defendant's possession or of impairing the lion created by the levy.\[81\] Under the Ohio statute permitting immediate collection of a judgment, though defendant has given bond for a stay of execution, the bond required of plaintiff should provide for interest on the amount to be collected, in case restitution is necessary.\[82\]

SS 4. _Procedure to procure issnance of writ.\[83\]_--Where notice of application for execution is required by law,\[84\] an order for execution without such notice is void.\[85\] The practice varies where execution is desired in a county other than that wherein the judgment was rendered.\[86\] Where execution against a decedent's estate is sought, the administrator may be required to make an intermediate account.\[87\]

69, 70. International Packing Co. v. Clch. - 394, 60 A. 1001. 81. Rev. St. 1892, SS 1272, changing the owicz, 114 Ill. App. 121. 71. Code Civ. Proc. $ 685. Harrler v. Common-law rule is to be strictly construed. Bassford, 145 Cal. S29, 78 P. 1038. Hence 118. Chemod.\[Fla.\] 37 an order for execution without notice is 80. S23. 82. Rev. St. $ 6722. Haunts v. Lanman valli In the absence of special circumstances 82. Co., 2 Ohio N. P. (N. S.) 405. 83. See 3 C. L. 1199. 72. Under Code Civ. Proc. $ 1377. Schill- 84. Applications for execution under Code ler v. Weinstein, 94 N. Y. S. 764. 73. Leonard v. Sibley, 76 Vt. 254, 56 A. C. 461, must be on notice. Neuman v. Mortl- 1015. 74. Sinasbaugh v. Dun, 214 Ill. 70, 73 N. E. 83. T. S. 524. To judgment debtor and trustees of fund against which execution is 75. Dawson v. Tiffany, 34 Civ. Proc. R. 829. 76. Where, pending an action against a order for execution against income from bank in a Federal court, an assignee was 118. The trust finds, the trustee is entitled to be 118. The trustee is 118.

_Power to allow or issue writ._\[88\]--A court has no power, in a statutory proceeding, to order execution for attorneys' fees, except as allowed by the statute.\[89\] A court has power to so control execution of its final processes as to prevent a wrong from being done.\[90\] Where execution issued by an appellate court is recalled and reformed to comply with an amended judgment, rights which have accrued nnder it will be saved.\[91\] In some states execution may be issued by a circuit court upon a judgment by a justice,\[92\] when a proper transcript of the justice's judgment has been filed with the clerk.\[93\]

_Form and contents of writ._\[94\]--Where a judgment is amended nunc pro tune, the execution should recite the date of the original judgment.\[95\] The command to make costs of a proceeding in error must be expressed in the body of the writ, since such costs are not a part of the judgment of the lower court;\[96\] and if the judgment below has been already satisfied, the writ should be confined to such costs.\[97\]

_Quashal of writ._\[98\]--Notice of a motion to quash an execution is waived when a party appears generally to resist the motion without objection for want of notice.\[99\]

_The levy. A. Leviable property and order of leviability._\[1\]--The subject of exemptions is elsewhere treated.\[9\]

Equitable estates in land, though not subject to execution under the English common law,\[3\] are now subject to levy and sale in most jurisdictions,\[4\] if the estate is definite and certain;\[5\] but a mere right or interest which can only be asserted or

meyer, 5 Ohio C. C. (N. S.) 25. Where a judgment exceeding $100 is obtained before a justice of the peace in one county, and a transcript is filed in the protontherapy's office of that county, and then transferred to an--other county by exemplification, it is not a prerequisite to execution to file a certificate with the transferred judgment showing a return of "no goods" by a constable in the county where the Justice's transcript was originally filed. Mougenot v. Vernon, 23 Pa. Super. Ct. 165.

\_In proceedings against an admlnis-trator for execution against property of the estate, the question whether there is property applicable to satisfaction of the judge--ment being in issue, the administrator may be required to make an intermediate account. In re Warren, 94 N. Y. S. 286. Such accounting held proper where question was whether judgment against government in French spallation case was available. Id. 88. See 3 C. L. 1299.

\_Where a fine is assessed for violation of an injunction against the sale of liquor, but such fine is remitted by the governor, the court has no power to order execution for 10 per cent of the fine as attorney' fees under the statute \[Code, SS 2429\], authorizing as such fee 10 per cent. of the fine "collected". McConlc v. Landt, 126 Iowa, 317. 101 N. W. 1121.

5 Cur. Law. EXECUTIONS SS 8A.

enforced in a court of equity cannot be seized and sold under an execution at law.\* A bare legal title to reality, uncoupled with a beneficiary interest, is not subject to execution.\* A creditor can subject the estate of a esetui que trust if his claim is such that the beneficiary could himself enforce it against the trustee for the estate.\* The interest of the grantor in a trust deed given as security is not leivable if the grantor has failed to demand conveyance of the legal title.\* The reversion in lands which have been assigned as dover,10 an undivided interest in a remainder in property devised to one for life, with unlimited power of disposition,11 and a descendible, devisable and alienable estate in expectancy,12 are subject to levy and sale.

The judgment creditor of an heir can levy on all the property belonging to the debtor but nothing more.13 The distributive share of an heir in an undivided interest.

- Pogue v. Simon \[Or.\] $1 P. 566. Where

purchaser of the real estate. The decision land is conveyed to one person, who advances the consideration, under an agree- the time for redemption having expired, the ment to convey to another on payment of the advancement, and the latter never holds legal title, his interest is not subject to sale, right, and therefore by operation of law, go Holmes v. Wolford \[Or.\] $1 P. 81. Where

title to land has never been in the Judge-ment debtor but is held by another on a secret trust for such debtor, such land is not subject to levy and sale under an execution at law, but is an equitable asset of the Judge-ment debtor which can only be reached by proper proceedings in a court of equity. Macfarlane v. Dorsey \[Fla.\] $8 So. 512.

**NOTE. Levibility of Equitable Interests:** "The rule thus established rests upon the assumption that an equitable interest in real property Is an uncertain estate, which if it could be sold on execution issued on a judgment rendered in a law action, would produce a sum grossly inadequate in proportion to its real value; for most persons, in purchasing real property, insist upon a certainty of the title there, and, where there is a doubt in this respect, usually decline to Invest their money. If a compulsory sale of such interest upon execution were permissibly, there would be little or no competition in bidding. Few people desire to purchase a lawsuit, and the judgment creditor would probably secure the equitable estate for a nominal sum. In the interest of the debtor, and to afford purchasers of real property at an enforced sale thereof an equal opportunity with the judgment creditor, the rule adverted to has been adopted, requiring the latter first to establish the fact in a court of equity, in a suit instituted for that purpose, that the debtor's equitable estate in real property is subject to the payment of his demand, before such interest can be directed by a sale thereof upon execution. So long, therefore, as any substantial timing remain to be done by the debtor before his equitable estate in real property ripens into the legal title, such interest cannot be reached under an execution issued on a judgment in a law action, but to subject such estate to the payment of the creditor's demand, re-sort must be had to a court of equity to establish the right. In Pogue v. Simon \[Or.\] $1 P. 566, it was held that real property sold upon execution, the sale duty confirmed, and the time for its redemption having expired, though the shelf's deed therefor had not been executed, was subject to levy and sale on execution issued on a judgment rendered against the 1388 EXECUTIONS SS 8B. 5 Cur. Law. :

terest of the ancestor may be levied upon, though it has not been assigned; \[14\] but a judgment creditor of an heir cannot levy upon and sell land formerly belonging to the estate but held by a voidable title because of a purchase by the administatrix at her own sale.\[15\]

A creditor whose judgment is inferior to a mortgage cannot by a common-law execution subject property held by the mortgage under a title voidable because purchased at his own sale under a power,\[16\] since the right to disaffirm such sale is personal to the mortgagor.\[17\]

A community homesetead which has been set aside in a divorce proceeding for the wife and minor children is not subject to execution against the divorced husband.\[18\]

Wages \[19\] and the income from a trust fund \[20\] are leviable in New York under a judgment wholly for necessaries.

Property belonging to municipal corporations and used for public municipal purposes,\[21\] or held by charitable corporations in trust for the public \[22\] is exempt. Salary due a teacher in city schools cannot be seized under execution, since such seizure would in effect involve garnishment of a municipal corporation.\[23\] Property in the hands of a receiver \[24\] or assignee in insolvency \[25\] is not leviable.

A mere disclaimer of title by a judgment debtor does not defeat the rights of judgment creditors since the question whether title has passed so as to permit a levy and sale is to be determined from the evidence and law.\[26\]

(SS 8) _B. Mode of making levy.\[27\]_--Whether a levy has been effectually made depends upon the character of the property and the acts of the officer.\[28\] Careless 5 Cur. Law. EXECUTIONS SS 8E.

ness of a sheriff in maintaining possession will not invalidate the creditor's lien unless the creditor was also negligent.29 A lvey on corporate stock is made on the shares as registered on the books of the corporation,30 and in Indiana the sheriff is by statute given access to the books for the purpose.31 After the sale the sheriff is authorized to transfer on the books the shares sold to the purchaser.32 Where property part of which is claimed as a homestead is levied on, the homesteader has a right to designate the portion he desires to claim as his exemption, and if he is not given opportunity to make such choice, the sale is void.32 In Illinois, it is not the duty of the officer to make the debtor's selection of articles as exempt, if the debtor fails to do so,34 since one claiming an exemption must comply with the statute requiring him to make a selection.35

(SS 8) _C. Duty to make levy.36_

(SS 8) \_D. Extent and adequacy of levy.37--\_No more than is necessary to satisfy the execution should be levied on, and an excessive levy may avoid subsequent proceedings.38 In directing a levy plaintiff may take into consideration the probable depreciation of the property levied upon when sold at forced sale, and levy upon sufficient property to realize the execution in view of such depreciation.39

(SS 8) \_E. Conflicting levies and liens; priorities.40--\_Except where the true owner is estopped from asserting title, the lien of a judgment only attaches to such interest as the judgment debtor actually has in the property levied on.41 The creditor of an heir cannot by entry of judgment and levy against him, acquire a right to payment from the ancestor's lands in priority to the debts owing by the ancestor, subject to which the defendant heir took his estate.42 One who advances money to another under an agreement that he is to hold the property purchased therewith until the advancement is repaid is at least a mortgagee or pledgee in possession, and though his contract is unwritten, his rights are superior to those of an execution creditor 29. Hereford v. Benton \[Colo. App.\] 80 **31. Burns' Ann. St. 1901, $ 735. Boone v. P. 499.**

30. Boone v. Van Gorder \[Ind.\] 74 N. E. 4.\*\*

01. Boone v. Van Gorder \[Ind.\] 74 N. E. 4.\*\*

01. Rev. St. 1899, $ 367I. Kessner v. levy: At common law, the right to levy execution upon shares of stock is denied, Nicholson \[Mo.\] 88 S. W. 71.\*\*

34, $ 35. Johnson v. Larcade, 110 Ill. App. 611.\*\*

35, $ 37. See 3 C. L. 1401.\*\*

36, $ 37. See 3 C. L. 1401.\*\*

38. Where property worth $1,500 or $2,-000 was levied on and sold under a tax execution for $17.81, and it appeared that defendant in execution had two other less valitable lots, and that the tract sold was capted by 10 Pa. 873. With the multiplica- able of division, though a division would have impaired the value of the whole, the levy was held excessive and void, and the unmeasured investment of money in corporate purchaser acquired no title. McKenzie v. stocks, it has been frequently deemed excepted to enable creditors to subject this species of personal property to their legitimate demands, and statutes are now found in many of the states which provide, in more or less definite form, that shares of stock shall be deemed subject to levy or execution. Where statutes so provide, and at the same time direct the manner in which the levy shall be made, the requirements of the statute must be strictly follow.45

01. See 3 C. L. 1401.\*\*

01. Owens v. Atlanta Trust & Banking Co. \[Ga.\] 50 S. E. 379. The lien of a judge-ment against one holding stock is inferior to an existing lien of the corporation for indedededness of the stockholder by virtue of a by-law under Code 1895, $ 2835, even though the execution plaintiff had no no notice of such lien at the time of making his loan, securing judgment, or giving notice to the corporation under Civ. Code, 1895, $ 431.\*\*

01. Lippirecott v. Smith \[N. J. Eq.\] 60 A.

of the purchaser.45 The lien of a mortgage, duly recorded, is superior to that of a purchaser at execution sale against the mortgagor, under an execution issued after the registration of the mortgage.44 In some states all the debtor's interest in reality passes by a duly recorded levy,45 and creditors who have recorded their levy on property apparently belonging to the debtor have title superior to that of a grantee whose conveyance is unrecorded and of whose rights the creditors had no actual notice.46 A constable who levies on property under an execution issued by a justice secures a lien prior to that of a sheriff who subsequently levies under execution issued by the circuit court.47 The lien of an execution levied upon an indeterminate estate is lost by a conveyance by deed executed after the estate vested.48 In Illinois the lien of a judgment ceases if execution is not issued thereon within a year; and a sale under execution issued after expiration of a year transfers no title as against bona fide purchasers before the issuance of such execution.49

A discharge in bankruptcy does not affect the lien of an execution levied on the bankrupt's property more than four months before the bankruptcy proceedings were instituted,50 even though the judgment debt is proved as a claim secured by levy and a dividend based on the full amount of the judgment is paid thereon.61 Nor is such lien affected by sale of the bankrupt's property in the bankruptcy proceeding.52

An execution and levy is entirely compatible with a continuing property right in the debtor sufficient at least for sale and transfer.58 Where the debtor sells after execution and pays the debt, thereby satisfying the execution in full, his vendee acquires good title free from incumbrance.54

A levy upon a tenant's interest in a crop is valid as against the landlord's lien, if the crop is not removed from the premises,55 but the landlord has such possessory rights therein as entitle him to prevent its removal and to maintain an action for the trial of the right of property in order to have the crop, if so removed, returned.56

(SS 8) _F. Relinquishment and dissolution of levy.57_

(SS 8) _G. Release of property on receipts or forthcoming or delivery bonds.58_

The forthcoming bond given by a claimant should be made payable to the levying officer and not to the plaintiff in execution.50 But a bond may be defective in this respect and yet valid as a common-law obligation where it served the purpose for which it was given and effected a change of possession of the property from the officer to the claimant.50

43. Mitchell v. McLeod \[Iowa\] 104 N. W. 349.

01. Registration of mortgage is constructive notice to purchaser at subsequent execution sale. Howard v. Deens \[Ala.\] 39 S0. 346.

01. Pub. Stt. 1901, c. 233, $ 13. Butler v. Wheeler \[N. H.\] 59 A. 355.

01. Butler v. Wheeler \[N. H.\] 59 A. 395.

Claim of creditors of the heir of one who was apparent owner, who have recorded their levy superior to claim of grantee under unrecorded conveyance. Id.

47. Miller v. Grady \[Ark\] 88 S. W. 983.

01. SWerer v. Ohio Wesleyan University Trustees, 2 Ohio N. P. (N. S.) 333.

01. International Packing Co. v. Cicho-wicz, 114 III, App. 121.

01. Bassett v. Thackara \[N. J. Law\] 60 A. 39. A creditor who has reduced his claim to judgment and levied on a debtor's interest in property held in his wife's name, ten months before commencement of bankruptcy proceedings, is entitled to have a resulting trust in his favor established in equity, 5 Cur. Law. EXECUTIONS SS 9. (SS 8) $H$. _Liability of officer for loss of property levied upon._\[61\] (SS 8) $I$. _Liability for wrongful levy._\[62\]--Whether a seizure of goods under a writ was justifiable is a question of law.\[63\] An execution creditor is not liable for acts of the marshal in making a levy if he gave no specific directions regarding it.\[64\] A stranger whose property has been levied upon may maintain trespass, and, if the facts warrant, recover even vindictive damages,\[65\] or he may maintain trover or replevin;\[66\] but he cannot maintain both, and a successful resort to replevin bars a subsequent action of trespass.\[67\] Under a bond for the faithful discharge of his duties, an officer and his sureties are liable in damages for a levy on goods of one person under an execution against the goods of another.\[68\] But sureties of an officer are not proper parties to an action of claim and delivery against the sheriff, they not being in any way concerned in the seizure and detention of the goods.\[69\] Where the sheriff has sold the goods, the owner need not sue on the indemnifying bond but may sue to recover the property from the person then in possession,\[70\] and the sheriff is a proper party defendant in such suit,\[71\] One whose property has been sold under execution against another may recover its value at the time of the sale \[72\] with interest from that date.\[73\] In an action of claim and delivery by a mortgage of goods wrongfully seized, where return of the goods cannot be had, the measure of damages is their value up to the amount of indebtedness, with accrued interest.\[74\] One against whom an execution has been wrongfully issued may recover damages for injuries to and use of property wrongfully withheld, even though he was engaged in an unlawful business, but he cannot recover a loss caused by an interference with such business.\[75\]

SS 9. _Claims of third persons and trial thereof._\[76\]--The notice of a claim must be properly served on the officer \[77\] in due season,\[78\] and must properly describe the property claimed.\[79\] The object of the notice of ownership is to enable the sheriff to secure a proper indemnifying bond.\[80\] Hence, when that object is accomplished defects in the notice are immaterial.\[81\] No notice need be given by the true owner.to the execution plaintiff.\[82\] Though one who claims property may interpose his claim

61, 62: See 3 C. L. 1402, and see Sher-

iffs and Constables, 4 C. L. 1442.

63. Claim and delivery action. Gallick

v. Bordeaux \[Mont.\] 78 P. 583.

75. Where execution was wrongfully levd on stock of liquors of one who was sell-

01. Mirella v. Simpson, 94 N. Y. S. 464.

01. Harris v. Nelson, 113 Ill. App. 487.

01. Harris v. Nelson, 113 Ill. App. 487.

01. Harris v. Nelson, 113 Ill. App. 487.

01. Hepevin lies by the true owner or person

until to possession against the sheriff

v. Stevenson \[Ark.\] 86 S. W. 1000.

who has notice of the true ownership while

in possession of the goods under the writ.

Mitchell v. McLeod \[Iowa\] 104 N. W. 349.

68. Harris v. Nelson, 113 Ill. App. 487.

01. Frankenstein v. Cummisky, 92 N. Y. S. 708.

01. Gallick v. Bordeaux \[Mont.\] 78 P.

01.

70, 71. Mitchell v. McLeod \[Iowa\] 104 N. W. 349.

72. Where the constable, without manual

seizure, wrongfully sells goods of the wife

as property of the husband, and the pur-

chaser pays his bid, takes a bill of sale, and

leaves the goods on the premises, and there

is no agreement between the purchaser and

husband or wife as to the sale or use of

the goods, the wife may recover the value of

of the goods at the time of the sale. Mans-

feld v. Bell, 24 Pa. Super. Ct. 447.

73. Johnson v. Gillen \[Mich.\] 12 Det. Leg.

N. 135, 103 N. W. 547.

74. Not value of property and amount of

01. Claim and delivery action. Gallick

v. Bordeaux \[Mont.\] 78 P. 583.

75. Where execution was wrongfully levd on stock of liquors of one who was sell-

01. Harris v. Nelson, 113 Ill. App. 487.

01. Harris v. Nelson, 113 Ill. App. 487.

01. Hepevin lies by the true owner or person

01. Hepevin against the sheriff

v. Stevenson \[Ark.\] 86 S. W. 1000.

who has notice of the true ownership while

in possession of the goods under the writ.

Mitchell v. McLeod \[Iowa\] 104 N. W. 349.

77. Harris v. Nelson, 113 Ill. App. 487.

01. Frankenstein v. Cummisky, through an agent or attorney,83 it must be made in the name of the principal as owner,84 and an agent, having no interest in the property cannot interpose a claim in his own name as owner.85 Failure to file a claim will not estop the true owner from asserting his title by an action of trover against the purchaser at the execution sale, such owner having done nothing to mislead the purchaser as to his relation to the property.86

The officer is not bound to deliver possession of goods to a claimant if the execution plaintiff furnishes a proper indemnifying bond.87 In Georgia a sheriff cannot put a purchaser in possession of land sold by him when another is holding it adversely to the execution defendant before the judgment against the defendant.88 But when the person in possession brings the purchaser into a court of equity in a suit to restrain the sheriff from putting him into possession, the purchaser may by answer and cross bill put in issue the title and right to possession of the land, and such answer and cross bill should not be stricken.89

To be successful upon the trial of the claim, the claimant must show title in himself 80 at the time the lion of the judgment attached.91 He cannot defeat a levy by showing paramount title in a third person,92 unless he also shows that he has acquired it.93 Under the Alabama statute a superior equitable title or a lion paramount to defendant's title is as available to a claimant as the legal title.94 If the claim is based on a mortgage or lion the afflavit must state the nature of the right.96

Proof of possession of the land levied on by the defendant in execution since the judgment casts the burden on a claimant to prove his title;94 and proof that personality levied on was in a house on the defendant's premises is prima facie proof of his ownership.97 The character of defendant's possession of land may be shown98

A court will not, upon motion of one not a party to the action, undertake to determine title to property levied upon.98 Hence, where a motion to quash a levy is made by one not a party on the ground that the property levied on belonged to him and not the debtor, refusal to grant the motion for want 0.97 power, not appealed from, is not a judicial determination of the title so as to bar a subsequent suit to determine the adverse interest acquired under the levy.1

The relief granted on trial of the claim must be authorized by the pleadings.2

SS 10. _Appraisement._"-In Kansas no appraisement of real estate sold upon execution is required even where such sale is expressed to be subject to a mortgage.4

83. Civ. Code 1895, SS 4611. Rowland v. **94**. Under Code 1830, SS 4141. Howard v. **95**. Code 1896, SS 4145. Bennett v. McKee **95**. Though a factor may do so. Rowland v. **96**. Claimant held to have shown perfect title in himself from the state. **97**. Under Code Civ. Proc. **97**. Bentert v. **98**. Roundtree **99**. Roundtree **99**.

5 Cur. Law. EXECUTIONS SS 11. 1393 SS 11. _Execution sales. In General._"--The sale must be for cash to the highest bidder," and must be made by a person authorized by law to make it," and at the place 'designated by the statute." If the purchase price is not paid, the judgment is not satisfied and a second execution may issue." When a plaintiff in execution becomes the purchaser of lands sold under it at his instance, the judgment is satisfied in whole, or in part to the amount of his bid;" and in the absence of fraud, imposition or surprise, he cannot repudiate the purchase nor resist entry of satisfaction because the defendant in execution had no title to 'or interest in the land." But this rule does not apply to an incomplete sale not reported to or confirmed by the court," and where the plaintiff purchases an equity of redemption, and the sale is never confirmed, he has the right to redeem from the mortgage as a judgment creditor."

_Bights and liabilities of purchaser._--An action for conversion lies against a purchaser who has knowledge of the ownership of a stranger."

Since the sale must be for cash in Rhode Island, no action will lie against a bidder, who does not pay, for the amount of his bid." In Pennsylvania, it is held that a purchaser who pays the amount required at the time of the sale, but fails to pay the balance when due is liable for the difference between the price paid by him and the smaller sum obtained at a second sale." Whether notice to such purchaser that he will be held to his bid, or an immediate resale by the sheriff, is necessary to fix such liability, depends upon the terms of the sale as fixed by the notice." Where 1

4. Armstead v. Jones \[Kan.\] 80 P. 56. \[catalog had no power to appoint a deputy 5. See 3 C. L. 1404. \[catalog for the purpose. Id. \[catalog for the outcome.

a defaulting purchaser acts under the belief that it is customary for the sheriff to give notice of liens, he is not entitled to be relieved of liability for his bid, no fraud or misrepresentation being shown.\[16\] An action against a defaulting bidder is properly brought in the name of the sheriff alone, but the introduction of a use plaintiff will not defeat the action.\[19\]

Under the Iowa statute providing that a purchaser at a sale may recover the amount paid if the property was not in fact subject to the lion of the judgment, and that fact was unknown to the purchaser,\[20\] knowledge of a claim that the property was exempt is not sufficient to defeat a recovery, if the purchaser did not know that it actually was exempt.\[21\] The right of the purchaser to recover is not affected by the fact that the sale is set aside at the instance of the owner,\[22\] and that the purchaser resisted the suit brought by the owner.\[23\]

\_Fees and costs.--\_An action by a sheriff for fees and costs is premature if brought before such costs have been taxed and allowed according to law.\[24\]

SS 12. \_Return and confirmation of sale.\[25\]--\_The return must sufficiently describe the land sold,\[28\] and must set out every vital jurisdictional fact relative to the sale;\[27\] but if it otherwise complies with the spirit of the statute and is substantially correct in form, it is sufficient.\[28\] A sheriff's formal and correct return cannot be overthrown by parol.\[29\] Where the return shows a sale to one person, the court cannot compel the officer to return that he sold to another.\[30\] But if a return is false, the party injured has his remedy against the officer and his surety.\[31\] A return on an execution sale of land, does not transfer title but merely gives the right to demand a deed.\[32\]

A sale of an equity of redemption in Alabama is not complete or valid so as to amount to a satisfaction of the judgment, in whole or in part, until it has been confirmed by the court.\[33\] On an ex parte application to confirm, the court cannot look beyond the report of the sale;\[34\] and if such report, on its face, shows that the proceedings were regular, it is the duty of the court to confirm the sale.\[35\] In such case, the order of confirmation settles no question of fact or proposition of law as against the owner of the property sold.\[34\] Although a sale will be set aside where fraud, mistake or surprise is shown,\[37\] mere irregularities in proceedings leading up to or in the conduct of the sale are cured by confirmation by a court of competent jurisdiction \[38\] and are not sufficient to render the sale invalid.\[39\]

Super. Ct. 222. Since the purchase money was to be paid without further demand, a notice to the sheriff that the sale would not be perfected is of no avail, and the sheriff is not bound to immediately re-expose the property to sale. Id. Where the second bidder signs the bid and pays the bond money, the sheriff need not offer the property for sale a third time the same day. Id. A defaulting bidder cannot avoid liability for loss caused by a lower bid at a subsequent sale on the ground that the sale was not made the succeeding month, where it appears that after allowing the time provided for payment of the balance, such sale could not be made the succeeding month. Id.

**18. 10. Hartman v. Pemberton, 24 Pa. Super. Ct. 222. 20. Code, SS 4034. Rosenberger v. Hawker \[Iowa\] 105 N. W. 781. 21. Purchaser held to have been ignorant of material facts, so that he did not In fact know the property was exempt. Rosenberger v. Hawker \[Iowa\] 103 N. W. 781. 22. 23. Rosenberger v. Hawker \[Iowa\] 103 N. W. 781. 24. 25. 26. 27. 28. 29. 28. 29. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 28. 29. 20. 21. 23. 24. 28. 29. 21. 22. 23. 24. 25. 26. 27. 28. 29. 28. 29. 20. 22. 23. 24. 26. 28. 29. 21. 23. 25. 27. 28. 29. 21. 24. 28. 29. 22. 23. 25. 26. 27. 28. 29. 23. 28. 29. 24. 29. 25. 26. 27. 28. 29. 28. 29. 29. 20. 23. 29. 21. 24. 29. 25. 26. 27. 28. 29. 28. 29. 29. 21. 29. 22. 23. 26. 28. 29. 21. 24. 29. 22. 25. 27. 28. 29. 23. 28. 29. 24. 29. 25. 26. 27. 28. 29. 28 5 Cur. Law. EXECUTIONS SS 14. 1395 SS 13. _Redemption.\[40\]_--To entitle a person to redeem, he must comply fully with the statutory requirements, or must show some valid reason for failure to do so in any particular.\[41\] Where the purchaser is absent from the state, a tender for the purpose of redemption must be made by payment of the money into court, on filing of the bill.\[42\] Where a purchaser resells portions of the land, the person seeking to redeem need not tender the amount required by law to each of the several owners, but may make a valid tender by paying the amount required into court for distribution.\[43\] An actual tender is unnecessary when the owners refuse any information as to improvements or other lawful charges.\[44\] It is a sufficient tender if the party to redeem makes diligent inquiry to ascertain the lawful charges, pays the charges he was able to ascertain into court and offers to pay all charges which may be ascertained under orders of the court.\[45\] The Alabama statute providing for a reference where parties cannot agree on the value of improvements has no application where one party remains outside the state and refuses to communicate with or accept any proposition from the party seeking to redeem.\[40\] The assignee of a judgment creditor cannot redeem from an execution sale against the rebtor, the right being personal to those named in the statute and non-assignable.\[47\] Since only the owner may redeem, a payment of the amount required by a third person and the giving of a receipt by the purchaser completes the re-demption and reyests title in the execution defendant.\[48\] Where an owner of land redeems but fails to file the purchaser's receipt with the clerk as he is permitted by law to do, a purchaser from the execution purchaser without notice of the owner's redemption, acquires a good title.\[49\] The owner may in such case reach the proceeds of the sale in the hands of the execution purchaser,\[50\] having given notice to the latter of his intention to stand upon his rights.\[51\] A law extending the time of redemption is unconstitutional as to liens accruing before its enactment because it impairs the security in which the creditor has a vested right;\[52\] but a law reducing the interest rate upon a redemption is valid.\[53\] SS 14. _Tille and rights acquired under sale, and evidence thereof.\[54\]_--As in the case of other judicial sales, the rule of caveat emptor applies,\[55\] and the purchaser ordinarily acquires no better title than the debtor could have conveyed at the time the lien attached.\[56\] Thus the sale passes no title when the property sold was not sale thereon, confirmation thereof, and ex- 1 702, by extending the time of redemption ecution and recordation of marshals's ded, suffer Sale to twelve months, does not apply sufficiently alleges title. Heid v. Ebner \[C. C. A.\] 133 F. 156. **89**, **E**r**e\*\*t 1396 EXECUTIONS SS 14. 5 Cur. Law. subject to execution,57 as where title was in another than the judgment debtor.58 But the purchaser will be protected against outstanding equities of which he had no notice, actual or constructive, before the sale.59 The key of the execution on land as the property of the debtor and its sale and purchase as such are conclusive on the purchaser as to the debtor's interest,59 and the judgment plaintiff is estopped to assert that the property sold was less than claimed by him.41 A purchaser is chargeable with notice of facts disclosed by the record of the proceedings in the case which resulted in the judgment on which his rights are based.58 The record of a prior mortgage is constructive notice to a purchaser, and he is bound by the facts disclosed by such record.63 One who purchases an equity of redemption is subrogated to the rights and subject to the disabilities of the execution defendant.64 He may maintain ejecment against the mortgagor and the latter will not be allowed to set up an outstanding title in the mortgage to defeat the action.65 But the purchaser cannot maintain such action against the mortgage in possession.66

_Rights to possession of reality_.--A purchaser of reality at an execution sale is not entitled, as against the judgment debtor or his successor in interest, to possession of the property prior to the expiration of the period of redemption,67 and is not entitled to have a receiver appointed before that time to care for the property.68 When the right of redemption no longer exists, his possession and estate are complete, although the technical naked legal or record title remains in the judgment debtor until execution and delivery of the sheriff's ded.68 Failure of a purchaser to demand possession is a valid reason for failing to deliver it.70 Proceedings to secure possession of reality after sheriff's sale are statutory in Pennsylvania 71 and New York.72

purchaser. When he levies upon property under his execution he parts with nothing in reaching for his property, nor does he take it in satisfaction of a precedent debt. He has a line upon the interest of the debtor only, and he must yield to every equitable claim which exists in third persons. Mager-stadt v. Schaefer, 110 Ill. App. 166. 57. Woman's Christian Nat. Library Asn 7. Pemberton, 24 Pa. Super. v. Fordge \[Ark\] 85 S. W. 417. 58. Where legal title and possession is in another than the debtor, the purchaser acquires no title. Magoffin V. San Antonio Brewing Co. \[Tex. Civ. App.\] 84 S. W. 843. 58. Purchaser not protected where injury of one in possession would have disclosed outstanding equities. Rippe v. Badger, 125 Iowa, 725, 101 N. W. 642. Where proof is reduced to possession by sale to an execution creditor under his own execution, he takes it free of claims of which he had no notice, and can assign it free of said claims to one having notice of them; but it is rather a stronger with such notice cannot by becoming; ing purchaser at the execution sale take the property discharged of the claims. Valkau \[Ark\] 70. Pranch's v. Manitrovo Scattino C., 105 Ill. App. 130. The rule that where plaintiff in execution, or his attorney, purchases at the sale for an inadequate price, he cannot be consid-ered a nona fide purchaser, applies only in possession by title derived from defend-shared without notice of prior conveyance. Clark v. Bell \[Tex. Civ. App.\] 13 Tex. Ct. 76. 89 S. W. 38. 70. Francis v. White \[Ala.\] 39 So. 174. 61. One who had treated certain lumber to remove a defendant from property sold as a part of his reality in previous litigation was estopped to claim It was personality, so show that the person procuring execution 5 Cur. Law. EXECUTIONS SS 15. 1397

_The sheriff"s deed."_--The sheriff is not bound to tender a deed before payment of the purchase money." A deed will not be presumed to have been made unless the purchaser shows that he went into possession under the sale and continued in possession." Where a sale of reality is made subject to the right of redemption, the issuance of a certificate of purchase is not a prerequisite to the execution of a sheriff's deed to the property sold." Reality being sold subject to redemption, the sheriff in office when the right to a deed accrues is the proper person to make the deed." The sheriff's deed as acknowledged is prima facie evidence of payment of the purchase money and of valid title in the grantees therein named." But to authorize a recovery on such a deed in an action of ejectment, it must appear that there was a valid judgment, execution, levy, sale and deed, and that defendant had an estate or interest in the land subject to execution." The deed relates back to and is controlled by the power conferred by the execution upon the officer making it." Where part of the property levied on is claimed as a homestead, the deed need not recite that the debtor was given opportunity to designate the portion he desired to claim as his exemption, though such recital is essential in the officer's return." Misrecitals in a deed will not defeat a recovery by the person holding it in an action of ejecentent brought by him." A deed which is void on its face cannot be reformed where the execution and proceedings thereunder contain the same imperfection."

SS 15. _Legal and equitable remedies against defective or improper levy or sale._"--A sale of land on execution issued from the circuit court on a justice's transcript is not subject to collateral attack on the ground that the justice's prior execution was not issued to the proper constable," nor on the ground that the justice's prior execution was returned before the return day." In Massachusetts the premature issuance of the execution renders it absolutely void, and hence open to collateral attack," but the general rule is that it is a mere irregularity."

_Injunction against levy or sale._"--The issuance of an execution on a default judgment entered contrary to an understanding between the attorneys," and the enforcement of an execution issued under a void order," may be enjoined. A suit to restrain service of execution on the ground that judgment by confession was entered in another court by mistake will not lie until correction of the record has been made by the court having control of it." Equity will not interfere in such case when the

did not at the time own the judgment. Un-der Code Civ. Proc. \*\*SS 242, 244, allowing in such proceeding new matter constituting a legal or equitable defense. Mawson v. Wermuth \[N. Y.\] 74 N. E. 829. **73**. See S C. L. 1406. **85**, 86. Ables V. Webb, 186 Mo. 233, 85 S. W. 838. **75**. Fact that it is issued within twenty-four hours after judgment contrary to Pub. St. 1882, c. 171, **SS 15**, 16. Washington Nat. Bank v. Williams \[Mass.\] 74 N. E. 470. **88**. See S 8m.C. **89**. See S 8C. L. 1408. **90**. Where both attorneys understood a justice case was to be continued, but plain-if it himself had a default judgment entered, and defendants' attorney did not learn of it title to C. M. Landon's property even though it is shown by extrinsic proof that the latter owned the property and conducted his business in the former name, and that the judgment was on a note given by him. Landon v. Morris \[Ark.\] 86 S. W. 672. **91**. Kessner v. Phillips \[Mo.\] 88 S. W. 66. **82**. Armstead v. Jones \[Kan.\] 80 P. 56. **83**. Landon v. Morris \[Ark.\] 86 S. W. 672. **84**. See S 8C. L. 1408. **85**, 88. Ables V. Webb, 186 Mo. 233, 85 S. W. 838. **87**. Fact that it is issued within twenty-four hours after judgment contrary to Pub. St. 1882, c. 171, **SS 15**, 16. Washington Nat. Bank v. Williams \[Mass.\] 74 N. E. 470. **88**. See S 8C. L. 1408. **90**. Where both attorneys understood a justice case was to be continued, but plain-if it himself had a default judgment entered, and defendants' attorney did not learn of it title to C. M. Landon's property even though it is shown by extrinsic proof that the latter owned the property and conducted his business in the former name, and that the judgment was on a note given by him. Landon v. Morris \[Ark.\] 86 S. W. 672. **92**. **93**. Hearn v. Canning \[R. I\] 61 A. 602.

judgment would not have been entered but for negligence of the party or his attorney.93 In a suit to restrain enforcement of a judgment, an allegation that plaintiff believes and is informed that defendant claims to own the judgment sufficiently alleges ownership.94

Equity will not enjoin a sale of land under execution issued on a judgment void on its face,95 but an injunction is the proper remedy when the defect in the judgment must be shown by facts outside the record.96 Existence of a meritorious defense is not essential if the judgment is without jurisdiction.97 In the absence of fraud,98 gross injustice, irremediable injury, or other ground of equitable jurisdiction, a court of chancery will not restrain a threatened sale under execution against one person of property claimed by another,99 though the latter has filed a bill to quiet title.1 A court of equity will never enjoin a levy upon and sale of personal property, unless it is of such peculiar and intrinsic value to the owner that its loss cannot be adequately compensated in damages.2 The ordinary remedy is by an action of trespass or other appropriate action in a court of law.9 An unregistered equitable owner of shares of stock may not restrain a levy and sale against the registered owner, where the levy and sale is of the stock as registered and transfers to the purchaser only the rights of the registered owner.\* Wrongful levy on books of a mercantile agency and threatened disclosure of their contents constitutes an irreparable injury, and such levy will be enjoined.9

\_Affidavits of illegality.--\_In Georgia, the sufficiency or validity of an execution or levy thereof may be tested by filing an affidavit of illegality, and until such affidavit is filed, an execution issued is a final process.9 An execution against property described as that of a certain named person, "executor," is presumed, nothing else appearing, to be against such person individually as owner.9 So, too, an affidavit of illegality wherein the same descriptive language is used, is presumed to be inter-

94. Phillips v. Norton \[S. D.J 101 N. W. \[owner. Barrell v. Adams, 26 Fa. Super. Ct. 727. 95, 96. Hennman v. Westheimer, 110 Mo. App. 191, 85 S. W. 101. 97. Schiele v. Thede, 126 Iowa, 398, 102 N. W. 133. 98. Failure to execute judgments when creditors saw improvements being made by others on the property is not fraud. West Jersey & S. R. Co. v. Smith \[N. J. Eq.\] 60 A. \[71a.\] 38 So. 602. Sale of shares of stock not enjoined, when it was not shown that property was of peculiar value or that irreparable damage would result. Boone v. Van Gorder \[Ind.\] 74 N. E. 4. 3. Florida Taking & Ice Co. v. Carney \[71a.\] 38 So. 602. 4. Construing Burns' Ann. St. 1901, $ 735. Boone v. Van Gorder \[Ind.\] 74 N. E. 4. 5. Sinsabaugh v. Dun, 214 11. 70, 73 N. E. 390. 6. Unless an execution issued upon foreclosure of a electrical mortgase be arrested by counter affidavit, it is final process. Ford v. Fargason, 120 Ga. 708, 48 S. E. 180. An execution issued on foreclosure of a laborer's release the property from such levy does not afford him an adequate legal remedy so as to preclude a right to an injunction to terrang the sale. Gale Mfg. Co. v. Sleeper \[Kan.\] 79 P. 648. Where it is clear that defendant in the judgement has no shadow of title or interest which can be sold, equity will restrain the sale in order to prevent the casting of a shadow on the title of the real

## 5 Cur. Law. Executions SS 16.

posed by such person individually as owner,\[8\] especially where it alleges that the property is held by him as an individual and not as executor for any estate.\[9\] Such affidavit should not therefore be dismissed on the ground that it shows that the affidant had no interest in the property at the time of the levy, and that only the executor of the estate referred to could interpose the affidavit.\[10\] The only persons authorized to file an affidavit as against an execution issued on foreclosure of a chattel mortgage are the mortgagor, his special agent or legal representative, and his creditors.\[11\] When such an execution is levied upon the mortgaged property and a claim is interposed thereto, the claimant, upon trial of the claim, cannot amend the same by alleging that the mortgagor is not indebted to the mortgage nor introduce evidence tending to show it.\[12\] Where the ground of an affidavit of illegality interposed to the levy of a common-law execution is that it has been partially paid, the amount admitted to be due must be paid in order to stay the execution.\[13\] But where the ground of the illegality is that the execution has been fully paid, the sheriff is bound to accept it, and await the result of the trial of the issue so made.\[14\] If, upon trial, it should be proved that the execution has been only partially paid, the plaintiff would be entitled to a verdict that the execution proceed for the balance shown to be really due thereon and not for the amount apparently due from the execution itself.\[15\] When an affidavit of illegality is interposed to the levy and returned to a county court for trial, no notice of the time and place of hearing need be given to the party filing the affidavit.\[16\] Where an execution has been levied on the property of the principal debtor, he cannot resist it by an affidavit of illegality setting up that the judgment is void as against the sureties named as co-defendants therein.\[17\]

\_Setting aside the sale.\[18\]--\_A court may, before a deed has issued, set aside an execution sale and the certificate of sale, upon motion made before the time of redemption expires and upon notice to the purchaser and parties to the action.\[19\] A purchaser who has parted with his interest cannot complain of want of notice of a motion to vacate the sale.\[20\] Inadequacy of price is not alone ground for setting aside a sale;\[21\] but gross inadequacy, coupled with even slight evidence of irregularity or fraud, may be.\[22\] A sale of property previously conveyed by the debtor in fraud of creditors will not be set aside at the instance of the fraudulent grantee on the ground of inadequacy of price.\[23\]

Restitution on reversal of judgment.\[24\]--Where payment of a judgment has been coerced by execution and the judgment is afterwards reversed and the suit

$$\\begin{array}{l}\\mbox{descripttive. Stephens v. Atlanta, 119 Ga.}\\ \\mbox{\\tt\\tt\\small$66$, 46 S. E. 872.}\\ \\mbox{\\tt\\small$8$, 9, 10. Stephens v. Atlanta, 119 Ga. 666,}\\ \\mbox{\\tt\\small$46$ S. E. 872.}\\ \\mbox{\\tt\\small$11$, 12. Ford v. Fargason, 120 Ga. 708, 48}\\ \\mbox{\\tt\\small$5. E. 180.}\\ \\mbox{\\tt\\small$13$, 14, 15. Equitable Morty. Co. v. Mont-}\\ \\mbox{\\tt\\small$fort, 121 Ga. 696, 49 S. E. 715.}\\ \\mbox{\\tt\\small$16$. Berry v. Jordan, 121 Ga. 537, 49 S. E. 607.}\\ \\mbox{\\tt\\small$37$. Levadas v. Beach, 119 Ga. 613, 46 S,}\\ \\mbox{\\tt\\small$E. 864.}\\ \\mbox{\\tt\\small$18$. See $\\lx@sectionsign$ C. L. 1407.}\\ \\mbox{\\tt\\small$39$. International Packing Co. v. Clochw-}\\ \\mbox{\\tt\\small$wicz, 114 IIL App. 121. The court entering judgment by confession may upon a property showing quash a verfit of execution issued thereon, set aside a sale, and open the judgment, though the"purchaser was not a party to the suit, where it appeared that such purchaser made the affidavit attached to the cognovit and deposed that he was the duly1400

EXEMPTIONS SS 1. 5 Cur. Law. dismissed, the party paying has a right to restitution without regard to the merits of the suit or whether the dismissal operated as a retravit,26 and is entitled to interest on the amount paid from the time of the reversal.26

EXEMPTIONS AND ADMINISTISTATORS; EXEMPTARY DAMAGKS, see latest topical index.

## 1 The right to exemptions generally

- 1. The Right to Exemptions Generally
- 1. 8 5. Loss of Exemption Rights (1403).
- 8 6. Selling or Transferring Exempt
- 2. Persons Who May Claim (1401).
- 3. Geods and Other Chatel Properties
- 6. Two the Right is Claimed and ExEMPT (1402).
- 8 4. Debts and Liabilities Inferior or Sn-
- 9 S. Recovery for Selling Exempt Propertor to Right of Exemption (1402).
- 10. 11. The right to exemptions generally.27-Exemption laws should be liberally construed in favor of the debtor.28 They have no extra territorial effect; 29 and relate to the remedy and not to the contract.29 Hence when sued abroad, the debtor cannot claim the exemptions allowed by his domicile 21 even though his creditor also resides there if the debt has no situs at the domicile.29 But it has been held that garnishee process in a state foreign to all the parties will not reach wages earned and exempt at the domicile.30 An exemption from "execution" will include garnishment and other mesne process.29 Being remedial, exemption laws may apply to existing judgments,28 and an extension of the right does not impair contract obligations.29 Where the constitution directs the passage of laws protecting "home-stead and other property," a limitation of legislative power to such property is not implied 27 but its power is plenary.29 A nonforfeitable exemption may be conferred despite a constitutional provision that a debtor may waive exemptions.29 State exemptions are recognized in bankruptcy courts, but are enforced according to bankruptcy procedure.29 The provision of the Bankruptcy act that the bankrupt may save his life insurance by paying its surrender value, if any, to the trustee, is to be read with the provision excepting exempt property and that adopting the state exemption laws; hence whatever life insurance policies are exempted by the state are beyond the trustee's control.29

25. Florence Cotton & Iron Co. v. Louis-ville Banking Co. \[Ala\] 36 So. 456. Where dishee at the time of the creation of both lands is sold under judgment on a secret facias sur mortgage and on appeal without supersedeas the judgement is reversed, restitution such an incident and condition of the debt is made only of the money or price for which the lands were sold. Proceeds of the sale, after deducting costs and lhens discharged thereby, are to be distributed to defend. Lengert v. Channell, 26 Pa. Super. Ct. 626.

- 26. Florence Cotton & Iron Co. v. Louis-ville Banking Co. \[Ala\] 36 So. 456. Where dishee at all residents and doing business in sur mortgage and on appeal without supersedeas the judgement is reversed, restitution such an incident and condition of the debt from the employer that it will follow the debt if the debt if the debt follows the person of the garnishee into another state, and attach it-self to every process of collection in any state, unless jurisdiction is obtained over the person of the principal debtor. Baltimore, etc., R. Co. v. McDonald, 112 Til. App. 391.
- 34. Code, & 493: Goodwin v. Claytor, 137
- 37. See 5 C. L. 1408.
- 38. Theyer v. Halberstadt, 44 Misc. 408, 89
- 39. N. Y. S. 1019.
- 39. Richardson v. Kaufman \[Ala\] 39 So.
- 40. 38. 38. Holden v. Stratton, 198 U. S. 202,
- 41. Law. Ed. 1018.
- 42. Richardson v. Kaufman \[Ala\] 39 So.
- 43. Richardson v. Kaufman \[Ala\] 39 So.
- 44. Lipman v. Stein \[C.-C. A.\] 134 F. 235: Burke v. Guararache Title & Trust Co. \[C. C. A.\] 134 F. 562. See full treatment in Bank-
- 45. 14. 15. 5. 5. 16. 5. 16. 5.
