## Chapter 1 A complete encyclopaedia of new law

Volume I.
C9363

Copyrightated, 1903, 1903, 1903, 1903, 1904, 1904, 1904, by

John B. West Company.

TOPICAL INDEX.

\[REFERENCES ARE TO Pages.\]

A. ADMINISTRATION, see Estates of Decedents, 1090; Trusts.

ABANDONNIENT, see Easements, 967; Highway, etc.; Dismissal, etc., 937; Property; Marine Insurance.

\*\*ABatement AND REVIVIA, 1. ADOPTION OF CHILDREN, 26. ADRREVIATIONS, see Contracts, 627; Pleadings, Indictments, etc.; Names, etc., and the like. ADRUCTION, 6. ADRETING CRIME, see Criminal Law, 829. ADRIDE THE EVENT, see Costs, 808; Parent into Court; Stay and Supersedes; Stipuations; Undertakings. ABODE, see Domile, 951. ADROTION, 6. ADRSCONDING DEBTORS, see Attachment, 339; Civil Arrest, 526; Bankruptcy, 311; Limitations of Actions.

\*\*ABSTRACTS OF TITLE, 7. ADRUSE OF PROCESS, see Process. ABUTING OWNERS, see Highways and Street; Eminent Domain, 1003; Municipal Corporations. ACCCEPTANCE. Titles treating of the object of an acceptance should be consulted. See Contracts, 627; Deceds, 909, and the like. ACCESSION AND CONFUSION OF PROPERTY, 7. ACCESSORIES, see Criminal Law, 829. ACCIDENT--in equity, see Mistake and Accident--resulting in legal injury, see Master and Servant; Negilience; Carriers. 421; Damages, 832; Insurance. ACCOMMODATION PAPER, see Negotiable Instruments. ACCCOMPPLICES, see Criminal Law, 829; Indictment and Prosecution; Evidence, 1186, 13. ACCORD AND SATIFICATION, 8. ACCOUNTING, Action FOR, 13. ACCOUNTING STATED AND OPEN ACCOUNTING, 15. ACCRETION, see Riparian Owners. ACCUMULATIONS, see Trusts; Perpetuities. **ACKNOWLEDENTS, 17. ACTIONs, 20. See Causes of Action, etc., 496; Forms of Action; Pleading (joinder of actions). ACT OF GOD, see Carriers, 421; Contracts, 626; Insurance: Negilience. ADDTIONAL ALLOWVANCES, see Costs, 808. ADRETING OWNERS, 21. See, also. Fences, 1206. ADJOURNMENTS, see Courts, 824; Continuance and Postponement, 620.**

## 6. Conclusion

In this paper, we have proposed a novel approach to the problem of detecting the number of detected CART TRUSTS, see Railroads.

CASE, ACTION ON, 495.

CASE, AGREED, see Appeal and Review, 85.

Submission of Controversy,

CASE CERTIFIED, see Appeal and Review,

89.

CASE SETTLED, see Appeal and Review,

134.

CASH, see Payment and Tender.

CATCHING BARGAN, see Assignments, 225.

Features of Deededings, 109; Life Estates,

Reminders and Reversions; Fraud and

Cudue Influence.

Causes OF ACTION AND DEFENSES, 496.

CENTENTER, 497.

CENSUS AND STATISTICS, 499.

CERTIFICATE OF DOUBT, see Appeal and

Review, 85.

CERTIFICATES OF DEPOSIT, see Banking

and Finance, 302; Negotiable Instruments.

CERTIFICATE, 499.

CHALLENGESS, see Jury.

CHALLENGESS AND VACATION, see Courts,

824; Judges.

CHALL/CERTITY AND MAINTENANCE, 505.

CHANGE OF VENUE, see Venue, etc.

CHARACTER EVIDENCE, see Evidence,

1136; Witnesses.

CHARITABLE AND CORRECIONAL INSTUTIONS, 507.

CHARTIALE GIFTS, 510.

CHARTIER PARTY, see Shipping and Vater

Tranfic.

CHATIEL MORTGAGES, 513.

CHATIEL, see titles treating of various

fights in personality other than choses in

action. Distinction between chattels and

reality, see Property, see Partoulas,

CHEATS, see False Pretenses, 1203; Fraud,

and the like.

CHIECKS, see Banking, etc., 302; Negotiable

Instruments.

CHILDREN, see Parent and Child; Infants,

Descent and Distribution, 922; Wills.

CHINSES, see Allens, 68, 69.

CITATIONS. see Process: Estates of Dece.

dents, 1090; Appeal, 85.

CITIZENS, 526.

CIVILARRENT, 526.

CIVIL DAMAGE ACTS, see Intoxicating Liquors.

CIVIL DEATH, see Convicts, 708,

**CIVIL RIGHTS, 530.**

CIVIL SERVICE, see Offcers and Public Employs.

CLEARING HOUSES, see Banking and Finance, 289.

**CLERKS OF COURT, 521.**

CLOUD ON TITLE, see Covenants for Title,

825; Quietling Title; Vendor and Purchas-

er.

CLUBS, see Associations and Societies, 233.

CODICILS, see Willis.

COINOVIT, see Confession of Judgment, 558.

**COLLEGES AND ACADEMIS, 534.**

COLLISION, see Shipping and Vater Traffic.

COLOR OF TITLE, see Adverse Possession,

36.

COLMIATIONS AND MONPOOLIES, 533.

COLMIerences, 533.

CORPROATIONS, 110.

CORPSES AND BRURAI, 807.

CORPUS DELICII, see Criminal Law, 827; Inditment and Prosecution.

CORROBORATIVE EVIDENCE, see Evidence, 1186; Inditment and Prosecution; Writnesses; Trial (exclusion of cumulative evidence); Divore, 945; Seduction; Rape.

CORTS, 808.

COUNETREFFITING, 816.

COUNETREYIEEE, see Trial (reception and exclusion of evidence): New Trial (newly discovered cumulative evidence).

COUNETREYIEEE, see Criminal Law, 829.

COUNETREYIEEE, see Counties, 816; Highway and Streets; Towns; Townships.

COUNETY BEAT, see Counties, 816.

COUNETING CARS, see Master and Servant (injuries to servants); Railroads (statutory regulations).

COUNPONS, see Bonds, 343, and titles relating to public or private corporations which customarily issue bonds (interest coupons); Negotiable Instruments; Carriers (coupon tickets), 421.

COUNET COMMISSIONERS, see Courts. 824; Judges.

COUNETS, 824.

COUNANT, ACTION OF. No cases have come to the notice of the editor during the time covered.

COVENANT, see titles relating to instruments wherein covenants are embodied, e. g. Contracts, 626; Decads of Conveyance, 908; Landlord and Tenant (leases); Vendor and Purchaser (land contracts); see Buildings (covonants restrictive), 404.

COVENANT's FOR TITLE, 825.

COVERITURE, see Husband and W1fe.

CREDIT INSURANCE, see Indemnity; Insurance.

CREDITORS' SUIT, 826.

CRIMINAL CONVERSTATION, see Husband and Wife (civil liability); Auditory (crime), 29; Divore (ground), 945.

CRIMINAL LAW, 827.

CROPS, see Agriculture, 87; Emblements and Natural Products, 1000; Landlord and Tenant (renting for crops); Chattel Mortages (mortages on crops), 513.

CROSS BILLS AND COMPLAINTS, see Equilty, 1048; Pleading.

CROSSINGS, see Highways and Streets; Railroads.

CRUEL AND UNUSUAL PUNISHMENTS, see Constitutional Law, 599; Criminal Law, 829.

CRUELITY, see Animals, 84; Divore, 495; Infants; Parent and Child.

CUNICATIVE EVIDENCE, see Trial (reception and exclusion of evidence): New Trial (newly discovered cumulative evidence).

CUNICATIVE PUNISHMENTS, see Criminal Law, 829.

CUNULATIVE VOTESS, see Corporations, 766.

CURATIVE ACTS, see Statutes.

CURTESS, 830.

CUSTOMS AND USAGES, 830.

CUSTOMS LAW, 831.

D.

DAMAGES, 832.

DAMNUM ARSQUE INJURIA, see Causes of Action, 496; Torts; compare Negligence.

DAMS, see Navigable Waters; Riparian Ownners; Waters and Water Supply.

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

DATS, see Holidays; Sundays; Time.

DEAD BODIES, see Corpses and Burial, 807.

DEAF MUTES. No cases have been found during the period covered. Compare Fraud and Undue Influence; Incompetency; Negligence.

DEATH AND SAVIVORSHIP, 865.

DEATH BY WRONGFUL ACT, 865.

DEBENTURES, see Corporations, 710; Railroads.

DEBT, see titles descriptive of the various instruments and agreements predicated on debt or evidencing debt (Accounts Stated, etc., 15; Contracts, 626; Bonds, 343; Negotiable Instruments; Chattel Mortages. 513; Mortages; Implied Contracts, and the like). also titles relating to proceedings for liquidation of affairs of persons or corporations (Bankruptcy, 311; Assignments for Benefit of Ceritors, 231, 232; Corporations, 159; Estates of Decedents, 1101-1110; Partnership; and the like). titles relating to transfer or discharge of debt (Assignments, 229; Accord and Satisfaction, 8; Novation Releases; and titles relating to specific kinds of debt or security), also titles descriptive of remedies for collection of debts (Assumpst, 236; Creditors' Suit, 826; Forms of Action; and code remedies as applied in substantive titles already enumerated) also titles relating to corporations or associated persons, or to classes of persons not sul juris (Associations, etc., 233; Partnership; Corporations, 795; Infants; Husband and Wife; Inasne Persons; Guaralingh; Trusts, and the like).

DEBT, **ACTION OF. No cases have been found during the period covered.**

DEBTS OF DECEDENTS, see Estates of Decedents, 1090.

DECEIT,
**DEPARTURE**, see Pleading.

**DEPOSITIONS**, 917.

DEPOSITS, see Warehousing and Deposts; Banking, etc., 802; Payment into Court.

DEPUTY, see Officers and Public Employes, also titles relating to particular offices as Sheriffs, etc.

**DESCENT AND DISTRIBUTION**, 922.

DETECTIVES, see Municipal Corporations (police organization); Officers and Public Employes; Licenses (private detectors); and as to their credibility as witnesses, see Witnesses; Indictment and Prosecution; Evidence, 1136; Divcore, 945.

DETERMINATION OF CONFLICTING CLAIMES TO REALY, see Quieting Title.

**DETINLE**, 924.

DEVIATION, see Carriers, 421; Marine Insurance; Shipping and Water Traffic.

DILATORY PLEAS, see Abatement and Revival, 1; Pleading.

**DIRECTING VERDICT AND DEMURER TO EVIDENCE**, 925.

DISCLAIMERS, see Causes of Action and Defenses, 496; Costs, 808; Pleading.

DISCONTINANCE, see Dismissal and Non-suit, 937.

**DISCOVERY AND INSPECTION**, 930.

DISCRETION, see articles treating of procedure or relief resting in discretion. Review or control of discretion, see Appeal and Review, 170; Mandamus: Prohibition; Certiorari, 499.

DISFRANCHISEMENT, see Elections, 981.

**DIMINSAL AND NONSULT**, 937.

**DISCORDIY AND CONFUCT**, 945.

**DISCORDIY Houses**, 945.

DISSOLUTION, see Corporations, 735; Partnership.

DISTRESS, see Landiord and Tenant.

DISTRICATATTORNEYS, see Attorneys and Counslors, 279.

DISTRICT OF COLUMBIA, see Territories and Federal Possessions.

**DISTRBRANCE OF PUBLIC ASSEMBLAGE**, 945.

DIVIDENDDS, see Corporations, 710; Bankruptcy, 311; Assignments, etc., 222; Insolvency.

DIVISION OF OPINION, see Appeal and Review, 85; Judgment; Stere Decisions.

**DIVORECE**, 945.

**DIOCKETS, CALENDARS, AND TRIAL LISTs, 955.**

DOCUMENTS IN EVIDENCE, see Evidence, 1153; Indictment and Prosecution, 954.

**DOWER**, 956.

\*\*DRAINS, see Severs and Drains; Waters and Water Supply; Public Works, etc.

DRUGS; DRUGGISTS, see Medicine and Surgery; Polisons.

DRUNKENNESS, see Intoxicating Liquors; Habitual Drunkards; Incompetency.

**DUEINGING**. No cases have been found during the period covered.

DUE PROCESS, see Constitutional Law, 591.

DUPLICITY, see Pleading.

**DURES**, 962.

DYING DECLARATIONS, see Homleide.

E.

\*\*EASEEMENTS, 962.

ECCLES
**EXTORION,** 1198. See, also, Blackmail, 343; Threats,

**EXTRADITION,** 1199.

F. F. F.

## Current Law.

(Copyrightated 1963, by John B. West Company.)

Volume I. AUGUST, 1963. Number 1.

**ABSTRACT AND REIVIVAL.1**

It is not attempted here to treat of criminal prosecutions,1 nor of bills of revivor1 or revival of judgments1 or statute-barred causes of action.1 Various writs are abatable for defects, which matters are not germane to this title.1

Footnote 1: The term $lpha$ is not a term of the form $lpha$, but it is not a term of the form $lpha$.

SS 1. \_Causes for abatement.--\_The pendency of another action1 having the same object1 and the same parties1 and prior in time10 is cause for abatement. It makes no difference that the prior one may prove ineffectual if it be legally capable of affording a remedy:11 nor will the jurisdiction of the former court be determined on a plea.12

Footnote 1: The term $lpha$ is not a term of the form $lpha$, but it is not a term of the form $lpha$.

If discontinued or otherwise terminated, the suit or action is no longer pending.18 It is still pending though appealed,14 though it is not so regarded where, for instance, only one item of a judicial accounting is appealed,15 nor is it sufficient to merely allege that it has been appealed from and is incorrect.16 What

Footnote 1: The term $lpha$ is not a term of the form $lpha$, but it is not a term of the form $lpha$.

1. _Abatement of legacles, see Wills: of a ded of trust to secure it, held not to state abatable matter since the cross bill did not ask for a recovery of the debt--Walker v. Washington Title Ins. Co., 19 App. D. C. 576._

1. _Judgments._

1. _Limitation of Actions._

1. _Attachment, and like titles._

1. _Kansas City S. R. Co. v. Railroad Commission, 106 La. 583; two mandamus proceedings--U. S. v. N. & W. R. Co., 114 Fed. 882; foreign garnishment not cause to abate but reason for stay--Marsarum v. Moon (N. J. Ch.) 53 Atl. 179._

1. _Judgments._

1. _Limitation of Actions._

1. _Attachment, and like titles._

1. _Kansas City S. R. Co. v. Railroad Commission, 106 La. 583; two mandamus proceedings--U. S. v. N. & W. R. Co., 114 Fed. 882; foreign garnishment not cause to abate but reason for stay--Marsarum v. Moon (N. J. Ch.) 53 Atl. 179._

1. _Judgments._

1. _Limitation of Actions._

1. _Attachment, and like titles._

1. _Kansas City S. R. Co. v. Railroad Commission, 106 La. 583; two mandamus proceedings--U. S. v. N. & W. R. Co., 114 Fed. 882; foreign garnishment not cause to abate but reason for stay--Marsarum v. Moon (N. J. Ch.) 53 Atl. 179._

1. _Judgments._

1. _Kansas City S. R. Co. v. Railroad Commission, 106 La. 583; two mandamus proceedings--U. S. v. N. & W. R. Co., 114 Fed. 882; foreign garnishment not cause to abate but reason for stay--Marsarum v. Moon (N. J. Ch.) 53 Atl. 179._

1. _Judgments._

1. _Kansas City S. R. Co. v. Railroad Commission, 106 La. 583; two mandamus proceedings--U. S. v. N. & W. R. Co., 114 Fed. 884; foreign garnishment not cause to abate but reason for stay--Marsarum v. Moon (N. J. Ch.) 53 Atl. 179._

1. _Judgments._

1. \_Kansas City S. R. Co. v. Railroad Commission, 106 La. 583; two mandamus proceedings--U.

## 2 abatement and revival.

is a pendency may also be ascertained in other titles,17 and further authorities and precedents upon identity of causes of action may be found elsewhere.18

Improper splitting of a cause of action is a ground of abatement,19 as is a misjoinder or a nonjoinder;20 but, when the law of the place allows foreign contractors to be severally sued, they may be so sued in the forum.21 Under acts permitting continuance in the original plaintiff's name, he may recover in his own name though he has transferred in part,22 and the objection that plaintiff is not the real party in interest is untenable.23

Death abates the action though the statute reads no action shall "abate," etc., but it may be "revived."24 Under the code practice, equitable actions abate by death the same as law actions.25

Mandamus to enforce an officer's personal rather than official duty does not abate by expiration of his term.26

Changing the personnel of an official board which has corporate power of succession does not change its legal existence.27 Nothing short of a final discharge of receivers will abate an action against them.28 The death of one co-plaintiff29 or co-defendant in tort does not destroy the action either at statute or common law.29

**SS 2.**\_Raising objections; waiver.31--They are waived by going to trial,32 and the plea must precede an answer to the merits33 or a motion for continuance34 or entry of an office judgment, unless the cause of abatement arise subsequently,35 but it may be made without further time given to answer.36 A former officer of a defunct corporation served in proceedings against it may object that the dissolution has abated the action.37 One to the privilege of defendant may be made on answer without special appearance.38

**17.**: Actions: Limitation of Actions (as to --Finalsyson v. Love (Fla). $3 So. 306. Al-when "commenced"). 18.**: Election of Remedies; Former Adjudulatified to receive service should with certainty alleges that such was the cause when service was made--Ohio Oil Co. v. Griest (Ind. App.) 65 N. E. $24. An allegation that an action on a mortrage debt was pending, is demurable in a foreclosure action unless it alleges that the other action was "without leave of court" (Code Civ. Proc. $ 1628)--Sahchek v. Donohue, 17 Apr. Div. (N. Y.) 231.**: In Indiana If the premistry of the action does not appear on the face of the complaint the statement should be urged by answer--Adisabeh. 155 Cal. 21, 67 Pae. 140.**:
**24.**: 2 Ball. Ann. Codes & St. 4837; Overlock v. Shinn (Wash). $8 Pac. 436.**:
**25.**: Overlock v. Shinn (Vash). $8 Pac. 436.**:
**26.**: Kas v. State (Neb.) $8 N. W. 716.**:
**27.**: Murphy v. Utter, 186 U. S. 95, 46 Law. Ed. 1070.**:
**28.**: Order to receivers to surrender property to owner--Cowen v. Merriman, 17 App. D. C. 186.**:
**29.**: Heald v. Wallace (Tenn). $1 V. W. 80.**:
**30.**: (Pub. St., 156, 112). a statute providing for the continuation of an action in which there are several plaintiffs or defendants. If the cause be one which survives, means that it must be one which survives to the remaining plaintiffs or against remaining defendants--Brown v. Kellogg (Mass). $6 N. E. 378; Duls v. Fisher, 23 Ky. Law. R. 1425.**:
**31.**: Consult, also, Parties, Pleadings, Appeal and Review (Reversible Error). A plea alleging that decedents interest was a homnetead held sufficient to raise the question that the administrator did not succeed to it --Finalsyson v. Love (Fla). $3 So. 306. Al-legations that the person served was not qualified to receive service should with certainty alleges that such was the cause when service was made--Ohio Oil Co. v. Griest (Ind. App.) 65 N. E. $24. An allegation that an action on a mortrage debt was pending, is demurable in a foreclosure action unless it alleges that the other action was "without leave of court" (Code Civ. Proc. $ 1628)--Sahchek v. Donohue, 17 Apr. Div. (N. Y.) 231.**: In Indiana If the premistry of the action does not appear on the face of the complaint the statement should be urged by answer--Burn's Rev. St. $46; Middaugh v. Wilson (Ind. App.) 65 N. E. 555.**:
**32.**: Yarbrough v. De Martin (Tex. Civ. App.) 67 S. W. 717. Plea of another action pending must be ruled on--Foster v. Foster, 24 Ky. Law R. 1396.\*\*:
**33.**: Prete v. Garvin (Tex. Civ. App.) 69 S. W. 895; Huntington Mfg. Co. v. Schonfeld, 28 Ind. App. 95; Baker v. Union Stock Yards Nat. Bank (Neb.) $8 N. W. 269. Answering

## Abstract and revival.

United States courts may require the objection to be by plea though under the local practice it is to be made by answer.\[39\]

Parties not joined must be named and shown to be within the jurisdiction,\[40\] and if jurisdiction of the court be assailed it must be denied and also alleged to be in another court.\[41\] A general allegation that the former court had jurisdiction under the declaration filed sufficiently avers it, and the jurisdiction is not a matter for determination.\[42\]

Evidence on the merits may be submitted with that on the question under the plea so that the jury may assess the damages if they find for plaintiff on the plea.\[43\] Not only pleadings but also the evidence and the judgment in another suit pending on appeal may be considered to ascertain its identity with the one at bar.\[44\] Slight evidence will rebut an inference of veratiousness in a second action.\[45\]

## 1 3. Survivability of causes of action.\[46\]

Since it affects a right, the law of the place and not of the forum governs.\[47\] Survival does not depend on the bringing of suit before the injured person dies.\[48\] When a cause is in judgment, it survives, though an appeal be pending from an order granting a new trial.\[49\] An official action does not abate by the death of plaintiff officer.\[50\] Personal actions in tort do not survive at common law.\[51\] An action is not ex delicto which seeks to cancel conveyances in which an agent had profited adversely to his principal and to enforce a trust thereon, though the same facts might have sustained an action in tort.\[52\] Personal injuries which by some statutes are made to survive will include such injuries by a railroad company.\[53\] A law attaching survivability to causes of action for personal injury is not limited by a law giving a right of action for damages resulting from the death of a person by defend-ant's wrongful act, hence recovery under the former act may include damages for pain, suffering, expenses and losses.\[54\]

Criminal conversation and loss of society is a "damage to the person" which dies with the person.\[55\] So is an action for mental anguish due to delaying a telegram,\[56\] and malicious prosecution, though business and property be consequentially damaged.\[57\] Negligence in exposing a servant to danger of an assault fs an "action for assault" which abates.\[58\] Conspiracy to defeat a judgment \[59\]

## 2 **Whelan v. Rio Grande W. R. Co., 111**

Larsh L. T.-R. 189, discussed 16 Harvard Fed. 326.

In Tennessee, allegations of fact giving the right to an attachment in equity must Co., 111 Fed. 708.

be denied by plea--Templeton v. Mason, 107

Tenn. 625.

40. Cone v. Cone, 61 S. C. 512. Allegations that a chattel mortgage was such that the right to the security and to enforcement of fit vested in plaintiff with another does not plead his nonlognider in replivin.--Swift v. Bank o\* Washington, 114 Fed. 643.

01. Kahn v. Southern B. &'L, Ass'n, 116 Ga. 45.

01. Wilson v. Atlanta, K. & N. Ry. Co., 115 Ga. 171.

01. Italian-Swiss Colony v. Pease, 194 III.

01. U. S. v. N. & W. Ry. Co., 114 Fed. 682.

01. A mere affladvit will--Citizens' St. R. Co., V. Shepherd (Ind. App.) 62 N. E. 300.

01. Where a seduced woman was not confined until after the death of her father, the mother cannot recover because the right to the daughter's services at the time of the tort was in the father--Hamilton v. Long, 86

## 4. Abstract and revival

creidtor is not a tort to the judgment as property, and hence dies.\[89\] An action to recover damages under the statute against unlawful trusts and combinations is not abatable under a statute applying to personal torts.\[80\] Both by common law and the Virginia statute, an action to recover money from an official, which was paid under protest to prevent an unlawful seizure, survives him.\[61\] A stockholder's representatives may recover from directors for deceit by which a purchase of stock was induced.\[62\] In New York a bank may sue administrators for negligence of an officer.\[68\]

The death of the injured person does not abate the liability to punitive damages.\[64\] In Tennessee, if all the persons entitled to benefit of an action for wrongfully causing death be themselves dead, the action abates.\[65\] The contrary is the rule in Kentucky\[68\] and Pennsylvania.\[67\]

Actions against a corporation do not survive its dissolution by virtue of statutes authorizing continuance of actions against executors of wrongdoers.\[68\] A corporation dissolved by repeal of its charter is not within a provision saving the right to sue corporations which expire.\[69\] A law providing that vested rights shall not be impaired by the legislature when it repeals a charter does not protect causes of action against the corporation from dying with its dissolution.\[70\] Not even a bill to review a decree entered before the dissolution will lie against a defunct corporation.\[71\] The action does not die with the civil death of defendant.\[72\] A partnership's cause of action survives its dissolution.\[78\]

Contempt to enforce a decree is not a criminal proceeding which abates on defendant's death.\[74\]

A surviving joint contracting party may sue.\[78\] Though a creditor's right to sue fraudulently preferred creditors may have abated, he may proceed with the action against other fraudulent attaching creditors.\[76\]

## 5.4. _Revival and continuance_

Revivor by motion under the New York Code is a substitute for revior by bill and adopts the rule as to laches and limitations by analogy. Mere lapse of time alone is not enough. It is allowable at discretion, after the period of limitation, where the cause stands on an interlocutory judgment.\[77\] Reasonable time will be given if there has been no

19. Jenks v. Hoang. 179 Mass. 583.

01. Code Clv. Proc. 9 455; Cleland v. An-

by re-enacting the previous laws, omitting

(Neb.) **81 N. W. 806**,

61. Code Clv. 1887, 9 2655; Patton v. Brady,

184 U. S. 608, 46 Law. Ed. 713.

62. Solvers v. Thompson, 73 App. Div. (N. Y.) 562.

01. Seventeenth Ward Bank v. Smith, 67 Appl. Div. (N. Y.) 228.

01. Where "trespasser" has died--Code.

1917; Wagner v. Gibbs (Mins.) 31 So. 431. In Texas, where personal injuries survive, the recovery may include mental anpush and pain suffered by deceased to the time of death--Gulf. C. & S. P. R. Co. v. Moore (Tex. Civ. App.) 68 S. W. 559.

65. Sander's Adm'x v. L. & N. R. Co., 111 Fed. 408.

01. Thomas' Adm'r v. Maryville Gas Co.,

23 Ky. Law R. 1878.

67. Haggerv v. Pltston, 17 Pa. Super. Ct. 151.

01. But in New York former directors may be sued after dissolution--Shayne v. Byening Post Pub. Co., 168 N. Y. 70. In Kentucky the law has been repealed allowing corporations to be sued after dissolution for the purpose of winding up their affairs.\[69\]

01. Apply. (N. Y.) 5, citing many cases:

01. Jenks v. Hoang. 179 Mass. 583.

01. Code Clv. Proc. 9 455; Cleland v. An-

01. Code Clv. Proc. 9 455; Cleland v. An-

01. Code Clv. Proc. 9 455; Cleland v. An-

01. Code Clv. Proc. 11 850; Cleland v. An-

01. Device V. Brady, 1850; Cleland v.

## ABatement and revival

delay." It may be allowed against administrators who have appeared, though the short statute would but for such appearance have run." A continuance "on motion" against an administrator or transferee must be upon notice."

_The new party_ must ordinarily be brought in," but in many states substitution of a pendente litte transferee is unnecessary." An action to compel a guardian to account may be continued without substitution, or substitution may be made upon suggestion, since the "cause of action" is one which survives under the New York Code." Succession in office is a "transfer of interest" other than death, admitting of a continuance in the name of the original party."

A widow who is sole beneficiary of the will is within a provision that "heirs" may continue when there is no administration and no need for one." The administrator of the only person entitled to recover for wrongful death of another may continue the action." Actions on simple contract debts are not to be revived against heirs." In Indiana a corporation director's statutory liability is enforceable against his administrator." The administrator and heirs may, in Massachusetts, rescind a conveyance obtained by fraud." The successor in office of an official party and not a personal representative must continue the action." The "right of action" after appeal is the right to reverse the judgment. It survives to co-defendants under the statute."

_New pleadings_ are not always essential." If one municipal organization succeeds another with no change in name, population or territory, the action proceeds without change in pleadings." Executors should continue the action "as" executors."

_Subject or object of action revived._--If the cause of action changes pendente

- 78. TIIghman v. Paxson Co., 115 Fed. 906; Same v. Foundry Co., Id.
- 79. Phil & Read C. & I. Co. v. Butler
- 88. "A11 causes
- not otherwise (Mass.) 63 N. E. 949.
- 80. Mills, Ann. Code, 15: Symes v. Charlotte (Loh.) 62 N. E. 1006.
- 89. Parker v. Simpson, 180 Mass. $34.
- 756: Betts v. De Seding (Sup.) 80 N. X. Sump. 79.
- 81. Symes v. People (Colo. App.) 69 Pac.
- 81. Under the act of amendments and jeozfalls, the name of another person may be substituted for that of the nominal plaintiff.
- 87. May or may not be done--Parker v. Taylor (Neb.) 91 N. V. 537. In New York an ancillary receiver of a foreign corporation need not be substituted unless so ordered.
- 86. -

lite, but before the death, the revival will be on the substituted new cause of action."

**ABDUCTION."**

In Tennessee it is no defense that the girl requested an elopement."

The indictment need not allege the chastity of the woman when her unchastity is mere matter of defense." An allegation of a taking for "prostitution and con-eubinage" is not double but merely charges two intents to the same offense which is proper." For the purpose of proving age the inscription over the grave of one born at the same time as the abducted female may be received.1 The prosecutri should be corroborated.2 Her testimony that she was taken to a certain place is not sufficiently corroborated by the fact that she was seen there with accused and others," but the testimony of another woman alleged to have also been abducted at the same time is admissible for corroboration.4 An instruction is erroneous which submits only a taking for coneubinage under an indictment for taking for coneubinage, prostitution or marriage. The same is true of one which requires an acquittal if the taking was simply for the purpose of "intercourse alone" since that excludes a taking for marriage." Unchastity being a defense is not for the state to disprove, but for accused to prove and it is sufficient that his evidence raises a reasonable doubt.4

different methods of producing the abortion \[13\]. An allegation of the specific intent sufficiently negatives the administering of medicine for any lawful purposes of saving life \[14\]. Proof of a time prior to that charged is no variance \[15\]. Motive may be shown by the fact that accused was the father and it is admissible that he proposed to others that they have intercourse with the woman \[16\]. Intent may be proved by admissions, acts of concealment or other circumstances \[17\], or inferred from the entire transaction \[18\]. The woman may testify whether in her opinion accused intended to produce an abortion or as he claimed to treat for a venereal disease \[19\]. Reputation for morality and decency may be shown consisting in what is generally said about the accused respecting such traits \[20\]. An attempt must be proved by showing the use of means adequate to produce the effect and not merely by showing a prescription of it \[21\]. An instruction may follow the statue \[22\].

## 2 Abstracts of Title:

These are historical briefs or synopses of the written evidences of title to land or of the records of such titles \[24\]. The obligation to provide one is usually upon the purchaser, though it is very frequently a matter of the contract \[25\]. Public abstracts in Mississippi must be kept up, and the clerk may recover the stated abstracting fee from the owner of each subdivision of land \[26\]. An abstracter is liable for errors caused by failure to exercise ordinary care even though the purchaser procured the abstract through an undisclosed agency \[27\].

## 3 Accession and Confusion of Property.

The former of these terms signifies the incorporation of property with or its fixed annexation to other property so that the ownership of that added is acquired by the owner of that to which it is added. Confusion differs in being an inter-mixture of chattels of the same species into an inseparable mass to the loss of that owner who, without the other's consent, so intermixes \[28\]. A form of accession results from giving the character of fixtures to any structure attached to land \[29\]. The innocent maker of improvements may ordinarily be reimbursed \[29\]. Improvements made by mistake merely are not recoverable in Rhode Island \[31\]. A creditor may sometimes enforce his rights against improvements made by the debtor on another's land \[22\]. Equity may afford relief in addition to statutory remedies to

13. Burns' Rev. St. 1901, $ 1813; onfor-matlon--Dlehl v. State, 157 Ind. 549.

01. State v. Jones (Del. Gen. Sess.) 53 Atl.

01. State v. Magnell (Del. Gen. Sess.) 3 318; V. 59, $ 1591w; Yaaco & M. V. R. Co. v. Edwards, 78 Miss. 950.

01. Fretwell v. State (Tex. Cr. App.) 67 B.

01. State v. Magnell (Del. Gen. Sess.) 3 improving occupants.\[39\] Attempted conveyances to the grantees may tend to prove their good faith in improving.\[34\]

There is no confusion by a debtor who mingles surrendered collaterals with his other property, though he also fails to substitute other property of the same species for collateral as agreed.\[35\] The owner of innocently confused goods may recover his share in specie out of the common mass, without showing that there was any intention to thwart identification.\[36\] As against an innocent purchaser from the wrongdoing owner, the real owner may select the equivalent of his own.\[37\] A levying creditor may have satisfaction out of the entire stock of one with whose merchandise the debtor's was commingled in fraud of the creditor.\[38\] Priority is given the beneficiary of trust property which has been commingled if the mass has been benefited in consequence.\[39\]

A separation need not be demanded before suing, where the confusion makes it impossible.\[40\] A sheriff must not be directed to levy on a certain number of chattels as they average, for the purpose of effecting a division. That would be a judicial act. A partition must be resorted to.\[41\]

## 1. The accord. A. In general

An accord is the making of a new agreement in substitution for the old liability or right.\[43\] Rights under a will may be

\[\] 33. Mercer v. Justice, 63 Kan. 225, 65 Pac. 67 S. W. 928. One who pledges borrowed property and borrows money of the owner to reduce continues his liability in an other debt-Dibble v. Richardson, 171 N. Y. 131.

\[\] 35. Samson v. House, 27 V. 422.

\[\] 36. In replevin--Rust Land & Lumber Co. v. Isom, 70 Ark. 99.

\[\] 37. Budgetful v. Seals, 78 Miss. 522.

\[\] 38. Eldridge v. Fidelity & Deposit Co. (Tex. City. App.) 63 S. W. 955.

\[\] 39. Kansas State Bank v. First State Bank, 62 Kan. 788, 64 Pac. 634; Meystedt v. Grace, 86 Mo. App. 175; Pearson v. Haydel, 90 No. App. 253.

\[\] 40. Vaughn v. Rhode Island M. & T. Co., 24 R. I. 350.

\[\] 41. Two herds mortgaged to different persons and then allowed to mingles-Bether . V. Cassidy Bros. Live Stock Commission Co., (Tex. City. App.) 62 S. W. 924.

\[\] 42. "Payment" as a discharge of obligations expressed in money, see Payment and Tender: seaman's release, see Shipping and Water Traffic.

\[\] 43. Cyc. Law Diet. "Accord." If the original liability was ex contract, the result is a Novation, a v., as to the requisites of a novation. A release may be and usually is only a writing declaring the terms of an accord and satisfaction. See Releases. Compositions with Crediters also usually involve accords and satisfactions but with the peculiarity that an obligation between the creditors also results. Accepting orders for goods on account of wages not yet due-Martin-Alexander Lumber Co. v. Johnson, 70 Ark. 215. An accord is shown by an agreement by a debtor to pay interest to the creditor and a release of the debt excepting only such interest to be paid--Price's Adm? x. Price's Adm? x. 23 Ky. Law R. 1911. 1947. Taking from one who had converted money a note executed by the person to whom it had been loaned is not a discharge of liability for the conversion--Black v. Black (Tex. City. App.)

\[\] 67 S. W. 928. One who pledges borrowed property and borrows money of the owner to reduce continues his liability in an other debt-Dibble v. Richardson, 171 N. Y. 131.

\[\] 35. Samson v. House, 27 V. 422.

\[\] 36. In replevin--Rust Land & Lumber Co. v. Isom, 70 Ark. 99.

\[\] 37. Budgetful v. Seals, 78 Miss. 522.

\[\] 38. Eldridge v. Fidelity & Deposit Co. (Tex. City. App.) 63 S. W. 955.

\[\] 39. Kansas State Bank v. First State Bank, 62 Kan. 788, 64 Pac. 634; Meystedt v. Grace, 86 Mo. App. 175; Pearson v. Haydel, 90 No. App. 253.

\[\] 40. Vaughn v. Rhode Island M. & T. Co., 24 R. I. 350.

\[\] 41. Two herds mortgaged to different persons and then allowed to mingles-Bether . V. Cassidy Bros. Live Stock Commission Co., (Tex. City. App.) 62 S. W. 924.

\[\] 42. "Payment" as a discharge of obligations expressed in money, see Payment and Tender: seaman's release, see Shipping and Water Traffic.

\[\] 43. Cyc. Law Diet. "Accord." If the original liability was ex contract, the result is a Novation, a v., as to the requisites of a novation. A release may be and usually is only a writing declaring the terms of an accord and satisfaction. See Releases. Compositions with Crediters also usually involve accords and satisfactions but with the pec

## IV Accord and Satisfaction.

the subject of a settlement. \[44\] It must be understood and assented to, that a part payment is accepted in full \[45\] and a protest against correctness with notice of a claim will be overcome by such an acceptance. \[46\] If a cash payment be made with a promise for further payment, it is inferred that the offer is accepted. \[47\] Accepting a check from an agent known to have authority to effect only full settlement shows an accord and satisfaction. \[48\]

_An agent_ may effect a compromise. \[49\] An attorney has presumed authority to compromise a suit, \[50\] but acts by an agent in substituting his own liability for a debtor's must be brought home to his principal. \[57\]

_Trustees_ in bankruptcy \[52\] and executors and guardians under many statutes may effect compromises if for the good of the estate. \[53\] If the executor as an heir joins with the other heirs it is valid. \[54\] A satisfaction accepted by the sole heir and next of kin is made good in its origin by the subsequent appointment of such person as administrator. \[55\]

An agreement to discontinue a pending action without further costs is broken by the entry by plaintiff's attorney of a judgment to protect his lien thereby imposing more costs. \[56\]

_B. The consideration_ may move from a third person, \[57\] as where he indorses notes for lesser amount which are accepted in full, \[58\] or it may move to a third

''' Ives,62App.Div.(N.Y.)339;affirmed,173N.Y.192;
44Chauvet v.Ives,62App.Div.(N.Y.)339;affirmed,173N.Y.192See,also,Estimateofdecedents. \[45\] Hence an endorsement by country off-interiors cannot agree to employ an ad-uses in full did not bind the claimant who cashed warrants for the amount but had been accustomed on previous claims to have disallowed items subsequently allowed to conformer. \[66\]
66Banaford of Com'rs v.Durnell (Colo. App.)67Pac.107N.Not shown where debtor failed to stipulate that a draft for part was to be in full and creditor drew without saying that it was--Horvich v.Western Brewery Co.,75IIIApp.162;especially not if creditor refused faster as in full--Perlin v.Cathcarei (Iowa) 89N.V.12. \[45\]
77Aceceptance of checks tendered in full is sufficient--Critchell v.Loftis,100IIIApp.196;though they were not marked "in full"--Whitaker v.Eilenberg.70App.Div.(N.Y.)489.In which case the parties effected a sale of a crop of grapes at a fixed price after part performance of which deductions for bad quality were made from remittances and finally the buyer refused to accept save on consignment; but such condition must be understood--Fremont Foundry & Mach.Co. v. Norton (Neb.)92N.V.1058.A check rendered by an attorney in full "satisfaction" of monews collected for a client who disputed the charge for services--Grenelce v.Masonto (Iowa) 90N.V.338. \[45\]
78McMcCormick v.St.Louis,166Mo.315. \[47\]
79Evidence held sufficient where cash was paid on a disputed note and a promise made to pay a further sum at a future time --Worden v.Houston,92Mo.App.371. \[48\]
80Agent of a municipality in dispute with contractor--Genuve v.Waverly,75App.Div.(N.Y.)610. \[49\]
81Williamson v.NorthPac.LumberCo.(Or.)70Pac.387Mere possessor of note (Or.)70Pac.387Mere possessor of note (Or.)70Pac.387Mere.27Mash.247Pac.567Pac.567In proeruping transfer of debtor'sperson but must not be in fraud of creditors.\[69\] The right of other creditors to an equitable enforcement of a scheme to compromise the entire indebtedness of a county is sufficient to make it binding,\[60\] or it may suffice if a three party agreement has been partially performed by the other parties.\[61\] An agreement to employ for an indefinite time is no consideration, but employment given under it and accepted may be.\[62\] Surrendered rights must be real and substantial to afford a consideration.\[63\] Discontinuance without further costs is sufficient.\[64\] It makes no difference that the payor gave only what he claimed to be due.\[65\] If it be a settlement of title the dispute must be such as that good lawyers might easily differ.\[66\] The contrary was held where a claim of right was disputed on a point in reality free from doubt.\[67\] A belief that a policy is voidable for misrepresentation by the insured notwithstanding an "incontestable clause" suffices to raise a doubt.\[68\] Threatened litigation must be such as the opposing party might maintain.\[69\] A surrender of levied property is consideration for dismissal of a counter-suit only when the levy is lawful.\[70\]

_A part payment_ received in full is not sufficient since it lacks a consideration; unless the amount be unliquidated or in dispute\[71\] as where a judgment is appealable\[72\] but the payment may have been accepted only to avert financial disaster.\[73\] Applying on the original note proceeds of a check tendered for a part renewal creates no accord because the liability was liquidated.\[74\] A contract may be unliquidated though written.\[75\] Inclusion of one unliquidated item with liquidated ones suffices.\[76\]

_C. Fraud, mistake and duress.\[77\]_--An executed settlement can only be impeached for proven fraud, mistake or duress.\[78\] Mistake,\[79\] misrepresentation or fraud\[69\]

50. Conveyance to daughter of contestant

vise and also had a contract for conveyance of will invalid, though devisee aside from

-Jennings vs. Jennings (Iowa) $I. N. W. 726: the fraud might have so conveyed--Smith v.

71. Abelson v. Gordon, 36 Misc. (N. Y.)

01. Compromise with bondholders--Dyer v. Muhlenberg's V. (C. C. A.) 117 Feb. 586: (Nis.) 90 N. W. 1085: giving receipt in full

01. Settlement of disputed claims between members of a corporation--Adams v. Crown Coal & Tow Co., 198 Ill. 445.

01. Carroll, V. M. K. & T. R. Co. (Tex. Civ. App.) 69 S. V. 1004.

01. Wavier of right to go into bankruptcy --Herman v. Schlesinger, 114 Viss. 382: Forbearance to appeal sufficient--In re Freeman,

117 Fed. 680: wavier of right to enforce a bond of Indeminity, sufficient to support surrender of bond and substitution of new one--German-American Bank v. Schwinger, 75 App. Div. (N. Y.) 393: payment of a sum due and liquidated not sufficient--Harrison v. Murray Iron Works Co. (Mo. App.) 70 S. W. 261. A "settlement" with a building and loan association is without consideration where as a matter of fact it is based on a release of rights under a certificate already cancelled by the issue of one in its stead and in consideration of such release a credit on the loan which at the time had been fully re-pald--Vestern Loan and Sav. Co. V. Desky, 24 Utah. 347, 68 Pac. 141.

64. Rosenthal v. Rudnick, 76 App. Div. (N. Y.) 624.

01. McCormick v. St. Louis, 166 Mo. 315.

01. Family settlement--Bunnell v. Bunnel. 23 Key. Law R. 800.

01. City Elee, R. Co. v. Floyd County (Ga.) 42 S. E. 45.

01. Franklin Life Ins. Co. v. Villeneuve (Tex. Civ. App.) 68 S. W. 203.

01. Contest of will by one who was a de but not mere opinion as to extent or permanency of injury may invalidate a release of liability for injuries, \[81\] It is not improper to rely on the opposite party's reading of the contents of the release. \[82\] A settlement is valid though one party was attorney and adviser of the other who acted in this without advice of counsel. \[82\] Medical prognosis is mere opinion and not fraud. \[84\] A note procured on settlement of a fraudulent transaction does not extinguish the original liability where a part of the fraudulent scheme was to proecure the note. \[85\] More inadequacy of compensation to one who without being imposed on signed a release of injuries will not defeat it in equity. \[86\] A co-obligor cannot avail of a settlement procured by fraud of the other. \[87\] A belief that evidences of right were irrevocably lost, in consequence of which one compromised is not mistake. \[88\]

_Rescission_ is not necessary to suit on a collateral liability which was not included in the settlement \[89\] but when necessary it must be seasonally made. \[90\] In order to rescind an accord and satisfaction for fraud what has been paid must be returned \[91\] though a part payment on a liquidated sum not disputable need not be \[92\] and money need not be returned before suing on a fraudulently released claim. \[94\]

**SS 2.**_Satisfaction or discharge. \[94\]_--Generally speaking the accord must be executed before a satisfaction is had \[88\] but an agreement to compromise on mutual performances is enforceable on showing readiness to perform. \[96\] It is not necessary that everything be fully executed. \[97\] It is a good defense to action on a judgment. \[98\]

**ers--Schus v. Powers-Simpson Co., 85 Minn.** | 87, Wolsey v. Price, 98 Ill. App. 503.

\*\*447: release represented to be hospital discharge--International & G. N. R. Co. v. 135.

**Harris** (Tex. Civ. App.), 65 S. W. 855: Id.,

**(Tex. Sup.) 67 S. W. 315. To be available at**

**law they must go to the procursing the execution of the release: If to the value of consideration can be remedied only in equity**

**--Papke v. G. H. Hammond Co., 192 Ill. 631; release by legatee who was deceived as to**

**validity of will--Lutjen v. Lutjen (N. J. Ch.) 51 AH. 790. False statement made in good faith that an arm is healed "as good as" if**

**if** reliled on will invalidate--Houston & T. C. R. Co. v. Brown (Tex. Civ. App.) 65 S. W. 651.

**Omission to stipulate for a promise made**

\*\*as part of consideration when caused by appeals based on relation of particles (father to son) one of whom acted without counsel, held fraud--Hearn v. Hearn, 24 R. I. 328.

**Misrepresentation is fraud especially if the relaser is illiterate and without good advisers--Indiana, D. & W. R. Co. v. Fowler, 103 Ill. App. 565: affirmed, 66 N. E. 394.**

**81.** Atchison, T. & S. F. Ry. Co. v. Bennett, 63 Kan. 781, 66 Pac. 1018.

**82.** It was fraudulently misread as including only recoof and settlement of expenses--New Omaha Thomson-Houston Elec.

**Light Co. v. Romhold (Neb.) 93 N. W. 966.**

**83.** Kidd v. Williams (Ala.) 31 So. 458.

**84.** As to duration permanency and consequences of broken hip--Chicago & N. W. R. Co. v. Wilcox (Iowa C. C. A.) 116 Fed. 913.

**85.** Kirby v. Berguin, 15 S. D. 444: see, also, dures in exacting a payment as infection--ing a contemporaneous settlement--First Nat. Bank v. Sargent (Neb.) 91 N. W. 595.

**86.** Chicago & A. R. Co. v. Green, 114 Fed.

**876.** SI25 for wrongful death of miner in good health held so grossly inadequate as to show fraud--Russell v. Dayton Coal & Iron Co. (Tenn.) 70 S. W. I.

**88.** Conway v. Etheridge (Neb.) 92 N. W.

**89.** Conversion was concealed by party to a settlement and the property was merely mentioned but the liability was not included in the settlement--Ballard v. Beveridge, 171 N. Y. 194.

**90.** Three years too long delay--Bogue v. Franks, 100 Ill. App. 434.

**91.** Riggs v. Home Mut. Fire Ass'n. 61 S.

**92.** Atchison, T. & S. F. R. Co. v. H. Hammond Co., 66 App. Dlv. (N. Y.) 398: Hill v. North-

**93.** Even Pac. R. Co. (C. C. A.) 113 Fed. 914: Nie-

**94.** Derduer v. Detroit, etc., St. R. Co. (Mich.)

**95.** In **96.** In **97.** In **98.** A payment in consideration of discontinuing does not necessarily extinguish the cause of action. \[99\]

The original liability is extinguished by a satisfaction \[1\] so far that an attorney's lien against it can be enforced only upon leave to prosecute notwithstanding2; and cannot be investigated save for fraud or mistake \[8\] or any item disputed, but the liability of a covenanitor for title, to a tenant in common with the releasing tenant may be saved by the terms of the agreement \[8\] and discharge of co-debtors under a judgment compromised as to one of their number may be in like manner avoided. \[6\] Unless so agreed a satisfaction will not discharge a third person's independent liability growing out of the same transaction. \[7\] A release operates as fully as judgment. \[8\] Items of which the parties were ignorant are not included in a satisfaction. \[9\]

A party who violates it cannot take any advantage of a compromise. \[10\] If two compromises be of the same contract, acceptance of delayed performance in payment of one waives a delay in payment of the other. \[11\] A written release of injuries supersedes an oral satisfaction previously made. \[12\]

SS 3. _Pleading, issues, proofs, evidence._--It must be specially pleaded. \[13\] If performance rather than the agreement to perform was to constitute the satisfaction, it must be pleaded. \[14\] A tender back of release money need not be pleaded when it can be set off from the recovery. \[15\] In Kentucky it was held against dissenting opinions that a tender back need not be pleaded where there were allegations of gross fraud in obtaining a release. \[16\] Since release is matter for defense, allegations assailing it for fraud in the complaint are surplusage. \[17\]

The jury should say whether wages were due \[18\] or whether acts and declarations of agents in presence of parties showed an acceptance of a tender \[19\] or whether a consideration was of value. \[20\]

Defendant pleading an accord and satisfaction must prove every element of it \[21\] and mistake must be proved to surcharge a settlement. \[22\] Inadequacy of con-

binding though not all of its accounts re-

586. It was held immaterial that acceptance levelable had been collected--W. F. Taylor was in part the act of another if he was Co. V. Balnes Grocery Co. (Tex. Civ. App.) party to the contract. \[23\] S. V. \[26\].

001. Though it be not a specialty-in re-

Freeman (N. X.) 117 Fed. 680.

99. Terrill v. Deavitt, 73 Vt. 188.

01. Holmes v. Leadbetter (Mo. App.) 69 S.

01. Coles v. Leadbetter (Mo. App.) 69 S.

01. Code Civ. Proc. & 66; Doyle v. New

01. York, O. & W. R. Co., &69 App. Div. (N. X.) 398.

01. Baldwin v., Central Sav. Bank (Colo. App.) 67 Paq. 179.

01. Connor v. Etheridge (Neb.) 92 N. W.

01. McCune v. Scott. 18 Pa. Super. Ct. 263.

01. Hadley v. Bryan. 70 Ark. 197.

01. He had fortiously induced plaintiff to accept a mortgage misrepresenting the condition of a house plaintiff bad taken a con-

verance in satisfaction of the mortgage--Lee v. Tarplin (Mass.) 66 N. E. 431.

8. C. & N. W. R. Co. v. Wilcox (C. C. A.) 115 Fed. 913.

1. Bloomington Min. Co. v. Brooklyn fly-

gemic ice Co., 58 App. Div. (N. Y.) 66.

10. Armilstead v. Shreveport & R. R. Val.

R. Co., 108 La. 171; McKeehney v. Welf (C. C. A.) 118 Fed. 805.

11. Compromises of county bonds--Dyer v.

Muhlenberg County (Ky. C. C. A.) 117 Fed.

sideration while not sufficient is admissible.\[29\] A preponderance will prove fraud, but it must be clear.\[24\]

## Accounting, Actions for

The action of account, whether in states without similar chancery relief or of enlarged scope in states giving chancery relief, will be treated together with the chancery suit for accounting. Agreements between parties to account fixing amount due and providing for payment, and book debts or other open or mutual accounts, as well as actions thereon will be found elsewhere.\[25\]

## 1 Nature of remedy and jurisdiction of courts

For an account of one item the remedy is at law,\[26\] but numerous and disputed items,\[27\] or complicated accounts and necessity for discovery,\[28\] require an accounting in equity. Where five years have elapsed since a mutual settlement,\[29\] or where both parties have been equally negligent in keeping accounts and have postponed proof until adequate evidence is impossible,\[30\] an accounting in equity will not be granted. No accountable relation subsists between the real owner of money and a broker who received it from a third person\[31\] or between one who was on certain future conditions to receive a commission and the person who was to pay it,\[32\] but an accounting may be given in equity to one who has a joint interest by reason of furnishing money for business with another in trust relations, though the arrangement is not a partnership.\[33\] A court of equity may order an accounting to enforce contribution,\[34\] or to determine the amount due an employe working for a percentage of the net profits of the business,\[35\] but not to compel an attorney to pay over money collected on a claim.\[36\] Accounting cannot be had in courts of inferior jurisdiction.\[37\]

Dorsett v. Clement--Ross Mfg. Co. (N. Co., 202 Pa. 480; duress in a settlement proved by the fact that it entered into a payment reacted at the same time--First Nat. Bank v. Sargent (Neb.) 91 N. W. 595; presump-

116 Feb. 913. Evidence held not to show an accord and satisfaction where a payment tendered as in full was accepted under protest that it was not a discharge--Daughters v. Herndon (Tex. Civ. App.) 65 S. W. 891. Evidence not sufficient where a check was marked "In full" but testimony was conflicting whether it was put on before or after the check was cashed--Blodgett v. Vogel (Mich.) 90 N. W. 277. Held insufficient that check was sent without condition but with counterclaim sufficient to balance account, which counteractlam was rejected and payment of the balance immediately demanded--Fremont Foundry & Mach. Co. v. Norton (Neb.) 92 N. W. 1058. Evidence of fraud--L. & N. R. Co. v. Carter, 23 Ky. Law R. 2017; of duress--Boydan v. Haberstumpf (Mich.) 88 N. W. 386; of mental incompenpency of party--Cun-dell v. Howseful (R. I.) 51 Alt. 426; L. & N. R. Co. v. Carter, supra; sufficiency of evidence of fraud in procuring release--Acthem-son, T. & S. F. R. Co. v. Bennett, 63 Kan. 781. 66 Pac. 1018; International & G. N. R. Co. v. Harris (Tex. Suss.) 67 S. W. 315; M. K. & T. R. Co. V. Smith (Tex. Civ. App.) 68 S. W. 543; Shook v. Illinois C. R. Co. (C. C. A.) 115 Fed. 57; Ftvey v. P. R. Co. 67 N. J. Law, 627: sufficiency of pleangles and proof to show release--Kehoe v. Patton (R. I.) 50 Alt. 655. Evidence tending to show imposition on an ignorant release held sufficient for the jury--Dorsett v. Clement-Ross Mfg. Co. (N. C.) 42 S. B. 612; written release not overcome by testimony of contemporaneous oral agreement--Ogden v. Philadelphia & W. C. Tract.

## 2 Persons liable and entitled to accounting

Accounting between persons in particular relations will be found in topics treating of those relations. The right to an accounting pertains to certain relations of a fiduciary or representative nature such as agency; trusteeships; partnerships." Persons jointly interested" in property or profits of sale of land, as co-tenants," may have an accounting. Use of a wife's name to avoid her husband's creditors will not deprive her of accounting."

## 3 Procedure before reference or without reference

General questions of procedure in matters not peculiar to this remedy are treated elsewhere. A suit or action for accounting may be joined with or made incidental to other suits or actions under proper circumstances." Annexation of copies of accounts to pleadings is sometimes necessary or proper."

_Parties_.--Complainants asserting distinct rights generally cannot unite in the bill:" the rule applies to heirs and administrator of an estate in an accounting of personal estate or rents and profits of land." Receipt of part of corporate funds, or convinance at diversion thereof, renders one a proper party to an accounting sought by a corporate creditor." A son, who secured his father's debt by mortgage, is a necessary party to an accounting by the father against the creditor for excess of money received on payment." That brokers have dealt with one who received funds from another for secret speculation in stock will not make them parties to a suit for accounting by the owner of the funds against the other."

Improper joinder of parties defendant authorizes dismissal only, not judgment for all defendants."

_Pleading and evidence_.--A bill against two partnerships is multifarious though one defendant is a common partner." The complaint must show a contract to pay, or a breach thereof, or existence of fiduciary or partnership relations," and an allegation of partnership relations which may as well be construed as agency is insufficient." Defendant is entitled, on demand, to a list of the items without regard to the form of action." An account of profits cannot be taken where it is not shown what goods were sold." A bill for accounting must allege disposal of the funds received by defendant, receipt of benefits by him from the funds, and any excess of authority he may have employed." Defendant need not answer the bill fully if he denies existence of the relation on which the duty to account is based." A cross-bill may be filed after the report of master." The party seeking to impeach an accounting for fraud must set out the particular facts relied on."

## 4 Acounting, actions for

- **38.** See Agency: Brokers: Factors: Es- tates of Decedents; Trusts; Partnership and the like.
- **49.** Schanke v.\*\* Engle Automatic Can Co., 135 Cal. 472. 67 Pac. 759.
- **50.** Fletter, Eq. **Pl. & Pr. , 113:** Bovaird ant in common may require another in posession to account--Keller v.\*\* Lamb, 202 Pa. , 141.
- **51.** Riveston v.\*\* Silverstein, 72 N. Y. Supp.
- **52.** Conger v.\*\* Judson, 69 App. Div. (N. Y.) to Joinder. Accounting as proper indelent.
- **53.** Ala.\*\* Code, , 3290; Morrisette v.\*\* Wood, 128 Ala. 505.
- **54.** Convey v.\*\* Cawley (Mass.) 63 N. E.
- **55.** Mere allegation that money was placed in defendant's hands is insufficient-- Thompson v.\*\* Snyder, 113 Fed. 531.
- **56.** Fletcher Eq. \*\*Pl. & Pr. , 294.
- **57.** Sowles v.\*\* Hall, 73 N. Y. 55.
- **58.** Anderson v.\*\* Anderson (Utah) 70 Pac. 605.

\_Judgment or decree.--\_It seems a decree to account is not generally enrolled unless the accounting was only part of the relief given.\[59\] The judgment to account should require it to be done before the court or referee.\[60\]

SS 4. \_Reference and proceedings thereon.--\_Particular matters relating to reference to master or commissioners in chanery,\[61\] or to referees\[62\] will be found under other topics. Reference of the whole cause to a master is becoming the more common practice.\[63\] An accounting of surplus profits due the state from a railroad company is properly referred to a master.\[64\] Before ordering a reference the court should determine the right to account if it is made an issue.\[65\]

\_Stating the account; items.--\_An accounting may include a note given to the accounting payoff as security though his liability thereon has not been determined.\[66\] A partner may be credited for the excess paid for his interest in property purchased by a co-partner by reason of the fraud of the latter.\[67\]

SS 5. \_Proceedings on coming in of report.--\_The proceedings after reference to an auditor in an action of account should be governed by rules of trial before the court and not by the strict rules of jury trials.\[68\] Judgment should not be given against non-residents who sold their interests before debts were contracted, but against the purchasers.\[69\] An account judgment giving a certain amount of accrued income to a beneficiary under a testamentary trust is not conclusive in a subsequent action to dispose of income accruing after his death.\[70\]

## 1 Nature and elements of the several kinds of accounts.

An account stated when itemized must show the relation of debtor and creditor,\[71\] but may be made orally,\[72\] and the assent of the party to be charged only, is necessary.\[73\] A mutual agreement as to the accuracy of the statement of an attorney mutually employed to calculate principal and interest on a written contract requiring payment in installments,\[74\] or the estimate of a water commissioner as to value of work done under a public contract together with the contractor's receipt for payment,\[75\] or statements of accounts between corresponding banks mutually acknowledged to be correct,\[76\] or the balance shown by a bank book and canceled checks,\[77\] or statements of account received by a bank depositor without objection for an unreasonable length of time,\[78\] constitute an account stated; but a statement of amount due a decedent made by her husband and a reply by the debtor promising payment,\[79\] or a mere request for extension of time where no account is presented, and no disputed items exist,\[80\] is insufficient to establish one. Fair settlement of 71. Acts N. C. 1897, c. 480; Knight v. Taylor (N. C.) 42 S. E. 537.

72. Clv. Code Cal., $ 1622; Converse v. Scott (Cath.) 70 Pac. 13.

01. Lesser v. McDowell, 69 App. Div. (N. Y.) 444.

01. Krueger v. Dodge, 15 S. D. 159.

01. McCormick v. City of St. Louis, 166 Mo.

01. Louisville Banking Co. v. Asher, 23 Ky. Law R. 1180.

01. Kenneth Inv. Co. v. National Bank of Republic (Mo. App.) 70 S. W. 173.

01. Nodine v. First Nat. Bank (Or.) 68 Pac. 119.

01. Kauffmann v. Judah (Sup.) 79 N. Y.

Supp. 494.

80. Woodriff v. Hunter, 65 App. Div. (N. Y.) 404.

a running account, by consideration of all the items therein, concludes both parties. \[81\] A sale of personality for an agreed price payable at a certain or future time tends to uphold a count on account stated. \[82\]

Acceptance of an account stated estops denial of its correctness except for fraud or mistake, \[83\] and may be shown by payment of part of an account presented. \[84\] No objection can be made to an account rendered five months after settlement, \[83\] but unless special damages will result to the bank, a depositor may question an account of deposit retained without objection for an unreasonable length of time. \[84\]

A credit entered by one party without consent of the other, who always denied his liability, will not make a contested account mutual. \[87\] An account claiming a certain sum at or about a certain time is an open account. \[88\]

SS 2. \_Binding effect, rights and liabilities.--\_A liquidating partner is not bound personally, as for an account stated, by receipt of a statement of the partnership account erroneously including a personal debt of a retiring partner, which he had no reason to believe was considered a firm liability. \[89\] A settled account may be impeached only for fraud, mistake or omission, \[90\] and settlement admits the balance as a new principal unalterable except on proof of mistake or fraud. \[91\] A settlement is not presumed to include items not due. \[92\] Failure of an administrator to object to an account stated which is presented against the estate will not excuse establishment of the claim in the usual way. \[83\]

SS 3. _Remedies on account stated. \[84\]_--All prior dealings are merged in an action on an account stated. \[85\] Under proper circumstances equity will reform an account stated for mistake of law. \[86\]

\_Pleading.--\_Allegation and proof of an alleged statement of account merely supports a balance due in an action not technically on an account stated. \[87\] A stated account must be verified and the petition must allege its correctness. \[88\] Alllegations of statements made to a depositor by a bank are sufficient, after verdict, as to an account stated. \[89\] Evidence of errors in a statement of account cannot be given by a plaintiff who did not plead them. \[87\] A bill to correct a settled account for mistake must allege the mistake distinctly and give the circumstances. \[88\]

_Evidence and questions of fact. \[88\]_--An account stated is prima facie correct, \[89\] and if it be assailed for a specific vice which is not proved it stands. \[88\] The pre-

\[88\] \[89\] \[89\] \[89\] \[89\] \[89\] \[89\] \[89\] \[89\] \[89\] \[89\] \[90\] \[ sumption that a certain item was included is overcome by proof that it was not due.6 Failure of plaintiff to obtain knowledge of a statement of the account for some time after it was made is not a failure of proof of an account stated.7 The burden of proof is on a depositor to show that checks rendered on an account by the bank are forged.8 An attorney suing his client for services on account stated may be examined as to the items.9 Corroborative testimony as to the balance due may be given by a stenographer who took a memorandum of the agreement in presence of both parties.10 An ex parte affldavit verifying an account stated will not establish its correctness.11 Proof of an agreement between parties to settle and that a debt owing to one from a third person should be assigned, to the other to which the debtor did not object, shows an account stated.12

Footnote 20: Merely because some household goods are included but which do not appear to have been used as such, a chattel mortgage is not one "of household goods" which must be acknowledged.\[31\]

## 2 Officers who may take

Justices of the peace may ordinarily take acknowledgments.\[32\] A consul general's deputy may do so.\[33\] The officer need not be disinterested it is held unless the statute so requires,\[34\] but a party to the instrument is disqualified.\[35\] A stockholder in a corporate party but not a non-stock-holding officer or an agent or attorney of either party, has a disqualifying interest.\[36\] The corporation's interest need be only partial.\[37\] Foreign officers enumerated by statute may take them.\[38\] The power of a foreign notary does not necessarily depend on the authority given by his own state.\[39\] An officer empowered to take acknowledgments may sometimes act beyond the territory of his ordinary bailiwick or authority,\[40\] but a notary cannot act outside the place for which he is commissioned.\[41\] A corporate chattel mortgagor "resides" where its place of business is and should acknowledge the mortgage before a justice of the peace there.\[42\]

an acknowledged conveyance--Ramsay's Estate v. People, $7 Ill. App. 283.

Certified copy of deed record inadmissible if lacking legal acknowledgment--swafford V. Herd's Adm?. 25 Ky. Lav R. 1556.

A foreign notary's certificate under seal is prima facte evidence of execution of an official bond--Ramsay's Estate v. People (III). 64 N. E. 555.

Officer was financially interested hence not admissible--First Nat. Rank v. Citizen's State Bank (Vyv.0) T0 Pac. 786.

**25.** The notary must affix his seal (Koch v. West \[Iowa\] $2 N. V. 663) unless the law at the time does not require it--Westfeldt v. Adams (N. C.) 42,S. E. 823.

The acknowledging officer must not be a party--Hunton v. Wood (Va.) 43 S. E. 186.

A tax ded must be acknowledged and then recorded--Leffuch v. Richmond, 4 Va. Sup. Ct. 188, 40 S. E. 651.

Unless properly acknowledged a record will not protect a mortgage lien--Cumberland h. & L Ass'n v. Sparks (C. C. A.) 111 Fed. 647.

**29.** If acknowledged before an incompetent notary does not pass under the laws of Florida--Evans v. Dickenson (C. C. A.) 111 Fed. 284.

In New Jersey her contract to convey it must be separately acknowledged--Schwarz v. Regan (N. J. Ch.) 53 Atl. 1086.

**30.** Ogden B. & L Ass'n v. Menesh, 196 Ill. 654i; Buettgenbuch v. Gerbig (Neb.) 90 N. W. 654i; Rowles v. Richenbach (Neb.) 90 N. W. 943. Unless an agreement to pass the home--stead be testamentary in character, when it need not be acknowledged--Teske v. Dittberner (Neb.) 91 N. V. 181, or be a purchase--money mortgage--Irwin v. Gay (Neb.) 91 N. V. 197: Goodheart v. Goodheart (N. J. Ch.) 63 Atl. 135.

Both husband and wife must join to alien a homestad--Blumer v. Allbright (Neb.) 89 **N. V. 809:** Hedbloom v. Plerson (Neb.) 90 N. W. 218.

**Extopel will not operate In Heu of acknowledgment--Davis v. Thomas (Neb.) 91 N. V. 187.**

If the husband die in possession of the horested, an improperly acknowledged con

## 3 Persons who may make

Generally speaking each granting party including husbands or wives must acknowledge for himself or herself. A corporation must do so by its president, secretary or other proper officer. An attorney in fact to convey land may do so in his own name for his principal.\[43\]

## 4 Taking acknowledgment

If the grantor is not personally known to the officer he should ordinarily be identified.\[44\] It is immaterial that the wife's separate examination was in presence of the grantee of her separate estate.\[45\]

## 5 Certificate of acknowledgment

The identity of the grantor must be shown.\[47\] One to a wife's deed need not state that she executed it as a party.\[48\] And it need not state in the language of the statute that when privately examined she freely and voluntarily made the deed\*\* at least where the statute so reads that it is satisfied by the taking of her examination privately without reciting it.\[50\] The statutes of some states require this recital.\[51\] Grammatical errors are of no importance\[52\] nor is an obvious error in stating the grantor's name.\[53\]

## 6 Authentication of officer's authority

A notary must attach his seal\[54\] unless the law at the time of making the deed and recording it required no seal.\[58\] It is not sufficient that he styles himself "ex officio notary" if no notary's seal be attached.\[56\]

## 7 Operation and effect

An act making it conclusive on the question of dures or coercion of the wife does not preclude inquiry whether a private examination in legal form was had as recited.\[58\] The clearest and most convincing evidence is necessary to impeach the certificate.\[59\] It must go beyond the mere tesitonny of the acknowledging party.\[60\] Contradictory testimony by the wife has been held not sufficient to impeach the recidals of the certificate.\[61\] A special allegation of fraud is necessary to attack it when regarded as conclusive.\[62\] It releases dower without words of conveyance.\[63\]

## 8 Defects and invalidities

A defect not apparent does not destroy the cuted, etc...McCardla v. Billings, 10 N. D. 373. 53. "John L." for "James M." as in deed--Kentucky L. I. Co. v. Crabtree, 24 Ky. Law R. 743. 54. Koch v. West (Iowa) 92 N. W. 663. 55. Westfeldt v. Adams (N. C.) 42 S. E. 823. 56. Hayes v. Banks, 132 Ala. 354. 57. Notary's testinony not secondary evidence--Cassidy v. Scottish-American Mort-gage Co. (Tex. Civ. App.) 64 S. V. 1023. 58. Acts 188, o. 389; Benedict v. Jones, 129 N. C. 470. 59. Dickerson v. Gritten, 102 Ill. App. 351. 60. Adams v. Smith (Vyyo.) 70 Pac. 1043--holding evidence insufficient to show want of understanding on wife's part. Failure to privately examine the vbfe may be shown if certificate does not recite it--Aadams v. Smith (Vyyo.) 70 Pac. 1043. 61. Davis v. Kelly, 62 Neb. 642. Evidence held sufficient to identify grantee as the acknowledging officer who signed by similar name--Hunton v. Wood (Va.) 43 S. E. 186. 62. Brand v. Colorado Salt Co. (Tex. Civ. App.) 70 S. V. 578. 73. Affinit of defense that acknowledgment was before consul general's deputy, insulin-cient--Stewart v. Linton (Pa.) 53 Atl. 744. 63. Goodheart v. Goodheart (N. J. Ch.) 53 Atl. 135. 64. Notary's bond is liable for negligentlyforce of the record of the instrument,68 but, if the body of the instrument show that the officer took it outside his territorial jurisdiction the acknowledgment is null.69 A wife joins "freely" if it appears that her reluctance if any is in no wise attributable to her husband,67 but not if she joins under stress of threats by a drunken husband she stating to the officer that her act is not voluntary.68 It is no objection that a wife able to read and write stated that she was ignorant of the contents of the instrument.68 Want of a legal acknowledgment may prevent the releasing of homesetad but does not destroy the conveyance.79

\_How cured.71--\_A second validly acknowledged mortgage does not by reciting the existence of the first supply the want of a wife's acknowledgment.72

_Acts curing errors_ of form will not validate acknowledgments before one of the parties.73 A statute validating deeds recorded which were acknowledged without a certificate of magistracy of the officer makes such deeds admissible in evidence.74

## Actions.

No attempt is made to treat other than the general questions relating strictly to "Actions." "Causes of Action and Defenses" and "Forms of Action" are distinct matters which are elsewhere treated.78

_Action technically excludes_ the various special forms of proceedings created by statutes.79 The word "action" as it appears in statutes is subject to varying constructions and the decisions thereupon are to be sought under titles apposite to such statutes and limited accordingly.77 A proceeding prosecuted by a city against one for violating an ordinance is not a "criminal action prosecuted by the state.791

\_Essentials.--\_A proceeding is not necessarily a nullity though the nominal defendant be dead when the action is instituted.79

_Action is begun_ by issuance of process and delivery to the sheriff for service,89 but not by a service in a county other than that wherein only can the action be commenced,89 nor by procuring a writ which was altered to a later date before service. It is begun as of the altered date.82 In the federal courts in equity

accepting another's identification of grantor |Swarz v. Ramala, 63 Kan. 633. 66 Pac. 649. --State v. Grundon, 90 Mo. App. 266. --Ihaseous corpus is an action within Rev. St. 65. Disqualification of notary by Interest |1838. $ 2601: the person seeking library is |Ogden B. & L. Ass'v. Mensch, 196 Ill. 554. --plainfint, the one containing him is an adverse |66. Code Civ. Pr. $ 179 limits jurisdiction of justice of the peace to country--Middlecept v. Alfense, Id.: Same v. Hoyle, 16. Quow var. --Ihaseurst, 1551 C17. 16. --Ihaseurst, 1551 C17. 16. --Goldstein v. Curtis (N. J. Ch.) 62 Atl. --Ihaseurst, 1552 N. $ 420: State v. Fordge, Id. --Ihaseurst, 1553 B. --Ihaseurst, 1554 B. --Ihaseurst, 1555 B. --Ihaseurst, 1556 B. --Ihaseurst, 1557 B. --Ihaseurst, 1558 B. --Ihaseurst, 1559 B.

filing a bill begins the suit.\[83\] Such a commencement may be effectual though the jurisdiction be assailable,\[84\] or the service be somewhat delayed,\[85\] or the pleading defective or incomplete\[86\] unless it states no cause of action whatever\[87\] or is amended to state a new cause of action.\[88\] Delivering a summons which is void because it was signed in blank and filled in by an attorney is not an "attempt" to commence an action.\[89\] Voluntary appearance is operative as of its own date and not that of a prior but unserved summons.\[90\] An action is pending and not terminated until it is finally determined and the rights of parties enforced or discharged.\[91\]

## 2 Adjoining Owners.\[92\]

The law of lateral support makes one liable who removes such support and causes land to subside.\[93\] It does not apply to lands under water on which piers rest.\[94\] Liability is not averted by making a wall a party wall.\[95\] There is negligence in failing to apprise an adjoining owner of the fact that excavations of which he already knows will go below his foundation,\[96\] but none in failing to provide gutters and down spouts sufficient to conduct an extraordinary precipitation or cloud burst.\[97\] A complaint for taking support from a wall should allege facts sufficient to support a finding of an easement.\[98\]

A tenant of an adjoining building may recover his damages though the owner consented to the excavation which caused the damage, nor is it material to the tenant's case that his lessor made no objection to the undermining.\[99\] One cannot excavate soil on the sea shore where natural causes will result in subsidence of adjoining property and thereby expose a third property to damage.\[100\]

Over-leaning walls are abatable as a nuisance\[1\] and adjoining riparian owners

III. App. 318; Mott v. Chicago & M. El. No. Co., 102 Ill. App. 412.

S9. Rev. St. 1883, SS 4240, 3594; Johnson v. Turnell, 118 VIs. 468.

S9. Hotchkiss v. Aukermann (Neb.) 80 N. V. 949. Court Journal entry held sufficient to show an appearance before service--Dunne v. Portland St. R. Co. (Or.) 65 Pac. 1052.

91. When another action is pending, see Abatement and Revival. What is a determination, see judgments.

01. See, also, Boundaries; Fences; Party-walls; abutting owners, see Eminent Domain; Highways and Streets.

01. Jollet v. Schroeder, 92 Ill. App. 68.

01. Subsidence of pier caused by dredging in loose soil and mud--White v. Nassau Trust Co., 168 N. Y. 149; subsidence of other land at a distance not admissible to show loss of lateral support--Noonan v. Pardee, 200 Pa. 474.

01. Payne v. Moore (Ind. App.) 66 N. E. 483.

01. Davis v. Summerfield (N. C.) 42 S. E. 818.

01. Miller v. Wilson, 104 Ill. App. 556.

01. He must allege either that it was a party wall or prescription, it being insufficient to allege that it stood on the edge of the lot--Payne v. Moore (Ind. App.) 66 N. E. 483.

01. Payne v. Moore (Ind. App.) 66 N. E. 483.

01. Injunction granted--Murray v. Pannel (N. J. Ch.) 53 Atl. 595.

01. Barnes v. Berendes (CaL) 69 Pac. 491.

must so exercise wharfage rights as not to encroach on each other.2 Heaped up earth should be confined by a retaining wall.3

Either owner of lands resting on the same rock formation may do necessary blasting whether the other has already done so or not.4 The shock or vibration of the soil is not of itself actionable.5 Willfulness and malice are not essential to a liability for wrongful occupancy or use of adjoining lands.6

The owner is not liable for trespasses by servants of a licensee.7

A system of drains over an entire tract becomes the property of all separate grantees8 and when a drain is for the benefit of both, the owner on whose land it is cannot obstruct it.9

A frame-work four stories high covered with rough boards and roofed, under which washings were hung was held to be a structure in the nature of a fence erected to annoy.10 A barrier to the throwing of refuse from the next lot must not unnecessarily be made so as to exclude light and air. It makes no difference that the occupants were disorderly in conduct.11

Footnote 10: The full version of this paper is available at http://www.fnal.gov/

_The measure of damages_ for an encroachment is the consequent reduction of the selling value.12 Loss of profits of the use of a projected building should not be included, at least until after the building could, but for the encroachment have been erected.14 Unless there be negligence the damage from withdrawing lateral support does not include injury to buildings.14

Footnote 12: The full version of this paper is available at http://www.fnal.gov/

_The statutory action_ in New York respecting narrow encroachments applies only when there is an abutting building on the plaintiff owner's property.16

if he would otherwise be remediess.\[20\] ,Jurisdiction must rest on the subject-matter of a set-off and not on the set-off itself.\[21\]

Contracts to act as seamen en voyage to fisheries, there to fish and assist in scanning the catch,\[22\] and to navigate a vessel outward and returning are maritime within cognizance of admiralty,\[23\] but agreements for brokerage though written into a charter party are not.\[24\] A suit for wharfage against the owner of a domestic vessel,\[25\] or a lion for penalty under a state law against vessels which refuse to take on a pilot as well as the lion for pilotage, also are.\[26\]

A proceeding for limitation of liability may be brought though the owner has permitted an action to go to judgment against him but has successfully appealed.\[27\] It may be brought in any district where the owner is liable to suit though the vessel is not there.\[28\]

\_Recovery for wrongfully causing death.--\_Courts of a state have jurisdiction of an action against a registered vessel for negligence in port resulting in a death on the high seas.\[29\] Admiralty will enforce a statutory liability for wrongfully causing death.\[30\] The common law of Hawaii permits a recovery for torts causing death, hence the courts of admiralty will enforce such a right.\[31\]

_The partition_ of interest in vessels is "a common law remedy" which the admiralty laws save to the state courts,\[32\] and hence partition may be had in the state court under circumstances, which would not give such relief in the federal court.\[33\]

\_SS 2. Remedies and remedial rights.--\_The vessel rather than her owners may be proceeded against on a remedy in rem and it is not too late to do so on her second visit after the injury.\[34\] A contract to proceed to a port and there tow a vessel is executory until the towage is undertaken; hence a breach in turning aside to perform other services is not remediable against the tug in a proceeding in rem.\[35\] The relief given when enforcing a maritime tort defined by a state law will be such only as conforms to the statute creating the liability,\[36\] Nominal damages for personal torts are not awarded.\[37\] It is proper to join both the ship and the charteres if they are both charged with liability for breach of a contract of affreightment.\[38\] A charterer obligated to protect the vessel from liens may interpose defenses.\[29\] The right to limit liability is not barred by a prior judgment for damages in a state court.\[40\] Payment of costs in the state court may be imposed on an owner who asks a limitation of liability after he has defended on the merits in the state court.\[41\] A claimant who gave an ordinary claimant's bond when a bond was required to prevent setting aside the sale of a vessel.\[32\] Rev. St. U. S., SS 563; Reynolds v. Nielsen (Wis.) SS N. W. 455.

_SS 3._ As where there is a majority owner--Reynolds v. Nielson (Wis.) SS 3. W. 455.

_SS 3._ The Spinessby, 116 Fed. 237.

_SS 3._ The Francesco, 116 Fed. 83; The F. W.

_SS 3._ The Francesco, 116 Fed. 93.

_SS 3._ In re California Nav. & Imp. Co., 110 Fed. 670.

_SS 3._ Within spirit of Admiralty Rule 59--The Planet Venus, 113 Fed. 387.

_SS 3._ Alaska & P. S. S. Co. v. Chamberlain & Co. (C. C. A.) 116 Fed. 600.

_SS 3._ Gleason v. Duffy (C. C. A.) 116 Fed. 238.

_SS 3._ The Cocean Spray, 117 Fed. 97; Gleason & Co. v. Duffy (C. C. A.) 116 Fed. 238.

sel cannot deny that it represents the vessel which was released on the strength of it.\[42\] Damages in addition to costs may be recovered by a vessel owner from one who procures the arrest of a vessel by due process but without an honest belief that he is using a rightful remedy.\[48\]

SS 3. \_Practice and procedure. A. Pleading process, etc.\[44\]--\_Libels in rem and in personam may be joined on considerations of convenience or the promotion of justice. The admiralty rules of the Supreme Court do not govern.\[45\] Misjoinders are waived by failure to except to the libel.\[46\]

It is not indispensable to state nationality of a libeled vessel if the libelant pleads his American citizenship.\[47\] Claims for a marine tort not litigable against the vessel in rem may be rejected as surplusage if a cause in rem remains in other allegations.\[48\]

Subrogation to a fund recovered from a colliding vessel may be enforced on an intervention begun after judgment on a mandate from the appellate court.\[49\] An answer denying negligence on the part of the ship and propounding interrogatories respecting goods and their value cannot be held sham and frivolous until interrogatories be answered.\[50\] Tenders and deposits made with the answer need not include fees which become taxable only on final decision.\[51\] Exceptions when not specific must strike at more than form or style.\[52\] The owner's remedy to enforce the lion on subfreight for charter money is by libeling the subfreight alone with process requiring the holder of the bill of lading or cargo-owner to bring the freight into court. This may be compelled by summary process against the cargo or its owner but it should not be proceeded against until after an order to pay in freight. A warrant of arrest prematurely issued may be retained if afterwards found to be justified.\[53\]

_New parties_ may be brought in on petition, when they are responsible for the claim sued on, by analogy to practice in collision cases under the 59th rule.\[54\]

\_B. Evidence, proof and hearing, and decree.--_A_ decree in rem against a colliding vessel is not admissible for cargo owners who were not made legally subject to it.\[55\] Testimony of officers and witnesses on board is of more weight than opinions of others.\[56\]

\_Issues.--\_On a libel for charter hire the whole contract may be gone into whether all breaches are specifically alleged or not.\[57\] Whether a vessel owner designedly or negligently caused a fire may be inquired into in a proceeding to limit liability.\[58\] On a suit for salvage against ship and cargo, the cargo owners cannot litigate against the ship her liability for the disaster.\[59\] An amendment after remand alleging that libelant insurer was authorized to file the libel and collect the amount paid as insurance and that the vessel owner claimed no further damages is supported by proof of a release from the vessel owner to the insurer made after remand on appeal.\[60\]

_Commissioner's_ findings should when practicable be paragraph and numbered and exceptions should refer to such numbers.\[61\] It is of great weight with the court.\[62\] Objections to a commissioner's computation should be by exception. His procedure is analagous to that of a master in chanery.\[63\] It is not a fatal error that on a reference a commissioner sat outside the jurisdiction.\[64\]

\_Hearing and decree.--\_The circuit court may if it has obtained jurisdiction consolidate suits pending before it and the district courts growing out of one disaster.\[65\] Damages should be confined to the claims in the pleadings.\[66\] A decree may be corrected after term in favor of a petitioner free from fraud or laches if justice requires it.\[67\] Unless the vessel was arrested and advertised, cargo owners are not affected by a decree in rem founded on an appearance by vessel owners.\[68\] If the court had power to permit the amendment of a libel, sureties on a stipulation to release a vessel are found by decree as on the original libel.\[69\]

\_Costs.--\_The premium paid to a surety company for a bond to secure libelant's responding in damages to a cross-libel, when such bond is required by a claimant under rule 53, is taxable as costs.\[70\] This is not so where the surety company was obligated to protect the vessel from liens and hence acted for its own protection without really receiving a premium.\[71\] The taking of an excessive bond will not exonerate a claimant from costs if he agreed to the amount or failed to seek a reduction.\[72\] The issuance of an arrest prematurely may be compensated in costs.\[73\] Costs subsequent to a tender of freight for cargo actually carried, less the expense entailed by failure to carry all that was agreed, will be charged to a libeling carrier and not to the shipper.\[74\] If the court had jurisdiction of subject matter and parties the libelant may be charged with costs though the libel be dismissed.\[75\]

**SS 4.**\_Appeals and subsequent proceedings.--Practice on appeal.--\_Dismissal of a cross libel on a collision is an interlocutory order not reviewable by the Supreme Court.\[76\] Judgment on demurrer with leave to amend is interlocutory and goes up with final decree on the amended libel.\[77\] An appeal by one claimant does not bring up other distinct claims covered by the decree.\[78\] Objections to computations by a commissioner will be waived on appeal unless saved by exception on or prior to time of hearing below.\[79\] Objections for nonjounder should be made below.\[80\]

**50.** The James Turple, 113 Fed. 700.

**60.** Fairgreive v. Marine Ins. Co. (C. C. A.)

\*\*112 Fed. 364.

**70.** Jacobsen v. Lewis Klondike Expedition Co. (C. C. A.) 112 Fed. 73. Costs on appeal, see Infra, SS 4.

**61.** The Hiscar. Lines (C. C. A.) 114 Fed. 307.

**62.** The Eliza Lines (C. C. A.) 114 Fed. 307.

**64.** The Villiam H. Bailey, 100 Fed. 115; affirmed, 111 Fed. 1006.

**65.** For salvage against ship and cargo, for possession of cargo by cargo-owner, for payment of freight and general average by master against cargo--The Eliza Lines (C. C. A.) 114 Fed. 307.

**66.** The ftasca, 117 Fed. 885.

**67.** Decree of dismissal Inadvertently entered by clerk before any order was made by court set aside and re-entered to save equal--Hall V. Chisholm (C. C. A.) 117 Fed. 807.

**68.** The Harrogate (C. C. A.) 112 Fed. 1019.

**69.** Fairgreive v. Marine Ins. Co. (C. C. A.) 112 Fed. 364.

**70.** Jacobsen v. Lewis Klondike Expedition Co. (C. C. A.) 112 Fed. 73. Costs on appeal, see Infra, SS 4.

**71.** The Robert Dollar, 116 Fed. 73.

**72.** The Barge No. 137, 113 Fed. 529.

**73.** American Steel Barge Co. v. Chesan-paeke & O. Coal, etc., Co., 115 Fed. 669.

**74.** Edward Hines Lumber Co. v. Chamberlain (C. C. A.) 118 Fed. 716.

**75.** The Francisco, 118 Fed. 112; The F. W. Munn, Id.

**76.** Bowker v. United States (U. S.) 22 Sup. Ct. 802.

**77.** Dennis v. Slyfield (C. C. A.) 117 Fed.

**78.** Mason v. Marine Ins. Co. (C. C. A.) 110 Fed. 452.

**79.** The Eliza Lines (C. C. A.) 114 Fed. 307.

**80.** Salvage \_Review and hearing.--\_Error must be made manifest by appellant before a conclusion reached by two courts below will be disturbed.\[91\] The same is true where testimony was conflicting or where the witnesses are not impugned in any way.\[82\] The trial court's award will be reduced only for injustice, palpable error or gross overallowance,\[83\] and the court will strongly favor the correctness of a decree for damages after an appraisenent taken, as against testimony of witnesses who saw the vessel some years later.\[84\] The practice of taking further testi-mony on app-1 is to be discouraged.\[85\] Defects in record or proof due to appellant's lack of diligence are not reversible errors.\[86\] If the final judgment was on one cause of action only the other having been dismissed it matters not that there was a misjoinder.\[87\]

_A mandate_ reversing the decree because an insurer recovered more than he paid, and which allowed an amendment to show that no liability longer existed towards any one but insurer is satisfied by an amendment and proof that after remand the vessel owner released all right to the insurer.\[88\] An amendment to plead a special defense in a new form after it has gone through to the Supreme Court and been remanded will be denied.\[89\] Each party should pay his own costs rather than divide them where both appeal and both fail to maintain the appeals.\[90\]

## 6 Adoption of Children.\[91\]

\_Adaptive acts and proceedings.--\_A parol agreement may be executed so as to dispense with a deed by reception of a child as one's own and by so treating her until grown\[92\] and may be specifically enforced.\[93\] A sealed will reciting an adoption is neither operative as a deed of adoption nor conclusive that one had been made.\[94\] The fact that a deed of adoption was recorded is evidence that an acknowledgement of it was regular\[95\] and the record of an order of adoption reciting presence of the parties and of the child and execution of consents overcomes an objection that the agreements were not executed in the judge's presence.\[96\] A petition may state residence of parents by reference to their written consent attached to it.\[97\] A probate judgment of adoption will be secure against collateral attack though not formally entered. The essential facts other than those recited will be presumed to have been found.\[98\] A blank decree signed and with proper vessel not made parties--The Flottbek (C. C. A.) 118 Fed. 954.

81. Wilder's S. S. Co. v. Low (C. C. A.) 112 Fed. 161.

01. Jacobsen v. Lewis Klondike Expedition Co. (C. C. A.) 112 Fed. 73; Alaska Packers' Ass' N. Domenico (C. C. A.) 117 Fed. 93.

01. Hume v. J. D. Spreckelets & Bros. Co. (C. C. A.) 115 Fed. 51.

01. Fairfareve v. Marine Ins. Co. (C. C. A.) 112 Fed. 364.

01. Should be produced on trial when pos-stole--Pacific Stean Whaling Co. v. Grismore (C. C. A.) 117 Fed. 68.

01. The McDonald (C. C. A.) 112 Fed. 681.

01. The S. L. Watson (C. C. A.) 118 Fed. 945; The Thomas P. Sheldon, Id.

01. Fairfareve v. Marine Ins. Co. (C. C. A.) 112 Fed. 364.

01. Burrill v. Crossman, 111 Fed. 192.

01. Donnell v. Amoskea Mfg. Co. (C. C. A.) 118 Fed. 10; Amoskea Mfg. Co. v. Donnell. Id.; following The North Star. 106 U. S. 17, 27 Law. Ed. 91: rejecting rule for division In McComb v. Frink. 149 U. S. 629, 37 Law. Ed. 876.

01. The legal relation between a foster parent and child is considered to belong to the title "Parent and Child."

01. The surrender was on the express condition that she would be so treated and the foster parent concealed from the child its real parentage--Lynn v. Hockaday, 165 Mo. 111.

01. MoElvain v. McElvain (Mo.) 71 S. W. 142.

01. In re Phillips' Estate, 17 Pa. Super. Ct. 103.

01. It bore two signatures, one by the probate Judge, and one by unauthorized officer. The law (Vt. Stat. 1894, 92861) required the probate judge to be satisfied that it had been compiled with--Cook v. Bartlett. 179 Mass. 576.

01. Von Beck v. Thomsen. 44 App. Div. (N. Y.) 373: affirmed, 167 N. X. 601.

01. Substantial compliance with I Starr & C. Ann. St. 1895, p. 353--Flannigan v. How-ard. 200 Ill. 396.

01. Blanks were left in the decree for the names of the adopter and the children--Vllson v. Otis (N. H.) 53 Atl. 459.

necessary findings is proof of rendition of such a deeree."44 Validity of the deeree is unaffected by the long absence of the petition and decree from the court files." An adoption is not presumed merely from the fact that the child resided with the alleged adaptor who was of the same race."5 It cannot be proved by parol evidence, unless there be some testimony as to the legal act of adoption and explanation of why it is not produced."5

\_Consequences of adoption.--\_The adopting father's wife acquires no paternal rights under the Tennessee laws if she does not join in the proceedings."5 Neither is the natural mother estopped as against her by having joined."6 In Nebraska there is no inheritable capacity conferred if it be not so stipulated in the act of adoption."6 In Missouri it is conferred by an executed parol adoption."7 In Wisconsin adoption of a child during marriage revokes a will"7 and the same results in .Illinois by virtue of acts giving the inheritable capacity."8 Bastards may in some states be legitimized by acts of adoption or recognition and thus clothed with inheritable and other rights."8 Where the proceeding confers "all the rights" of the relation, a child adopted comes under a prior policy payable to "children,"91 but the question whether the word "child" includes an adopted one usually involves the interpretation of the instrument containing it."9

_A contract to adopt_ providing that the adopter shall care for, maintain and make future provision for a child, to give her his name and teach her to regard himself and wife as parents is sufficiently definite to be specifically enforced, is consonant with public policy, and has for its consideration the surrender of parental rights by the real parents. It is not unjust to the widow and natural children if only a child's portion falls to the adopted one."10 It is not enforceable at law and may not be in equity if the child lives unworthily."9 Declarations and suppositions that the parent would make the adopted child a legatee must have amounted to a contract so to do, or the child will have no rights against a contrary disposal by the will."10

## 1 Legislation and regulation

The police power entitles a state to repress or forbid adulterations that are deleterious11 which are not protected because they happen to be by a patented process."12 Statutes directed against sale of injuriously or fraudulently adulterated foods are not an interference with interstate commerce."13 A state law against fraudulent adulterations does not conflict with the Thomsen, 44 App. Div. (N. Y.) 373; affirmed.

167 N. Y. 601. A policy payable to the foster mother or to children if she should pre-de-cease the insured is not a trust dependent on survival of helrs within the exception of the statute (see section 10).

172 See Willis and like titles. Not included in "boldily heirs"--Balch v. Johnson, 106 Tenn. 249.

173 Healy v. Henly, 55 App. Div. (N. Y.) 315; affirmed, 167 N. Y. 572.

174 Winne v. Wienne, 166 N. Y. 262.

175 Steele v. Steele, 161 Mo. 566, Testimony of a conversation 30 years ago not sufflect to prove agreement to make adopted child helr in face of a deed to custody of the child silent on the subject--Merchant v. White, 77 App. Div. (N. Y.) 539.

176 Commonwealth v. Klevhn, 202 Pa. 23.

177 Arbuckle v. Blackburn (C. C. A.) 115 Fed. 616.

178 As in Ohio--Arbuckle v. Blackburn (C. C. A.) 113 Fed. 616.

## 8. **End**

### 8.1. **End**

The "End" of the "End

## 4.1 Adultery.

Private persons may complain of a violation of a law though enforcement of it be enjoined on certain officers.\[84\] The accusation need not negative an exception in favor of certain compounds used as food.\[47\] It suffices to allege presence of a "substance injurious" without adding a charge that the particular adulterant was so.\[88\] A proviso that the vendor of food shall sell a sample for analysis if requested does not require that the accusation shall show whether any was so procured nor how evidence was obtained.\[20\] Whether samples of milk on which conviction is sought were fairly taken will not be submitted unless there is a contrariety of evidence thereupon.\[40\] Affidavits under the New York laws to sustain an application to enjoin sale of adulterated food pending prosecution should show statutory elements of the offense.\[41\]

## 4.2 Adultery.\[42\]

\_The offense.--\_Parties must dwell together in a common residence, to "live together"\[43\] and a single act is not "living in adultery."\[44\] The paramour need not be married.\[45\]

\_The indictment.--\_No continuendo need accompany an averment as on a certain day.\[46\] The words "having a lawful wife other than A" do not imply that she is the wife of accused as against a contrary averment, and an averment as to her being married is needless in such a case.\[47\]

\_Evidence.--\_The same rules of admissibility apply as in divorce or criminal conversation.\[48\] The fact that accused went into hearsay as to his relation with the paramour, does not open the way to the state.\[49\] Circumstances must be brought home to accused.\[60\] Immodest, familiar or equivocal conduct may be shown on the question of intimacy,\[51\] or it may be proved by declarations showing influence with the paramour\[52\] in connection with which the occasion of making them may be proved.\[54\]

Bad repute of the paramour is excluded.\[54\] The fact that accused being able to hear it laughed aloud when the guilty wife repulsed her husband is relevant.\[55\]

$100 the smaller sum may be collected despite the absence of a provision as to who shall fix the amount--People v. Bremer, 69 App. Div. (N. Y.) 14.

**36.** Board of health: Acts 1899, p. 189--Isenhour v. State, 157 Ind. 517.

**37.** Nor allege that any standard of purtry had been fixed under a statute which merely authorized the health board so do, but which in any event declared a penalty-Isenhour v. State, 157 Ind. 517.

**38.** Formaldehyde--Isenhour v. State, 157 Ind. 517.

**39.** Acts 1899, p. 189--Isenhour v. State, 157 Ind. 517.

**40.** The inspectors testified without contradiction that the milk was thoroughly stirred before samplings--People v. Laesser (Sup.) 79 N. Y. Supp. 470.

**41.** Laws 1893, c. 338, $ 10--People v. Withdlo, 68 App. Div. (N. Y.) 552. Injunction against further sale, in N. Y. not grantable by county judge. See statutes--People v. Withdlo, 68 App. Div. (N. Y.) 562.

**42.** Matters of law and procedure common to all crimes see Criminal Law: Criminal Procedure; Indictment, etc. Also see, Formation; Disorderly Conduct. Civ11 Liability, see Tbusband and VWrite; Seduction. Ground for divorce, see Divore.

**43.** Massey v. State (Tex. Cr. App.) 65 S. W. 911.

**44.** Penal Code, $ 381--Lawson v. State (Ga.) 42 S. E. 752.

**45.** Lyman v. People, 98 III. App. 386.

**46.** "Living in open" adultery--Lyman v. People, 198 III. 544.

**47.** Lyman v. People, 198 III. 544.

**48.** State v. Kimball, 74 V. 223. Consult Divorce; Husband and VWrite.

**49.** Guinn v. State (Tex. Cr. App.) 65 S. W. 376.

**50.** Hat and coat found where there had been swallowing on the ground but no proof of ownership nor that accused and paramount had been on the ground--Guinn v. State (Tex. Cr. App.) 65 S. W. 376.

**51.** Getting drunk together, the one falling into the other's lap, going riding toget, going as by prearrangement to a negroro's house--Guinn v. State (Tex. Cr. App.) 65 S. W. 376.

**52.** Professions of ability to induce him to furnish ball for a third person--Roller v. State (Tex. Cr. App.) 66 S. W. 777.

**53.** Making arrest of third person at home of accused--Roller v. State (Tex. Cr. App.) 66 S. W. 777.

**54.** Guinn v. State (Tex. Cr. App.) 65 S. W. 376.

## 30 Adverse Possession.

The corpus delicti need not be separately shown.\[64\] Adulterous inclination or undue attentiveness together with equivocal meetings may suffice to prove the of-fense.\[67\]

\_Practice and trial.--\_The indictment is not vitiated because a transcript removing the cause unnecessarily names the offense and misdescribes it.\[58\] The injured spouse may insist on a dismissal if given the sole right to prosecute.\[69\] It is not necessary that both though jointly indicted be tried together.\[69\] If the offense be a misdemeanor no election is compelling.\[61\] Instructions need not define "adultery."\[70\] Whether there was in fact a cohabitation together in open auditory under a statute so defining the crime should be submitted to the jury and it is not sufficient to put to them only the question whether defendants "cohabited together and had intercourse."\[71\] It is not error unless made so by objection that the bastard offspring of the adulterer was in court in view of the jury.\[64\]

## 4 Adverse Possession.

\_Eslates and property subject to adverse possession.--\_There can be no adverse holding of public property against the United States or a state,\[69\] or a municipal corporation holding in trust for the public,\[67\] so a street cannot be adversely held,\[68\] as where abutting owners encroach.\[69\] Alley's dedicated for the common use of particular lots,\[70\] or in Minnesota, highways\[68\] are exceptions to this rule. Statutes in some states, exempt railroad lands from limitation acts.\[71\] Such acts are not grants of special privileges.\[71\] A town-site excepted from a **55**. Campbell v. State (Ala.) 32 So. 635. A **67**. Norrell v. Augusta R. & Elec. Co. (Ga.) 42 S. E. 466. **7**. Tide land belonging to a city is not subject to state possessory acts; Cal. Statutes 1852, cused could not have heard it--Gunn v. P. 158--United Land Ass'n v. Pacific Imp. Co. (Call.) 65 S. Pao. 1064. **68**. City of Dekalb v. Luney, 193 Ill. 185. **57**. Amorous letters written after arrest --Montenth v. State, 114 Wiss. 165 and see **58**. State v. Schadler (Iowa) 90 N. W. 91. **Evidence examined--Lyman v. People, 198**. Ill. 64 ("Living in open") **40**. Also proof of marriage\]; State v. Kimball, 74 Vt. 223; State v. Schadler (Iowa) 90 N. W. 91; subsequent acts held sufficient to show inclination. and, with other facts, to coviot--State v. More, 115 Iowa, 178; evidence not sufflection to show "Living together"--Burt v. State (Tex. Cr. App.) 70 S. W. 207. **58**. Aulterly called "Adultery and fornti--cation." Code Cr. Proc., art, 471--Roller v. State (Tex. Cr. App.) 66 S. W. 777. **59**. Hosford v. Gratiot Circuit Judge (Alt.) 88 N. W. 627. **60**. Lyman v. People, 98 Ill. App. 386. **61**. Massey v. State (Tex. Cr. App.) 65 V. 911. **62**. Lyman v. People, 198 Ill. 544. **63**. Tomlinson v. People, 102 Ill. 542. **64**. Groen v. State (Tex. Cr. App.) 70 S. W. 22. **65**. Bar of actions concerning real property not dependent on possession, see Limitation of Actions. **65**. Basements may be gained by prescriptive use and in like manner a dedication may be presumed from long use, etc., see Easements; Dedication. Loss of property rights by abandonment, see Property. **66**. Schlosser v. Hemphball (Iowa) 90 N. W. 814; U. S. v. Dastervignes, 118 Fed. 199. **67**. Norrell v. Augusta R. & Elec. Co. (Ga.) 42 S. E. 466. **7**. Tide land belonging to a city is not subject to state possessory acts; Cal. Statutes 1852, cused could not have heard it--Gunn v. P. 158--United Land Ass'n v. Pacific Imp. Co. (Call.) 65 S. Pao. 1064. **68**. City of Dekalb v. Luney, 193 Ill. 185. As where a railroad occupied by an embarment and culvert--Tkelv y. Pittsburgh C. C. & St. L. R. Co., 28 Ind. App. 457. **71**. We have possession was under a deced from the dedictor, subsequent to the execution of the ded to the city--Norrell v. Augusta R. & Elec. Co. (Ga.) 42 S. E. 466. **69**. Shirk v. Chicago, 195 Ill. 298. **70**. Hegan v. Padennis Club, 23 Ky. Law R. 861. **71**. Prior to Laws 18 deed but actually enclosed and occupied may be acquired by a holding sufficiently continued.\[74\] In the case of government land, possession may become adverse as soon as the entryman is entitled to a patent,\[75\] and a right in public lands which may be perfected and rendered capable of assertion may be barred.\[76\]

SS 2. \_Against whom available.--\_Adverse possession will not avail against the state,\[77\] or a municipal corporation, or against minors.\[78\] After right of entry accrues to them, possession may be adverse to the remaindermen.\[79\] In Illinois possession by an heir is not adverse to the unassigned dower right of the widow.\[80\] Statutes of limitation do not run against a woman during coverture,\[81\] but may run against one through whom she subsequently claims.\[82\]

SS 3. \_To whom available.\[83\]--\_A railroad company may hold adversely.\[84\] A city as trustee for the public cannot hold for its own benefit.\[85\] A city cannot acquire title by adverse possession through the erection of a building on ground to which it makes no claim except as part of a public street.\[86\] One holding by purchase may also assert limitation acts.\[87\] A judgment purchaser may hold against a claim under a mortgage junior to the judgment.\[88\]

SS 4. \_Definition and essential elements.--\_All statutory elements must be united,\[89\] and there be actual possession,\[90\] before action brought.\[91\] Enclosure may be required.\[92\] Occupancy must be open, continuous, notorious and ad-a public highway, is announced in Olecott v. \[ing of a bed of a dried up body of water Fond du Lac County Sup'rs, 16 Wall. (U. S.) owned by either the federal government or 675. 21 Law. Ed. 382, and in accord therewith the state-Carr v. Moore (Iowa) 93 N. W. 52; are Moran v. Ross, 79 Cal. 159, 21 Pac. 547; Bryan v. Same, Id. St. J. & D. C. R. Co. v. Baldwin, 103 U. S. 426, 78. Mobile Transp. Co. v. City of Mobile, 26 Law. Ed. 678; Drovin v. Boston & M. R. 128 Ala. 335; Norrell v. Augusta R. & El. Co. (C. Vt.) 52 AL. 957; Philadelphia R. R. Co. v. (Ga.) 2& S. E. 466; claim under deed from v. Obert. 109 Pa. 193; Pennsylvania R. Co. v. Freeport. 138 Pa. 91: Bassett v. Pennsylvania 63 S. C. 78.

T9. Widow who was life devisee procured jurisdictions it is held. however, that rail-regal tele by payment of balance of purchase money due on bond and conveyed to statue will run against them. This is the men more than ten years after the death of the widow--Love v. Butler, 129 Ala. 531.

and the court eites in accord with its view, the limitation law--Brumback v. Brumback, 198 III. 66.

81. Estes v. Turner (Tex. Civ. App.) 70 shue v. Illinois Cont. R. Co. v. 107.

01. Estes v. Turner (Tex. Civ. App.) 70

01. Estes v. Turner (Tex. Civ. App.) 70

01. V. 1007.

01. Sales post, $ 5, as to particular relationships affecting hostility of claim.

01. Ohio River R. Co. v. Johnson, 50 W. Vt. 49.

01. Kansas City v. Searritt, 169 Mo. 471.

01. This case seems to depend on the fact that the city has no power to erect buildings on land which it had dedicated for street purposes--\_Pettit v. Grand Junction (Iowa) 93 N. W. 781.

01. Adams v. Hopkins (Cal.) 69 Pac. 228.

01. Mortgages cannot enforce a lien after ten years (Rev. St. Wis. 1898, $ 4211)--GunnI--P. R. Co. v. Hasse, 28 Vash. 355, $ 68 Pac. 882.

01. The original grantee held for 17 years and his wife after a conveyance to her for 13 years, under color of title of the entire tract, the land having been enclosed 25 years -Hohl v. Osborne (Iowa) 92 N. W. 697.

01. Baby v. Elrod (Neb.) 92 N. W. 1032.

01. Robles v. Cooksey (Tex. Civ. App.) 70 S. W. 584.

01. Kolb v. Jones, 62 S. C. 193, and cases cited under $ 1, supra. There can be no hold verse,93 and possession must be apparent to other claimants.94 There must be no actual occupancy by others,95 though it seems an encroacher need not be evicted where there is no knowledge of adverse claim. Erection of telegraph lines without claim of title is not adverse possession.97 A city cannot acquire land for a park by mere public use without a claim by the authorities that it is public property.98

Footnote 98: The author is grateful to the anonymous referee for his comments.

Footnote 99: The author is grateful to the anonymous referee for his comments.

## 11 Adverse Possession.

hold adversely. \[11\] A widow's occupancy begun in subordination to the title of her husband is not adverse to his heirs, \[12\] and the rule applies to a purchaser from certain heirs. \[13\] One entitled to an undivided interest in land as an heir may purchase from one who has acquired an interest through a tax sale and hold adversely. \[14\] Occupancy by the husband may be adverse to the wife's statutory estate after her death. \[15\] One continuing on a homesetead entry after its cancellation and a grant of the land to a railroad holds adversely. \[16\] A grantor may hold adversely to his grantee, \[17\] but possession under a contract of purchase unconmplied with is not adverse, \[18\] as when there is a default in payment of the purchase money. \[19\] The vendee must be entitled to a ded. \[20\] Mere occupancy after a conveyance is presumed to be in subordination to the title conveyed, \[21\] as where grantees are children, \[22\] though not where there is a re-entry after conveyance with covenants of warranty. \[23\] An heir in joint possession with a widow who has a dover interest does not cause his wife to hold adversely by a voluntary conveyance to her. \[24\] Where the vendee is in partial occupancy the vendor cannot hold the unoccupied portion adversely without notice, \[25\] as where a vendor remains in possession of a portion of the premises described in his conveyance but makes no claim of ownership to more than the amount of land remaining in him according to the terms of his conveyance. \[26\] Possession under a claim that a conveyance was in trust for the occupants is not hostile to the grantee, \[27\] or permissive possession under a ded fraudulent as to creditors. \[28\] Vendees holding subject to a vendor's alien cannot claim their possession as adverse. \[29\]

_Mortgagor and mortgage_.--A constructive mortgage in possession under an agreement that rent shall be applied to payment of taxes and compensation of the mortgage, does not hold adversely, \[30\] or a mortgage in possession who accepts payments on the debt. \[31\] The grantee of a mortgagor cannot assert title as against one acquiring title through a sale under the mortgage, where the grantee has by taking a contract for a ded from the purchaser at such sale, recognized its validity. \[22\] Foreclosure to which a grantee of the mortgagor is not made a party does not alter the character of his possession as being consistent and subject to the title under the mortgage. \[33\] After foreclosure of a mortgage by exercise of the power of sale the mortgagor may hold possession adversely, though the mortgage

11. Walker v. Killian. 62 8. C. 482.

01. Smith v. Cunningham. 79 Miss. 425.

01. Purchasers from certain heirs are regarded as holding in amuty with the other heirs and widow--Sergent v. North Chamber--and Mfg. Co. 83 Ky. Law. 8226.

01. It will not amount to a mere redemption by an heir, and Ilmitation act, $ 6, Hurd's Rev. St. 1899, p. 1117, will apply--Richards v. Carter, 201 Ill. 165.

01. Lide v. Park (Ala.) 33 56.

01. This holding was accompanied by acts of dominion such as fendings, eultivation, erected of buildings, and payment of taxes--willburn v. Cedar Rapids & M. R. K. Co. (Iowa) 89 N. W. 101.

01. Mannik v. Riordan, 75 App. Div. (N. F.) 135.

01. Alsup v. Stewart, 194 Ill. 595; Jenk-Nus v. McMichael, 17 Pa. Super. Ct. 476.

01. Thompson v. Dutton (Tex. Civ. App.), N. W. 955.

01. R. S. VY. 641; judgment reversed on rehearing. Id. 996. So held where after breach in the bond a vendor retocok and held possession for 10 years without accounting for rents and profits or otherwise recognizing the purchaser--Love v. Butler, 129 Ala. 631.

Cur. Law 3.

20. Beer v. Dalton (Neb.) 92 N. W. 593.

01. Collins v. Colleran, 86 Min. 199.

01. Continued for eight years--Tully v. Tully, 137 Cl. 69 Pa. 700.

01. Horbach v. Boyd (Neb.) 89 N. W. 644.

01. Constraints Rev. St. Ill., &. 83, & 6-Brumbback v. Prumback, 198 Ill. 66.

01. So held where a portion of land grant--draft v. R. St. Louis, I. M. & S. R. Co., 69.

01. In this case the vendor did not know where the boundary of his conveyance went and although he cultivated a portion, made no improvements and elim of title--Woods v. Texas Land & Loan Co. (Tex. Civ. App.) 67 S. V. 165.

01. McClenahan v. Stevenson (Iowa) 91 N. W. 925.

01. McClenahan v. Stevenson (Iowa) 91 N. W. 925.

01. McClenahan v. Stevenson (Iowa) 91 N. W. 925.

01. Murray v. McNew (Tex

## 34 Adverse Possession.

purchases.\[24\] As against a claim of adverse possession asserted in partition, it is proper to show that claimant entered as a tenant.\[25\]

_Error as to boundary.--If occupancy is due to a mere mistake as to the location of a line neither of the adjoining owners can claim adversely,\[26\] but there may be adverse occupancy,\[37\] as where there is a claim of ownership to the line,\[28\] or where adjoining owners each claim to own beyond a fence erected without regard to the actual boundary,\[39\] but not where the occupant makes no claim to land other than his lot.\[40\]_

_Recognition of a superior title_ where a portion of a lot is held adversely does not result from the securing of a license to use the remainder.\[41\] Occupant may purchase outstanding claims of portions.\[42\] Assertions in legal proceedings of an intent not to claim a fee, will prevent an adverse holding.\[43\]

\_Merger or altornment.--\_Adverse holding ceases if adjoining tracts become the property of the same owner.\[44\] Attornment to the true owner interrupts possession.\[43\]

SS 6. \_Sufficiency of possession.--\_Actual occupancy and possession may suffice without enclosure, cultivation and improvement.\[45\] Occasional entries or cuttings of timber are not sufficient.\[47\] The possession should be distinct and entire.\[45\] Possession must be exclusive.\[49\] Adverse possession will not run against tenants in common when any tenant is in possession.\[50\] Actual, physical possession may be required.\[31\] It may be by tenant.\[52\] Permission by the claimant of appropriation of the land by others may be sufficient to defeat his claim.\[53\] Acts consistent

## 34 Garren v. Fields, 121 Ala. 304.

\[38\] Consuring Code N. C., 147, providating that where a tenancy is established. a tenant's possession will be deemed the land.\[39\] The possession should be distinct and entire.\[45\] from the last payment of rent--Bulluck v. Bulluck. 131 N. C. 29.

\[46\] As. Small V. Hamblet, 24 Ky. Law R. 283; Patton v. Smith (Mo.) 71 S. W. 187.

\[47\] Shr. Where land was enclosed and cultivated for more than fifteen years--Ders v. Ward (Minn.) 92 N. W. 402; as where the strip in question is cultivated enclosed and buildings erected thereon--Web v. Rhodes, 28 Ind. App. 392; occupancy under belief that land is part of another tract and that that it

## 6 Adverse Possession.

with an intention to make trespasses until forbidden, are insufficient.\[54\]\*\*Erection of permanent improvements is a strong circumstance supporting the inference of adverse possession.\[55\] Possession of an alley under a claim that it is vacated is sufficiently adverse.\[56\] Under statutes concerning the acquisition of title to vacant land, entry must be made before the actual owner takes possession.\[57\]

Continuity.--Interrupted possession for the statutory period will not suffice unless the possessions are connected.\[58\] A secret re-entry does not interrupt possession,\[59\] nor changes in political divisions,\[60\] nor a judgment in ejectment where there is no surrender, entry or execution,\[61\] nor proceedings in insolvency where the premises are a declared homestead,\[62\] nor occasional entries there being actual enclosure.\[63\] Possession by an executor will not be regarded as an interruption.\[64\] The acts must be such as to afford reasonable notice to the adverse occupant that his possession is challenged.\[65\] A re-assumption of possession does not relate to a former occupancy.\[66\]

Duration.--Possession must extend through the statutory period\[67\] which begins to run from the first act construed as an assertion of hostile holding.\[68\] Possession while there is no cause of action cannot be included,\[69\] or pending an action against claimant to recover the land.\[60\] Entry while the title is in litigation will not constitute a diseisin.\[71\] Time between filing of an application for school land and the issue of a patent therefor may be included,\[72\] or after identification of railroad land.\[73\]

## 9 Knight v. Denman (Neb.) 90 N. W.

, held less than three years does not show ad- 863: Ritter v. Myers (Neb.) 92 N. W. G88.

, verse holding for a sufficient period--Stan- 55. Brock v. Bear (Va.) 42 S. E. 807. Di- 42 S. E. 807. Di- 42 S. E. 807. Di- 42 S. E. 807. Di- 42 S. E. 808. Di- 42 S. E. 808. Di- 42 S. E. 809. Di- 42 S. E. 809. Di- 42 S. E. 809. Di- 42 S. E. 809. Di- 42 S. E. 809. Di- 42 S. E. 809. Di- 42 S. E. 809. Di- 42 S. E. 809. Di- 42 S. E. 810. Di- 42 S. E. 82. Di- 42 S. E. 83. Di- 42 S. E. 84. Di- 42 S. E. 84. Di- 42 S. E. 85. Di- 42 S. E. 86. Di- 42 S. E. 87. Di- 42 S. E. 88. Di- 42 S. E. 89. Di- 42 S. E. 810. Di- 42 S. E. 82. Di- 42 S. E. 83. Di- 42 S. E. 84. Di- 42 S. E. 85. Di- 42 S. E. 86. Di- 42 S. E. 87. Di- 42 S. E. 88. Di- 42 S. E. 89. Di- 42 S. E. 809. Di- 42 S. E. 810. Di- 42 S. E. 82. Di- 42 S. E. 83. Di- 42 S. E. 84. Di- 42 S. E. 85. Di- 42 S. E. 86. Di- 42 S. E. 87. Di- 42 S. E. 88. Di- 42 S. E. 89. Di- 42 S. E. 809. Di- 42 S. E. 810. Di- 42 S. E. 82. Di- 42 S. E. 83. Di- 42 S. E. 84. Di- 42 S. E. 85. Di- 42 S. E. 86. Di- 42 S. E. 87. Di- 42 S. E. 88. Di- 42 S. E. 89. Di- 42 S. E. 809. Di- 42 S. E. 810. Di- 42 S. E. 82. Di- 42 S. E. 83. Di- 42 S. E. 84. Di- 42 S. E. 85. Di- 42 S. E. 86. Di- 42 S. E. 87. Di- 42 S. E. 88. Di- 42 S. E. 89. Di- 42 S. E. 80. Di- 42 S. E. 810. Di- 42 S. E. 82. Di- 42 S. E. 83. Di- 42 S. E. 84. Di- 42 S. E. 85. Di- 42 S. E. 86. Di- 42 S. E. 87. Di- 42 S. E. 88. Di- 42 S. E. 88. Di- 42 S. E. 89. Di- 42 S. E. 80. Di- 42 S. E.

One attempting to tack possessions must show a continuity of transfer.14 Under certain statutes the doctrine of tacking possession does not apply.15 Possession of an heir may be tacked to that of his ancestor, through whom he acquires possession;16 but not possession under a deed from a trespaser to the trespasser's possession.17 An adverse possession cannot be tacked to a prior possession not adverse;18 as one under contract of purchase.19 Possession under a tax sale against an execution purchaser may be joined to the execution debtor's possession if he acquires title from such tax purchaser.80 One claiming by adverse possession in another must connect himself therewith.81

SS 9. _Color of title_.--Title of record is unnecessary82 except under particular statutes requiring a deed and claim of title of record.83 Where a statute provides a limitation in favor of those holding under recorded deeds. the heir of one so holding may claim a portion of the property set aside to her in partition without record of the order of court, setting it apart to her.84 Under the same statute a will need not be recorded to enable the heir to claim by a deed of record to his ancestor.85 Where adverse possession must be under title or color thereof or under a duly registered deed, it cannot be asserted by a grantor against his own deed.86 Conveyance of an undefined portion of a larger tract followed by a subsequent and ratified definition of the tract conveyed breaks the continuity of title thereto as regards others claiming in the status of the grantor.87 The fact that claimant's grantor obtained title by conveyances of constituent portions does not affect the quality of his deed of the entire tract as color.88 Written evidence of title in grantor does not avail to his parol grantee.89

A tax deed is not a title deducible of record from the commonwealth,80 but may be color of title91 without proof of the validity of the antecedent proceedings,92 and though it faultily describe the owner,93 or there were defects in the assessment;19 but the title derived from a tax sale, void for insufficiency of de

## 11 Adverse Possession.

scription, will not sustain adverse possession. \[98\] Where a tax purchaser and his vendee have no title because of invalidity of the sale and knowledge thereof, their vendees may have a title valid on its face sufficient to sustain title by prescription. \[96\] A judgment in eminent domain proceedings is not a paper title, \[87\] or a judgment in a petitory action. \[98\] One purchasing at execution sale after the title has passed to the wife of the judgment debtor, is not in under color of title. \[99\] A voidable deed in foreclosure regular and valid on its face is color of title, \[1\] as where a decree and deed purport to convey a fee on foreclosure of a mortgage of a life estate. \[2\] Possession for 20 years under an ordinary's deed is sufficient. \[3\]

_The instrument_ to be color of title must on its face be such and cannot be aided by paro\], though extrinsic evidence may be admissible to render the disscription certain. \[9\] A conveyance having a grantor and grantee and purporting to pass land aptly described is color of title, \[9\] though not sufficient to convey title, \[9\] void, \[9\] executed by one without title, \[9\] or under disability, \[10\] or a mere quitclaim deed. \[11\] A void headright grant is not sufficient. \[12\] A deed or mortgage insufficient to convey a homestead does not amount to color \[13\] though in some states such instrument, void through nonjoinder of the wife may be color of title as against third persons. \[14\] A deed by the husband though void as against the wife will operate to fix the scope of the grantee's possession. \[15\] If the description be such that a surveyor can from it locate the land it is sufficient. \[16\] A deed purporting to convey part of a larger tract must identify the part conveyed. \[17\] Color of title to a government fraction extends only to the line of the government survey. \[18\] Where an enclosed lot is sold, the fact that the boundary is doubtful on account of uncertainty as to the location of a starting point, does not prevent the grantee from acquiring title. \[19\] Possession under a parol contract of sale is good. \[20\]

## 12 Cooper V. Falk (La.) 33 So. 567.

\[21\] Cooper V. Falk (La.) 33 So. 567.

\[22\] Cooper V. Falk (La.) 33 So. 567.

\[23\] Construng Emm. Dom. Act. Hurd's Rev. St. 1899. p. 839. p. 47. $10 and Hurd's Rev. St., p. 1188. p. 83. p. 6-Converse V. Calumet River R. Co., 195 III. 204.

\[24\] Ten years prescription against those claiming through the unsuccessful parties, the judgment being in favor of one holding a certificate of purchase from the state--Harrave v. Mouton (La.) 33 So. 569.

\[25\] Under the three years statute--Vatts v. Bruce. 72 S. V. 255.

\[26\] H. B. Claflin Co. v. Middlesex Banking Co. (Ark.) 118 Fed. 953.

\[27\] Webb V. Winter, 135 Cal. 455, 67 Pac. 651; reversed judgment, Id., 65 Pac. 1028.

\[28\] As where there is a sale under partition between the helrs of a lessee--Few v. Keller, 63 S. C. 154.

\[29\] Converse v. Calumet River R. Co., 195 III. 204.

\[30\] Sharp v. Shenandohal Furnnce Co., 3 Va. Su., Ch. R. 689.

\[31\] Schlagerer v. Gude (Colo.) 70 Pac. 428; Robinson v. Lowe, 50 W. Va. 75.

\[32\] Sharp v. Shenandohal Furnnce Co., 3 Va. Su., Ch. R. 559.

\[33\] Bennett v. Pierce, 50 W. Va. 604.

\[34\] Roth v. Munzenmaler (Iowa) 91 N. W., 1072.

\[35\] A' warranty deed from an Indian pattee is color of title in the hands of innocent grantees, though the patentee is incompet under the treaty and his patent pro-vided that the land should not be conveyed without the consent of the secretary of the vendee. \[36\]

\[37\] Interior--Schrimpscher v. Stockton, 183 U. S. 290. 46 Law. Ed. 203, affirming judgment, Id., 68 Kan. 758. 51 Pac. 276.

\[38\] Johnson v. Girman, 115 Ga. 794.

\[39\] Under a years statute--Sheppar v. Avery (Tex. Civ. App.) 68 S. W. 82.

\[40\] So Red when not joined in by the wife-Garrer v. Blake (Tex.) 65 S. W. 876; affirming judgment Black v. Garner (Tex.) 65 U. App.) 68 S. W. 918.

\[41\] Avera v. Williams (Miss.) 33 So. 501.

\[42\] Williams v. Bradley (Tex. Civ. App.) 67 S. W. 170.

\[ \_Payment of taxes.--\_One who on account of his peculiar relation to the title is bound to pay taxes, cannot avail himself of such payments to support a title by adverse possession.\[31\] Payment of taxes on vacant land whlle an assertion of title is not equivalent to possession.\[22\] Under laws making payment of taxes an element of possession all taxes must be paid by the claimant.\[23\] Under some statutes payment must be coupled with possession.\[24\] Payment under a deed of record establishes the possession to be adverse.\[25\] It cannot be objeated that the claimant did not pay taxes, where the boundaries being uncertain, no taxes were assessed on the strip in controversy, if they were not included in the assessment paid by claimant.\[26\]

\_Area of possession.--\_By statute, the amount of land to be acquired by limitation may be limited.\[27\] The instrument under which claimant entered is not conclusive as to the scope of possession.\[28\] One in possession of a portion of a tract under color of title to the whole has constructive possession of the entire tract, if not actually adversely occupied,\[29\] though the color of title is void.\[30\] To increase constructive possession, the boundaries of the color cannot be enlarged by intention to convey more land.\[31\] Such possession is lost by conveyance of the portion in actual occupancy,\[32\] or by sale of the part constructively possessed.\[33\] Possession of part may be under a deed improperly recorded\[34\] but does not extend to land held under distinct conveyances,\[35\] nor does it affect a record owner whose land is included in a deed between strangers but no portion occupied.\[36\] Constructive possession of the legal owner is not disturbed by a possession not within the boundaries of his grant though within the boundaries of a conflicting title which included the occupant's land.\[37\] There is no constructive possession of enclosed land, a portion of which only is actually occupied.\[38\] Actual possession cannot be overcome by constructive possession though under a later title deed.\[39\]

## 11. _Johnston v. Case._ 131 N. C. 491.

of the mortgasor.

## 13 Adverse possession.

A deed which by mistake describes land claimed will not prevent acquisition of title where immediately after, the mistake is acknowledged by all parties.\[40\] Execution of a lease of an entire tract by one holding a deed to a portion does not extend constructive possession to part not actually occupied by the lessor,\[41\] Where a lap caused by conflicting descriptions is not enclosed, in the absence of actual occupancy constructive possession enures to the superior title.\[42\] Under mere claim of title, possession is in certain states limited to actual inclosure,\[43\] but in others possession of a portion claiming the whole is possession of the whole.\[44\] Possession of the shore does not extend to submerged land where the titles are distinct.\[45\]

SS 13. _Nature of title acquired._--When the statutory period of holding has been completed in concurrence with other elements, the claimant acquires an absolute title equivalent to a valid record title.\[46\] It will bar a mortgagor's action to redeem,\[47\] and is a sufficient defense to ejedement.\[48\] A transference of one who has acquired title by adverse holding may maintain an action to remove cloud from his title.\[49\] Actual possession for more than seven years under a deed improperly recorded may overcome the title of a purchaser for value under a perfect paper title.\[46\] Where a title is divested by adverse possession and the former owner conveys, his grantee cannot assert the benefit of the three years' statute.\[51\] After a father has acquired title by adverse possession, such title cannot be affected by agreements between a son in possession and the former owner or by a judgment establishing such son's title as against the former owner's heirs.\[62\] Title when acquired is not affected by subsequent acts apparently showing a cessation of adverse holding,\[53\] or by failure to include a portion of the land in legal proceedings.\[54\] After forty years, possession is presumed to be under a deed.\[53\]

SS 13. _Pleading, evidence and instructions._--Adverse possession need not be charged in the words of the statute.\[56\] It may be asserted under a general denial.\[57\] An allegation as to enclosure, in the absence of a paper title, is not necessary where there is an averment of knowledge of the adverse claim.\[58\] On pleading adverse possession the facts must be alleged or else the existence of a prescriptive right.\[59\] Where the statute is pleaded the adverse possession must be by the party

- 40. Claim under two years statute--Ellis v. Le Bow (Tex. Civ. App.) 71 S. W. 576.
- 41. Hill v. Harris (Tex. Civ. App.) 64 S. W. 520.
- 42. Kentucky L. & L. Co. v. Crabtree, 24 Ky. Law R. 743; Krauth v. Hahn, 23 Ky. Law R. 743; Krauth v. Hahn, 23 Ky. Law R. 743.
- 43. Maxwell V. Cunningham, 50 W. Va. 298.
- 44. Constraining Rev. St., & 426--Stevens v. Martin, 168 Mo. 407.
- 45. Gibbs v. Sweet, 20 Pa. Super. Ct. 275.
- 46. So held on an assessment of damages for construction of a highway--Hohl v. Osborne (row) 52 N. V. 597; Renner V. Knall nally, 96 'H. App. 322; fragment affirmed, Id., 61 N. E. 1025; Bennett v. Pierce, 50 W. Va. 604; twenty-four years possession under mesene conveyance from an invalid patentee --Stevens v. Martin, 168 Mo. 407. Open, no. rotous, and peaceable possession of real estate with claim of right thereto for the per-led on--Ehypum v. Stinson (Miss.) 32 So. 910.
- 57. Sheltion v. Wilson, 111 N. C. 459.
- 58. Byrum v. Stinson (Miss.) 32 So. 910.
- 59. Where prescriptive right is pleaded.
- 60. right peaceable, without interruption, open. n40 adverse possession.

though otherwise where the evidence is introduced under a general denial.60 On trespass for a portion of a tract, defendant may recover on a showing of adverse possession as to the specific portion, though he has not pleaded adverse possession as to that portion specially.61 Record title or a written agreement of exchange need not be shown where adverse possession pursuant to a parol exchange is pleaded.62

Footnote 61: The author is grateful to the anonymous adverse possession.

adverse. \[82\] Adverse possession is not satisfactorily established by general statements unwarranted by the facts, and contrary to facts conclusively established. \[83\] Admissions of defendant that their holding is not adverse, may be sufficient to overcome an apparent weight of evidence to the contrary. \[84\] Evidence of occupancy for more than the statutory period is sufficient to go to the jury. \[85\] Where adverse possession is claimed against an entryman, there must be evidence as to when he became entitled to his patent. \[86\] Where there is no evidence of compliance with the statute, the question of acquisition of title by adverse possession should not be submitted to the jury. \[87\] In order that adverse possession of a portion of a tract may avail as a partial defense, the tract must be identified, \[88\] but there may be recovery of a dwelling actually occupied and an identified portion of a tract. \[89\] If there is evidence of adverse possession of only a portion of the property in controversy, a verdict cannot be directed for the entire property. \[90\] Where adverse possession for more than the statutory period prior to filing suit is alleged, it is supported by proof of completed possession at any time precedent. \[91\]

\_Verdict and findings.--\_Special findings control. \[92\] A finding that possession is not hostile is ultimate and not overcome by other findings as to the character of the occupancy. \[93\] A finding of facts sufficient to support adverse possession is a sufficient finding of such possession. \[94\]

\_Questions for jury. Instructions. \[95\]--\_The sufficiency of notice of adverse possession is for the jury, \[88\] as is the question of intent in taking possession, \[67\] or whether occupancy is such as to indicate a claim of right. \[88\] Instructions are controlled by general rules. \[99\] Instructions should not be given where there is no evidence that the land has passed from the state. \[1\]

acquisition of title by a town to property occurred as a town house--Wiggin v. Mullien, 96 Me. 375. Where after a conveyance to his son, the father remains in possession, testiti-mony of parties in opposing interest that the son recognized the father's title in a particular conversation, will not establish adverse possession for the father--Collins v. \[91\] Collabora, 86 Minn. 199. Statement of a corridor superintendent that they claim little is Insm/Client--Allen v. McKay & Co. (Cal.) \[70\] To Pac. 8. Testimony of one witness that one of defendant's predecessors accepted a license for the use of the land, and that another predecessor had disclaimed it, warrants a finding of subordination--Allen v. McKay & Co. (Cal.) \[70\] To Pac. 8. More testimony of the claimant is not sufficiently corroborated by acts showing a mere intent to trespas from time to time--Ritter v. Myers (Neb.) 92 N. W. 638.

**S2.** A presumption of adverse holding or of an intention to grant cannot be indulined merely because of the remoteness of transactons--Evans v. Welch, 29 Colo. 355, 68 Pac. 776.

**S3.** Illinois Steel Co. v. Budzisz (Nfs.) 90 N. W. 1019.

**S4.** Mass v. Bromberg (Tex. Civ. App.) 66 S. W. 468.

**S5.** Kirton v. Bull, 168 Mo. 622. So held where it was also shown that the adverse party had not paid taxes on the premises during the period, believing that a tax title had been acquired by third persons and had exercised no acts of ownership--Hopkins v. Denting. \[71\] In M. 353.

**S6.** Baty v. Elford (Neb.) 92 N. W. 1032.

**S7.** Bo held, where the ten years limitation was submitted--Lackey v. Bennett (Tex. Civ. App.) 65 S. W. 651.

**S8.** Thompson v. Dutton (Tex. Civ. App.) 65 S. W. 986.

**S9.** Thompson v. Dutton (Tex.) 71 S. W. 544: reversed judgment 69 S. W. 641, 986.

**S9.** Krceleberg v. Leslie, 111 VIs. 462.

**S1.** Travis v. Hall (Tex.) 65 S. W. 1078.

**S9.** Ba held, where the finding showed possession for fifteen years and a general verdict was based on the theory of twenty years possession--Terre Haute & L. R. Co. v. Zenhner. 28 Ind. App. 229.

**S9.** Webb v. Rhodes, 28 Ind. App. 393.

**S9.** So held where there was a finding of a conveyance, acts of ownership and possession for fifteen years--Hart v. Doyle, 128 Mich. 577. Findings of an entry under con-veances and possession by the grantees and those succeeding to them, of the tracts, open, peaceable, notorious and continuous in character for more than 5 years, are sufficient to support a conclusion that the action is barred --\_dams v. Hopkins (Cal.) 69 Pac. 228.

**S5.** A question of priority of possession is for the jury--Thompson v. Dutton (Tex. Civ. App.) 69 S. W. 641. Where there is a surrender of possession after completion of the statutory period, such surrender must be submitted to the jury on the question of whether it shows that the holding was not adverse--Bentley v. Callaghan's Exr, 73 Miss. 302.

**S9.** Bryce v. Cay

## 14 Adverse possession of personality

Where a mortgage of goods conditionally sold is executed by the purchaser after default in payment, one holding under the purchaser on foreclosure of such mortgage may after the statutory period has elapsed hold title as against the conditional seller.\[2\] In detinine, rights of possession arising from the statute may be asserted under the general issue or any plea controverting ownership.\[3\] Where the property is bailed there must be a claim of title inconsistent to the bailor's and actual or constructive notice to him.\[4\]

## 14 Affidavits

The scope of this title is limited to matters common to all affidavits, regardless of the purpose or proceeding for which they are designed.

To be valid an affidavit must contain a jurat,\[8\] and it must be verified by an officer authorized to administer oaths.\[9\] An attorney-notary may verify his client's affidavit.\[9\] It is not necessary in South Dakota that the notary verifying a pleading affix his seal thereto,\[9\] but in many states the use of the seal is required by statute.\[9\]

An officer in a foreign state authorized to administer oaths may verify affidavits,\[10\] but there must be attached a properly authenticated certificate showing such authority;\[11\] and if it merely reoites that the officer taking it was an authorized and qualified notary, it does not show that he is authorized to take acknowledgments.\[12\]

If made by an officer or agent it should state the capacity in which he acts,\[13\] and why the affidavit is not made by the principal.\[14\]

\[Kolb v. Jones, 62 S. C. 103. A jury is prop-\] Gavlt--Campbell v. State (Tex. Civ. App.) 68 , 85. W. 8131; or an affidavit for a liquor license possession of land outside its description , 84 Mlnn. 281.

those title is claimed by possession not.

The Vgasas Masonde Bldg. Ass'n (N. M.) 67 , 196, 533. An instruction considered as to the sunlicency of its definition of license , 8640; and evidence held insufficient to show preventing acquisition of title by adverse possession--Fleming v. Kemp (Mo.) 70 S. W. Lynch Co., V. Carpenter, S. Detroit Leg. N. 892.

754. The jury should not be instructed that the building of a fence is not conclusive evidence of actual possession, but that it may be considered as a circumstance, where the location of fences was not disputed, and it had been established that when removed it was in hostility to claimants rights--Stal-ford v. Goldring, 1971. 1156.

001. Y. Kolb v. Jones, 62 S. C. 103.

001. Where possession was hold more than six years--L Grunewald Co. v. Copeland, 131 Ala. 45.

001. L. Grunewald Co. v. Copeland, 131 Ala. 45.

001. Rice v. Connelly, 71 N. H. 852.

001. A mere signed statement is an insufficient basis for an application for an appeal --Peters v. Edges v. M. App. 283; or publication of process--Dohany v. Worden, 75 App. Div. (N. Y.) 47; Salt Springs Nat. Bank v. Sume. Id.

001. A deputy detroit reorder appointed by a temporary recorder may not take affidavit to minimise location outcome--Van Buren v. McKlinley (Idabo) 66 Pa. 396. Affidavit verified by the clef of the superior court , 84 Mlnn. 281.

001. A notary may verify chattel mortgage am-\] Gavlt--Campbell v. State (Tex. Civ. App.) 68 , 85. W. 8131; or an affidavit for a liquor license possession of land outside its description , 84 Mlnn. 281.

001. For service by publication--Gerest v., 84 Mlnn. 281.

001. So. W. Lynch Co., V. Carpenter, S. Detroit Leg. N. 892.

001. So. W. Lynch Co., V. Carpenter, S. Detroit Leg. N. 892.

001. So. W. Lynch Co., V. Carpenter, S. Detroit Leg. N. 892.

001. So. W. Lynch Co., V. Carpenter, S. Detroit Leg. N. 892.

001. S. Wiley, V. Orsen, 15 S. D. 293.

001. Jones v. Jones, 3 Pennevill (Del.) 14, 50 , 412.

001. So. Weld sustaining a claim filed under comp. Laws 1857. , 8221--Gerest v.

Affidavits of MERITS--agency.

Affidavits on information and belief are sufficient when the source of the information and grounds of belief are given; \[18\] and unless the documents on which the deductions are based are produced, they will have no probative force. \[16\]

Affidavits are not admissible as evidence for strangers. \[17\]

**Affidavits of MERITS OF CLAIM OR DEFENSE.**

In actions on contracts in several states, by rule of court or statute, the plain-tiff may file an affidavit or statement of claim, or cause of action, and take judgment thereon, or compel defendant to file an affidavit of defense, or verify his answer. \[18\]

The object of the affidavit of defense is to avoid a summary judgment. \[19\]

A general denial of indebtedness \[20\] or a mere statement that defendant had a good defense to the action is not sufficient, \[21\] but the facts constituting the defense must be set out, \[21\] so as to enable the court to determine whether they constitute a defense; \[22\] and a general averment that there are other facts that defendant does not deem necessary to set out, \[24\] but which will be produced at the trial, is of no avail. \[25\] If on information and belief, he must state that he expects to prove the facts or point out source of belief. \[26\]

The time for filing the affidavit may be extended by stipulation, \[27\] and it may be filed after the cause is-called for trial. \[28\]

## AGENCY.

This topic will include all questions pertaining to the relations of principal and agent, except those especially applicable to particular agencies, \[29\] which will be found under particular topics. The liability of a principal to prosecution for criminal acts of his agent, is treated under the topics relating to principal and accessory. \[30\]

SS 1. _The relation between the parties. A. Competency to act as agent._--A bank may act as agent, \[31\] and a cashier may act for his bank. \[32\] One partner may

**15.**: Leigh v. Green (Neb.) 90 N. W. 255;

Affirming on rehearing, 62 Neeb. 341. Moore

v. Thompson (Cal.) 70 Pac. 830; Margurder v. Schley, 17 Apr. Cas. D. C. 221; affidavit for

ant. The amdavit should be liberally contatatechnm-Oxford v. Segning, 70 Apr. Div.

(N. Y.) 228; affidavit held to state mere con-

clusions-Moorev. Monumental Nut. Life Ins.

Co., 17 Apr. Div. (N. Y.) 209; affidavit held

to show personal knowledge of affant-

dent v. Mullins, 76 Apr. Div. (N. Y.) 69.

**16.**: Burns v. Boland, 70 Apr. Div. (N. Y.) 655.

**17.**: Turner v. Gonzales (Ind. T. App.) 64

**8.**: V. 565; see title, Evidence. Affidavits of

attesting witnesses to execution, etc. of will

not admissible if testimony can be had--Ket

temann v. Metzger, 23 Ohio Circ. Ct. 61; see

also, Wills.

**15.**: A judgment cannot be taken on an affidavit of claim unless the action had been brought at the time of filing the admixture.

Miller v. Hart, 5 Pennwell (Del. Super.) 297.

10.\*\*: Muir v. Preferred Acc. Ins., So., 203

Pa. 338.

20.\*\*: Hertz v. Sfdle, 20 Pa. Super. Ct. 88.

21.\*\*: In assumpst--Potts v. Wells, 3 Pennev methyl (Del. Super.) 11. 50 At. 62; Reed v. Fleming, 102 Ill. App. 668.

22.\*\*: Marston v. Trustees, 18 Pa. Super.

Ct. 547; Silver Peak Min. Co. v. Harris

Knight V. Saunders, 15 S. D. 464.

(Nev.) 116 Fed. 429; Margurder v. Schley, 17

App. D. C. 227; Brown v. Ohio Nat. Bank, 18

43

###### Abstract

The authors propose a new approach to the problem of finding a new set ofor illegal thing. \[84\] An intermediary between parties to a gambling contract is not an agent, but a particeps criminis. \[57\] A conspiracy being shown by some evidence, though circumstantial, each conspirator is an agent of the others so as to render his declarations admissible against them. \[58\] A corporation is bound by contracts of its duly authorized agents, \[89\] but not as to matters beyond the subject of their agency. \[60\]

\_C. Implied agency.--\_One who holds out another as possessed of certain powers to act for him, \[84\] or acquiesces in the acts of the other is liable for his acts within those powers \[82\] and formal treatment of another as agent is not necessary to establish an agency as to third persons but it is enough if he is allowed to act as such. \[83\] An implied agency results as to third persons by receipt of collateral securities by a debtor from the holder of his note to sell for payment of the note. \[84\] The surety on a note is not the agent of the payee. \[85\] The payee of a note, which has been transferred without notice to the maker before collection, becomes the agent of the holder for such collection. \[86\] The act of leaving money raised by execution of bonds to a title company with the company, to be paid out on the order of the obligor, did not make the company his agent. \[87\] In domestic economy of house and family, the wife may be the agent of her husband. \[88\] The custom of a parent to send a child for goods makes the child his agent even for articles for the child's use, \[89\] though the custom continues after the child becomes of age. \[80\]

\_D. Evidence of agency. \[71\]--\_The party setting up an agency must prove it. \[72\] and to establish an agency the evidence must be clear and convincing, \[88\] though

56. A cause of action will not lie to recover money wrongfully collected from a third person under an agreement for their Joint bention--Needles v. Fuson (Ky. App.) 68 S. W. 644.

01. Munns v. Donovan Commission Co. (Iowa) 91 N. V. 789.

01. Action for civil damages against conspirators--Mosby v. McKee, etc., Commission Co., 91 Mo. App. 500.

01. Ross v. Sayler, 104 Ill. App. 19; Black v. First Nat. Bank. 54 Att. (Md.) 88.

01. Western Reality & Env. Co., V. Haase, 53 Att. (Conn.) 861; agreement by superintendent of express company to tension injured employee--Enneworth v. Pac. Exp., 0.59 Mo.

Appl. 185: Waters v. West C. St. R. Co., 101

11. App. 265, and see, President, Chicago

Pneumatic Tool Co. v. H. W. Johns Mfg. Co., 101 Ill. App. 349; Magowan v. Groneweg (S. D.) 91 N. W. 335. See, also, particularly, Corporations.

61. Insurance agency--_Fire Ins. Co. v._

01. Shasbauh, 101 Ill. App. 55.

01. Dickinson v. Salmon. 36 Misc. (N. Y.) 169.

01. Agent for collection of rents--\_De Witt v. De Witt, 202 Faz. 255.

01. People's Sav. Bank v. Smith, 114 Ga.

01. Ople v. Pac. Inv. Co., 26 Wash. 505. 67

Pac. 251.

64. Doe v. Callow, 64 Kan. 886, 67 Pac.

01.

01. Fidelity Trust & Safety Vault Co. v. Carr (Ky. App.) 66 S. W. 990; Louisville

Bank, Co. v. Same, Id.; Murray v. Same, Id.; Carr v. Ross, Id.

68. Tyler v. Mut. Dist. Messenger Co., 17

Appl. D. C. 85.

69. Emmery-Bird-Thayer Dry Goods Co. v. Coomer, 87 Mo. App. 404.

01. Emery-Bird-Thayer Dry Goods Co. v. Coomer, 87 Mo. App. 404.

01. Facts held sufficient to show that an agent was acting for the manufacturer in a particular transaction and not for the selling representative--Sherman v. Sherman & Lyon Co. (N. J. Ch.) 53 Atl. 226. Evllerene sufficient that an agent who became truste between his principal and another was the principal?'s truste, not the other?--Amerian Pond. & Trust Co. v. Takahashi (C. C. A.) 111 Fed.

01. Gatherede v. Peck (Neb.) 91 N. V. 513;

01. Western Reality & Env. Co., V. Haase, 53 Att. (Conn.) 861; agreement by superintendent of evidence of agency in purchase of horsesso as to bind principal for price--Fritz v. Kenemploye--Enneworth v. Pac. Exp., 0.59 Mo.

Indy (Iowa) 93 N. V. 603.

72. Agency for guardian--Schmidt v. Shaver, 196 Ill. 108. An employee using on a contract alleged to have been made with a fore-man must show the latter's authority to employ-mnes v. D. J. Murray Mfg it is admissible if not convincing,74 and facts which may be construed either way on the question of the relation will be considered as showing its existence where an agency in the particular transaction is otherwise shown.75 Circum-stances in evidence showing that one was an agent and was in the pursuit of his business will take the question of agency in a particular transaction to the jury.76

Footnote 76: The author is grateful to the anonymous referee for his help in the analysis of the manuscript.

The agent may testify directly as to the relation,77 though such testimony alone is insufficient,78 but his declarations or conduct cannot be shown,78 unless there is other evidence of the alleged agent's authority,79 or unless his principal has recognized or acquiesced in his acts.81

## AGENCY.

The authority of an agent to sell land given before passage of an act requiring such authority to be in writing, may be shown orally or by any pertinent evidence.\[92\] A power of attorney from a wife to her husband for execution of all papers relating to a firm of which she was a member, and his testimony that he acted for her in all firm matters, shows his agency.\[92\]

_E. Subagency or delegation of the relation._--An agent cannot delegate his power,\[94\] but he may appoint subagents when it is necessary in the business of his principal,\[98\] or when, from its character and under business custom, the business of the principal cannot be accomplished otherwise.\[96\] One taking charge of business of a principal under directions of a general agent or superintendent, must be presumed to have authority as a sub-agent.\[97\]

_F. Estoppel to assert or deny agency may arise from a holding out._"--A principal who allows his agent to appear as owner, or in full power of disposition of his property, whereby others are misled," or who places his agent in possession of property so that the latter is enabled to misappropriate funds borrowed thereon,\[1\] is stepped to deny the agent's authority;\[2\] but the rule will not apply where third persons do not know who is the owner of the property.\[3\] Holding out another as agent in previous similar transactions will not estop a denial of the relation where it appears that in the particular transaction the alleged agent was the sub-agent of defendants without authority to bind them as principals.\[4\] When the agent has dealt with third persons the principal cannot thereafter disavow to the other's detriment.\[5\]

An attorney in fact who acts under an instrument giving him authority cannot deny his capacity.\[6\]

_G. Termination of relation._--A contract of agency without time limit may be terminated on reasonable notice\[8\] by either party in good faith:\[9\] but where the agent is entitled to an interest because of services rendered, the principal cannot revoke the agency without compensation.\[10\] The agent's right to commissions on renewals of contracts secured by him, is not such an interest coupled with his power as to prevent revocation of the agency by the principal within its terms.\[11\]

92. Civ. Code Month., # 2185, 3085, and Code \*\*2. See "holding out doctrine" discussed in Civ. Proc. Month., # 1275, reuulring written au.\[8\]

http://id. not affect acts prior to July 1st **3.** Hefferman v. Bateler. # 76. App. 316. **1895--Cobban v. Hecklen (Mont.) 70 Pac. 805. **93.** People v. Lappin, # 1 Detroit Leg. N. (Mich.) 809. **84.** Lucas v. Rader (Ind. App.) # 84 N. E. **485.** He must have special directions--Floyd v. Mackey. # 23. Kay Law R. # 2030. **11.** he has been employed because of his particular skill--Bromley v. Aday. # 36. **35.** Insurance Co. or N. A. v. Thornton, # 130. **130.** Aia. **222.** See Infra, # 2a as to Implied authority. **98.** Breck v. Meeker (Neb.) # 3 N. W. # 993.** **97.** Foreman in construction of telegraph lines supervising work under direction of general superintendent--Fritz v. Western Union Tel. Co. (Utah) # 124. **209.** **98.** See ante. # 1 C.A to Implied agency. General agent for making investments had been accustomed to collect notes due principal--Cheshre Provdent Inst. v. Fuesner (Neb.) # 83 N. W. # 49. Evidence held insuffent client to support an espovel by holding out a depositary as agent--Schmidt v. Shaver, # 196 Ill. 108. \*\*99.**villians v. Pelley, # 96 Ill. App. 346. **1.** Investment agent--Morris v. Joyce (N.) # 41.** Atl. 139. **131.**

### Agency.

Death will terminate the agency though the agent is trying to recover land under a power giving him one-half the value recovered.12 A subagent employed by and accountable directly to a general agent has no such contract of agency with the principal as survives removal of the general agent under his contract.13 Appointment of a receiver for the principal will not terminate a contract of agener where the receiver affirmed it and received benefits under it.14 Record of a dead by the owner of land is notice to his agent and all dealing with the latter, of the revocation of the authority of the agent to sell the land.15

Footnote 47: The author is grateful to

## Agency.

for the manner of its accomplishment he may employ any recognized usage or mode of dealing,\[34\] unless such usage is not within the knowledge of persons to be affected.\[35\] A warranty made by an agent which is no greater than the law would imply, will bind the principal.\[46\]

Acts of the agent are binding after discharge and will bind his principal where relied upon by a third person in good faith and without knowledge of the discharge.\[37\] A memorandum by an owner containing a description of land with a price named to an agent, does not show his authority to execute a written contract of sale for the owner.\[38\]

\_Evidence and proofs.\[39\]--\_Where an agency has been established by competent proof, the principal must prove that a third person had notice of its termination,\[40\] since it will be presumed in favor of such third person, that the agency continues until he has notice.\[41\] To admit evidence of the agent's acts as binding the principal, the agency must first be shown.\[42\] Recitals in a deed executed by an agent may be considered in determining his authority.\[43\] Where one person has allowed another to act for him, or failed to disavow such action, evidence of conversations between them is admissible on the question of the agency, so as to bind the alleged principal to a third person.\[44\] The extent of an alleged agency cannot be shown by declarations of one claiming to be the agent.\[45\] Ratification of similar acts will show authority.\[46\]

_B. Apparent authority and unauthorized or wrongful acts of agent; torts.--_ The acts of an agent within limits of his apparent authority bind the principal;\[47\] especially if the principal intentionally or negligently allows third persons to act thereon,\[48\] or places the agent in such a position that third persons are

Interest; nor authority to collect interest

transaction and the assertion of title there-author to collect principal (Hefermann v. under, though the deed Is not thirty years Boteler, 87 Mo. App. 316); contra where such

old--Kirkpatrickv. Tariton (Tex. Clv. App.) authority has been held out by a course of

making collections--\_Chashire Prov. Inst. v.

44. Clv. Code. Cal., # 2300, 2317-2319--\_Foyenen (Neb.) 88 N. V. 849. A reeditors

agent to procure transfer of accounts and notes may release guarantors of the debtor

Des Oimson s'Eleur, 104 Ill. App. 165.

Rota Grocery Co. (Tex. Civ. App.) 66 S. W.

212.

001. Rohrbaugh v. U. S. Exp. Co., 59 W. Va.

001. An agent to sell conditionally and to recover goods on condition broken may allow a purchaser to take an article on trial and deposit of part payment--\_Jeses French Piano

& Organ Co. v. Cardwell, 114 Ga. 340.

35. State v. Chilton, 49 W. Va. 453.

01. Warranty of goods sold--H. B. Smith

Cv. Williams (Ind. App.) 63 N. E. 218.

37. Continental Fire Ins. Co. v. Brooks, 131 Ala. 614.

01. Donnan v. Adams (Tex. Civ. App.) 71

01. Swlingency of evidence of payment to agent to bind principal--\_Fay & Engan Co. v. Caussey, 131 N. C. 350; sufficiency of evidence as to limitation of powers--\_Lyle v. Addicks, 82 N. J. Eq. 123.

01. Insurance agency--_Merchats_' Ins. Co. v. Oberman, 93 Ill. App. 357.

01. Merchants' Ins. Co. v. Oberman, 99 Ill. App. 357.

01. Warehouse agent receiving attached goods from sheffff without authority--\_Koyu-Kuk Mi. Co. v. Van De Venter (Wash.) 70 Pac. 966; receipt of money by a write for her husband--\_Brown v. Woodward (Conn.) 53 Atl. 112.

01. The court may look to the age of the

Cur. Law 4.

44.

### 50 AGENCY.

justified in presuming that he has certain authority; \[49\] where a principal treats his agent so that third persons following business custom are led to believe that the agent has certain powers, the principal is bound; \[50\] as where one of two parties to a contract notifies the other that all such transactions are arranged for him by another as agent, the other party is justified in treating such agent as having an ostensible agency to modify a contract already made. \[51\]

Private instructions to a general agent by his principal cannot be shown to prevent the principal's liability on contracts made by the agent within the scope of his authority, \[52\] since it is necessary that third persons should have knowledge of such limitations. \[53\]

\_One with knowledge of an agent's limited authority, \[54\] and with means of learning the truth of alleged false statements by the agent, \[58\] or with notice that the agent's acts must be approved by the principal, \[54\] deals with him outside that authority at his own peril, and if the agent is a special agent third persons must ascertain his authority at their peril. \[57\] Third persons are justified in relying on the apparent authority of an agent as held out to them, \[58\] and need not prove his authority to make a contract within his apparent authority \[59\] unless the powers assumed by the agent are contrary to ordinary business custom and there is no showing of special authority, \[60\] or unless the acts violate the known custom of the principal, \[51\] when such third persons assume the burden of showing his authority. \[62\] But one who was not misled by the apparent authority cannot urge it to fix liability on the principal. \[63\] A third person cannot assume that the relation of agency existed where not ostensible, nor, though an agency really exists, can he assume its scope without inquiry. \[64\] An agent cannot bind his principal beyond the scope of his authority where the third person knows such authority, \[63\] but they are entitled to rely upon statements of the agent respecting the subject matter of \[63\].

### 51 Civ. Code Calc. & 2800--Union Paving & Contract Co. v. Mowry (Calc.) 10 Pac. S1.

52. Hirschburg. Bradley (Iowa) 80 N. We.

01. On the question of the authority of a general agent, instances of his general management of the principal's property in his absence may be shown--Mullin V. Sire, 37 Misc. (N. Y.) 807.

01. Hall v. Hopper (Neb.) 90 N. W. 549.

01. Thrall v. Wilson. 17 Pa. Super Ct. 876; express agent--Rohrbough v. U. S. Exp. Co., 50 W. Va. 148: Modern Woodman v. Tevis (C. A.) 117 Fed. 369.

01. Sale of real estate by agent--Samson v. Beale, 27 Wash. 567, 58 Pac. 180.

01. Notice by an agent to a buyer that the principal will fix the price of goods prevents a claim of apparent authority in the agent to sell for a certain price--Lucas v. Rator (Ind. App.) 64 N. E. 485.

01. Fraudulent sale of principal's stock by agent--Fay v. Slaughter, 191 III. 137.

01. Murray v. Sweasy. 69 app. Div. (N. Y.) 45.

01. The burden is on the principal to overcome the presumption of the agents' author--

01.

## Agency.

This agency. \[44\] Representations by agents as to general authority to act for their principal in all matters relating to the subject of the agency cannot be held to show authority as to particular acts alone. \[47\] Third persons having knowledge of an agency must take notice of its limitations, \[48\] as where they are expressed in the contract executed by the agent, \[49\] and this applies to a power of attorney unless the principal received the benefits of his agent's acts in excess of authority. \[70\] Third persons are bound by terms of a contract made with an agent which limits his authority, \[11\] though they may have dealt with a subagent, \[72\] and the contract of agency containing instructions may be shown 'on the question of his powers to bind his principal. \[13\] The principal cannot be held liable on a contract by his agent until it is shown that he has ratified the agent's acts, where the contract specifies that it is subject to approval by the principal. \[4\]

_Evidence and questions of fact. \[48\]_--In determining whether an agent has certain powers with regard to his principal's property, other instances in which such powers were exercised may be shown as bearing on the apparent scope of his authority \[74\] and other transactions of a like character with the same agent, and matters relating to custom in the business, may be shown on the question whether third persons could be held to have notice of peculiar limitations on the agent's instructions. \[75\] Apparent authority of an agent is a question for the jury. \[76\]

_Unauthorized and tortious acts. \[48\]_--An unauthorized agreement by an agent is not binding on the principal unless ratified, \[70\] but agreements, representations and mistakes of an agent made as a part of the res gestae of his transaction for his principal, will bind the latter. \[80\] If a principal desires to repudiate acts of an agent in excess of authority, he must refuse to receive the benefits of the agent's acts or restore them if already received, \[81\] and if he has held out his agent to others as possessed of certain powers, with notice to them to honor his acts therein, he cannot recover from persons dealing with the agent, because of fraud committed by him in the business of his agency. \[82\] Where powers of a special agent are limited, his contracts to be submitted to his principal, a secret agreement between him and the other party to a proposal to a contract will not bind the principal. \[83\]

## 66. Insured may rely on agent's statement

that a vacancy permit has been attached to a landford had power to consent to the sale his policy by the company or its general of groups by the tenant, thereby waiving the agents--Morgan v. Illinois Ins. Co., 9 Detroit

Iandford's Ilen thereon, evidence of other less. N. 84.

67. Real estate agents--Samson v. Beale, agents' knowledge and consent is properly admitted to show apparent scope of his authority in dealing with the landford's property. Commercial Nat. Bank, 199 111. 151.

01. Insured and beneficiary are bound by

01. It may be shown by cross-examination

01.

Modern Woodman v. Tevis (C. C. A.) 117 Fed. 369.

79. Money received by the attorney in fact

in excess of authority cannot be recovered

from the principal--Morton v. Morris (Tex. Civ. App.) 66 N. W. 94.

71. Porter v. Home Friendly Soc., 114 Ga. 957.

01. Lucas v. Rader (Ind. App.) 64 N. E. 485.

01. J. I. Case Thresh. Mach. Co. v. Eich.

Inger, 15 B. D. 530.

74. Sale of machinery by agent under

agreement to take In part payment certain

second-hand machinery--Lifting v. New

Birdsall Co. (S. D.) 92 N. W. 92.

75. Adversarial in city directory de-

selfbeing agent as "local manager" is ad-

missible--Graton et., 47g. Co. v. Redel;

sheimer, 28 Wash. 370, 68 Pac. 879.

76. On the question whether an agent of

01. Insured may rely on agent's statement

a landford had power to consent to the sale

hls policy by the company or its general

of crops by the tenant, thereby waiving the agents--Morgan v. Illinois Ins. Co., 9 Detroit

Iandford's Ilen thereon, evidence of other

less. N. 84.

67. Real estate agents--Samson v. Beale, agents' knowledge and consent is properly

admitted to show apparent scope of his

68. Corporate agent--Jackson Paper Mfg.

thority in dealing with the landford's property. Commercial Nat. Bank, 199 111. 151.

69. Insured and beneficiary are bound by

01. It may be shown by cross-examination

01.

01. Argument by sales agent to receive

agent is at similar transactions--Clarkson v. Rabinstra (Tex. Civ. App.) 70 S. W.

111.

001. Authority to purchase certain goods;

evidence was given of purchases of similar

goods accepted by the principal--Fitch v. Metropolitan Hotel Supply Co. 74 N. Y. Suppl.

616; agency for sale of timber--Barker Co., v. Roberts, 28 Ky. Law R. 1345.

79. Agreement by sales agent to receive

payment in lumber--J. A. Fay & Eagan Co. v.

70. Casey, 131 N. C. 350.

01. Nutter v. Brown, 51 W. Va. 598.

81 A purehaser of lands cannot recover from the vendor for money paid the latter's attorney in fact in excess of his authority.**4** Revocation of a special agency by the principal before the agent acts will prevent liability for subsequent performance unless third persons have been misled by the principal or he has ratified the agent's acts.\*\*55 A principal may follow his funds, wrongfully diverted by his agent, into the hands of third persons unless they have received them in good faith, for value, and without notice of the agent's trust.\*\*46 Instructions that a principal was entitled to recover money paid to third persons by his agent if the agent exceeded his authority cannot be given where the issue made by the pleadings is that the money was paid under a mistake of fact.\*\*47

\*\*The principal may be liable for agent's ports;\*\*48 \*\*or for negligence induced by false statements of the agent,\*\*48 \*\*and for trespass by his agent which he ratifies and is done for his benefit,\*\*49 \*\*and, for wrongful acts of the agent within the scope of his authority though in violation of his express orders,\*\*41 \*\*though he may not have directed or contemplated the acts,\*\*42 **but not for wrongful acts of the agent outside the scope of his authority**43 **or in transactions independent of the agency**44 \*\*or of which he had no knowledge,\*\*45 \*\*unless he accepts the fruits of the fraud or deceit of the agent.\*\*48 \*\*Where it is shown that a third person defrauded by dealings with an agent, afterwards dealt with the principal, such person may properly show that in both dealings he relied solely on the agent's representations.\*\*47

\_O. Particular kinds of agencies.\*\*48 \*\*--A general agent may change or waive terms of a contract for the principal,\*\*49 \*\*or of a warranty of goods sold,\*\*4 **and may**

\*\*48 **S3. Agent to secure written proposals for** **confessing judgments against the husband sale and delivery of cotton-Inman v. Craww-** **is not chargeable to the wife because they represented her in purchase of his property** **if** **execution-Manche v. Rosenberg, 202 Pa.** **S5.** **V5.** **V6.** **V7.** **V8.** **V9.** **V10.** **V11.** **V12.** **S5.** **Florida Cent. & P. R. Co. v. Ashmore (Fla.) 32 So. 832.** **Se.** **Centa! Stock and Grain Exch. v. Ben-** **in-law had previously mortgared her property** **for** **v** **twe to secure debts of her son-in-law** **Centa! Stock and Grain Exch., Id.** **S7.** **Great Western El Co. v. White (C. C. C. A. N. D.) 118 Fed. 406.** **S8.** **An exception exists where the state is principal--Billings v. State, 27 Wash. 285.** **S7.** **Pac.** **S83.** **A** **corporation employing an agent to give an exhibition of three works in** **Hubble for his negligence unless the latter is** **in-independent contractor-Blanki v. Great-** **or American Exposition Co. (Neb.) 92 N. W. 615.** **S9.** **Telegraph company as principal--Self--Ref.** **fel v. Western Union Tel. Co. (Tex. Civ. App.) 63 S. W. 859.** **P0.** **Brown v. Webster City, 115 Iowa. 511.** **P1.** **Arrest of Parnot by restaurant man-aserm-Dipre v. Childs, 52 App. Div. (N. Y.) 306; affirmed, 160 N. Y. 555.** **P2.** **A** **dry goods merchant is liable for false arrest of a customer by an usber on suspicion of theft--Field v. Kane, 99 Ill. App. 1.** **B0.** **Agent for setting up--machinery--Filin v. Word's Disagrams Medical Asst. 84 App. Div. (N. Y.) 490. That a railroad ticket agent arrested a person because of his resemblance to another suspected of stemming from the company's cash drawer, is insufficient to show such act within the scope of the agent's authority go as to render the rifford company liable for malicious prosec-** **cution-Nikle v. Louisville & N. R. Co. (Ga) (Z S. E. S25.) 94.** **Fraud of a husband and another in** **Shepard Co., 115 Iowa. 373.** \*\*An agent with estop the principal by specific acts relating thereto,\[2\] and may make optional contracts with third persons allowing them time for acceptance or refusal, though his sales are subject to ratification by the principal.\[3\] Authority as a general agent is presumed to continue.\[4\] A general agent in charge of the entire business of his principal is presumably authorized to give a note when necessary for its purposes.\[3\] A general agent to manage real estate is not empowered to bind his principal by entry into a partnership.\[6\] An agent to manage the principal's business generally, to buy and sell for him, is a general agent though for a special business, and can bind the principal by a purchase on credit though contrary to instructions.\[7\] An agent employed generally to conduct the business of his principal and draw drafts on the principal for payment of necessary expenses, was authorized to use money collected by him from another and distinct principal to pay such debts and remit in return to the second principal drafts on the first.\[8\] A general agent to purchase mill supplies and sell manufactured goods, but without authority to sign or indorse checks except for supplies purchased, has no implied authority to indorse a check for goods sold, so as to prevent recovery of the amount from the maker by his principal after the agent had absonded.\[9\] The authority of a general agent to hire employes for his principal is not a matter of law but a question to be settled from the evidence.\[10\] Statements made by a general agent to special agents are admissible as showing the authority of a certain special agent as bearing on statements made by him for the principal.\[11\] An agent employed for a specific purpose cannot act beyond its scope so as to bind the principal,\[12\] and a third person dealing with him must learn the extent authority to permit his principal's tenant to market crops may wavle the principal's lien the renting--Calloway v. Equitable Trust N. V. 58.

I. Elness v. Nichols & Shepard Co., 115 Iowa, 373; Waupaca Elec. L. & R. Co. v. Mill-waukee Elec. R. & L. Co., 112 Vris. 469.

2. A general rental agent may encourage a tenant to buy fixtures and thereby estop the principal from claiming them as part of the reality--Morrison v. Sohn, 90 Mo. App. 76.

1. General agent selling musical instruments may sell on trial and part payment with option to purchaser to return within a fixed period, and the principal cannot repudiate the contract and recover the instrument without refunding the part payment--Jesse French Piano & Organ Co. v. Cardwell, 114 Ga. 340.

1. Cheshire Provident Inst. v. Fuesner (Neb.) 85 N. V. 849.

1. Whitten v. Bank of Fincastle (Va.) 42 S. E. 309.

1. Guy v. Rosewater (Colo. App.) 69 Pac. 271.

1. Manager of mercantile business--Patriche Discult Co. v. Dugger, 40 Or. 362, 67 Pac. 32.

1. Great Western El. Co. v. Whitten (C. C. A.) 118 Fed. 406.

1. Jackson Paper Mfg. Co. v. Commercial Nat. Bank. 1911. 151.

1. Employment of men by foreman of mill--Ames v. D. J. Murray Mfg. Co., 114 Wils. 85.

1. Elfring v. New Birdsall Co. (S. D.) 92 N. V. 29.

1. Power of architect employed to superintend construction to change building contract--Watts v. Metcalf, 23 Ky. Law R. 2189.

An attorney employed to execute a lease can market crops may wavle the principal's lien the renting--Calloway v. Equitable Trust No. V. 58.

1. Elness v. Nichols & Shepard Co., 115 Iowa, 373; Waupaca Elec. L. & R. Co. v. Mill-waukee Elec. R. & L. Co., 112 Vris. 469.

1. A general rental agent may encourage a tenant to buy fixtures and thereby estop the principal from claiming them as part of the reality--Morrison v. Sohn, 90 Mo. App. 76.

1. General agent selling musical instruments may sell on trial and part payment with option to purchaser to return within a fixed period, and the principal cannot repudiate the contract and recover the instrument without refunding the part payment--Jesse French Piano & Organ Co. v. Cardwell, 114 Ga. 340.

1. Cheshire Provident Inst. v. Fuesner (Neb.) 85 N. V. 849.

1. Whitten v. Bank of Fincastle (Va.) 42 S. E. 309.

1. Guy v. Rosewater (Colo. App.) 69 Pac. 271.

1. Manager of mercantile business--Patriche Discult Co. v. Dugger, 40 Or. 362, 67 Pac. 32.

1. Great Western El. Co. v. Whitten (C. C. A.) 118 Fed. 406.

1. Jackson Paper Mfg. Co. v. Commercial Nat. Bank. 1911. 151.

1. Employment of men by foreman of mill--Ames v. D. J. Murray Mfg. Co., 114 Wils. 85.

1. Elfring v. New Birdsall Co. (S. D.) 92 N. V. 29.

1. Power of architect employed to superintend construction to change building contract--Watts v. Metcalf, 23 Ky. Law R. 2189.

AGENCY.

of the agent's authority.\[13\] However, an undisclosed limitation of authority will not bind others without knowledge.\[14\] Payment of a note to an agent authorized to collect for the holder satisfies the debt.\[15\] His possession of a note shows an agent's authority to collect it.\[16\] A servant authorized to transport his master's property and furnished with funds for the purpose, has no apparent or implied authority to give his master's credit for transportation.\[17\] Where it is shown that one in control of another's business, did not employ laborers without approval of his superior, there can be no implied authority that he should so employ them\[18\] Where a contract secured by an agent provides that he has no authority to change its written terms, he cannot bind the principal to accept other and different terms by allowing their insertion,\[19\] nor can he bind the principal by a verbal modification of a written contract, though such contract was originally made by him, unless his authority to modify is shown or the change is ratified by the principal.\[20\] Where an agent is employed to sell certain goods of the principal and also to represent him in an arbitration concerning the sale of other goods, the principal's right to question the agent's acts for fraud is the same in both employments.\[21\] Authority given by a widow to another to secure privilege, from a lodge of which the agent was a member, to bury her husband in the lodge cementery, will not bind her not to remove the body because of a prohibition in the lodge constitution of which she had no knowledge.\[22\] Authority to indorse commercial paper for his principal does not imply authority to ratify a sale of the principal's stock or a loan thereon.\[28\] The agent may bind his principal by alteration of an instrument to correspond with terms of the transaction which was conducted by the agent.\[24\] A promise by the owner of a building to pay a materialman on an order from the contractor, is proof that the contractor was not an agent to purchase materials for the owner, where the materialman had failed to procure the order until the contractor had abandoned his contract and nothing was due him thereunder.\[25\] After an agent has represented his principal in certain transactions done annually, and no notice of termination of the agency is given third persons, his ostensible agency for the succeeding year is a question for the jury.\[26\] Payment of a note secured by a mortgage to an agent authorized to collect, is a satisfaction.\[27\] A clerk acting under directions of a local manager of a manufacturing company cannot bind the company by independent dealings with third persons.\[28\] An officer of an association or corporation cannot bind it as agent in transactions outside the scope of his authority,\[29\] nor can it be presumed that a corporate agent can act for it in matters outside its legitimate business.\[30\] Though third persons are bound to know the extent of power of the president of a corporation to act as its agent, they may deal with him respecting matters within the ordinary business of the corporation if he is customarily in charge thereof.\[31\] The manager of a corporation has no authority under his general powers to mortgage its property.\[32\] An agent of a building and loan association cannot bind his principal beyond the terms of its published circular and by-laws.\[33\]

_A power of attorney\[34\]_ is an instrument setting forth the authority of a private attorney or attorney in fact.\[35\] It must be strictly construed,\[36\] general powers being controlled by special powers or express limitations.\[37\] A power of attorney to control and sell does not include power to mortgage.\[38\] A power to sell land includes authority to execute conveyances and a deed in his own name conveying his "interest" passes the owner's title.\[39\] A power to sell land carries authority to execute a conveyance for a consideration running to the owner only.\[40\] and third persons are charged with notice of powers of an agent under a recorded power so that they cannot purchase for a consideration running to the agent\[41\] unless they are innocent subsequent purchasers.\[42\] A trade usage followed by an agent in his principal's business cannot prevail against a power of attorney or the law.\[43\] A special power of attorney to collect debts and use them for the support of the grantor's family will not authorize a conveyance of the property to pay debts previously owed by the grantee.\[44\] A power of attorney to convey by quit claim deed, executed by a conveyance with general warranty, will quit claim the principal but he is not bound by the warranty.\[45\] Where an attorney in fact, under a recorded power of sale, sells to himself and then conveys to another, the original owner must show that such grantee had notice of his equities.\[46\] A power of attorney authorizing the purchase of goods for a certain business of the principal in a foreign country, and to provide for payment of same, does not confer a general borrowing power on the agent to bind the principal.\[47\] A sealed power of attorney, or proper evidence of its existence, must be shown to uphold a lease of lands executed by one as the agent of another;\[48\] or to make settlement of a

## 56 Agency.

mortgage debt by a deed for part of the property. \[9\] A lease by attorneys in fact, reeiting that it was made by them "as attorneys in fact of widow and heirs of" decedent and the owners of the premises is a compliance with a power authorizing a lease in the name of "the estate of" the decedent, and the principals may recover rent thereon as against a surety on default of the lessee. \[80\]

_D. Ratification by principal. \[81\]_--An authorized act of an agent, or his tort, \[82\] may be ratified so as to bind the principal. \[83\] A principal who undertakes a contract made by his agent without authority \[54\] or who acts in accordance with the contract, \[55\] thereby ratifies it though not formal, \[54\] and though third persons did not know that the agent was acting for another. \[87\] Acquiescence in acts of an agent within the apparent scope of his authority, \[53\] or failure to object to acts of an agent after full knowledge, \[89\] or receipt and retention by principal of the benefits of an agent's unauthorized acts \[90\] or fraud, \[91\] unless qualified by a statement of the principal that he does not intend to become responsible, \[62\] amount to a ratification of the agent's acts, but retention of the benefits by another than the principal will not bind him, \[63\] nor receipt of benefits of a contract from his duly aecredited agent, part of which has resulted from fraud or unauthorized acts of a third person who assumed to be his agent, \[64\] nor receipt of benefits from an entire transaction, part of which was fraudulent, without knowledge that any of the benefits were fruits of the fraud. \[65\]

The benefits must result from the transaction tainted with the agent's fraud or unauthorized acts, \[64\] and the principal must have knowledge of the unauthorized or fraudulent acts, \[67\] or the terms of contracts made by him; \[68\] then if he fails to

- 40. The agent testified further that the --Payne v. Hackney, $4 Minn. 195: receipt deded was to convey the whole property, and of payments on unauthorized sale and warrant by machine agent--Blaess v. Nichols de Shepard Co., 115 Nov. 371. An insurance company ratingted improper delivery of a policy by its agent by retaining premium and failing to rebuttain his acts--Northwestern Life Assn v. Findley (Tex. Civ. App.) $5 S. W. 695: contract by corporate officers--Hunter v. Cobe, $4 Minn. 187.
- 52. A bank may ratify a loan secured by Its president for an unlawful purpose--Roe v. Bank of Verasilles, 167 Mo. 406.
- 53. Brown v. Webster City, 115 Novs. 511.
- 54. Nashville C. & St. L. R. Co. v. Smith 132 Ala. 434: Southern Ry. Co. v. Marshall 23 Ky. Law R. $13: President, etc. Great Western Turnbille Co. v. Shater, 571 App. Div. (N. Y.) $31; affirmed, 65 N. E. 1121: W. F. Taylor Co. v. Baines Grocery Co. (Tex. Civ. App.) 172 S. V. 260: Jacobs v. German Work: Ingmen's Assn (Mass. 66) $8 N. E. 605.
- 55. Furnishing goods for two years under the agents contract is sufficient--Vosburg v. Malitor, 70 App. Div. (N. Y.) 244.
- 56. Taylor Gas Producer Co. v. Wood. 119 Fed. 865.
- 57. Hayward v. Langmmid, 131 Mass. 426.
- 58. Corporation as bound by president's acts--Bennett v. Millville Imp. Co., 67 N. J. Law, $20.
- 59. Employment of surgeon by corporate ascent to attend injured employee--Lithrow Mfg. Co. v. Samuel. 24 Ky. Law R. 1590.
- 60. Russell V. Peavy, 131 Ala. 665: Plano Mfg. Co. v. Nordstrom (New). 88 N. W. 164: Lyle v. Addles. 62 N. J. Lea. 123: Bennett v. Millville Imp. Co., 67 N. J. Law, $20; attorney acting as agent in moragg transactions--Murray v. Sweasy, 69 App. Div. (N. X.) 46: Payment to agent unauthorized to receive it --Payne v. Hackney, $4 Minn. 195: receipt of payments on unauthorized sale and warrant by machine agent--Blaess v. Nichols de Shepard Co., 115 Nov. 371. An insurance company ratingted improper delivery of a policy by its agent by retaining premium and failing to rebuttain his acts--Northwestern Life Assn v. Findley (Tex. Civ. App.) $5 S. W. 695: contract by corporate officers--Hunter v. Cobe, $4 Minn. 187.
- 52. A bank may ratify a loan secured by Its president for an unlawful purpose--Roe v. Bank of Verasilles, 167 Mo. 406.
- 53. Brown v. Webster City, 115 Novs. 511.
- 54. Nashville C. & St. L. R. Co. v. Smith 132 Ala. 434: Southern Ry. Co. v. Marshall

## AGENCY.

disavow the agent's acts within a reasonable time and third persons are induced to rely upon the validity of contracts made he has ratified them,\[85\] so as to bind any one claiming under him, even though the acts are clearly without the agent's authority,\[70\] and even though third persons dealing with the agent may have had some knowledge of his disapproval.\[71\] Mere failure to disavow the act of a volunteer agent is not a ratification.\[72\]

There can be no ratification of a contract made by the agent on his own behalf with a concealed intention to give the benefits to another,\[73\] nor will one dealing with another, whom he thought to be an agent representing third persons, be held to ratify a fraud of such agent though he made no inquiries as to his authority.\[74\]

The ratification cannot be partial; the principal must adopt or reject the agent's acts in toto.\[15\] Ratification of an agent's acts relates back to time of their execution unless rights of third parties intervene,\[76\] and binds the principal as though the agency had been made in the first instance,\[71\] and cannot be retracted where made with full knowledge of the facts,\[78\] though it may be prevented by a tender back of the consideration by the agent before consummation of the contract or damage to the other party.\[79\]

By bringing action against his agent for exceeding his instructions, the principal ratifies his acts as to the third person but not the agent's wrongful act.\[80\] An agent's collection of a bill due the principal by application on a debt of the principal is not ratified by an attempt by the principal to recover from the agent.\[81\] That a principal made no objection when a claim was presented by a third person is strong evidence of his ratification of the obligation made by his agent.\[82\] An admission that part of the results of an agent's unauthorized acts were received to balance part of the agent's embezzlement amounts to a partial ratification.\[83\] Deeds taken by an agent in name of another without the principal's consent are not ratified by his retention of the deeds and abstracts of title made.\[84\]

The third person must prove ratification by the principal,\[85\] by showing knowledge of the principal and appropriation by him of the benefits.\[86\] The reason-

Ratification by a corporation of a mortgage \[K. B. 662, (1901) App. Cas. 240, 84 Law T. (N. executed by its agent must be with knowl-

S.) 777.

edge of the mortgage--First Nat. Bank v. 74. Ballard v. Nye (Cal.) 69 Pac. 481.

Kirkby (Fla.) 32 So. 881: loan by agent

75. Adams Exp. Co. v. Carnahan (Ind. without authority--Dean v. Hipp (Colo. App.)) 49. App.) 64 N. E. 647: Hall v. Hopper (Neb.) 90.

66 Pac. 804; Topilm v. Shadwell, 64 Kan. 884,

87 Pac. 645; Brown v. City of Webster City,

(Neb.) 80 N. W. 834; corporation as principal 15 Iowa, 511.

=Fromt Carnige Alfg. Co. v. Thomsen (Neb.) 91 N. W. 376.

deed for signing is not ratification of his sale of hands where the principal did not know the terms of the sale--Johnson v. 77. Hunter v. Cobe, 84 Minn. 187. The Fecht, 94 Mo. App. 605.

68. Zyle v. Addicks, 62 N. J. Eq. 123. The failure of the principal to repudiate the act of the assumed agent after full information from the agent and from the other party to the contract amounted to a ratification--

Robbins v. Blanding (Minn.) 91 N. W. 844; Carlile & Finch Co. v. Iron City Sand Co., 20 Pa. Super. Ct. 378.

76. Failure of principal to disavow agents' sale of property for eight years will prevent avoidance of a sale by execution creditor of princlipal--Knauer v. McKeon, 19 Pa. Super. Ct. 539.

01. Purchas of goods by son acting as general manager of father's store--Roundy v. Erspamer, 112 Vbis. 181.

01. Robbins v. Blanding (Minn.) 91 N. W. 844.

01. Kelghley v. Durant (Eng.) 70 Law J.

01. Ballard v. Nye (Cal.) 69 Pac. 481.

01. Adams Exp. Co. v. Carnahan (Ind. without authority--Dean v. Hipp (Colo. App.)) 49. App.) 64 N. E. 647: Hall v. Hopper (Neb.) 90.

76 Pac. 804; Topilm v. Shadwell, 64 Kan. 884,

87 Pac. 645; Brown v. City of Webster City,

(Neb.) 80 N. W. 834; corporation as principal 15 Iowa, 511.

=Fromt Carnige Alfg. Co. v. Thomsen (Neb.) 91 N. W. 376.

76. Execution of deed under power of at-stage-francham v. Williams, 114 Ga. 716.

01. Hunter v. Cobe, 84 Minn. 187. The rule applies to a municipal corporation ns principal--Will v. Town of Redkey (Indable time within which a principal must ratify or reject his agent's acts after notice is a question for the jury from the circumstances."

\_E. Undisclosed agency.--\_An undisclosed principal is bound by acts of his agent," unless there are facts putting one dealing with the agent on inquiry," or it does not appear that such persons are damaged by disavowal of the agent's acts" and such an agent may bind the principal by sale of his property under ostensible ownership." An undisclosed principal who has allowed his agent to conduct business in his own name "as agent" cannot disavow the agent's acts."

That a contract was made by an undisclosed agent will not prevent enforcement by the principal," and that a third person contracted with an undisclosed agent, will not prevent his liability to the principal for failure to exercise ordinary care in performance of the contract." One dealing with an undisclosed agent may treat him as a principal and a payment to the agent will discharge the third person." A surety who executes a bond for an agent while unaware of his undisclosed principal is not precluded from his action against the principal after payment of the bond by the fact that the agent executed the bond as principal."

Execution of a written contract by one "as agent is a sufficient disclosure of the agency as to the other party." That a wife knew a building was being constructed on her lots, and once saw her husband order lumber for buildings on his own lots, does not show her to be his undisclosed principal."

The commencing of a suit against a principal and his undisclosed agent is not an election to hold the principal and not the agent," and where one dealt with an undisclosed agent he need not elect which he will hold liable until the case is closed."

\_F. Notice to agent.--\_The agent is presumed to have informed the principal of contracts he has made." Notice affecting matters within the agency are binding on the principal," unless third persons had knowledge of limitations on the AGENCY.

agent's authority," but it must be obtained in the course of the business of the agency," and does not apply to matters beyond the agency or as to which the agent acts for himself," or must be known to the agent at time of his dealings though he may have acquired it previously," and must concern matters with which the agent has power to deal, or about which he is under duty to inform the principal," and not arise from the peculiar knowledge of the agent."

The rule that an agent is presumed to communicate such facts to his principal as his duty requires, does not apply where the agent acts also for himself and his interest or conduct would preclude such disclosure," or when the knowledge is gained while in conspiracy with a third person to defraud the principal." Notice actually communicated to a principal will bind him, though not within the scope of the agent's authority."

Knowledge of fraud and collusion in transfer of lands by an attorney in fact is notice to his grantee who is also his principal." Third persons are justified in giving an agent notice of rescission of a contract with his principal where the latter gives them good reason to believe that the agent has full charge of the transaction." Notice to a general agent is notice to his principal," but a servant is not an agent of his master to receive notice."

The rule of notice applies to a corporation," and to the state."

Acceptance of the results of an agency by the principal shows notice of the nature of the contract made by the agent."

agent's acts from binding the principal where he follows the meaning of the terms accepted at the place of dealing--Moulton v. O'Bryan,

10. A widow cannot be charged with 17 Pa. Super. Ct. 593; agent's knowledge of regulations in a lodge constituignificant payment of principal's taxes--Nutting v. Lynn, 18 Pa. Super. Ct. 59; notice to an agent, with "full authority" to pur-ranged for the burial of her husband was a member of the lodge--In re Bauer, 68 APP. by knowledge of pleatings in a suit in Dlv. (N. Y.) 212.

which the then was asserted, imputed to prin-cipal--Schwind v. Boyce, 94 Md. 510; Yer.

73. A depositor in a bank is not charged crusysse v. Williams (C. C. A.) 112 Fed. 206; knowledge by agent of a creditor that a debtor is insolvent at time of execution of a mortrage in behalf of the principal--Babbitbit payment, and the depositor was not pre-v. Kelly (Mo. App.) 70 S. W. 284.

01. Purchase of prohibited goods by agent

balls on forgeries because of failure to as-in charge of store--Sobilov v. Moffut-West

derting and notify the bank after prior for-Drug Co. (Colo. App.) 67 Pac. 182.

6. Flanagan v. Shaw, 74 App. Div. (N. Y.) 208.

1. People's Bank of Tablation v. Exchange 8.

1. Black & Taboron (Ga.) 43 S. E. 269; Lane v.

De Bode (Tex. Civ. App.) 69 S. W. 437; Cooper et v. Ford (Tex. Civ. App.) 69 S. W. 437; notice of cancellation of contract--Indina B1:

8. Yer. 131.

1. Yer. 131.

1. A. Johnston & Taboron (M.) 113 Fed. 13.

1. S. Sale of machine by agent and rescls-

1. R. S. Co. Y. Zune (Pa.) 131 Fed. 596.

1. R. S. Co. Y. Zune (Pa.) 131 Fed. 596.

1. R. S. Co. Y. Zune (Pa.) 131 Fed. 596.

1. R. S. Co. Y. Zune (Pa.) 131 Fed. 596.

1. R. S. Co. Y. Zune (Pa.) 131 Fed. 596.

1. Rogers v. Dutton (Mass.) 65 N. N. E. 56.

1. Chicago Pneumatic Tool v. H. V.

1. Johns Mfg. Co., 101 Till. App. 493; Waters v.

1. Yer. 131.

1. Acceptance and foreclosure of a mort AGENCY.

\_G. Remedies of third persons against principal.--\_The agent and his undisclosed principal may be joined in a suit on the agent's contract,\[21\] or third persons may sue the principal alone,\[22\] unless they first attempted to sue the agent the relation having been disclosed.\[22\]

\_Pleading and procedure.\[24\]--\_Ratification need not be pleaded to be proved.\[25\] When a third person deals knowingly with an agent beyond the scope of his authority, the burden is upon such third person to show what benefits the principal received because of the agent's unauthorized acts and his cencversion thereof to his own use.\[26\] Proof of agency is necessary to admit proof of the agent's contract,\[27\] or his declarations,\[28\] as binding on the principal. A wife sued for materials sold may examine her husband as to his agency to purchase the materials for her.\[29\]

The power of one to bind another as his agent,\[30\] and whether particular acts of the agent are within the scope of his authority,\[31\] are questions for the jury.

\_H. Remedies of principal against third persons.--\_A principal cannot recover from third persons for fraud on the agent and deny liability to the agent for loss therein.\[22\] Either an undisclosed principal or his agent may sue on a parol contract made by the agent in his own name.\[38\] The principal may sue in his own name on a note without indorsement by the agent though the note was payable to the agent as trustee.\[34\]

SS 3. \_Rights and liabilities of agent to third persons.\[35\]--\_The agent cannot limit his liability to third persons by a recital in the contract that he is a general agent,\[36\] and where he makes contracts in his own name concerning the subject of his agency, he obligates himself though the other party has notice of the agency.\[37\] An agent is not liable for injuries resulting to third persons by his principal's breach of duty outside the agency,\[38\] but it is otherwise if the acts or omissions come within his agency.\[39\] A third person cannot recover damages from an agent because of misrepresentations in regard to a contract made for his principal, un

## AGENCY.

Less the misrepresentation relates to his authority to bind the principal and was relied upon.\[40\] A child cannot be made personally liable for purchases as agent for its parent though the latter has fraudulently disposed of her property.\[41\] A joint tort-feasor sued cannot escape liability because he acted as agent.\[42\]

_Where agency is undisclosed_ an agent is responsible for his acts to third persons,\[43\] and if he exceeds his authority his personal liability is unquestioned.\[44\]

_Remedies and procedure.--A_ third person who pursues his claim against an undisclosed principal does not thereby elect to hold the principal liable so that he cannot have a remedy against the agent who contracted in his own name for any balance due after enforcement against the principal.\[45\] The agent may sue in his own name in property held by him as agent;\[46\] and where he sues on a parol contract in his own name the undisclosed principal need not be joined.\[47\] Defenses good against the principal are effective against an undisclosed agent suing in his own name.\[48\]

SS 4. \_Mutual rights, duties and liabilities. A. In general; contract of employment; diligence and good faith; respondent outer.--\_An agent cannot delegate his authority without special directions,\[40\] especially if he has been employed because of his particular fitness for the business of the principal,\[60\] but he may employ mere clerks;\[51\] and, if he is without experience and left to his own devices, the principal cannot complain of a sale of property by a subagent and recover it from a third person.\[52\]

The agent is not responsible for losses to his principal if he keeps within his instructions,\[53\] and takes all precautions usually employed by the principal for protection of his property.\[54\] But when he violates his instructions the principal may ignore his acts and hold him liable,\[55\] though he acts without compensation;\[68\] and, if by exceeding his powers the agent renders himself liable, he cannot recover over against the principal,\[67\] but ratification of his unauthorized acts and acceptance of the benefits flowing from the agency will prevent recovery from him by the principal unless the agent has been guilty of fraud.\[58\]

40. Halbot v. Lens, 70 Law J. Ch. Div. 125, (1901) 1 Ch. Div. 344, SS 3 Law T. (N. S.) 702. 49 Wkly. Rep. 214.

01. Emrey-Bird-Thayer Dry Goods Co. v. Coomer. 87 Mo. App. 404.

01. Diamond V. Smith (Tex. Civ. App.) 66 S. V. 141; extortion of money by agent which was paid to principal--Desochino v. Cook, 67 N. J. Law, 467.

01. Fritz V. Kennedy (Jowa) 93 N. W. 603. Jackson v. McNatt, H. 425; liability for overpayments on a loan made by agent to third person--Thompson v. People's Bldg., L. & Inv. Co., 114 Iowa, 481. Signing as "general agent" without disclosing principal will not relieve agent--Macdonald v. Bond, 195 III, 122.

01. Submission to arbitration without disclosing agency; effect of undisclosed agent's exceeding authority--Macdonald v. Bond, 96 III. App. 116.

01. The election to sue the undisclosed principal first was merely an endeavor to be subrogated to the rights of the agent against the principal--Hofman v. Anderson (Ky. App.) 67 S. W. 49; Tw. Voffosh, 77 App. Div. (N. Y.) 454.

01. An agent may sue on an insurance policy covering property referred to as belonging to him as agent--Marine Ins. Co. v. Walsh-Upstill Coal Co., 13-23 O. C. C. 191; Ohio Rev. St. 4 4995.

01. Coulter v. Blatchley, 51 W. Va. 163; Ash v. Beck (Tex. Civ. App.) 68 S. V. 63.

01. Holden v. Rutland R. Co., 73 V. 317.

01. Lucas v. Rader (Ind. App.) 64 N. E. 485; Floyd V. Mackey, 23 Ky. Law R. 2030.

01. Rao, supra, $ 2-A.

01. Bromley v. Aday, 70 Ark. 351.

01. Rohrbough v. U. S. Exp. Co., 50 W. Va. 148.

01. A daughter as agent for father In care of property for benefit of his children may secure the assistance of another in its disposal--Deaward v. Jones, 99 III. App. 301.

01. Losses on loans by agent because of failure to require sureties--Watson v. Roth, 191 III. 382.

01. Burglary of money collected by agent and placed in principal's office safe for the night--Louvilliv& N. R. Co. v. Buffington, 131 Ala. 620.

01. Agent collecting money of his principal without authority Is liable for conversion--Schanz v. Martin, 37 Misc. (N. Y.) 492; failure of loan agent to take security as diluted--Marshall v. Ferguson, 94 Mo. App. 175.

01. Marshall v. Ferguson, 94 Mo. App. 175.

01. Excess of authority In warranting machines sold--J. I. Case Thresh. Co. v. Gardner (Ky. App.) 67 S. W. 26

### 62 AGENCY.

He is allowed a reasonable time in which to perform his duties unless his contract provides a time limit,\[59\] and is not liable for negligence unless in some duty he owes to the principal,\[60\] as, a failure to inform his principal fully as to contracts made so that the latter may protect his rights,\[51\] and not then, unless the damages to the principal are the natural and reasonable result of the negligence.\[62\]

He can acquire no advantage in the business of his agency to the detriment of his principal.\[63\] Knowledge by an agent of fraud of a third person while dealing with him to the principal's injury shows a conspiracy between the agent and such third person.\[64\] An agent employed to collect a debt by attachment, who induced his principal to remain away from the sale and purchased the property at a small price, is guilty of fraud.\[65\] An indorser of a note secured by mortgage, who acted as agent in exchange of lands for one who assumed the mortgage therein, was guilty of fraud in not informing his principal of the indorsement, and his liability was not discharged by payment of the note with funds of the principal in his hands.\[66\]

A contract placing lands "in" another's "hands to be sold," is one of agency and does not entitle the agent to possession.\[67\] A general agent to collect several interests in an estate may indorse checks and collect them for the principal.\[68\] One employed merely to receive and care for goods of another and report on sales made from a branch office is not such an agent as is bound impliedly to pay the expenses of the business done him.\[69\] A principal is not liable for expenses incurred by the agent in his business where the contract of agency requires the agent to pay such expenses.\[70\] Where a seller of goods reserves the right to have goods returned and to revoke a contract of agency, his agent cannot recover damages for his refusal to make delivery.\[71\] An agent agreeing to render his best services in selling goods for the principal commits no breach of his contract by selling, at the same time, another brand of goods of the same general character, manufactured by himself.\[72\] One who invested money in good faith for himself and his father in a business subsequently found to be fraudulent does not bind himself on claims because of his father's interest by paying the accounts of the business to prevent threatened criminal prosecutions unless such payments were made because of profits received by his father.\[73\] A mortgage given by an agent to secure his principal for losses resulting from acts in excess of the agent's authority is prior to an execution against the agent obtained in an action commenced just prior to execution of the mortgage and of which the agent had no notice.\[64\]

A subagent who has no priority with the principals cannot repudiate the acts 50. Sale by factor--Prokop v. Gourlay \[66\] 66. Beatty v. Bulger (Tex. Cliv. App.) 66 (Neb.) 91 N. W. 290. \[67\] 67. Raeder v. Butler, 19 Pa. Super. Ct. 604. \[Neb.\] 91 N. W. 632: diligence of loan agent --Haines v. Christie, 28 Co. 502. \[68\] 61. Western Union Cold Storage Co. v. Winona Produce Co., 197 Ill. 457. \[69\] 62. Liability for failure to delivery to principal order for sale of goods on time, canceled by the purchaser before delivery to the principal--Hurley v. Packard (Mass.) 65 N. E. 64. \[60\] 63. Bonton v. Cameron. 99 Ill. App. 600. \[61\] 64. Fraudulent execution of dead by homemestand owner to procure notes which were sold to agent--Cooper v. Ford (Tex. Cliv. App.) 69 S. V. 487. \[65\] 65. Quinn v. Le Due (N. J. Ch.) 51 Att. 19. \[66\] 66. Beatty v. Bulger (Tex. Cliv. App.) 66 (Neb.) 91 N. W. 290. \[67\] 67. Raeder v. Butler, 19 Pa. Super. Ct. 604. \[68\] 68. Attorney employed by several heirs and legates to collect their Interests in an estate. Macdonald v. Cool, 134 Cal. 502. \[69\] 69. Especially where it appears the parties had so construed the contract by remittances of bills and payment of them by the company--Shorem v. Consolidated Dental Mrg. Co., 202 Pat. 446. \[70\] 60. Liability for office rent and expenses of insurance agent--Arfe v. Metropolitan Life Jns. Co., 99 Mo., Rep. 839. \[71\] 71. Parry Mfg. Co. v. Lyon, 23 Ky. Law R. 844. \[72\] 72. Hirschhorn v. Bradley (Iowa) 80 N. W. 592. \[73\] 73. Ward v. Work, 65 App. Div. (N. T.) 84. \[74\] 74. Spalding v. Heideman, 86 Ill. App. 405.

of the agent within the scope of his general authority, \[75\] and if appointed under proper authority, is not liable as tort-feasor for conversion by the agent. \[76\] .

\_B. Accounting, settlement and reimbursement.--\_The right of principal and agent to an accounting is reciprocal, \[77\] and limitations will not run against an accounting by an agent until demand by the principal and refusal by the agent. \[78\] A principal who has placed money in the hands of his agent, under a power of attorney, to expend it for him, is entitled to an accounting. \[79\] An agent cannot deny his liability to an accounting on the ground that the principal had no authority to engage in the transaction which yielded the money in the agent's hands. \[80\] A lien on the trust fund is not necessary to a suit for accounting in favor of an agent acting in a fiduciary capacity. \[81\]

In absence of an express agreement proceeds of transactions in the agent's hands belong to the principal subject only to the agent's lien for commissions and advances. \[82\] The agent must pay interest on money received by him to loan, of receipt of which he gave no notice to his principal, \[88\] but if he uses his private means to protect his principal's property he may be subrogated to the latter's rights. \[88\] If he guarantees notes taken by him in exchange for goods, he is not relieved from payment of a worthless note because it was declared good by an officer of the principal on settlement, \[88\] and the agent will be liable for notes found worthless after his settlement with the principal. \[88\] The agent cannot charge more for expenses of the business than he actually paid out. \[87\] A principal cannot avoid liability to his agent for advances in good faith on his request, because of his secret intention not to perform the contract on which the advances were made in accordance with its terms. \[88\] Negligence of the agent causing unnecessary advancements and expenditures will prevent his reimbursement therefor. \[88\] Where a tenant remains in possession after the term to care for the premises and collect rents to be applied on a debt due him from the landlord, he should be reimbursed for reasonable expenses. \[80\] An undisclosed agent dealing in good faith in a fraudulent business with the principal's funds cannot recover from the principal's estate for accounts settled to prevent criminal prosecutions against himself personally on the ground that he was liable to return to the third persons funds received as profits in the business when he discovered the fraud. \[91\] An agent entrusted with money for an unlawful purpose must account for any surplus remaining after the illegal object is accomplished. \[92\]

\*\*75. After an attorney acting as agent to collect several shares of an estate has properly endorsed checks for their payment, a his principal's business--Erikine v. Sachs bank acting as subagent cannot repudiate payment so as to blind the collecting bank to the principals--Macdonald v. Cool, 134 Cal. 502. \[76\] Ledwith v. Merritt, 74 App. Div. (N. Y.) 64. \[77\] An agent acting In a fiduciary capacity can have an accounting in regard to the trust fund--Underhill v. Jordan, 72 App. Div. (N. Y.) 71. \[78\] Cole v. Baker (S. D.) 91 N. W. 324. \[79\] Power of attorney executed by alleged insane woman giving custody of her money to superintendent of the poor--Dur v. Blair, 74 App. Div. (N. Y.) 364. \[80\] Agency for sale of municipal bonds, illegal under Burns' Rev. St. 1901, $ 4202a, because sold below par--Witt v. Town of Redley (Ind. App.) 64 N. E. 228. \[81\] Underhill v. Jordan, 72 App. Div. (N. Y.) 71. \[82\]

## AGENCY

### Compensation and lien of agent

After an agent has fixed the value of his services and it has been accepted by the principal, the agent cannot recover additional compensation.\*1 Violation of instructions,\*2 or fraud,\*3 or acting for the other party to a contract without knowledge of his principal,*3 or assuming other and inconsistent employment*3 will destroy his right to compensation, but a principal whose agent agreed not to work for other principals in the same business, cannot defeat his right to commissions by a breach of the contract which he knew and did not act upon.\*4 Substantial performance of contract by agent for sale of machinery in local territory gives him the right to commissions on sales by principal within such territory.\*5 The right of an agent to compensation for settling a dispute concerning a sale of lumber does not depend upon a failure of the lumber to fulfill the requirements.1

Footnote 1: The agent has a _single_ agent, but it has a _single_ agent,commission can be recovered on a quantum merit for selling lands without written authority." A real estate agent who brings the parties to a sale together is entitled to commission if the sale is made within the price named in his instructions.\[10\] A sales agent for a commission equal to the difference between list and trade prices is entitled to such commission on credit sales, though collection had not been made.\[11\] A contract for percentage commissions on cash payments and paid notes for goods entitles the agent to commission on partial payments made before the goods are returned to the principal. Where a principal retains the right to make sales within the territory of his agent and agrees to give him commission on all sales resulting from his efforts, he is entitled to commission on all such sales whether completed by him or by a general agent; and the local agent is not required to submit to a reduction in price by the general agent to complete such sales.\[12\] A contract of agency, without time limit, giving the agent gross percentage commissions on all business done, and requiring him to bear all expenses, entitles him to the percentage less expenses on all receipts on business done prior to termination of the agency by the principal without cause.\[13\] Where the contract is for a stipulated salary and expenses not to exceed a certain sum, the principal may offset moneys furnished for expenses against a salary balance until the agent accounts properly for money advanced.\[14\] An agent who may draw on his principal regardless of the amount of his commissions due, need not show the amount of such commissions in an action to recover an instalment of his drawing account unless the agency has terminated.\[15\] A subagent cannot recover compensation from the principal where the latter's contract with the general agent makes the latter alone liable,\[16\] but his right to recover commissions from a general agent is not affected by a rule of the latter of which the subagent had no knowledge.\[17\] The basis of an agent's compensation for services remaining to be done after wrongful breach of the agency by the principal is the average value of services already rendered unless those remaining are shown to be of greater value.\[18\] A tenant empowered to remain in possession after the term to care for the premises and collect rents to be applied on a debt due him from the landlord, is entitled to reasonable compensation.\[19\] Where the payment of a trust fund to his principal will remove it from the jurisdiction so that he cannot collect for services and expenses, the agent has an equitable lien on the fund.\[20\] \_D. Remedies and procedure.--\_Trover will lie against an agent for conversion of money which his contract requires him to turn over in identity.\[21\] \_Pleading.\[22\]--\_The agent must show a breach of the contract by specific averments.\[23\] An agent may show diligence in trying to recover property of his print.\[23\] \_Gen. St. N. J., p. 1604, SS 10 (Statute of & 16. Insurance subagency--Union Casualty Frauds)--Goldstein v. Scott, 76 App. Div. (N. & cipal, stolen while in his possession, under a general allegation of diligence." An admission of a principal that his general agent appointed plaintiff a subagent is not inconsistent with a defense that the agent's powers to appoint were limited and that termination of the general agency terminated the subagency.25

\_Evidence and burden of proof; questions of fact.26--\_Where an agent claims money retained by him as commission, he must establish his right to it as such.27 A violation of his instructions by an agent must be proved by the principal.28 An employer has the burden of showing damage in an action against an insurance company for negligence to appeal from a judgment for damages, obtained by an employ against the company, where the insurance company, under its policy, undertook the defense for the employer.29 An agent who has charge of his principal's property does not assume the burden of proving that losses did not result from negligence of his employes in charge of the property, in an action for compensation, where it appears that before the losses were shown to have occurred the principal took possession of the property.30 An agent to collect a debt by attachment, who induced his principal to remain away from the sale and purchased himself at a low price, has the burden to prove advancements which he claims to have made to the principal.31 Insufficient evidence of discharge will not warrant a non-suit in an action to recover an installment of agreed advances on commissions.32 Declarations of an agent in course of his employment are admissible against the principal in an action for breach of contract,33 if a part of the res gestae, or if the agent is dead,34 but to admit them agency must first be shown.35 In an action to recover commissions, conversations between the agent and third persons in absence of the principal are inadmissible.36 A finding that the agent was employed at a certain commission and that he performed his services, is sufficient to sustain a verdict in his behalf.37

In his action for compensation, the good faith of an agent is a question for the jury.38 Where the evidence is conflicting as to the fact of agency the jury should not be directed to find no agency existing.39

**AGRICULTURE.40**

SS 1. _The pursuit of agriculture41_ and production and sale of products42 have been subjects of regulation, as shown in foot notes.43

23. An allegation that the principal "did not keep his promise and guaranty." is insufficient--Picker v. Weiss, 39 Misc. (N. Y.) 22.

01. Keystone Watch Case Co. v. Romero, 36 Misc. (N. Y.) 381.

01. Union Casualty & Surety Co. v. Gray (C. C. A.) 114 Fed. 422.

01. Sufficiency of evidence of conversion by agent--Salem Fraction Co. v. Anson, 41 Or. 582. 67 Pac. 1015. 69 Pac. 675; Tyler v. Mutual Dist. Messenger Co. 17 D. C. 85.

01. Thomas v. Gwyn. 131 N. C. 460.

01. Marshall v. Ferguson, 94 M.o. App. 175.

01. The presumption that the judgment was correct, prima facie shows that the employer had not been damaged. The insurance company, in taking the appeal, had the same responsibility as any other agent.

01. Agency for purchase of stock in con-Getchell & Martin Lambert & Mfg. Co. v. E Employers' Liability Assur. Corp. (Iowa) 90 N. V. 616.

01. Sufficiency of evidence to show that expenditures made by agent were made Derianage or Irrigation of farm lands. see

## 2 Products and crop lines

Annual crops are sometimes regarded as chat-tels\[44\] and sometimes as part of the reality\[45\], but the rights as between the lessee and lessor depend on the terms and construction of the contract of lease\[49\].

_Liens on crops_ are statutory, and will be created and enforced according to the local statutes\[47\]. A debt for supplies necessary to raise crops is privileged in Louisiana\[48\], and purchasers are presumed to know of its existence\[49\].

### 3 Agricultural societies

Under a contract giving one the right to conduct a show on state fair grounds, the licensee does not take any interest in the reality where he was to exhibit\[50\]. One holding an exclusive privilege has a cause of action for an infringement thereof\[61\].

A society may recover against an officer for acts done under color of office but without authority\[52\].

An agricultural society is in duty bound to use reasonable care in keeping its grounds and approaches thereto safe\[63\], and in granting exhibition privileges to, and in the exercise of such privileges by others, it must see that public safety is not jeopardized\[64\]. In an action for personal injuries, it is not necessary to expressly state facts in the declaration whenever the defendant neglected its duty in failing to take proper care of its grounds\[48\].

### ALIENS

#### 3.1.1 Who are aliens

Mexican born persons residing on territory acquired by the United States remained Mexican citizens until taking the declaration required,\[87\] and a person born in Porto Rico remained a citizen thereof after the treaty of Paris and Act April 12, 1900\[88\].

Public Works and Improvements; Waters and Watercourses.

41. Fruit tree Inspectors. Utah Rev. St. 1898, $ 1176 amended Laws 1899, $ 1176 amended Laws 1899, $ 47, providing for the appointment of country in-spectors, violates Const. art, 13, $ prohibitting the legislature from Imposing taxes for County purposes, etc.--State v. Stanford, 24 Utah, 148, 66 Pac. 1661. Fervilliers. A sale thereof is valid where the required tag had been attached but was lost in transit, Poli Code. 1563--Hot v. Navassan Guano, 114 Gn. 866.

01. Adulteration. Food. Health. Committee. Inspection. Warehousing.

01. Criminal prosecations. Indictment charging a sale of fertilizers in a package "not bearing in print (and the same not being accompanied by) a statement showing its weight" is insufficient. Md. Code. 61, $ 2. subset. 2--State v. Long, 94 Md. 687. Pur-chasing seed cotton at night. Error to instruct on confessions--Smith v. State, 115 Gn. 856.

01. Swafford v. Spratt, 93 Mo. App. 631.

01. Within the homestead exemption laws --Moore v. Graham (Tex. CIV. App.) 69. S. W. 200. \[Tiffany Real Property, $ 223, p. 521\]. See, also. Embements, Estates of Deedents, Willis, Deeds of Conveyance.

01. Landford and Tenant.

01. A minor who with his father's teams renders services in the cultivation of a crop for the father's creditor, if entitled to his own services may have a Item therefor, but not for the horse's services--Tuckev v. Lovell (Idaho) 71 Pac. 122. A farm laborer in Texas, making affaud for a Item need not state the particular crops raised--Allen v. Glover (Tex. CIV. App.) 65 S. W. 379.

01. Well v. Kent, 107 La. 322.

01. Knowledge need not therefore be pleaded or proved--Well v. Kent, 107 La. 322.

01. License held VIolated and license not entitled to recover part consideration paid under the contract--Mackay v. Minnesota State Agr. Soc. (Minn.) 92 N. V. 529.

01. Privilege to vend refreshments--Ma-Mackay v. Dewis, 24 Ky. Law R. 1312, but being harassed, annoyed and disturbed in mind thereby, is not an element of damage--Ma-Gn. 866.

01. Selling and assisting in the removal of buildings without authority makes the off--Gn. 128 Mich. 423.

01. A railroad platform without the society's grounds used by the public to reach the grounds is an approach to the grounds--Thornton v. Maine State Agr. Soc., 97 Me. 108.

01. It is Ilie florle for the death of one killed by a bullet from a shooting gallery within the grounds, conducted by one having exh-billion privilege, which passed through the fence and killed the person standing on a railroad platform without the grounds--Thornton v. Maine St. Agr. Soc., 97 Me. 108.

01. At railroad platform without the grounds--Thornton v. Maine St. Agr. Soc., 97 Me. 108.

01. It is Ilie florle for injuries sustained by the falling of seats negligently erected by an exh-hbitor--Texas State Fair v. Marti (Tex. CIV. App.) 68 S. W. 432; Same v. Brittain (C. C. A.) crop for the father's creditor, if entitled to his 764, 713.

01. Obstruction of bicycle race track--Benedt v. Union Agr. Soc., 74 V. 91.

01. As to American born Chinese, see U. S. v.

## 2 Disabilities and privileges

The common law disability of aliens to inherit land, has been changed in some states by statute.\[88\] As against third persons a devise of reality to a non-resident alien,\[89\] or the location of a mining claim by an alien, is valid,\[90\] since the question of disability to take and hold realty can only be raised by the state.\[91\]

A non-resident alien may sue.\[88\] An alien cannot hold public office, but may render non-official service.\[92\]

## 3 Immigration, exclusion and expulsion

An attempt to import women for purposes of prostitution in not an offense under the immigration laws,\[88\] nor is a mere advertisement for laborers in a foreign country a violation of the Alien Contract Labor Law.\[89\] An action for debt is the proper remedy to recover the penalty for importing contract labor,\[88\] and the declaration must particularly show the character of the assistance rendered and services to be performed.\[88\]

_Exclusion_

It is within the power of congress to vest in executive officers the power to determine the mode of ascertaining citizenship with a view to the exclusion of aliens.\[89\] The right to exclude an immigrant is not lost by giving him permission to land for temporary purposes.\[88\] A Chinaman born, and permanently residing, in the United States cannot be excluded, though the parents were aliens.\[88\]

_Right of transit_

The right of Chinese persons to cross the United States in journeys to and from other countries was not dependent on any treaty,\[88\] and the treaty with China of December 8th, 1894, in effect recognized and agreed to the continuance of the treasury department regulations of the privilege then in force;\[88\] the treaty of March 17, 1894, was not violated by rule of December 8, 1900, placing the burden on Chinese persons to show "that a bona fide transit only was intended.\[88\] The decision of the customs officer refusing to grant the privilege is final and not subject to review.\[88\]

_Registration_

And May 5, 1893, providing for the registration of resident Chinese and imposing on them the burden of establishing the right to remain is valid,\[88\] and "laborers" as defined in that act and as amended Nov. 3, 1893, and

redations committed before making the de-de-dectation-De Baco v. U. S., 26 Ct. Cl. 407.

ment engage In prostitution its not an o-ss. In r. Gonzalez, 118 Fed. 941.

50. Nebraska Comp. St., c. 73, **71** 70-73,

abolished the disability as to land within the oordporate limits of a municipality-Dougher-y -in the treaty of 1880, may be excluded." A Chinese profitute is within the definition." These statutes, however, do not apply to a resident Chinese woman who married an American citizen after their passage," nor to a resident who thereafter became a laborer;" though if he thereafter disposes of his business, departs from and returns to the United States as a laborer, he may be deported." If registered under the original act, registration under the amendment need not be made."

\_Certificate.--\_The customs officer in determining the right of a Chinese person to enter, may disregard the certificate of residence," and his decision cannot be attacked collaterally."

\_Deportation; procedure.--\_The treaty with China of December 8, 1894, left in force the previous statutes governing the procedure for deportation of Chinese laborers." A United States commissioner has jurisdiction to determine the right of a Chinese laborer without certificate to remain;" and the commissioner first taking has exclusive jurisdiction," which is not lost because the complainant does not positively aver his official character," or because a defense of citizenship is interposed." The persons sought to be deported are only required to produce sufficient credible evidence, as, when fairly considered, will satisfy the judgment of a reasonable man of their right to remain;" and the proceedings not being criminal, the failure of the persons sought to be deported, to testify, may be taken into consideration."

_The appeal_ from his decision is to the district judge," and may be taken on oral notice," but the notice alone does not constitute an appeal." The appeal need not be presented within ten days," but whether the right to a review has been lost by delay in bringing on a hearing, is to be determined by the judge." If no objection has been taken to the commissioner's finding the appeal will be considered as though submitted on an agreed statement of facts," and unless against the weight of evidence the findings will not be disturbed." Where the sufficiency of facts on the right of a Chinese person to remain is alone involved, the decision of the judge of the district court on appeal is final."

a native of Hawaiian Islands.--U. S. v. Chun 46 Law. Ed. 1121; Chin Ying v. Same. 186 U. S. Roy (C. C. A. Hawaii) 111 Fed. 899.

77. Lee Ah Yin v. U. S. (C. C. A.) 116 Fed. 89.

01. Lee Ah Yin v. U. S. (C. C. A.) 116 Fed. 89.

01. Lee Ah Yin v. U. S. (C. C. A.) 116 Fed. 89.

01. In re Chin Ark Wing, 115 Fed. 412.

01. U. S. v. Mayo Yim, 115 Fed. 627; Same V. Chung You. Id.; Same v. Dong Wor. Id.; When 118 Fed. 442; right of resident to enter after departure--U. S. v. Leung Sam. 114 Id.: Same v. Leong Hau Che, Id.: Same v. Leong Hau Che, Id.: Same v. Leong Va. 110 Fed. 154.

01. Lee Lung v. Patterson, 186 U. S. 168,

46 Law. Ed. 1108; affirming In re Lee Lung, 102 Fed. 122.

84. In subsequent deportation proceedings

--U. S. v. Wong Soo Bov. 112 Fed. 416.

85. U. S. v. Lee Yen Tai. 118 U. S. 213, 46 Law. Ed. 878. Lee Lung v. Patterson, 186 U. S. 168,

01. 4 Law. Ed. 1108; affirming judgment. In re Lee Lung, 102 Fed. 132.

01. 56. 69. 70. 85. 87. 88. 89. 89. 89.
